Could The Royal Commission Into Child Sexual Abuse Get Kids Out Of Immigration Detention?

Recently the Australian Human Rights Commission’s “Forgotten Children” report has dominated headlines and Parliamentary debate, but not for the reasons its authors would have hoped. The Coalition has gone all out against the HRC’s President, Professor Gillian Triggs, claiming the report’s timing ignores previous Labor government’s failings in locking up asylum seeker children, and is little more than a cynical political manoeuvre designed to embarrass the government. Yesterday, Prime Minister Tony Abbott said in Question Time that AHRC president Gillian Triggs has lost the government’s confidence, and it’s been revealed that Attorney-General George Brandis quietly asked Triggs to resign two weeks before the report’s tabling.

Labor have responded by launching an attack of their own, accusing Brandis of undermining democracy by pressuring for the resignation of an independent public servant — Shadow Attorney-General Mark Dreyfus has asked the Australian Federal Police to investigate whether Brandis broke the law in doing so. Labor have also accused the government of sexism over their treatment of Triggs. Writing in Mamamia yesterday, Labor Senator Penny Wong called the government’s attacks on Professor Triggs “bullying,” complete with a video of Liberal Senators berating and speaking over Triggs and female Senators in estimates as evidence of their sexist attitudes.

What’s been lost in the fallout from all this is the findings of the report itself — namely, that several successive Australian governments and various entities in their employ have seriously failed to protect the welfare of children held in immigration detention. Among other findings, including 128 instances of children harming themselves and dozens of children assessed as having depression, anxiety disorders or post-traumatic stress disorder, the report identified 33 reported instances of sexual assault, “the majority involving children,” and called for a Royal Commission into children in offshore detention that was shot down by the government almost as soon as it was announced and has since vanished without a trace.

The report does not state whether those committing the sexual abuse are detainees, staff members, volunteers or otherwise, or precisely how many of those instances involve children, but it can be safely surmised that between January 2013 and March 2014, at least 17 separate incidents of child sexual abuse occurred in Australian-run detention centres. Given the report only examined a period of fourteen months, and taking into account that these only include reported incidents, the actual number is likely to be substantially higher — Senate estimates heard on Monday that 44 reported cases of sexual assault against children took place in Australian detention centres in the eighteen months leading up to July 2014, a slightly longer timeframe than that gone over in the report.

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“It Would Condemn Them:” Why Both Parties Have Been Silent On ‘Forgotten Children’

Both major party’s responses to the substance of the report has overwhelmingly been to shut their eyes to it, either by attacking its authors as a distraction or by ignoring and avoiding what it says. Speaking on Radio National on Wednesday, Peter Dutton — who, as Immigration Minister, acts as the legal guardian of all unaccompanied children held in detention and has the ability to move or release all detention centre detainees virtually at will — said that “one suggestion of sexual assault is one too many”. That’s a nice sentiment, but it rings a little hollow given Dutton plans to send 68 children — in Australia temporarily for medical reasons — back to Nauru, where at least five instances of sexual abuse against children have been reported. When questioned on whether that decision would put children at risk, Dutton said: “I don’t accept that…I’ve seen the centre and its operation first-hand.” More broadly, Dutton has also said he won’t release children from detention on the grounds that doing so may encourage people smugglers to try and transport more people to Australia.

As former Labor NSW Premier Kristina Keneally rightly pointed out in the Guardian yesterday, Labor have been just as unwilling to confront the uncomfortable fact that their offshore detention policies led to children being sexually assaulted while they were in power, which goes a long way towards explaining why they’ve ignored the substance of the HRC report as much as the Liberals have. Besides some vague statements on how “we need to be doing everything humanly practicably [sic] to get these kids out of detention as quickly as possible,” Shadow Immigration Minister Richard Marles hasn’t called for the HRC’s recommendation of exactly that — or any of its conclusions — to be adopted, a Royal Commission included.

