Terms of Reference

“This is history being made.” The Prime Minister outlined the Terms of Reference and named the six commissioners appointed to the Royal Commission today. The Terms of Reference are embodied in the Letters Patent.

  Julia Gillard

Prime Minister of Australia

Nicola Roxon

Attorney-General

Jenny Macklin

Minister for Families, Community Services and Indigenous Affairs

Good afternoon

We are very pleased to announce that on our advice the Governor-General has now appointed six Commissioners for the Royal Commission into institutional responses to child sexual abuse. We have also today released the Terms of Reference that will guide their inquiry.

The Commissioners have been selected because of their broad skills, knowledge and expertise.

  • The Royal Commission will be led by Justice Peter McClellan AM, a Supreme Court Judge from New South Wales who brings a wealth of experience as a Judge and as an inquirer. Justice McClellan has been the Chief Judge at Common Law of the Supreme Court of New South Wales since 2005.  He has also been Chief Judge of the Land and Environment Court of New South Wales, Chairman of the Sydney Water Inquiry and Assistant Commissioner at the Independent Commission Against Corruption.
  • Bob Atkinson, the former Queensland Police Commissioner, brings over 40 years of policing experience to the Royal Commission, including 12 years as Police Commissioner.
  • Justice Jennifer Coate has served for twenty years as a magistrate and county court judge in Victoria, including five years as President of the Children’s Court and five years as the Victorian Coroner. Justice Coate has also now been appointed to the Family Court of Australia.
  • Robert Fitzgerald has served as a Commissioner in the Productivity Commission since 2004.  He has experience in commerce, law, public policy and community services, including as Community and Disability Services Commissioner and Deputy Ombudsman in New South Wales.
  • Professor Helen Milroy is a Director of the Centre for Aboriginal Medical and Dental Health at the University of Western Australia and a Consultant Child and Adolescent Psychiatrist with the Specialist Aboriginal Mental Health Service. She brings extensive experience in child and adolescent mental health and Aboriginal health and mental health.
  • Former Senator for Western Australia Andrew Murray brings a tremendous background as a legislator and as a campaigner for those who have spent time in institutional care as children.

We have asked the Commissioners to submit an initial report by June 2014, so that we can start acting on early recommendations as quickly as possible. We have asked the Commissioners to aim to finish their inquiry by the end of 2015, but this date will be subject to advice from the Commissioners in their interim report.

The Commissioners will now work on setting up processes for hearing and collecting evidence, including arrangements for people who have special needs. They will also consider what services are needed to support witnesses to the Commission.  And in doing so, they will be informed by the experiences of survivors.

An investigative unit within the Royal Commission will ensure the timely referral and criminal investigation of allegations of child sexual abuse that come before the Commission, should victims seek such action.

We received input from more than 800 individuals and organisations on the terms of reference, which has been invaluable in helping shape the scope of the Royal Commission and in selecting Commissioners.

We also worked closely with the state and territory governments in developing the Terms of Reference, and we are pleased that they all support this inquiry.

The Government is committed to do everything we can to make sure that we fix the system for the future. We also want to help survivors of past abuse receive support and justice.

You will find attached an explanation of the Terms of Reference, a general fact sheet on royal commissions and their powers, and a list of support services.

The full Terms of Reference are contained in Letters Patent, which are the formal instructions from the Governor-General to the Commissioners.

For more information, including a copy of the full Letters Patent go to www.childabuseroyalcommission.gov.au. Or you can call 1800 099 340

Warm regards

Julia Gillard                                  Nicola Roxon                     Jenny Macklin

Prime Minister of Australia          Attorney-General             Minister for Families, Community Services and Indigenous Affairs

Letters Patent

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth:

TO

The Honourable Justice Peter David McClellan AM, Mr Robert Atkinson, The Honourable Justice Jennifer Ann Coate, Mr Robert William Fitzgerald AM, Dr Helen Mary Milroy, and Mr Andrew James Marshall Murray

GREETING

WHEREAS all children deserve a safe and happy childhood.

AND Australia has undertaken international obligations to take all appropriate legislative, administrative, social and educational measures to protect children from sexual abuse and other forms of abuse, including measures for the prevention, identification, reporting, referral, investigation, treatment and follow up of incidents of child abuse.

AND all forms of child sexual abuse are a gross violation of a child’s right to this protection and a crime under Australian law and may be accompanied by other unlawful or improper treatment of children, including physical assault, exploitation, deprivation and neglect.

