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

CHAIR —Justice Mullighan, this is Claire Moore. We met in Adelaide with the Indigenous committee.

Mr Mullighan —Yes, I remember.

CHAIR —I have Gary Humphries with me who was on the same committee. We will reconvene our committee. There is only Mr Humphries and me at the moment, but other people may join us. As you would understand, we have an ongoing issue of time, so I thought we would get started.

Mr Mullighan —I would just like to say that I am not a judge.

CHAIR —What would you like to be called?

Mr Mullighan —Something nice.

CHAIR —Mr Mullighan?

Mr Mullighan —Yes, that is fine.

CHAIR —We have a copy of your report. I have waded my way through it, but everybody has seen the summary at the start and the terms of reference. That is what we have in front of us, and we have also seen and heard various media comments about your report. In the room now is Senator Sue Boyce from Queensland.

Senator BOYCE —We met in Adelaide.

CHAIR —The three of us were there, so that was very useful. Would you like to make an opening statement and then we will go to questions?

Mr Mullighan —I am not really sure why I am here. I think you want to speak to me about something, so could you tell me briefly what it is?

CHAIR —This inquiry is looking into the recommendations of previous inquiries that the Senate Community Affairs Committee made in relation to child migrants and also to the term Forgotten Australians, where we released two Senate reports four years ago. One looked specifically at people who had been put into out-of-home care, and then the second one followed with a greater focus on foster care, as it was working, in the current times. Consistently, through the original inquiry, we kept hearing people saying that these abuses were continuing to happen to this day, so our committee thought it useful to have a quick look at it. It was quite quick, but it actually raised issues around foster care.

We thought that as a couple of years have gone by that it would be useful to see whether the series of recommendations that the committee made were being implemented and whether there were any actual changes to the conditions that we had heard about in 2004. In that context we had had hearings in South Australia and it was just before the state government decided to institute the inquiry that you were leading. They had talked about it in evidence that was given to our committee then; that there had been major issues in South Australia with allegations of abuse; there had been coroner’s concerns; and that the state government was going to conduct an inquiry. Subsequently you did and we would like to hear from you about the sorts of recommendations that you made, which were many, what the key issues were and the specific issues raised around statute of limitations, ongoing pain and suffering by people who were in those circumstances, difficulty with records, which came up consistently, and so on. That is the background and I am sure the senators will have questions for you.

Mr Mullighan —I would begin briefly by saying that the Children in State Care inquiry in South Australia was limited to children who had been sexually abused whilst in state care, but in the course of the inquiry there was a good deal of evidence received from people who had been sexually abused who perhaps did not know whether they were technically in state care or not. It was anticipated by the parliament that the inquiry would take about six months, including the time for writing the report, but in fact it took about three and a half years. You will see in the beginning of the report, contained in the summary, some statistics about the number of people who came to the inquiry.

As to the way it was conducted, I saw everybody myself. There were over 1,000 witnesses, just under 800 of whom said they had been personally sexually abused. There were some hundreds more whom I heard about that did not give evidence but it was said that they had been sexually abused. It was possible to get a very good picture of what had happened in South Australia from the late 1940s up until 2004.

A very brief summary is that it became obvious that child sexual abuse, generally, was widespread. Evidence that was received from some experts indicated that probably at least one child in every five was sexually abused before the age of 16 and probably boys and girls featured equally in those statistics. Some people put the statistics different ways. Some groups say that, as far as girls are concerned, one child in every three would be sexually abused before the age of 16. What we learned was that the problem was enormous and was not restricted to children that were technically in state care.

We had a lot of evidence about where children had been placed. Up until about the early 1970s most children in state care had been placed in large and small homes. Foster care was not the predominant form of caring for children. Those children who had been placed in care with state homes, church homes and non-church homes, were not always children in state care but had often been placed there by parents or by the churches, kept for some years, probably up until the early teens or even the late teens, and spent most of their childhood in that form of care. They had many criticisms to make about that sort of care and some things became very clear; that authorities regarded churches and other people who ran these sorts of institutions as the sorts of people who would care for children properly, so there was very little inspection or scrutiny, and the children had no real opportunity to make any complaint or disclosure.

