14 May 2020

By Carlie Alcock, Associate | Mills Oakley

Copyright © 2021 Mills Oakley. Reprinted with permission.

On 30 June 2020, while the country grappled with the ongoing effects of the coronavirus pandemic, time quietly ran out on the Commonwealth Government’s deadline for organisations to voluntarily join the National Redress Scheme.

The National Redress Scheme was created by the Federal Government in response to the recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) and allows survivors of childhood sexual abuse to bring claims against participating institutions which are then considered via an independent decision-making process. In order for a survivor to receive a payment of redress under the scheme, the institution against which they allege abuse must be a participating institution.

The Commonwealth and all State and Territory governments have joined the scheme, meaning survivors of abuse in any State, Territory or Federal run institutions can seek redress under the scheme. Several prominent religious organisations have also joined the scheme, including the Catholic Church, the Anglican church and The Salvation Army. However, a number of institutions named in the Royal Commission’s Final Report, and against whom claims have been made under the scheme, have failed to join by the deadline of 30 June 2020. This means that survivors of child sexual abuse may miss out on compensation under the scheme if those institutions refuse to join.

Under the scheme, survivors can access up to $150,000 in compensation payments and an apology from the organisation involved. As of 29 June 2020, there were 103 applications on hold because the responsible institutions had failed to sign up to the scheme.

Prior to the deadline for sign-up, the Commonwealth Government warned organisations that it would not hesitate to name and shame those that had refused to join. Prime Minister Scott Morrison, and Social Services Minister, Anne Ruston, went further, stating that those organisations that had been named by the Royal Commission or that had been notified of claims but had still refused to commit to the National Redress Scheme, would be “publicly identified and the government is considering other actions including the appropriateness of future funding and tax status”.

The Commonwealth Government followed through on that promise on 1 July 2020, confirming that those institutions named would no longer be eligible to apply for Commonwealth funding and stating that it was investigating options to revoke tax concessions including charitable status.

Jehovah’s Witnesses

Of those institutions that have been publicly named, perhaps the most recognisable is the Jehovah’s Witnesses. In its Final Report, published in December 2017, the Royal Commission reported that the Jehovah’s Witnesses in Australia had reported 1,800 child sexual abuse victim files and over 1,000 alleged perpetrators within a membership of 68,000.[1] These numbers are staggering when considering that the Catholic Church, by contrast, had a reported 4,444 child sexual abuse victim files within a membership of 5.3 million.[2] Furthermore, it is understood that of 1,006 alleged perpetrators identified by the organisation, there was no evidence that a single matter was reported to the Police or other secular authorities.[3]

Despite these numbers, the position taken by the Jehovah’s Witnesses has been that it does not have the “institutional settings” needed to be covered by the National Redress Scheme. Representatives for the organisation have previously acknowledged that applications have been submitted to the National Redress Scheme, which name the Jehovah’s Witnesses, but that the organisation has to date chosen to respond directly to the individual claims.[4] Concerns arise as to the adequacy of the organisation’s responses to these claims, in light of the Royal Commission’s comment that:

The organisation relies on outdated policies and practices to respond to allegations of child sexual abuse. Also, those policies and practices are not subject to ongoing and continuous review. The policies and practices are, by and large, wholly inappropriate and unsuitable for application in cases of child sexual abuse. The organisation’s retention and continued application of policies such as the two-witness rule in cases of child sexual abuse shows a serious lack of understanding of the nature of child sexual abuse.[5]

Whilst the Commonwealth Government has already indicated that those organisations which have chosen not to sign up to the scheme will no longer be eligible for Federal funding, this is unlikely to provide any added incentive for the Jehovah’s Witnesses to join the scheme, as it does not appear that the various entities that comprise the Jehovah’s Witnesses in Australia receive any Federal (or State) Government funding, or hold any contracts with the Federal Government. This is unsurprising as the organisation is typically averse to the idea of associating itself with secular society or authorities.

On this basis, additional sanctions proposed by the Commonwealth, such as the revoking of an organisation’s charitable status, become increasingly important. However, unlike the determination of government contracts, the process for revoking an organisation’s charity status is much less discretionary.

So, how can it be done?

The Australian Charities and Not-for-profits Commission (ACNC) is responsible for granting and revoking the charitable status of organisations and the power to revoke such status arises where a charity fails to comply with the Australian Charities and Not-for-profits Commission Act 2012 (Cth) (ACNC Act) and the Australian Charities and Not-for-profits Commission Regulation 2013 (Cth) (ACNC Regulation). This includes the Governance Standards. The Governance Standards refer to the way in which a charity is operated and require compliance in the following areas:

Standard 1: Purposes and Not-for-Profit Nature

Standard 2: Accountability to Members

Standard 3: Compliance with Australian Laws

Standard 4: Suitability of Responsible Persons

Standard 5: Duties of Responsible Persons

In considering whether the charitable status of an organisation may be able to be revoked in response to a decision by the organisation not to join the National Redress Scheme, the organisation’s compliance with the Standards will inevitably come under scrutiny.

