Journeying into Injustice: The National Redress Scheme and the Churches

 

Redress should be survivor-focused—redress is about providing justice to the survivor, not about protecting the institution’s interests.
                          —Redress and Civil Litigation Report,
                  Royal Commission into Institutional Responses to Child Sexual Abuse

 

Following recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse, the Australian government has set up a National Redress Scheme to pay compensation of up to $150,000 to people who claim to have been abused in various institutions over the past fifty years. Although membership of the Scheme is voluntary, Christian institutions (along with other public institutions) are under pressure to join.

Despite serious misgivings, I initially thought that my home church would need to opt in to the Scheme in order to protect itself from the risk of unforeseen legal action and financial damages. But on further investigation, I discovered that, far from protecting the church, the Scheme actually places it in danger. (This ought to have been self-evident, given that the Scheme has been set up not to protect churches but to get money from churches with a minimum fuss for alleged victims of historical child sexual abuse.) And I further found that involvement in the Scheme would require our congregation to abandon basic biblical principles of justice.

Let me cite developments in one Christian denomination by way of illustration.

In its efforts to encourage all of its member churches to opt in to the National Redress Scheme, this denomination distributed various documents and conducted various seminars in 2018 through its “Safe Church Team”, headed by the “Church Health Pastor” (both genuine titles). This team is to be commended for its compassion for victims of child sexual abuse and its concern for the denomination’s churches. In a difficult social, political and legal climate, it is attempting both to redress wrongs done to abuse victims and to save churches from collapse under the burden of that redress.

Unfortunately, well-meaning people do not always offer well-reasoned advice. Sometimes their presuppositions, proposals and procedures can be seriously wrong. Such is the case, I fear, with the Safe Church Team. In one of its papers, for example, the team states:

“When a redress claim is first received [by the denomination from the Redress Scheme] the relevant institution [that is, the local church] is notified of the redress claim and given an opportunity to respond with relevant details. The individual accused of the offence is not notified.¹ 

The individual accused of the offence is not notified! The injustice expressed in this sentence is so self-evident and so extreme that one is tempted to think that the words do not mean what they say. However, upon questioning the Church Health Pastor, I learnt that there is no mistake. The accused person will not even be told that he is accused, let alone be told the identity of the accuser or the nature of the accusation. The Safe Church Team and the local church’s own safe church delegates will “respond with relevant details” to the Scheme operator and make the redress payment to the alleged victim without ever speaking to the accused person!

Indeed, as the document goes on to state, “The individual accused of the offence will only be notified if the institution is required to consider implementing risk management measures, or if the Police choose to investigate.” In other words, the only way the accused person will discover that he has been accused, and that his church and his denomination have accepted the accusation and made “redress” on his behalf, is if the Safe Church Team or the local safe church delegates determine that he presents an ongoing danger to the local church or if they decide to refer him to the police and the police decide to investigate him.

This rather makes a mockery of the title, “Safe Church Team”. Who is the team making the churches safe for? Not for anyone who is accused and denied due process. And certainly not for the innocent person who is falsely accused.

When I and several others asked the Church Health Pastor about this, she dismissed our concerns, insisting that “survivors” do not make false accusations, and implying that to question the truthfulness of survivors is to be guilty of insensitivity towards them and will cause them to be re-traumatised. When pressed, she claimed that just 2 per cent of allegations prove false, and in such a case the innocent Christian should be willing to bear the false accusation for the greater good of protecting survivors from further trauma and making amends for the churches’ supposed past indifference to abuse and insensitivity to the abused.

 

The nature of the claims

In February 2018, a two-year-old girl was sexually abused in the Northern Territory town of Tennant Creek. She was raped by a twenty-four-year-old man and as a consequence she had to be hospitalised and placed in an induced coma.² In March 2018, another Aboriginal child was sexually abused in the Northern Territory. This time it was a four-year-old boy who was sodomised by a sixteen-year-old youth in a remote indigenous community. This child, too, was hospitalised from the injuries he sustained.³

In both these cases, there is irrefutable evidence that crimes of child sexual abuse were committed. The fact of the crimes has been established by the evidence of the children’s injuries, injuries that have been observed, treated and documented.

