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$4 billion compensation scheme is the best way to achieve for child sexual abuse survivors, Royal Commission says

16/09/15
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The Royal Commission into Institutional Responses to Child Sexual Abuse (Commission) has released its final report on redress and civil litigation confirming the Commission’s findings from its consultation paper earlier this year and provided recommendations to ensure justice for survivors of institutional child sexual abuse.

The Commission’s final report was released on 14 September and offers 99 recommendations to institutions and governments including:

  • a single national redress scheme;
  • the removal of any limitation period that applies to claims for damages in the context of institutional child sexual abuse; and
  • new legislation to impose a non-delegable duty on all institutions owed to children who are in the care, supervision or control of the institution.

Many of these options were foreshadowed in the consultation paper (see our earlier article).

What is redress?

A redress scheme provides a remedy or compensation for a wrong or grievance. Redress, as a form of achieving justice, is needed in the context of institutional child sexual abuse, including the cases of historical child sexual abuse in schools, as it is not always feasible for survivors to seek common law damages.

The Commission has provided general principles that should be used to develop a national redress scheme, including that:

  • redress should be survivor-focused;
  • there should be a ‘no wrong door’ approach for survivors accessing redress, allowing access to redress for survivors either through the institution itself or through a government scheme;
  • all redress should be offered, assessed and provided having regard to the circumstances of each case and each survivor; and
  • redress should be able to be obtained with minimal difficulty and cost.

Elements of redress

The report stipulates three basic elements that any redress schemes should have. These are:

  • a direct personal response by the institution, including an apology and an opportunity for the survivor to meet with a senior representative assuring that the institution has taken, or will take, steps to protect against further abuse;
  • access to therapeutic counselling and psychological care as needed throughout a survivor’s life; and
  • monetary payments as a tangible means of recognising the wrong survivors have suffered.

New statutory duty on schools and churches

The Commission has recommended that State and Territory governments should introduce legislation to impose a non-delegable duty on institutions for child sexual abuse, despite it being the deliberate criminal act of a person associated with the institution. This duty would be owed to children who are in the care, supervision or control of the institution, and apply to:

  • residential facilities for children;
  • day and boarding schools;
  • early childhood education and care services including outside school hours services and preschools;
  • disability services for children;
  • health services for children; and
  • any religious organisation that provides facilities or services for children including activities and services provided by religious leaders, officers or personnel.

The Commission’s report states that irrespective of whether State and Territory parliaments legislate to impose this duty, they should introduce legislation to make institutions liable for child sexual abuse by persons associated with the institution, unless the institution took reasonable steps to prevent the abuse.

Funding required for redress

While the Commission acknowledges that institutions, including schools, in which the abuse occurred should be responsible for the cost of redress in each individual case, the Commission proposes that the introduction of a national, or at least jurisdictional redress scheme will require governments to pick up the bill where institutions fall short.

The report reveals:

  • there are 60,000 potential claimants nationwide;
  • the appropriate average monetary payment to survivors is $65,000; and
  • a national scheme would cost an estimated $4.01 billion ( at least $1.25 billion paid by government).

The Commission is satisfied that although determinative decisions on funding cannot be made just yet, the starting points for funding redress are as follows:

  • the institution in which the abuse occurred, irrespective of whether it is a large religious organisation or a relatively small school, should fund the cost of redress;
  • where a survivor experienced abuse in more than one institution, the costs of redress should be apportioned between these institutions taking into account relative severity of abuse;
  • where the institution no longer exists but was part of a group of institutions or there is a successor to the institution, the group or successor should fund redress; and
  • where institutions no longer exist, were not part of a larger group or had a successor, governments should act as ‘funders of last resort’ on the basis of their social, regulatory and guardianship responsibilities.

Last month, the Federal Government submitted to the Commission that a national scheme to provide assistance and compensation for victims of child sexual abuse would be too complex, time consuming and costly.

The SMH reported that Commission Chairman Justice Peter McClellan expressed disappointment in the Government’s response. He argued that the Government had accepted the need for effective redress by setting up the Commission, but failed to support what the evidence shows to be the most effective scheme.

What happens next?

The Commission has reiterated that they ‘have no doubt that the best structure for providing redress is through a single national redress scheme established by the Australian Government’. The Commission has given the Federal Government until the end of this year to determine and announce whether or not it is willing to establish a single national redress scheme.

Taking the Government’s current position into account, the Commission has also recommended that if the Australian Government does not announce that it is willing to establish a single national redress scheme, each State and Territory Government should establish a redress scheme for their jurisdiction.

It has also recommended that State and Territory governments should undertake national negotiations as quickly as possible in order to agree on the best way to provide the maximum consistency possible between jurisdictions for survivors.

Any change to redress schemes in Australia, whether on a national or jurisdictional scale, will impact schools’ and religious bodies’ obligations when child sexual abuse occurs within their institutions. The Commission has stated that the introduction of liability for the criminal actions of persons associated with an institution will apply to every school in Australia.

Timing is critical

While the Commission strongly recommends a national redress scheme, it is important to recognise that redress must be made available as soon as possible. The Commission’s desire for a national scheme should not outweigh the need for expedient and accessible redress for survivors of institutional child sexual abuse.

The estimated 60,000 claimants across Australia and the recommended average monetary payment of $65,000 (with a minimum payment set at $10,000) demonstrates that a national redress scheme will be no easy, or cheap, feat. However, these figures also reveal urgency for action and a uniform redress scheme to provide a clear and simple application process for survivors and stable and consistent funding sources.

For this reason, the Commission has stated that whether there is a single national redress scheme or separate State and Territory redress schemes, a scheme or schemes should be established and ready to begin inviting and accepting applications from survivors by no later than 1 July 2017.

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About the Author

Cara Novakovic

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