It also became obvious that the public knew very little about the problem of sexual and physical abuse of children and the problems that it causes moving on into the rest of life. That was the beginning of it as far as the inquiry was concerned. It became necessary to try to think about ways of reducing the incidence of physical, sexual abuse and mental abuse of children, if I can call it that. You will see in my reports that I looked at prevention, facilitating disclosure, identification of abusive situations, how to care for children better, how to care for adults who had been children that had been abused and the special problems that they faced. That is the basis of the recommendations made, all of which, with the exception of one, were accepted by the state parliament.

CHAIR —Which one was it?

Mr Mullighan —I recommended that every sexual offender sentenced to prison should be given treatment from the time of admission into prison and not as at present, which is in the last six to 12 months of the sentence. That was specifically rejected.

CHAIR —That seems odd.

Mr Mullighan —Yes.

Senator HUMPHRIES —Thank you for being with us today. I have not met a judge before who has ever declined to use the title of judge in retirement. You are obviously a modest man.

Mr Mullighan —No, I just do not want to misrepresent myself.

Senator HUMPHRIES —Good luck to you. Just on that last point that the chair raised, you said that you recommended that sexual offenders receive treatment in prison. Do you mean treatment for their sexual predilections?

Mr Mullighan —Yes. I am not sure what word you would use. There is a substantial body of expertise now in Australia, including in South Australia, for the treatment of people who are minded to commit sexual offences, or have that proclivity and those who have. As long as there is the right sort of treatment and it continues, it is thought that there is a reasonably good prospect of prevention of reoccurrence. My real concern—and I do not mind saying this about prisoners; I saw over 130 of them, I think—is that if they do not get any help then when they come out it is pretty obvious what is likely to happen. It is very difficult for people coming out of prison to function, anyway. We make assumptions that ex-prisoners have got supportive families and other supports to help them in the community, and those assumptions, in the main, are plainly incorrect. Sadly, generally, most offenders who come out of prisoner re-offend and go back into prison, despite what some statistics say.

The problem with sexual offenders is that there are real victims—people who suffer greatly if they are abused, be they adult or child. I think we need to break that cycle. I understand the New Zealanders have had some success by having treatment programs right throughout a person’s sentence, and I do not think it is too expensive or difficult to do here.

Senator HUMPHRIES —Do you think that the idea of a prison sentence being a deterrent is not a valid concept in the case of these people, but that treatment might have a good chance of diverting them from further sexual activity of that kind on release?

Mr Mullighan —That was the information that I was getting. We might just put a couple of statistics on the shelf and see what you think of them. I am speaking from memory now, but some people working in these fields told me that 40 per cent of victims of sexual abuse as children were offenders in adulthood. Others said the level was 50 per cent. If anything like that is right, it suggests to me that you just cannot treat sexual offenders as people who have the ability to not offend and have control over themselves. In the interests of the public, we need to be getting to them as quickly as we can, seeing what can be done, following them up when they are released and continuing these programs for them whilst they are in the community.

Senator HUMPHRIES —That is a very coherent argument. The inquiries that the Senate committee has done have focused on bringing justice and restitution to those people who were abused as child migrants or as children in institutions. Some would argue that we have a higher duty in front of us, and that is to ensure that whatever factors in our society led to these sorts of abuses cannot reoccur. In the summary of your findings, in that respect, you make a rather chilling statement:

The Inquiry heard evidence to suggest that the State’s child protection system, like its counterparts elsewhere in Australia, is in crisis, largely because of poor past practices. The number of children being placed in care has increased; there is a shortage of foster carers and social workers; children tend to be placed according to the availability of placements rather than the suitability; and serviced apartments, motels and B&Bs are used for accommodation because there is no alternative. Such a system cannot properly care for an already vulnerable group of children, let alone protect them from perpetrators of sexual abuse.

Obviously you can only give us an insight into the South Australian system, but is it your assessment that the system is in such a state in South Australia that the sorts of stories that we have heard in an historical sense are being rehearsed for an inquiry in the future, because those issues are being replayed today in different contexts but in much the same nature as what occurred historically in institutions in the past?