Furthermore, the passage of time will not cast into doubt the occurrence of the crimes themselves. Even if the abusers were not tracked down for thirty years, the truth of what happened would still be beyond dispute. Should someone be tried for one of these crimes in the distant future, the jury would not need to ask, Did it really happen? The only question of concern to the jury would be, Is the accused really the one who did it?

But this is not the case with many of the crimes forming the basis of claims that will be made through the National Redress Scheme. These claims will involve allegations of historical child sexual abuse. In most such cases, there is no evidence of the crime itself, let alone of who might be the criminal.

By way of illustration, consider “Reynold’s story” to the Royal Commission: “When he was nine years old, in the 1960s, Reynold was sexually abused [in a Catholic school] by one of the Brothers … And because of the Brothers’ tendency to administer corporal punishment, he felt he couldn’t disclose what had happened.” And he did not disclose it to anyone for another thirty years: “It wasn’t until he turned 40, after a number of close friends passed away from AIDS-related illnesses, that his psychological health began to deteriorate. After a particularly close friend died, Reynold sought help from a grief counsellor where he revealed the abuse he had experienced as a child.”⁴ ­­

It is apparent that Reynold’s story of abuse in the 1960s is very different from the stories of the two Aboriginal children who were abused in 2018. And the principal difference is this: there is no evidence that what Reynold claims happened actually did happen. Of course, Reynold may be telling the truth, but we only have his word for it. There is no proof of the crime itself, let alone of who committed it. And now, some fifty years later, it is virtually impossible to find proof. How, then, can we determine who is guilty when we have no evidence that anyone is guilty? The question Who actually did it? is meaningless when we cannot answer the prior question Did it actually happen?

Many of the cases of historical child sexual abuse “documented” by the Royal Commission and likely to be advanced through the Redress Scheme are of this unproven and unprovable sort. We should never lose sight of this fact. For when there is no proof that a crime has actually occurred, we must be doubly cautious about judging someone guilty of it.

 

The new power of the survivors

In response to allegations of historical child sexual abuse (and similarly, allegations of historical sexual assault against women), it is hard not to fear the baying mob and the politically correct brigade. Those who truly were sexually abused as children were doubtless powerless at the time, but they (and their “me too” copycats) are not powerless now. They and their immensely powerful sympathisers—the media, the welfare industry, the Royal Commission, the National Redress Scheme, and the national and state parliaments—have managed to place every man in the country under suspicion, with special suspicion falling on fathers of traditional families and leaders of Christian institutions and churches.

They have created an atmosphere where the presumption of innocence is destroyed and a mere accusation is immediately taken as sufficient (if not decisive) proof of guilt by two-thirds of the population. Survivors are in a position of immense power and they and their cheering hordes show no inclination for compassion or restraint in the way they bandy that power about. No sensible man, and no sensible woman who loves a man (brother, father, husband or son), could possibly view what is happing in this country regarding alleged historical child sexual abuse without feeling alarmed.

Indeed, I suggest that this alarm underlies the reason why many decent church leaders are taking their churches into the Redress Scheme: It is not because they themselves bear the slightest guilt, nor because they have the slightest reason to believe ill of earlier godly generations in their churches, but because they are afraid, afraid of the power of “survivors” to smash their guiltless reputations and their innocent churches to pieces without the slightest proof and without any possibility of defence and redress on their part. And they are, I conjecture, putting their trust in the National Redress Scheme, hoping it will protect them, or, at least, limit the damage they might suffer.

But the survivor-favouring Redress Scheme is a cause of their danger, not the solution to it. It would be better not to be afraid of survivors and their militant allies, but to trust in God and hold to his principles of justice.

