Sexual Abuse Compensation

More losers than winners in the latest offer to victims of institutional child sexual abuse

The latest proposed compensation deal for institutional child sexual abuse victims doesn’t go far enough for those who have already endured so much, writes TGB partner Mal Byrne.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 has just been introduced to the Federal Parliament by Social Services Minister  Christian Porter.

The National Redress Scheme was introduced at the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse in its report into redress and civil litigation. While most of the recommendations of the Royal Commission have been adopted, several important recommendations have been ignored and the scheme in my view is less than what victims were entitled to expect.

Nevertheless, the Scheme is another option for victims of child sexual abuse seeking redress, but it is far from the best option – a plan B or perhaps even plan C. So, who are the winners and losers if the Scheme is introduced in its current state?

The Winners

People sexually abused in an institution that no longer exists

While existing institutions are expected to opt into the scheme and fund redress payments made on their behalf, the Commonwealth has agreed to be the funder of last resort for non-government institutions that no longer exist although liability is subject to a Ministerial declaration that the defunct institution is an institution they will cover. Institutions that come to mind where much abuse occurred which no longer exist are the Sister Kate’s Mission and Roeland’s Mission in Western Australia.

Participating Institutions

Bob Dylan famously sang “money doesn’t talk, it swears” and while the scheme is needed, it has been watered down at the behest of institutions of all types worried about their hip pocket. The Royal Commissioners thoroughly factored in the affordability of the Scheme in their Report and there was no need for further tinkering. Now, the Scheme is so watered down that it’s no better and indeed significantly worse than current alternatives. However, that won’t stop participating institutions from selling it as the “best” option…. best option for whom I ask?

The Losers

Relatives of sexual abuse victims who have died

Unfortunately, for reasons known only to themselves, the law makers have decided not to allow relatives of deceased sexual abuse victims who have died (often at their own hand) to redress even where they can prove that they have suffered severe psychiatric injury arising out of what happened. In my view, that is unjust and victims in those circumstances should seek legal advice about pursuing a civil claim or redress against the institution outside of the parameters of the Scheme.

Victims of physical and psychological abuse in an institutional setting who were not sexually abused

The Bill states that only victims of sexual abuse can seek redress under the scheme. While physical and psychological abuse that occurred in conjunction with sexual abuse will be taken into account as “related non-sexual abuse” in assessing payments to the claimant under the scheme, physical and psychological abuse suffered in isolation is not compensable. Once again, victims in those circumstances should seek legal advice about pursuing a claim directly against the institution for their injuries, particularly victims who experienced severe corporal punishment and physical abuse in orphanages and schools run by churches as they may be able to obtain redress from the church concerned.

Victims who have received prior payments of redress from institutions

While the Royal Commission contemplated that victims who have received redress payments from institutions previously would have those payments taken into account in assessing the quantum of redress payable under the National Redress Scheme, the Scheme includes a multiplier that penalises those victims by inflating their previous payment by that multiplier based on the year when they received the previous payment. The reason behind this escapes me.

Victims generally

While politics is the art of compromise, constructing a just scheme to compensate victims should have been above political cut and thrust. In order to entice recalcitrant institutions into the Scheme, the Commonwealth has bowed to their will by cutting redress by 25%. The other potential barrier to victims is Section 21 of the Bill which sets out to define when “a participating institution” is “responsible for abuse”. The Rules that follow the final Act will hopefully crystallize the terms of Section 21. However, as currently drafted, Section 21 is going to result in disputes between victims and the Panel.

The collateral concern is that victims only have 90 days to decide whether to accept the offer, apply for internal review of the decision or withdraw the application and resubmit it at a later stage after perhaps gathering further evidence. Where an offer is declined, the victim cannot re-apply at a later stage and failure to respond to an offer within 90 days is deemed to be declining the offer. The Scheme Operator must advise the victim about accessing legal services to assist him/her in considering the offer, but the Rules will determine the extent of the legal services the Scheme will fund.

Victims weren’t expecting a Rolls Royce Scheme and the Royal Commission didn’t create one – and while I would be rude if I described the new Scheme as a lemon, it’s going to leave a bad taste in the mouths of many victims without a significant injection of the “sugar” it currently lacks. Also, the Civil Litigation Reforms that the Royal Commission recommended be introduced in conjunction with the Scheme have yet to be legislated. Leaving that work undone would be scandalous.

TGB partner Mal Byrne specialises in sexual abuse compensation claims and helps people from all across Australia. For a discreet discussion about your matter, you can call Mal on (08)82121077send him an email or register online.