A note on language

In other chapters of our report, we generally use the terms victim-survivor and perpetrator or abuser. However, in this chapter, we also use the terms claimant and offender because they have particular meanings in redress and civil systems.
A reference to victim-survivors is a reference to child and adult victim-survivors, unless otherwise specified.

1. Introduction

Victim-survivors of child sexual abuse often suffer serious harms, including difficulty in forming and maintaining relationships, a continuing sense of shame and loss of trust in others.1 Victim-survivors often experience depression, anxiety, flashbacks and other physical and mental health impacts of trauma, which can make it difficult to complete education, work and maintain a career.2 The impacts of child sexual abuse can lead to substance misuse, poverty, homelessness and difficulty in parenting. Victim-survivors of child sexual abuse in institutional settings also experience the additional impacts of betrayal and loss of trust in public institutions. Some victim-survivors who might objectively be ‘okay’ still live with the memory of the abuse and mourn the life and opportunities they could have had if they had not been sexually abused.3

Many victim-survivors who shared their experiences with our Commission of Inquiry wanted an apology or recognition of the harm they suffered.4 They also wanted the Government to acknowledge its responsibility for their harm, and to take steps to ensure children were better protected in the future.5

Victim-survivors of child sexual abuse often need psychological support and an individual response to their experience. Some wish to seek financial compensation. The terms of reference for our Commission of Inquiry required us to consider:

what the Tasmanian Government should do to address, or alleviate the impact of, past and future child sexual abuse in institutional contexts, including, in particular, ensuring justice for victims through … support services.6

The National Royal Commission published several interim reports during its five-year inquiry, including a 2015 report on redress and civil litigation, which dealt with these issues.7 In its final report, the National Royal Commission recommended introducing a redress scheme for victim-survivors of child sexual abuse that would include:

• monetary payments
• counselling and psychological support
• a direct personal response
• changes to the approaches of state and territory governments to civil litigation claims by victim-survivors.8

Many of the National Royal Commission’s recommendations have been adopted in Tasmania, which has also joined the National Redress Scheme.9 The Government provides some psychological support and limited compensation to victims of crime through a Victims of Crime Assistance Scheme.

What we heard suggests there is a need for significant additional reform to improve the operation of existing mechanisms that support and compensate victim-survivors. The mechanisms discussed in this chapter include the National Redress Scheme, civil litigation, apologies, support (including financial assistance) for victims of crime, and access to information and records.

The important reforms we recommend in this chapter include measures to:

• ensure victim-survivors of child sexual abuse in Tasmanian Government institutions continue to have access to a redress scheme, including in relation to child sexual abuse experienced on or after 1 July 2018 (which falls outside the scope of the present National Redress Scheme)
• review the Government’s litigation practices and how civil claims arising from allegations of child sexual abuse are managed, and clarify the roles of the Solicitor-General, departmental secretaries and other Heads of Agencies in the conduct and settlement of civil litigation arising from allegations of child sexual abuse in institutional settings
• ensure government institutions adopt a consistent and appropriate approach to apologies to individual victim-survivors of child sexual abuse
• ensure the Victims of Crime Assistance Scheme is administered in a way that minimises delays and handles applications in a sensitive and trauma-informed manner
• enable victim-survivors of child sexual abuse who have applied for an award under the Victims of Crime Assistance Act 1976 (‘Victims of Crime Assistance Act’) to seek merits review of decisions of Criminal Injuries Compensation Commissioners by the Tasmanian Civil and Administrative Tribunal
• review the operation of the Right to Information Act 2009 (‘Right to Information Act’) and the Personal Information Protection Act 2004 (‘Personal Information Protection Act’) to ensure victim-survivors of child sexual abuse in institutional contexts can get access to information relating to that abuse.

In Chapter 3, we recognise that non-sexual forms of abuse can contribute to an institutionalised culture that treats violence, bullying and harassment as normal, and that sexual abuse can co-occur with other types of abuse and neglect. This was the case in Ashley Youth Detention Centre. Responses for victim-survivors of child sexual abuse should take into account their whole experience of abuse.

1. The National Redress Scheme

The National Royal Commission recommended establishing a single national redress scheme for victim-survivors of institutional child sexual abuse. The scheme would apply in all states and territories. The National Royal Commission saw a national scheme as the most effective structure.10 It recommended the elements of redress schemes should include:

• the offer of an apology and a direct personal response from institutions
  to victim-survivors
• counselling and psychological care
• monetary compensation as tangible recognition of the seriousness
  of the hurt and injury suffered.11

The Australian Parliament enacted the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (‘National Redress Scheme Act’) to establish the National Redress Scheme. The National Redress Scheme began operating on 1 July 2018.12

To create the National Redress Scheme, state and territory governments needed to refer legislative power to enact it to the Australian Parliament. All states and territories have now joined the National Redress Scheme. Tasmania adopted the National Redress Scheme from 1 November 2018.13

In this chapter, we consider the National Redress Scheme at a high level, including eligibility requirements, the life of the Scheme, direct personal responses and advice and support. In Volume 5, we discuss the amount of claims the State has been receiving about current staff and the challenges of initiating disciplinary action based on claims under the Scheme. We recommend, in Chapter 12, that the Government improve its information sharing processes in relation to the National Redress Scheme to protect the safety of children and to advocate at a national level for a review of the information sharing framework under the Scheme.

1. Entitlement requirements

The entitlement requirements for the National Redress Scheme are set out in the National Redress Scheme Act.14 Broadly, the National Redress Scheme applies to any Australian citizen or permanent resident born before 30 June 2010, who was subjected to child sexual abuse in a government institution or participating institution before 1 July 2018. To apply for redress, the applicant must be 18 years of age or turn 18 before 30 June 2028. This date is known as the ‘sunset date’—the date when the National Redress Scheme ends.15 The closing date for applications is 30 June 2027 (12 months before the sunset date).16

We heard from some victim-survivors who do not qualify for redress under the National Redress Scheme, in some cases because the abuse occurred more recently. There are likely to be others who did not contact us.

The sunset date for the end of the National Redress Scheme was also identified as a barrier to people accessing redress. In his evidence, Warren Strange, Chief Executive Officer, knowmore Legal Service (‘knowmore’), emphasised the difficulties the application deadline for redress will create for many people. He said:

So, we know it takes a long time, and at least 22 years on average for survivors to make a disclosure about their experience of child sexual abuse, often longer. There will be people who are eligible to apply for the National Redress Scheme, and it won’t be the right time for them or they won’t have the supports or the safety to apply during its life. … I feel very much that these people need to have justice options available into the future that are appropriate for them and suit their timing rather than the timing of what we or what governments might impose.17

Some people are not eligible for redress under the National Redress Scheme,
even if they were abused in an institution during the period required and make a claim prior to the sunset date. A person who is in gaol at the time the application is made is not eligible for redress unless the National Redress Scheme Operator (‘Operator’) determines the circumstances are exceptional.18

A person who has been sentenced to imprisonment for five years or longer for a state, territory, federal or foreign country offence cannot receive redress unless the Operator determines the person is eligible.19 The Operator may determine a person is entitled to redress as long as this would not:

• ‘bring the scheme into disrepute’
• ‘adversely affect public confidence in, or support for, the scheme’.20

In determining eligibility, the Operator must consider any advice from a ‘specified advisor’. Where the abuse occurred in a Tasmanian Government institution or the offence was against a Tasmanian law, the Tasmanian Attorney-General is the specified advisor.21

The Operator must also consider:

• the nature of the offence
• the length of sentence of imprisonment
• the length of time since the person committed the offence
• any rehabilitation of the person
• any other relevant matters.22

The National Redress Scheme requires the Operator give greater weight to advice received from the Tasmanian Attorney-General than to any other matter.23

In June 2021, a review of the National Redress Scheme expressed ‘significant and immediate concern’ about the eligibility of prisoners under the Scheme ‘given the representation of child abuse survivors in the prison population’.24 The review noted the restrictions on the eligibility of prisoners:

• ‘potentially deny individuals the subject of institutional child sexual abuse the opportunity to apply for redress’
• ‘appear to be deterring eligible applicants from applying’
• have an ‘adverse impact on Aboriginal and Torres Strait Islander survivors’.25

The review recommended the eligibility criteria be changed to enable a single application process for prisoners and those with serious criminal convictions, as well as non-citizens and non-permanent residents who experienced child sexual abuse in Australia.26

The Australian and state and territory governments released their final response to the review in May 2023. In this response, they committed to changing the National Redress Scheme, including its eligibility criteria.27 All governments agreed to:

• remove the restriction on people in prison applying to the Scheme
• refine the special assessment process for determining eligibility for applicants with serious criminal convictions
• enable child migrants who are not Australian citizens or permanent residents to be eligible for redress.28

However, the Australian Government also considered the current special assessment process for people with serious criminal convictions ‘should be adjusted rather than removed entirely, to ensure that public confidence in the Scheme is maintained’.29 The Australian Government stated that once these changes are implemented, ‘only people with certain types of particularly serious offences (such as homicide and sexual offences) or where there may be a risk to the integrity of the Scheme in allowing access to redress will go through the special assessment process’.30 These adjustments have not yet been made. We discuss this review below in more detail.

1. What does the Scheme provide?

The National Redress Scheme has three components.

The first component is a maximum payment of $150,000.31 To receive financial redress, the victim-survivor must relinquish any claim for damages against the institution. In the case of government institutions, this would be the relevant state government.32

The second is a counselling and psychological component. This component comprises access to counselling and psychological services provided under the Scheme or a payment (of up to $5,000) to enable the person to access counselling and psychological services provided outside the Scheme.33

The third is a ‘direct personal response’ from the relevant institution. This can include one or more components of an:

• apology or a statement of acknowledgement or regret
• acknowledgement of the impact of the abuse on the person
• assurance about the steps the institution has taken, or will take, to prevent abuse from occurring again.

The legislation also allows the response to include an opportunity for the person to meet with a senior official of the institution.34

Victim-survivors who spoke to the National Royal Commission emphasised the importance of receiving an explanation of why the abuse occurred and why they did not receive an appropriate response.35 Many of them wanted reassurance that other children would not suffer in the same way in the future.36 Our Commission of Inquiry received similar evidence from victim-survivors.37 The National Redress Scheme, through a direct personal response (if a victim-survivor chooses to receive one), may enable victim-survivors to access such information.

1. The operation of the National Redress Scheme in Tasmania

The Operator of the National Redress Scheme, and not the Tasmanian Government, determines entitlement for redress. The Operator is the Australian Government Secretary of the Department of Social Services.38

The Child Abuse Royal Commission Response Unit (‘Royal Commission Response Unit’) in the Department of Justice coordinates the Tasmanian Government’s response to redress claims.39 Ginna Webster, Secretary, Department of Justice, described the Tasmanian Government’s role in the administration of the National Redress Scheme as summarised below.40

When the Operator identifies the Tasmanian Government as potentially responsible
for a case of abuse, the Operator notifies the Tasmanian Government of the application and gives limited time to provide necessary information.41 The Royal Commission Response Unit summarises the application and sends it to the relevant body (in the case of Tasmanian Government institutions, this will be a department or agency). The relevant body must then retrieve relevant records.42 The department or agency is given six weeks to provide records for a non-priority application and three weeks for a priority application (where the applicant is elderly or ill).43

Information the Royal Commission Response Unit obtains through this process is then forwarded to the Operator, who determines eligibility to apply under the National Redress Scheme.44 If the Tasmanian Government department or agency needs extra details to satisfy the request for information, the Royal Commission Response Unit approaches the Operator who may contact the applicant.45

The Royal Commission Response Unit makes the request for relevant government records so the applicant does not need to apply for information under the Right to Information Act. As discussed below, the need to apply for information under the Right to Information Act often creates difficulties for victim-survivors who want to seek damages from the Tasmanian Government, rather than make a claim under the National Redress Scheme.

Secretary Webster told us the Tasmanian Government offers counselling and psychological care to any applicant who accepts the monetary payment and contracts with organisations to provide this care.46 The Tasmanian Government manages and facilitates requests for counselling and psychological care and a direct personal response through the Royal Commission Response Unit.47

Based on the information Secretary Webster provided on 8 April 2022, as modified by subsequent information provided by the Solicitor-General of Tasmania:48

• 689 claims have been made in relation to Tasmanian Government institutions since the National Redress Scheme started49
• the Operator had finalised 494 applications by offering a monetary payment, counselling and a direct personal response50
• the Tasmanian Government’s total monetary compensation amounted to $31,204,169.6651
• 48 claims were not approved by the Operator or were withdrawn by the applicant, while 147 claims had not been determined when our Commission of Inquiry received this information52
• 275 applicants were eligible for counselling and psychological care, but when Secretary Webster gave her evidence, only 53 applicants had requested those services53
• 10 applicants had requested face-to-face direct personal responses, with four of those applicants also choosing to receive a written direct personal response, and an additional nine applicants choosing to receive only a written response.54

The Royal Commission Response Unit normally responds to requests for information within the specified time. Fourteen two-week extensions had been granted for providing information.55 Secretary Webster confirmed these were all completed within the permitted two-week extension time.56

1. A direct personal response

A key part of the Tasmanian Government’s responsibilities under the National Redress Scheme is managing individual requests for a direct personal response from government institutions or the Tasmanian Government.

The Tasmanian Government cannot contact applicants to the National Redress Scheme and is not given the contact details of individuals. The Royal Commission Response Unit must wait for an individual to make contact.57

1. Redress advice and support services

In Tasmania, several organisations advise and support victim-survivors regarding applications under the National Redress Scheme. They include knowmore, the Sexual Assault Support Service, Relationships Australia Tasmania and the South East Tasmanian Aboriginal Corporation.58

In particular, victim-survivors need to be carefully advised about how and whether to make a National Redress Scheme claim, because accepting redress will prevent them from seeking damages from the relevant institution or government.59

Mr Strange explained to us the advice and support knowmore provides.60 Established in 2013, this organisation is a national community legal service that helps victim-survivors of institutional child sexual abuse. The Australian Government funds knowmore to provide various services to victim-survivors of institutional child sexual abuse.61 It does not have an office in Tasmania, but visits Tasmania regularly and provides advice remotely. When comparing the state’s population with the rest of Australia, Tasmania is disproportionately represented among knowmore’s clients, amounting to 4 to 5 per cent of its clients.62

Mr Strange told us that where a National Redress Scheme claim:

… appears to be straightforward and the client does not have complex support needs and/or has existing relationships with support workers, such as social workers and psychologists, knowmore may refer the client to a local Redress Support Service to progress their … application. 63

Mr Strange said knowmore advises and supports victim-survivors to help them decide whether to make a claim under the National Redress Scheme or to pursue a civil claim for damages. It also gives clients initial advice on the pros and cons of this choice.64 Mr Strange emphasised the difficulty of gaining a client’s trust because of the complex trauma they have suffered and the fact they had often told their stories to police or other officials with no outcome.65 He commented on the importance of building trust with local communities and respecting ‘the scepticism, and often difficulty of engaging, that many victims and survivors of child sexual abuse understandably have’.66

If a person is considering suing for damages, knowmore does not advise them about their prospects of success, but will refer the client to a member of a panel of private law firms that have entered into a memorandum of understanding with knowmore. This memorandum is intended to ensure the firm responds sensitively and appropriately to victim-survivors.67 If the person decides to apply under the National Redress Scheme, they will be referred back to knowmore who will help them apply, free of charge, or will refer them to a local redress support service.68

Mr Strange said knowmore handles complex redress claims such as those:

• that need to be resolved quickly because the client has a terminal illness
• where cultural support is needed from knowmore’s Aboriginal and Torres Strait Islander Engagement Team
• where the client has received a sentence of five or more years of imprisonment and must demonstrate exceptional circumstances to qualify for redress.69

Mr Strange said knowmore had seen examples where the Tasmanian Attorney-General had opposed claims on the basis of a client’s imprisonment, in situations where at least some other state Attorneys-General would not have done so on the same facts. While we acknowledge Mr Strange’s view, we note that some applicants under the National Redress Scheme have been convicted of serious crimes, including child sexual abuse. The Tasmanian Government told us that of the 21 requests for advice received through the National Redress Scheme, the Tasmanian Attorney-General has provided advice supportive of redress in 13 of those cases.70 While the Operator must consider advice from the Tasmanian Attorney-General on such matters, the final decision rests with the Operator. Mr Strange also stated there had been ‘lengthy delays’ in such cases.71

As well as giving initial advice to victim-survivors, knowmore provides training and information to local support services and helps them by reviewing draft National Redress Scheme applications, where necessary.72 It also provides information to clients about speaking to police about their abuse and has helped clients to engage directly with specialist units or taskforces.73

1. Criticism of the National Redress Scheme

We heard evidence that the handling of enquiries by the National Redress Scheme
had not taken sufficient account of the trauma that victim-survivors had experienced.
For example, Kylee Pearn, who was abused by James Griffin, telephoned the National Redress Scheme in 2020 to ask some general questions about eligibility for redress. Ms Pearn was referred to a lawyer.74 Ms Pearn told us that the following occurred at a subsequent phone appointment with this lawyer:

Before determining eligibility, they went through a series of questions about what abuse had actually occurred to me, and I certainly wasn’t anticipating that, I felt they didn’t ask those questions in a very trauma-informed way. One particular question I remember is, they asked if his ‘penis, tongue or finger had penetrated any of my orifices’. 75

Ms Pearn, a social worker, said, in that role, she would never have asked the question in that way.76 Presumably, the question was asked because the amount of compensation paid under the National Redress Scheme depends on the nature of the abuse, including whether the offence was penetrative or non-penetrative.77 Still, we agree with Ms Pearn’s concern that questions about the details of her abuse were raised during a phone appointment with a lawyer in the context of a general enquiry about eligibility. The lawyer responding to her enquiry could have explained how the National Redress Scheme operated in a general way, without asking her for details about her abuse.

