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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-02-21 Daily Xml
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Child Sexual Abuse

The Hon. L.A. HENDERSON (16:27): I move:

That this council—

1. Acknowledges that one in three girls and one in five boys are sexually assaulted by the time they turn 18;

2, Acknowledges the call on the federal Labor government to close the legal loophole which protects paedophiles' superannuation from access by their victims and survivors; and

3. Calls on the Malinauskas Labor government to urge their federal counterparts to adopt a policy addressing the legal loophole around superannuation for victims and survivors of child sexual abuse.

The act of child sexual abuse is the most unforgivable of acts. It is to strip a child of their innocence, it is to strip a child of their childhood and it is to take advantage of an inherent imbalance of power, to abuse a position of trust. It is behaviour that is vile, disgusting, inexcusable and unforgivable. Our children deserve better and they deserve to be safe. They deserve to keep their innocence and they deserve to have a childhood.

It saddens me that so many children in our community have had their childhood ripped away from them through no fault of their own. It saddens me that so many in our community will be left with scars due to the acts of the vile, cowardly and disgusting individuals who prey on the innocent and the vulnerable.

The South Australian District Court list for 25 January 2024 showed that among the 51 matters to be heard that day a staggering 16 related to the sexual abuse of children. That is around 31 per cent of all cases. That is a sickening statistic, and it should alarm us all. Concerningly, we know that this is a tiny fraction of the offences committed. It has been reported that for every 1,000 reports of child sexual abuse only six end up with a conviction, and around three of those are overturned on appeal. This figure represents only a small portion of offences being committed. It should be noted that many offences are not reported to the police and therefore, of course, are not captured in these statistics. Many victims will never share their story.

I think it goes without saying that reporting historical childhood sexual crimes can be extremely distressing for survivors. To come forward, to seek justice, is to have to relive this traumatic event or events not just once but many times, over and over, as they have to retell their story. Through all of this there is no guarantee that a survivor will successfully record a guilty conviction or recover their compensation damages. Understandably, some may commence in the process and then subsequently withdraw if they find it too overwhelming.

The Royal Commission into Institutional Responses to Child Sexual Abuse found that survivors of sexual assault take on average 24 years to tell someone what happened to them. By virtue of the passage of time it can make it difficult for the prosecution to secure a conviction, noting, of course, that the burden of proof in criminal matters means that any offence must be proven beyond reasonable doubt.

The very sad reality is that many of these vile offenders may never see the inside of a prison cell—an injustice to survivors everywhere. The reality of the criminal law burden of proof, coupled with the passage of time, can mean that victims and survivors often seek an outcome through the civil jurisdiction, where the offence could be found to have occurred, weighed up by the civil burden of proof being on the balance of probabilities.

It is my view that if a court is satisfied that sexual abuse has occurred and awards monetary compensation in favour of the civil applicant the victim should be able to claim the awarded compensation, either through enforcement of judgement or settlement, via the offender's superannuation as a part of the assets to claim distribution, even if no criminal conviction is recorded.

Currently, there are three clear avenues through which a victim of crime can seek compensation. They are as follows: state and territory compensation schemes, which pay compensation directly to a victim or survivor of crime, such as the Victims of Crime Fund in South Australia; civil action pursued by the victim or survivor against an offender or alleged offender for damages, requiring the offender to pay the victim or survivor; and the National Redress Scheme, which is available specifically for survivors who were abused in a participating institution and which expires in 2028. It should be noted that, once the redress scheme finalises, survivors will return to needing to claim compensation via civil suits against government schools and institutions.

As I have stated, the reporting of allegations of child sexual abuse often occurs significantly later, sometimes decades after, when those who were children at the time reach a point in their adult lives where they may be willing to come forward. From a practical perspective, this means that their Victims of Crime Fund compensation payment may be greatly reduced.

To be perfectly honest, I was very surprised when I learnt that an abuser's superannuation was not available to the victims of crimes they commit. This means that wealth they have accumulated over many years, which should go towards compensating victims of their vile abuse, can be reduced to the extent that civil action filed on behalf of a victim or a survivor is almost pointless.

It has been reported that convicted paedophiles have been able to hide their assets in their superannuation to avoid compensating their victims. The responsibility therefore falls on taxpayers to compensate victims from the existing state Victims of Crime Fund or from institutional cases from the federal pool available following the royal commission, which the state has also contributed to.

