Tuesday, 10 September 2019

 Mr O’DONOHUE (Eastern Victoria) (13:49): I am pleased to rise on behalf of the opposition and indicate, as we did in the Legislative Assembly, that the opposition will support the Children Legislation Amendment Bill 2019. This is indeed a very important piece of legislation, an omnibus piece of legislation that does a number of things, as it says in the bill, with the principal objective of protecting children and improving child protection and justice outcomes for child abuse victims.

Before I get to the bill itself in detail or go through the components that make up, as I say, what is an omnibus bill, I just want to talk briefly about a book I recently read called Blood on the Rosary by Sue Smethurst and Margaret Harrod. I read the book initially after seeing some reviews of it and because I know Sue Smethurst as a constituent, a resident of Gippsland and someone who is involved in the tourism industry and has a long connection with Gippsland. I have known Sue now for some time. The book is a remarkable account of a most courageous, strong and persistent woman, Margaret Harrod, who was a nun for a period and whose brother was a Salesian priest, and the horrific experiences that she suffered and the courage she had to call out the child sex abuse committed by her brother—her twin brother. One can only imagine the courage that took.

Her book describes her situation but a situation that tragically we have heard of on so many other occasions, not just from the church but from a range of religious organisations and a range of non-religious organisations, about how abuse, once identified or brought to the attention of senior officials, was either dismissed or dealt with in a cursory way. The pattern of behaviour that led to the serious offending was not addressed and the perpetrator was able, after a period, to continue committing these horrific crimes.

I want to pay tribute to Ms Harrod, who I do not know, for her courage and for telling her story, which I know has cost her, as she describes, personally, with family relationships and the like. She describes in her book how the turning point for her came in 2004 when a former student alleged that he had been sexually assaulted by her brother in 1993. As I say, the book goes on to detail the challenges that she encountered in trying to get the church to confront these allegations and to put a stop to that offending.

It is so tragic and so wrong that with an institution such as the Catholic Church, which has done so much good in so many different ways—you just have to look literally a few hundred metres up the road from here to the amazing St Vincent’s Hospital to see an example of the remarkable good that the church has done in the community for so long—it has taken stories like this, stories such as those told at the Royal Commission into Institutional Responses to Child Sexual Abuse and indeed stories told through the Betrayal of Trust inquiry that this Parliament commissioned to really get to the bottom of the horrific offending that was taking place, that was not addressed and that led to so much pain and suffering. One would say that if the institutions where this abuse took place had actually confronted it, so many lives would have been saved, so much grief and pain and trauma would not have taken place. Again, I just want to congratulate Sue Smethurst and particularly Margaret Harrod for this remarkable book, which I think gives a very tragic example of one of the reasons we are here today debating this legislation.

Also by way of introduction I want to reflect on the Betrayal of Trust inquiry and the work it did. When Premier Baillieu tasked a parliamentary committee to undertake that investigation there was scepticism, including from the now Premier, Daniel Andrews, about the capacity of a parliamentary committee to conduct such an enormous task and such an important task. But I think what that inquiry—chaired by Ms Crozier of this place with the deputy chair, Mr McGuire, the member for Broadmeadows in the other place—demonstrated is that the Parliament has, when it works across party lines and in the interests of the community, almost a unique capacity to get to the bottom of issues with the powers it has and also the authority that it commands when working in a bipartisan or multipartisan way. It is now a historical fact that the Betrayal of Trust inquiry led to significant legislative change—started by the Napthine government and then continued by the Andrews government—to better protect children and to address the horrific offending that had taken place in far too many places. We know that following the Betrayal of Trustinquiry the royal commission was called, and that as well has led to some changes. Indeed some of the recommendations from the royal commission are relevant to the bill today.

With that introduction, let me move to the bill itself. The purpose of the bill is to improve child protection and justice outcomes for child abuse victims by requiring persons in religious ministries to make mandatory reports of child abuse and harm, removing the religious professional privilege exemption in court proceedings relating to child abuse or the failure to make a mandatory report, limiting the right of serious offenders and alleged serious offenders to appeal to VCAT for a working with children check and amending the statute of limitations for historical child abuse judgements and settlements as well as some other matters.

The bill amends section 182 of the Children, Youth and Families Act 2005 to require persons in religious ministry through the course of their work to make mandatory reports to the Secretary of the Department of Health and Human Services if they believe a child needs protection from abuse or harm. These changes are consistent with the Betrayal of Trust inquiry and the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse 2017. Indeed recommendation 7.1 of the royal commission is:

State and territory governments that do not have a mandatory reporter guide should introduce one and require its use by mandatory reporters.

Recommendation 7.2 is:

Institutions and state and territory governments should provide mandatory reporters with access to experts who can provide timely advice …

Recommendations 7.3 and 7.4 go on to also talk about the mandatory reporting recommendations. The change will bring religious ministries in Victoria into the same reporting requirements as other professionals who deal with children, including teachers, doctors, nurses and police, and it will bring Victoria in line with South Australia and the Northern Territory, where religious ministers are already mandatory reporters. I note that Tasmania and Western Australia have flagged legislative change in this space as well.

The bill will amend the Crimes Act 1958, the Evidence Act 2008 and the Children, Youth and Families Act to provide that the exemption for religious confessions will no longer apply for the failure to disclose an offence, whereby adults must report information about sexual abuse of a child under 16 to police. The religious confession privilege will no longer apply in proceedings relating to failure to make a mandatory report or disclose information relating to a sexual offence involving children, and mandatory reporters are not exempt from reporting requirements under the religious confession privilege. It is worth noting, on the confessional seal or the religious confession privilege, that that mandatory reporting will only apply to child sex offences and the privilege will continue to apply in respect of all other offenders, so it is a very narrow class of offending which requires that mandatory reporting. Changes to the application of the religious confession privilege, as I said, were considered in the Betrayal of Trust inquiry and the royal commission.

There have been some concerns. As I said, the opposition supports the bill, but I just want to run through some of the areas of concern that have been raised with my colleague Mr Wakeling in the other place and me and other members of the opposition. Some say that the change to religious confession privilege will force people in religious ministries to break the seal of confession in regard to a proceeding brought before the courts and that this is an attack on religious freedom.

Archbishop Comensoli, the Archbishop of Melbourne, has spoken at length about this both on Melbourne radio and in an opinion piece in the Melbourne Catholic magazine, where he outlines the concerns that he has about this legislation. I will quote from his piece dated 17 August, and I note, notwithstanding his concern about this legislation, his preparedness to acknowledge the issues that lead us to have this debate today and have this bill before us. He said:

It grieves me daily to know that young, and now adult lives, have been devastated and destroyed through multiple failures by the Catholic Church. We failed to hear, to believe, and to act on credible information regarding child sexual abuse. There is no stepping aside from this fact …

That very frank and up-front statement, I hope, reflects the changes that the church has made and the steps it has taken to protect young people going forward. That is a concern that has been raised by the archbishop.

I also note that several other religious leaders actually support these changes. Father Kevin Dillon would be well-known to many Melbourne and Geelong residents for his previous regular opinion pieces in the Geelong Advertiser, his appearances from time to time on 3AW and other media, his preparedness to speak openly about these issues and his support for this change. I also note that the moderator of the Uniting Church synod of Victoria and Tasmania has spoken out in support of making it mandatory for ministers of religion to report child abuse. That was reported in the publication Crosslight from the Uniting Church. I think it is worth noting that opposition to these provisions is not universal from faith leaders and that indeed many faith leaders support them.

I think it is worth noting for the record that the Catholic community were advised that they would be given a chance to look at the legislation before it was tabled and that that did not actually occur—the bill was presented to the other place and the Catholic community were not given the opportunity to have input into it or consultation on it prior to it entering this place.

It has been put to me by some members of the Victorian Bar that elements of the bill may be unconstitutional, but I am yet to see any evidence to support that assertion. I note that, as I said, provisions such as these have been implemented in other Australian jurisdictions.

Moving on from that issue, I wish to now talk about the working with children check changes that the bill contemplates. There have been some very concerning examples of category 1 offenders—that is, sex offenders, murderers, the most serious offenders—making applications to VCAT on appeal to have decisions reviewed where they have not been provided with working with children checks, which obviously are a prerequisite for a whole range of volunteer and work activities that involve working with children. The Herald Sun on 14 August gave some examples of these category 1 offenders who have been given working with children checks. They refer to:

A PAEDOPHILE who met his 13-year-old victim while working as a clown at a childcare centre … was granted a permit to allow him to work in patient transport;

A MAN training in the disability care sector who molested a 14-year-old boy in a toilet;

A FOOTY umpire with a history of sex offending … whose appeal was supported …

A JUNIOR basketball coach who raped a woman outside a nightclub in a random attack.

This bill seeks to remove that appeal right to VCAT for category 1 offenders. It is something which the Liberal-Nationals support very strongly. Indeed last August—on 13 August 2018—Matthew Guy and John Pesutto, the then Leader of the Opposition and the then shadow Attorney-General, released a policy to do just that. I quote from the media release of that day, which says:

A MATTHEW Guy Government will strengthen the law to stop dangerous sex offenders from obtaining Working with Children Checks (WWCCs).

Currently, a loophole exists that has allowed violent sex offenders to obtain a WWCC.

The Liberal Nationals believe this poses an unacceptable risk to the safety of our children and must be fixed.

So we welcome this change. I do note, however, that support for this is not universal. The Victorian Bar has expressed its opposition to this element of the bill. I quote from the president of the Victorian Bar, Dr Matthew Collins, AM, QC, who wrote to me on 28 August following my request for feedback on the bill. He said:

In the Bar’s view, the proposed amendments to the Working with Children Act 2005, in particular those that seek to restrict appeal rights, are objectionable.

The experience of the Bar is that the current system operates effectively. It allows for each applicant to be considered and scrutinised on a case by case basis, and a careful examination of the diversity of individual circumstances and the variety of instances that may arise to take place. As a result, in appropriate cases, the working with children check … may be granted, upon review, without compromising the safety of children.

Dr Collins went on to provide some VCAT examples of where appeals have been granted. So whilst the opposition respectfully disagrees with the Victorian Bar on that point, I perhaps note the concern they are making about administrative decisions and the opportunity for review. It is something as a principle that we support, but in this narrow set of circumstances that the bill contemplates we believe that principle should be overridden.

The bill also proposes to set aside deeds of settlement in certain circumstances. The amendments cast aside compensation agreements, including deeds of release, whilst setting a very serious precedent in terms of overriding case law, including contract law and longstanding legal convention. But again the circumstances in which these amendments come about is often where victims of very serious abuse have signed deeds of settlement that waive their rights for future compensation, often without legal advice, often in a state where they do not fully appreciate their rights and where perhaps they are traumatised by the abuse they have suffered and they have, in very many circumstances, settled for very small, modest monetary compensation or indeed for as little as some counselling services—noting the enormous impact of the types of abuse that people have suffered can often lead to dramatic loss of income, long-term impacts on their lives and significant costs with regard to ongoing health expenses and the like. So we believe it is appropriate that in this circumstance the provisions in the bill include setting aside previous deeds. However, I do note the concern expressed by the Law Institute of Victoria, and I flagged with the minister earlier that I will ask some questions about this issue in committee.

This bill mirrors legislation in Queensland and Western Australia that has established a just and reasonable test for a court in determining whether to set aside a previous deed of release or settlement. The words ‘just and reasonable’ are indeed very vague and open-ended, and sometimes it is appropriate for the Parliament to give the courts that sort of discretion and ability to interpret cases on a case-by-case basis. That sort of general discretion is a good thing. However, given that the class of people we are talking about here are victims of historical abuse who have probably been through extensive processes already to achieve modest monetary settlements, it would appear to me that there is benefit in a more precise and clearer meaning to limit the prospect of future litigation and long-running disputes about exactly what ‘just and reasonable’ means in a very complex set of fact circumstances.