 

Scheme realities: Not a criminal process?

The Church Health Pastor dismissed concerns about presumption of innocence and notifying the accused and furnishing witnesses with the claim that the Redress Scheme process is not a criminal process. She claimed that the accused individual is not on trial, so biblical principles of justice do not apply. This claim is amiss on three grounds.

First, while the Scheme process does not involve criminal proceedings, it does involve criminal matters—matters that may result in criminal charges and a criminal trial. Second, the allegations that initiate the process are of such a serious nature that, whether or not they result in criminal prosecution, they could utterly ruin a person’s relationships, reputation and livelihood. Third, the Bible requires us to apply principles of justice in all cases, not just in criminal cases—whether the case is before the church for possible discipline or before the court for possible sentencing, the same procedures must be followed.

Technically, the Church Health Pastor is right to say that the Redress Scheme does not involve criminal law, but practically she is wrong. The Royal Commission made it quite clear that redress was only one of three legal approaches it was exploring to get “justice for victims”, and these three approaches (redress, civil and criminal) are not discrete: they overlap and bolster one another.

In its Redress and Civil Litigation Report, the Royal Commission stated that it “is investigating criminal justice issues (including processes for referral for investigation and prosecution).”¹⁰ More seriously yet, in its recommendation concerning the establishment of a redress scheme, it declared:

A redress scheme should report any allegations to the police if it has reason to believe that there may be a current risk to children. If the relevant applicant does not consent to the allegations being reported to the police, the scheme should report the allegations to the police without disclosing the applicant’s identity.¹¹

The Redress Scheme will be making criminal referrals. This should not surprise the Church Health Pastor and the Safe Church Team, for in their own document (as quoted earlier) they have stated, “The individual accused of the offence will only be notified if the institution is required to consider implementing risk management measures, or if the Police choose to investigate.”¹ The question arising from this is: Will people who are referred to the police be prejudiced because, quite unbeknown to them, their alleged guilt has been “confessed” by a payment and an apology? A further question could be: Will the local churches to which they belong have enough money and fortitude left over from the redress process to support their fellow members who are subsequently dragged into a criminal trial?

Even if no criminal charges are laid by the police and no criminal trial is conducted in the courts, the accused person may discover that his church’s betrayal of him through and to the Redress Scheme will become known in the wider community, which will then view him as criminally guilty. For while institutions are bound to confidentiality by the Scheme, survivors are not. Indeed, the Royal Commission expressly recommended that “No confidentiality obligations should be imposed on applicants for redress.”¹²

Even if a successful claimant does not reveal the name of the accused, what about members of the congregation of the local church that has made the redress payment on his behalf? It is highly unlikely that the two safe-church officers who have liaised with the denominational Safe Church Team will be able to keep strict confidentiality on the name of the accused person. It is also highly unlikely that the members who have had to approve the redress payment will be content to shell out tens of thousands of dollars without caring who among them by his alleged despicable behaviour is “responsible” for this impost. How long will the church congregation keep confidentiality?

In short, how long before the accused is viewed as a criminal, a perpetrator of the vilest crime imaginable, in the church community and in the community at large? Tell him then that the Redress Scheme was “not a criminal process” so it did not need to abide by the most elementary standards of biblical and Western justice—tell him that then and see what comfort he gets.

The government and the Redress Scheme are well aware that accused persons’ reputations could be destroyed through the Scheme process, but they seem quite unperturbed about it. Commenting on “the right of everyone to freedom from unlawful attacks on their honour and reputation”, the Explanatory Memorandum for the National Redress Scheme for Institutional Child Sexual Abuse Bill states:

All information under the Scheme will be subject to confidentiality. However, there is a risk that unlawful disclosure of information about an [alleged!] abuser by a participating institution irrevocably damages the reputation of an [alleged!] abuser in circumstances where proof to a criminal or even a civil standard is not required.Supplying details of abusers is necessary to allow participating institutions to provide the relevant information and records that verify “reasonable likelihood” … The risk of unlawful disclosure by participating institutions is necessarily a part of making redress available for survivors through the Scheme … Any unlawful attack on honour or reputation will be the result of individuals breaching the provisions of the Bill, rather than resulting from the Bill itself.¹³

We might summarise and simplify the Scheme’s position as follows: Sure, some people’s reputations may be ruined forever, but we can live with that—and anyway it won’t be our fault!