Mr Mullighan —That is probably a sound conclusion. All I can say to you is that the problem is desperate. It is so serious. We know in South Australia that over the last four years the number of children in state care has increased by 39 per cent. The number is around about 2,000, which does not sound like a lot of people, but it is. It is an enormous number of people. It is the increase, and the rate of increase, which is very disturbing.

Secondly, it is said that 20 per cent of children going into state care have very serious issues, probably mental illness in many respects, psychological deficiencies and so on, and they are very difficult to care for and most are not being cared for properly. Foster care cannot cope with those sorts of children unless the foster carers are specially trained and have enormous supports. We are finding that those 20 per cent are always going to be children. Twenty per cent of something like 2,000 is a lot of children.

The other thing is that about 80 per cent of children are cared for in foster care and it is feared that the foster carers, as a group, are getting older, finding it more difficult to cope, and the percentage of foster carers available is reducing. I met with a lot of them. I had some group meetings with foster carers and they are fantastic people. They do a tremendous job, but they do not get the support that they need, because of the lack of resources, and that is a very serious issue.

I might just throw in my bottom line about all of this. I do not know whether the states can handle this financially. I think the Commonwealth should be doing it. It should be making a major financial effort to assist the states to get the resources that they need. That is a long answer to a simple question.

Senator HUMPHRIES —You have made one suggestion to answer the question that I am about to ask. As a Senate committee, what should we be recommending to address the very serious situation that you described?

Mr Mullighan —The first thing that we should be doing as a society—and that I respectfully suggest that you as the Senate committee should consider—is that we should be developing prevention of the abuse of children. I have said a bit about that in the reports, which you have probably seen. It is about education not just of the children or just of the educators, the people who care for children, but also of parents and of the community generally. Hence, I recommended that there be an extensive public education program undertaken by government. The Australian Childhood Foundation has that view. Dr Tucci is the CEO and he has tried to do that at times and strongly advocates it now. It is a very good idea.

The second thing is early identification of those families that are in trouble, those parents who are not coping, and those children who are experiencing difficulties at whatever age. There should be intervention by government agencies but not in a punitive way and not of taking children away, unless it is necessary, but in assisting families to solve their problems. It might be a gambling problem, an alcohol problem, a violence problem or it might be a problem from a step-parent. If we can solve those problems then we might stop a lot of children going into care.

I am sure you have heard and read that most of these children that get into trouble in their homes, through the homes being dysfunctional, say, ‘I want to be with my mum’ or ‘I want to be with my family. I don’t want to go with another family. I just need some help.’ We have made those recommendations and the government here in South Australia has set up early child centres or something like that, which are adjacent to schools. They are supported by a range of experts and it is hoped that those problems can be picked up through the schools and through these centres, and the children and parents helped so as to avoid their going into care. I would like to see the Senate support that not only by endorsing it but by recommending extensive funding of these sorts of centres in every public school or near every major public school.

The next thing we need to do is improve our response to the victims, to the children who have been abused, particularly those who have been sexually abused. Our focus, at the moment, is to tip this problem into one of our well respected institutions, namely, the criminal justice system, which does not work for many people. It prevents disclosure, on many occasions, because children do not want to get involved in that, and they do not want to see their fathers or brothers go to prison. They are disbelieved if the spectre of the criminal justice system is around. They are disbelieved by, say, their mothers. Then it takes so much time and involves a child having to give evidence, I think I expressed it as, in front of 18 or more strangers in a courtroom.

We understand from the information that we got that over 80 per cent of cases involving the sexual abuse of children occur in the home or involve a close or remote family member, and the other children are abused elsewhere. If that statistic that I gave you is right—about one in five—and there are something like four million people in Australia who have been, are being, or will be sexually abused, then we have to find a system that is better than the criminal justice system in the right sort of case. I recommended that there should be the use of a properly constructed restorative justice system where the focus is on the care of the victim, the treatment of the offender, the protection of the victim, and above all the acknowledgement by the perpetrator of responsibility for what has happened with a proper apology and support to the child. That is nothing new. It happens in America and a few places. There are a couple of smaller programs, with one in Sydney called CEDERS, and one in Western Australia which has just started. We would not only save an enormous amount of money, but we would really do some good for the victims, which is the important thing, and we may well stop perpetrators from perpetrating elsewhere.

