By Luke Geary, Partner
On 1 July 2018, the Australian Government’s National Redress Scheme came into force in Australia. The Scheme provides support to survivors of institutionalised child sexual abuse. The Scheme is born from one of the key recommendations of the Royal Commission. It has been designed to afford an avenue for survivors who may not have had the option to see their matters through the courts. It is estimated that 60,000 child sexual abuse survivors will utilise the Scheme.
How it works
The Scheme offers three forms of redress, namely a maximum of $150,000 monetary payment, access to counselling and psychological services, and a direct personal response from the responsible institution, if requested.
State governments and non-government institutions need to opt into the Scheme. To date, all Australian states and territories have agreed to opt into the Scheme, with New South Wales and Victoria already registered as official participating institutions. Institutions such as churches, charities and other non-government institutions will also need to voluntarily opt into the Scheme, if they wish to allow any survivors of abuse in their institutions to have access to the Scheme. Those who experienced child sexual abuse in respect of institutions which have not agreed to opt in, will not be able to access the Scheme.
Applications under the Scheme can be lodged from 1 July 2018 to 30 June 2027.
To access the Scheme, survivors must be Australian citizens or permanent residents who experienced child sexual abuse in connection with a participating institution. This abuse must have occurred when the person was aged less than 18 years old and prior to 1 July 2018.
The difference between Redress and common law claims
The guiding principle of the Scheme is to provide a platform for responsibility and healing. As such, a redress claim is a lot different to the process that a survivor would undertake under common law, which would be litigated through the courts with the survivor being required to run a case to trial (and hence commit themselves to having to undergo examination-in-chief, cross-examination and various often gruelling medico-legal appointments). A conventional trial is often a highly re-traumatising process and clearly contrary to the fundamental principles of Redress, which is sought to be restorative in nature.
Most relevantly, there is a significant difference in the standard of proof between Redress and common law claims. In order to be eligible under the Scheme, the survivor must demonstrate that there was a reasonable likelihood that the participating institution is responsible for their introduction to the abuser. ‘Reasonable likelihood’ in the present context simply means that the chance of the abuse having occurred and the participating institution(s) being responsible for introducing the survivor and the abuser, is not far fetched or fanciful. This is obviously a much, much lower burden of proof than in civil courts for common law claims, which are determined on the balance of probabilities which requires proof for facts that the chance
Theory of Redress
The Scheme is focused on respect, engagement, information and support for survivors in an effort to move forward from their experiences. Redress offers a more holistic response to child sexual abuse which is not solely focused on compensation. Whilst a monetary payment represents a tangible expression of regret for the damage caused, it can in no way make up for the trauma experienced. Redress is about acknowledging the harm caused, and supporting those who have experienced child sexual abuse in an effort to assist in finding healing. The Scheme dictates that appropriate redress for survivors may include a direct personal response, counselling and psychological care and monetary payments. The redress provided to survivors will vary case to case and will have regard to the nature and impact of the abuse and the cultural needs of the survivor.
The direct personal response involves the survivor generally re-engaging with the responsible institution. This re-engagement typically includes an apology from the institution, the opportunity to meet with senior institutional representatives and an acknowledgment of the abuse and its impact. The institutions also offer assurances of the steps taken, or steps to be taken, to protect against further abuse of children in that institution. It is important to note that a direct personal response is not a mandatory part of redress, and can be rejected
at the discretion of the survivor.
Counselling and psychological care is assessed and provided by accredited practitioners. This support operates in conjunction with other forms or sources of treatment. In some instances counselling and psychological care can be provided to family members of survivors, where this is a necessary step in moving forward with the survivor’s treatment.
The theory of a monetary payment received under the Scheme is not compensation, but provides tangible recognition of the impacts that the abuse had on the survivor. The payments are determined by factoring the severity of abuse, the impact of abuse and any other relevant additional elements. The maximum monetary payment offered under the Scheme is $150,000.
However, the average payment to survivors is estimated at $76,000. These payments do not affect Commonwealth payments like veteran’s pensions or Centrelink payments, and they are immune from bankruptcy law. Survivors who received monetary payments under other Redress schemes, or through civil litigation, may still be eligible to be assessed under this Scheme, depending on the extent of their past receipts.
The success of the Scheme will be dependent on how well it is able to facilitate swift, just and fair decisions, together with how well the direct personal response can be provided by relevant participating institutions. Many survivors are quite elderly and/or unwell, so hopefully Redress will provide this outcome for them and allow them to move forward in their lives.
Luke Geary, Partner, has participated in the design of the National Redress Scheme and acts for many faith-based and non-faith based institutions, in response to common law and redress claims. Luke has designed redress schemes for a number of such organisations and appeared regularly in the Royal Commission at both public and private roundtables and in hearings.
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