We accept the Tasmanian Government may often be unaware of victim-survivors’ concerns or complaints about their interactions with the National Redress Scheme, given the Australian Government administers the Scheme and there is often no direct contact between the Tasmanian Government and victim-survivors seeking redress. However, where the Tasmanian Government is aware of insensitive interactions with victim-survivors in responding to enquiries or managing applications under the National Redress Scheme, it should bring these issues to the attention of the Australian Government.

The Australian Government should ensure that staff, including contractors who assess entitlement for redress, are appropriately trained to do this in a sensitive and trauma-informed manner.

There was also criticism of delays in the assessment process. Secretary Webster told us that the time limits are usually met for the Tasmanian Government to provide relevant information.78 This suggests that overcoming perceived delays in assessment will require changes in the Australian Government’s administration of the National Redress Scheme. The Australian Government (and all other participating jurisdictions) should examine what measures are needed to reduce application processing delays under the Scheme.

1. The Second Year Review of the National Redress Scheme

Between July 2020 and March 2021, Robyn Kruk AO undertook an independent review of the National Redress Scheme.79 As noted above, the final report on the Second Year Review of the National Redress Scheme (‘Second Year Review’) was delivered
at the end of March 2021.80

The Second Year Review concluded ‘there remains a strong commitment to the original objectives that led to the set-up of the Scheme’.81 However, it also noted consensus among victim-survivors and stakeholders in several areas relating to:

… the need to improve survivor experience; hold institutions accountable; strengthen the levers being utilised to facilitate non-government institutions signing on; support Scheme integrity; increase transparency; drive ongoing improvement
of Scheme operation and performance; and address unintended or negative survivor consequences identified in the Scheme’s early conduct linked to legislation, policy and practice.82

As the National Redress Scheme was approaching its third year of operation and the timeframe for improving the National Redress Scheme was ‘extremely limited’, the Second Year Review focused on issues that had the greatest potential to improve participation and experience for victim-survivors and sustain the viability of the Scheme.83 Among other things, it examined the following topics:

• improving survivor experience
• access and applying for redress
• assessing abuse
• eligibility
• redress payments
• counselling and apologies (direct personal responses)
• staffing capability and support
• Scheme information management systems
• funding arrangements.84

The Second Year Review made 38 recommendations relating to improving survivor experience, delivering better outcomes, enhancing fairness integrity, staff capability and support and improving communications. Some of these recommendations included:

• amending the National Redress Scheme Inter-governmental Agreement, so survivors and non-government institutions have formal input into the Scheme’s operation (Recommendation 1.1)
• developing a co-designed Survivors’ Service Improvement Charter by the end of 2021 (Recommendation 2.1)
• amending the eligibility criteria to include a single application process for all applicants, including non-citizens, non-permanent residents, prisoners, people with serious criminal convictions and care leavers (Recommendation 3.2)
• exploring alternative mechanisms to enable access to the Scheme for vulnerable individuals, Aboriginal and Torres Strait Islander, culturally and linguistically diverse and applicants with disability (Recommendation 3.8)
• making assessment and policy guidelines publicly available by removing legislative protections to achieve greater transparency in decision making and consistency with contemporary practices of other government schemes (Recommendation 3.13)
• co-developing and implementing a clinically designed recruitment and selection process for all new staff to ensure they are trauma aware and possess the capability and capacity to provide a trauma-informed redress service to survivors (Recommendation 6.4)
• mandating the auditing and reporting on staff participation in clinically designed and delivered training programs that include modules on:
  • trauma-informed and culturally safe practices
  • work health
  • safety and wellbeing
  • privacy
  • protected information
• monitoring the efficacy of the training programs through survivor feedback mechanisms (Recommendation 6.5)
• assessing whether the redress Information and Communications Technology system is fit for purpose (Recommendation 6.8)
• committing to continue improvements in complaint management and reflecting these in the Survivor’s Service Improvement Charter (Recommendation 6.11).

The Second Year Review noted that because of the ‘extremely limited’ time available to implement changes, ‘unprecedented cooperation by all governments that enabled the Scheme’s establishment’ would be required.85

In May 2023, the Australian Government released its full response to the Second Year Review, in which it outlined the Government’s actions and ongoing commitment to improving the National Redress Scheme for victim-survivors. It noted that state and territory governments had collaborated closely on the agreed responses to the Second Year Review’s recommendations.86 In summary, the Australian Government:

• supported 30 of the 38 recommendations in full
• supported four recommendations in part or with amendment (including recommendation 3.2 referred to above)
• did not support four recommendations (including Recommendation 3.13 referred to above).

In response to Recommendation 3.2 (also referred to above), the Australian Government advised that a Service Charter had been co-developed with victim-survivors, redress support services and advocacy groups. The Charter began in September 2022 and is publicly available on the National Redress Scheme’s website.87 It sets out ‘standards to be maintained in ensuring the Scheme operates in a safe, transparent and responsive way for survivors, and also outlines what survivors who apply to the Scheme can expect from the redress process’.88

We are pleased the Australian, state and territory governments support many of the Review’s recommendations. Implementing these recommendations may help improve the operation of the Scheme and overcome concerns we heard about how enquiries and applications for redress are managed. We encourage the Australian Government to further extend the Scheme to people who have committed serious crimes.

1. Our observations

As we have explained, victim-survivors of child sexual abuse in Tasmanian Government institutions are entitled to redress under the National Redress Scheme only where the abuse occurred before 1 July 2018. Victim-survivors must apply for redress on or before 30 June 2027, 12 months before the end of the Scheme.89 At the time of the application, victim-survivors must be 18 years of age or be turning 18 before 30 June 2028.90

The limited life of the National Redress Scheme diverges from the recommendations of the National Royal Commission, which recommended that redress schemes, when established, should have no fixed closing date. The National Royal Commission contemplated that when applications had declined to such a level it would be reasonable to consider closing the Scheme, a closing date might be specified at least 12 months into the future.91

Counsel Assisting our Commission of Inquiry asked Secretary Webster about planning for alternative or replacement schemes to meet the compensation and counselling needs of victim-survivors when the National Redress Scheme does not apply. She accepted that any replacement scheme should consider what had been learned from experience of the limitations of the National Redress Scheme, including the need to minimise delays in responding and provide trauma-informed case management of applicants.92

We are heartened by Secretary Webster’s recognition that a redress scheme is needed to assist victim-survivors who were abused after 1 July 2018 and who have never been covered by the National Redress Scheme. We understand the Tasmanian Attorney-General has indicated the Tasmanian Government is open to taking action to ensure compensation and counselling is available for these victim-survivors.93

Our Inquiry has shown the Tasmanian Government has failed to protect some children in Tasmanian Government institutions from child sexual abuse and related conduct, in historical and contemporary contexts. In our view, the Tasmanian Government should have a responsibility to continue to provide an avenue for victim-survivors to obtain appropriate redress for past abuse, other than by pursuing a civil claim against the Tasmanian Government.

We are not convinced that applications to the National Redress Scheme have declined to such a degree that the National Redress Scheme should close, as provided for under the National Redress Scheme Act. The findings of our Commission of Inquiry make it clear that child sexual abuse remains a contemporary issue, in and beyond Tasmanian Government institutions.

Some barriers to taking civil action for damages relating to child sexual abuse have been removed, notably where institutions responsible for children have failed to exercise a duty of care to take reasonable precautions to prevent child sexual abuse. However, victim-survivors seeking damages will still meet obstacles of cost, delay and cross-examination if the matter goes to trial. This is in addition to the traumatic effect of having to constantly recount their experience of child sexual abuse. In contrast, well-designed redress schemes allow victim-survivors to obtain a measure of justice without facing these problems.

The Australian Government should consider extending the scope of the National Redress Scheme to allow all people who have experienced child sexual abuse to access the Scheme, irrespective of when they were born or when the abuse occurred. This would cover child sexual abuse that occurred on or after 1 July 2018, in addition to abuse that occurred before 1 July 2018. The time for making applications for redress under the existing Scheme would also have to be extended beyond 30 June 2027. We also note the National Redress Scheme currently requires that the victim-survivor turns 18 before the Scheme’s sunset date, which would also need to be removed. If the Australian Government does extend the Scheme, it should consider the Second Year Review in full, noting that the review focused on changes achievable within the life of the Scheme at the time.

If the Australian Government does not extend the National Redress Scheme to cover child sexual abuse that occurred on or after 1 July 2018, we recommend the Tasmanian Government step in to establish a redress scheme covering child sexual abuse in Tasmanian Government institutions that falls outside the scope of the current National Redress Scheme.

Any Tasmanian redress scheme should also consider the recommendations of the Second Year Review (discussed in Section 2.5) and ensure redress is available to victim-survivors of institutional child sexual abuse, regardless of when that abuse occurred. The scheme should also minimise the kinds of problems that have arisen with the National Redress Scheme. In particular, the scheme should reduce delays, and manage applications for redress in a sensitive and trauma-informed manner.

We consider that any redress scheme—a national or a Tasmanian one—should be available to people with serious criminal convictions in the same way it is to other victim-survivors. We are conscious that many children and young people who were abused at Ashley Youth Detention Centre are now in the adult justice system, some for serious offences. This approach is in line with the recommendation of the Second Year Review.

The scheme should also be structured to allow information to be shared to reduce current risk to children, wherever possible, and to facilitate disciplinary action and reporting to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator under the Child and Youth Safe Organisations Act 2023 (refer to Recommendation 12.5).

Our findings in relation to Ashley Youth Detention Centre demonstrate that physical, sexual and psychological abuse of children can co-occur in institutions. While we have not inquired into this matter in detail, the Government might explore the benefits of extending any redress scheme to any serious abuse of a child in an institutional context, particularly as it would provide an alternative to civil litigation.

Recommendation 17.1

1. The Tasmanian Government should ensure victim-survivors of child sexual abuse in Tasmanian Government institutions have access to a redress scheme irrespective of when the abuse occurred, when they were born or whether they have committed a serious offence.
2. To achieve this outcome, the Tasmanian Government should advocate at a national level for:
   1. the National Redress Scheme to apply to child sexual abuse in institutions experienced on or after 1 July 2018, with no specified closing date for applications
   2. changes to the National Redress Scheme that will allow access to redress for people sentenced to imprisonment for five years or longer for a state, territory, federal or foreign country offence.
3. If the National Redress Scheme is not extended, the Tasmanian Government should itself establish a redress scheme for victim-survivors of child sexual abuse in Tasmanian Government institutions, with no specified closing date for applications to be made.
4. The design and operation of any Tasmanian redress scheme should:
   1. ensure delays are minimised and that applications for redress are handled in a sensitive and trauma-informed manner
   2. incorporate relevant recommendations made in the Second Year Review of the National Redress Scheme
   3. make it available to people sentenced to imprisonment for five years or longer for a state, territory, federal or foreign country offence
   4. allow information to be shared to reduce current risk to children wherever possible, and to facilitate disciplinary action and reporting to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator under the Child and Youth Safe Organisations Act 2023 (Recommendation 12.5).

1. Civil litigation

A person injured by the wrongful act or negligence of another person may seek damages from the person who injured them and, in some situations, from the institution or organisation where that person worked. In some situations, they may be able to sue the employer for damages for the acts of an employee.

In theory, a person injured by the perpetrator of child sexual abuse may be able to recover damages from that perpetrator.94 However, this is of little practical use
if the perpetrator has no financial resources and is not covered by insurance.

In these situations, the victim-survivor may wish to seek damages against the body that failed to protect them from abuse. In the context of our Commission of Inquiry, this would require a civil claim against the State of Tasmania. If a claim is initiated, the Tasmanian Government may admit liability and enter negotiations with the claimant to settle the claim and pay damages, or contest the claim in court proceedings. The following discussion relates to civil damages claims against the Tasmanian Government in relation to child sexual abuse in government institutions. We do not discuss civil claims against perpetrators.

The National Royal Commission acknowledged there are many difficulties victim-survivors may face in pursuing civil litigation other than those addressed in its final report. These include legal costs, difficulties in bringing class or group actions, and the burden of giving evidence and being subject to cross-examination.95 These difficulties may be shared by many other people who pursue civil litigation relating to personal injury or other claims.

Academic commentators have expressed concerns about access to compensation through the torts system (the civil law system) for at least the past 20 years.96 Apart from the problems of cost and delay faced by all those who seek to recover damages for harm they have suffered, the system is particularly difficult for victim-survivors of child sexual abuse in institutional settings. They may have to repeat their account of abuse several times. They will be subjected to cross-examination that seeks to cast doubt on the accuracy of their recollections.

There have also been many inquiries into access to justice in the civil system. In 2014, the Productivity Commission concluded that, while court processes in all jurisdictions have undergone reforms to reduce the cost and length of litigation, ‘progress has been uneven and more needs to be done to avoid unnecessary expense’.97

More resources may be needed to better meet the legal needs of disadvantaged Australians. The Law Council of Australia’s Justice Project states Australians who experience disadvantage can find it more difficult to get access to justice
for a multitude of reasons, including:

• education and literacy levels
• language barriers
• financial constraints
• lack of accessibility
• access to information and digital technology
• past traumas and hesitation to engage in legal processes
• lack of knowledge around rights and where to go for advice or help.98

1. Reforms based on National Royal Commission recommendations

The National Royal Commission identified other barriers that prevented victim-survivors of child sexual abuse from obtaining damages from institutions. They recommended various law reforms to address these barriers.99 The Tasmanian Government enacted legislative reforms to implement these recommendations, though some of these changes do not apply to past (or ‘historical’) abuse. The most important of these legislative changes, for our purposes, were removing time limits and expanding the liability of institutions.