With historical cases claiming through the state-funded Victims of Crime Fund, some victims have been limited to recovering as little as $1,000 or nothing at all. As one can imagine, this leaves victims and survivors with little to no support, as they try to seek the help that they need because of this crime, and a continued sense of injustice after many years of trauma. By way of example, in the well-publicised case of former magistrate Peter Liddy, who was jailed for 25 years for the abuse of multiple children in the 1980s, before he was sentenced he moved his assets—understood to be worth millions—into his superannuation, protecting them from claims by his victims.

Last year, survivor Edan van Haren, who is 27 years old, was awarded $1.4 million in damages and court costs for the psychiatric harm caused to him as a teenager by Maurice van Ryn, a former chief executive at Bega Cheese. An article from November 2023 indicates that this serial predator also rushed to squirrel away his millions before being sentenced to 13 years in prison. When some of his 10 victims sought compensation they discovered that Maurice van Ryn was essentially broke on paper and that his superannuation was insulated from any claim. The victims of his offending were left to accept a small compensation offer.

I would like to share with the chamber some examples that have been provided to me from a group called Super for Survivors. It says that survivors face many hurdles in claims for compensation. The control aspect of offenders usually continues throughout civil claims. Many cases have seen offenders abuse their financial position in order to exploit this loophole. This results in survivors never realising the full damages they have sustained. Recent cases run by Andrew Carpenter provide examples of the cycle of abuse continuing and how the survivor will never obtain the entire redress that they deserve.

The first example is Mr M, who was abused by his uncle. The uncle was a notorious convicted sex offender in South Australia. Mr M reported this conduct—which took place regularly between 1974 and 1978—in 2010. Due to the passage of time, police did not believe they could secure a conviction beyond reasonable doubt and closed the file. Mr M commenced proceedings. The offender had previously been sued by multiple survivors who secured a conviction against the offender. The offender sold his house to compensate his other victims. The offender is currently serving a term of imprisonment of 12 years.

The offender split the balance of the sale of his house into his superannuation account, which has a balance of $770,000, and into his solicitor's trust account. Steps were taken to obtain a freezing order, however, the usual carve-outs for freezing orders enable the offender to access $500 per week for daily living expenses. The offender is able to access these funds despite being sentenced to 12 years' imprisonment. The offender is therefore able to spend $500 per week in jail on commissary items for the next 12 years, with funds accessed from his superannuation, at the cost of $312,000.

As the law currently stands, Mr M is only to access the minimal funds held in the lawyer's trust account in the event he succeeds with his action at trial, whilst the offender can utilise his superannuation whilst incarcerated. Mr M has been on Centrelink for almost all of his adult working life. He has required and continues to require ongoing psychiatric treatment, and will be on medication throughout the remainder of his life. The taxpayer has incurred substantive costs on his life, and the offender has contributed nothing despite being the sole cause of his injuries and losses.

The second example is Ms S, who was groomed by her godfather over a period of time. The abuse commenced when she was 13 years old and continued for some time. Fortuitously, multiple members of the public witnessed her being abused by the offender in public and called the police. The offender was convicted in the District Court of South Australia. He appealed to the Supreme Court; however, the finding of guilt was upheld. He appealed to the High Court, which upheld the finding of guilt.

In settlement discussions, the offender took the position that he had millions of dollars in superannuation, which he obtained after selling a successful company he founded, and was prepared to lose his house in defending this civil action. This was despite the multiple findings of guilt against him. The offender openly stated that he could declare bankruptcy in order to keep his superannuation.

He also openly stated that he was prepared to spend $20,000 a day on barristers to ensure Ms S received nothing from him. He blamed her for the abuse he committed against her. This was a further attempt to control his survivor. He knew the legal loophole would protect him. Ms S has only ever been able to hold employment of five hours per week and has required, and continues to require, treatment. As she received a lump sum settlement, she will no longer be on Centrelink, can afford private treatment and hopes to commence full-time work in the coming years.

The third example, and the last, is Ms S, who was adopted at 2½ years old and was physically abused every day until she was 13. The sexual harassment took place until she was 27. She required vaginal and anal reconstructive surgery due to the abuse she endured at such a young age. This treatment is continuing, and she will likely require further surgeries in her lifetime. Her hips are deformed due to the forceful penetration. Her wrists are also deformed due to being tied to the bed during the assaults committed by her adoptive father.

Her adoptive mother knew of the abuse and took no steps to prevent this abuse from occurring. Her uncle also abused her with the knowledge of the adoptive mother and father. The adoptive father also abused family friends and was convicted for such abuse. Despite this, Ms S was not removed from his care.

