2018-03-26
Lidia Thorpe - Speech in Parliament: I rise today to speak on the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018.
I start by sharing a story of a friend of mine, Donis, whom I have known for over 20 years. Donis was stolen from her family, and each of her brothers and sisters were put into separate children’s homes. They suffered terrible abuse over many, many years. From the age of five Donis herself was drugged in one of these institutions. Her whole life has been a great struggle due to the trauma of her childhood. She is now 47 years of age, and the last time I spoke to her she was hoping to make it until she was 50.
These stories are heartbreaking, and they are all too common. It is a relief that finally federal and state governments are doing something to provide redress and allow justice to be served on this. But the reality is that two decades after the Bringing Them Home report was published, members of the stolen generation do not have their own redress scheme as recommended by that report. Legislative reform in Victoria has failed to address harms that are specific to the stolen generation. And while we are yet to see the detail, we know that the national redress that Victoria has committed to joining will be limited in scope.
Turning to the bill, I say clearly at the outset that the Greens will be supporting this bill. The Greens’ position will be set out in more detail in the other place. The bill will abolish the heinous Ellis defence that has existed for far too long, and it will see Victoria become the first Australian jurisdiction to successfully do that. It has our full support for those reasons, but more importantly it has our full support for the symbolic message it sends to Victorian care leavers and for the positive implications it is likely to have for so many of those people. No doubt we will spend a lot of time during debate on this bill congratulating the government on its work on this issue and for playing an important role in bringing the bill forward. I would add to those congratulations my respect and gratitude for campaigners and legal advocates who have worked so hard to make this change happen, many of whom have contributed to and scrutinised the bill in draft form.
As we have already heard, this bill provides for non-government organisations (NGOs), including religious organisations, to nominate a legal defendant for the purpose of being sued for sexual and/or physical abuse of children in the care of institutions. Where an institution does not nominate a defendant, the bill enables the court to nominate any associated trust that can then be accessed for the purposes of any compensation awarded. When John Ellis sought compensation for his abuse from the Sydney Catholic archdiocese, the New South Wales Court of Appeal found that the Catholic Church and its trustees could not be sued or held liable for his abuse. This loophole, which became known as the Ellis defence, has existed since that time, allowing churches to be considered non-entities, meaning that they cannot be sued as a single entity. While the Ellis defence did not become commonplace, it has loomed large in history and has acted as a powerful deterrent for victim-survivors of child sexual abuse that occurred in institutional contexts.
As a new member of Parliament I have to say I find it incredible that it has taken such a long time and so many inquiries and investigations to get to this point. Seven state and national inquiries have taken place to confirm the simple fact that the sexual abuse of children historically in Australian residential institutions was widespread. It is incredible that it has taken 10 years of tireless advocacy and campaigning to reach the point where this awful legal loophole is about to be closed. I know so many Victorians and Australians share my feelings on this issue. It has taken far too long, and while we have every right to mark this moment as a historic one, we should also note that it has taken far too long, and a decade of blood, sweat and tears to get here.
In particular I want to acknowledge the experience of my own people today. We have been disproportionately affected by historic child abuse, and so much of the harm inflicted has never been adequately addressed. We know from the Bringing Them Home report that between 10 and 33 per cent of Aboriginal and Torres Strait Islander children were taken from their families by force between around 1910 and 1970. The trauma experienced by all of those children, and the intergenerational trauma that continues to this very day, is unspeakable. We do not know how many of those children were sexually and/or physically abused, because that data simply does not exist. It was not reported, it was not recorded; and on the rare occasions that it was, it was often destroyed. I am prepared to go out on a limb and suggest that the vast majority of Aboriginal kids that were forced into institutions were abused there, because while we do not have the data on abuse, we do have a huge amount of information about the cultural and social norms and practices that drove these policies and that shaped the actions of the people responsible for these kids.
As was noted in one research report prepared as part of the royal commission: At the height of segregation and ‘protectionist’ policies it was thought that Aboriginal and Torres Strait Islander peoples would inevitably die out from exposure to a supposedly superior race. As Dr Cecil Cook, Chief Protector Northern Territory … believed: Generally by the fifth and invariably by the sixth generation, all native characteristics of the Australian Aborigine are eradicated. The problem of our half-castes will quickly be eliminated by the complete disappearance of the black race, and the swift submergence of their progeny in the white … The Australian native is the most easily assimilated race on earth, physically and mentally.
In particular, patriarchal attitudes about the entitlement of white men to sex with Aboriginal and Torres Strait Islander women and children almost certainly increased the risk of Aboriginal kids being abused in institutions. Indigenous women and girls were systematically abused for the sexual gratification of white pastoralists, and these attitudes and practices continued well into the 20th century. Nor was it confined to remote settlements. Aboriginal girls sent to work in so-called respectable homes were routinely abused. Archbishop Donaldson, visiting Barambah in 1915, noted that of the girls sent out to service, ‘over 90 per cent come back pregnant to a white man’. While we know that physical and sexual abuse of all children was widespread in institutions, we also know that this fails to accurately represent the harm inflicted on all children who spent time in institutional contexts.
This brings me to the important point of the definition of abuse included in the bill. The Greens have long advocated for the full implementation of the Bringing Them Home report, including establishment of the national compensation fund under Indigenous leadership, accompanied by a range of reparations and reforms. In the absence of specific mechanisms for the stolen generations, we have advocated for a more comprehensive definition of abuse in relevant legislation that includes cultural and psychological abuse as well as forced labour. My colleagues have moved amendments in debates on previous bills aimed at widening this definition. None have been supported by either major party.
Now there is a huge amount of evidence of the horrific impact of psychological and cultural abuse on children throughout their lives, and that body of evidence keeps piling up to this day. Yet no redress mechanism to date has genuinely recognised this. Psychological abuse will only be compensated where it happened in conjunction with sexual abuse or physical abuse. I find that pretty horrific. It is particularly horrific when you consider the extent to which psychological and cultural abuse was deliberately and consistently inflicted on Aboriginal people over such a long period of time.
Our Aboriginality was denigrated, our culture was systematically attacked. We were branded as an inferior race. People in positions of power and influence believed and actively worked to breed out the genetic characteristics of our race. Many of the institutions that held children were established with the explicit purpose of breaking down Aboriginal resistance to settler encroachment on their traditional lands. Removing kids from their families, separating siblings and placing kids in institutions where child abuse was rife was a systematic strategy to break down Aboriginal resistance and cultural identity.
From the 1950s onwards, a body of evidence was built showing that large institutions were hugely expensive and failed to meet the needs of children. At that point, many white children were rehomed in smaller facilities or placed in foster homes. Aboriginal and Torres Strait Islander kids, who had always been put into larger residential institutions, remained in large residential institutions long after these institutions were considered to be unsafe for non-Aboriginal children. Bringing Them Home made it clear that when state governments finally started to take the needs of vulnerable children more seriously, these safeguards and protections were rarely afforded to Aboriginal kids. In light of this, I am sure members of this house will understand how passionate I am in arguing for a broader definition of abuse that does not make sexual or physical abuse a prerequisite for access to compensation.
As I have previously said, the Greens are fully supportive of Victoria’s leadership in abolishing the Ellis defence and increasing the accountability of religious institutions for historic abuse. On that note, I commend this bill to the House.