National Compensation Scheme Predicted for Abuse Victims

The Royal Commission into Institutional Child Sexual Abuse has released its consultation paper on redress and civil litigation, writes TGB’s Mal Byrne.

While the consultation paper published on Friday, 30 January 2015 by the Royal Commission into Institutional Responses to Child Sexual Abuse on redress and civil litigation is not the Commission’s final word with final recommendations, the core view with the Commission on civil litigation and establishment of a National Compensation Scheme are writ large in the paper.

The Commission proposes the following options for discussion on reforms of civil litigation:

1. Either the removal of all statutory limitation periods or significant extensions of those periods.  A decision will have to be made as to whether any legislative change is prospective or retrospective.  However, the proposals are not carte blanche for plaintiffs as defendants faced with impossible tasks of investigating and defending claims to the point where a fair trial is impossible have if the option of applying for a stay of proceedings;

2. The Ellis defence that the Catholic Church currently has available to it on civil claims, that is to say that it is not a legally entity that can be sued in its own right, be removed and the trust holding church assets  be named as the defendant or the church become a nominal defendant;

3. That defendants and their lawyers throughout Australia agree to a guiding set of principles in terms of the conduct of civil claims having due regard to the sensitivity and vulnerability of victims and the imbalance that exists in most cases between victims and the institutions they are suing.

However, the majority of the paper deals with the establishment of a National Compensation Scheme which the Commission recommends should be run by an independent statutory body.  The Commissions canvases a range of possibilities in terms of how the scheme could be setup listed as follows:

1. In relation to eligibility for the scheme, there needs to be a connection between the institution and the abuse, the abuse needs to be sexual abuse, but physical and emotional abuse that accompanies sexual abuse will also be considered.  Victims who have already received payments under other schemes should be eligible to apply, but any payments previously received should be taken into account;

2. The standard of proof should be lower than the current civil standard proof of balance of probabilities and should be one of plausibility, that is to say, that the allegations may be true rather than probably are true;

3. The victim should be allowed to receive advice on offers of settlement from the relevant support service or Community Legal Centre and should be required to seek legal advice on any Deed of Agreement that they are required to sign on any settlement.  Offers should be open for three months and the Commission leaves open the issue of whether review and appeal process should be put in place.  There should be no confidentiality clause in the Deed and the scheme must pass on any abuse allegations to police;

4. The minimum payment available should be $10,000 and the maximum should be a figure of somewhere between $100,000 to $200,000 on the basis that average payments will range between $50,000 and $80,000. Previous payments received in another schemes will be considered;

5. Assessment of payments should be made using three points tables as follows:

– 1-40 based on the severity of the abuse;

– 1-40 based on the impact of the abuse;

– 1-20 based on distinctive institutional factors.

Severity of abuse would deal with issues such as whether penetration occurred, whether force was used, the frequency of the abuse and the length of time over which it occurred, the number of perpetrators involved at any given time and whether there was a close personal relationship between the victim and the abuser;

The impact of the abuse would look at the interpersonal problems, impairments and psychiatric injury caused by the abuse; 

The distinct institutional factors would deal with issues such as whether or not the victims were in care at the time of abuse and whether the institution where the abuse occurred was a closed institution, such as an orphanage or foster care arrangement, as opposed to a school where victims at least have the opportunity to escape; 

 6. Medicare payments should be paid in addition to the compensation sum and that payments should be net payments and not all inclusive payments;

7. Victims abused by multiple perpetrators and more than one institution should be able to have their claim under the scheme resolved by one process.

The Commission views the establishment of a National Compensation Scheme and this processes for a proper redress for victims of sexual abuse as a form of reparation and encourages institutions to offer restorative justice processes including formal apologies, meetings between the victims and senior representative of the institution, family reunions and memory projects. 

The Commission clearly recommends that the Commonwealth Government assume responsibility for the establishment and running of the scheme in co-operation with state governments and non-government institutions and funding be pooled to a sum of $4.5 billion. 

In recommending the establishment of the scheme, the Commission is at pains to point out that the problem is society’s problem and that while institutions have failed victims, they have done so because they, to some extent reflect society’s culture in dealing with these issues.  The problem is everyone’s problem and we all need to turn our minds to getting the victims the justice they need and deserve.  On that point, the Commission’s charter has been to deal with institutional child sexual abuse.  That is only a subset of a much bigger problem.  The vexing questions remain:

1. What about victims of sexual abuse that did not occur either under the umbrella of an institution or by a representative of an institution?, Where do they go for redress?

 2. While the Commission recommends that physical and emotional abuse that accompanied sexual abuse be taken into account, what do victims such as orphans who were subject to severe physical abuse over many years do about redress?

RELATED:

Will a Royal Commission help victims of sexual abuse claim compensation?

Can victims of sexual abuse claim compensation?

What Will the Royal Commission Into Institutional Child Sexual Abuse Recommend on Compensation for Victims? 

Mal Byrne is a partner at leading Australian law firm Tindall Gask Bentley. For confidential advice about your matter, contact Mal on (08) 8250 6668 or register for an appointment online here.