Solicitor discussing the National Redress Scheme on 2GB

Tuesday, 9 April 2019 

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CS– Luke Grant / Kit Baigent –  C1,2,3, etc – Callers 

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LG      Well last week the final report into the National Redress Scheme for victims of institutional child sexual abuse was released and it was found by the cross party committee that some institutions are “dragging their feet” leading to calls for a complete overhaul of the scheme so in today’s legal matters segment we go to unpack the National Redress Scheme and will look at what sort of compensations are available and how to go about claiming it. If you have any questions you know what to do, give us a call 131873 and as always we have got a $100 Westfield voucher to give away to the caller who asks the best question. I will ask though if I can that listeners avoid talking about their personal story of abuse on air this broadcast is public and your privacy is important to us and if anything about today’s segment causes you concern, you can contact 1800 respect which is 1800 737 232. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, employment law, wills and estate and property law. Kit Baigent is the solicitor with us today. He is located at the Turner Freeman Sydney office specialising in compensation cases for survivors of institutional child sexual abuse. Kit good afternoon I hope you are well my friend.

KB      Hi Luke. Thanks for having me.

LG      Good to see you.  How long has the National Redress Scheme been in place for now?

KB      It was established on the 1^st of July 2018 so it’s been in operation for at least 7 or 8 months now.

LG      Alright I was watching I think the senate committee footage when this was being discussed a month or two back and what got me was the number of institutions that were either not in or slow to come in. As we sit here today is everyone in, is everyone prepared to be part of that scheme?

KB      No. I mean every state and territory government in Australia has signed up now, some of the major religious organisations such as the Catholic, Anglican, Uniting churches most of them have signed up. So the vast majority have but it is still nowhere near as enough as to cover all of the survivors.

LG      So I guess that causes confusion for many people. I think again watching this senate coverage they were talking about people who had been abused and struggling with the next step in the process. Is that what you’re finding with the people perhaps you are talking to?

KB      Yes. So many people at the moment do not know whether or not they can apply or are eligible to apply because the institution in which they were abused has not signed up. So one of the major issues is equality, is that some survivors are entitled and others are not and they are questioning why not me.

LG      How do you know if your institution has signed up or not?

KB      The National Redress Scheme has a website and you can put in the name of the institution and it will run a search for you.

LG      And again one of the points made in this, must have been a senate committee, was you might get one large organisation say the Catholic Church but it would be made up or could be made up of much smaller individual bodies that maybe go under that large umbrella.

KB      That’s correct.

LG      That is correct? Is that where some of the confusion arises?

KB      So the Catholic Church for example is broken up into a number of dioceses across Australia and then separate to that there are a number of religious orders like the Marist Brothers, the Christian Brothers and each order and each diocese must sign up in order for the person to be eligible for redress.

LG      131873 if you want to ask a question about this process. Should you have a lawyer in every circumstance I would have thought just as another human being people firstly have suffered horrendously then they have to bravely and I suspect at times again horrendously have to talk about or maybe give evidence. Now they have to go through the process of redress. Have we made that final process gentle and simple and quick? What is your take on that?

KB      Well firstly it is important that survivors know that the National Redress Scheme is the one option available to them to get compensation. People may be entitled to bring what’s called a personal injury claim and my advice would be that people should speak to a lawyer before they apply under the National Redress Scheme. The main reason for that is if an offer is made to you under the scheme you would be asked to sign a Deed of Release which will have the effect of waiving your common law rights and a good example is last year the Victorian Court awarded a man $700,000 for sexual abuse in the 70’s. That same man would only be entitled to $50,000 under the scheme. So it is important that people get advice around which option is best for them.

LG      Wow that’s, I don’t want to say ridiculous but it is ridiculous isn’t it? So under the personal claim, nearly three quarters of a million and under the redress scheme $50,000?

KB      That’s correct.

LG      Ask the obvious question is the redress scheme properly funded and properly thought through? How can the difference in compensation levels be so extreme? It’s extraordinary.

KB      Well the redress scheme has been created on the principal that many survivors cannot bring a personal injury claim for evidentiary, emotional or other reasons so it is a compromise, the scheme is not compensating people, it is providing redress in recognition of the harm done. They are not comparable and they are done on different basis.

LG      I guess no mere mortal would be able to tell which way to go of those two options hence the need to talk to someone.

KB      That’s right.

LG      The redress scheme rather is being criticised a fair bit by victims and their families from what I’ve read.  Is it fair some of that commentary?

KB      Yes, I mean one of the major criticisms of the current scheme is that the maximum payment is $150,000 whereas the Royal Commission recommended a maximum payment of $200,000 be made and no reason for the discrepancy has been forthcoming by governments in Australia and that was one of the findings of the recent report. The other issues around the degree of counselling services that are available to survivors, lifelong counselling is not provided under the scheme and again that is something that the Royal Commission recommended would be important.

