Published: 13 April 2012
Author: Angela Sdrinis
Wards of the State:
New Ombudsman's report slams DHS records on sexual abuse
The Victorian Ombudsman has had a busy time of it recently and, in the flurry of reports handed down, one has escaped attention. Yet its findings are so damning of the lapses of a major government department that you could be accused of thinking that the Department is effectively blocking access to justice for victims of sexual abuse.
Drily titled, Investigation into the storage and management of ward records by the Department of Human Services, the report exposes what those of us who work in this area have long known, that ward and child protection records in Victoria are in a parlous state.
Freedom of Information
Fomer wards of the State may obtain their records by applying under the Freedom of Information Act 1982. However, personal information about other people is exempt. Former wards often want their records precisely for the purpose of obtaining information about other people, ie family members including parents, the identity of their carers who are also sometimes their abusers. Unlike those of us who can rely on remaining in contact with extended family and friends, people growing up in care are almost always dislocated and have no such links to their childhood memories.
Claimants often say that the official records are a distortion of the truth, contain lies or fail to document significant events such as abuse or complaints of abuse. Poor records hamper the litigation of claims for damages made by people abused in care. While it is hard to prove allegations where no documentary evidence exists, equally it is almost impossible to do so if the official record is incorrect. Years after the event, it is difficult to challenge the veracity of these reports. In other words, the written word becomes the 'truth' and carries more weight in a court of law than the claimant's own evidence.
The Ombudsman's report addressed directly the difficulty in accessing records that may be useful in proving abuse. The report refers to boxes of documents waiting to be scanned and catalogued by archivists that could have a bearing on investigations into sexual assault allegations made against a staff member of a former home. These documents contain specific references to former wards.
How does a former ward access documents of which the Department itself has no record?
A related problem is that many records are poorly kept and are at risk of, for example, water damage [p.19].
I would argue that the Department is content to let this state of affairs persist in order to protect itself against litigation for the sexual abuse of children that have been in its care. It should be careful.
An amendment to the Crimes (Document Destruction) Act 2006 ('CDD Act') makes it an offence to destroy a document that would be reasonably likely to be required as evidence in a legal proceeding. Importantly, it makes this an offence even in situations where no litigation has actually commenced. (It has always been illegal to destroy evidence once a case has actually been launched.)
Given the state in which the Ombudsman has found so many records, the Department is either ignorant of or willing to run the risk of serious prosecution.
A successful prosecution under the relevant sections of the CDD Act can result in fines for individuals where the penalty is a maximum of 5 years in prison or a fine of 600 penalty units, currently an amount of $73,284 (s254). For corporations, it is a maximum find of 3,000 penalty units, currently an amount of $366,420 (s255). It would be interesting to see if prosecutions result in a change of practice.
Further, under s89B of the Evidence (Miscellaneous Provisions) Act 1984, a court can make an order that an adverse inference will be drawn from the unavailability of documents or in the absence of evidence. In other words, the evidential burden of proof is reversed.
What is more, in addition to incurring substantial fines, a department that allows records to be lost or destroyed could find its defence is struck out. If this occurs, it may also find itself exposed to potentially significantly higher damages being awarded.
Drowning in paperwork
The Ombudsman's report deals with records of wards in care up to 1986. These records are kept separately to requests for information made by wards post-1986.
While there is a paucity of information and documentation on pre-1986 wards, there is an overabundance of documentation in more recent cases, with files sometimes amounting to thousands of pages.
The problem facing more recent wards wishing to access their records is that the Department has a policy that restricts to 500 pages the number of documents it will provide. Requests for larger files are rejected under Section 25A of the Freedom of Information Act because they would lead to a 'substantial and unreasonable diversion of resources'.
To be fair, the Department has indicated that it will provide documents in 500 page 'lots' where the request is broken down into categories of documents to enable them to do this. However, as each request takes several months to be dealt with, such as in a recent matter where my client's ward file is 4,000 pages long, providing copies of all records may take several years which is clearly unacceptable, particularly as claimants face strict time limits in pursuing litigation.
The other thing that I have observed in the more voluminous records now kept by the Department is that whereas in the past, the lack of records meant at times that children were at risk, the overabundance of records may now be contributing to the same problem but for a different reason.
The recent Cummings Report into Victoria's Vulnerable Children exposed problems of high staff turnover and over-stretched resources within child protection. Children in care often face multiple placements. I defy the capacity of anyone working with a child facing an emergency to sufficiently familiarise themselves with everything that is recorded in those files in deciding on an appropriate course of action in the child's interests.
It is vital now that the Department finds a balance in managing collective and individual records without allowing its staff to drown in paperwork.
Finally, the Ombudsman's report clearly shows records exist that are likely to shed light on cases of abuse yet to be dealt with.
It is imperative that Department records be reviewed urgently to ensure that all complaints of abuse have been dealt with and that perpetrators about whom complaints have been made are no longer in the system and caring for children.
40 years in the law
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