On 1 July 2018, time limits were removed from civil actions started by victim-survivors of child sexual or serious physical abuse. The change was retrospective, so it applies to historical abuse claims.100

Legal principles were reformed that made it difficult to hold institutions, including government agencies, liable for child sexual abuse.101 Under amendments made to the Civil Liability Act 2002 (‘Civil Liability Act’), which came into operation on 1 May 2020, institutions responsible for children now have a duty of care to take reasonable precautions to prevent relevant individuals associated with the organisation from abusing those children.102 The onus is on the institution to prove it took reasonable precautions to prevent the abuse.103 Institutions are also vicariously liable for the actions of employees (or people similar to employees) who abuse a child.104 These provisions only apply to child abuse perpetrated after 1 May 2020.105

This means most of the settlement negotiations in which the Tasmanian Government is currently engaged will be conducted under the previous law.

The National Royal Commission also noted that some states had adopted model litigant policies and principles to guide their approach to civil litigation arising
out of child sexual abuse.

In this context, the Solicitor-General released Model Litigant Guidelines in 2019.106
These guidelines require the Tasmanian Government and its agencies to:

• settle legitimate claims promptly and without resort to litigation
• not contest liability where the only issue is the amount of damages,
  or the application of a remedy
• not require a party to prove a matter that the Tasmanian Government knows to be true
• not rely on technical issues where the Tasmanian Government will not suffer prejudice, unless it is necessary to do so in the public interest, or to protect the Tasmanian Government’s interests.

In 2019, the Solicitor-General also released Guidelines for the Conduct of Civil Claims, which contain guidance relevant specifically to litigation involving victim-survivors of child sexual abuse.107 These guidelines state the Tasmanian Government and its agencies must:

• acknowledge the potential for litigation to retraumatise claimants,
  and act to minimise this potential
• avoid unnecessarily adversarial conduct and communications
• facilitate access to records relating to the claimant and the alleged abuse, subject to other privacy and legal restrictions
• offer alternative forms of acknowledgement or redress, in addition to monetary claims.

As discussed in more detail below, we consider that further practice changes should be made to ensure the spirit of these guidelines is reflected in practice.

1. Criticism of State conduct of civil litigation

Paul Turner SC, the then Assistant Solicitor-General, who oversaw the conduct of litigation on behalf of the Tasmanian Government, said in evidence that the Model Litigant Guidelines were taken seriously. He said:

From time to time the contention will be made that the state is not acting as a model litigant or hasn’t complied with the guidelines which the Cabinet have directed apply to abuse in care claims. We, by and large, don’t think that those have substance, those complaints—they’re rare, I hasten to say, but we’re just acutely conscious of these and how they are to apply and how the state is to conduct litigation.108

However, our Commission of Inquiry heard evidence about the considerable difficulties faced by people who seek damages from the Tasmanian Government. A submission from Laurel House, a sexual assault support service, observed that:

… there remains significant challenges for victim-survivors of child sexual
abuse to bring about civil claims against any organisation, especially the Tasmanian Government. In particular, the process for bringing civil claims against the Tasmanian Government is not sufficiently transparent, and many
victim-survivors can find it difficult to pursue legal action due to significant functional challenges related to trauma. Further, for many victim-survivors concerns about the potential cost of legal action and fear about how they
will be treated through … civil proceeding acts as a barrier.109

We heard from lawyers who have acted for claimants that, at least until recently, the Tasmanian Government response did not consider claimants’ trauma and the delays and other obstacles they may encounter in resolving their claim. These factors may worsen the harm caused by child sexual abuse and may cause some people to give up a damages claim that might otherwise have succeeded.

Angela Sdrinis, Director, Angela Sdrinis Legal, a plaintiff law firm that specialises in sexual and institutional abuse and has acted for more than 1,700 victim-survivors across Australia, gave evidence about the responses faced by claimants. She said:

Whilst the Solicitor-General’s Office lawyers are good lawyers, their approach to responding to child sexual abuse matters has been noticeably different to that of government lawyers we deal with in other Australian jurisdictions. It is evident that there has either been a lack of understanding amongst the Tasmanian Solicitor-General’s Office lawyers that such matters must be conducted in a more trauma-informed way or their approach has been based on instructions from the Government.110

Ms Sdrinis said there had been some improvements in approach over the more than six years she had been involved in the process, but at least until recently, there was

• a reluctance to discuss settling a claim before filing proceedings
• a technical and legalistic approach to claims
• an insensitive approach to claimants.111

Ms Sdrinis also stated that following the record award of $5.3 million to a sexual abuse survivor, the settlement offers being made in Tasmania were now more consistent with settlements and awards made in the mainland states.112

Similarly, Mr Strange referred to feedback from their panel of independent lawyers that the Tasmanian Government was less willing than some religious institutions to take part in genuine settlement conferences and, sometimes, adopted an overly adversarial approach.113

We note that knowmore supported providing appropriate training to all government lawyers and departmental staff involved in responding to child sexual abuse claims, so they could better understand child sexual abuse and its impacts. In knowmore’s view, lawyers involved in child sexual abuse matters would benefit from understanding the impacts of abuse and how delays and failures to negotiate can compound a person’s trauma.114

In the following sections, we briefly describe specific problems raised by these witnesses and others who spoke to us about the difficulties of pursuing civil litigation in relation to child sexual abuse. Specific issues raised with us included:

• the reliance by the Solicitor-General’s Office on the ‘consent’ of the victim-survivor of child sexual abuse to deny civil liability
• the approach of Tasmanian Government institutions and the Solicitor-General’s Office in settlement negotiations, including in relation to access to medical reports and making apologies
• delays by Tasmanian Government institutions in providing information
  and settling claims.

We also acknowledge the changes that have been made during our Commission of Inquiry in response to some of these concerns, including the Tasmanian Attorney-General’s statement in March 2023 about managing civil claims in a sensitive and not unnecessarily adversarial manner through the establishment of a new State Litigation Office.115

1. Reliance on consent

Ms Sdrinis told us that:

… in some matters the Tasmanian Government has argued that limitation periods still apply where the claimant allegedly ‘consented’ to a sexual relationship even though the claimant was a minor and the sexual conduct might be a criminal offence under s124 of the Criminal Code.116

Ms Sdrinis said she was unaware of any other jurisdiction that had relied on ‘consent’ in this way where the victim was a minor and the perpetrator was an older person. She also stated that, to her knowledge, the ‘consent’ argument had only been made in relation to female young people and not male young people.117

As far as we understand it, such an argument would rely on an interpretation of the meaning of the term ‘sexual abuse’ in the Limitation Act 1974 which, in our view, is legally dubious. It also appears to be inconsistent with a legislative and policy intention to remove the limitation period for child abuse.

The Tasmanian Government has told us the issue has only arisen in two cases (both of which involved a female young person).118 We have undertaken no consideration or analysis of those cases, including whether or not there was discrimination or bias.

Following media publicity about one of these cases, the Attorney-General directed that no reliance should be placed on consent, to avoid the reform of limitation periods.119 We are glad that is now the case, but consider it would be useful for the Solicitor-General to provide guidance to lawyers working in that Office to ensure they do not take this position in the future.

We also encourage the Tasmanian Government to actively monitor whether the notion of ‘consent’ is being used in responding to civil claims relating to child sexual abuse and whether the legislative and policy intention to remove the limitation period for child abuse is being honoured.

1. Approach in settlement negotiations

Ms Sdrinis also told us that despite the adoption of the Solicitor-General’s Model Litigant Guidelines (referred to in Section 3.1), the Tasmanian Government originally showed little interest in non-litigious settlements of child sexual abuse claims.120 One client had settled against Ms Sdrinis’s legal advice because of the Tasmanian Government’s resistance to the claim.121

Ms Sdrinis said that, initially, the Solicitor-General’s Office had shown no interest in agreeing to an informal protocol to govern the settling of claims, as is the process in Victoria. She had first written to the Tasmanian Government in 2015 proposing such a protocol.122 She was told, in late 2017, the Tasmanian Government would no longer require the filing of proceedings before settling child sexual abuse claims, but it took another couple of years for further progress.123 The Tasmanian Government now no longer requires statements of claim to be drafted before settlement negotiations can occur, which reduces the cost of making a claim.124

Ms Sdrinis also criticised the requirement that claimants attend the opening session of an informal settlement conference between their solicitor and lawyers representing the Tasmanian Government.125 She said this requirement did not apply elsewhere and considered its purpose had been to demonstrate the Tasmanian Government’s ‘hard-line approach’ to settling claims.126 Clients who had been abused in out of home care were particularly vulnerable. She said:

People who are abused as children often develop self-destructive behaviours post the abuse. In ward of state claims we have situations where children probably experienced trauma or at least neglect, because that’s why they’ve gone into care, so to sit there and hear government lawyers analyse those life experiences in a way which is designed to support an argument that compensation should be reduced or minimised because of non-related trauma, can obviously be very hurtful to a claimant.127

It appears the Solicitor-General’s Office no longer insists claimants attend opening sessions, and even if there is a legitimate reason for raising these issues, the Tasmanian Government ‘seems to be more aware of the trauma that can be caused to claimants if participation in a mediation or informal settlement conference is not well managed’.128

We also received a submission from Shine Lawyers, the third-largest specialist plaintiff litigation law firm in Australia. Shine Lawyers has represented numerous victim-survivors of institutional sexual abuse in civil litigation and other legal proceedings.129

Shine Lawyers criticised the Tasmanian Government’s response to damages claims, pointing out that statutory reforms ‘did not mean survivors had an unobstructed path towards justice’.130 Criticisms of inadequate responses to civil claims causing further roadblocks for victim-survivors included:

• an unnecessarily adversarial approach to civil claims
• an implication that victim-survivors ought to pursue redress under the National Redress Scheme rather than through a civil claim
• the lack of a collaborative framework to respond to civil claims against the Tasmanian Government.131

In their submission, Shine Lawyers gave many examples of the Tasmanian Government’s obstructive and uncompassionate behaviour, including a case where the Tasmanian Government suggested that the victim-survivor should make a claim against the individual perpetrator, rather than the institution.132 In another case, a victim-survivor, who had entered into a deed settling her claim for an inadequate amount, was pressured by the Tasmanian Government not to seek further compensation.133 Months later, the Tasmanian Government agreed to set aside the deed rather than pursue a contested application in court.134 Regarding those two matters, the Tasmanian Government told us its view was that one or both matters did not involve the State of Tasmania.135

1. Medical reports

Ms Sdrinis also acknowledged some positive changes, including how the Tasmanian Government is now more prepared to consider joint medical examinations, the cost of which the Tasmanian Government will cover.

The Solicitor-General’s Guidelines for the Conduct of Civil Claims provide that the Tasmanian Government must, in appropriate matters, suggest a range of potential experts to claimants that:

• are acceptable to the Tasmanian Government
• provide genuine choice to claimants
• where appropriate, help both parties agree to use a single expert.136

Using a single expert ensures both parties have access to medical reports or other expert evidence.

However, as we discuss below, the Tasmanian Government has previously also claimed privilege over independent medical examination reports.137

Victim-survivors will usually produce a medical report or a report from a psychologist to support their claim for damages. The Tasmanian Government, sometimes, will require them to attend another health practitioner (or practitioners), so an independent medico-legal report can be prepared about the nature and cause of the harm on which the claimant relies.

Ms Sdrinis was critical that the Tasmanian Government is able to claim, and has claimed, legal professional privilege over such reports because such an approach is not trauma-informed.138 Further, Ms Sdrinis said the Tasmanian Government sometimes relies, in negotiations, on aspects of the medical report that have not been made available to the claimant or their lawyer.139 Ms Sdrinis said, in Victoria, if the Victorian Government were to arrange a medical assessment, the contents of the report would be made available to the claimant.140

In his evidence, Mr Turner attributed to the previous Solicitor-General the practice of claiming privilege over medical reports. He said the position is ‘generally that, in circumstances where a report has been obtained [that] attracts that privilege it won’t be waived unless an advertent decision is made that it is favourable to the interests of the state, in which case it will be’.141 As we understand it, that meant medical evidence that supported the claim for damages was not necessarily revealed to the victim-survivor. The Tasmanian Government has now informed us this position changed in July 2022 after instructions were sought and received from the Attorney-General to waive privilege in relation to medical reports as a matter of general policy.142 We are pleased this change has been made.

1. Reinforcing the Litigation Guidelines

The Model Litigant Guidelines and the Guidelines for the Conduct of Civil Claims were released in 2019, and while there have been some improvements in negotiating settlements, these guidelines appear to have had limited impact. In its Fifth Annual Progress Report and Action Plan 2023, the Tasmanian Government refers to a statement by the Honourable Elise Archer MP, Attorney-General and Minister for Justice, to the effect that:

… the management of civil claims is to be conducted with the utmost sensitivity to victim-survivors and in a manner that is not unnecessarily adversarial. This included that all state lawyers apply a trauma-informed lens to all decisions relating to the management of child sexual abuse civil litigation matters against the State.143

We welcome this statement and other changes in practice that may have occurred recently. However, to ensure civil claims are handled appropriately, Tasmanian Government lawyers need to understand the effect of child sexual abuse on victim-survivors and the problems they may face during the litigation process. Secretary Webster told us it was the responsibility of the Solicitor-General to ensure that lawyers in her office were aware of these issues.144 She said, in 2021, members of the Litigation Division of the Office of the Solicitor-General had taken part in training on trauma awareness and providing a trauma-informed direct personal response.145

1. Delays in providing information and settling claims

Mr Strange, Ms Sdrinis and Shine Lawyers told us victim-survivors often experienced long and stressful delays in obtaining information they had requested to support their claims.146 Both Ms Sdrinis and Mr Strange said the situation in Tasmania was worse than in other states, which was retraumatising for clients.147 Shine Lawyers said that even when the Tasmanian Government was notified of a likely claim, it might take months to be given details of the person handling the matter.148 Further, when the Tasmanian Government was initially notified of some claims, ‘the notice bounced around between different officers and departments who responded variously with comments such as “we don’t know who looks after these claims”’.149

Lengthy delays in responding to lawyers’ requests for information may also be caused by inadequate record keeping or insufficient numbers of state servants who can recover and provide the information. In her evidence, Secretary Webster said:

Yes, so in terms of what we have found since certainly the matters that came to the attention of the Commission … but also through the civil and criminal litigation areas, that we do need some additional resourcing in the civil litigation, the Abuse in State Care area. It’s clear that that includes legal practitioners, administrative support, and I think, depending on the final model, the management of those matters could probably also benefit from some clinical advice on how they’re managed as well; and by that I mean trauma-informed practice.150

Shine Lawyers told us delays make it harder for a claimant to recover from the harm they have suffered and adds to their stress.151 While the Tasmanian Government has made some changes, improvements have been patchy. As we explain below, some but not all delays appear to relate to the operation of the Right to Information Act. We discuss this issue in Section 6.2.

1. The Solicitor-General’s role

The Solicitor-General acts as a lawyer for the Tasmanian Government, including in relation to legal issues relevant to institutional child sexual abuse. In this section, we discuss the role of the Solicitor-General and their Office in advising whether claims for damages against the Tasmanian Government by victim-survivors should be settled, and in conducting litigation where the Tasmanian Government denies liability. We also, briefly, discuss the role of the Solicitor-General more broadly.