AND child sexual abuse and other related unlawful or improper treatment of children have a long-term cost to individuals, the economy and society.

AND public and private institutions, including child-care, cultural, educational, religious, sporting and other institutions, provide important services and support for children and their families that are beneficial to children’s development.

AND it is important that claims of systemic failures by institutions in relation to allegations and incidents of child sexual abuse and any related unlawful or improper treatment of children be fully explored, and that best practice is identified so that it may be followed in the future both to protect against the occurrence of child sexual abuse and to respond appropriately when any allegations and incidents of child sexual abuse occur, including holding perpetrators to account and providing justice to victims.

AND it is important that those affected by child sexual abuse can share their experiences to assist with healing and to inform the development of strategies and reforms that your inquiry will seek to identify.

AND noting that, without diminishing its criminality or seriousness, your inquiry will not specifically examine the issue of child sexual abuse and related matters outside institutional contexts, but that any recommendations you make are likely to improve the response to all forms of child sexual abuse in all contexts.

AND all Australian Governments have expressed their support for, and undertaken to cooperate with, your inquiry.

NOW THEREFORE We do, by these Our Letters Patent issued in Our name by Our Governor-General of the Commonwealth of Australia on the advice of the Federal Executive Council and under the Constitution of the Commonwealth of Australia, the Royal Commissions Act 1902 and every other enabling power, appoint you to be a Commission of inquiry, and require and authorise you, to inquire into institutional responses to allegations and incidents of child sexual abuse and related matters, and in particular, without limiting the scope of your inquiry, the following matters:

    1. what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future;
    2. what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts;
    3. what should be done to eliminate or reduce impediments that currently exist for responding appropriately to child sexual abuse and related matters in institutional contexts, including addressing failures in, and impediments to, reporting, investigating and responding to allegations and incidents of abuse;
    4. what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.

AND We direct you to make any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms.

AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiry and recommendations, to have regard to the following matters:

    1. the experience of people directly or indirectly affected by child sexual abuse and related matters in institutional contexts, and the provision of opportunities for them to share their experiences in appropriate ways while recognising that many of them will be severely traumatised or will have special support needs;
    2. the need to focus your inquiry and recommendations on systemic issues, recognising nevertheless that you will be informed by individual cases and may need to make referrals to appropriate authorities in individual cases;
    3. the adequacy and appropriateness of the responses by institutions, and their officials, to reports and information about allegations, incidents or risks of child sexual abuse and related matters in institutional contexts;
    4. changes to laws, policies, practices and systems that have improved over time the ability of institutions and governments to better protect against and respond to child sexual abuse and related matters in institutional contexts.

AND We further declare that you are not required by these Our Letters Patent to inquire, or to continue to inquire, into a particular matter to the extent that you are satisfied that the matter has been, is being, or will be, sufficiently and appropriately dealt with by another inquiry or investigation or a criminal or civil proceeding.

AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiry and recommendations, to consider the following matters, and We authorise you to take (or refrain from taking) any action that you consider appropriate arising out of your consideration:

    1. the need to establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, documents or things, in accordance with section 6P of the Royal Commissions Act 1902 or any other relevant law, including, for example, for the purpose of enabling the timely investigation and prosecution of offences;
    2. the need to establish investigation units to support your inquiry;
    3. the need to ensure that evidence that may be received by you that identifies particular individuals as having been involved in child sexual abuse or related matters is dealt with in a way that does not prejudice current or future criminal or civil proceedings or other contemporaneous inquiries;
    4. the need to establish appropriate arrangements in relation to current and previous inquiries, in Australia and elsewhere, for evidence and information to be shared with you in ways consistent with relevant obligations so that the work of those inquiries, including, with any necessary consents, the testimony of witnesses, can be taken into account by you in a way that avoids unnecessary duplication, improves efficiency and avoids unnecessary trauma to witnesses;
    5. the need to ensure that institutions and other parties are given a sufficient opportunity to respond to requests and requirements for information, documents and things, including, for example, having regard to any need to obtain archived material.

AND We appoint you, the Honourable Justice Peter David McClellan AM, to be the Chair of the Commission.

AND We declare that you are a relevant Commission for the purposes of sections 4 and 5 of the Royal Commissions Act 1902.

AND We declare that you are authorised to conduct your inquiry into any matter under these Our Letters Patent in combination with any inquiry into the same matter, or a matter related to that matter, that you are directed or authorised to conduct by any Commission, or under any order or appointment, made by any of Our Governors of the States or by the Government of any of Our Territories.

