The Royal Commission into Institutional Sexual Abuse commenced in April 2013. After 4 years of investigations into institutions and their handling of sexual abuse, and 2,575 referrals to authorities, the Royal Commission had its final sitting on 14 December 2017.
The Royal Commission has made a series of recommendations in its Redress and Civil Litigation Report and the good news for survivors is that the Commonwealth Government has adopted one the recommendations in part and introduced the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.
The Scheme is due to come into effect on 1 July 2018 when applications can be made by survivors for redress.
Entitlement to Redress
Section 16 of the Bill stipulates that to be entitled to redress a person must have been sexually abused as a child, the sexual abuse must be within the scope of the scheme and the person must be an Australian citizen or permanent resident at the time of making an application.
If a survivor has experienced physical abuse as well as sexual abuse then this will be taken into account in determining the amount of any redress payment.
Eligibility for redress is also contingent on the entity responsible for the abuse being a participating entity in the Scheme. There are three types of institutions that are participating institutions:
- Commonwealth institutions;
- Territory institutions; and
- Non-government institutions of a Territory.
If an institution is not one of the above and has not ‘opted in’ to the scheme, then a survivor will not be able to access redress under the Scheme.
Survivors of sexual abuse can access three elements of redress:
- A redress payment of a maximum amount of $150,000;
- Access to counselling and psychological services under the scheme; and
- A direct personal response from each of the participating institutions that are determined to be responsible for the abuse.
Survivors do not have to accept all elements of redress. For example if a survivor does not want counselling or psychological services then they are not required to go through this process to be entitled to a redress payment and a direct personal response.
Accepting an Offer of Redress
Only one application for redress can be made under the Scheme. If an Operator makes a determination and a survivor does not accept the offer of redress then the survivor will no longer be entitled to redress and will be unable to make another application. Non-acceptance of an offer within the period specified in an offer is taken as refusal of an offer.
If an application is withdrawn before a determination is made by the Operator, then this is considered to mean that no application has been made, allowing a survivor to make another application in the future.
The Scheme has the effect of amending the Administrative Decisions (Judicial Review) Act 1997 so that decisions made under the Scheme are exempt from judicial review. If a survivor is unhappy with a determination then a review can be requested through the Scheme’s internal review process.
It is important for survivors to be aware that if an offer of redress is accepted then a survivor is required to release all of the participating institutions determined by the Scheme Operator to be responsible for the abuse from all civil liability. Acceptance of an offer means a survivor will relinquish any legal rights to sue any participating institution responsible for the abuse.
Money paid under the Scheme is meant to assist and benefit survivors of abuse who have often had every aspect of their lives affected by the abuse. The Bill has the effect of amending the Social Security Act 1991 and the Veterans’ Entitlements’ Act 1986 to provide that payments which are made to survivors under the Scheme are exempt from the income test. The Bill also amends the Bankruptcy Act so that payments made under the Scheme are not included in the divisible property of a bankrupt. These amendments are to ensure that a survivor who receives a redress payment gets the benefit of the payment in full without the risk of other financial implications.
Other Avenues for Survivors
The introduction of the Scheme is long awaited and should assist those survivors who would have legal issues in establishing a claim. However, the Scheme’s cap of $150,000 does not go far enough in addressing the significant effects that childhood sexual abuse has on the survivor. Indeed, it will be interesting to see what offers are made once the Scheme commences.
A common law claim against an institution can often achieve a much larger payment for damages as various factors are taken into account, including economic loss as a result of being unable to work, the cost of treatment both past and future, damages for suffering a physical or psychological injury and in some cases an amount for the care provided by others on a gratuitous basis.
At Turner Freeman we have lawyers who are experienced in investigating common law claims for survivors of institutional sexual abuse. If you are a survivor and would like further information about your legal options, please contact Turner Freeman on (02) 8222 3333 to speak with one of our qualified lawyers.