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Implementation of the recommendations of the Lost Innocents and Forgotten Australians reports

CHAIR (Senator Moore) —We have three senators here today. Senator Don Farrell is from South Australia, Senator Mitch Fifield is from Victoria and I am from Queensland. This does not reflect the interest of our committee in this inquiry. There is an amazing workload at the moment with a number of committees meeting at the same time across the country. I assure you that the Hansard will be deeply read by all senators involved. That will be part of our deliberations in preparing the report.

This is the fourth hearing for the committee’s inquiry into the implementation of the recommendations of the Lost innocents and Forgotten Australians reports. It is important that people understand that our inquiry is looking at the progress of the recommendations of the inquiries. We are not redoing the original inquiries. I know that some of the information that people will share will be reflective of their own circumstances, but the focus of our inquiry is to see what has happened with the recommendations.

Welcome back, Mr Murray. You have done this before. It is good to see you again. You have information on parliamentary privilege and the protection of witnesses. We have your submission, thank you very much. I invite you to make some opening comments before we go to questions.

Mr Murray —In my submission I concentrated on records, research and archives. These are the fundamental things required to underpin any coordinated, sensible response to care leaver issues. The lack of information and knowledge is a fundamental driver in why so little has progressed for care leavers since your report and even before that. Both the government and non-government levels have been pretty poor in that. Indeed, I think the care leaver organisations themselves have not really progressed in what they are doing from the time of your recommendations.

Let us take for example the issue of reparations. How can anyone establish a scheme to give restitution when there is so little information to go on? Information about the incredible lack of education attainment, the high probability of marital and family breakdown, drug addiction and homelessness is not available. Reparation schemes and their proposals run the great danger that they will only focus on whether someone was raped or tortured as grounds for compensation rather than the fact that a person’s entire life chances and possibilities were extinguished by the care that they received as children.

Shouldn’t a reparation scheme place some value on the fact that the state and the churches, who continue to run some of the finest educational institutions in this country, said to some children, ‘Because of your social status, we will expend large amounts of money ensuring that you get the finest education possible’ yet, on the other hand, they said to the children in their care: ‘We will not give you these opportunities. You will not have any chance of becoming a professor, an executive or even a graduate. Instead, you shall become a lifelong welfare recipient, a drug addict or a criminal. We know that you will never own your own home, send your children to private schools or have an overseas holiday.’ These things occurred. These decisions were made. Only a few years ago one church agency, which runs some of the finest schools and university campuses, admitted in a report that it was time to stop paying lip-service to the education needs of children in care. I think that was just before you did your inquiry, and I think I mentioned it in my previous submissions.

If we do not know how much money is being expended every year ineffectually to support care leavers through homelessness, unemployment, drug problems, criminality and the like, can we have the datum from which to say the state can afford to give out X dollars in reparations—excessive as it may seem—in initially large funds such as occurred in Ireland. It would be much better for the state to derive a benefit from that expenditure by investing in care leavers and providing us with the means to own our own homes, pay for our own education and provide our children with better life opportunities. Without the fundamental information required to have even a partial understanding of the social conditions for care leavers I contend that the state is wasting a vast fortune.

My submission also focuses on the collection and dissemination of records for care leavers, with recommendations 12 to 18 of the Forgotten Australians report. I believe it is essential that a scheme for this should follow best practice and be run, as I suggest, by existing government agencies that already provide archiving services across the country. This scheme, given its importance, could even be run nationally or under federal powers or at least be coordinated by federal guideline legislation.

The last thing that should be allowed to occur is the type of model that was promoted to the committee in evidence on 30 March. That model would be a nightmare. It proposes very heavily duplicating services that already exist and, as was clear from the evidence, cannot even suggest or pretend that it is not duplicating them in anything other than an incompetent, ineffective and expensive fashion. When asked some very simple questions by members of the committee about what are basically 101 processes that archive authorities deal with everyday, such as privacy implications and other legalities, including the right of access to information, the answers suggested that the establishment of steering groups and unpacking the issues over a number of years was an adequate if not appropriate response. We do not need a bunch of welfare workers playing games and learning how to come to a 101 understanding on the collection, collation, preservation and dissemination of this important information. We already have the experts who do this on a daily basis and who are extremely familiar with the rules and legislation and understand what they are doing. They deal with disturbing information that upsets people and they have in place processes for counselling and assisting people through dealing with those records already.