AND We declare that in these Our Letters Patent:

  child means a child within the meaning of the Convention on the Rights of the Child of 20 November 1989.

government means the Government of the Commonwealth or of a State or Territory, and includes any non-government institution that undertakes, or has undertaken, activities on behalf of a government.

  institution means any public or private body, agency, association, club, institution, organisation or other entity or group of entities of any kind (whether incorporated or unincorporated), and however described, and:

      1. includes, for example, an entity or group of entities (including an entity or group of entities that no longer exists) that provides, or has at any time provided, activities, facilities, programs or services of any kind that provide the means through which adults have contact with children, including through their families; and
      2. does not include the family.

  institutional context: child sexual abuse happens in an institutional context if, for example:

      1. it happens on premises of an institution, where activities of an institution take place, or in connection with the activities of  an institution; or
      2. it is engaged in by an official of an institution in circumstances (including circumstances involving settings not directly controlled by the institution) where you consider that the institution has, or its activities have, created, facilitated, increased, or in any way contributed to, (whether by act or omission) the risk of child sexual abuse or the circumstances or conditions giving rise to that risk; or
      3. it happens in any other circumstances where you consider that an institution is, or should be treated as being, responsible for adults having contact with children.

    law means a law of the Commonwealth or of a State or Territory.

official, of an institution, includes:

      1. any representative (however described) of the institution or a related entity; and
      2. any member, officer, employee, associate, contractor or volunteer (however described) of the institution or a related entity; and
      3. any person, or any member, officer, employee, associate, contractor or volunteer (however described) of a body or other entity, who provides services to, or for, the institution or a related entity; and
      4. any other person who you consider is, or should be treated as if the person were, an official of the institution.

related matters means any unlawful or improper treatment of children that is, either generally or in any particular instance, connected or associated with child sexual abuse.

AND We:

  1. require you to begin your inquiry as soon as practicable, and
  2. require you to make your inquiry as expeditiously as possible; and
  3. require you to submit to Our Governor-General:
    1. first and as soon as possible, and in any event not later than 30 June 2014 (or such later date as Our Prime Minister may, by notice in the Gazette, fix on your recommendation), an initial report of the results of your inquiry, the recommendations for early consideration you may consider appropriate to make in this initial report, and your recommendation for the date, not later than 31 December 2015, to be fixed for the submission of your final report; and
    2. then and as soon as possible, and in any event not later than the date Our Prime Minister may, by notice in the Gazette, fix on your recommendation, your final report of the results of your inquiry and your recommendations; and
    3. authorise you to submit to Our Governor-General any additional interim reports that you consider appropriate.

IN WITNESS, We have caused these Our Letters to be made Patent.

WITNESS Quentin Bryce, Governor-General of the Commonwealth of Australia.

Dated  2013

Governor-General

By Her Excellency’s Command

Prime Minister

Fact sheet

Powers of a Royal Commission

Commonwealth Royal Commissions are public inquiries that are established under Royal Commissions Act 1902 (Cth) by appointing Commissioners to conduct an inquiry in accordance with Terms of Reference approved by the Governor-General. In this case the Royal Commission is also expected to be established under relevant State legislation in several jurisdictions.  This will allow the Royal Commissioners to act in multiple capacities, performing functions under Commonwealth and State laws.

Hearings

A Royal Commission can take evidence in a number of ways for different purposes, including conducting formal hearings. Hearings may either be open or closed, or restricted to a certain class of persons.  Evidence given in a closed hearing will not be made publically available and will be used in a way that protects an individual’s identity.

Royal Commission can refer information about suspected or alleged crimes to relevant law enforcement authorities or share relevant information with other ongoing inquiries.

Information about hearings and how individuals can participate in the Royal Commission will be made available on its website www.childabuseroyalcommission.gov.au.

Coercive powers

The Royal Commission has broad powers to gather information and assist with its investigations and inquiries.  These are sometimes called coercive powers because they can compel an individual to participate in the inquiry.

The Royal Commission has the power to:

  • summons witnesses to appear before it and require them to answer questions under oath or affirmation, and
  • summons witnesses to produce a document or other material piece of evidence.

If summoned, there are very few grounds on which a person can refuse to give evidence to a Royal Commission.

Failure to comply with a summons issued by a Royal Commission may result in an individual receiving a fine or in some circumstances imprisonment.

