On 26 October 2017 Mr Christian Porter, Minister for Social Services, tabled a bill in parliament, the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (‘the Bill’) to establish legislation for a Commonwealth Redress Scheme for victims of institutional child abuse.
The bill sets up a process by which victims can apply to the scheme alleging that they were subjected to sexual abuse as a child at a “participating institution”. The scheme operator will investigate the claim and, if a participating institution is found to have been responsible, will offer victims:
- Monetary payment of up to $150,000;
- Access to counselling or psychological services of choice throughout their lives; and
- A direct personal response from the institutions responsible, where that is sought by the victim.
Victims who are offered a monetary payment must enter into a deed of release under which they release all participating institutions from civil liability.
Scope of scheme
Victims must opt into the scheme. The scheme as presently proposed does not alter victims common law rights.
The scheme is open to victims of child sexual abuse from Commonwealth institutions and Territory institutions, who are expected to opt in. Liability for the monetary payment will be allocated to the participating institution and administered through a fund by the operator. It is hoped by the Government that the scheme may provide the framework for an eventual comprehensive national scheme.
The monetary payment is determined by the operator with reference to an assessment matrix which is yet to be published. The monetary payment will have subtracted from it any payments already made by a liable institution to the victim.
Significantly, the scheme operator must approve an application if they determine there is a “reasonable likelihood” that the person is eligible for redress. The Minister in his second reading speech confirmed that this test is lower than the “balance of probabilities test” at common law.
Is $150,000 enough for victims?
In our opinion, the success of the scheme will depend on the willingness of state governments and non-government institutions to join.
The scheme will likely be attractive to the following categories of victims:
- Victims attracted to the prospect of obtaining compensation by means of a fast, simple process, without necessarily obtaining legal representation.
- Victims in State jurisdictions where the relevant statute of limitations currently contains no exemption for child sexual abuse and common law causes of actions may be barred.
- Victims with claims where the evidence is scant, who may be more likely to recover under a “reasonable likelihood” test than a balance of probabilities test.
- Victims who do not allege long term psychological harm or economic loss, who may be no worse off seeking redress under the scheme.
The being said, even if there is participation by a significant number of state governments and non-government institutions, it remains to be seen whether the scheme will be attractive for many survivors. The maximum payment of $150,000 pales in comparison to some damages that have been awarded by the courts.