It incorporates a number of the key recommendations from the Royal Commission so as to establish a scheme whereby survivors of institutional abuse are provided redress in the attempt to alleviate the impact of the abuse. Redress is offered to eligible survivors in the following three respects:
a redress payment of up to $150,000 on a case-by-case basis reflecting the severity of the abuse suffered
access to counselling and psychological services, and
a direct personal response from the responsible institution to the survivor (upon request)
Survivors who have accessed redress under another scheme or who have previously received compensation through a settlement or a judgment by a court will not be excluded from applying for redress under the Scheme. However, any prior payments made by a participating institution in relation to abuse suffered by a survivor that is within the scope of the Scheme will be deducted from any amount payable by that participating institution. Following the commencement of the Scheme survivors will need to chose which pathway to follow, the Scheme or common law litigation.
Subject to the passage of legislation, the Scheme will start on 1 July 2018, and will run for 10 years.
The Commonwealth Government is creating the Scheme, and it has promised to provide redress to people who were abused in places that were run by the Commonwealth. Other governments and organisations have been invited to join the Scheme, which is called ‘opting in’. The Commonwealth Government is pushing for all state governments, churches, charities and other non-government organisations to join up to ensure that a truly national Scheme is available to as many people as possible. State governments have responded positively, and Western Australia remains the only state yet to commit to joining the Scheme.
This means that non-government institutions like churches, schools and charities in all states other than Western Australia can also join the Scheme. There is, however, no provision to force institutions to opt in. Earlier today the Catholic Church announced that it will participate in the Scheme.
In order for a survivor to be eligible for redress, there are several factors that need to be satisfied. In particular:
the survivor must have been the victim of sexual abuse within an institutional setting
at the time of the abuse, the survivor must have been under the age of 18
the abuse must have occurred prior to 1 July 2018
the survivor must be an Australian citizen or permanent resident
the survivor must make a claim for redress under the Scheme and survivors may make only one claim over the course of the Scheme
any survivors who have themselves been convicted of sexual offences or have been sentenced to five years imprisonment for a criminal offence are ineligible for redress
a participating institution (that is, an institution which has “opted-in” to the Scheme) must have been equally or primarily responsible for the abuse
The term “institutional setting” is defined broadly under the proposed legislation, and will capture institutions including schools.
A guiding principle of the Scheme is to avoid re-traumatising or otherwise harming the survivor. An application for redress is therefore quite different to the process that would be undertaken were a survivor to seek compensation through a common law claim that is litigated through the courts.
In particular, a different standard of proof is to be applied. In order to be eligible for redress, the survivor must show that there was a reasonable likelihood that the abuse occurred. This is defined as “the chance of an event occurring or not occurring which is real – not fanciful or remote”.
While an applicant must ‘verify the information provided in the application by statutory declaration’ there is no other statutory evidentiary requirement, although further information from the application or institution can be requested. This is very different from a common law claim where survivors may be required to undergo examination and cross-examination during a trial, as well as undergoing medico-legal assessments.
In addition, participating institutions have no right to be heard in respect of an application for redress. Rather, once they have opted-in, they must adhere to any decision made without making submissions in response.
An institution will be found liable under the Scheme where it is established that the institution was primarily or equally responsible for the “abuser” having contact with the survivor. Various circumstances are relevant to determining this question, such as whether:
the abuse occurred either on the premises of the participating institution or where activities of the participating institution occurred, or in connection with such activities
the perpetrator was an official of the institution, and
the participating institution was responsible for the care of the survivor
Examples cited in the Explanatory Memorandum accompanying the proposed legislation for where liability will be established include where a survivor was abused on school grounds, during school hours, by a teacher, where the school was a participating institution. On the other hand, using the same example, a participating institution may not be found to responsible for the “contact” if a victim was abused on school grounds but on a weekend, by someone who was not connected to the school.
The costs of providing redress for each person for whom an institution is responsible will be based on the proportionate share of the total amount of redress paid to each person.
A survivor who accepts an offer of redress will be required to release all the participating institutions determined under the Scheme as being responsible for the sexual abuse from liability for the sexual and related non-sexual abuse that is within the scope of the Scheme. The effect of this is that participation in the Scheme and acceptance of an offer of redress means a survivor cannot subsequently bring a common law claim against the relevant institution.
There are still a range of details to be worked for the Scheme and obviously amendments may still be made to the Bill before it is passed by Parliament. There is also discussion in relation to whether payments under the Scheme will be covered by existing or future insurance policies – an important issue for schools and other institutions to clarify before any decision to ‘opt-in’ is made.
The Government’s National Redress Scheme website is relatively basic but you can subscribe to receive updates on the Scheme. CSA will also continue to provide further information as the Scheme is finalised.