The law institute’s president, Stuart Webb, said, again in correspondence to me in response to my request for their input on the bill:

Two decisions allude to the need for clarification of “just and reasonable” as a requirement for the court’s exercise of discretion: “TRG” and “JAS”, under Queensland legislation and Western Australian legislation respectively. Common to both acts are the words “just and reasonable”; yet in neither act are the words defined nor are criteria listed which a judge would be required to take into account.

In ‘TRG’, the Judge read down the provision and ‘purpose’ of the legislation, in deciding that the deed should not be set aside. This decision potentially makes any like provision unworkable in all but the most extreme cases … where arguably deeds could already be set aside at common law without the necessity of specific legislation.

The Court found that the limitation period did not play a specific role in the applicant’s settlement …

It is concerning that no doubt there will be victims of abuse who are looking to the passage of this legislation as an opportunity to receive appropriate compensation, but that I think may well be a matter for a court at another time in applying a test for what is just and reasonable.

I want to thank members of the law institute who sat down with me a month or so ago, those who act for applicants and respondents in these matters. There were many common themes out of that meeting. One of those was clarity and certainty, both for the institutions that will need to find resources as a result of these changes and, more importantly, for applicants, many of whom are now aged and are looking for a speedy resolution to these issues. The term ‘just and reasonable’ may unfortunately not give that speedy resolution.

I also just wish to flag that there is correspondence I have received concerning what the bill will do for victims who had signed deeds between 2015 and 2018. I have received representations from some lawyers who practise in this area and are concerned about people who within that time period may have signed up for modest amounts of compensation but will not be able to have their deeds set aside as a result of the passage of this legislation. So that is perhaps something that I will explore with the minister during the committee stage as well. As I say, I have received representations about this from practitioners as late as this morning.

The bill also does some other things. In the few minutes I have left—the bill extends the capacity of Aboriginal organisations that deal with children to include in family groupings non-Aboriginal children, and again I have some questions about the oversight of those organisations which I will ask the minister in committee.

In summary, as I say, the opposition supports this legislation. There are very important issues being addressed in this bill. Whilst we respect those who have issues with it or who are opposed to it or elements of it, ultimately for us the protection of children is the top priority, and when there is a choice to be made, the choice for us will be on the side of legislating to increase protections for children in Victoria. That particularly must be the case in light of some of the examples that the community is well aware of and indeed that I have become recently aware of as a result of, as I mentioned, the courage of Margaret Harrod and Sue Smethurst in telling Ms Harrod’s remarkable personal story and her courage in confronting her twin brother. With those words the opposition wishes the bill a speedy passage.

 Ms TERPSTRA (Eastern Metropolitan) (14:18): I rise to make a contribution today in regard to the Children Legislation Amendment Bill 2019, and I might just commence my contribution by saying that I am pleased to hear that the opposition is supporting this bill, because there can be no more important issue to show bipartisanship on than child protection. These changes are critically important to ensuring that we strengthen our child protection laws here in Victoria. In terms of what this bill will do, it will require people in religious ministry to join other mandatory reporters such as police officers, registered medical practitioners, registered teachers, school principals, out-of-home carers and psychologists to report a reasonable belief of child physical or sexual abuse to child protection authorities without exemption for religious confessions. Those provisions are contained in the Children, Youth and Families Act 2005. It will remove a current religious confessions exemption from the offence of failure to disclose sexual abuse of a child under 16 to police, which is currently contained in the Crimes Act 1958, and it will also allow a court to set aside past judgements and previously settled causes of action relating to child abuse which concluded after a limitation period had expired where it is just and reasonable to do so. That is contained in the Limitation of Actions Act 1958. I will return to that last point a bit later on in this contribution.

It is obvious to all of us that child abuse is unacceptable, and child safety is everybody’s responsibility. We want all organisations to have child safety at the forefront of their thinking, and we want to embed that thinking in their organisational culture. Victoria already has legislation and schemes in place which strengthen the protection of children, and these include the child-safe standards and the reportable conduct scheme. Religious organisations are already expected to comply with both of those. But the changes we are bringing to the Parliament today in the Children Legislation Amendment Bill 2019 not only acquit a recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse but also are the logical next step to further strengthen the protection of Victorian children, our most vulnerable Victorians, and it is important that these changes occur.

This bill adds people in religious ministry as mandatory reporters in line with the recommendations of the royal commission, as I said. There is clear evidence that some people in religious ministries have been in a position to take action to protect children and have failed to do so. This is about requiring churches to step up and protect children. Religious leaders will join a long list of mandatory reporters, as I spoke about earlier, and this means there will be a requirement for people in religious ministries to report a reasonable belief of child physical or sexual abuse. What is most important is to shift attitudes, and protecting children must come first.

The bill introduces a legal requirement that people in religious ministry report that belief regarding the physical or sexual abuse of children to child protection, and everyone is expected to comply with the law. No-one is above the law. We know that mandatory reporters can sometimes feel uncertain about their obligations, but we will provide information and implementation support to religious and faith-based groups to assist their understanding of and to support their compliance with the legislation.

Currently when someone makes a disclosure during confession about child sexual and physical abuse the church is not mandated to report it, and there is no penalty and no consequences for failing to disclose it. That is going to change with this legislation. We will be removing that special treatment given to churches. Any adult with information that leads them to form a reasonable belief that another adult has committed a sexual offence against a child under 16 years of age must disclose that information to police as soon as it is practicable to do so. It is already the law for all Victorians. We are just removing the exemption that exists for confessionals, because the protection of children must come first.

There is a maximum penalty of three years imprisonment which will apply to this offence of failure to report, and eight people have been charged with this offence since it commenced in October 2014. We know that this has to happen and that there has been too great a cost to our children, our youngest and most vulnerable Victorians. They need our protection, and that starts now. There has been too much pain and tragedy, dreams shattered, families and relationships torn apart, trauma—and sometimes intergenerational trauma—and lives lost. It cannot continue, and the introduction of these changes to the law will give greater strength to protecting our youngest Victorians.

The second point I mentioned in my introduction was about changes to the Evidence Act 2008. This will close off any loopholes by amending the Evidence Act 2008 as well so that religious confession privilege will not apply in court proceedings for failure to disclose an offence under the Crimes Act 1958 or the offence of failure to make a mandatory report under the Children, Youth and Families Act 2005. That means that a religious minister accused of either offence will not be able to refuse to give evidence by claiming the religious confessions privilege. However, religious ministers accused of any offence will still be able to rely on the privilege against self-incrimination, and the religious confessions privilege will still apply to offences other than the failure to disclose and failure to report offences.

I will come back again to the issue of deeds of release a bit later. I will just talk for the moment about the consultation steps that the state government has taken in regard to consulting religious ministries about the content of this amendment bill. The primary amendments in this bill are clear. There were election commitments and recommendations from the royal commission, so there are no surprises there. I am also aware that the Attorney-General and the Premier have had conversations, and there is also a standing invitation from the Minister for Child Protection to meet. In terms of the exposure draft bill, if more information is required about that, religious ministries could go to the existing legislation on mandatory reporting and they will see their group added to the list in the Children, Youth and Families Act alongside others mentioned above, so it is simply adding an additional group to the list that already appears in the act. For the removal of religious confessions they will simply see the exemption removed from the Crimes Act for the failure to disclose offence, and the other respective acts will remain the same. Religious organisations have had ample opportunity to contribute to the royal commission; the royal commission did indeed present an extensive consultation process. In addition to this, there has been extensive public debate on these issues. The wide canvassing of this bill and views over recent years has informed the preparation of this bill.

Just before I go on to talk about some of the other technical amendments in regard to this bill, just in regard to the deeds of release provision, the bill fulfils the government’s public commitment to remove barriers to civil litigation faced by survivors of institutional child sex abuse. Just by way of background, the key point in regard to this is that it will abolish time limits for child abuse actions. The unjust product of those time limits was survivors accepting inadequate settlements and releasing the institution from future liability by signing deeds of release. In 2015 Victoria became the first jurisdiction in Australia to completely remove the statute of limitations for civil claims founded on child abuse through amendments to the Limitation of Actions Act 1958 of Victoria. Before this reform, time limitations were one of the major barriers faced by victims of child abuse who wished to pursue litigation. However, this reform did not deal with the unjust product of the previous time limits, as I said, which led to survivors accepting inadequate settlements.

Many survivors who released institutions from future liability by signing a deed of release had participated in an institution’s internal redress scheme. The three largest schemes operated in Victoria were the Catholic Church’s Towards Healing scheme, the Archdiocese of Melbourne’s Melbourne Response and the Salvation Army’s internal redress process. The Betrayal of Trust report found that survivors were often not provided with appropriate legal advice before signing a deed of release with religious organisations. The royal commission identified systemic issues in all of these schemes, including a lack of independence of the scheme from the institution, which meant the scheme risked becoming a vehicle to protect the institution from litigation; inconsistently applied criteria for validating claims; inconsistently applied criteria for determining redress amounts and insufficient payments that were well below what a civil claimant could expect if they were successful; insufficiently sincere apologies and involvement of senior officials; the crossing over of investigation and determination roles within those processes; inconsistent and often insufficient encouragement of legal advice and advice about other avenues for redress; and insufficient disciplinary action against the accused abuser. So you can see why these reforms are indeed necessary and critical to ensure that appropriate redress and the protection of children are paramount.

The additional changes brought into effect by this amendment bill, as Mr O’Donohue touched on in his contribution, include the working with children check amendments. The Working with Children Act 2005 will be amended to prevent people charged with and convicted or found guilty of the most serious of offences—which will be called category A offences for the purposes of the act and will include murder and attempted murder, rape and attempted rape, sexual offences committed by an adult against a child, child abuse material offences committed by an adult and bestiality, which is being inserted by this bill—from applying for a working with children check. The royal commission found that a person convicted of certain serious offences will always pose an unacceptable risk to children, and we agree.

I might just perhaps leave my contribution there and leave going through some of the other matters in regard to immunisation, perhaps, for following speakers. But I might just touch on one final point in the remaining time that I have. In terms of Aboriginal children in Aboriginal care, this makes it possible for siblings to be managed together where it is in their best interests to be managed together and the Aboriginal organisation agrees. The bill makes it possible for siblings, where one is Aboriginal and the other is not, to be part of the Aboriginal Children in Aboriginal Care program, ensuring better cultural and emotional outcomes for siblings in care, and there is a simple tidying up of the legislation to match the intent of the legislation there.

As you can see, the amendment bill that is being proposed today for passage through this house has been well thought out. There has been very ample and detailed consultation on the issues that are contained in this amendment bill. It is important to ensure that the protection of our youngest and most vulnerable Victorians, children, is at the forefront of everyone’s minds. It is important that we ensure that through these changes child protection does indeed come first, and we need to make sure that various institutions also understand that child protection does come first and is not negotiable and that nobody is above the law. I commend the bill to the house.

 Mr BOURMAN (Eastern Victoria) (14:32): It gives me no pleasure to stand here today—that we actually need to do something like this. I would have thought it would be second nature. We absolutely need to protect the children. I have been fairly lucky in my life in that up until fairly late in my life I did not know such evil existed. That was when I started in the police force and got to see it up close and personal. But unfortunately with that knowledge you notice other things in life; some things have happened over the term of my life that have been uncomfortably close. Either way, this issue goes to all sorts of organisations, and everyone should report anything that they suspect on reasonable grounds. There is no use in making vexatious complaints.

Obviously I am going to support this bill, but when this bill came up I was asked by a friend of mine, who I shall refer to as KH, to tell his story. Originally I was going to name the perpetrator, but I am not going to because I do not want their name to be on the record, but it will not be hard for those that know to figure this out. KH was abused by someone from 1972 onwards at the Holy Spirit church in East Thornbury. He is now getting towards his late 50s. I have known this KH for quite a while now, from before politics, and he is the epitome of a great bloke. You would never guess what he has to deal with, and as part of telling his story I will go through some of it.