This isn’t the first time the consequences of offshore detention have been brought to Parliament’s attention only to die on its doorstep; as Triggs herself has pointed out, “the [Human Rights] Commission has worked tirelessly over many years reporting on the failure by both Labor and Liberal governments to comply with their international law obligations to refugees,” but has been met with either silence or half-hearted excuses about why nothing can be done. Most of Parliament won’t push for any of the “Forgotten Children” report’s recommendations because doing so would truly expose what various government’s offshore detention policies have done — a point Tony Abbott himself made when the report came out, saying that “if there were a Royal Commission into children in detention, it would condemn them [the former Labor government].”

But a Royal Commission into kids in detention might not be entirely off the cards. Buried in the report, the HRC writes that it regards the abuse of children in Australian detention centres as so serious, it believes “some [instances of abuse] may come within the scope of the terms of reference of the Royal Commission into Institutional Responses to Child Sexual Abuse.” It also states that it “intends to communicate these concerns to the Royal Commission.”

When asked whether it would be following up on the HRC’s findings, the Royal Commission told Junkee:

“The Royal Commission’s Terms of Reference are broad and enable us to investigate responses to child sexual abuse allegations in an institutional context within Australia and its territories. We are currently considering the Australian Human Rights Commission’s The Forgotten Children: National Inquiry into Children in Immigration Detention report before deciding what action, if any, the Royal Commission will take with respect to the issues it raises.”

When and if the Royal Commission gets involved is still up in the air, but at the very least it is exploring whether or not it should — the AHRC has confirmed to Junkee that the two agencies have “held preliminary meetings” on the topic. If the Royal Commission does get involved in uncovering what’s going on inside Australian detention centres, things could get very serious indeed.

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The Potential Consequences Of A Royal Commission Into Offshore Detention

In a strictly legal sense, a Royal Commission’s power to enforce its findings is as limited as the HRC’s — Parliament is under no obligation to adopt the findings of a Royal Commission, and can pick and choose which recommendations it champions and which it quietly ignores. But since the Royal Commission’s establishment in 2013, child sexual abuse has dominated Australia’s consciousness in a way it never has before, forcing Australians to confront the profoundly disquieting reality that some of its most trusted and respected organisations have been deeply involved in the sexual abuse of children. Failings in institutions like the Catholic Church, YMCA NSW, Scouts Australia, the Salvation Army, Sydney’s exclusive Knox Grammar school and Melbourne’s Yeshivah Jewish Orthodox community that allowed people to sexually abuse children unchecked and with virtually no fear of punishment, sometimes for decades, have come to light thanks to the Royal Commission.

As its title suggests, the Royal Commission is not primarily concerned with bringing individual child abusers to justice, but with uncovering how people and organisations failed to fulfill their responsibilities to protect children from child abusers, either through negligence before a perpetrator offended, or through failing to properly act after an offense to ensure a perpetrator did not offend again. In its findings, which are publicly available, the Commission exhaustively outlines the cultures of silence, willful ignorance and abdicated responsibility in institutions which gave perpetrators the protection they needed, either to offend or to escape punishment for doing so.

It’s interesting to imagine what kind of judgments a Royal Commission into child abuse in Australian detention centres would make on those in Parliament who bear ultimate responsibility for Australia’s offshore detention policy. Given the Commission’s vast moral authority, it’s extremely unlikely that Parliament could attack or dismiss its findings in the way it did the HRC’s. It’s even possible that, just as the Royal Commission has sparked ongoing media coverage and nationwide soul-searching on child sexual abuse, it could do the same on holding children in detention — and among the people who implemented it.

Both major parties claim nothing is more important to them than the welfare of children, while failing to act on overwhelming evidence that their policies have directly led to the sexual abuse of children held in the government’s care. Instead of ignoring that hideous fact, or distracting the public’s attention by turning it into yet another partisan political battleground, they should use this as an opportunity to abandon those policies once and for all. A Human Rights Commission report couldn’t, but a Royal Commission just might.