I can understand why you are taking evidence from welfare workers in relation to this but I would like to see the committee take evidence from state records departments to see what they could do in relation to this. I am especially concerned that the agencies who have come to you recently, at least in New South Wales, have been seeking exemptions under existing state legislation from state records acts.

Again, this is aside from the fact that these welfare workers have previously ignored hundreds and hundreds of recommendations and dozens of reports telling them that they need to improve their record-keeping anyway. In my submission to you previously I listed about 20 reports where that recommendation in New South Wales had been made time and time again over a 30-year time frame. Our data and information is too important to entrust to people who have clearly failed to do the task in the first place. As this information is to be used for a multitude of purposes, including legal cases brought against the very agencies that came to you in March, they should not be allowed to control what information is available and how we can access it. It was clear in the evidence that you received that the researchers were already falling into the trap of deciding along with their agency partners and colleagues just what information they deemed appropriate to be released from their archives. I believe that is totally inappropriate. How do they think they can participate in any meaningful way in the exposure and understanding of what their agencies and colleagues have done without contaminating and changing the nature of that information by their bias and self-interest?

The fact that these people just do not get this point and think they can run these programs where we already have existing methods of dealing with it confirms what I told the committee four years ago. I stated in evidence then that these agencies would try to subsume our interest into theirs and that they would try to force us back into being their dependent clients. This is disturbingly encapsulated for me at least in the recent report of the Victorian child welfare front group, the peak agency that calls itself the Centre for Excellence in Child and Family, It’s not too late to care. I stated that the child welfare agencies would look at how to profit from our plight and that should be prevented. I say it again to this committee: child welfare agencies do not have the expertise let alone the right to meddle in the adult lives of people they damaged as children—and that is our lives.

We need the work of committed experts who work with adults getting them through these traumas. They are everywhere; they are in health departments and social work agencies. We do not need child welfare workers. A fundamental message in my submission is regarding a commissioner on the Human Rights Commission—I think you now call it. We need that position not just to promote care leaver concerns but to guard against these continued and abusive incursions by past providers into our lives, our wellbeing and our collective futures.

CHAIR —Thank you.

Senator FIFIELD —I am coming to this area fairly fresh. I am interested in how you came to be involved in this area.

Mr Murray —Like a lot of people, by accident. I was in care at the age of five after my mother murdered my father. She went to jail for life and my two brothers and I sort of got a similar sentence, really, I believe.

Senator FIFIELD —And you were in care from the age of 5 to when?

Mr Murray —I joined the Navy at about 17½.

Senator FIFIELD —A different form of—

Mr Murray —Institutionalisation.

Senator FIFIELD —care. Indeed.

Mr Murray —I think it was a valuable one for me, actually.

Senator FIFIELD —You made a point about compensation schemes and the difficulty when you do not have the evidence, the records, the data. Are you saying that there is no scope, no role, for a compensation scheme at all? It is better to target assistance to help people in their lives, to help people with the issues that they have?

Mr Murray —Not at all. That needs to be done and it should be done anyway. We have existing services to do that—mental health services especially. I think there should be a system put in place and I think that system needs to be informed. The Tasmanian model, which I went through, seemed to be mainly concerned with physical and sexual abuse. Those things are terrible and undoubtedly they happened to a lot of people but the systems made children who became—around 40 per cent of prisoners in New South Wales come from a care background. At the time I was in care, that prisoner age group now, was 0.2 per cent of the population. That small number has turned into 40 per cent of the prison population. Compensation is really important. Tasmania offered $60,000. For people from these backgrounds it is a hell of a lot of money but the reality is that it is not going to change your life, it is not going to get you a home, it is not going to give you the opportunity to go out and say, ‘I want to get the education now that I was denied as a child.’

One of the big problems, and I will try to finish this quickly, is this: in my last submission four years ago I gave a list, for New South Wales only, of about 20 or 30 reports that had said time and time again, ‘improve your record-keeping’. It never occurred, and we get evidence given to you on the 30th which said, ‘Oh, this is a great opportunity to improve our future record-keeping,’ which I think is inappropriate. People are now faced with the problem of trying to get over time constraints to get a matter heard and the departments come back and say, ‘We don’t have the records that would allow us to mount a proper defence against these people.’ The fact that they did not do what they were told by numerous committees and inquiries and royal commissions is now being used against the victims of such shoddy practice to deny them accessing justice.