He is really good. He is helpful. He is—and now I know why—aggressively protective of children. He is so involved in community activities that he is everywhere; he is one of those people in his community who is everywhere. He has even donated part of his body to a complete stranger just to help them out. He is that kind of guy. He never reported what happened to him, much to his regret, because at the time he was afraid that he would not be believed and that it would cause more trouble than it was worth. His regret now is obvious, but it has shaped his life, and I think it is only part of his life. It is not who he is; it is just part of who he is.

KH had a vasectomy at 31, which is a strange thing to say but he did that because he could not trust society with his children. He could not trust in his mind that, because he could not spend every day with his children, they would not be abused. His family line will stop with him because of this, and that is a conscious decision. He is what you call a survivor; he is not a victim. It is not an issue that has created this; it is a conscious thought. It is one of those things he has been paying for. He put it to me—I am writing this; these are my words and his words—that that act might have happened in the 1970s but it happens every single night. Every single night he relives it. He will never get closure. With those survivors, this is part of what they are doomed to, and this is why I have my own personal reasons for hating paedophiles and people that support them and cover for them.

You think about these people—these people are evil predators and do not conform to our rules. No matter what we do, they will keep on doing this unless we find them, unless we put them away. That is part of what people believe is for us to do. That is why we have parliaments. That is why we have police forces. I do not care if we have to build another jail to house them all; it is the cost of doing business as far as I am concerned. We need these people removed.

Recently there was someone who had 56 conditions upon being paroled for murder. Fifty-six conditions and they never told anyone where the body is. This is unacceptable. I always carry on about needing a judicial review, but we need to think about who we are protecting. I really do not care about violent criminals. I certainly do not care about sex criminals. I am trying not to be too graphic in saying what I would like to do to them; let us say they would not enjoy it but that it would be too good to them, because the things they do to people last for a lifetime. It is not just the churches, even though that is a part of what this bill deals with; there are other organisations that have this issue. KH was part of one of them, and I am not going to name it. Until organisations start actively fighting these people, they will always be there. There should be no leeway and no mercy with these people because they show none to their victims. I think this is long overdue.

As I said, I am a little bit disturbed that it took a bit of legislation to do this. We have to protect our children. They are our future. The fact that this abuse went unreported goes to show that there are a lot more people that really would obviously like to change the past. They cannot, but we need to be able to change the future, and that is why I support this bill.

 Ms CROZIER (Southern Metropolitan) (14:37): I am very pleased to be able to rise this afternoon and speak to the Children Legislation Amendment Bill 2019. I have just been listening to Mr Bourman’s account here in the chamber, and I note that there are many people in the gallery here this afternoon who I had the great privilege of hearing from when I chaired the child abuse inquiry here in Victoria.

I want to refer to that inquiry because those people that are in the gallery here this afternoon, along with hundreds of others, were so incredibly brave in telling their stories, sometimes for the very first time. I am incredibly proud of what this Parliament did because it was the first time that an inquiry of such significance had been undertaken and with such depth, before the Royal Commission into Institutional Responses to Child Sexual Abuse of course that was then conducted following the initiation of our inquiry. I want to just put that into context because I think it is important for those members of the chamber who were not in the previous few parliaments to understand that work. It was incredibly significant, and the people in the gallery here, as I said, were just incredibly brave in their accounts.

It was the former Baillieu government that initiated the inquiry which I had the privilege to chair in 2012. The committee had 578 submissions provided to the inquiry and held 162 hearings and 56 private hearings. We held sessions here in Melbourne and around the state, gathering evidence for what then became an enormous issue for our community, an enormous understanding of the issue by our community. From there we were able to undertake the significant work that I spoke of.

When I had the privilege of tabling the report in this very chamber in 2013—all those years ago; six years ago—there was a packed gallery that had come in to hear the findings of the inquiry. It was extraordinary to see how far we had come, and how far we have needed to come over the following six years or so. At that time I said:

Our recommendations are intended to provide an umbrella of protections from the consequences of the heinous crime of child abuse that people in positions of authority have facilitated either through their actions or their inaction. While we acknowledge we cannot repair the irreparable damage that has beset so many, our recommendations are designed to create an easier path for victims in their pursuit of justice.

In essence, the recommendations that we provided were not huge in number but were very extensive in what we were trying to achieve, giving a suite of recommendations that covered five areas around reforming the criminal law; failing to report to police or concealing knowledge of suspected criminal abuse of children; making it a criminal offence for people in authority to knowingly put a child at risk; and making it a separate offence to groom a child, their parents or others. That was really one of the areas around the criminal law that we were looking at.

We looked at this very issue that we are debating today; it was not as if we did not look at that issue. In our report—and you can see that I have a few pieces of paper sticking out from my copy of the report, because I have referred to it over subsequent years when we have debated various pieces of legislation—when we were talking about the confessional, we made it known that:

There is no superior canon law which binds the community or justifies non-compliance with the civil or criminal law by anyone.

So we made that very point—that it was absolutely the responsibility of people in authority to do the right thing, to report when this horrendous abuse occurs. The Evidence Act 2008, which we refer to in our report, talks about religious confessions. Section 127(1) states:

A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.

Subsection (2) states:

Subsection (1) does not apply if the communication involved in the religious confession was made for a criminal purpose.

So we did look at the Evidence Act, we did look at the confessional issue and we made those umbrella recommendations. I am very pleased, as Mr O’Donohue so eloquently laid out in his contribution, that we are speaking about this particular legislation today and about the action of the Napthine government, that instigated the laws. Within one month we had grooming laws introduced into the Parliament to deal with one of the criminal elements that I spoke of earlier.

This was an enormous issue for some people. People spoke to us about the seal of the confessional and raised their concerns about that. I am pleased that we have this bill before us to provide clarification to anyone in doubt. As I said, no-one is above the law—not anyone. Not a politician, not a priest, not a union official—no-one—and it is incredibly important that everybody remembers that.

Ms Terpstra said there was extensive consultation undertaken for the drafting of this bill, but Mr O’Donohue made the point that the very people who this bill affects do not believe that they received the appropriate consultation they deserved. I would like to put that on record and say how disappointing again it is that the government fails to consult with the people its legislation will affect.

In saying that, there is absolutely no excuse for anyone to conceal the abuse of so many children. At the time when we were doing this inquiry it was very disappointing that the then Leader of the Opposition, Daniel Andrews, and the now minister, Ms Mikakos, never embraced our inquiry or its recommendations. They never publicly went out and said they would support the recommendations, but they are very quick to grab all the success now. So I think it is important to note the work of the committee—

Members interjecting.

Ms CROZIER: Well, I can tell you about playing politics, Ms Stitt, when the then deputy chair did not support it and went out and talked to the press the whole time and bagged what we were doing.

Can I say again that this is a very important piece of legislation that we are discussing today, as was the inquiry we conducted in 2012 and 2013. As I said, the lack of support at the time was disappointing. Nevertheless we are here to talk about this bill. The work that the committee did and the Parliament did set up the federal royal commission, The commission then took a lot of our work—and I am very pleased that they acknowledged the work of the committee—used our findings and recommendations and built on the work we had done. I think that is an important component to remind people of, because this inquiry quite often gets lost when people are talking about the royal commission. I can say that I doubt very much whether the royal commission would have taken place if this body of work had not gone ahead.

As Mr O’Donohue highlighted in relation to other areas around the intent of this bill, it also limits the ability of rejected working with children check applications to be heard at VCAT. It limits the right of appeal in that process. There are also the mandatory reporting components. The bill amends the Children, Youth and Families Act 2005 to require people within religious ministries to make mandatory reports.

I go back to the time lines. It does not feel like six years ago that I tabled the report, but it is six years, and it has taken this long to get to this point. Whilst the work of the royal commission was important—and I do understand that the government would have needed to see some of those findings from the royal commission to see how states and territories could work with their recommendations in relation to how state-based or territory-based laws would also apply—I think it is important that we have those mandatory reporting requirements as well to ensure that, as has been said by other members, some of the most vulnerable members of our community—children—are protected in any way they can be and that the people around them have faith in terms of understanding that they are going to be protected. Although we cannot always 100 per cent guarantee that they will not be at risk, at least we can put in these very strong laws around what is required to ensure that we protect them as far as possible.

As I said, I was very pleased to be able to undertake that work during the course of the Baillieu and Napthine governments, and I am very proud of that work. I think it is a great legacy of this state as to what we have done. I want to again acknowledge the hundreds of people, and especially those people in the gallery today, for sharing their stories with our committee and for just highlighting to the broader community the extent of what went on and acknowledge the enormous toll it has taken on you, your families and others. I want to lend my support to this bill and commend the bill to the house.

 Mr GEPP (Northern Victoria) (14:50): I rise to make my contribution on the Children Legislation Amendment Bill 2019 and in doing so state that I will be supporting this bill. As has been mentioned by many of the other speakers, the bill has four main components to it. Firstly, it requires those within religious ministries to make mandatory reports of child abuse and harm, it removes the exemption for the confessional seal to mandatory reporting requirements, it strengthens our working with children checks through limiting VCAT appeal rights for serious and alleged serious offenders and it removes civil litigation barriers that confront survivors of institutional child abuse for unjust and inadequate judgements and settlements.

I want to, from the outset if I can, note that there has been some public comment, as has been referred to by previous speakers, from the Most Reverend Peter Comensoli, the Archbishop of Melbourne, about a perceived lack of consultation with the Catholic Church on the detail of this legislation. Notwithstanding that this claim is absolutely refuted by the government, surely none of what this Parliament is debating today can be of surprise to anybody. I suspect the real issue the church is having with this legislation is not whether it was consulted about it or not but the fact that it exists at all. To provide some context to this, on 26 August I received a four-page letter from church representatives, in my capacity as the chair of the Scrutiny of Acts and Regulations Committee, on this legislation. That correspondence acknowledged that it was focusing solely on the provisions of the bill which remove the reporting exemptions for religious confessions. In that letter there was one statement that really grabbed my attention, and I quote:

We wish to emphasise that the safety of children is and remains of paramount importance to us.

I found the use of the word ‘paramount’ interesting because, as we all know, it means to place something before anything else or, if you like, to give something primacy above all else. But the remainder of that letter then sought to unpick all aspects of this bill and how it would impact the human rights of others, such as a diminished right to freedom of religion. The letter then went on to claim that the bill would have no impact on the safety of children or, and I quote, ‘will actually make children less safe’. The letter was co-signed by a number of senior people of the church, including the Most Reverend Peter Comensoli, Archbishop of Melbourne; the Most Reverend Paul Bird, Bishop of Ballarat; the Most Reverend Patrick O’Regan, Bishop of Sale; the Most Reverend Leslie Tomlinson, apostolic administrator, diocese of Sandhurst; and the Very Reverend Associate Professor Shane Mackinlay, Bishop-elect of Sandhurst. This letter suggests to me that the Catholic Church still has a very long way to go in meeting the community’s expectations of them on this issue.

But this is not an exercise in church bashing, nor is it an exercise in diminishing the religious rights and freedoms of our citizens and nor does this legislation purport to lay all aspects of child abuse at the feet of religious organisations. In many respects it would be far simpler if it were quarantined to a few, but we know that crimes against children are unfortunately perpetrated by those from many quarters in our society. A decent society offers the legal frameworks, the legal systems and the humanity to protect and nurture the most vulnerable amongst us. Surely nothing is more vulnerable or precious to our community than our children, and when they are under attack we are compelled to act. This legislation is saying very loudly, very clearly and unequivocally that the safety, wellbeing and protection of our children is paramount and that nothing is more important to us than that.