She was agoraphobic until she was 27 years old. She never left the house. She had no place to go and remained with her offender. He continued to expose himself to her when walking through the house. Ms S went to the police when she escaped the family home. Police set up a phone intercept in which the adoptive father made admissions regarding the abuse. He pled guilty to eight counts of abuse, rather than proceed to trial on thousands of counts of abuse.

When Ms S sued the offender, he transferred his house to a family member for $20,000. She was subsequently awarded damages of over $700,000. The claim would have been worth millions; however, the offender only had limited assets and pled guilty to eight counts of abuse, rather than thousands. Civil proceedings only pled the counts the offender pled guilty to due to the limited assets. Further, the offender could not defend the eight charges, due to his plea of guilt.

The house was transferred back into the name of the offender. A warrant of sale was issued and the property sold. The damages she received after obtaining a warrant of sale on the property came nowhere near the damages that she was awarded. The use of the offender's superannuation would satisfy the judgement sum.

Ms S has been unable to work or study. She will never be able to work, based on her physical and psychological condition. She is on a disability pension. Many other survivors have similar actions, whereby they are unable to claim damages as their offenders will declare bankruptcy to avoid paying any judgement sums. The bankruptcy would discharge the judgement and settlement. Offenders will continue to use their superannuation to restore their assets after proceedings are finalised. I have no words.

The horrendous scourge of child sexual abuse impacts the quality of life and the health of these victims and survivors in both the long term and the short term. The lack of avenues for compensation for some of these victims needs to be addressed, and soon.

This is ultimately why a federal law reform campaign called Super for Survivors was established, seeing Andrew Carpenter from Websters Lawyers, the Grace Tame Foundation, the Carly Ryan Foundation and Fighters Against Child Abuse Australia team up to pursue reform, seeking improved access to justice for those who have suffered at the hands of vile abusers. This campaign looks at closing the legal loophole that paedophiles use to hide their assets in superannuation to avoid compensating their victims. I commend them for their advocacy in this space, along with so many others who continue to advocate for victims and survivors of child sexual abuse.

While reforming superannuation law is a federal issue, ensuring the safety of children is everyone's responsibility. Ensuring that victims and survivors have the support that they need should be the priority for us as a community as a whole, in South Australia and across our nation. Should a victim successfully sue for damages and then be able to access compensation via the offender, the victim would then not need to seek to apply for compensation via victims of crime compensation, which of course is taxpayer funded and a state issue, or the redress scheme, ultimately reducing the cost to the state.

Should the federal government take this up—and I firmly believe that they should—the state and territories will play an important role in ensuring any outcome determined by the federal parliament can work within their current legislative and administrative frameworks for compensating victims of crime.

In closing, I strongly believe that a perpetrator should not be able to use their superannuation to prevent the rightful access to money and assets by victims of child sexual abuse offences that would otherwise be available for distribution in any successful claim. For some of these offenders who hide their assets in their superannuation, once they have served their sentence, if they even end up seeing the inside of a jail cell, they can almost return to their normal lives. Meanwhile, the victims of their vile offending are dealt a life sentence, at times with the ongoing need for psychological sessions, medications and financial welfare support.

It is my belief that the victims of these inexcusable crimes should be prioritised and protected, rather than their perpetrators, that as a state and as a nation, where we must choose between supporting the victim and survivor in seeking justice for crimes committed against them as a child or supporting the offender in hiding assets from their victims, we should be supporting the victim every single time.

If an offender is sued for compensation for their crimes against children, their superannuation should be up for grabs. This money would give survivors the best opportunity to rebuild their lives and seek the support they often need to provide a sense of justice where there has been so much injustice. This would mean that victims and survivors could have funds available to seek the specialised psychiatric treatment they need. They may be able to come off their welfare payments.

Victims are given a life sentence due to the nature of the crimes that are committed against them and there is nothing that will ever right the wrongs that have been committed to them at no fault of their own. Meanwhile, in many circumstances and in many instances, offenders will never see the inside of a jail cell.

Today, I call upon everyone in this place and I call upon the Malinauskas Labor government to urge action from their federal counterparts to effect change for the benefit of those who have suffered at the hands of vile abusers. Child sex offenders should be held responsible for compensating their victims, with all the funds made available for doing so. The system should be there to support these victims and survivors and, in my view, it is about time this system was no longer stacked against them.

Debate adjourned on motion of Hon. I.K. Hunter.

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