Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Key Points

• Commonwealth Redress Scheme will commence on 1 July 2018.

• Redress payments would be capped at $150,000.

• States and other institutions can opt to join the scheme.

On 26 October 2017 the Federal Social Services Minister introduced two bills facilitating a Commonwealth redress scheme for victims of institutional child sexual abuse. The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 and the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017, entitle those who were sexually abused while in Commonwealth and Territory institutions to compensation.

The redress scheme would establish the following 3 elements of redress:

1. A tax-free redress payment capped at $150,000 that would not affect welfare entitlements;
2. Access to psychological and counselling services; and
3. If requested by the survivor, a direct personal response from the relevant institution.

The scheme will include all Commonwealth institutions and provides a national opt-in scheme, so that any State, Territory, church or charity can choose to opt into the scheme. It is to operate on a responsible-entity-pays basis, that is, the entities which opt-in must fund the cost of redress claims made against them.

The Royal Commission into Institutional Responses to Child Sexual Abuse had estimated there were 4,000 institutions across Australia where child sexual abuse happened and that approximately 20,000 victims had been abused in government-run institutions and 40,000 in non-government facilities.

The scheme if passed will commence on 1 July 2018 and will operate for 10 years only. It is noted that the Royal Commission recommended that such a scheme should not have a capped duration.
To be entitled to redress under the scheme:

1. The abuse must have occurred prior to 1 July 2018;
2. The abuse must have occurred when the person was a child in a participating institutional setting; and
3. The participating institution must have been primarily or equally responsible for the abuse.

The most important concepts introduced are as follows:

1. The test of “reasonable likelihood” as the standard used to assess applications. The Explanatory Memorandum refers to this test being defined as “the chance of an event occurring or not occurring which is real – not fanciful or remote”. Therefore the redress assessor would need to be satisfied that there is a reasonable likelihood that the person eligible did suffer sexual abuse at a Commonwealth institution or a participating institution.
2. Applicants may only make one claim under the scheme and victims of abuse are not able to apply for further compensation from the institution. Once the offer of redress is accepted the participating institution is released from any further liability and the victim must undertake not to bring or continue any civil claim in relation to the abuse against the responsible participating institution.
3. A redress offer will be open for acceptance for a three month period (contrary to the Royal Commission’s recommendation of one year).
4. Survivors will be able to apply for redress under the Scheme even if they have previously received a redress payment or lump sum settlement payment for the same abuse. However, the prior payment will be taken into account when calculating the amount of redress a survivor may be entitled to receive. A survivor will be precluded from applying to the Scheme if they have previously been awarded damages from a court.
5. Decisions made under the scheme are to be exempt from judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). This is to prevent further trauma to survivors and to ensure that the scheme remains as non-legalistic as possible for participants who choose the scheme as an alternative to civil litigation.
6. Surprisingly, survivors of child sexual abuse who have gone on to commit sex offences themselves, or who have been sentenced to imprisonment for five years or more for serious offences are excluded from making an application.

Comment:

The redress scheme has been introduced after an avalanche of evidence emerged during the Royal Commission into Institutional Responses to Child Sexual Abuse. Whilst we are a long way off a single national redress scheme as advocated by the Royal Commission the Commonwealth redress scheme provides at the very least a fast and process driven alternative to civil litigation with lower evidentiary thresholds.
However there are 3 main areas of criticism levelled at the scheme:

1. the non-availability of judicial review in a system which allows only one claim under the scheme and where previous settlements are being reviewed;
2. the relatively modest cap on compensation of $150,000. The Royal Commission recommended a maximum payout of $200,000 and victim advocates have suggested that a maximum figure nearer to that provided for in the Irish model, which has a maximum payout of €300,000 and which can be exceeded in some circumstances. We note that in view of the estimated number of victims (exceeding 60,000) there is an obvious budgetary restraint on the scheme’s maximum payout figure; and
3. the opt-in nature of the scheme (for example the South Australian Government has indicated it will not opt in to the scheme).

It remains to be seen how many survivors of child sexual abuse will find the scheme attractive in circumstances where the payout could be significantly higher if they pursue damages through the court system.

Post by Ashleigh Gambera and Freida Stylianou