The Solicitor-General Act 1983 (‘Solicitor-General Act’) establishes the Solicitor-General as an independent statutory office that is accountable to the Tasmanian Parliament. Under section 7 of the Solicitor-General Act, the Solicitor-General’s functions are to:

• act as counsel for the Crown in right of Tasmania or for any other person
  for whom the Attorney-General directs or requests them to act
• perform such other duties ordinarily performed by legal practitioners
  as the Attorney-General directs or requests them to perform
• perform such duties (if any) as are imposed on them by or under any other Act.

A direction from the Attorney-General, dated 13 January 2022, made under section 7(b) of the Solicitor-General Act, requires the Solicitor-General to act for the Tasmanian Government in civil proceedings.152

Under section 8 of the Solicitor-General Act, the Attorney-General can delegate responsibility for powers and functions that can be performed by the Attorney-General, to the Solicitor-General. At present, there has been no delegation under section 8
to the Solicitor-General.153

Section 51(1) of the Financial Management Act 2016 (‘Financial Management Act’) allows the Treasurer of the Tasmanian Government to issue instructions relating to the principles, practices and procedures all agencies must observe in their financial management. ‘Agencies’ covers specified Tasmanian Government departments, authorities, bodies, organisations and offices.154 Accountable authorities and officers within these agencies have a duty to comply with the Treasurer’s instructions.155 Section 55 of the Financial Management Act allows the Treasurer to authorise payment to a person if the Treasurer is satisfied it is appropriate to do so because of special circumstances, even though the payment would not otherwise be authorised by law or be required to meet a legal liability (also known as an ‘ex gratia payment’).

Under a Treasurer’s instruction made under section 51 of the Financial Management Act, all agencies and instrumentalities of the Crown must get legal advice only from Law Officers of the Crown. They must follow that legal advice in relation to ‘the legal functions, powers or responsibilities of the Crown; or the lawfulness of any action, or proposed course of action, by the Crown’.156 The effect of that Treasurer’s Instruction is that all departments must seek advice only from the Solicitor-General’s Office unless Crown Law—the administrative entity responsible for providing legal services to the Tasmanian Government—agrees in writing that the agency can get external advice.157

The accountable authority (in most cases, the Head of the relevant Agency) ‘must not directly engage external counsel or commercial legal services without the written agreement of Crown Law’.158

During our hearings, we sought to clarify the roles of the Solicitor-General, departmental secretaries and other Heads of Agencies in settling civil claims arising from child sexual abuse in government institutions.

We heard evidence on this issue from Sarah Kay SC, Solicitor-General, and Mr Turner. At the time of our hearings, Mr Turner was the head of the section of the Solicitor-General’s Office that deals with civil litigation.

The Solicitor-General referred to the Treasurer’s Instruction under the Financial Management Act, which requires the Solicitor-General to act as Counsel for the Crown, and the Attorney-General’s direction that the Solicitor-General conducts all civil litigation on behalf of the Tasmanian Government.159

The Solicitor-General said these instructions were based on ‘a constitutional convention’.160 The Treasurer’s Instruction, which prevents agencies from getting external legal advice, states the Instruction reflects the following constitutional principles:

• the Crown must ascertain and obey the law
• unless otherwise lawfully permitted, the Crown must get its legal advice from Law Officers of the Crown.161

The Treasurer’s Instruction, including the Instruction that prevents getting external legal advice without an exemption, applies to the Ombudsman and the Chief Executive Officer of the Integrity Commission.162 Arguably, the application of the Instruction to these specified Agencies and Accountable Authorities is inconsistent with the intention these bodies be independent from the Executive.

In response to questions from Counsel Assisting, the Solicitor-General differentiated between advising on the legal rules which regulate how agencies can act, and instructing agencies about the decision they should make, stating ‘we might assist [agencies] to form their decision within correct legal parameters in order to protect that ultimate decision from challenge, but we do not dictate what sort of decision that might be made’.163 The Solicitor-General did not elaborate on how that distinction operated in the case of advice about settlement of civil claims.

In addition, the Treasurer’s Instruction does not clearly cover Solicitor-General advice about the precise amount of a settlement, which requires using discretion rather than a determination on whether a settlement is lawful.

According to their evidence, the Heads of Agencies generally consider the Solicitor-General makes the final decision on whether a claim should be settled. However, there was a lack of clarity about the role of a Head of Agency regarding payment amounts when a secretary considers the proposed settlement amount is too low.164

A Head of Agency or department may take the view the settlement amount the Office of the Solicitor-General proposes is too low because the:

• abuse was longstanding
• department responded inadequately to reports of risk of harm
• claimant suffered extreme harm
• department’s reputation would be negatively affected by offering meagre damages in the situation that led to the claim.

Although a secretary can raise these concerns with the Solicitor-General’s Office, the general view seems to be the Treasurer’s Instruction relates to decisions about liability and amount of damages.165

Mr Turner said if there was a disagreement between the Solicitor-General’s Office and a Head of Agency or department on this issue, they would discuss it, but if they could not resolve the matter, the Solicitor-General’s Office would be the decision maker ‘because we are part of the Crown’.166 He based this interpretation of the Treasurer’s Instruction on the approach taken by the Solicitor-General’s predecessor and on the Solicitor-General Act.167

The usual duty of a lawyer is to advise their client, who can then accept or reject that advice. By contrast, it appears the Solicitor-General’s role goes beyond advising a client to making decisions on behalf of Tasmanian Government agencies. We do not doubt the dedication of the lawyers who work in the Solicitor-General’s Office. We also realise that Tasmanian public funding is stretched and the rationale for the Solicitor-General’s virtual monopoly on providing legal advice may be to limit public spending.

We are concerned that restricting the ability of departmental secretaries and other Heads of Agencies to seek alternative advice in relation to settlements and litigation in all child sexual abuse cases could lead to complacency and reinforce practices that cannot be justified.

Restricting access to external sources of legal advice may also have negative consequences in other contexts relating to child sexual abuse in Tasmanian
Government institutions. These contexts include when agencies seek advice about access to information applications, laws around information sharing, or in employment law disputes. Across our report, we have identified times when legal advice has affected whether agencies have taken action to protect the safety of children. We understand most other states do not prevent Heads of Agencies from obtaining external legal advice in situations where they consider it appropriate.

1. Our observations

Some barriers to recovering damages from the Tasmanian Government for child sexual abuse occurring in Tasmanian government institutions have been removed by legislative reforms following the final report of the National Royal Commission. However, in our view, other improvements can be made to help victim-survivors seek compensation through the civil litigation system without trauma.

Lawyers representing the Tasmanian Government have a duty to serve their client to the best of their ability. That duty may require a lawyer involved in settlement discussions to raise legal issues that may be obstacles to a successful claim by a victim-survivor. However, as the Model Litigant Guidelines recognise, and the Attorney-General has acknowledged, this duty should not prevent lawyers managing claims sensitively, for example, by considering a claimant’s difficulties in having to talk about their abuse, sometimes on multiple occasions, and to submit to medical examinations.168

Secretary Webster’s evidence suggests the Tasmanian Government is reconsidering its civil litigation practices. She noted:

Work has been undertaken to review the structure and processes with respect to civil litigation and the management of child sexual abuse claims and information has been provided to the Attorney-General regarding potential changes that comply with her announced expectations with respect to the management of civil litigation.169

Nevertheless, we consider that staff who deal with civil claims relating to child sexual abuse need more detailed guidance. We recommend regular staff training on the nature and effects of child sexual abuse on victim-survivors and how to consider these effects when victim-survivors are involved in civil litigation processes.

We recommend the Tasmanian Government review its litigation practices and how it manages claims arising from allegations of child sexual abuse.

In this context, we note the Attorney-General’s recent instruction that claims should not be made by the Tasmanian Government’s representatives for legal professional privilege in relation to medical reports or other expert evidence relevant to child sexual abuse.

As noted above, in March 2023, the Attorney-General announced the Tasmanian Government would ‘establish a new separate State Litigation Office to take over the management of the Tasmanian Government’s civil litigation’. The Attorney-General stated: ‘this is an opportunity to contemporise the management of civil litigation and ensure an understanding of the impact of trauma and harm is embedded in all areas of the State’s legal system’.170

The new State Litigation Office would provide the Attorney-General with ‘advice regarding specific guidelines and directions on the handling of civil claims, including any changes to ensure that processes are more victim-centric and trauma-informed’.171

In performing its functions, the new Office should consider our conclusions and recommendations concerning Tasmanian Government litigation practices and the management of claims arising from allegations of child sexual abuse in Tasmanian Government institutions.

In addition, we consider that the respective roles of departmental secretaries and the Solicitor-General need to be clarified, particularly in relation to determining the amount of damages that should be offered in civil litigation matters. We also consider that departmental secretaries and other Heads of Agencies should be authorised to seek external legal advice when they consider it appropriate. The Tasmanian Government should consider whether external advice should be available more broadly in other contexts where agencies wish to seek legal advice relating to child sexual abuse in government institutions.

Recommendation 17.2

1. The Tasmanian Government should ensure all lawyers who act for the Tasmanian Government in civil claims relating to child sexual abuse receive regular professional development on:
   1. the nature and effects of child sexual abuse, including institutional child sexual abuse, perpetrator tactics and impacts on victim-survivors
   2. how to consider these effects when victim-survivors are involved in civil litigation processes.
2. The Solicitor-General or the new State Litigation Office should issue and ensure compliance with guidelines relating to:
   1. trauma-informed management of settlement processes and conferences in child sexual abuse cases
   2. whether and when legal professional privilege should be claimed by the Tasmanian Government in relation to medical reports or expert evidence, adopting the principle that generally legal professional privilege should be waived
   3. making apologies before reaching a final settlement.

Recommendation 17.3

1. The Attorney-General should issue guidelines to clarify the respective roles of the Solicitor-General and the new State Litigation Office, departmental secretaries and other agency heads where Tasmanian government agencies are engaged in the conduct and settlement of civil litigation arising from allegations of child sexual abuse.
2. The Treasurer’s Instruction relating to obtaining external legal advice should be amended to:
   1. make it consistent with the Attorney-General’s guidelines on civil litigation arising from allegations of child sexual abuse
   2. specify the circumstances in which departmental secretaries and other agency heads should be able to seek external legal advice on matters related to child sexual abuse.

1. Apologies

1. The importance of apologies to victim-survivors

Victim-survivors, who gave evidence at our hearings, made submissions or took part in a session with a Commissioner, spoke about the importance of receiving a direct personal response to their experiences. Alex (a pseudonym), for example, stated:

I would have loved to have got an apology. I went [to the health service] wholly and solely to find out the outcome of that incident and if that perpetrator is still working amongst children … if I’d received the help when I asked for it [at the time] and when I asked for it [4 years later], I don’t think I would be this broken person.172

Katrina Munting, who in 2018 disclosed alleged abuse by a teacher, also spoke about the Department of Education’s failure to acknowledge what had happened to her, even after the teacher had been charged with offences. She wrote to the Minister for Education 16 times in 2020 requesting to meet, and received ‘two, maybe three, replies’ signed by the Minister declining her request.173 After many attempts to arrange meetings, she was referred to meet with the Deputy Secretary of the Department of Education.174 Ms Munting said that although the Deputy Secretary listened well to her story and apologised to her, she would have ‘preferred a proper, personalised apology from the Department of Education itself and a proper discussion with them so that they could hear me personally’.175 At our hearings, Ms Munting indicated she needed more than just a ‘generic’ or ‘sweeping’ apology.176 In her own words:

… they need to be sorry that I was abused in their institution and they chose to ignore it, and they chose not to follow it up, and they chose to ignore me, and, you know, they need to name up exactly what it is that they’re sorry for, because I don’t want a hollow ‘I’m sorry’. What are you sorry for? Because, not only have I been devastated by the abuse, the fallout that I’ve had to deal with since has made it so much worse.177

Azra Beach also gave evidence about the absence of any apology from the Tasmanian Government about the abuse she experienced in out of home care. She said a politician with whom she had raised this issue had assured her she would receive an apology, but this had not happened.178 She told us:

… no-one should have to chase up their own apology at all, and I think what makes this even worse is that the people that I have spoken with already knew that this was happening long before this Commission even came about; I raised it so many times, but I suppose because of who I am and, you know, sometimes how I talk and how I communicate it was complete—I felt, again, completely dismissed.179

In her evidence, Ms Sdrinis spoke about how an apology can help victim-survivors recover from the abuse. She said:

In my experience, it’s not always about the money for survivors. The money’s important because that’s the tangible acknowledgment of wrongdoing, but when survivors go on a journey where they’re listened to, where they’re believed, where the right amount of compensation is offered—and that’s not always more money—it’s about an amount of money that the survivor feels is adequate recognition—where there’s an apology, a proper apology at the end of that process, and I’ll say it again, most importantly, where the survivor feels listened to and believed, then that is trauma-informed practice and I’ve seen it change survivors’ lives; like, completely change their lives.180

1. Apologies by the Tasmanian Government

The Tasmanian Government has made apologies relating to child sexual abuse in Tasmanian Government institutions.

On 26 February 2021, the Honourable Peter Gutwein MP, the then Premier of Tasmania, and the Tasmanian Police Commissioner issued an apology about police failings in the investigation of allegations against James Griffin.181 The then Premier also referred to this apology in the Tasmanian Parliament on 2 March 2021.182

On 11 November 2021, Premier Gutwein also apologised on behalf of the Tasmanian Government and previous governments to victim-survivors of historical abuse in schools and other education facilities.183

During our Commission of Inquiry, the secretaries of the then Department of Education, the Department of Justice, the Department of Health and the then Department of Communities also acknowledged the failure to prevent, investigate and respond adequately to institutional child sexual abuse and its devastating effect on victim-survivors.184

On 8 November 2022, the Tasmanian Parliament delivered an apology to all victim-survivors of child sexual abuse in Tasmanian Government institutions.185 As part of this apology, the current Premier, the Honourable Jeremy Rockliff MP, expressed deep regret for the institutional failures that led to a profound violation of trust, and for the harm caused to victim-survivors, some of whom had died and would not hear the apology. The Premier also acknowledged the bravery of people who had shared their experience with our Inquiry. He thanked those who had spoken up to protect children whose voices had previously been ignored. The Premier made an undertaking to all Tasmanians ‘to never allow a repeat of this abuse, of the secrecy and the suppression’ and ‘to never allow a repeat of the failures that allowed such abuse to occur’.186 He undertook to implement the recommendations of our Commission of Inquiry: ‘Our Government is acutely aware of the enormous responsibility to act swiftly and to act decisively to implement the Commission’s recommendations’.187

1. Apologies and civil litigation

Despite, or in addition to, these general apologies, some victim-survivors are likely to want a direct personal response from a senior state servant in the department that oversaw the institution where the abuse occurred. Ms Sdrinis told us the Tasmanian Government has not formally agreed to apologise to victim-survivors who are involved in civil litigation until their claim has been resolved. This contrasts with the approach of some organisations that apologise as soon as a claim has been served on them.188

Ms Sdrinis said apologies that recognise the suffering of the victim-survivor could also be offered before settlement in some civil damages claims.189

Where a victim-survivor is seeking damages from the Tasmanian Government, the Tasmanian Government may be reluctant to apologise because an apology could be treated as an admission of liability.

Under section 7 of the Civil Liability Act, an apology made by or on behalf of a person is not:

• an admission of fault or liability
• relevant to the determination of fault or liability
• admissible for that purpose in any civil proceedings.190

However, this provision does not apply to cases involving intentional acts of child sexual abuse.191 This provision may also inhibit government agencies’ ability to offer an apology when they first receive an allegation or complaint about child sexual abuse.