LG      Right because again just as another human being sitting here, so someone writes you a cheque for $50,000 or $700,000 given the way I’ve heard evidence presented, that doesn’t all of a sudden, ok I’ve got 50 grand here so everything is good again. There would be would there not, as you mention their lifelong consulting, lifelong getting assistance from people that might just be people to talk to or might have other treatment available.

KB      That’s correct and that’s why it is important.

LG      So what do they do, they miss out?

KB      They would receive some counselling but it’s not necessarily going to meet the full needs that the survivor faces. That issue will be particularly pertinent for young people who might have 40-60 years ahead of them, they’re are going to be disproportionately affected by those entitlements under the National Redress Scheme, in my view anyway.

LG      Do you suddenly understand if you were so affected as to not be able to present evidence are you still able to access the scheme? I’m wrong aren’t I?….just assuming that those that presented evidence are victims and hence entitled to some compensation if that’s the right word.  How do people that were without that system outside of that system, how do they get involved in this?

KB      Well firstly there doesn’t need to be a criminal conviction in place relating to the abuser and so people, that’s also very important that survivors know that you don’t need a criminal conviction to go under the National Redress Scheme or to bring a common law claim. There is a national legal service called Knowmore which has been funded to provide free legal help with applications under the scheme and there are a multi disciplinary team of counsellors, aboriginal cultural liaison officers, financial counsellors and lawyers so that would be a good point if people wanted to go under the scheme but again people will also need to speak to a personal injury lawyer such as those at Turner Freeman around bringing a common law claim as well.

LG      Okay, so even though there wasn’t a conviction recorded, of course again through this whole process I’ve thought, how does this capture everybody, how do we make it doable that someone who finds reliving the whole experience so painful, how do we make it possible for them to be part of the redress scheme or be convinced that you know get some help or should seek some help or at least see what’s available. Have we made it easy for those people?

KB      I think there have been some improvements, the most important thing for people in that position would be that they find a counsellor and they access a counselling support service so that they don’t go through the experience alone and it would be the same for a common law claim. So a counsellor would be the best starting point for those people.

LG      Okay.  131873 is the number if you want to give us a call you can.

LG      It’s legal matters with Turner Freeman and Kit Baigent is with us here in the studio and we are talking about the National Redress scheme following the Royal Commission into institutional abuse. I just want to if I can in this issue of this program we are talking about the National Redress Scheme and Kit was saying a bit off air and I felt it a bit myself, we don’t want to put people through the pain of potentially reliving what they might or might not have done at the Commission so we just want to restrict calls to the scheme. I hope you understand that it is for no other reason other than, Kit said he has heard people break down, we probably all have and we don’t want to revisit that on people and it’s just not fair and it’s not right. Getting back to where we all began, which is why talk to a lawyer, it seems to me from our discussion, because you have a couple of options here, you don’t want to burn them,

KB      That’s correct.

LG      What’s that process like? So typically when someone comes and says look I need to apply what do I do? What information do you seek? What do you need to know?

KB      We would probably need to know firstly what institutions we are talking about. Did the abuse take place at a school, orphanage, state care or church, what years over which the abuse took place, and then we would probably need to go through the process of taking a statement from the person and then working out whether they might have a common law claim and rule that in or rule that out.

LG      Okay so in terms of the time it takes to start at the beginning and work your way through the whole process, I am imagining because it is government it’s months and months.

KB      Well under the scheme I think the report from last week said that it is taking about 6-8 months to process applications. Certainly if we were to bring a common law claim then it may take 12-18 months to bring that claim.

LG      6-8 months?

KB      It’s still a long time.

LG      It’s a long time mate. It’s I don’t know, it almost becomes the norm but it shouldn’t be the norm.  Something like this. Denise is on the line, quick call from Denise, how are you? What would you like to say rather?

C1       I would like to make a comment please about the redress scheme. I’m age 82 and I was in a government institution and I have a claim in for redress right…um my health is not 100% but I have spoken to others who have been in a similar position and we all feel the same that the longer they take for this scheme to actually get going we will all be you know falling off the map by then and I think they are just hoping that if they drag it out long enough they won’t have to pay out all this money.

LG      Wow well you can understand what Denise is saying. What is your take on that?

KB      Denise thanks for calling in and I agree and that is certainly one of the findings in this report from last week that it’s taken too long to establish the scheme and it’s taking too long to process those applications particularly people who are older Australians and that’s why it is important that governments act on this further report from last week to make those improvements to the scheme.

LG      Alright Denise thank you very much for the call and we will offer you our Westfield voucher which I’ll tell you about off air and I’ll remind listeners after the news. Kit thank you, it’s a topic we have to talk about, it’s not an easy topic to talk about because for many of us we don’t understand the pain that many victims have been through but at least there is a redress scheme and we appreciate your time very much indeed.

KB      Thank you very much Luke.

LG      Kit Baigent from Turner Freeman.