The Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse was released on Friday 15 December 2017. This blog post is a quick response to the recommendations of the Royal Commission relating to recordkeeping. We will be providing further information and analysis about the Final Report and its implications for records relating to institutional ‘care’ and to historical abuse, once we come to grips with the content of this lengthy tome.
The Final Report dedicates a whole volume to Recordkeeping and Information Sharing (Volume 8). This reflects the vital importance to survivors of access to records and improving recordkeeping practices, a common theme in many submissions, hearings and testimony of the Royal Commission into Institutional Responses to Child Sexual Abuse.
Volume 8 is 380 pages long and contains many recommendations relating to recordkeeping and information sharing. For this hasty blog post, we will focus on just a few.
Perhaps the most important recommendation made by the Royal Commission for Care Leavers is Recommendation 8.4, which sets out 5 principles for records and recordkeeping to be implemented by institutions that engage in child-related work.
Principle 1: Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture.
Principle 2: Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse.
Principle 3: Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately.
Principle 4: Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy.
Principle 5: Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent (pp.108-109, Volume 8).
Of these 5 principles, Principle 5 is especially relevant to Care Leavers and to their family members, as it encompasses the vexed issue of access to records (including access to ‘third party information’, as well as an issue that is emerging in this space – Care Leavers’ right to add their side of their story to their files. The Royal Commission Final report expands on Principle 5:
Individuals whose childhoods are documented in institutional records should have a right to access records made about them. Full access should be given unless contrary to law. Specific, not generic, explanations should be provided in any case where a record, or part of a record, is withheld or redacted. Individuals should be made aware of, and assisted to assert, their existing rights to request that records containing their personal information be amended or annotated, and to seek review or appeal of decisions refusing access, amendment or annotation.
Volume 8 of the Final Report discusses the DSS Access Principles, developed by Barbara Reed as part of the Australian Government’s Find and Connect program. These principles aim to maximise the information available to Care Leavers and Former Child Migrants and to promote greater consistency in the ways that institutions that hold records about Care Leavers and Former Child Migrants respond to access requests.
In the Final Report, the Royal Commission endorses the DSS Access Principles (but also points out some of the concerns expressed by stakeholders about the Principles) and recommends that Care Leavers’ access rights ‘should be recognised to the fullest extent’. There is no recommendation to amend the web of legislation covering access to records. The Royal Commission has taken the view that ‘problems that some survivors experience in obtaining access to records may derive from the way in which some institutions choose to apply laws, rather than from the laws themselves’ (p.102). Volume 8 puts forward the Access Principles as a model for developing national guidelines on providing survivors with access to their records.
Another important recommendation relating to Care Leavers and records is actually found in Volume 9 of the Final Report ‘Advocacy, support and therapeutic treatment services’. The Royal Commission recommends that the Australian Government and state and territory governments should fund dedicated community support services to provide an integrated model of advocacy and support and counselling to children and adults who experienced childhood sexual abuse in institutional contexts, as well as a legal advice and referral service, funded by the Australian Government.
The Royal Commission Final Report states that records advocacy should be one of the services provided by these new bodies:
The functions of the records advocacy component of the service should include:
- providing independent, confidential advice to individuals about how to seek access to records about them (or their immediate family members)
- assisting individuals to make applications for access, amendment or annotation of records about them, or acting as the individual’s agent in such applications
- providing guidance on applicable law, reasons for redactions, and reasons for refusals to release, amend or annotate records
- referring individuals to other support services, such as counsellors or others offering more specialised care.
This recommendation relating to new records advocacy services is very encouraging.
Finally in this blog post, we wish to point out that the Royal Commission endorsed the concept of Care Leavers having moral ownership in records. This idea was put forward in submissions from Open Place and the Alliance for Forgotten Australians. The Final Report states:
In our view, while moral ownership is not a recognised legal concept, there is value in these ideas. The concept of moral ownership highlights the importance for survivors of access to records about themselves – and how their interests will often outweigh lesser interests, including those of third parties, when decisions about access are being made. However, in legal policy terms, access rights may be best analysed in terms of control of personal information, rather than ownership.
The Royal Commission’s Volume 8 of the Final report can be read as calling for a radical shift in how we understand records, and how we answer the question ‘Who owns the records?’
Watch this space for further analysis and updates. On this momentous day of the Final Report being tabled, we would like to give thanks to all the Care Leavers and all the survivors of abuse who have played such a key role in the Royal Commission, and pay tribute to the amazing work of the Commissioners and their team.