As for civil action, the Royal Commission stated, “This report also contains recommendations for reforms to civil litigation systems to make civil litigation a more effective means of providing justice for survivors.”¹⁴ True to its repeatedly stated bias, the Royal Commission shows little interest in providing justice for accused persons. It wants to “reform” the civil litigation system to make it easier for survivors to win their cases—which means, of course, it wants to make it harder for defendants to defend themselves.

This is extremely important in the context of the Redress Scheme and redress payments. For while a redress payment by a church extinguishes the alleged victim’s right to take civil action against the church itself, it does not extinguish his right to take civil action against the individual in the church whom he has accused. The accused person (pastor, elder, Sunday school teacher, youth group leader) is still fair game. So, any recommendation by the Royal Commission to reduce the standard of proof for civil litigation could adversely impact such a person.

To add to the accused person’s woes, his own church may well have betrayed him by making the redress payment. Without doubt, the survivor will interpret the payment (not to mention the accompanying apology and acknowledgment of harm mandated by the Scheme) as an admission of guilt, and this may well embolden him to take civil action against the “confessedly guilty” person in the institution.

Worse yet, the church’s redress payment could prejudice the accused person’s case in the event of civil litigation.

The Church Health Pastor insisted that making a redress payment and giving an apology does not constitute an admission of guilt. It is hard to see how this could be the case. Indeed, it takes a stretch to believe that there is no admission of guilt if someone from the Safe Church Team, perhaps the Church Health Pastor herself, were to say to a successful survivor claimant something like, “I hope our redress payment will help bring healing for the wrong done to you by Pastor So-and-So of Such-and-Such church. We are deeply sorry that he abused you in that way and we acknowledge the trauma that his abuse has caused you, and we are deeply sorry for that, too.”

I asked Dr Augusto Zimmermann, Professor of Law at Sheridan College and Adjunct Professor of Law at the University of Notre Dame, about the implications for the accused of a redress payment (with or without an apology) should criminal or civil litigation follow. He answered that such a payment could indeed prejudice the accused person’s case as it would be a tacit acknowledgment of guilt and could possibly be used as evidence of guilt.

There is danger for everyone when biblical standards of justice are abandoned, and it is impossible for churches not to abandon them if they opt in to the National Redress Scheme.

 

Scheme realities: Survivor-focused

The National Redress Scheme is “survivor-focused”. This might seem a statement of the obvious. After all, the purpose of the Scheme is to redress survivors for the abuse they have suffered in institutions, including Christian churches, so of course it is focused on survivors.

However, “survivor-focused” does not adequately describe the Scheme’s bias. It is in fact survivor-obsessed, to the extreme detriment of the accused. Consider several comments from Scheme documents:

Subclause 10(2) provides that redress under the Scheme should be survivor-focussed.¹⁵

The Scheme is to be supportive, survivor-focussed and non-legalistic and decisions will be made expeditiously.¹⁶

This flexibility allows the Scheme to meet its objective of a survivor-focussed and expedient process, with a lower evidentiary threshold, to ensure a survivor experience less traumatic than civil justice proceedings.¹⁷

This amendment will ensure the Scheme remains survivor-focussed and trauma-informed by maintaining the principles that the Scheme be a low threshold and non-legalistic process for survivors who have already suffered so much.¹⁸

… all redress should be offered, assessed and provided with appropriate regard to the needs of particularly vulnerable survivors. It should be ensured that survivors can get access to redress with minimal difficulty and cost and with appropriate support or facilitation if required.¹⁹

Notice that there is no counterbalancing focus by the Scheme on the accused. There is no expressed interest in justice for those institutions and those individuals within them who stand accused and consequently stand to lose reputation, wealth and more. This total lack of interest in, and even contempt for, the welfare of the accused is especially alarming when it comes from the body that will judge without review or repeal the reasonable likelihood that the institution is guilty of abuse.

