Redress schemes are not the answer for victims of child abuse
22nd Aug 2014
A statutory redress scheme for victims of child sexual abuse would be no substitute for common law rights to seek compensation for institutional abuse, the Australian Lawyers Alliance (ALA) said today.
In a submission to the Royal Commission on Institutional Responses to Child Sexual Abuse which was released today, the ALA said that statutory victim compensation schemes are inadequate and inappropriate mechanisms to compensate survivors of institutional abuse.
ALA spokesperson Dr Andrew Morrison SC said that any solution adopted by the Commonwealth to compensate victims of institutional abuse needed to address the historical issues of artificially low payout caps and the tendency to deny victims their common law rights.
“The best avenue to compensation for people who have been victims of institutional abuse is the right to sue via the common law,” Dr Morrison said.
“Revelations this week about the Melbourne Response have highlighted the abysmally low amounts that victims have been offered by the Catholic Church in compensation, and the invasive conflicts of interest that have served to deny survivors genuine justice.”
“It is clear that institutional redress schemes have failed appallingly,” Dr Morrison said.
“State based redress schemes, while more independent, are subject to the limits of the public purse. In 2012, the NSW victims compensation scheme was extensively slashed.”
Dr Morrison said the inadequacy of the state-based schemes was best illustrated by comparing them with the Irish institutional abuse redress scheme.
“The lowest redress band in the Irish scheme was higher than the highest redress band found in any of the Australian state-based compensation schemes,” Dr Morrison said.
“Survivors of abuse should have access to full, independent remedy of the abuse, trauma and injury that they have suffered.”
“What we need is an independent system of redress for victims of institutional abuse. One does exist, and it is called the common law,” Dr Morrison said.
“Currently, many individuals are blocked from access due to limitation periods and institutions’ denials of liability. Furthermore, the Catholic Church does not exist as a legal entity capable of being sued.”
“Any discussion about appropriate redress for victims cannot go forward without retrospective and prospective legislative change regarding limitation periods, the liability of institutions and the incorporation of non-legal entities such as the Catholic Church,” Dr Morrison said.
“However, individuals who, despite such legislative change, would still not have a claim at law, should be adequately compensated.”
Dr Morrison said that the Catholic Church’s proposal for a redress scheme was manifestly inadequate, with the scheme seeking to minimise legal representation for victims, asking the taxpayer to shoulder part of the burden of payouts to abuse victims, and capping payments at a horrendously low level.
“The experience in Ireland showed that institutions will attempt to avoid their obligations to fund a redress scheme from the outset – this must not be the case in Australia,” Dr Morrison said.
ALA’s submission to the Royal Commission can be found here.
Other submissions to the Royal Commission for Issues paper 7 can be found here.