Some victim-survivors will not consider apologies as any consolation, unless the Tasmanian Government is prepared to settle the claim for damages.192 However, an appropriately delivered apology that acknowledges an individual’s suffering would provide solace to some. In her statement, Secretary Webster recognised this approach could be useful and said:

The Office of the Solicitor-General has recently sought to improve their provision of trauma-informed redress to civil litigants. The Child Abuse Royal Commission Response Unit will engage with civil litigants to access redress by preparing personal apologies using ... trauma-informed principles and support other forms of redress as requested.193

1. Our observations

We welcome the apologies the secretaries of Tasmanian Government departments gave during our Commission of Inquiry. We hope they will be of some comfort to victim-survivors. We recognise the symbolic significance of the public apology to victim-survivors by the Premier and the Tasmanian Parliament on 8 November 2022. We also welcome the Premier’s commitment to implementing our recommendations.

In relation to a direct personal response, we recognise the risk of future harm to victim-survivors where apologies are given in relation to allegations of child sexual abuse and institutional failings that the Tasmanian Government later contests. Vacuous or meaningless apologies are of little help to victim-survivors. Institutions should adopt an approach that allows agency staff to give a human and compassionate response when interacting with victim-survivors.

We consider an apology should acknowledge what happened to the victim-survivors, answer any questions they might have about their time in the institution and the institution’s response, and be prepared to answer questions about what steps have been taken to prevent child sexual abuse happening again.

Some of the difficulties victim-survivors have experienced in obtaining adequate responses, including apologies, may have been based on legal advice or concerns that an apology would be used by people to support a damages claim against the Tasmanian Government. In our view, the Tasmanian Government should be allowed to apologise for institutional child sexual abuse, without this affecting the liability of the Tasmanian Government.

In relation to civil litigation matters, we consider that, at least in some cases, it would be appropriate for the Tasmanian Government to apologise before the resolution of a claim. Similarly, when institutions receive allegations or complaints about child sexual abuse, they should feel able to make an immediate and genuine apology.

We recommend the Civil Liability Act be amended to ensure the Tasmanian Government and government institutions can apologise in relation to child sexual abuse without compromising any defence the Tasmanian Government may have, for example, based on all reasonable steps having been taken to protect a child from abuse.194 There should be no legal disincentive to apologising.

Recommendation 17.4

The Tasmanian Government should ensure individual victim-survivors of child sexual abuse who request an apology receive one. Proactive steps should also be taken to offer an apology to victim-survivors who make contact in relation to their abuse. The apology should include:

1. the opportunity to meet with a senior institutional representative (preferably the Secretary) and receive an acknowledgment of the abuse and its impact
2. information about the victim-survivor’s time in the institution
3. information about what steps the institution has taken or will take to protect against further sexual abuse of children, if asked.

Recommendation 17.5

The Tasmanian Government should introduce legislation to amend the Civil Liability Act 2002 to ensure that an apology in relation to child sexual abuse can be made without amounting to an admission of liability.

1. Support for victims of crime

Victims Support Services in the Department of Justice provides various services to victims of crime, including child sexual abuse victim-survivors. These services are described below.195 In addition, under the Victims of Crime Assistance Act 1976 (‘Victims of Crime Assistance Act’), eligible child sexual abuse victim-survivors can be financially compensated up to a prescribed maximum.196 At present, this maximum is $30,918 in the case of the primary victim who suffers a single offence, and up to $51,531 for a victim of more than one offence. Compensation for the cost of medical, dental, psychological or counselling services, which a Criminal Injuries Compensation Commissioner is satisfied the primary victim will require in the future, can be awarded in addition to the prescribed maximum.197

1. Victims Support Services

Police or the Office of the Director of Public Prosecutions often refer victims of crime to Victims Support Services. Psychologists, counsellors or health practitioners sometimes make referrals. There is also a Victims Support Services website,
which was reviewed and redesigned in 2021.198

Victim-survivors can also contact the service directly and often do. Victims Support Services includes a Victims of Crime Service, which provides access to counselling and other forms of support.199 We discuss the Victims of Crime Service in more detail in Chapter 21 and make a recommendation to increase these services across the State (refer to Recommendation 21.5). In summary, the Victims of Crime Service can:

• refer a victim-survivor to other service providers
• provide information about the criminal justice system
• help victim-survivors prepare a victim impact statement.200

An estimated 85 per cent of all Victims Support Services clients accessing the Victims of Crime Service are supported to complete a victim impact statement.201 These can be used for sentencing in criminal courts or for the Parole Board.202 Statements also frequently form the basis of Victims of Crime Assistance applications.

Victims Support Services also keeps an Eligible Persons Register.203 The Register allows victims to be given information about offenders.204 This information is available to anyone who is registered as the victim of a violent crime, committed in Tasmania, where the offender has received a custodial sentence.205 A victim-survivor of violent crime who is on the Register is entitled to receive certain information about the offender, including ‘their location, security classification, parole hearing dates and possible release dates’.206

The Victims Support Services could not provide any figures on the number of victim-survivors who had sought counselling for child sexual abuse. Data on the Eligible Persons Register has similar limitations. Catherine Edwards, Manager, Victims Support Services, Department of Justice, told us a new case management system will enable this data to be obtained. The system is expected to be rolled out by December 2023.207 In our view, it would be helpful if that database could differentiate between child sexual abuse in government institutions and in other contexts.

1. Victims of Crime Assistance Scheme

Victims of crime may be able to access financial assistance under the Victims of Crime Assistance Scheme. The Victims Assistance Unit in Victims Support Services provides administrative support for the Criminal Injuries Compensation Commissioners, who decide whether a victim of crime is eligible to receive financial support (or compensation) and the amount that should be awarded.208 Ms Edwards said the Unit actively manages applications, liaises with victims of crime and their solicitors, and advises victims on its processes.209

Applications for compensation are initially reviewed by an assessment officer and then by a Commissioner, whose decision can be based on the papers alone, a telephone hearing or an in-person hearing.210 Victims are supposed to be able to choose whether to attend a hearing, although one victim-survivor told us she was not given this choice.211 The victim may be asked to provide certain information, for example, medical records. Ms Edwards said if the person makes a direct claim, rather than being represented
by a solicitor, Victims Support Services collects police and court records, rather than requiring the victim to do so.212

There are seven Criminal Injuries Compensation Commissioners. Ms Edwards told us a full-time fixed-term Commissioner was appointed in September 2018, and has been acting in this role since this time. There are six sessional Commissioners—two in Burnie, one in Launceston and three in Hobart.213 Ms Edwards also told us the number of Criminal Injuries Compensation Commissioners was not fully funded and, as a result, the budget for Victims Support Services was in structural deficit, making it difficult to plan and recruit suitable Commissioners.214 The Department of Justice told us, in March 2023, that it has now met this deficit to enable the full-time Commissioner position to be funded on an ongoing basis.215

Compensation can be awarded where the victim (or, in some situations, a family member) suffers injury or death as the result of an act that was a criminal offence or would have been an offence if the person committing the act were not too young to be criminally liable or was insane.216 This would include victim-survivors of child sexual abuse. To award compensation, the Commissioner who hears the application must be satisfied, on the balance of probabilities, that the death or injury resulted from criminal conduct.217

The payments made under the scheme are modest. The amount of the award may cover:

• expenses reasonably incurred because of the injury
• the cost of future medical, dental, psychological or counselling services
• loss of wages or salary caused by the victim’s total or partial incapacity for work
• compensation for the pain and suffering arising from the injury
• expenses reasonably incurred by the primary victim in claiming compensation.218

The following sections discuss factors potentially relevant to the success or otherwise of applications for compensation made by victim-survivors for institutional child sexual abuse.

1. Time limits

An application for an award under the Victims of Crime Assistance Act must generally be made within three years of the date of the relevant offence, unless the applicant was a child at the time of the offence, in which case they will have three years from the date they turn 18 years of age to apply.219

There is provision for a victim-survivor to apply for an extension of time if the Criminal Injuries Compensation Commissioner is satisfied there are special circumstances that justify the extension.220 Victim-survivors and others expressed concern about the time limit for making applications for compensation. As one victim-survivor told us:

Even with the best policies, processes and practices in the world, most victim/survivors of child sexual abuse, because of the very nature of the abuse, are going to take years to disclose. Is it fair for the time limit to apply to victims/survivors of child sexual abuse relative to other victims of crime?221

Ms Edwards told us that, since 2017, there had been two applications relating to child sexual abuse where an extension of time had been refused.222

We are pleased to note the recent commencement of the Justice Miscellaneous (Royal Commission Amendments) Act 2023 on 20 April 2023 removed the time limits for applicants seeking compensation for child sexual abuse under the Victims of Crime Assistance Act.223

1. Behaviour of the victim

When deciding whether to make an award or the amount of the award, the Victims of Crime Assistance Act requires a Criminal Injuries Compensation Commissioner to: ‘have regard to any behaviour, condition, attitude, or disposition of the victim that appears to him to have directly or indirectly contributed to the injury or death in relation to which the award is sought’.224

We would be concerned if a Criminal Injuries Compensation Commissioner used this provision to disqualify or reduce the compensation payable to children or young people who were groomed to believe their sexual abuse occurred in the context of a relationship with a perpetrator. We have already referred to civil litigation where a victim-survivor was told limitation periods still apply (and, therefore, damages were not payable) because they had ‘consented’ to the abuse. However, the Attorney-General intervened to change that practice (refer to Section 3.2). Similarly, issues about a child or young person’s consent should never be raised in response to an application for compensation under the Victims of Crime Assistance Act.

1. Compensation and assisting prosecution

Although compensation can be awarded to a victim-survivor of child sexual abuse even if the perpetrator was not convicted of the offence or offences, under the Victims of Crime Assistance Act:

The Commissioner shall not make an award to a person if that person has failed to do any act or thing which, in the opinion of the Commissioner, that person should reasonably have done to assist in the identification, apprehension, or prosecution of any person alleged to have committed the criminal conduct or alleged criminal conduct for which compensation is claimed. 225

This could result in a denial of compensation if it would have been reasonable for a report to have been made. Ms Edwards told us if the victim had told a person in authority about the abuse or had suffered a psychological injury that made it difficult for them to tell anyone about it, these factors could be considered in deciding whether it was reasonable for the applicant not to report the offence.226

1. Compensation and civil proceedings

A Criminal Injuries Compensation Commissioner can refuse to make an award of compensation if satisfied the person has or had an adequate remedy in civil proceedings. They can consider any amount that was or was likely to be recovered in civil proceedings.227 Potentially, this could place inappropriate pressure on a victim-survivor to become involved in civil litigation, even if they do not want to do so.

1. Review of decisions under the Victims of Crime Assistance Act

A decision by a Criminal Injuries Compensation Commissioner that compensation should not be awarded is not subject to merits review by the Tasmanian Civil and Administrative Tribunal. The decision cannot generally be appealed in the courts.228

In Victoria, a person affected by a decision of the Victims of Crime Assistance Tribunal, including refusing to make an award or determining the amount of assistance, may apply to the Victorian Civil and Administrative Tribunal for review of the decision.229 This position is to be maintained under Victoria’s new Financial Assistance Scheme, which is expected to open in 2024, and will replace the Victims of Crime Assistance Tribunal in Victoria.230

In New South Wales, some decisions of the Commissioner of Victims Rights are reviewable by the New South Wales Civil and Administrative Tribunal. This includes decisions about ‘recognition payments’ that are made in recognition of the trauma suffered by a victim of an act of violence.231

1. Criticisms of the operation of the Victims of Crime Assistance Scheme

1. Management of claims

Some victim-survivors criticised the management of applications for compensation under the Victims of Crime Assistance Scheme. We received an anonymous submission from a victim-survivor who told us she was abused by a teacher, employed by the Department of Education, for four years between the ages of 14 and 18.

This victim-survivor queried whether applications were actively managed and called for a mechanism for complaints about how Criminal Injuries Compensation Commissioners deal with applications.232 She also commented on Commissioners’ lack of training and accountability.233

More generally, she said that questions put to her by a Criminal Injuries Compensation Commissioner were ‘unnecessary, intrusive, inappropriate, re-traumatising, contrary to Item 1 of the Victims Support Services Charter of Rights for Victims of Crime’.234 She told us the questions were ‘not in line with the findings and recommendations of [the National Royal Commission] or the Tasmanian Government’s response to those recommendations’.235 Among other things, the Criminal Injuries Compensation Commissioner asked her ‘how I as an intelligent, well-educated and accomplished person was in a relationship with [the perpetrator] for so long (if not those exact words, words to that effect)’.236

1. Training

Ms Edwards said budget constraints limited her ability to implement comprehensive annual training for Victims Support Services staff.237 In April 2016, counselling staff attended Blue Knot Foundation’s two-day professional development training ‘Working Therapeutically with People who have Complex Trauma Histories’.238 She had also allowed staff to attend some professional development training, although the topics covered did not appear to relate specifically to trauma-informed practice or sexual abuse of children.239 She said there was no budget for training Criminal Injuries Compensation Commissioners and she was ‘limited’ in her ability to direct Commissioners to take part in training, ‘even in response to complaints’.240

Secretary Webster acknowledged the need to fund training for staff and Commissioners to ensure services and decisions were appropriately trauma-informed. She said:

… I think the work [we’re] doing around the Child Safe organisations and rolling training out around trauma-informed practice and a range of other things through that will be training that will be provided to the Victim Support Service of course, but I would expect that those statutory officers, I would also make that training available to those statutory officers.241

1. Delays

Significant delays may occur in operating the Victims of Crime Assistance Scheme because departments and other agencies fail to provide timely access to relevant records. This problem is discussed in more detail below, in relation to access to information and records.

1. Our observations

It is essential that staff of the Victims Support Services receive regular professional development on how to respond, in a trauma-informed and sensitive manner, to those who seek support or compensation for child sexual abuse. In Chapter 19, we recommend the Tasmanian Government develop a whole of government approach to professional development in responding to trauma within government and government funded services that provide services to children and young people or adult victim-survivors of child sexual abuse (refer to Recommendation 19.2). The Victims Support Services staff should also receive targeted professional development on child sexual abuse.

People being considered for appointment as full-time or sessional Criminal Injuries Compensation Commissioners should have professional development about the issues faced by victim-survivors of institutional child sexual abuse, before their appointment and regularly afterwards. The Tasmanian Government should fund this training. It may be useful for Victims Support Services staff and Commissioners to attend such training alongside others who regularly deal with sexual abuse matters.

We also consider there should be a right to appeal on the merits of a decision of a Criminal Injuries Compensation Commissioner to the Tasmanian Civil and Administrative Tribunal.

In Tasmania, while the maximum amount of compensation that can be awarded to victim-survivors of child sexual abuse may seem modest, awards of compensation also constitute important recognition of victim-survivors and their suffering. The interests of victim-survivors of child sexual abuse which are affected by an administrative decision about criminal injuries compensation seem sufficiently important to justify access to merits review by the Tasmanian Civil and Administrative Tribunal.242

While merits review should extend to decisions on the amount of compensation,
to avoid disputes over small amounts, the legislation could specify the amount of an award in relation to which merits review is available. Alternatively, merits review could require the Tribunal’s leave (permission) to apply for review.

Recommendation 17.6

The Department of Justice should ensure that:

1. in relation to claims for financial assistance under the Victims of Crime Assistance Scheme, delays are minimised and applications for compensation are handled in a sensitive and trauma-informed manner
2. staff in Victims Support Services receive regular professional development on the effects of child sexual abuse and how to respond to victim-survivors in a trauma-informed manner
3. people being considered for appointment as Criminal Injuries Compensation Commissioners are required to take part in professional development on the effects of child sexual abuse and how to respond to victim-survivors in a trauma-informed manner before their appointment and regularly thereafter.