The Scheme is like a prosecutor who is invested with the power to hand down verdicts and pronounce sentences. A church is as likely to get fair treatment from the Scheme as Joseph was from Potiphar after he believed his wife’s story of attempted rape.

The Scheme is so intensely focused on achieving “justice” for survivors that it denies principles and processes of justice due to those who are accused. And it does so with offhanded contempt for the accused. This contempt is evident from the Royal Commission’s statement that “redress should be survivor-focussed—redress is about providing justice to the survivor, not about protecting the institution’s interests”.²⁰

Not even, it seems, if the institution’s interests are to protect the good name of an innocent person in its midst who has been falsely accused—or if its interests are to protect its members’ funds from being plundered by a fraud posing as a survivor.

A similar contempt for the accused is evident in the Royal Commission’s response to the concerns that institutions had about insurance cover. For while their public liability insurance would generally cover costs involved in a civil case, it definitely will not cover claims awarded under the Scheme with its much lower standard of proof. One law firm explains:

Some institutions argued that a higher standard of proof should apply because insurance companies will not allow the institutions to recoup their losses if the threshold is as low as “reasonable likelihood”. This concern was dismissed as irrelevant in the context of the overarching goal which is to provide a survivor-focused redress scheme to survivors of institutional child sexual abuse.²¹

The Royal Commission blithely “dismissed as irrelevant” the troubles of the churches concerning insurance cover because the Scheme is “survivor-focused” and has been set up for the sole purpose of providing payments with maximum ease to those who claim to be survivors.

 

Scheme realities: Standard of proof

The standard of proof required by the Scheme is extremely low. It is not “beyond reasonable doubt”, as in criminal law. It is not “balance of probabilities”, as in civil law. It is “reasonable likelihood”, as in kangaroo-court law.

The National Redress Guide defines the Scheme’s standard of proof as follows: “For the purposes of the Scheme, reasonable likelihood means the chance of the person being eligible is real, and is not fanciful or remote and is more than merely plausible.”²² If you do not find this a helpful definition of “reasonable likelihood”, it might be because it is somewhat vague and tautological: Under the Scheme, a person is eligible if his claim meets the standard of proof and that standard is that there is a real chance that he is eligible!

This so-called standard of proof could hardly be better for the accuser—and hardly be worse for the accused. But then, the Scheme has never pretended that it has any interest in justice for the accused. It is proudly “survivor-focused”. Its only interest in the accused is that they pay up, and tug their forelocks while doing so. Although it misrepresents both kangaroos and courts, I repeat that this is a kangaroo-court standard of justice.

My standard of proof for this assertion is the criminal standard of “beyond reasonable doubt” and I call as witnesses the Royal Commissioners, the Redress Scheme and the Commonwealth Parliament.

During the course of the Royal Commission into Institutional Responses to Child Sexual Abuse, various persons and institutions argued that the standard of proof used under the Scheme should be the civil law standard of the balance of probabilities. The Royal Commissioners rejected this suggestion on the grounds that many claimants would have absolutely no evidence to support their allegations and no prospect of providing such evidence. They state in their Redress and Civil Litigation Report:

We also set out another argument against adopting a standard of proof used in civil litigation: past experience suggests that, even if a scheme purports to apply the civil standard of proof, it seems that a lower standard is actually applied, at least in determining whether or not the abuse occurred. Often there is no “witness” other than the applicant and there is no other “evidence” against which an applicant’s allegation of abuse can be balanced. The decision for the decision maker is, essentially, simply whether or not, or to what extent, they believe the applicant’s allegations.^23#

