Winners and losers in national child sexual abuse compensation plan
The Commonwealth’s announcement that it will introduce a National Redress Scheme for victims of child sexual abuse is overdue and welcome. However, there is a desperately urgent need for the scheme to be met by national civil litigation reform, otherwise some victims could be short-changed, or even find their entitlements cut back.
While detail at the moment is limited, the scheme is mostly consistent with the Royal Commission into Institutional Responses for Child Sexual Abuse recommendations on the scheme handed down in 2015. However, the Royal Commission’s recommendations on redress not only dealt with the introduction of the scheme, but civil litigation reform. Other than the statute of limitations in civil claims for child sexual abuse, which has been abolished in New South Wales and Victoria and appears likely to be abolished in 2017 in Queensland and Western Australia, there has been little movement on the civil litigation front by the states. A National Redress Scheme unaccompanied by national civil litigation reform in the area will short-change victims of child sexual abuse in their pursuit of just compensation, and even put some victims at risk of having entitlements cut back. There will be winners under a National Redress Scheme, but also losers if cashed-up institutions flock to the scheme as a means of reducing their liability, particularly if civil litigation reform in the area does not occur.
So who are the winners and who are the potential losers?
- Victims abused in an institution that no longer exists.
Victims sexually abused in an institution that no longer exists are the big winners in a National Redress Scheme. Previously, these victims had no option of obtaining redress or compensation as there was no entity to sue. Thankfully, the Commonwealth government has agreed to be the funder of last resort and victims previously abused in these circumstances will now be able to seek redress.
- Victims abused in state care in poorer states or in churches and charities with minimal funding or insurance.
One of the primary reasons the Royal Commission recommended the introduction of a National Redress Scheme was to address the inequities between states and jurisdictions. In the interests of justice, the Commission rightly believed that it was unfair for victims subjected to a similar extent of abuse and similar impact from the abuse to receive significantly different amounts of compensation contingent upon where they reside and in what institution they were abused. In relation to state care, the principal two examples are victims abused in South Australia and Western Australia. In SA, the government introduced, and still has, a scheme where victims sexually abused in state care can apply under the Victims of Crime Act 2001 for what is described as an ex gratia payment up to a maximum of $50,000. Victims who have received ex gratia payments under the scheme would be able to apply to be topped up under the National Redress Scheme provided SA opts in to the scheme. However, SA has already indicated it will not opt into the scheme and WA is uncertain.
In WA, victims abused in state care have not been able to get compensation at all other than through a special scheme called Redress WA, which was only in existence for a short time and which compensated children who were part of the Stolen Generation removed from their parents and put in state care. Otherwise, the policy of the Western Australian government has been to enforce the strict six-year-with-no-extension limitation period that applies to personal injury claims to limit victims from either suing the state or seeking compensation via other means. Some charitable organisations also do not have the type of funding some of the larger churches have, and have struggled to provide significant financial redress to victims. If these organisations opt in to the scheme, victims can also apply for top up, but the problem may well be that those charitable institutions with limited funding may choose not to opt in because they do not have the funds to pay victims.
Furthermore, despite the goodwill of the scheme and its intentions, there is a risk some classes of victims will have their rights and entitlements curtailed as an indirect consequence of the scheme’s introduction.
- Victims sexually abused where the institution is a wealthy church or has insurance cover.
One of the weaknesses of the scheme is that it did not fully implement the recommendations of the Royal Commission as to maximum payment and possibly average payments. The Royal Commission recommended a maximum payment of $200,000 with an average payment of $65,000. The ceiling for the National Redress Scheme is $150,000 and victims are rightly disappointed that the Commonwealth government did not go all the way with the Royal Commission on this point.
The problem this creates is that some victims currently going through church internal redress processes obtain financial redress higher than what the National Redress Scheme is offering. If the Catholic, Anglican and Uniting Churches and the Salvation Army decide to opt into the scheme, the churches may exploit it as a means of limiting and reducing benefits payable to victims who could have received higher financial redress outside of the scheme. If the wealthy churches decide to opt into the scheme it will be interesting to see whether they maintain their current internal redress schemes and offer them as an alternative. At the moment, if I was advising a victim within the Catholic Church, I would not be recommending they approach the Scheme. As things stand, I think a victim in those circumstances would be likely to obtain a better outcome outside of the scheme.
- Victims with viable civil claims
Victims who can prove that the relevant institution knew, or ought to have known, they were being abused at the time and who have a chance of getting an extension of time under the relevant limitation provision, or who are in a state where the limitation provision no longer exists (Victoria, New South Wales), are at risk of having their benefits curtailed if civil litigation reform does not accompany the introduction of a National Redress Scheme.
The Royal Commission made a number of recommendations on civil litigation reform and almost none have been implemented so far. The only significant reform has been that Victoria and New South Wales have legislated the statute of limitation for childhood sexual abuse claims out of existence. The limitation date appears likely to go in Queensland and Western Australia, while South Australia and Tasmania have yet to move.
However, the Royal Commission made a range of recommendations on other civil litigation reform in relation to the naming of defendants, vicarious liability and insurer’s acting as model litigants. These reforms are as important. if not more important, to victims as an avenue of obtaining justice. The risk is that the politicians and the leaders of institutions use the National Redress Scheme as a means of arguing the job is done and that civil litigation reform is unnecessary, thereby curtailing benefits and entitlements of victims with prospects of successfully suing the institution concerned.
The National Redress Scheme was introduced to address the inequities that currently exist between victims. It was not the intention of the Royal Commission that the National Redress Scheme creates new inequities and reduces the rights of victims who had realistic prospects of obtaining higher redress and/or compensation. A $65,000.00 average payment with a $150,000.00 cap is hardly redress or compensation for the lifetime impact of childhood sexual abuse. The new scheme is there as a safety net for those with no entitlement or minimal entitlement. It should not become a honey pot for rich state governments and rich institutions to minimise their liability and not pay victims with stronger civil claims adequate redress or compensation. A National Redress Scheme with no civil litigation form is a token, a job half done. It should not be a get-out-of-jail card for rich institutions that insure themselves against the liability they face. The battle continues and it will not be won until full civil litigation reforms are legislated into effect nationally.