As many have described here today, and in the other place when they debated this in the last sitting week, the origins of these reforms can be traced back to the spotlight that has been placed upon child abuse crimes by the thousands of brave and courageous survivors, their families and their advocates. They have told their stories, reliving their nightmares in the process, but never wavering in their quest for genuine reform. Without them, the work that was undertaken by the 57th Victorian Parliament, the Betrayal of Trust inquiry and subsequently the federal Royal Commission into Institutional Responses to Child Sexual Abuse, which reported in December 2017, may never have happened.

But to further illustrate how we arrived at this legislation, it is important to reflect on just a few statistics, and I will draw from the royal commission. This does not diminish the outstanding work of the Betrayal of Trust inquiry, and I could of course recount many moments from that body of work if time permitted. During its five-year process the royal commission reported many key statistics, and they include: 16 953 people who within the royal commission’s terms of reference contacted the royal commission; the royal commission heard from 7981 survivors of child sexual abuse in 8013 private sessions; there were a further 1344 written accounts of abuse; 2562 of those accounts were referred to the police for action; and 58.1 per cent of survivors reported that their abuse occurred in an institution managed by a religious organisation. I hope those numbers are front of mind when we come to vote later today, because they are shameful and they are stomach-churning.

No-one who followed either the Betrayal of Trust inquiry or the federal royal commission will ever forget the details of the sickening and vile crimes against those innocent children or the protection rackets that operated to provide a haven for the criminals who preyed upon those children. We of course also learned of the inadequate compensation offered by some of those organisations to the survivors and the remarkable and extraordinary lengths that they then went to to keep it all hush-hush and deny those survivors proper justice. That is where this legislation has come from. It is a response to the thousands of horrific stories that were told. It is a response to the thousands of children who have been let down by the legal frameworks and systems for far too long in this state and in this country. It is also a response to the thousands of stories that remain untold by the thousands of children who have not spoken about the crimes committed against them. Believe me when I say that for some it is too hard.

This legislation is about our children and their right to live a life free of abuse and to be protected, wherever we can, from the evils that lurk in our society. It is this Parliament and the people of Victoria forever saying that nothing is more important in our community than you, our children, and that they will never place anything before your welfare. That is paramount.

The greatest and most obvious failure of this bill, of course, is that it will not prevent further abuse of a child. But it never could, and it saddens and disgusts me, as I am sure it does all members of this Parliament, that try as we might, there will be more incidents of child abuse with the passage of time. How I wish that there was a bill that would prevent any further child abuse from ever happening again, but in the absence of that it is our duty to strive to eliminate it to the best of our ability and provide our kids, of now and the future, with better ways to protect themselves. We must enact laws that remove havens and protection rackets for perpetrators. We must enact laws that compel those in positions of privilege to accept responsibility when they suspect or become aware of abuse. We must enact laws that make it harder for those who would do our kids harm to be able to gain access to them, and we must enact laws that deliver real justice and real compensation for survivors. That is what a decent society would do, and we owe it to our kids.

Survivors have spoken so courageously of their own circumstances, the crimes committed against them and how lonely they felt and still feel and of wandering down a darkened path searching for answers to the questions that screamed so loudly in their heads—that never leave—‘Why me? Did I encourage him to do it? Am I a bad person? Will people think I’m disgusting if I tell? Will anyone ever believe me?’. And of course some victims never make it off that darkened path. They relieve their pain in ways that are heartbreakingly tragic and that most of us can never really imagine or understand but wish we could prevent. For those people and their families, as well as the survivors who are still walking today, this Parliament has the capacity to shine a light on those darkened paths, and we should. I implore this Parliament to show the courage and strength that those brave survivors have shown. I commend this bill to the house.

 Ms PATTEN (Northern Metropolitan) (15:01): Thank you to all the previous speakers who have spoken on this piece of legislation, and in particular Mr Gepp. I think Mr Gepp has just so beautifully and eloquently illustrated why we are doing this, why we must do this and why this bill will not solve what has happened in the past and maybe will not solve what happens in the future. But it is acknowledging the pain. It is acknowledging the heinous crimes that have been committed. It is acknowledging those brave people who came forward and spoke to those crimes. It acknowledges the people that never made it to speak out, and it acknowledges the people that still live with that knowledge but without the words or the ability to tell their stories. It is for all of them.

This bill, effectively, will ensure that religious and spiritual leaders will be forced to report child abuse to authorities, as they should be. They can no longer rely on the religious confession privilege to protect paedophiles, as it should be. It will see those in religious ministries added to the list of mandated reporters to child protection and the confessional seal lifted for suspected child sexual abuse, as it should always have been.

The bill will also create reforms to allow survivors of institutional abuse to apply to the courts to overturn historical compensation payments. Just on that point, I would like to echo some of the comments that Mr O’Donohue mentioned about what appears to be an unintended consequence of this legislation that may actually carve out a certain number of victims who had sought compensation in a certain period—after the statute of limitations had been removed but before the Ellis defence legislation had been passed. There are a number of victims that took what they could from the church and received very paltry sums not in recognition but to sort of toss them away, as it were. It appears that this legislation may, sadly, not capture those people and allow them to really seek the compensation that they so deserve. I think Mr O’Donohue will ask questions in committee, and I will be listening very closely to that.

I have a confession to make. I have never been to confession. But if I had and I had confessed to child abuse, I would have thought that I would not have been able to finish 20 Hail Marys and light a candle before the police arrived, cuffed me and carted me away. I would think that most Victorians would be of the same mind. Surely you cannot confess to horrific child abuse and have the clergy protect you. Seriously? Yet that has been the case, and that is what many members of the Catholic Church are still defending, which beggars belief. They have been doing it for hundreds of years but from today, because of this legislation, that changes in the state of Victoria, as it should.

It will come as no surprise to many of you in the chamber that this is an issue that I have been very passionate about. The Reason Party has been pursuing it. I personally have been pursuing this issue for nearly two decades. We published a book called Hypocrites in 2001 in which we revealed hundreds of child sexual abusers in the Catholic Church. Throughout that book we recognised that the ones that were in the courts were just the tip of the iceberg, and we called for a royal commission into child sexual abuse in the church. I was very pleased that the federal government undertook that work, and I have the pile of reports from that in my office; it reaches to my thigh. The work that they did was extraordinary. The numbers that Mr Gepp mentioned in his contribution are in the thousands, and we know that that is just an example of the suffering and the crimes that have been committed.

I would also like to acknowledge Ms Crozier and the work that she did in her really landmark report. They looked at these issues and I think it was a very brave report. It was something that the community had been longing for and people had literally been dying for for many years, for decades.

Under our current law Victorian teachers, police, medical practitioners, nurses, school counsellors, early childhood workers and youth justice workers must tell authorities if they develop a reasonable belief in the course of their professional work that a child has been abused, but until now priests and religious leaders have been exempt from mandatory reporting. Mandatory reporting is exactly that: it is mandatory. Everyone is required to report no matter what. Priests do not get a free pass because they sit in a sacred box. You do not hear Hindus, Muslims or Buddhists asking to be exempt from reporting horrible crimes, so why does the Catholic Church somehow think that their canon law trumps the law of the land, trumps the law that we all undertake to uphold?

Recently the Catholic Archbishop of Melbourne, Peter Comensoli, said that he would rather go to jail than report admissions of child sexual abuse made in his confessional. He said he would not break the Catholic tradition; he would break the law:

Personally, I’ll keep the seal.

I just do not get it. I do not understand how someone with Christian and compassionate principles could think that their canon law, that their belief in their religion, trumps the protection and safety of a child. In whose world is that the case? It is an utter disgrace. But I suppose he is admitting now that he will be protecting paedophiles in their long-time tradition.

I was actually having a quick look at Hypocrites that we published, as I said, in 2001. At the beginning of it I just make a note about some of the material that we had used in it, and I would just like to quote:

In 1993, Brother Barry M. Coldrey wrote a secret report for congregation executives of the Christian Brothers. The report was known as Reaping the Whirlwind: Sexual Abuse from 1930 to 1994 …

This was a secret report.

The report detailed abuses in WA orphanages which took the form of “sex rings” and a “sex underworld” in which brothers collaborated with one another and possibly shared the boys.

This report was tabled in the New South Wales Supreme Court and was quoted widely, but this sense of covering up and hiding and protecting can no longer go on. The fact that we have an archbishop, a senior leader of a religious organisation, saying that he will break the law and he will continue to protect paedophiles—I am outraged by this. The community is outraged by this. Perhaps the clergy should ask: what would Jesus do? I reckon Jesus would mandatory report. The Reason Party supports the bill and commends it to the house.

 Dr CUMMING (Western Metropolitan) (15:11): In rising to support these amendments to this legislation I want to first say that obviously protecting our children is what Parliament should be all about and it should be the first thing in our minds at all times. Our laws need to protect our children. I do not believe paedophiles deserve any protection whatsoever. Paedophiles ruin children’s lives and they ruin the lives of the families around them.

Consequently, listening to the debate today, I am sitting here and the mind boggles to think that parliament upon parliament have not really done much about a topic so important for the community. But this Parliament is actually trying to address it. We have heard Ms Patten’s contribution, and we know that paedophilia is not a new thing; it has been around for so many years. But to know that only in 2012 did the Parliament have an inquiry and only in 2017 was there a royal commission does not sit well with me, and it would not sit well with my community to realise that there is still not enough done to protect our children. I do believe that this legislation strikes an appropriate balance between the freedom to practise one’s religion and the need to protect children from abuse.

What I want to actually touch upon and what has not been picked up in a lot of the debate that I have heard so far is that there are many priests out there that want to protect children. Obviously, like in any institution or place, I feel that this will actually help them to feel okay about reporting that abuse. I feel that there are a lot of priests out there that want to go and report what they hear in confession, and now they will have permission to do so. There are a lot of priests out there that have to pick up the pieces after what paedophiles have done within their own communities—they have to repair the damage—and I do feel that this tool allows them to go and report some of the horrible and disgusting things that they must hear in confession, as they have probably wanted to do but have felt conflicted about over the years or even a little bit pressured by their own organisation about not doing so.

So I do hope that this gives those priests out there the confidence that the community wants them to report, as they are now going to be mandatorily made to do so. If anything, I feel that for everybody it should be mandatory to report such things when they hear them, rather than it being only for people who sit in positions of authority. Obviously we cannot do everything, but it is great to feel that this government is going to force the reporting of child abuse by all authorities under this law to better protect the children of Victoria.

I think I will just leave my contribution at that, other than to say that in the Western Metro Region in my lifetime a lot of my friends and family have known of many such children. My school did not escape it in Braybrook, nor has the school that my children currently go to escaped it. To think that in my lifetime this was going on, as I was a child, and to know the torture that my family and friends go through is very confronting. When you are an adult it is mind-boggling to hear such things and to think that when I was a child, in such an innocent frame of mind and in an area that always felt very safe, this was happening around me. I was one of those children that was put on high alert by my father in regard to paedophiles. I knew all about them and what to be aware of, and I always felt safe within my own family to be able to have those conversations if something like that was occurring. But I know that that was happening to family, friends, brothers and the like. I only found out those things when we were adults, and I know that a lot of people that I knew did not make it—they committed suicide—and that others are dealing with it daily and struggling to talk about it openly, still.

I am now sitting in this Parliament, and to be able to do such a small thing as this gives me some level of comfort. But it gives me no comfort to know that there is so much more that we could actually do, that we currently have a legal system, not a justice system. People do not feel that there is enough justice out there, and we all as a community wish to protect our children with whatever tools and means that we can, but the laws in lots of ways fail the community currently, still. The community still have not much confidence in our legal system and do not feel that they get justice when they do report. We can do a lot more, and I hope that we do a lot more to protect our children, but yes, it is good to know that we are making these steps currently. I would think that these simple things should just be a given, that everyone should have to report such things once they know about them. But we know now that they are going to be mandatorily made to actually report.

