Queensland Government Actions to Compensate Survivors of Institutional Abuse: a critical and comparative evaluation

Dr Ben Mathews*

Governments in numerous jurisdictions have responded to revelations of sustained abuse and neglect of children in State institutions by establishing schemes awarding financial compensation to survivors, and amending limitation statutes to enable the commencement of civil proceedings.  In 1999, the Forde Commission of Inquiry into Abuse of Children in Queensland Institutions reported a similarly devastating incidence of abuse and neglect, and its recommendations included the establishment by the Queensland government of a monetary compensation scheme.  This article contrasts the Queensland government’s calculated failure to respond to this recommendation, and its antithetical personal injuries legislation, with the actions of its counterparts.

1          Introduction

History reveals a pattern of physical, sexual and emotional maltreatment of children in Anglo-Saxon societies.  Children’s traditional status as mere units of economic labour and chattels for sale, without legal recognition or rights, meant that adults were able to subject children to multiple forms of abuse and neglect with impunity.[1]  Most commonly, this abuse and neglect has been perpetrated by individuals within families, but it has also been perpetrated on children entrusted to the care of government and religious institutions.

It is only in the last few decades that this incidence of abuse and neglect of children in State and religious institutions has been revealed.  In a number of jurisdictions, bodies of inquiry have discovered appalling records of institutional abuse and neglect of children.[2]  In Queensland, the Forde Commission of Inquiry into Abuse of Children in Institutions was established by the Queensland government on 13 August 1998 after growing evidence of abuse of children in State and religious institutions.[3] The Forde Inquiry found endemic emotional, physical, sexual and systems abuse, as well as breaches of statutory obligations to provide food, clothing, education and appropriate discipline.[4]  Tragically, after the Forde Inquiry, another inquiry into the abuse of children in State foster care has been necessary in Queensland, with similarly damning results.[5]

These inquiries exemplify the fact that the historical record of brutality has only recently been given anything approaching the attention it needs.  It is undeniable that advances in knowledge and social policy have been made.  As a social phenomenon, ‘child abuse and neglect’[6] has been identified.[7]  The psychological, educational and social effects of abuse and neglect have been researched and documented.[8]  Government departments are empowered to receive and investigate complaints, and to take protective action in certain cases.[9]  The incidence of child abuse and neglect is monitored.[10]  The inquiries into institutional abuse should also constitute an advance in this context, since their findings should inform future government policy and practice to ensure that the perpetration of cruelty and violence within State care does not happen again. 

Because of these advances, it is fair to judge that the worst excesses of this tradition have passed, at least in modern liberal states.  The evolution of liberal society, the academic recognition of childhood as a stage of life that is qualitatively different from adulthood, legislative recognition of children’s needs and rights, and the creation of government departments responsible for child protection, all have positive consequences for the quality of children’s lives.  In Australian States and Territories, adults can no longer kill, abandon and sell children without dire consequences, and criminal laws are at least capable of punishing those who inflict physical and sexual abuse on children.[11]

This judgment is qualified and should not be accompanied by satisfaction.  There is substantial evidence that despite these piecemeal advances, there remain fundamental defects in our society’s treatment of children, and in individuals’ treatment of children.[12]  Recent evidence indicates that the occurrence of child abuse and neglect is still appalling.  From 1994-98 in Queensland, 15 774 child sex offences were reported to police.[13]  In Queensland in 2002-03 there were 31 068 notifications of child abuse and neglect to State authorities, involving 22 027 children.[14]  Of these, there were 12 203 substantiated cases involving 9032 children.[15]  In 2002-03 in Queensland, 4107 children were on care and protection orders issued by the State.[16]  Perhaps most disturbing of all, some of these children in State care, even after revelations of the Forde Inquiry, have been found to have suffered abuse and neglect while in State care.[17]  In a preventative sense, then, evidence suggests that what progress may have been made is not nearly enough.