According to the Royal Commission itself, in many cases—that is, often—there will be no proof at all that the claimant is telling the truth and no proof at all that any abuse actually occurred. By any standard of justice except revolutionary and/or communist standards, shouldn’t such claims be dismissed out of hand? Not according to the Royal Commission. In these numerous instances, the Scheme decision-makers will simply go by what they believe. Their decisions will be based on their feelings. This is the standard of proof that the Scheme is operating under. Worse, this is the standard of proof to which Christian denominations and churches are voluntarily kowtowing!

Evidence, cross-examination and investigation will be conspicuous by their absence under the Scheme. To quote the Royal Commissioners again:

# the redress scheme will not have “evidence”

# there will have been no adversarial process or hearing

# the redress scheme will not be conducting investigations into the institution beyond the matters necessary to determine the applicant’s eligibility for redress and to assess any monetary payment.²⁴

Joining its testimony to the Royal Commissioners’, the federal government also verifies that the standard of proof required by the Scheme is next to no standard at all. Without apparent embarrassment, the government states in its Explanatory Memorandum to the Bill:

The Scheme has a low evidentiary threshold and is based on a “reasonable likelihood” test. These aspects of the Scheme are important and provide recognition and redress to survivors who may not be able or may not want to access damages through civil litigation.²⁵

Justifying the decision to disallow any appeal against decisions made under the Scheme, the government states:

Decisions under the Scheme will not be subject to judicial review under the Administrative Decisions Judicial Review Act as the Scheme is not intended to be legalistic in nature and is intended as an alternative to civil litigation with a low evidentiary burden. Providing survivors with judicial review mechanisms would be overly legalistic, time consuming, expensive and would risk further harm to survivors.²⁶

The Scheme “is not intended to be legalistic in nature”, we are told, and for survivors it certainly is not. It requires of them a very “low evidentiary burden” indeed. But for churches it is highly legalistic—let them try to protest their innocence or have a claim reviewed or withhold a redress payment and they will soon discover just how legalistic the Scheme is.

The National Redress Scheme bears witness to its own disregard for the need for proof. It states in its National Redress Guide:

In determining reasonable likelihood, the Operator must also consider that the Scheme was established in recognition that some people:

# have never disclosed their abuse and disclosure to the Scheme may be the first time they have done so

# would be unable to establish their presence at the institution at the relevant time (the institution’s records may have been destroyed, record keeping practices may have been poor, or the survivor may have attended institutional events where no attendance record would have been taken), and

# do not have corroborating evidence of the abuse they suffered.²⁷

The meaning of this statement can be teased out as follows: The Scheme Operator must make his assessments not only on the basis of the evidence but also on the basis of the purpose of the Scheme, which is to provide maximum redress with minimum fuss to those who claim to be survivors. Consequently, the lack of proof is to be viewed as a type of proof.

Some people will not be able to provide any proof at all—but the Scheme has been set up expressly to help such people. So the Operator must help them by not holding it against them if: (1) they cannot name anyone they told about the abuse at any time after it occurred; (2) they cannot establish that they were actually present at the institution at the time that the abuse supposedly occurred; and (3) they cannot establish that they ever experienced any abuse at all. Bearing in mind the purpose of the Scheme, the Operator must not disbelieve these self-proclaimed survivors or allow them to be disadvantaged in the progression of their claim.

By some curious Redress Scheme logic, nothing could better establish the “reasonable likelihood” that “the chance of the person being eligible is real” than the fact that the person has made an allegation that he cannot in any way verify. Confused? Don’t be. It simply means an alleged survivor does not actually have to provide any proof whatsoever before he is believed by the Scheme Operator, who will proceed to impose a hefty financial penalty on some hapless church that voluntarily opted in to the Scheme naively thinking that the Scheme had something to do with justice.