The last thing I wanted to say is that we now have to find resources for adult victims. We have to find ways of helping people who are still suffering enormously through this abuse. There is just too much evidence now to push them aside and say, ‘Get over it.’ They cannot get over it. Nearly every person that I took evidence from was an adult who suffers and continues to suffer, and there was no reason for me to reject that evidence.

What do we do? Queensland and Western Australia have set up some ideas. Tasmania had a reparation system, which is also being considered in South Australia. We need to be able to ensure that the people get the treatment and care they need throughout life when they need it. We do not have any problem about doing that for veterans, who incidentally are people who were injured in the course of the service of their country, but we do not do it for people who were injured in the course of being cared for by their country. I really have some difficulty in understanding why we make a distinction. That does not demean veterans. It merely acknowledges that the people who were abused in care have suffered equally at least. There are lots of ways of refining that. To me it is absurd that one type of benefit is available in, say, South Australia but if that victim moves to Queensland then that benefit is no longer available even though there are benefits available in Queensland. I think we need to have a national system that provides not a lot of money for individuals, but good treatment, care and resources. We should better finance people such as CLAN and ASCA, which you have no doubt heard about. They are voluntary organisations that try to look after people who have been in care and have suffered. That is a snapshot of what I was trying to say in the reports.

Senator HUMPHRIES —I think you are right in referring to reparation schemes when we look at the ways in which we can provide some justice and some closure to those who have been mistreated. This committee recommended that at a national level in its last inquiry. We also explored the question of a royal commission, in part, to allow people who wanted to put their experiences on some kind of public record and have them validated by that process a chance to do that. Do you think there would be value in a royal commission into treatment of children in care?

Mr Mullighan —I have no doubt that if one of its functions is to provide a forum for people to be able to disclose what happened to them it would be of great value. We found in our third year that there were people who were still making up their minds whether to come forward, and when they did without exception they all said that it was such a positive experience for them, even though it might have been difficult, because someone had listened. They had been able to make a disclosure. I would strongly support that. It is very important that people are respected in that way. Then, of course, we get more information about what is needed.

Senator BOYCE —Did you make any recommendations regarding the statute of limitations for bringing alleged perpetrators of abuse to justice?

Mr Mullighan —No. That had already been done in South Australia. There was an amendment to the law in 1982 or thereabouts. The effect of it is that in 1982 it was operating as some sort of bar or limitation and that was removed, and now a lot of these historical cases are getting into the courts. In fact, we had one yesterday where there were convictions for offending in the 1940s and 1950s.

Senator BOYCE —Could you speak generally on your view, following the inquiry, into the need for victims of abuse to see justice done to their perpetrators? How helpful or not helpful would that be?

Mr Mullighan —I think it varies a bit. I did not refer one matter to the police unless the victim authorised it and wanted it done. I did not see the point in it because the police could not do anything unless the victim cooperated. There were a significant number of them who said, ‘It happened a long time ago. He’s too old. I don’t want to go on with it now.’ There were some who just would not front up to a system, and there were some who said they wanted to think about it. It is nearly a year now since the inquiry reported and some of those people who said they wanted to think about it have now gone on with it, so there are a sizeable number of people who say, ‘Yes, I do want him to be accountable and I want him to be accountable in court and publicly.’ There are some who say, ‘If I got a personal apology and a personal recognition from the perpetrator then that would satisfy me.’ There are others who probably do not have a view about it yet.

Senator BOYCE —Thank you for that. Did you have the opportunity to identify anyone who came forward to your inquiry as the people who are described in our current inquiry as the Lost Innocents, being people who were brought to Australia from the UK as child migrants who were often told that they were orphans when they were not?