Moreover, there is a second sense in which it is clear that the responses of the State have been deficient, both practically and morally.  This second sense concerns the issue of how the State responds to people who have been abused and neglected in its institutions.  In stark contrast to comparable jurisdictions, survivors of institutional abuse in Queensland are not financially compensated for their suffering at the hands of the State.  Furthermore, in contrast to several of these jurisdictions, in which the unfair operation of statutes of limitation on members of this class of plaintiff has been recognised, and statutory amendments have been made to enable these individuals to institute legal proceedings, in Queensland, statutory obstacles have not been removed, but have been reinforced.  Instead, survivors recognised by the Forde Inquiry have been directed to take action through existing legal processes, and while civil legal remedies do exist, access to justice for this class of claimant is denied by statutes of limitation, judicial interpretation of extension of time provisions, and now in Queensland, new personal injuries legislation that further inhibits prospects of gaining even a civil hearing, let alone compensation.[18]

In Part 2 of this article, the responses of other jurisdictions in this context are summarised, detailing financial redress schemes and the amendment of statutes of limitation.  The action taken by these governments forms the closest and most reasonable measure by which the financial and legal responses of the Queensland government can be evaluated in this context.  Part 3 describes the Queensland government’s response to the recommendations of the Forde Inquiry regarding compensation, which was to do nothing except direct survivors to take action in the courts.  Part 4 discusses the implications of that direction by summarising the personal injuries litigation framework in Queensland at two points: pre-2002, governed by the Limitation of Actions Act 1974, and post-2002, governed by both the Personal Injuries Proceedings Act 2002 and the Limitation of Actions Act.  This comparative exploration will then inform conclusions about the government’s responses, and recommendations for practical and legal reform.

2          Redress schemes and amendments to statutes of limitation

2.1       Redress schemes

Either independently, or motivated by the recommendations of these bodies of inquiry, a number of governments have taken strong practical and moral action to remedy the damage inflicted on survivors of these institutions by designing redress schemes.  Avenues of redress commonly included in these schemes include apologies, acknowledgment of the harm done, counselling, education programs, access to records, and assistance reunifying families.[19]  A central feature of the redress schemes is the design and implementation of financial compensation schemes, to which responsible religious institutions contribute.  Both inquiries and government initiatives independent of inquiries have accepted that the provision of financial compensation for pain and suffering to those who have suffered damage at the hands of the State is a moral imperative.[20]

The Law Commission of Canada, which undertook a comprehensive review of State responses to institutional abuse, declared that five principles must be respected in all processes through which survivors of institutional abuse seek redress.  First, survivors should possess all information necessary to make informed choices about what course of redress to undertake.  Second, they should have access to counselling and support.  Third, those conducting or managing the process (judges, lawyers, police) should have the training necessary to enable them to understand the circumstances of survivors.  Fourth, continual efforts should be made to improve redress programs.  Fifth, the process should not cause further harm to survivors.[21]

2.1.1    Canada

In Canada, provincial governments have established compensation schemes in situations where children were abused and neglected in State-funded and State-operated institutions.[22]  These include the British Columbia Jericho Individual Compensation Program 1995; the New Brunswick Compensation Program; the Nova Scotia Compensation Program 1996; the Ontario Grandview Agreement Compensation Scheme 1994; and the Ontario St John’s and St Joseph’s Helpline Agreement 1993.

The Law Commission of Canada recommended as the most effective official response in meeting the needs of survivors the use of redress programs that are designed with survivors, which involve responses to all their needs.  Such programs are more flexible, less costly, less time-consuming, less psychologically traumatic and less confrontational than conventional legal proceedings.[23]  It also recommended that ex gratia payments should be offered in cases where an otherwise meritorious and provable claim cannot be pursued because it falls outside a limitation period.[24]

2.1.2    Ireland

In Ireland, revelations of abuse in State orphanages, industrial schools and other institutions influenced Prime Minister Bertie Ahern to make a statement on 11 May 1999 acknowledging and apologising for the abuse suffered by children in institutional care.  Mr Ahern acknowledged that the effects of abuse ‘ruined their childhoods and has been an ever-present part of their adult lives’, and admitted that they were ‘grossly wronged, and that we must do all we can now to overcome the lasting effects of their ordeals’.[25]  Several strategies were implemented to address the situation including the establishment of the Commission to Inquire into Child Abuse.[26]  On 3 October 2000 the Minister for Education and Science announced that the government had agreed in principle to a compensatory scheme, and in February 2001 he revealed that the government had agreed to his plan for the scheme.[27]  The Residential Institutions Redress Bill was presented on 11 June 2001, establishing the Compensation Advisory Committee.  The CAC responded to the Minister for Education and Science in January 2002 in its report entitled Towards Redress And Recovery, making recommendations about the form and content of the compensatory scheme.[28]  The Residential Institutions Redress Act 2002 was passed on 10 April 2002, establishing the Residential Institutions Redress Board and associated bodies (eg the RIR Review Committee) and its functions and powers.[29]  The Residential Institutions Redress Board scheme, funded by government with contributions from responsible religious authorities,[30] was launched on 2 December 2002.[31]

2.1.3    Tasmania

The Tasmanian government has established a similar scheme[32] pursuant to a Protocol Agreement made between the Ombudsman and the Department of Health and Human Services.[33]  The review of claims system was established after revelations in July 2003 of sexual abuse of a former State ward in foster care.  While not establishing an inquiry into the abuse of children in State care,[34] the Tasmanian government established this system to assist people who had made claims of past abuse. 