But I still do not have a level of confidence that, even when reporting occurs, those people actually get the level of justice that they deserve. I still feel that the justice system fails those victims on numerous occasions, that the victims actually have a life sentence, but it is very rare that a paedophile gets a life sentence. I know that my community hopes the justice system listens and that it understands that they want paedophiles to get what the community wants, which is life sentences like they give their victims. I will leave it at that.

 Ms TAYLOR (Southern Metropolitan) (15:20): I am really relieved that there is such a collective support of this bill today. That is the only way that we are going to be able to tackle child abuse over time—if we all act together. It cannot be a pointscoring exercise, because we will miss important enabling factors. The whole point of this legislation, as I see it, is to reduce the enabling factors. That is why abuse persists—because there are avenues or vehicles by which people who ought to know better take advantage of the most vulnerable in our community.

Some of those enabling factors, such as secrecy, have been stated today. The fact of secrecy itself suggests that there is an inherent wrong in what has been done, because if it was right, we would be open about it. People do not want to conceal behaviour unless there is something inherently wrong with it, generally. Other enabling factors are turning a blind eye, which obviously came out in the royal commission; the cover-ups, which have been spoken to at length; and a lack of transparency or accountability and protections that are no longer justifiable, such as the confessional privilege, which within this context is no longer going to protect those who become aware of these heinous crimes.

Another enabling factor is that it is incredibly uncomfortable for people who are victims of abuse to have to speak about it. I was reading somewhere that it can take on average up to 22 years for a victim of abuse to find the courage or the pathway to be able to talk about their suffering. That makes perfect sense to me, because how do you find the words to explain that level of trauma? How can you verbalise what you have been through when somebody has invaded your personal space to that extent and shown no remorse, generally speaking? There is also a fear of how others will react if you speak up, when those who have tried to come forth and reveal their pain and suffering have been let down generally and have not been shown the same respect in return.

I think among the great challenges of dealing with abuse are the physical scars and the memories, which many have spoken about, which never really leave; the invasion of privacy; and also the destruction of the natural pathway to adulthood, having to carry a burden that no-one should have to bear—a child having to process adult acts which have no place in their world, no place whatsoever. There is also the confusion, which Mr Gepp talked about, of the child who has to somehow interpret the very, very manifestly bad behaviour, try and make sense of that behaviour and understand whether it is their fault, which of course it is not. All these factors are the reasons why abuse prevails and why it is so hard to overcome it over time. Moreover it is not only the physical elements of the abuse but also the manipulative behaviour that is manifested to keep the abuse down. Having to reconcile and handle that manipulative behaviour would inevitably, I imagine, have a very destructive impact on one’s self-esteem, because fundamentally it is wrong.

I will not name names today, but I am like probably everyone in this chamber and most people in the community, I would say, who has known at least one friend, relative or acquaintance who has been exposed to this manifestly inappropriate behaviour. The friends and the relatives who I know have been through this kind of horrendous behaviour were not all victims of clergy—let me make that clear—so today is not about condemning all clergy or just one part of the community, but it has to be said that to ignore what is blatantly obvious in terms of wrongs that have prevailed within religious institutions would be neglectful on our part. That is why it has to be referred to, that is the right thing to do and that was certainly revealed in the royal commission.

The prevalence itself is overwhelming. I listened to the statistics that Mr Gepp read out. In the many, many community groups that I have been involved in over many years I cannot think of any community group that I have been involved in where there was not at least one person and probably more who had been victims of abuse in one form or another. I was thinking back to some of my friends and relatives. I do not want to generalise, because every individual’s experience is individual and how they manage those emotions is individual, but what I did witness as a child with those who had experienced abuse was an incredible level of suffering and—‘inability’ is the wrong word—a great challenge in being able to manage the complexity of those emotions. I witnessed friends and relatives who were overwhelmed and I did not know what to do with those emotions. I did not know that they had been through these terrible acts, so sometimes I would see some of their behaviour and I would try to discern it and try to be supportive, but as a child you are not necessarily equipped with the capacity and the knowledge to know how to be a comfort and how to be a true support in that situation.

It is over time that each one of those persons in my life has come to reveal why they had that suffering, and it is a relief. Probably they felt quite embarrassed in not wanting to talk about it, but it is actually a relief because now I know why they are suffering, and hopefully just allowing that process can let them heal or let them start the pathway to healing, which is so very vital.

Fundamentally what I hope this bill will do, in terms of reducing the enabling factors, is shift attitudes in the community and give those who are victims the knowledge that they have the right to speak up, that the courage to speak up will be honoured, that they are worth protecting and that they are believed, because I think the worst thing of all is not being believed. We believe you and we want you to be able to get all the support you need to heal.

 Ms MAXWELL (Northern Victoria) (15:28): I stand today to support this bill and to say that the words from others in the chamber today have been extremely poignant. I am very happy to have the opportunity to speak on this bill, as Derryn Hinch’s Justice Party have always been very strong advocates for the protection of children. Whilst I respect people’s religion and beliefs, I also respect the needs of children first and foremost. They must be protected at every opportunity. I am not going to repeat things that have already been said in the chamber; I think people have spoken very eloquently and honestly and sincerely today.

We have many organisations and professions that are mandated to report child sexual abuse, and I see the church as being accountable to report also. I think it is a valuable investment in another step closer to protecting our children. We all know and understand that secrecy enables these heinous crimes to continue. On the secrecy of the confession box, whilst I did state that I respect religions, I think that we all have to also respect the need to protect our children. I believe that we should all stand in solidarity to protect children from abuse and ensure that we take a personal oath to speak up to prevent unspeakable acts being inflicted on our children. We are all encouraged to speak up and say no to family violence. Why should this be any different? Our children do not have a voice to be able to protect themselves, and it is up to every one of us as adults to protect and support those children and to be their voice, to teach them to have a voice. But as we know, they cannot always protect themselves.

There are probably other speakers who would like to speak, so I am not going to take up any more time. But I do just want to say that this bill does mean a lot to us as the Justice Party, and I thank everybody else in the chamber for their words today.

 Dr RATNAM (Northern Metropolitan) (15:31): I rise to speak on and in support of the Children Legislation Amendment Bill 2019. The reforms in the bill address key recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. Significantly, the bill amends the Children, Youth and Families Act 2005 to add people in religious ministries, such as priests, to the list of mandatory reporters of child abuse. It also clarifies that mandatory reporters, including people in religious ministries, are not able to rely on any exemption for religious confession, meaning that Catholic priests must report any suspected child abuse even if they have received this information in confession.

These changes mean that priests and other religious ministers will now have the same mandatory reporting obligations as other professionals, such as doctors and nurses, teachers and principals, early childhood workers, psychologists and police officers. This is an important reform because historically, and as demonstrated by the Royal Commission into Institutional Responses to Child Sexual Abuse, religious organisations have manifestly failed in their responsibilities to protect children, and in particular the Catholic Church. It is time the standards that apply to others are applied to religious ministries, including the Catholic Church. For too long one set of rules applied to churches and another set of rules applied to everyone else. Whether it is taxation or anti-discrimination rules, the churches have always been exempt from behaviour expected of other individuals and organisations.

Nowhere is this more clear or more upsetting than when it comes to child protection. The royal commission found that many religious leaders were aware of allegations of child sexual abuse but failed to take any action. Whether it was dismissing allegations, ignoring them outright or actively trying to protect perpetrators from accountability, the church repeatedly and regularly turned a blind eye to the abuse that was happening to children under their care—abuse that happened in large cathedrals and small parishes, in schools, orphanages and confessionals. The extent of the abuse shows that the Catholic Church in particular was unable and unwilling to take any steps internally to remove perpetrators and to protect children, which means that it is high time for the church to be subject to the same rules as other professionals in positions of authority who work closely with children and have a duty under the law to report suspicions of abuse.

Nobody should be above the law when it comes to a heinous crime such as child abuse. No religious belief is an excuse for failing to comply with the law and no religious practice should be used as a way to cover up allegations of abuse. If a psychologist must report any suspected child abuse at all times, including if that suspicion arises from information disclosed during a counselling session, then so too should a priest, even if that information is disclosed through the confessional. The rights of a child must be paramount. While the Catholic Church through the confessional is of particular interest in relation to this bill, child sexual abuse has occurred in other religious institutions, which is why the Greens are glad that these new mandatory reporting laws will apply to all people in a religious ministry.

The bill also makes changes to our working with children check system, where an adult who has been charged with, convicted of or found guilty of a category A offence will no longer be able to apply to VCAT for a working with children check. These amendments extend beyond what was recommended by the royal commission by extending the limitation of appeal rights to charges as well as convictions and including a broader list of offences, such as murder of an adult as well as of a child. While the Greens acknowledge the seriousness of these types of offending, we also acknowledge the concerns of stakeholders such as Liberty Victoria and the Law Institute of Victoria that these changes go further than what the royal commission or the evidence recommends. Tough-on-crime policies do not always equal a better and safer society, so we would prefer to see the bill’s changes to working with children checks adhere more closely to the recommendations of the royal commission. But the Greens support this bill.

In concluding, I would like to take the opportunity to acknowledge the bravery and strength of survivors who told their stories as part of the royal commission. Without the courage and resilience of these survivors to participate in the royal commission process, we would be much less likely to be here debating these reforms today. The mandatory reporting changes in this bill ensure that religious institutions have to comply with the same reporting laws as other similar organisations, and while we have a lot further to go, today represents an important step in ensuring that children interacting with our religious institutions are safe.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (15:36): I want to begin my contribution by acknowledging those individuals and organisations who have led us on a very important journey in this state and in this nation. We would not have had a Betrayal of Trust inquiry and we would not have had a federal Royal Commission into Institutional Responses to Child Sexual Abuse but for the courage of many of the individuals who are here in this chamber today.

I want to particularly acknowledge Chrissie Foster and the late Anthony Foster. I want to acknowledge Leonie Sheedy and other members of the Care Leavers Australia Network. You mean a great deal to me. You are absolutely amazing people. To all the victim survivors who are here with us today, thank you so much for your courage and for shining a light on a really dark, dark chapter in this nation’s history—a chapter that none of us really wanted to confront. It was very confronting to hear about people of responsibility abusing children, and yet you had the courage to speak about this and to insist that legislators and other people in a position of authority take notice. I want to express my deep gratitude to all of you for your courage.

It is also important that I acknowledge that there are many people who are no longer with us, for whom there was a great toll. Everybody who was abused, every child who was abused, suffered a great toll. For some the toll was so great they took their own lives, they took drugs, they became alcoholics, they suffered mental health issues—their lives were destroyed. We have to acknowledge that children’s lives were destroyed because of the abuse they suffered. We are really standing on the shoulders of giants. You are the giants. You are the people who have shone a light on this dark, dark chapter.

You have forced so many reforms—child-safe standards, reportable conduct, duty of care for institutions, removal of the Ellis defence, incorporation of churches, working with children checks for religious ministers—and now what is in my view the next logical step is making sure that people who are religious leaders become mandatory reporters and that we remove the exemption that applies to confessions as well. I have to say that, as someone who has had the great privilege to work with victim survivors in my previous role as the Minister for Families and Children, I just see this as an absolute no-brainer. It defies comprehension as far as I am concerned that anyone—anyone—could object to these extensions to these laws.

I have to say that the Royal Commission into Institutional Responses to Child Sexual Abuse has played such an important role in giving voice to the victims and seeking to achieve justice for those victim survivors. We heard evidence of the extent, the sheer magnitude, which just defies belief, of the abuse of children in many institutions, not just in out-of-home care—and I have to accept the state’s responsibility for that—and in orphanages but also in our schools and many settings and of course in our religious institutions as well. The thing that is the most galling for the Australian public is that there was a culture of cover-ups—it is not only that this abuse occurred but that there were systemic cover-ups. The culture of cover-ups that occurred for so long is very, very hard for all of us to accept.