Arguing before the Royal Commission against adopting “plausibility” or “likelihood” as standards of proof, an independent commissioner for the Melbourne Response, a Catholic redress scheme for victims of abuse, stated: “As both of those standards are lower than the [civil law] balance of probabilities, they contemplate that a claim would be accepted even if it is more likely than not that the abuse did not occur.”²⁸ This is an astute observation and a neat summation of the problem of proof. Under the Scheme’s standard of proof, the standard of “reasonable likelihood”, even if it is more likely than not that the abuse did not occur, the claim is likely to be accepted.

 

Scheme realities: False allegations

As mentioned earlier, the Church Health Pastor claimed that, with a possible 2 per cent exception, survivors do not make false accusations. Survivors, many of whom are defined as such solely on the basis of their claim to have been abused, simply do not bear false witness against those whom they accuse. If true, this would make them a unique category of human being, virtually untouched by the fallen nature that so troubles the rest of the human race. But in fact, there is no such category of human being, and it is naive and dangerous to think that there is.

The Royal Commission, the National Redress Scheme and the Commonwealth Parliament all take the possibility of false accusations far more seriously than the Church Health Pastor.

The Royal Commission itself tacitly acknowledges that some survivor accounts may be false in whole or in part. Its website contains a “Narratives” page with seventy-eight sub-pages containing 3956 stories by survivors. It introduces these anecdotal stories with this comment:

Over 8000 survivors or people directly impacted by child sexual abuse in institutions attended private sessions at the Royal Commission and shared their experiences and recommendations with Commissioners. Many gave consent for their accounts to be published as short narratives.

The purpose of the narratives is to give a voice to survivors, inform the community and ultimately help make institutions safer for children.²⁹

You might think from this statement that all the stories are factual and reliable. Indeed, that is the implication of the claim that these are narratives from “people directly impacted by child sexual abuse” who are sharing “their experiences”, which the Commission has published to “inform the community”. Indeed, the Commission’s use of the term “survivors” to describe the people who told their stories implies that all 8000 were genuine victims of abuse telling us genuine stories that deserve to be believed. But in fact, the survivors who related these stories were not required to swear to tell the truth, and their accounts were uncritically accepted as if they were true.

Nonetheless, the Royal Commission goes on to warn readers 3956 times that the stories have not been corroborated in any way. This disclaimer has been appended to the end of every narrative:

Disclaimer: This is the story of a person who spoke with a Commissioner during a private session of the Royal Commission into Institutional Responses to Child Sexual Abuse. Real names of individuals have not been used, except of public figures in a public context. The information the person provided was not evidence, the person was not a witness, and did not need to take an oath or affirmation, although they were expected to tell the truth. Nothing in this story is a finding of the Royal Commission and any views expressed are those of the person, not of the Commissioners. [my emphasis]³⁰

If the Commission were confident that these narratives were true, it would not append such a disclaimer to every one of them. However, the Commission cannot and will not vouch for the truthfulness of the narratives, presumably because it understands that some narrators are mistaken, while others are misled, and yet others are mendacious.

Perhaps the Prime Minister and the Leader of the Opposition should have considered the Royal Commission’s cautious disclaimer before quoting several narratives as if they were gospel and using them during the National Apology to impugn Australian institutions as hotbeds of child sexual abuse.

In 2017, the counsel assisting the Royal Commission, Gail Furness, acknowledged that some survivors had made false allegations against Cardinal George Pell, whom the Commission had interrogated for many hours:

Furness also casts doubt on other allegations promoted by journalists.

For instance, one witness said he’d gone to Pell’s presbytery in Ballarat one weekday to warn about a paedophile priest, but Pell had chased him away. (Almost no journalist revealed this witness was himself later jailed for abusing children.)

Furness concludes this claim “cannot be resolved”, since Pell was not living at that presbytery and at that time of day was probably at work. She also casts doubt on a third claim, which made headlines in the Sydney Morning Herald and on the ABC.