Mr Mullighan —Yes. We had quite a lot of that evidence. There was an arrangement. I do not have the detail of it in my mind at the moment, but I think it is mentioned in our report. There was an arrangement between the British government and the Australian government at Commonwealth level for the care of those children in Australia. The Commonwealth made arrangements with the South Australian government, and no doubt the others, for the state governments to take up that responsibility. We looked at that from the point of view of determining whether these people came within the definition of ‘state care’ in our inquiry. A lot of people that we saw came here and were put into church homes like orphanages, and those experiences were absolutely traumatic, according to them.

There was a group who had come from a Catholic orphanage in Plymouth or Portsmouth run by the Magdalene Sisters and I heard that they had had a fantastic life with these nuns in England. There was a big emphasis on music and those sorts of activities. When they came here they were brutalised. Some believed their parents were dead. Some found out later that they were not and very few got back to England in time to be able to be reunited. But the answer to your question is, yes, we did get a lot of that evidence.

Senator BOYCE —We have had evidence this morning from the Child Migrant Trust, who still attempts to assist child migrants to find and then meet their families in the UK. There seem to be some suggestions around who should bear the financial responsibility for this to happen. What would be your view on that?

Mr Mullighan —It is not something that gets me very excited. Obviously someone should definitely pay for it, and that probably has to be government. Depending on the circumstances, it may well be the Commonwealth government. I keep saying that about the Commonwealth government, because I think the states in this area are so cash strapped they really cannot do very much more than what they do without some considerable assistance. I would like to see the Commonwealth much more involved. That is the best answer I can give you.

Senator BOYCE —In both the groups that we are currently looking at—the Lost Innocents and the Forgotten Australians; they describe themselves as the White Stolen Generation—it would seem from the evidence that we have had to date that the churches were very involved in the initial care but have not been as involved as they perhaps should be in follow-up with these people. What evidence did you have around church involvement in South Australia?

Mr Mullighan —Quite a lot actually. There were a number of orphanages that were run by the Catholic Church and some homes that were run by the other churches, in particular, the Salvation Army, Anglicans and Methodists, that took the children that were placed there perhaps by a widowed parent or whatever. They just went through the system. I think the Catholic Church tried to place girls at the age of about 14 or perhaps a little older into homes often in the country and often in isolation and, they always hoped, with good Catholic families, but it was not always the case, and then nothing more happened. That was the story I was getting, that once children reached an age fixed by the church they left that type of care and went to a different sort of care or finished up struggling and finding their own way in life. I think that is a pretty safe thing to say from the evidence that I heard, and they really suffered and a lot of them still do. Hence these two organisations that I mentioned, CLAN and ASCA, that are trying to help them. There should be facilities created for those people now.

Senator BOYCE —What about the levels of activities by the churches to redress those past actions?

Mr Mullighan —I do not know that I can say much about that. I have a very strong suspicion about it.

Senator BOYCE —So do I. That is why I am asking you.

Mr Mullighan —The reason I am a bit reluctant is a natural justice issue. That was not one of my terms of reference and so I did not get the churches in to give evidence about it. I think it is different in Queensland, where the Forde inquiry or the other inquiry looked into that. I suspect very little has happened, and that should not be the case. The churches probably, in their own way now, try to give pastoral care to the sort of people that we are talking about, but not tangible financial or material care, which is what a lot of them need. That is my suspicion.

Senator BOYCE —Thank you.

CHAIR —Who is ASCA? You said CLAN and the other one.

Mr Mullighan —ASCA is Adult Survivors of Child Abuse.

CHAIR —We are trying to keep a record of any group that works in this area.

Mr Mullighan —I have spoken to them a number of times. They have meetings every now and again and ask me to go and talk to their members. They are a small group in South Australia, but we have been able to organise a little bit of financial assistance from the state government for a computer, a desk and so on. The people who belong really are struggling. They provide services in the sense of counselling, social working and so on. That is one end of it. The other end is that a lot of them would like to have a healing centre or a refuge where they could go from time to time. I suppose you have heard about the one in the Hunter Valley?

CHAIR —Yes, we have.

Mr Mullighan —They run a wonderful place. They are terribly important and I do not think they need to be very expensive.