In some circumstances a search warrant and/or arrest warrant might be issued if a person fails to comply with a summons.

It is an offence to intentionally provide false or misleading evidence to a Royal Commission or by intentionally insulting or disturbing it.

Royal Commission into Institutional Responses to Child Sexual Abuse

Explaining the Letters Patent and Terms of Reference

 This document explains the Letters Patent and Terms of Reference for the Royal Commission into Institutional Responses to Child Sexual Abuse.

The ‘Letters Patent’ is the legal document from the Governor-General that gives instructions to the Commissioners about the scope of the inquiry and what the Commissioners should investigate and make recommendations on. The Letters Patent also formally appoint the Commissioners.

The full Letters Patent document is available at www.childabuseroyalcommission.gov.au.

This explanation document should not be taken to in any way replace the Letters Patent document, or to have any legal standing.

Why the Royal Commission has been set up

Child sexual abuse is a crime, and a terrible breach of the right of every child to grow up safe and happy.

Child sexual abuse is often associated with other forms of abuse including physical abuse, exploitation, and neglect.

All have long-term effects on survivors and their families. There are also costs to the economy and society as a whole.

Australia has committed at an international level to do everything it can to protect children from all forms of abuse. This includes taking action to help prevent child abuse from happening and, when child abuse does happen, to help ensure that cases are identified, reported, investigated, and followed up.

It is recognised that public, non-government and private organisations provide important services and support to help children and their families.

These include childcare, cultural, educational, religious, sporting and other organisations, which play an important role in helping children to grow up safe and happy.

But it is important that laws, rules and practices are in place to ensure organisations protect children against the risk of sexual abuse and that claims of abuse and the impacts of abuse are appropriately responded to.

It is important that this inquiry explore claims of systemic failures by institutions to protect children from sexual abuse and related matters.

The inquiry should identify what can be done in the future to better prevent and respond to child sexual abuse, including holding perpetrators to account and providing justice to victims.

People who have been affected by child sexual abuse will be able to share their experiences with the inquiry if they want to, to assist with healing and to inform the Commissioners’ recommendations.

The Australian and State and Territory Governments have committed at the most recent Council of Australian Governments meeting to support this inquiry, and giving it their full cooperation.

What the Royal Commission will investigate

The Commissioners will examine past and current child sexual abuse in organisations and may make findings and recommendations on:

  • how organisations with a responsibility for children have managed and responded to claims of sexual abuse and other forms of abuse and neglect associated with child sexual abuse
  • whether organisations have done enough to respond to child sexual abuse when it has happened
  • what organisations can do to better protect children under their care
  • what organisations should do to identify  child sexual abuse and encourage people to report it
  • how organisations should respond when they find out information that suggests that sexual abuse of children under their responsibility is happening, or has happened in the past
  • what the barriers and failures have been to reporting, investigating and dealing with cases of child sexual abuse in organisations, and how these barriers can be removed in the future
  • what organisations should do to support survivors where child sexual abuse does occur
  • what organisations should do to ensure victims receive justice, including through redress by organisations, and investigation and prosecution of perpetrators.

The Commissioners can make any recommendations that they think will help improve the way things are done in the future or help existing survivors.

This includes looking at laws, as well as the policies, rules and structure of organisations.

What the Royal Commission will cover

The Royal Commission is focused on child sexual abuse within organisations and institutions.

The Commission will also look at matters related to child sexual abuse. This means any unlawful or improper treatment of children that is connected or associated with child sexual abuse generally, or in a particular case.

This recognises that other forms of abuse including physical abuse and neglect often happen with sexual abuse, and if connected they can be examined by the Commission.

The Commissioners can look at any public or private organisation that is, or was in the past, involved with children, including non-government organisations and government agencies (including police and justice), schools, sporting clubs, orphanages, foster care, and religious organisations.

This includes where they consider an organisation caring for a child is responsible for the abuse or for not responding appropriately, regardless of where or when the abuse took place.

The Commission will not specifically examine child sexual abuse outside organisations, such as in the family. However, any recommendations made by the Commissioners are likely to improve the response to child sexual abuse wherever it happens.

How the Commissioners will conduct their inquiry

To carry out the inquiry, the Commissioners will:

  • consider the experiences of people affected by child sexual abuse in organisations
  • look at archives, records and documents and consider submissions and statements from public, non-government and private organisations
  • look at the laws, as well as policies and practices of institutions, organisations and governments to prevent and respond to child sexual abuse
  • take into account the findings, recommendations, and information from past and existing inquiries, where appropriate. This can include drawing on the stories of witnesses from other inquiries (with their consent).