One witness said he’d overheard Pell joke about Gerald Ridsdale with a fellow priest at a funeral mass in Ballarat, saying “Haha I think Gerry’s been [having sex with] boys again”.

In fact, says Furness, there was no such mass on the date the witness gave and the priest Pell allegedly joked with was then living in Horsham and denied Pell would say such a thing anyway.³¹

Here are survivors who have been found out making false allegations. Some of these false allegations may have been honestly made. The accusers may have honestly misremembered, or they may have been “helped” by therapists or psychologists to “recover” memories of abuse that they never really experienced, or they might have succumbed to the hype surrounding the Royal Commission and invented fantasies that they half-believed. But a sincerely held falsehood can ruin an innocent man’s life just as easily as a knowingly fabricated one. It is of no comfort to Cardinal Pell that some of the alleged survivors who falsely accused him may have done so with sincerity and genuine conviction.

Concern that not all survivors ought to be believed is not confined to the Royal Commission. The legislators who drafted the Bill to establish the Redress Scheme also express reservations. The Explanatory Memorandum to the Bill, for example, states that people can only claim redress under the Scheme if they are Australian citizens or permanent residents. The Memorandum then explains: “This eligibility requirement is included to mitigate the risk of fraudulent claims … Removing citizenship requirements would likely result in a large volume of fraudulent claims …”³²

People who make fraudulent claims necessarily make fraudulent allegations. They target innocent people and bear false witness against them. The Bill recognises that it could potentially face “a large volume of fraudulent claims”, which is to say, a large number of swindlers pretending to be survivors. So much for the notion that people never lie about such matters!

Concerning the need to deter false claims, the legislation proposes that false claimants could face the prospect of a civil penalty. The Memorandum to the Bill explains:

This civil penalty is justified to ensure that [the] Scheme is adequately protected against the risk of fraudulent applications. Large volumes of false claims from organised groups could overwhelm the Scheme’s resources … ³³ 

Large volumes of false claims? How could the commissioners and the legislators entertain such a thought? Surely they know that survivors don’t lie! In fact, despite their overwhelming goodwill towards victims and alleged victims of abuse, they do not know that. What they do know is that easy money is a lure for liars. And they also know that they are offering (albeit mostly at the institutions’ expense) large amounts of money in return for small amounts of “proof”. This is a recipe for fraud.

In yet another acknowledgment that the prospect of false claims is very real, the Scheme will not reveal the full guidelines it will follow in granting redress claims. The Explanatory Memorandum states:

The reason for omitting detailed guidelines is to mitigate the risk of fraudulent applications. Providing for detailed guidelines would enable people to understand how payments are attributed and calculated, and risks the possibility of fraudulent or enhanced applications designed to receive the maximum redress payment under the Scheme being submitted.³⁴

The likelihood of someone being prosecuted for making a false claim is remote, because the standard of proof that will encourage false claims is the same standard that will make it nigh impossible to show that they are false. Nonetheless, the Scheme’s attempt to deter false claims is an acknowledgment that false claims will be a pressing problem.

The Church Health Pastor has been urging the churches of her denomination to opt in to the Scheme on the grounds that there will be next to no false claims. I fear the churches will soon discover to their immense cost (the least of which will be financial) that they have been misled.

This article is an edited version of a much longer piece. The full version, which includes a detailed section on the principles of justice set out in the Bible, can be read online at www.lifeministries.org.au/journeying-into-injustice-the-national-redress-scheme-the-christian-churches/. Andrew Lansdown’s most recent books include The Chronicles of Klarin (an omnibus volume containing his fantasy trilogy, With My Knife, Dragonfox and The Red Dragon published by Rhiza Press, 2018) and Kyoto Momiji Tanka (a collection of poems and photographs of Japan in autumn published by Rhiza Press, 2019).