I was intrigued to read recently—I am not a Catholic, so I was not familiar with this history—that 150 years ago Australia’s first Catholic saint, Mary MacKillop, was in fact banished for disclosing child sexual abuse. Let us go forward in history. One hundred and fifty years later Australia’s first Catholic cardinal is convicted for child sexual abuse. Now, how can this organisation and its leaders not accept that they have a very serious cultural problem here? How can they convince parents sending their children off to Catholic schools every day that they will be safe if they are saying that they will defy this law once it is passed and will refuse to disclose crimes admitted to them in confession? I have to say, I am absolutely shocked by that. I am shocked that Archbishop Comensoli, after this royal commission and his cardinal going to jail, would come out and say he will defy the law. I think it speaks of an organisation and a Catholic leader in this state who are tone deaf—he is completely tone deaf. He is completely out of touch, I believe, with his parishioners as well. Now, I am not a Catholic but I have spoken to many Catholics about this issue who are absolutely outraged by the archbishop’s position on this issue. I certainly hope that he will reflect on this and that he will change his position. I am not a theologian. I am not an expert in canon law. But I have to say that I am sure that the Australian public agrees that the protection of children has to trump any religious institution’s traditions. And they are just traditions.

During the course of the debate there was a question posed: what would Jesus say? What would Jesus do? Well, there is one verse in the Bible that I will quote from, because these are the words of Jesus:

If anyone causes one of these little ones—those who believe in me—to stumble, it would be better for them to have a large millstone hung around their neck and to be drowned in the depths of the sea.

That is from Matthew 18:6. Jesus was very clear—there is no reference to confessional seal in the Bible. Jesus was all about forgiveness, but he was categorical in saying that someone should be drowned in the depths of the sea for laying a finger on a child. It is very clear in my mind that the church is out of touch not just with biblical teaching but also, I think, with its parishioners, and I believe they are completely out of touch with the views of the Australian public on this issue.

I think today is an important next step in the chapter of protecting Victoria’s children. I certainly hope that other parliaments across Australia also take action to remove the exemption as it relates to the confessional seal. I think it is important that parents are reassured that if a crime is disclosed in the confessional it will be disclosed to authorities. It will not be covered up. We are implementing the recommendations of the royal commission. We had evidence at the royal commission of priests going to confession, confessing to child sexual abuse crimes and then being absolved of their sins. They felt they had been absolved, so off they go. The next day they commit new crimes. And they were also moved around from one parish to the other. No action was taken.

I think that is outrageous. It is outrageous that that occurred in this country. It is outrageous that the current leadership of the Catholic Church in this state failed to acknowledge that history. I think if anything has been learned from this royal commission it is that these laws are well overdue, and I would certainly encourage the archbishop to reconsider his view, to embrace this law and to reassure his parishioners and all those families who send their kids through our Catholic school system that they are taking the royal commission recommendations seriously and making every effort to ensure that this pattern of abuse does not happen again.

We all need to commit ourselves to ensuring that we do everything possible to protect children. That is what this law is about. I thank members for indicating their support, and I thank the victim survivors for their patience. I thank them for their patience and for their courage, and we need to make sure that we get these laws on the statute book and that we work to ensure that this never happens again.

Motion agreed to.

Read second time.

Committed.

Clause 1 (15:48)

Mr O’DONOHUE: Minister, I have got three or four issues I wish to canvass, and if it is okay with you I propose to do that under clause 1 for simplicity. The first is, Minister, as I flagged with you elsewhere, just for clarity, with the passage of this bill religious figures will now be caught by the mandatory reporting requirements. Can you advise the house whether there are any classes of people, any professional groups, that will not be caught by the mandatory reporting regime?

Ms MIKAKOS: Thank you, Mr O’Donohue, for that question. What we had with the Royal Commission into Institutional Responses to Child Sexual Abuse is recommendation 7.3, which lists a set of professionals who should be mandated in every jurisdiction to achieve national consistency with mandatory reporting requirements. So in response to that recommendation the government moved to include a more extensive list of professional groups, as recommended by the royal commission, by regulation. So out-of-home care workers—excluding foster and kinship carers—youth justice and early childhood workers and also registered psychologists became mandated from 1 March this year, and school counsellors will be mandated from 31 January next year.

Then the last part of that recommendation related to people in religious ministry, which is the subject of this legislation, and we thought it was important to legislate for this change. It could have been done via regulation, but because we have also taken out the exemption around failure to report and the issue around the confessional seal we have brought it by virtue of legislation to ensure that the Parliament has the opportunity to debate that but also, if I could be so bold, to ensure it is put beyond any doubt legally, because as we have already seen there are some people who are already planning to defy the law. So that fully acquits the royal commission recommendation in terms of the class of professionals that the royal commission has recommended become mandatory reporters.

I also just wanted to make a final point, and that is of course that we would encourage every member of the community to share our collective responsibility for protecting children, whether or not they are a mandatory reporter. If they become aware of a child being abused physically, sexually or emotionally, I would always encourage members of the community, the public, to step forward. I know that sometimes it has been members of the public who have no mandatory reporting obligations whatsoever—even family members—expressing concerns and contacting child protection authorities that has led to a child being protected and saved from abuse, so it is important that we have a sense of obligation as members of the community. I think it is a social contract that we share to raise concerns with the appropriate authorities. But we have fully acquitted this recommendation.

Mr O’DONOHUE: Thank you, Minister, for that information, and I acknowledge that this bill acquits that recommendation of the royal commission. I take it from your answer that there are still some classes of people who are not captured by the mandatory reporting requirements, and I ask by way of supplementary—

Ms MIKAKOS: Well, I might just add—

The DEPUTY PRESIDENT: Minister, sorry, Mr O’Donohue had the call, didn’t he?

Ms MIKAKOS: Just so I am clear, we have certain classes who are already existing mandatory reporters—and I did not go into that; I just assume it is a given—doctors, nurses, midwives, principals, teachers, police, early childhood workers, youth justice workers, out-of-home care workers and registered psychologists. So there is a broad range of groups that are either pre-existing ones or have come on board through the regulatory changes commencing earlier this year, and now with religious ministry that is the full list of occupational groups that was recommended by the royal commission to be mandatory reporters.

Mr O’DONOHUE: As I said before, Minister, I acknowledge that. That is not in dispute or in question. My original question was: what classes of professionals are not captured by the mandatory reporting regime? And as a subset of that question, are those professionals not captured by the regime not captured because they are not deemed to be of significant risk, basically, of being in contact with children and therefore being at risk of that sort of offending?

Ms MIKAKOS: Thank you, Mr O’Donohue. I guess you have kind of answered your own question there. I mean, the royal commission considered the evidence. It is a question of where you draw the line. Do you apply it to retail assistants because children obviously come into a store? They are usually under parental supervision. It is a question absolutely of risk, and the royal commission considered all these things. Journalists were not included, politicians were not included—I am sure all of us would feel the obligation to report something if we had concerns anyway. As I said, I think there is a social contract that applies to issues around child safety, and I would certainly always encourage anybody who has a concern to raise it with the appropriate child protection authorities.

I just want to take this opportunity to sing their praises for a moment, because I know they are much harangued. I will always be in awe of the child protection workers who I got to meet during my few years as minister. They do extremely challenging work. I would also acknowledge, as I have on previous occasions, that members of Victoria Police who work in the sexual offences and child abuse investigation team and also do incredible work. It is really, really challenging work, and I am sure we can all be grateful that we are not the ones doing this work. The things that they are exposed to, the things that they see and hear every day—it is very, very challenging work. I would encourage anyone who has any concerns about a child’s safety to raise them with the appropriate authorities.

Mr O’DONOHUE: Thank you, Minister, for that answer. Minister, I just want to move now to—which again I flagged in the second-reading debate and was a discussion point in the briefing the minister’s office kindly facilitated—the setting aside of previous agreements, the new test that is established of ‘just and reasonable’, which again mirrors the tests that are legislated in Queensland and Western Australia. But as I mentioned in the second-reading debate, I think there seems to be some uncertainty around just what that test will provide for. Sometimes a broad test is appropriate to give courts that discretion. There is some concern from practitioners and others—victims—that the test being so broad will basically outsource to the court the factors that will need to be determined in calculating that test, which could lead to litigation and time. I would just invite you to respond to the proposition.

Ms MIKAKOS: Thank you for that question. This issue more broadly goes to the issue of civil compensation claims. It is important of course that people have their ability to get justice—of course no amount of money could ever compensate someone for the abuse that they have suffered—but it is the intention of the amendments to remedy some of the past injustice caused by the operation of strict time limitation periods in relation to child sexual abuse and reflect the changed community attitude towards the severity of child abuse and institutional responsibility for the harm caused. In this context it is the court’s discretion to determine whether it is just and reasonable to set aside a past judgement or settlement according to the circumstances of each case. This allows the court to apply broad principles and take account of any relevant factors. This may include, for example, the relative strengths of the parties’ bargaining positions, the conduct of the parties and the amount of the settlement.

Mr O’DONOHUE: Just one follow-up question on that issue, Minister. So the government is not concerned that that test being so broad to accommodate the vast array of individual facts and circumstances that will apply to each individual case will not at the same time create uncertainty which could lead to prolonged litigation and uncertain outcomes from the court in applying that test?

Ms MIKAKOS: I will just seek some further advice.

Thank you, Mr O’Donohue. As I was explaining, the bill is allowing for unfair historical settlement agreements concluded before 1 July 2015 or court judgements relating to survivors of child abuse made when a claim was outside the statutory limitation period to be set aside by the courts if it is just and reasonable to do so. It has been framed broadly to give the court that discretion to determine when it is just and reasonable to set aside a past judgement or a settlement according to the circumstances of each case. So it has been decided quite deliberately not to flesh out the types of circumstances. I have given some examples of the types of considerations that the court might turn its mind to in exercising its discretion—as I said, the relative strengths of the parties’ bargaining positions, the conduct of the parties and the amount of the settlement. We have seen a number of these matters set aside now in Western Australia, I understand. Of course our legislation stands in its own right in terms of how it will be interpreted by the courts, but we think that we have struck an appropriate balance there in terms of giving the court that discretion to be able to determine what is appropriate in each circumstance.

Mr O’DONOHUE: Thank you for that answer, Minister. In relation to the same part of the bill, the setting aside of previous agreements, I want to quote from an email I have received from Laird Macdonald, senior associate at Rightside Legal. I received the email this morning, and I think other members have received similar correspondence. My colleagues on the crossbench are nodding in agreement. I trust the government has also seen this issue. I quote from the email, which says:

The Bill is designed to allow abuse survivors who were forced to accept paltry settlement sums to have the deeds they entered into in the past set aside, so that they can claim compensation properly.

Unfortunately, it effectively excludes an enormous number of survivors who signed deeds between 2015 and 2018.

In 2015, the Limitations Defence was removed for abuse survivors.

However, the biggest legal issue for suing Church bodies remained: the … Ellis defence. The Parliament officially scrubbed the Ellis defence …

in 2018. As a result, this bill will create two classes of survivors:

One who can seek to address a past wrong if they settled before 1 July 2015 and another class that will be locked out if they settled from 2 July 2015 through to 1 July 2018. This time period is critical. It was during this time that the various religious institutions were signing up people for modest amounts of compensation for horrific acts of abuse as the Royal Commission was ongoing.

Minister, this is obviously an issue that has just come to light today, and I invite you to respond.

Ms MIKAKOS: Thank you for raising this issue, and I acknowledge that members received an email, I believe this morning, in relation to this particular issue.

The advice that I have is that the changes made to the Limitation of Actions Act 1958 by this legislation will give those who signed deeds of release whilst they were statute-barred from taking action, leading to manifestly unfair settlements, the ability to apply to the court to have those deeds lifted. People who entered into a deed after 2015 can seek to have the deed set aside where it was entered into in circumstances where legal or equitable remedies apply. People may also apply for redress under the national redress scheme. Where a person has signed a previous deed of release, they are not precluded from applying for redress.