CHAIR —We had evidence yesterday from people in New South Wales. They were going to come back to us and tell us exactly how expensive they are, but they have not been able to get funding from their state government beyond the first experience. It all comes back to getting approval for funding. I have another issue. One of your recommendations was about redress schemes. The next witnesses we have are the South Australian government and we believe that they have groups working on that. Your recommendation also said to investigate the possibilities of a national redress scheme. That was particularly to the South Australian government. In their responses to you have they talked about any action they have taken to discuss a national scheme?

Mr Mullighan —They did not make any responses to me. I made my recommendations. I got a response in the sense of what was and what was not accepted. I think that one, in part, was still being considered.

CHAIR —Yes, it was a vague response.

Mr Mullighan —To be blunt, I do not think much has happened.

CHAIR —We are interested in the response from the next witness about that, because there was some expectation there would have been a response made in parliament by the end of last year and it has not happened. We are waiting for that. Is there anything that you would like to add that you do not think we have picked up on, or anything in particular you think we should have on record?

Mr Mullighan —What I really want to say is that I still get stopped in the street by people who did not come to see me but I suspect were probably abused themselves who talk about the value of the inquiry generally. Not so much the recommendations-type value but someone to listen or someone people could go to. You talked earlier of a royal commission. It does not have to be a royal commission, but I think it needs to be something that is independent—a parliamentary inquiry or similar commission. I did not recommend that in the end because I thought I should not be recommending the indefinite continuation of the inquiry, but I do think people need somewhere they can go that is independent, where people will listen and where anything that they have to say will be considered. I guess your view about how that should be done is as good as mine. It is absolutely critical. The fact that I saw the people myself—whereas I do not know that many other inquiries have done that—has given me the opportunity of understanding how important that is to the people. I would really like to see some focus on that.

I mentioned just obliquely the transportability of benefits. I think that is important. We have two organisations that have done a fantastic job for people who have suffered in the past. One is the veterans’ affairs organisation of government, and the other is Legacy. Legacy has been a fantastic model for providing sympathetic assistance to children who are in need. I would like to see those models applied to children who have been abused when in state care, the people who need that sort of assistance as children, and also people who need the assistance as adults like you would get from veterans’ affairs. Should we be giving them preference in getting loans or finding education and so on? The state government here has made the statement that it is placing all state children at the top of every queue. I think that is an important thing to happen, not just in words but in practice, because a lot of these kids did not get an education.

CHAIR —It also involves an effective process of identification.

Mr Mullighan —It does.

CHAIR —That is a very sensitive area with some because of the lack of data in terms of any government programs about people who are claiming, whether they have come from care, and some people not wanting to be identified again and be singled out. For every issue there are more layers to investigate.

Mr Mullighan —You are quite right. Then there are those people who, as you say, do not want to be identified and those who do.

CHAIR —Very much so.

Mr Mullighan —You need a very sensitive way of attending to that problem. People will not go into a government department. They will not go into a police station; well, some do, but they need to take a few steps first.

CHAIR —Logistically, how did you have 1,900 interviews?

Mr Mullighan —It was not 1,900; it was 792.


Mr Mullighan —I used to try to see three a day. We would sometimes see more or less. I just kept at it. The way we worked is that I had a member of professional staff with me on each interview who would then pick it up, take it on, and do the work afterwards that had to be done, like get files and those sorts of things.

CHAIR —It was logistically a big effort, but we have consistently heard back from people that the process that was used was valued. People felt it was personal and gave them a confidence that there was some care in the process. That has been the feedback we have had.

Mr Mullighan —I did not sit in a court room. We sat around a table.

CHAIR —And yarned.

Mr Mullighan —I did put a collar and tie on because I thought it looked a bit like a uniform. I think that is important.

CHAIR —There could well be other questions that come out as we continue to go through this process because it is so important that we get as much evidence as we possibly can. We may well be in contact with you again.

Mr Mullighan —I would be only too happy to help if I can. I would like to say that I think the work you are doing is critical. As I said in my report, I had no idea what this was all about when I started. I used to say that the problem of the Aboriginal people was the greatest social issue in our history. I think this one is as great.

CHAIR —It is. Thank you very much.

Mr Mullighan —Good luck.

[11.49 am]