Member for Western Victoria
Derryn Hinch’s Justice Party

Justice Legislation Amendment Drug Court and Other Matters Bill 2020

Mr GRIMLEY (Western Victoria) (17:51): I rise today to speak on the Justice Legislation Amendment (Drug Court and Other Matters) Bill 2020. As Ms Maxwell stated some time ago now— I do not know how long ago it was; it was a while ago now—we will be supporting this bill and are glad that the government has brought it to the house, in particular, to disallow the Ellis defence covering a critical period for survivors that until now it has covered. The three main reforms that this bill brings are: changes to the eligibility for appointments to the Youth Parole Board, establishing a three-year Drug Court trial in Victoria’s County Court and fixing an issue with aligning the Ellis defence, an ability to appeal in cases with deeds of release. I will start by very quickly acknowledging that a three-year Drug Court trial in Victoria’s County Court system seems like a commonsense idea. Any alternative approach that endeavours to alter the path an offender is going down is always welcome. Given the significant role that drugs and alcohol play in our criminal justice system, these programs will hopefully have a focus that reduces recidivism and ultimately make the community safer. I also should put on record that I think the government made the right decision not to include sex offenders as part of this trial. It is important their tendencies, risks and offences are dealt with specifically, not under the guise or focus of drugs or alcohol. But the main reform I would like to talk about today is the closure of a three-year gap that has stopped hundreds of sexual abuse survivors from being able to get fair compensation for the pain and suffering that they have been through. In 2007 abuse survivor John Ellis brought a case against the Catholic Church for historic crimes that he experienced as a child in New South Wales. However, the New South Wales Court of Appeal ruled that Ellis and others in the same circumstance were unable to seek compensation from churches in such claims as legislation. It stated that the trustees of churches could not be held accountable for crimes committed by individuals. Quite ironically, this policy that the church enforced to protect its wealth was assisted by Cardinal George Pell. The church used what we know as the Ellis defence to avoid being liable for compensation by child abuse survivors. This was incredibly cruel. I might acknowledge that Mr Ellis was a namesake to a barrier inhibiting survivors to actually getting the compensation they deserved. It is something he is described as like being in shackles. The Ellis defence on its own made it difficult for survivors to be on the same footing as an institution as powerful and wealthy as the Catholic Church, as when many went to launch civil proceedings they were often advised in very simple terms, ‘Don’t bother. Churches can’t be sued’. As John Ellis himself said, this defence is just another roadblock in the way of a survivor. So in many cases a survivor would head on back to the Catholic Church to at least get some compensation, a process in which they would experience further trauma, not to mention the scraps they received as compensation for the heinous crimes that they endured. I know firsthand how difficult and emotionally draining it is to tell your story of abuse. It was my job for two years to listen, report and investigate sexual offences. To say it was tough would be an understatement, but it was nothing compared to what survivors had gone through: abuse so bad that for some it took decades for them to speak up; abuse so bad that for others it took their lives. I take this moment to show my admiration and respect for all survivors of sexual abuse. No-one can imagine what you have gone through. No-one can imagine the pain that you live with. But rest assured there are many, many good people out there, and indeed in this place, that are here for you, that will support you and that will walk with you in your continuing journey of surviving sexual abuse.  The first bit of law that is relevant to why we are seeing this bill before us today is the Legal Identity of Defendants (Organisational Child Abuse) Act 2018. The bill was introduced by the Labor government and, in short, removed the Ellis defence in Victoria. The second bit of law that comes into play here is one that came before us and passed in September last year, the Children Legislation Amendment Bill 2019, which Derryn Hinch’s Justice Party voted for. One thing that bill did allow was institutionalised child abuse survivors to apply to the courts to have unfair agreements reviewed if they were entered into before 1 July 2015. In short, it allowed courts to remove or object to deeds of release or ‘sign away your legal rights’ documents. This was necessary because the church, with its expensive lawyers and position of power, had been coercing many survivors into being compensated pocket change for years of horrific abuse through their own compensation scheme, the Melbourne Response, and this was after they had fought for claims in many cases. The deeds of release are cruel pieces of paper which vulnerable people have signed out of sheer desperation for closure and recognition. In many cases this money was needed as a result of ill health, the lack of wellbeing of survivors and survivors being so badly damaged by their abuse that they could not or did not work. This money was, as one survivor put it, ‘the charity’ that he needed. The royal commission exposed the vast amount of this behaviour, but until you read some of those submissions you never fully understand the trauma that has been created over decades of calculated, routine child sexual abuse. It beggars belief that these vulnerable survivors were only granted the opportunity to have these insulting settlements reviewed in the last few years. Of course it is better late than never, but as an example, one survivor settled for $32 000 in 1998 for horrific historic crimes that took place in a school. Now, just two years ago in a court they awarded him in $1.1 million. As we are aware, there is a three-year gap year here. One of my constituents, who I know as Gareth, is one of those survivors affected. Most frustratingly, Gareth signed a deed of release, for the historic sexual assault that he endured, just a few days after 1 July 2015 but before 1 July 2018, so he could not sue the church because the legislation stipulated that the dates did not cover him. Anyone like Gareth who signed a deed of release after 1 July 2015 and before the Ellis defence was knocked over on 1 July 2018, well, they have missed out on getting the compensation that they deserve. Gareth said to me that he feels like he has had, and I quote ‘a 39-year prison sentence’ put on him as a result of his suffering. But he is very confident that this amendment will see survivors be able to move forward with their lives after compensation. These three years from 2015 to 2018 are critical because when the Ellis defence was being reviewed the Catholic Church hired lawyers who approached many of these survivors, and their deeds of release were renewed and topped up. This was really sneaky because they only did it so that when survivors were eventually able to sue they would have a fresh deed drawn up and a top-up of money too, hopefully pushing survivors not to sue through the courts. I have spoken with Michael Magazanik, a lawyer who has represented a number of child abuse survivors and won landmark test cases. He said that this amendment is great news. His own words, as I alluded to a moment ago, were, and I quote: “This three years is critical because there are hundreds of deeds that have been signed off since 2015 as a result of a number of survivors coming forward following the royal commission.” He went on to say that there are, quote:  “… literally hundreds of deeds that fall into this category and time period. In summary, this three-year period might seem like a technical amendment or something small, but there are hundreds of survivors in Victoria who have been abused by institutions and by this system, and I bet they cannot wait to call their legal representation when this bill passes to say, ‘It’s passed. Let’s go court’. I will lastly take a moment to thank those who have worked hard on this and really pushed to make it happen: obviously the state government for bringing this to the chamber; Judy Courtin from Judy Courtin Legal, who as well as being a lawyer for victims, has been a selfless advocate for them too; Father Dillon, who is righting the church’s wrongs; and Lifeboat Geelong. To the Victorian Care Leavers Australasia Network—the CLANs, the Clannies—thank you for your continuing advocacy and support for survivors and for providing a voice for them too. And lastly, to those victim-survivors who this change will affect, and to those survivors whom it will not affect—thank you. Thank you for your perseverance. Thank you for your courage to share your story and your encouragement for others to come forward and tell their stories when they are ready to do so. For when you are ready, and there will be many, many people that will be out there considering this, we will be here to support you. I commend this bill to the house.


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