Schools where child sexual abuse occurred should be responsible for providing redress

In a submission to the Royal Commission into Institutional Responses to Child Abuse (the Commission), the Federal Government (the Government) responded to the questions raised by the Commission in its consultation paper on redress and litigation (the Paper). See our earlier article here on the Paper and how it set out the Commission’s suggested ways of improving survivors’ access to redress.

The Commission sought responses to its suggestions and received submissions from all governments and a variety of non-government organisations. Despite its brevity (the submission is 2.5 pages long), the Government's submission is a clear and succinct description of its position.

Whether the Government favours a single, national redress scheme led by the Australian Government or an alternative approach

The Commission is of the view that a national redress scheme or separate State and Territory redress schemes should be created to facilitate access for survivors, with the ‘ideal position’ being the establishment of a single national scheme led by the Government.

In response to this view, the Government states that it is 'strongly of the view' that the institutions in which child sexual abuse occurred should bear the responsibility for providing redress to survivors of that abuse'.

This is because it is 'concerned that seeking to establish a single national redress scheme would be extremely complex and would require significant time and resources to establish'.

The Government's view is that redress schemes such as those for victims of crime are 'traditionally' operated by State and Territory governments (as well as other stakeholders) and that this approach is the preferred model.

Reasons to support this position include the:

• difficulty in establishing a consistent regime across the jurisdictions (and the significant negotiation required);
• legislative uncertainty giving the Government the power to introduce legislation to operate such a scheme;
• need to introduce systems, structures and processes to implement any scheme - none of which exist at a federal level.

The need for a whole new bureaucracy to implement a redress scheme would not only be costly, but also time-consuming which would be 'further frustrating' for survivors of child abuse and the broader community.

Whether the Government favours options for expanding the public provision of counselling and psychological care for survivors

In short, the answer is 'no'. The Government considers that:

• a 'number of services' for the counselling and psychological care for survivors of child sexual abuse 'already exist';
• Medicare:
• provides counselling and mental health services;
• subsidises services provided by clinical and registered psychologists, social workers and occupational therapists; and
• provides universal support for individuals seeking access to medical services based on need rather than the cause of the condition.

Rather than add to the current provision of services, the Government suggests that it may be 'awareness' or 'confidence' of and in those services that can be improved, and it seeks the Commission's views on this potential issue and how to fix it.

The Australian Government’s views on appropriate funding arrangements, funder of last resort arrangements, and the level of flexibility allowed in implementing redress schemes and funding

On this point, the Government is clear that 'responsibility for providing redress should lie with the institution that failed to protect the individual survivors'. Although the Government also notes that this liability is in addition to that of the actual perpetrators of the abuse, the practical reality is that institutions such as non-government schools have 'deeper pockets' and therefore preferred parties for litigation proceedings by survivors.

The Government invites the Commission to make recommendations to institutions to 'accept the legal, financial and moral responsibility for failing to protect children'. Such recommendations would be a clear message to those (and other) institutions that they have no choice, for the future, but to prioritise the safety and well-being of the children entrusted to their care.

Having regard to their view, the Commonwealth does not see itself as having a role as ‘funder of last resort’.

Other submissions

To read other submissions from State and Territory governments and the non-government organisations, access the 'Submissions' page on the Commission's website, available here.

The Commission's final report, including its formal recommendations on options for redress and litigation, is due in 2017.

In the meantime institutions, who know of or suspect that historical incidents of child sexual abuse have occurred, should be mindful about their future responsibilities to provide compensation in the event that litigation is commenced. The Government has made it clear that it does not support any scheme funded by it which would compensate victims for wrongs which the institution was responsible for preventing.