In the speech presenting the scheme to Tasmania’s Parliament, the themes of compensation as a moral imperative, and of the unfairness of individuals in this class being excluded from access to justice by limitation statutes, are evident:[35]

The Government takes the issue of past abuse of children in State care very seriously and through this process is seeking to provide a reasonable basis for closure upon what, for them, has been a difficult chapter in their lives…A substantial number of the claims that have been made to the Ombudsman relate to actions that occurred many years ago and, in most cases, some decades ago.  It is likely that in most of these cases civil legal action can no longer be taken because of the time that has elapsed.  This is one of the reasons that the Government has put into place the[se] procedures…The Government believes that the victims of past abuse ought to at least receive some acknowledgment of their experience and, where appropriate, some form of compensation.

Under the Tasmanian scheme, claims must first be made to the Ombudsman.[36]  A Review team investigates the claim, which includes record-checking and interviews.  Part of the interview process involves finding out what the claimant wants from the process.  Desired outcomes can include an apology; official acknowledgment that the abuse occurred; assistance finding lost family members; guided access to their Departmental files; professional counselling; payment of medical expenses; compensation; and an assurance that children in future State care will not be subjected to abuse.  Completed files for each claimant are referred to the Department of Health and Human Services for further action if recommended.[37]  An Independent Assessor then assesses claims and decides whether an ex gratia payment is made.  The Assessor can determine payments up to $60 000 or more in exceptional circumstances. 

2.2       Amendments of statutes of limitation

An easy strategy for governments in this situation to escape civil liability would be to deny survivors of long past institutional abuse access to courts by pleading the expiry of the permitted amount of time in which an individual could bring legal proceedings.  This strategy bars plaintiffs not from a favourable judgment, but simply from access to the courts to have an opportunity of presenting their cases, with the attendant possibility of receiving an award of damages.  As will be seen in Part 4, this is what the Queensland government has done. 

Yet there is a clear choice to be made.  Expiry of the limitation period is irrelevant unless the defendant pleads it.  The statutory time limit does not operate automatically to bar a plaintiff’s action.[38]  Furthermore, the court will not consider the expiry of time of its own volition.[39]  This means that the government has to choose to obstruct plaintiffs in these cases.

The Law Commission of Canada made two recommendations in this respect.  First, legislatures should amend limitation periods in these cases so that survivors of institutional abuse cannot be impeded from bringing civil actions.  Second, governments should not rely on limitation periods in these cases to prevent plaintiffs proceeding to trial.[40]  These recommendations are motivated by recognition of the ethical, practical and theoretical circumstances precluding plaintiffs in these cases from bringing actions within time.[41]

Governments in other jurisdictions have made choices that illuminate the depravity of those made by the Queensland government.  In Canada, British Columbia, Saskatchewan, Prince Edward Island, Manitoba, Ontario, Newfoundland, the Northwest Territories and Nunavut have abolished time limits for civil actions based on sexual assault, giving adult survivors of abuse unlimited time in which to institute proceedings.[42]  In Ontario, Manitoba, Saskatchewan, the Northwest Territories and Nunavut, the abolition of time limits in which to proceed also applies to actions for trespass to the person, assault or battery where at the time of the injury the person was in a relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury.[43]  In Ireland, amending legislation in 2000 gave plaintiffs a further year in which to bring civil actions arising out of acts of sexual abuse.[44]  In several American jurisdictions, the effect of limitations statutes on survivors of child sexual abuse is being eroded.[45]  In California, legislative amendments in 2002 revived certain classes of expired claims to allow civil proceedings against the Roman Catholic Church for sexual abuse allegedly committed by priests, and enabled those claims to be launched in the year 2003.[46] 

Governments in Ireland, Canadian provinces and most recently Tasmania have acted to compensate survivors of abuse and in some cases have amended limitation statutes to enable those individuals who wish it to gain access to courts.  In both moral and legal senses, the weight and scope of the responses in other jurisdictions provides a standard of government conduct against which the responses of the Queensland government must be measured.  It is therefore of grave moral and legal significance that in comparable circumstances, the Queensland government has not taken any such action.