Recommendation 17.7

The Tasmanian Government should introduce legislation to amend the Victims of Crime Assistance Act 1976 to create a right of review on the merits by the Tasmanian Civil and Administrative Tribunal in relation to a decision of the Criminal Injuries Compensation Commissioners:

1. to refuse financial assistance to a victim-survivor of child sexual abuse
2. about the amount of financial assistance to which a victim-survivor of child sexual abuse is entitled.

1. Record keeping and access to information

To support a claim of civil liability or application for redress, victim-survivors of institutional child sexual abuse often need access to information held by government. This information can also be critical helping victim-survivors understand the context in which the abuse occurred and the response at the time (if any). It may also provide a sense of recognition and acknowledgment of the abuse and harm it caused.
For some victim-survivors, access to this information can help to fill gaps in their personal story. This role is particularly important for victim-survivors who have been in state care. These victim-survivors often have limited personal records of their childhood and may lack a network of family and friends from that time, who can help them tell or make sense of their experiences.243

Individuals have a legislative right to access government information, unless an exemption applies.244 Despite this right, in hearings, consultations and statements to our Commission of Inquiry, victim-survivors and their representatives described systemic barriers to exercising this right, including costs, poor record keeping, lengthy delays, refusals and extensive redactions, with many resorting to slow and non-binding review processes.

This evidence highlighted an administrative culture that was not pro-disclosure and which, combined with a complex legislative scheme and insufficient resourcing, limits the release of information in practice.

In this section, we consider access to government information in Tasmania and its implementation in relation to victim-survivors of child sexual abuse in institutional contexts. First, we review record creation and record-keeping practices in Tasmania. We then focus on the operation of the legislative scheme established by the Right to Information Act and the Personal Information Protection Act.245

While on the surface, the legislative scheme may appear to be an administrative or bureaucratic process, in practice, victim-survivors’ experiences of delays, redirections, refusals, redactions and additional costs can subject them to more trauma. One victim-survivor said:

I felt completely stymied by the process. I felt like I was up against a wall, and I just didn’t understand the implications of it. … [I]t just didn’t sit well at all. I thought, I just—this is a rabbit hole I’m not gonna go down, I can’t do it.246

Ultimately, the experience can leave victim-survivors with a sense that the interests of others are being protected at their expense. Urgent reform of the access to information scheme and its operation is needed to ensure it is as accessible, efficient, transparent and trauma-informed as possible.

1. Records and record keeping

For an access to information scheme to support the principles of open and transparent government, good records of government activities need to be created in the first place, and subsequently managed, retained and disposed of in a systematic way.247

1. National Royal Commission

The final report of the National Royal Commission highlighted the importance of good records and record-keeping practices, stating:

The creation of accurate records and the exercise of good recordkeeping practices play a critical role in identifying, preventing and responding to child sexual abuse. Records are also important in alleviating the impact of child sexual abuse for survivors. Inadequate records and recordkeeping have contributed to delays in or failures to identify and respond to risks and incidents of child sexual abuse and have exacerbated distress and trauma for many survivors.248

The National Royal Commission recommended all institutions that engage in child-related work implement five principles for records and record keeping to a level that responds to the risk of child sexual abuse occurring within the institution.249 The Principles state:

1. Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture.
2. Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse.
3. Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately.
4. Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy.
5. Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent.250

The National Royal Commission stated that: ‘State and territory governments should require all institutions that care for or provide services to children to comply with the five principles for records and recordkeeping’.251

Besides the five principles, the National Royal Commission recommended minimum retention periods for records relevant to child sexual abuse.252 Specifically, it recommended: ‘institutions that engage in child-related work should retain, for at least 45 years, records relating to child sexual abuse that has occurred or is alleged to have occurred’.253 It made further recommendations that the National Archives of Australia and state and territory public records authorities develop records disposal schedules accordingly, and provide guidance to help institutions to identify relevant records.254

1. Tasmanian records and record keeping

In August 2018, the Tasmanian Government started implementing the National Royal Commission’s five record and record-keeping principles and has adopted measures related to retention and document maintenance.

In December 2019, the Office of the State Archivist issued a new Disposal Schedule for Records Relating to Child Abuse.255 The new Disposal Schedule applies to all organisations (including Tasmanian Government agencies) as defined in the Archives Act 1983 (‘Archives Act’).256 The Office of the State Archivist also imposed a document disposal freeze that applies until 2029 to retain ‘all records that contain the best information about children, services provided to them, and employees that provide the service’.257 It aims to prevent the destruction of documents held by institutions that provide services to children that may be relevant to claims for compensation concerning child sexual abuse and applications for redress under the National Redress Scheme.

In October 2020, the Office of the State Archivist released a new Information and Records Management Standard, which ‘aligns to the Royal Commission’s records and recordkeeping principles’.258 All government organisations subject to the Archives Act must comply with these principles.259 The Tasmanian Government further noted the Office of the State Archivist offers:

… an Information Management Foundations training course specifically for government employees modelled on the standard, which includes relevant content about the Royal Commission, child abuse records and good recordkeeping practices. Non-government employees can attend.260

In its latest report on implementing the National Royal Commission recommendations, the Government indicated that work is ongoing.261

Evidence before our Inquiry raised two key areas of concern regarding record keeping. First, we heard evidence of poor document maintenance, which affected searchability and accessibility. Second, we heard evidence of inadequate document retention and disposal practices, leading to a loss or destruction of relevant records. Sometimes it can be difficult to know whether a record has been lost, not well maintained, or never created.

Document maintenance: searchability and accessibility

During our Commission of Inquiry, we heard evidence of records kept across multiple systems in various locations in a mix of digital and hard copy formats, which impedes identifying and accessing relevant documents. For example, in response to Commission notice to produce concerning incident reports from Ashley Youth Detention Centre,
we were informed that a manual document review would be required to identify relevant documents, suggesting the incident reporting system was not easily searchable.262 During our Inquiry, the problems of record keeping at Ashley Youth Detention Centre became more apparent (refer to Chapter 12). Mr Strange described knowmore’s experience of communicating with the former Department of Communities in relation to right to information requests. He said knowmore was aware of records and information (both physical and electronic) existing across multiple bodies and areas, sometimes at up to five or six different locations.263

The Department of Communities confirmed difficulties in retrieving records about out of home care and youth justice. Michael Pervan, former Secretary, Department of Communities, reported that in response to the initiation of our Commission of Inquiry: ‘The biggest initial issue was the retrieval of documentation in the Department’s possession or control, given the physical nature and location [of] files throughout the State and the breadth of the Out of Home Care model over time’.264 Secretary Pervan gave examples of ‘records [which] have not been consistently catalogued and boxes [that] are often labelled incorrectly’, noting ‘many high-priority hard and soft copy files within the Children, Youth and Families Division require remediation, such as through comprehensive cataloguing of handwritten content’.265

Other departments described similar challenges. For example, Kathrine Morgan-Wicks, Secretary, Department of Health, described at least 10 different record-keeping systems that contained documents of potential relevance to child sexual abuse.266 Secretary Morgan-Wicks acknowledged that: ‘the standard of record keeping across the Department of Health requires significant improvement to achieve statewide consistency’.267 Similarly, Timothy Bullard, Secretary, Department for Education, Children and Young People described the mixed approach to record keeping in schools, stating:

There was no central system to collect student information until 2014, when [the Student Support System] was introduced. Before 2014, schools used a mixture of practices, with some using a paper-based method of recording files and notes, and some using a system built by a teacher within the respective school.268

Recognising the need to improve searchability and accessibility of records, several departments reported establishing remediation projects. For example, the former Department of Communities had started a project to digitise approximately 110,000 hard copy files concerning out of home care and youth justice (refer to Chapter 11, Case study 7, and Chapter 12).269 The Department of Health stated that improvement of the standard of record keeping ‘is a key priority within Health’s Digital Strategy and Record Audit’, noting the commencement of ‘an Information Remediation Project for the roll out
of the Content Management system across the Department’.270

The Department for Education, Children and Young People has been taking part in discussions with the Department of Health about the Department of Health’s complaints management system project.271 If the Department of Health system meets its needs, the Department for Education, Children and Young People may move across to that system in the future.272 The Department for Education, Children and Young People’s Strategic Systems Development team has been asked to reserve time in 2023 to deliver an alternative solution should the Department of Health’s complaints management system be deemed not fit for purpose.273

According to the Tasmanian Government, the Case Management Platform ‘will deliver a streamlined approach to the way information is recorded, accessed, managed and interpreted’.274

Document retention and disposal

In evidence, we heard examples of victim-survivors frustrated by the apparent loss or destruction of documents they believed did or should exist. Victim-survivor, Rachel (a pseudonym), spoke of her mother receiving a letter in response to a request for information that essentially stated: ‘the [Teachers Registration Board] have no record of any investigation in 2007’.275 In evidence, Rachel expressed her distress at this response, stating:

That was hard to read because I was like, “What the heck? What do you mean there was no investigation? I have a statement that I signed in 2008 from the [Teachers Registration Board]”. I just don’t get it. I just don’t understand.276

When the Tasmanian Government responded to this evidence, it suggested the letter may not have come from the Teachers Registration Board, which does hold documents relating to Rachel’s complaint, but from the Department of Education. It is possible that Rachel was mistaken regarding the source of the letter to her mother, but it is troubling that she received no help to get this information.277

Rachel’s experience was shared by representatives of other victim-survivors. For example, Ms Sdrinis noted instances of clients insisting they had made a complaint to the police of which the police had no record.278 She further stated: ‘it is not uncommon in Department of Education matters for clients to instruct me that they made a complaint to a teacher or even the Principal and no record has been kept’.279

We are informed that the Department for Education, Children and Young People is reviewing and improving its complaints management system, and has a new policy for handling complaints that should help to address these problems.280

1. Our observations

It is critical that remediation of historical records is prioritised and adequately resourced across Tasmanian Government institutions, extending to non-government institutions that are funded to provide government services. It is also critical that searchable and accessible document management systems are introduced and maintained in line with the National Royal Commission’s records and record-keeping principles.

We discuss the preservation of Ashley Youth Detention Centre and out of home care records in more detail in Chapter 12. We recommend in that chapter that the Department for Education, Children and Young People work with the Office of the State Archivist to establish an approach to preserve historical records relevant to children and young people and staff at Ashley Youth Detention Centre and in state care. We consider preserving these records a matter of priority.

We welcome the Tasmanian Government’s response to the National Royal Commission’s recommendations concerning document maintenance and retention. To ensure successful implementation of the recommendations, it is critical that staff within relevant government and government funded institutions engage in ongoing training about their record and record-keeping obligations, and that regular compliance audits are conducted. We consider the Office of the State Archivist may be best placed to provide the necessary ongoing training and to regularly measure and assess the quality of record-keeping capability and practice across institutions. We welcome their Information Management Foundations training course.

1. Access to information

Multiple people may be seeking information in relation to an institution’s response to child sexual abuse, including, for example, victim-survivors seeking ‘personal information’ or journalists seeking information about an institution’s response
to child sexual abuse.

Tasmania, like most Australian jurisdictions, has separate pieces of legislation regulating access to information and protecting personal information.281 An individual’s right to access, amend or annotate personal information is generally contained as a principle in privacy or personal information protection legislation. This is compared to the broader right of access to government information in right to information legislation (sometimes referred to as ‘freedom of information’ legislation). Access to information the Tasmanian Government holds is regulated by a legislative scheme established by the Right to Information Act and the Personal Information Protection Act.

Government information is provided to the public through a range of channels such as:

• annual reporting obligations
• selective publication of policies, procedures and other reports
• in response to requests such as letters from the public.282

If information is not disclosed through these channels, as a ‘last resort’, individuals can apply under the Right to Information Act for an ‘assessed disclosure’, otherwise called a right to information application.283 Individuals have a right to the information requested, unless an exemption applies.284 There are 18 types of exempt information, including information disclosing personal information of a person other than the person making the application, information affecting national or state security, defence or international relations, information relating to enforcement of the law, legally privileged information and other information that is contrary to the public interest to disclose.285 A person can apply to the Ombudsman for a review of an agency’s decision about a right to information request.286

The Personal Information Protection Act regulates the ‘collection, maintenance, use, correction and disclosure of personal information relating to individuals’.287 It contains 10 Personal Information Protection Principles, including Principle 6, which regulates access to and correction of personal information.288 It states that if a ‘personal information custodian’ holds personal information about an individual, the custodian ‘may’ provide that individual with access to their personal information upon receipt of a written request.289

On its face, the legislative scheme appears to set clear parameters for releasing or protecting Tasmanian Government information through established processes in line with fixed timeframes. However, in practice, victim-survivors and their representatives described a frustratingly slow, complex, and obstructive system. Their experiences align with evidence the National Royal Commission reported about the operation of freedom of information and privacy legislation across Australia: ‘we have been told by many survivors and their advocates and by records holders that many people still find navigating the current systems complex, costly, adversarial and traumatising’.290

As outlined above, the National Royal Commission sought to address these difficulties by implementing records and record-keeping principles. Specifically, Principle 5 requires: ‘Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent’.291 Detailing what is required in practice under Principle 5, the National Royal Commission stated:

Individuals whose childhoods are documented in institutional records should have a right to access records made about them. Full access should be given unless contrary to law. Specific, not generic, explanations should be provided in any case where a record, or part of a record, is withheld or redacted.

Individuals should be made aware of, and assisted to assert, their existing rights to request that records containing their personal information be amended or annotated, and to seek review or appeal of decisions refusing access, amendment or annotation.292

According to the Tasmanian Government, the new Information and Records Management Standard introduced in 2020 aligns with the National Royal Commission’s records and record-keeping principles.293 However, evidence before us suggests, in practice, individuals’ rights to access information are still not being ‘recognised to the fullest extent’.294

The concerns expressed to us about the operation of the access to information scheme in Tasmania fall within the following themes:

• an administrative culture that limits the release of government information
• legislative and procedural complexity, particularly where the Right to Information Act and the Personal Information Protection Act overlap, hampering access to personal information
• lengthy delays in responding to applications
• inadequate and unenforceable review processes when the release of information is delayed, refused or extensively redacted
• under-resourced and decentralised assessment processes contributing to delays and inconsistent outcomes
• inconsistent approaches to fees and waivers for right to information requests.

Ultimately, these issues cause significant distress and frustration for victim-survivors of institutional child sexual abuse, who can be retraumatised by the process. Consequently, urgent reform of the legislative scheme, together with additional resources and improved implementation in practice, is required.

1. Administrative culture

Evidence to our Commission of Inquiry indicates that when responding to requests for information related to child sexual abuse, public authorities frequently adopt an approach that is not ‘pro-disclosure’. The following example outlines the Department of Health’s reluctance to provide access to information it held about James Griffin.