Standard 3 may prove to be particularly important in the case of the Jehovah’s Witnesses, especially when considering the findings made by the Royal Commission in Case Study 29:

The organisation’s general practice of not reporting serious instances of child sexual abuse to police or authorities – in particular, where the complainant is a child – demonstrates a serious failure by the organisation to provide for the safety and protection of children in the organisation and in the community.[6]

In the same report, the Royal Commission criticised the organisation’s incorrect interpretation of the mandatory reporting requirements. For example, under section 316(1) of the Crimes Act 1900 (NSW) or section 327(2) of the Crimes Act 1958 (Vic), and in the Royal Commission itself, stating that the “general practice of the Jehovah’s Witness organisation of not reporting child sexual abuse to the authorities unless required to do so by law undermines the efficacy of the Working with Children Check system.”[7]

In addition to the findings in Case Study 29, it is also noted that in 2011 and 2012 one of the main entities of the Jehovah’s Witnesses in Australia, Watchtower Bible and Tract Society of Australia Ltd, was prosecuted in the Magistrates’ Court of Victoria for non-compliance with the Working with Children Act 2005 (Vic) in relation to one of the organisation’s congregations in Victoria.[8]

In light of the increased pressure on institutions such as the Jehovah’s Witnesses, it is not unfathomable that the ACNC will take an active role in pursuing these organisations through increased scrutiny and the investigation of potential non-compliance with Australian laws, such as various State and Territory based Working with Children legislation. The ACNC may be minded to involve itself in this way as the potential non-compliance with such laws would undoubtedly affect public trust and confidence in these organisations and the charities sector more broadly.

While it remains to be seen whether any such action will be taken by the ACNC (or indeed whether any investigations will turn up any such non-compliance), as the Commonwealth Government looks for ways in which it might increase the pressure on institutions that continue to resist the National Redress Scheme, it will be an interesting space to watch.

[1] Final Report Preface and executive summary. Royal Commission into Institutional Responses to Child Sexual abuse, 2017, p 76 in Submission to the Joint Select Committee on Implementation of the National Redress Scheme: Jehovah’s Witnesses and the National Redress Scheme, Steven Unthank 13 June 2020.

[2] ABC News, 8 February 2017, <https://www.abc.net.au/news/2017-02-06/child-sex-abuse-royal-commission:-data-reveals-catholic-abuse/8243890> in Submission to the Joint Select Committee on Implementation of the National Redress Scheme: Jehovah’s Witnesses and the National Redress Scheme, Steven Unthank 13 June 2020.

[3] Eyder Peralta, Australia’s Jehovah’s Witnesses Failed to Report 1,006 Alleged Child Sex Abuses, 27 July 2015 at <https://www.npr.org/sections/thetwo-way/2015/07/27/426756849/australias-jehovahs-witnesses-failed-to-report-1-006-alleged-child-sex-abuses>.

[4] Matthew Doran, Government names institutions that did not sign up to National Redress Scheme for child sexual abuse victims, 1 July 2020 at <https://www.abc.net.au/news/2020-07-01/government-names-shames-institutions-not-part-of-redress-scheme/12406850>.

[5] Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study 29: The response of the Jehovah’s Witnesses and Watchtower Bible and Tract Society of Australia Ltd to allegations of child sexual abuse, October 2016 at 77.

[6] Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study 29: The response of the Jehovah’s Witnesses and Watchtower Bible and Tract Society of Australia Ltd to allegations of child sexual abuse, October 2016 at 77.

[7] Ibid at 29.

[8] Submission to the Joint Select Committee on Implementation of the National Redress Scheme: Jehovah’s Witnesses and the National Redress Scheme, Steven Unthank 13 June 2020 at 36.

Copyright © 2021 Mills Oakley. Reprinted with permission.

Link to original article: https://www.millsoakley.com.au/thinking/sacrilegious-sanctions-can-the-commonwealth-government-really-strip-an-institution-of-its-charity-status-where-the-institution-refuses-to-join-the-national-redress-scheme/

Link to article on Lexology: https://www.lexology.com/library/detail.aspx?g=bc9a1c31-1951-4706-9f5f-23315fe0ccbe

Articles by Carlie Alcock: https://www.lexology.com/1057209/author/_Carlie_Alcock/

Case Study 29 into Jehovah’s Witnesses: The Hon. Justice Peter McClellan AM and Commissioner Helen Milroy. © Commonwealth of Australia 2015

Related Downloads

Media Release National Redress Scheme update | 1 July 2020 by The Hon. Senator Anne Ruston | DOWNLOAD

Submission to the Joint Select Committee on Implementation of National Redress Scheme: Jehovah’s Witnesses and the National Redress Scheme (prepared by Steven Unthank for Say Sorry) June 2020 | DOWNLOAD

Royal Commission into Institutional Responses to Child Sexual Abuse, Report of Case Study 29: The response of the Jehovah’s Witnesses and Watchtower Bible and Tract Society of Australia Ltd to allegations of child sexual abuse, October 2016 | DOWNLOAD