3          The Queensland government response

It is difficult to imagine a response that in moral and practical substance contrasts more starkly with these jurisdictions’, than that of the Queensland government.

The Forde Inquiry Recommendation 39 provides:[47]

That the Queensland Government and responsible religious authorities establish principles of compensation in dialogue with victims of institutional abuse and strike a balance between individual monetary compensation and provision of services.

Recommendation 40 requires the establishment of support services such as counselling, and is conceptually and substantially different from Recommendation 39.[48]

Despite representations to the contrary,[49] there has been no action taken to implement Recommendation 39.  The government has claimed that measures taken in establishing the Forde Foundation constitute responses to Recommendation 39.  However, this is not true, since the powers and functions of the Forde Foundation do not count in this respect.  Those powers and functions address support services, falling within Recommendation 40.  The Forde Foundation is neither empowered nor equipped to award monetary compensation.[50]

Compounding the failure to respond, what makes the government’s conduct even more reprehensible is that the flouting of Recommendation 39 has been accompanied by deceptive statements to survivors of abuse about the availability of civil legal remedies.  The government’s 1999 response regarding Recommendation 39 was to advise former residents who had suffered abuse to take civil action in the courts through existing legal processes.[51]  This response was repeated in its 2001 Progress Report.[52]  That year, the government recognised that the Forde Monitoring Committee was dissatisfied in this respect and had urged the government to consider Canadian compensation schemes with a view to implementing a similar scheme.[53]  The Monitoring Committee found that no adequate response to Recommendation 39 had been made, and urged the government and religious organisations to do three things: treat the matter of compensation for former residents as a serious issue that urgently needs to be addressed; consider the compensation models discussed by the Law Commission of Canada as methods for use in Queensland; and to establish a forum for the processing and resolution of compensation claims.[54]

Despite a clear finding of an omission to act, this exhortation by the Monitoring Committee to take action, and even the release in 2002 of a policy by the Queensland National-Liberal Opposition directed at remedying the situation,[55] the government has since continued its failure to respond.  In its 2001 Progress Report, it maintained that ‘the appropriate mechanism for aggrieved people seeking monetary compensation is the Queensland court system.  To establish a separate arrangement for one group of Queenslanders over another would be iniquitous.’[56]

This response compounds the abuse suffered by all individuals in State and religious institutions.  This response is hypocritical because the government knows that it is exactly this group of people that is treated differently in adverse ways by the legal system than other claimants.  Survivors of abuse are effectively ‘under a separate arrangement’ because of the unique nature of their cases and injuries.  The response is cruel because it consciously denies access to redress to those who deserve it, and because in doing so it causes further psychological, emotional and financial distress.  The government is also aware that Legal Aid does not provide assistance in these cases.  Finally, the response is deceptive because it knows that current civil legal provisions under limitations and personal injuries statutes make it both costly and impossible to gain legal redress.  In 2001, the position under the Limitation of Actions Act 1974 made it virtually impossible.  Since then, new legislation imposing further conditions on the conduct of personal injuries actions have made that position both more difficult and more costly.  Part 4 gives a synopsis of these two situations.

4          Compensation through the Queensland court system

4.1       Pre-2002: the Limitation of Actions Act 1974

At the times of the Forde Inquiry and the government’s 1999 and 2001 responses to Recommendation 39, the personal injuries litigation framework in Queensland produced a lengthy, costly and almost certainly negative outcome for plaintiffs in cases of long-past sexual abuse in State institutions.  The difficulties presented by Queensland’s Limitation of Actions Act 1974, which gives plaintiffs in this context three years from the attainment of majority in which to institute proceedings,[57] have been thoroughly documented.[58]  The key difficulties are first, that for reasons documented in worldwide psychological literature, plaintiffs in this class will commonly be psychologically unable to institute legal proceedings within time;[59] and second, these plaintiffs will almost certainly fail to be granted an extension of time in which to proceed,[60] because of the passage of time and the attendant deemed prejudice to the defendant’s right to a fair trial.[61]  These difficulties are not remedied in Australian law by the equitable doctrine of fiduciary duties.[62] 