Review of a journalist’s request for information about James Griffin

Journalist Camille Bianchi requested information from the Department of Health in relation to paediatric nurse James Griffin on 1 April 2020.295 The Department of Health had not released its decision to Ms Bianchi by 29 June 2020. At this point, the Ombudsman accepted her request for external review because the Department’s failure to respond to the request in this time constituted a refusal to provide the requested information.296 The Department indicated to the Ombudsman that the delay was because of the diversion of resources to the COVID-19 pandemic response.297

On 22 July 2020, the Department released its decision to Ms Bianchi, identifying 104 pages of relevant information.298 However, it refused to release any of these pages, claiming exemptions under four separate sections of the Right to Information Act.299

Following a comprehensive review, released on 4 November 2021, the Ombudsman concluded that all claimed exemptions were not made out or should be varied.300 Ultimately, the Ombudsman directed the release of 74 pages, subject to the redaction of some personal information.301 Of the remaining 30 pages, 10 were already publicly available and 20 pages were out of scope of the original request.302

In his decision, the Ombudsman stated that: ‘Public servants have a public role and duties, which brings with it the potential to be publicly identified. Service to the public is not intended to be shrouded in secrecy…’.303 He noted: ‘There is a fine line between protecting public servants from distressingly intense scrutiny and limiting their accountability to the people of Tasmania which comes from transparency of administrative action’.304

The Ombudsman expressed concern about the weight the Department of Health placed on the interests of its staff, without sufficient consideration of the interests of the victims of Mr Griffin’s alleged offending, or the public interest in holding the Government and its administration to account. He stated:

While the Department’s consideration of the interests of its staff and Mr Griffin’s associates is understandable, I am concerned that it does not appear to have considered the interests of the victims of Mr Griffin’s alleged offending while he was in its employ and the concerns of [Launceston General Hospital] patients and the general public about the adequacy of management of concerns by the Department as highly. … I consider that the public interest in protecting the interests of alleged sexual abusers of children is lower than that of the victims of such abuse. In contrast, the Department does not once mention or appear to consider the victims of Mr Griffin’s alleged offending or the valid community concern and desire for accountability from the Department, given that abuse is alleged to have occurred against vulnerable child patients receiving care in a public hospital over an extended period. 305

The Ombudsman also identified several relevant documents that had been omitted from the Department of Health’s response. In his decision, he commented:

The failure to produce this information or properly respond to my office’s
requests for an explanation as to why the information is not in the possession of the Department is inexplicable and disappointing. I am concerned with the sufficiency of the search conducted by the Department for all information responsive to Ms Bianchi’s request due to failure to properly respond to requests regarding these documents.306

Despite the Ombudsman’s direction to the Department to release 74 pages of documents (as detailed above), the Department did not immediately do so.307 Following media reports in December 2021 about the Ombudsman’s decision, the Department finally released the documents to Ms Bianchi, approximately 22 months after her original request was submitted.308

This administrative culture towards non-disclosure is reflected in concerns expressed in the Ombudsman Tasmania’s Annual Report 2021–22. Richard Connock, Ombudsman Tasmania, found that 95 per cent of the external reviews of right to information requests conducted in 2021–22 ‘identified issues with the manner in which the public authority had responded to a request for assessed disclosure…’.309 While some progress has been made compared to previous years, the Ombudsman stated:

The express object of the [Right to Information] Act is clear in relation to its pro-disclosure focus, seeking to increase government accountability and acknowledging that the public has a right to the information held by public authorities who are acting on behalf of the people of Tasmania. Too often, sadly, adherence to this object is not evident in practice and a closed, and at times obstructive, approach is taken when responding to requests for assessed disclosure which come before my office.310

For completeness, we note the Right to Information Act and the Ombudsman’s comments apply to ‘public authorities’, which includes bodies such as councils and statutory authorities, not only government departments and agencies.

In 2020, the Ombudsman reported that, for the year 2018–19, the rate at which Tasmanian public authorities refused access to any information in response to Right to Information requests was 7.5 times the rate of Australia’s most open jurisdictions (Victoria and the Northern Territory).311

Legal representatives of victim-survivors expressed concerns about the reluctance of Tasmanian public authorities to release information. For example, Ms Sdrinis stated:

It has been my experience that the Department of Education has a general reluctance to provide information responsive to [right to information] requests in a timely way. The Department appears to me to take a broad view of the various exemptions that it can apply. … I have found the provision of documents in Tasmania to be generally less forthcoming than in other jurisdictions.312

Ms Sdrinis stated she was not satisfied the records the Department of Education provide in response to requests ‘contain everything they could or should give us, and they appear to be heavily redacted’.313 Similarly, Mr Strange of knowmore described the Tasmanian Government’s response to requests for records as ‘often less than desirable’.314 He highlighted frequent delays and extensive redactions in released material as being ‘particularly pronounced in Tasmania’.315

A comparative analysis of the public use of information access rights across Australia for the period 2020–21 indicated Tasmania had:

• the second-lowest number of formal applications per capita at 2.6 applications per 1,000 population (the lowest was the Commonwealth at 1.4 applications per 1,000 population), compared to Western Australia with the highest number of applications per capita of 7.6 per 1,000 population. This may reflect a view that it is not worth making an application which has a limited chance of succeeding
• the lowest percentage of all decisions made on formal applications nationally where access was granted in full or in part (75 per cent), compared to the next lowest percentages from Queensland (82 per cent) and the Commonwealth (82 per cent)
• the highest percentage of decisions where access was refused in full (25 per cent), compared to the next highest percentages from Queensland (18 per cent) and the Commonwealth (18 per cent)
• the second-lowest percentage of decisions made within the statutory timeframe (73 per cent) above South Australia (67 per cent), based on the data available (noting that no data is available from Queensland in relation to this metric) and compared to the next lowest percentage from the Commonwealth (77 per cent)
• the highest percentage of applications reviewed by the Information Commissioner or Ombudsman (6.1 per cent) compared to the next lowest percentages from the Northern Territory (3.9 per cent) and Queensland (3.7 per cent).316

Broadly, similar percentage differences between state approaches to the release of information appear in 2017–18 and 2018–19.

This analysis reflects the published statistics regarding access to information nationally. However, the Ombudsman informed us of a recently identified difference in how Tasmania records this data compared to other states and territories. Tasmania’s figures include applications that are withdrawn or transferred and where the release of information is deferred in full. We understand such applications are not included in the published statistics of other jurisdictions. The Ombudsman told us this difference is ‘somewhat distorting the accuracy’ of these statistics. The Ombudsman said ‘efforts are being made to correct this misalignment as soon as possible’, and once it is corrected, ‘it is expected that Tasmania will no longer be an outlier in these statistics’.317

Some of these differences may be attributed to differing legislative schemes. For example, the Right to Information Act does not include an explicit principle in favour of the release of information. Instead, it includes a statement that: ‘It is the intention of Parliament … that discretions conferred by this Act be exercised so as to facilitate and promote, promptly and at the lowest reasonable cost, the provision of the maximum amount of official information’.318 In comparison, the freedom of information schemes in New South Wales, Queensland and the Australian Capital Territory all include an explicit ‘pro-disclosure bias’ or overarching principle in favour of disclosure to guide assessment decisions.319 The lack of an explicit statement to this effect may contribute to a tendency to restrict access rather than release information, although building a pro-release culture is also important.

Another difference in access to information schemes across Australia is the
approach to exemptions subject to an assessment of whether release of that information would be contrary to the ‘public interest’. For example, in Victoria, the ‘public interest test’ is embedded in the exemptions themselves, which specify the public interest considerations relevant to each exemption.320 In contrast, public interest considerations in the Tasmanian Right to Information Act are contained separately in a lengthy Schedule to the Act.321 Differences in legislative approaches between states and territories make it difficult to determine how this affects the decision not to release documents.322 However, some exemptions may contribute to a decision refusing the release of information, particularly in the absence of a pro-release culture.

Ultimately, the impact of these legislative differences on decision making in practice is unclear. However, considering the comparative metrics summarised above, combined with the Ombudsman’s comments and evidence before us about individuals’ experiences seeking access to information, we are concerned the administrative culture may, at times, frustrate the intended pro-disclosure intent of the Right to Information scheme in Tasmania and limit the release of government information.323

1. Protection of personal information

The process to request access to personal information relies on a connection between the right to information and personal information protection schemes, as is the case in most Australian jurisdictions. The Personal Information Protection Act establishes a process for an individual to make a written request to the organisation holding their personal information.324 If the request is refused or there is no response within 20 working days, the individual may submit a second written request. This second request is to be assessed as if it were a right to information application under the Right to Information Act.325

On its face, the initial written request process under the Personal Information Protection Act provides a more informal, cost-free channel to access personal information. However, in practice, victim-survivors of child sexual abuse have experienced additional delays because this process defaulted to a two-step process when their initial request was refused or they received no response. Consequently, their second request was treated as a formal right to information application. In consultation, the Ombudsman stated he had encouraged people to use the Right to Information Act process rather than the Personal Information Protection Act process.326

The reasons for the refusal or lack of response to the first written request under the Personal Information Protection Act may be because of the nature of the discretion granted to the ‘personal information custodian’. The Personal Information Protection Act provides that the personal information custodian ‘may’ provide access to the personal information.327 In contrast, other jurisdictions state the holder of the information ‘must’ provide access, subject to exemptions.328

Another reason for refusal or delay under both the Personal Information Protection Act and Right to Information Act is the approach to protection of personal information concerning another person. Under the Right to Information Act, information is exempt if it would involve disclosing personal information of a person other than the applicant.329 Other jurisdictions include similar exemptions.330 Some jurisdictions include a ‘reasonableness’ test in the assessment. For example, in Victoria, information is exempt if ‘providing access would have an unreasonable impact on the privacy of other individuals’.331

Under the Right to Information Act, if disclosing the information about another person is likely to be of concern to that person, the public authority must seek that person’s views on whether the information should be released.332 If, following this process, the public authority decides to release the information, they must notify the other person and they can apply for a review of that decision.333 Set timeframes regulate providing notices and applications for review, which must elapse before the information can be released.334

In child sexual abuse matters, information requested by a victim-survivor or their representative frequently includes other people’s personal information. For example, records of investigations are likely to include statements by other witnesses or the alleged perpetrator. In such cases, the public authority must seek the other person’s views before making a final determination on whether to release the information.

In evidence, legal representatives of victim-survivors highlighted their experiences of extensive delays and redactions associated with requests to access information that captures information about other people. For example, Mr Strange noted documents the Tasmanian Government provided were often heavily redacted, particularly when the information related to third parties.335 He commented the Tasmanian Government used the third party provisions ‘in a very black and white way to make those redactions’.336

At our hearings, Sam Leishman described his attempts to access information from the Department of Education and the way it made him feel.337

Case example: Barriers to accessing personal information

Sam Leishman is a victim-survivor of child sexual abuse perpetrated by teacher Darrel Harington, which occurred when Mr Leishman was a school student. We discuss Mr Leishman’s experience in detail in Chapter 5. Here, we focus on his experience of seeking information from the then Department of Education.

In 2015, Mr Harington was convicted of offences against Mr Leishman and sentenced to gaol. Following the conviction, Mr Leishman requested information related to the offending from the Department of Education. The Department told Mr Leishman to make a formal right to information application. In response to the application, Mr Leishman recalls being told that because most of the information concerned Mr Harington, Mr Harington’s permission would be needed to release it.338 At that point, Mr Leishman described feeling ‘completely stymied by the process’ and unwilling to go down a ‘rabbit hole’ of asking permission from the man who had committed offences against him.339

At our hearings, Mr Leishman described the Department’s lack of support or action throughout the process, which ultimately spanned a period of two years. He said:

… I was given no answers to anything. I felt that … I was just going to be made to jump through hoops and things were just going to be made more and more difficult for me. … I thought, what is it, what is it? There must be something that they do have to tell me and they don’t want to tell me: I don’t know.340

The process set out in the Right to Information Act requires the public authority to seek the views of the other party before releasing information concerning them, which occurred in this case. Secretary Bullard recognised that: ‘Mr Leishman felt uncomfortable with that, and who wouldn’t?’341 He stated the perpetrator refused release of the information, ‘but in the public interest the decision maker agreed that some of the information should proceed’.342 He concluded that: ‘to me, [for] a third party like Mr Leishman sitting there thinking he has a right to know [it] looks like a lack of accountability and transparency, albeit it is operating within a legislative framework, whether or not that be right or fit for purpose for these kinds of situations’.343 While some information was ultimately released, Mr Leishman concluded: ‘I still don’t feel that everything’s been laid on the table’.344

It is clearly necessary to balance the competing right of access to information with other parties’ right to privacy, while ensuring a procedurally fair process. However, in practice, this process can be traumatic for victim-survivors. Victim-survivors may feel a perpetrator has control over what information they can access, or government employees are protecting their own or their colleagues’ personal interests over the interests of victim-survivors. The additional steps required can also lead to significant delays.

1. Lengthy delays

The Right to Information Act and Personal Information Protection Act set timeframes for responses to requests for information. Under the Right to Information Act, the applicant must be notified of a decision on a right to information application as soon as practicable, and no later than 20 working days after the application has been accepted.345 This timeframe can be extended for a further 20 working days if the information request includes personal information about another person or relates to the business affairs of another party who should be consulted before releasing information.346 The timeframe can also be extended by agreement with the applicant or by the Ombudsman.347 Under the Personal Information Protection Act, if a request to access personal information is refused or no response is received within 20 days, the applicant can make a further written request, which is treated as a right
to information application, as outlined previously.348

Despite these statutory timeframes, we heard evidence of responses to requests for information being delayed and subject to multiple extensions. For example, Ms Sdrinis noted that the right to information process had deteriorated since 2018. She commented:

Initially, unlike the Department of Human Services and Corrections, the Department of Education dealt with [Right to Information] requests relatively promptly. More recently time lines have blown out … to about 12 months and I anticipate that the time lines will blow out further as we are regularly receiving requests for extensions of time…349

Similarly, Mr Strange commented while delays were an issue nationwide, they are ‘particularly pronounced in Tasmania. Record requests in Tasmania have taken as long as two years, and generally can take up to 18 months’.350 Ms Sdrinis agreed the situation was worse in Tasmania compared to other states.351

We also heard examples of extreme delays for some individuals seeking access to records. For example, the submission from Care Leavers Australasia Network (‘CLAN’) noted one CLAN member waited four years to receive his state ward records from the Tasmanian Government, with many of the records redacted and labelled out of scope.352

Rachel provided information relating to repeated delays and requests for extensions from the Teachers Registration Board in response to her right to information application.353 Rachel submitted a right to information application to the Teachers Registration Board in October 2021. Over the next 12 months, Rachel repeatedly contacted the Board seeking a response.