Senator FIFIELD —But there is an incentive for shoddy practice.

Mr Murray —I am saying that is why we can go from McCulloch in the 1930s and his royal commission which made these recommendations all the way back to the 1880s with the Windeyer commission in New South Wales which made the same recommendations. Nothing has occurred. I actually take some offence that the plight that we find ourselves in today is something that the welfare agencies will come to you and say, ‘This is a great opportunity to fix what we are doing now.’ I am not happy with that.

Senator FIFIELD —Where there are gaps in the data how should a compensation scheme deal with them?

Mr Murray —I have only studied the New South Wales situation and a little bit about Tasmania. I have not looked at this for a long time, but the reality was that, when I was in care, under the 1936 legislation, I had six months to mount a case. It was less than three years. I am happy to go back and find that in the legislation for you. Children who had come through the care system had a least half the amount of time of an average citizen to mount a case against the state before the statute of limitations expired. I think it was six months, it may have been three years but, whatever the situation was, it was certainly a hell of a lot less than the average citizen had. These are people with no social connections, no supports, no education, who are somehow meant to leave care, get their act together, realise that what had occurred to them was inappropriate and wrong and then mount a case. It was clearly impossible. I think these types of things need to be, as has been put to you before, unbundled and looked at when we come to formulating any compensation or restitution scheme.

Senator FIFIELD —Part of the answer is to give people the time to prepare their case and to try and source evidence in circumstances where evidence might be difficult to track down.

Mr Murray —I think in the Irish model they took it that the system was so horrible that it should be more of a civil standard of proof of what you were claiming rather than a criminal standard. Certainly, given the failure of major institutions and bodies to actually protect these children in the first place and then their failure to maintain adequate records so that people like us could come back at a later date and pursue justice, these things need to be looked at in a restitution model. We should be given civil standards.

Senator FIFIELD —You also have the concern that compensation be available not just for clear-cut and obvious cases of abuse but also for abuse which is more of a systemic nature.

Mr Murray —Yes, in New South Wales they call it systems abuse and have for quite some time. It is just the poverty of not educating people. As I understand it, and it is hard not to find, children in care are still highly unlikely to get past year 8, to get past minimum leaving age, and it has been like that for ever. It is weird, in New South Wales the authorities can remove children from parents who are not ensuring that their children are staying past minimum leaving age and then, once in care, they do not go to school.

Senator FIFIELD —That is perverse.

Mr Murray —Yes, it is perverse.

Senator FIFIELD —Thank you.

Senator FARRELL —Thank you for coming to give us some evidence, Mr Murray. I was interested in your submission where you talk about the issue of the churches objecting to the embryonic stem cell research and your concern that children in care could become attractive alternatives regarding organ supply. Could you tell us a bit more about what you believe in that regard?

Mr Murray —It is undoubtedly the case after that legislation has passed that children in care are the only people where there is a presumption that they have agreed that their organs are available for transplant. No-one has to ask them or inform them. There is no idea of informed consent. It is mentioned in the second reading speech but it is not in the legislation.

I plan to do a lot more research into the history around medical research, but the reality is that children in orphanages have long been used as guinea pigs for medical research. The first lumbar puncture procedures were perfected on orphans in England. God knows how many children were paralysed while that medical practitioner was perfecting his procedures, but even today lumbar puncture is considered a highly dangerous and invasive process. Children were used for smallpox trials, we know of other trials from evidence given to this committee regarding children in Victoria.

I just have a concern, and the legislation now exists, that even NGOs can have their staff make the decision that these children’s organs are available for transplant. The task force that was set up and run by DOCS—and I was a member of that task force, which I did not put in my submission—agreed that there should be a prohibition on the removal on any body tissue not required for immediate transplantation into another person. So they should not be taking skin; they should not be taking bone and grinding it into preparations; they should not be harvesting the body and storing something on the shelf for two or three years. It should only be for life-saving, immediate transplantation. I do have a major concern about this. Have a look at the Nazis: they started off their wave of terror by euthanasing damaged children, mentally ill and deformed children.

Senator FARRELL —You are not saying that any Australian government is on a par with the Nazis, are you?

Mr Murray —No. I am saying that in the past protections have been less than adequate and that children have been used as a lab rats.