The Commissioners will make sure that people telling their stories have appropriate support in dealing with any trauma that might come up from discussing their abuse.

The Commissioners will also make sure that people with special needs can participate fully in the inquiry. For example, this could include interpreters for people who speak a language other than English, assistance for people with disabilities, and help preparing submissions for people who need assistance with reading and writing.

The Commission will make sure that organisations are given enough time to search and respond to requests for documents and records.

Handling of individual cases

The Royal Commission cannot prosecute individuals.

The Commission can refer individual cases to relevant law enforcement bodies, such as police, for investigation and, where appropriate, prosecution in a timely fashion.

The Commissioners will consider appropriate mechanisms for how the Commission might inquire into and investigate particular cases, including past cases, as appropriate.

Mechanisms might include examining archives and records and working with relevant law enforcement bodies such as police.

This includes establishing investigative units to support their inquiry.

In handling evidence about specific cases, the Commissioners will take care not to do anything that could disrupt a current or future criminal prosecution or compensation case.

Timing and reporting

The Commissioners will begin their inquiry as soon as possible.

The Commission will prepare an interim report by 30 June 2014 so that governments and organisations can start taking action on the Commission’s early findings and recommendations.

In this interim report, the Commissioners will identify when their final report will be completed. The Terms of Reference will set an end date for the Royal Commission of 2015, but this date will be subject to the advice of the Commissioners in their interim report.

The Prime Minister can extend the final reporting date which has happened in previous Commissions.

The Commissioners will also be able to provide other interim reports throughout the life of the Royal Commission as appropriate.

 

Royal Commission into Institutional Responses to Child Sexual Abuse

 

The Royal Commission will soon start its work. If you need support or advice, a list of services you can contact is below.

 

Support services

 

National help lines

1800 RESPECT (24-hour sexual assault and domestic violence support)                           1800 737 732

Mensline (relationship support for men)                                                                                 1300 789 978

Lifeline (24-hour crisis support and suicide prevention)                                                         13 11 14

Suicide Call Back Service (24-hour crisis support and suicide prevention)                          1300 659 467

beyondblue (mental health support)                                                                                       1300 22 4636

SANE Australia Helpline (mental health support)                                                                   1800 187 263

Specialist national counselling services

Adults Surviving Child Abuse (counselling and support for survivors)                                   1300 657 380

Find and Connect (Forgotten Australians and Former Child Migrants)                                 1800 161 109

Bravehearts (counselling for survivors and child protection advocacy)                                1800 272 831

Care Leavers Australia Network (support and advocacy for Forgotten Australians)            1800 008 774

State and Territory sexual assault services

NSW Rape Crisis Centre                                                                                                        1800 424 017

Victoria Sexual Assault Crisis Line                                                                                         1800 806 292

South Australia Yarrow Place                                                                                                 1800 817 421

Western Australia Sexual Assault Resource Centre                                                              1800 199 888

Northern Territory Crisis Line                                                                                                 1800 019 116

Brisbane Rape and Incest Survivors Support Centre                                                            1800 010 120

Canberra Rape Crisis Centre                                                                                                 (02) 6247 2525

Tasmania Laurel House                                                                                                          (03) 6334 2740

Reporting child sexual abuse to authorities

Child abuse is a crime. If you have been a victim of abuse, or are concerned about a child being abused, this should be reported to police. The Royal Commission cannot prosecute individuals.

Getting involved in the Royal Commission

People wanting to provide evidence or find out more information about the Royal Commission can provide their contact details on 1800 099 340. Staff from the Royal Commission will make contact once the Commissioners begin their work.

For more information

For more information on the Royal Commission go to www.childabuseroyalcommission.gov.au.

 

About Peter Kelso


I am a solicitor of the Supreme Court of New South Wales. I have been admitted to practice since 1984. I am the principal and founder of Kelso Lawyers which has operated in Newcastle since 1986.

I have been an advocate for compensation for victims of abuse since the commencement of the Victims Compensation Tribunal in New South Wales in 1988. I conduct the largest victims practice in New South Wales. I have a high level of engagement with numerous NGOs such as woman’s refuges, sexual assault services, community organisations and healing centres.

On 31 October 2012 I was a finalist for the Justice Medal, presented by the Law and Justice Foundation of New South Wales.


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