These problems are particularly prominent for plaintiffs alleging long past sexual abuse, but are arguably no less insuperable for plaintiffs alleging damage caused by long past institutional physical and emotional abuse.[63]  There are several reasons for this.  Just as adult survivors of child sexual abuse typically will avoid stimuli connected with the abuse until psychologically able to confront it,[64] so too may survivors of physical and emotional abuse in this context.[65]  Just as the long-term injuries caused by child sexual abuse, typically Post Traumatic Stress Disorder and depression, take time to manifest and to become known to the survivor of child sexual abuse,[66] so too will the injuries caused by physical and emotional abuse.[67]  Just as adult survivors of child sexual abuse commonly are precluded from commencing litigation within the time set by statutory provisions,[68] due to the nature of the acts inflicted on them - which are frequently accompanied by feelings of guilt and shame, and by threats and an imposed sense of responsibility[69] - adult survivors of physical abuse routinely inflicted on them as children by authority figures in a position of trust will commonly not recognise that they have been wronged until long after the attainment of majority.

What this means is that the government’s advice that survivors of institutional abuse should pursue civil litigation was promoting the institution of legal proceedings by citizens who had been physically and psychologically damaged by the State; proceedings that would cost those citizens time, money, and psychological trauma, and which were bound to fail.  When one of these individuals instituted legal proceedings, the government pleaded the expiry of the limitation period as a defence, and the plaintiff failed.[70]  Any humane assessment of the government’s statements in 1999 and 2001, and of its response during litigation, must condemn those statements and responses in the strongest possible terms.

4.2       Post-2002: the Personal Injuries Proceedings Act 2002

As if the initial abuse and neglect at the hands of the State was not painful enough, and as if the response to the revelation of the abuse by recommending futile, costly and traumatic litigation was not cruel enough, there has since 2001 been a further deterioration in the situation.  Legislation passed in 2002 added yet further difficulties for any person in this class of claimant who wants to pursue perpetrators of abuse in the courts.  Whether by design or omission, the Personal Injuries Proceedings Act 2002 (Qld) contains no provision about how to proceed if the limitation period under the LAA has expired.  An associated problem is that there is no definition of what constitutes a reasonable excuse for delay in commencing litigation.  These gaps in the legislation create confusion and further costly and time-consuming obstacles that must be overcome before a plaintiff can gain access to remedies.

4.2.1    Personal Injuries Proceedings Act 2002

The original Personal Injuries Proceedings Act 2002 (Qld)[71] commenced on 18 June 2002, introducing a statutory framework governing all claims for personal injuries occurring on or after 18 June 2002.  Most significantly, this framework includes a pre-court claim, discovery and negotiation process that must be observed by claimants and respondents.[72]  The Act’s explicit purpose is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.[73]  Second Reading Speeches and Explanatory Notes explain that the purpose of the Act is to reduce the number and size of legal claims, with the accompanying effect of decreasing the premiums charged by insurance companies for public liability and medical indemnity insurance.[74]  This object is to be achieved by, among other things, providing a procedure for the quick resolution of claims, promoting early settlement of claims, ensuring that a person may not start a proceeding in court without being prepared for resolution of the claim by settlement or trial, limiting awards of damages, and minimising the costs of claims.[75]

Despite the fundamental legislative principle that legislation should not retrospectively adversely affect rights and liberties, or impose obligations,[76] soon after commencement the Act was amended to make the original Act apply retrospectively.  The amended Act, assented to on 29 August 2002, makes the pre-court procedures apply to all claims for damages for personal injury, including those claims where the incident producing the claim occurred before 18 June 2002.[77]  Therefore, the Act now applies to all personal injury claims[78] regardless of when the incident producing the injury occurred.  It therefore applies to all possible claimants covered by the Forde Inquiry.[79]  This retrospectivity produces many but not all of the difficulties in this context.

4.2.2    Pre-court process

The pre-court process imposes obligations on claimants and respondents with the object of providing a mechanism for the speedy settlement of disputes out of court.   The process begins with the claimant being forced to provide a respondent with a written notice of the claim.[80]  Part 1 of the notice of claim must be given within nine months of the day of the incident giving rise to the injury, or if the symptoms are not immediately apparent then within 9 months of the first appearance of the symptoms; or within one month after first seeing a solicitor, whichever is earlier.[81]  If the claimant is a child, a parent or guardian may give the notice,