The other point I would like to make is that our government is always willing to listen to victim survivors when they raise issues with us, and that will not change. If there are further issues that need to be considered to ensure that all settlements reached with victim survivors have been just and reasonable, then we are committed to working with them on the best way to address these.

In terms of the issue around excluding people who were affected by the Ellis defence, the further advice that I have received is that the bill has been written to ensure that cases we have heard about, where people signed deeds of release for only thousands of dollars or even counselling only, without any access to legal advice and without any other recourse, were able to apply to have their deed set aside, and this bill absolutely does that. People who for whatever reason signed recent deeds of release that were unfair are able to apply to have that set aside in circumstances where legal or equitable remedies apply. They are also able, as I explained, to apply for national redress.

Mr O’DONOHUE: Thank you, Minister, for that answer. So in essence, are you saying that because those who are post-2015 can apply to the national redress scheme they will be able to apply for compensation? Is that the essence of your answer to that question?

Ms MIKAKOS: Just by way of further clarification, it is open to anybody who has had a deed of settlement previously, regardless of the time period, to apply to the national redress scheme. In terms of the people who entered into a deed after the 2015 changes, as I said before, they can also seek to have their deed set aside where it was entered into in circumstances where legal or equitable remedies apply. In essence, in summary, just I guess to make it a bit clearer, they can apply. The test is different to what occurs under this legislation, where it is about a test, a threshold, of just and reasonable. They would have to meet other tests around unconscionability, duress—those types of issues. So that is why I was referring to legal or equitable remedies applying.

They are not exactly on the same footing, but they too can apply to the court to seek to have a deed of settlement set aside. As I said, our government, however, is willing to listen to victim survivors about these issues. We are committed to having that ongoing dialogue to ensure that settlements reached with victim survivors are just and reasonable. We are committed to continuing to work with them around these particular issues.

Mr O’DONOHUE: Thank you, Minister, for clarifying that there is a different test that will apply for those who entered into deeds post 1 July 2015. Can I ask: was that a conscious decision of government, or is this something that the government has only become aware of post the introduction of the bill?

Ms MIKAKOS: The advice I have is that the legislation was crafted so that it would be linked to the timing around when the statute of limitations bar was removed, which in Victoria was in 2015. This has been a conscious decision to replicate what has happened in other jurisdictions as well so we achieve some national consistency. Of course every jurisdiction has removed their statute of limitation bars at different periods of time, so the timing is not exactly the same in every jurisdiction. But in our case the changes made to the Limitation of Actions Act relate to 2015, and this is why the legislation was crafted to reflect that legislation.

Mr O’DONOHUE: Minister, I appreciate what you say on behalf of the government, that the bill has been drafted purposely, and I note the removal of the Ellis defence and the removal of the statute of limitations. I make the offer, Minister, in picking up on your previous comments that the government is prepared to continue to discuss with victims and others ways to make sure that access to compensation is fair and reasonable, that if the government wishes to report progress on the bill to consider this further and pass the bill either later today or tomorrow or Thursday, the opposition would be more than prepared to help with that. We have seen there is a great deal of support across the chamber for this bill, and if there is any further consideration the government wishes to do prior to passing the bill, we would be happy to support that.

Ms MIKAKOS: The government’s view is that it is important that we pass this legislation today. It is important that we provide this certainty to victim survivors in terms of those individuals who will be able to benefit from the ability to have historical settlements that relate to that pre-2015 period set aside. As I explained, there is an ability for individuals who entered into deeds after 2015 to also have their deeds set aside where they were entered into in circumstances where legal and equitable remedies apply. I have already explained to the house that we are always willing to work with victim survivors and to listen to their concerns. I have given that commitment. I think it is important now that we move to pass this legislation, which deals with many, many issues, including mandatory reporting for those in religious ministry and many other issues, and that we pass it today to ensure this can come into law.

Mr O’DONOHUE: I have some questions on a different issue; I am not sure if anyone else wants to go.

Ms PATTEN: Minister, I listened carefully to your comments and to the statements that you made in regard to the email that Mr O’Donohue read out. Just to clarify in my head, for those deeds that were made unfairly after 2015 and before 2018, there are options within this legislation for them to apply to have those deeds set aside, but it is possibly a slightly higher bar than for other survivors.

Ms MIKAKOS: Yes, Ms Patten. They are common-law options—not options set out in this bill but options available under common law in terms of, as I was explaining, legal and equitable remedies to deal with things like duress, unconscionability and those types of tests. It is a different threshold test that the court would consider, but those options are available to individuals in those circumstances.

Ms PATTEN: Thank you, Minister. That actually makes it a lot clearer. Mr Macdonald, who emailed us about this, is correct in saying that this bill actually will exclude the victim survivors who made arrangements between July 2015 and July 2018. They will have to seek common-law remedy; is that correct?

Ms MIKAKOS: In any event, one would need to apply to the court. It is a matter of court discretion, under this legislation, for someone to seek to have a deed of release that was signed whilst they were statute barred before the limitation of action changes happened in 2015. They would still need to apply to the court, and the test there is, as we have been explaining, whether it was just and reasonable. So that is the process for individuals in those circumstances: they apply to the court and that is the test—just and reasonable—under this bill.

For those people who are post the limitation of action changes passed by this Parliament, which commenced in 2015, they too can pursue a course of action through the common law. There are different pathways, I guess is probably the easiest way to explain this, for those two classes of individuals.

Mr FINN: Minister, in asking my question I just point out to you that this is a very personal matter for me because whilst I was not molested myself I went to school at a time when—what would you call them?—a nest of paedophilic priests were operating at the school that I was attending. It came obviously, as you would imagine, as an enormous shock to find out some years later that some good friends of mine, some good schoolmates of mine, had been victims of these dirtbags. Indeed one friend of mine, not long after we left school, shot himself. That came again as an enormous shock because I just could not work out why. I mean, it just did not make any sense because he was such a happy-go-lucky, funny, all-round good bloke. I am making assumptions here, but given what was going on at the time in the school one can draw some conclusions. So it affects me very personally, I have to say, in these matters.

But there is one question that I have to ask, and it is one that came to my mind the very first time that this was put to me—it would be three or four years ago now, I reckon—and that is: how would this law be enforced? Given that there are two people in a private conversation, in a box removed from everybody else, it is unlikely that either will testify against the other. You have got the penitent, and you have got the priest. It is very unlikely that one will testify against the other, much less actually report what had occurred. How do you anticipate that this law will be enforced? And if it cannot be enforced, why would you bother—apart from, I have to say, making a statement of, ‘We don’t want this to happen’? And of course we do not. But apart from actually making a public statement, what would be the actual practical value of this legislation if enforcement is impossible?

Ms MIKAKOS: Can I firstly thank you, Mr Finn, for sharing your experience of what occurred at your school. I am very saddened to hear what happened to your friend. I know for many, many people this is a deeply personal issue. In conversations with many people about these issues, over the years as a parliamentarian, I have heard so many stories like this of people who have been shocked. We have had media story after media story of abuse that has occurred in many of our schools across Victoria, and people have been shocked to learn that this was happening to their contemporaries at the time that they were at school, at various schools.

So I know it is an issue that has touched many, many Victorians—many Australians, in fact—and this is why many people have such strong views. And I apologise for getting a little bit emotional about this earlier, because I know it has touched so many lives. In terms of the specific issue that you have raised around why we are expanding the failure to report offence to cover religious confessions, as I was explaining in my summing-up earlier, the royal commission recommended that failure to disclose offences should apply to information disclosed to a minister of religion during religious confession.

The royal commission heard evidence that in confession children often disclose sexual abuse suffered by them. We should not always assume it is just a priest confessing to another priest, though there was evidence of that as well. We have had children often disclosing sexual abuse suffered by them. We have also had, unbelievably, clergy members disclosing their abusive behaviour to deal with their own guilt, feeling that they were absolved and going on to reoffend many times over because they felt that they had been absolved.

I think absolution of the sins should not be offered. There should be a very clear message through this law but also, I hope, through a cultural change in a church that I know you care deeply about. There needs to be a cultural change so that individuals are required to report themselves but also for the person who is the mandatory reporter to take that step of reporting these matters to authorities. And I sincerely hope that this law is complied with, despite the statements that have been made to date.

I will acknowledge that prosecutions for failure to disclose offences are not particularly common; however, prosecutions themselves are not the only benefit of the offence. The offence helps to protect children by sending a very strong, very clear message that it is every adult’s responsibility to safeguard the wellbeing of children by disclosing a reasonable belief about child sexual offending to the police. Receiving this information is not of itself sufficient to commit the failure to disclose offence. A religious minister would need to form a reasonable belief that the sexual offending had occurred and fail to report that information to police as soon as practicable. A minister would not commit the offence if they had a reasonable excuse for not reporting to police. The bill makes it clear that it would not be a reasonable excuse if the information was disclosed in religious confession.

So we saw evidence in the royal commission of priests confessing to other priests and going on to reoffend—the priests then getting moved, shunted around different schools and different parishes. The offending went on for years. So many children were abused subsequently. I think it is important that we pass this law, that we remove this exemption to this failure to report offence and that we do bring people of religious ministry within scope of this offence, as was recommended by the royal commission—it having considered all the evidence—but also that we as a Parliament, on behalf of the Victorian people that we represent, send a very clear message that we demand cultural change. We demand institutional change in all of our institutions to ensure that these matters are reported.

So I understand the question that you pose, but I think we are doing two things here. We are changing the law to make it an offence, but I think also, on behalf of the Victorian people, we are sending an unequivocal message here today.

Mr FINN: I hear what the minister has said, and I agree with what she says about the shifting around of priests and so forth. I deeply regret that. Ronald Mulkearns and Frank Little, for example, are just the lowest of the low as far as I am concerned. I deeply regret that they have missed justice here on earth. I have no doubt that they have not missed it in the next life; I hope they enjoy the heat. But my deep concern is that this is a law, and I have been taught from very early on by people who know these things that to pass a law that cannot be enforced is meaningless and is in fact a very bad practice. If, as I think you have accepted, this law cannot be enforced, I just wonder why we would pursue it. As I say, given that yes, you mentioned that there may be kids giving evidence and so forth—I am not sure what relevance that has—but in terms of a guilty priest confessing his sin to another priest, I do not believe you are going to have one testifying against the other, particularly in terms of the guilty priest testifying against the priest who is hearing the confession.

I do not think that is going to happen. I really do not think that is going to happen, and if that is not going to happen, you are not going to get a prosecution, you are not going to get a conviction. And if you do not get a prosecution or a conviction, it makes it all, to my way of thinking, largely a waste of time.

Ms MIKAKOS: Mr Finn, I strongly disagree with your view about this offence. I think it is a very significant change. Whilst the ministers of religion themselves may not effectively dob themselves in—unless they have a crisis of conscience, who knows, let us hope so—the matter might come to light subsequently because we may well have a priest who is prosecuted for their crimes against children, sexual offending against children, who happens to disclose. This has occurred in past court cases: they have disclosed by way of their defence that they had confessed their sins to another clergy member. These matters can come to light. They come to light much later, but we have seen these matters come to light. It might come to the attention of police that an adult confessed to committing a sexual offence against a child to a religious minister during confession. By way of an investigation of the matter the person might well disclose that to police themselves. They may disclose it to another individual and it is reported to police and it is investigated. So these matters may well come to light.

I am not actually able to find the exact case at the moment, but I recall there was an individual. We had evidence at the royal commission, I believe. I will give you an example of an Australian priest using the confession box to confess his crimes against altar boys. He sought absolution and received absolution. Let me just check this for one moment.