Senator FARRELL —There is a bit of difference between that and what occurred—

Mr Murray —That occurred after the entire thing had happened with the Nazis and we had had those large tribunals and said: ‘We need to put in place informed consent. You cannot do research on individuals who are not aware of what the research is and what its purposes are, and without their permission. In New South Wales and Victoria they were doing that long after—I cannot think of the name of that tribunal.

Senator FIFIELD —Nuremberg.

Mr Murray —That was happening in Australia long after Nuremberg. I find that shocking, and I find it shocking that there was no inquiry into that. I understand that the National Health and Medical Research Council said there should be an inquiry, that they were disgusted and disturbed by it, but nothing occurred.

CHAIR —Mr Murray, I am diverted by that noise next door. We have tried everything to get it stopped and I will not stop trying to get stopped. It is outrageous, and I do apologise that that is interrupting us. You have made a proposal about a record-keeping authority and I would like to get more about that on record. I have read the draft bill from Member Wong. I take it that has not gone anywhere; it has just been tabled in the New South Wales parliament.

Mr Murray —It was a private member’s bill.

CHAIR —And we know what happens to those.

Mr Murray —Yes. He never got it onto the roster, or whatever it is called.

CHAIR —But he has tabled it—it is on record in the New South Wales parliament?

Mr Murray —No, it is not; he never got to table it.

CHAIR —I am interested in it because it is a way of looking at the process. You have focused a lot of your submission to this inquiry on that. Your proposal, in brief, is to set up a special authority.

Mr Murray —No, I think in New South Wales it should rest with the existing State Records.

CHAIR —But one of the issues you raised in your submission was that giving ownership to an authority that had not done their job was inappropriate. It has been put to us many times that state records departments have been derelict at best in keeping these records. So why would you think there would be a stronger provision of service by doing that again?

Mr Murray —It would mean not duplicating the storage facilities or the people who know how to store, restore and preserve these things, to digitise them or to set up new places for people to come and view them. And the legislation should say: ‘This is your role, and you do have to operate with a fair amount of compassion and assist people through this.’ I think that should be spelt out in legislation. In the model that was put to you, there is no regulation.

CHAIR —No. It is also very new in its—

Mr Murray —It would be very ad hoc. The authorities that are meant to be doing this have done a reasonable job—although a lot of records have been lost. But there are a lot of things in there that I think are inappropriate, such as DOCS saying, ‘These records are closed for 90 years.’ Senator, you deal with federal records, state secrets; are they locked away for 90 years? Why is it that these records are? They are about children who, unfortunately—I am pretty concerned that most of these people, like me—are lucky to reach a ripe old age; in 90 years they are all going to be dead, without a doubt. I think it needs to be fixed up and the processes in state archives need to change. But they are the relevant authority; they have the experts. What I saw there, which was put to you on the 30th, was so 101 that we are going to have to reinvent the wheel and not have protections in place, and I can see people being re-abused.

CHAIR —Have you actually had a chance to speak with those people? What I am seeing is that they are trying to put together something in Victoria—it is very new, very early—and you have obviously worked with people in New South Wales. It actually highlights the issue that, despite putting in recommendations four years ago about this particular issue, about access to documentation, about records, little has been done.

Mr Murray —Yes, and it is only in the last two months that anything really has occurred.


Mr Murray —Again, I do not really see that this is a role for child welfare agencies.

CHAIR —Sure. That is that core issue about the people who were—

Mr Murray —We are adults.


Mr Murray —And we need to be treated as adults. It is discriminatory that, to get health services or housing services or access to archives and documents about our lives, we have to go back to child welfare services. Why do they want to expand what they do? They cannot do their own job now. There are dozens of reports in Victoria saying, ‘Please change this, do this, do that, do this; that’s your area of expertise.’ So why do they want to run out and create an archive authority?

CHAIR —Yes, I see the point. This is an issue that consistently comes up, just getting records that people need to have—and, as your submission touches on, it is not just the people themselves; it is their families. I know you have done work on the privacy aspects in relation to these records, which continues to be a bugbear.

Mr Murray —Yes.

CHAIR —Thank you very much for your submission. We will be back in contact with you, without doubt, because these issues continue to be important. We appreciate your time again.

Mr Murray —Thank you for inviting me along.

 [10.25 am]