When questioned about Rachel’s experience, Ann Moxham, Registrar, Teachers Registration Board, pointed to a lack of staffing (exacerbated by the absence of a key staff member on extended leave) impeding the Board’s capacity to process requests
in a timely way.354

Ms Bianchi’s right to information request in relation to Mr Griffin, outlined previously, was also subject to significant delays. Emily Baker, a journalist, also indicated Ms Bianchi’s experience was consistent with her experience of submitting right to information applications, stating: ‘Oh, it’s completely consistent. It seems, frankly, a waste of time, and it doesn’t mean we don’t still file them, we do, but it is absolutely an issue of last resort—you’re gearing up for a fight’.355 She described being ‘fobbed around, rebuffed, it goes away’.356 However, Ms Baker noted she thought this approach was changing.357

The systemic nature of individuals’ experiences of delays is confirmed by the comparative analysis of access to information schemes across Australia for the period 2020–21, noted above. It found more than a quarter of decisions on requests for information in Tasmania did not meet the statutory timeframe.358 Of the jurisdictions surveyed, only South Australia had a lower rate of response to requests completed on time.359

Ombudsman Tasmania’s Annual Report 2021–22 also expresses concern regarding delays in Tasmanian Government responses to access to information applications, particularly by the Department of Health and the former Department of Communities. Between them, right to information applications to these departments accounted for 26 per cent of all external review requests in 2021–22.360 The Ombudsman stated:

While I acknowledge that both departments have advised of a significant increase in the volume of assessed disclosure applications, there are improvements that could be achieved by both departments in relation to issuing of decisions within the statutory timeframe, improving communication with applicants regarding delays and ensuring decisions are of high quality. Such improvements might reduce the volume of external review requests relating to these departments.361

1. Under-resourced and mixed assessment processes

Currently, requests for information (either for personal information under the Personal Information Protection Act or right to information applications under the Right to Information Act) are sent to and processed by the public authority holding the relevant information. Representatives of Tasmanian Government departments and agencies described different processes and levels of resourcing dedicated to managing these requests.362

Generally, the relevant business unit within the department manages requests for personal information under the Personal Information Protection Act. There is no centralised register recording requests and responses. In contrast, right to information applications are managed by designated staff within each department, such as the legal services area or Office of the Secretary, and centralised departmental records are maintained. For example, in the Department of Education, seven legally trained staff were responsible for assessing right to information requests (in addition to other responsibilities).363 Several senior executives in the Department (separate to the legal services area), have delegated responsibility to conduct internal reviews. In the words of Secretary Bullard, he remains at ‘arms-length’ from the process.364 In contrast, the Office of the Secretary in the Department of Justice manages responses to right to information applications.365 Similarly, the Legal Services Unit in the Office of the Secretary of the Department of Health manages right to information applications.366

Departmental secretaries and other Tasmanian Government Heads of Agencies reported increases in the number of right to information requests over recent years.367 For most, the increase had an adverse impact on their capacity to respond within the statutory timeframes. For example, the average number of days taken by the Department of Health to respond to a right to information application had increased significantly: from 23 days in 2019–20 to 59 days in 2021–22.368 Similarly, the Department of Education confirmed the increase in right to information applications relating to historical sexual abuse has ‘impacted the substantive response timeframes and the Department’s ability to consistently meet the statutory timeframe of 20 business days’.369 Commenting on the Teachers Registration Board’s delayed response to Rachel’s right to information application outlined above, Ms Moxham stated:

… we find it extremely difficult to meet the timelines that are in the Act because we have such a small workforce … with the huge volume of historical matters that have now descended upon us that makes it even more problematic to sort out those sorts of issues for our office.370

In contrast, Secretary Webster gave evidence that while the number of right to information applications from ‘plaintiff law firms’ had increased in recent years, the average number of days to respond to an application from either a ‘plaintiff law firm’ or relating to a person’s correctional records potentially relating to child sexual abuse had decreased from 21 days in 2018–19 to 13 days in 2020–21.371

In addition to delays, victim-survivors and their representatives expressed concerns about inconsistent approaches and inadequate search practices, potentially resulting in information not being identified or incorrectly assessed. As noted above, Ms Sdrinis was not satisfied that responses to right to information applications provided all relevant documents. She said it was sometimes possible to compare documents provided through the right to information process with records provided at a later date through discovery processes.372

Similarly, in the Ombudsman’s review of Ms Bianchi’s right to information application,
he identified several relevant documents that had been omitted from the Department
of Health’s response.

The evidence before us suggests that, for most government departments and agencies our Commission of Inquiry examined, current resourcing levels and procedures to process right to information applications are not adequate to meet statutory timeframes, particularly in the face of increasing demand. Nor do they ensure full disclosure of all relevant documents as required by the legislative scheme.

1. Fees and waivers

In Tasmania, the fee for a right to information application under the Right to Information Act is currently $44.50.373 There is no fee for requests for personal information under the Personal Information Protection Act. For information concerning child sexual abuse, some Tasmanian Government authorities exercise their discretion to waive the fee under the Right to Information Act. To do so requires the applicant to seek a waiver on one of the grounds set out in the Act, which include if the applicant is ‘impecunious’ (that is, does not have any or much money) or if it is sought for ‘a purpose of general public interest or benefit’.374 Requests concerning child sexual abuse may fall into one of these categories. The approach to fees is similar to that in other jurisdictions.375

Neither the Right to Information Act nor the Ombudsman’s guidelines on fee waivers specifically refer to matters concerning child sexual abuse. Further, the decision to waive fees is discretionary.376 Consequently, the approach of government authorities and agencies to fee waivers for victim-survivors of child sexual abuse varies.
For example, the Department of Education’s practice was to waive the fee for applicants who identify they are seeking records relating to child sexual abuse. The fee is waived based on public interest.377 In contrast, representatives of victim-survivors spoke of the cost burden of these fees. They noted civil litigation may result in multiple requests from government authorities for revised right to information applications, which incur a fee each time.378 Imposing a fee, even if it can be waived, can be an added barrier to victim-survivors seeking compensation and redress, which can reinforce their sense of being obstructed and not supported. If fee waivers are not granted in these situations, they should be.

1. Limited review and enforcement mechanisms

We heard about two issues of concern regarding the external review process for right
to information requests. First, the process is lengthy because of the:

• level of scrutiny required
• resources involved in processing external review applications
• high number of applications for external review.

Delays in reviews add to the delay in an applicant receiving the information they request, or having a final decision about their right to the information. The Ombudsman’s Annual Report 2021–22 highlighted the backlog of external review applications they have been trying to clear since 2019.379 The report noted:

Unfortunately, though modest inroads have been achieved, due to a range of issues (most particularly high staff turnover, unexpected leave and major difficulty in recruiting, but also a high number of new external review requests requiring formal decisions), this has not occurred and the backlog remains.380

To address the backlog, Ombudsman Tasmania has dedicated additional resources and sought to recruit new staff to manage the external review process.381 The Ombudsman has also updated its priority policy and approved a greater number of external review applications for expedited processing.382 Prioritised requests include government responses to child sexual abuse in institutional settings.383 As a consequence of focusing on the backlog, the Ombudsman could not offer formal training to public authorities in 2021–22.384 Suspending training concerns us because regular training is likely to increase and maintain the skills and capabilities of staff managing right to information applications. In turn, this will reduce the need for victim-survivors to make applications for external review.

Despite these efforts, it appears the backlog is worsening. In February 2023, it was reported in the media that the backlog of active external right to information review requests had increased from 101 at 30 June 2022 to 129 at 7 February 2023.385 It was also reported that some applicants for external review had been waiting for more than three years for the external review process to begin.386 The Ombudsman has cited staffing and recruitment issues and a high number of external review requests
as the reason for the continuing backlog.387

The second issue of concern regarding the external right to information review process is that the Ombudsman’s decision is not enforceable.388 While the Ombudsman is empowered to give directions (for example, to release documents), the public authority is not obliged to comply with these directions. The examples concerning Rachel and Ms Bianchi’s right to information applications show a level of noncompliance, or at least delayed compliance, by the relevant public authorities in response to the Ombudsman’s directions.

In a consultation, the Ombudsman proposed the Tasmanian Civil and Administrative Tribunal be given a right of review.389 An order of the Tribunal would be enforceable. Other jurisdictions such as Victoria and New South Wales provide for review
by a tribunal.390

The extensive delays associated with external reviews and the lack of enforceability of the Ombudsman’s directions may contribute to public authorities’ poor compliance with their obligations under the Personal Information Protection Act and Right to Information Act. Poor accountability and enforcement mechanisms may limit the incentive for public authorities to comply with their obligations.

1. Impact of the access to information scheme on victim-survivors

A persistent theme in statements, submissions and hearings was the significant adverse impact of the access to information scheme and its implementation on victim-survivors of institutional child sexual abuse. As highlighted in the examples discussed previously, victim-survivors described feeling obstructed, not prioritised and, ultimately, retraumatised by a process that often required them to repeatedly tell their story and justify why they should be given access to records concerning their experiences of abuse.

Representatives of victim-survivors confirmed the traumatic impact of the process. Mr Strange commented that extensive redactions ‘can be re-traumatising for a victim-survivor. … they can leave the victim in the dark about parts of their own history and abuse’.391 He stated: ‘the applicant’s trauma is exacerbated by such decisions (about redaction) being made by the same institution perceived as responsible for the victim-survivor’s child abuse’.392 Referring to victim-survivors taken into state care as children, Mr Strange stated that:

… to have significant redactions that take out, for instance, the name of those family members, it is viewed as perpetuating the abuse that happened to them as children and the negative experiences of being placed in an institution; they see that as re-traumatising, that it took them so long to try and reconnect with their family and here is the government or the state trying to keep information from them about their family again….393

Mr Strange also confirmed that delays can be retraumatising for victim-survivors who ‘have difficulty in progressing their options for justice due to inability to access records made about them in a timely way’.394 Ultimately, according to Ms Sdrinis, these delays
can cause her clients to lose motivation to pursue their claims.395 Representatives of victim-survivors called for the Government to adopt trauma-informed practices
in responding to right to information applications, supported by training for all decision makers.396

In evidence, several departmental secretaries acknowledged they needed to adopt a trauma-informed response when dealing with matters involving child sexual abuse. Responding to questions about the Department of Health’s investigation of allegations of child sexual abuse at Launceston General Hospital, Secretary Morgan-Wicks stated: ‘It is apparent that trauma-informed practice is not embedded practice and may be a new way of working for many Departmental Officials. This must be a priority moving forward so that any communication and interactions with victim-survivors is applied to “do no harm”’.397 Several departments have started providing training in trauma-informed practice to their staff, particularly in their legal services teams.398

1. Our observations

The concerns outlined above, and the traumatic impact on victim-survivors, confirm the current framework for providing victim-survivors with access to information does not meet the principle the National Royal Commission recommended that: ‘Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent’.399 Cultural, legislative, procedural and resourcing barriers have combined to impede individuals’ ability to exercise their rights to access information in a meaningful and supportive way.

On 24 May 2022, Premier Rockliff committed to a number of actions to keep children safer, including:

Improve the Right to Information process, including providing training across the State Service to ensure more consistent responses.400

The Premier’s commitment is an important acknowledgement of the need for reform. However, the extent of progress towards that reform is unclear, with progress indicated to be ‘underway’, a discussion paper circulated, and an expected delivery date of July 2024.401

It is imperative the Government progress reforms urgently to overcome the current delays and lack of clarity that impedes victim-survivors’ access to information in the current system. We recommend the Tasmanian Government review and reform the access to information scheme in Tasmania, with a particular focus on child sexual abuse in institutional contexts. Reforms should focus on the legislative scheme established by the Right to Information Act and Personal Information Protection Act. Reforms should also focus on their implementation in practice, to ensure it is as accessible, efficient, transparent and trauma informed as possible. In particular, the review should consider:

• including an explicit presumption in favour of disclosure in the Right to Information Act and Personal Information Protection Act
• embedding the public interest test in specific exemptions in the Right to Information Act, tailored to those exemptions
• streamlining the interface between the Right to Information Act and Personal Information Protection Act to overcome what has become a two-step process by default to request personal information
• requiring that a personal information custodian under the Personal Information Protection Act ‘must provide’ rather than ‘may provide’ personal information upon request from the individual who is the subject of that information (subject to exemptions)
• including a ‘reasonableness’ test in the Right to Information Act as part of the assessment of whether to withhold personal information relating to a person or third party other than the person making the request for information, which would allow for competing factors to be weighed when assessing whether to disclose information, including on review
• strengthening and streamlining internal and external review processes in the Right to Information Act and Personal Information Protection Act, with a focus on options to enforce decisions of the Ombudsman and review by the Tasmanian Civil and Administrative Tribunal
• providing an automatic fee waiver for Right to Information Act right to information applications which relate to child sexual abuse.

We recognise legislative reform can take time. To address the impact of the current access to information scheme on victim-survivors in the short term, the Tasmanian Government should allocate additional resources to:

• Tasmanian Government departments and agencies to enable them to process requests for information under the Right to Information Act and Personal Information Protection Act within statutory timeframes
• Ombudsman Tasmania to speed up external reviews of right to information decisions.

We also understand the Tasmanian Government has investigated the roll out of trauma-informed training across the State Service. It has partnered with Lifeline Tasmania through the Tasmanian Training Consortium to pilot trauma-informed training sessions for leaders. Feedback from these pilot sessions has informed the development of courses on trauma, trauma-informed practice and trauma-informed organisations for:

• State Service employees
• those involved in State Service Code of Conduct investigations
• State Service leaders.402

We recommend, in Chapter 19, the Government develops a whole of government approach to professional development in responding to trauma within government and government funded services that provide services to children and young people, and statutory bodies who have contact which child sexual abuse survivors.

We also recommend the Government considers centralising how they access information requests within a specialist unit or department. The evidence above shows varying levels of expertise, resourcing, responsiveness and resourcing across government departments and agencies. In our view, centralising the management of access to information processes would:

• promote a culture committed to transparency with a presumption in favour of disclosure
• prioritise requests for information as its core business, rather than as part
  of a larger role competing with other demands and resourcing
• minimise potential conflicts of interest which may arise within units which operate in the same department or agency which is subject to the access to information application
• ensure deeper understanding and consistent application of legislative obligations, particularly in the application of exemptions
• develop deeper expertise in Tasmanian Government record-keeping systems and obligations helping to identify relevant records
• promote trauma-informed practice through dedicated staff training specific to access to information applications
• enable more transparent monitoring of and reporting on the access to information scheme, with a centralised source of data.

To implement centralised management of access to information processes, departments and other government agencies should establish access to information liaison officers with adequate resourcing to ensure timely and comprehensive responses to requests for information.

Recommendation 17.8

1. The Tasmanian Government should review and reform the operation of the Right to Information Act 2009 and the Personal Information Protection Act 2004 to ensure victim-survivors of child sexual abuse in institutional contexts can obtain information relating to that abuse. This review should focus on what needs to change to ensure:
   1. people’s rights to obtain information are observed in practice
   2. this access is as simple, efficient, transparent and trauma-informed as possible.
2. The review should consider reforms to the Right to Information Act 2009 and the Personal Information Protection Act 2004 to:
   1. include an explicit presumption in favour of disclosure in the Right to Information Act 2009 and Personal Information Protection Act 2004
   2. embed the public interest test in specific exemptions in the Right to Information Act 2009, tailored to those exemptions
   3. streamline the interface between the Right to Information Act 2009 and Personal Information Protection Act 2004 to overcome what has, by default, become a two-step process to obtain personal information
   4. require that a personal information custodian under the Personal Information Protection Act 2004 ‘must provide’ rather than ‘may provide’ personal information upon request from an individual who is the subject of that information, subject to any appropriate exemptions to that requirement
   5. include a ‘reasonableness’ test in the Right to Information Act 2009 as part of the assessment of whether to withhold personal information relating to a person or third party other than the person making the request for information
   6. strengthen and streamline internal and external review processes in the Right to Information Act 2009 and Personal Information Protection Act 2004, with a focus on options to enforce decisions of the Ombudsman and to apply for review by the Tasmanian Civil and Administrative Tribunal
   7. provide an automatic fee waiver for right to information applications relating to child sexual abuse made under the Right to Information Act 2009 by victim-survivors or a person acting on their behalf.
3. The Tasmanian Government should consider centralising management of access to information processes in a specialist unit or department, supported by access to information liaison officers located in government departments and agencies.
4. The Tasmanian Government should provide funding to government departments, agencies and the Ombudsman, as the case may be, to:
   1. ensure access to information requests are processed within statutory timeframes
   2. speed up external review of right to information decisions
   3. provide trauma-informed training to the Tasmanian State Service in relation to victim-survivor access to information (Recommendation 19.2).

1. Conclusion

This chapter has examined the National Redress Scheme, civil litigation, the provision of apologies to victim-survivors and supports (including financial assistance) available to victim-survivors of institutional child sexual abuse who are also victims of crime. It has also explored access to information and records. While many of the National Royal Commission’s recommendations relating to these areas have been adopted in Tasmania, there is still a need for further reform to improve the operation of mechanisms that seek to support and compensate victim-survivors of institutional child sexual abuse. It is essential that victim-survivors can:

• access redress or make civil claims
• access ongoing support
• where appropriate, have avenues available to receive a direct personal apology
• be given information and records that may provide much-needed clarification about the circumstances of their abuse and, potentially, support a National Redress Scheme or civil litigation claim.

These are the goals of the recommendations throughout this chapter.