I just wanted to seek confirmation that this was evidence to the royal commission about Melbourne paedophile Father Victor Gabriel Rubeo using a confessional situation to alert another clergy member to his offending and receiving absolution. These matters came to light subsequently through the royal commission process, so if we had had this law then, the priest that he had confessed to would have committed an offence. That would have come to light, and that priest could have been prosecuted. So we have seen situations through this process of victims and survivors coming forward and reporting these matters, paedophile priests being prosecuted and it becoming known that they had confessed their crimes to a clergy member. What we want to do here going forward is to ensure that when this happens again they are required to report those crimes to authorities.

It is an important symbolic act, but it is beyond symbolism. It is actually giving some real teeth to the law and making sure we take away this one class of exemption that we have had that has allowed these crimes to just keep on going for decades.

Mr FINN: I accept the symbolism, Minister. As I mentioned before, the symbolism is clear and very strong. You mentioned that this may come to light some years later and there may be some prosecution some years later, but I am just wondering how much weight the word of a paedophile priest would have against anybody in terms of what they had confessed or not confessed in the confessional. Personally I find the paedophile priests that I have known to be total and thorough liars. They are really, really good liars. I have only known three, thank God—or four, sorry, as I found out later. But they are really, really good liars, and if I was relying on them for a conviction, I would be very doubtful about whether I would have success. I do not want to pursue it anymore, but I just leave it on that. I just think that it is a matter of concern that we will never get a conviction under this law.

Ms MIKAKOS: Firstly, Mr Finn, as I explained, it may well be a child disclosing that they have been sexually abused because tragically they feel that they have sinned and they have gone to confession seeking to confess and seek some support from their clergy member. I would certainly expect that that minister of religion would report that matter to authorities as well as obviously comfort that child and provide every possible support to that child. We have seen situations where children thought somehow they were in the wrong. That came through very clearly through all the inquiries through the royal commission—that children were not believed, tragically.

I think it is important that children are believed. I think it is important that we just change the culture of how we think about these issues as a society. But as I explained, we have had evidence to the royal commission of priests who have subsequently been jailed who have said they had gone and confessed their crimes and been absolved. It was their feeling that they were absolved of their sins, which effectively was the green light for them to continue with their offending. I think it is important that that ends.

Mr O’DONOHUE: Minister, I just want to ask one final question in relation to the topic that I was canvassing before and that Ms Patten was canvassing before, about the two classes, now, of victims that will be established as a result of this bill. Did the government give consideration to codifying the common-law rights that are available to victim survivors post 1 July to provide greater clarity, and again, is the government comfortable that those victims who entered into agreements post 1 July 2015 will not be in a lesser position when it comes to accessing appropriate compensation?

Ms MIKAKOS: It is important that we understand that this is a law that applies to a broad range of civil claims. It could be a workers compensation matter, it could be a transport accident matter, it could be a building dispute, it could be any range of civil claim matters. So it is a complex piece of work to codify something that really would be codifying the common law across a very broad range of circumstances, and it is important that we not have unintended consequences in relation to that broad gamut of civil law here. The bill clearly seeks to make some changes in relation to those people who were statute barred. This is why the legislation was crafted in this way.

Mr O’DONOHUE: Minister, again I acknowledge the government’s preparedness, if there are unintended consequences or outcomes that appear to be unjust, to continue to monitor the situation. I think that is important for the house.

Minister, I do not want to cut across anyone else who has questions, but I just have a last set of questions on a different topic. They relate to clauses 4 to 8 and 18 in relation to the powers of the secretary enabling Aboriginal agencies to act. If I could move to that, Minister, clause 4 enables the Secretary of the Department of Health and Human Services (DHHS) to authorise a principal officer of an Aboriginal agency to exercise the powers of the secretary in relation to non-Aboriginal children who are the siblings of an Aboriginal child. Minister, where can the public find the names of Aboriginal agencies and their principal officers? Are they published, for example, in the Government Gazette? As a supplementary, who has oversight of these agencies? Is it the Ombudsman, the commissioner for Aboriginal children et cetera?

Ms MIKAKOS: Thank you. I am really pleased to have an opportunity to talk about this particular issue. I guess just by way of quick background, I am sure the member would be well aware that we have a very concerning over-representation of Aboriginal children in out-of-home care system. This is why we took action in our previous government to address some legal issues that related to the commencement of section 18 of the Children, Youth and Families Act 2005. Effectively what those changes have allowed for is that the Secretary of the Department of Health and Human Services can authorise the principal officer of an Aboriginal agency to perform specified functions and exercise specified powers conferred on the secretary in relation to a protection order for an Aboriginal child. In essence, effectively what is happening is Aboriginal organisations who are involved in this Aboriginal Children in Aboriginal Care program can exercise legal guardianship over Aboriginal children in care.

At the moment the only two organisations that have been authorised under this program are VACCA, the Victorian Aboriginal Child Care Agency, and BDAC, the Bendigo and District Aboriginal Co-operative. So they are the ones that have had the secretary sign off on that authorisation, but I also point out that there are a couple of other organisations in the pre-authorisations phase, and they are the Ballarat and District Aboriginal Co-operative and the Njernda Aboriginal Corporation.

So we have been working as a government to ensure, through the Aboriginal Children in Aboriginal Care program, that important decision-making ability for Aboriginal organisations—that decisions are able to be made for children under their care. I have been provided with some further advice that the register of community service providers, including Aboriginal organisations, is all on the DHHS website as well.

Mr O’DONOHUE: That was very helpful, Minister. Minister, the Children, Youth and Families Act requires that children are connected with their culture. Given the changes the bill will implement, what measures will Aboriginal agencies have in place to ensure non-Aboriginal children are connected with their culture?

Ms MIKAKOS: Thank you. The department works to ensure that all children who are in care remain connected to their culture. We have seen through a long history of dispossession of Aboriginal people from their land, their cultural background and their understanding of their culture a skyrocketing of problems. So it is well understood that it is very important for Aboriginal children to remain strongly connected to their culture as a protective factor for those children, but it is of course an important factor for all children.

What the changes that we are making here in this bill do is ensure that for any child we respect the strong relationship with their siblings. We know that they are very significant to any child. It may in fact be that the longest relationship they have with any family member in their life will be with their sibling. This is why for children in care it is important that we protect those relationships and help to keep sibling groups together. What these changes will do is ensure that responsibility for non-Aboriginal siblings of Aboriginal children is able to be addressed together with responsibility for Aboriginal siblings. It effectively means that siblings can be managed together by the one organisation; otherwise you would end up with, potentially, children from the same sibling group being managed by different organisations, with different carers and split between different parts of the state. We know that that can be a very significant problem for children in care. I think this is an important change in terms of being able to try and keep sibling groups together wherever that is possible.

I point out that is not always possible, because sometimes there is abuse occurring within a sibling group as well, so obviously the safety of all the children involved is considered regarding the appropriateness of any placement.

Mr O’DONOHUE: Thank you, Minister, for that answer. Minister, given that the term ‘sibling’ is not defined in the Children, Youth and Families Act, how will a sibling be defined? There can be stepbrothers, half-brothers, half-sisters et cetera. How will the definition of sibling be achieved?

Ms MIKAKOS: Thank you. Whilst the term ‘sibling’ is not defined, the term ‘parent’ is defined, and obviously that has a bearing on how this is interpreted. Look, the term ‘parent’ is broadly defined in the legislation, so by extension stepchildren and stepsiblings come within scope of this. It is important in our modern society that we accept that family groupings and sibling groupings can look very different to what we may have thought in the past. This is all done with the best interests of children in mind of course.

Mr O’DONOHUE: Thank you, Minister. A final question from me, Minister: do the parents of a child have to agree before one or more of their children is placed into the care of an Aboriginal agency or indeed any agency?

Ms MIKAKOS: It is important to acknowledge that with child protection matters the wishes of parents are not always preferred; children are removed for the safety of those children. In terms of these types of decisions, these are matters that go through court processes. The best interests of children are considered. The wishes of parents are considered, but they are not the conclusive factor.

Mr GRIMLEY: It is pleasing to see that we have got so much support for this bill. It is fantastic, and it is the essence of what our party is all about—what we can do to prevent our children from being sexually abused. This question is more in relation to the working with children checks, by the way, so I am hoping I have not missed the boat there.

The Royal Commission into Institutional Responses to Child Sexual Abuse found that each state and territory has a working with children checks program which operates independently of the others. The final report produced by the royal commission states that:

… the various schemes and underpinning laws are difficult to understand and apply …

making compliance difficult. It also found that, and I quote:

the opportunities for perpetrators to forum shop for WWCCs—

working with children checks—

in jurisdictions with less stringent screening processes, or where certain background records are less likely to be identified and assessed …

as a result of a lack of a nationally consistent scheme. My question is: in what way does this bill prevent such forum shopping for working with children checks?

Ms MIKAKOS: Thank you for your question. The Working with Children Act 2005 is being amended to prevent people charged with, convicted or found guilty of the most serious offences for the purposes of the act from applying to VCAT for a working with children check. The changes to the Working with Children Act will limit the right of appeal to VCAT for any person who has as an adult been charged with, convicted or found guilty of a category A offence. Category A offences are the most serious offences for the purposes of the act. They include murder and attempted murder; rape and attempted rape; sexual offences committed by an adult against a child; child abuse material offences committed by an adult; and bestiality, which is being inserted by this bill. The limiting of appeal rights represents a further step towards strengthening this scheme and acknowledges that some individuals will always pose a risk to the safety of children. I am further advised that over the past five years there have been approximately 290 030 negative notices that have been issued. Of these, approximately 1050 were based on category A offences.

In terms of the royal commission and I guess the comment that was made by the member around national consistency, I would add that the royal commission did recommend standardisation across states around these issues. The advice that I have is that the states and territories are all working together on this particular issue.

Mr GRIMLEY: Thank you, Minister, for that, and it is pleasing to see that the strengthening of the Working with Children Act is coming along. I have just got a query in relation to the time frame. Given the somewhat lengthy wait time that often occurs when applying for a working with children check, can the minister please indicate whether or not a person can engage in child-related work before their working with children check application has been approved?

Ms MIKAKOS: Thank you for that further question. Typically what would happen is an employer would do a police check of their prospective employee. Once that has been received by the employer and they find that there is nothing disclosed of concern, the person may commence their employment whilst their working with children check process is underway. So it is correct that they can start that employment, but as I said, there is typically a police check that has occurred beforehand. But there is an offence provision that applies if the working with children check comes back and it has been knocked back. Then that person must cease employment.

Mr GRIMLEY: Thank you, Minister. Are there any offences identified in relation to that then if that is the case—that the person who makes application for a working with children check begins employment, in particular in a child-related industry, and that check comes back rejected? Would there be any offences committed then?

Ms MIKAKOS: Thank you for that further question. I just needed to clarify one issue, and that is that for a person who has committed serious offences in the past it is actually a criminal offence for them to engage in child-related work whilst they are waiting to be given their working with children check. So they actually would have committed a criminal offence in those circumstances. Any person subject to an offence or matter listed in schedule 3 of the Working with Children Act is prohibited from engaging in child-related work until such time as they are given a working with children check. The matters listed in schedule 3 include category A and category B offences, which are the most serious offences for the purposes of the working with children check, and include murder, rape, sexual offences, serious violent offences and drug offences. The matters in schedule 3 also include sex offender and serious offender orders and obligations. So if a person who is subject to one of these offences or matters listed in schedule 3 engages in child-related work whilst they are being assessed, they will be subject to penalties of up to two years imprisonment, a fine of $39 653 or both.

Clause agreed to; clauses 2 to 35 agreed to.

Reported to house without amendment.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (16:58): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (16:58): I move:

That the bill be now read a third time.

I thank members for supporting this bill, and I thank those who have championed this bill who are with us here today.

Motion agreed to.

Read third time.

The DEPUTY PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.