Lawyers applaud Commonwealth redress scheme, but note flaws

7th Nov 2016

The redress scheme proposed by the Commonwealth government is a step in the right direction, although victims of institutional child sexual abuse will not receive justice if major flaws are not addressed, the Australian Lawyers Alliance (ALA) said today.

ALA spokesperson Dr Andrew Morrison SC said the Commonwealth deserved congratulations for demonstrating leadership in establishing a national redress scheme.

However he said more work was needed to correct major flaws relating to the cap on damages and on the scheme’s ability to compel state governments and non-government organisations to participate. It will be important that the nature of the abuse that the redress scheme reviews includes at a minimum physical and psychological abuse related to sexual abuse.

“The Commonwealth’s proposed $150,000 cap on compensation is wholly inadequate to meet the needs of survivors of childhood abuse,” Dr Morrison said.

“It is less than the $200,000 cap recommended by the Royal Commission and vastly less than that provided by the Irish Redress Scheme. Under the Irish scheme, a cap of €300,000* was in place, which could be exceeded if the assessors felt this was appropriate.

“The ALA supports maximum caps on compensation in line with those of the Irish scheme,” Dr Morrison said.

“The maximum proposed by the Commonwealth will be insufficient to meet the pain and suffering and medical expenses of survivors, let alone compensation for lost income resulting from the injuries caused by abuse.”

Dr Morrison also highlighted the proposed scheme’s lack of ability to compel state governments and non-government organisations to participate.

“There is no obvious means of compelling participation in the scheme of institutions which have facilitated, hidden or ignored child abuse,” Dr Morrison said.

“With non-government organisations, the obvious solution is to legislate to make their charitable status dependent on engaging with the scheme”.

“When it comes to governments, the Commonwealth is leading by example, saying that it will itself participate and compel the participation of territories if it has to,” Dr Morrison said.

“Regarding States, however, the ALA is concerned that South Australia has said that it is not interested in engaging in a redress scheme. This may leave survivors of abuse in SA without any avenue for redress,” Dr Morrison said.

“A solution for this would be to tie grants to States to their participation in the scheme. We note that South Australia is also failing to follow the national trend and remove limitation periods for childhood abuse in line with the precedent set by Victoria,” Dr Morrison said.

“The scheme should not strictly limit itself to sexual abuse - designers of the scheme need to be aware of the complex nature of institutional child abuse,” Dr Morrison said.

“Where earlier physical abuse has led a child to consent to sexual abuse, for example, it would be absurd if the scheme did not consider the physical abuse in its compensation assessment.”

“It is important that common law rights are retained in all jurisdictions where the redress scheme operates, to ensure that survivors are able to pursue the avenue that is most appropriate for them,” Dr Morrison said.

Dr Morrison said it was important that funding be provided for legal advice under the scheme so that survivors have an independent advocate to navigate what will no doubt be a very complex and emotional experience for them.

*Note: Approximately $A434,000 at current Euro-AUD exchange rates.