Examining calls for an institutional abuse redress scheme
15th Aug 2014
This week, the Royal Commission on Institutional Responses to Child Sexual Abuse publicly released all submissions regarding Issues Paper 6: Redress Schemes, including the submission of the Australian Lawyers Alliance and the Truth, Justice and Healing Council (the Council).
The Council, which has been appointed by the Catholic Church to oversee the Church’s response to the Royal Commission, has recommended that a national redress scheme be established to compensate survivors of child sexual abuse within institutions that were under 18 at the time of abuse. (Note, this proposal excludes those individuals who suffered severe physical abuse or were subjected to slave labour).
On the face of it, such a proposal could be seen as facing responsibility for decades of suppressed child abuse. However, the structure of any such scheme could serve to deny justice and undercompensate victims denied legitimate access to the courts.
Here, we provide a brief summary of some of the features of the scheme suggested by the Truth, Justice and Healing Council, and an assessment of how this may prejudice individuals seeking compensation.
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The Council proposes that financial redress should be available for survivors of abuse, (including past out of pocket medical expenses; past and future loss of earnings; cost of counselling services; recognition or acknowledgment of the effects of child sexual abuse; non-economic loss and expenses incurred in making the application). The Council has also proposed that these amounts should be capped.
Caps on damages in the Melbourne Response were reported to be $75,000. Such an amount falls well below community expectations.
The Council has furthermore, asserted that redress ‘should not be calculated on the same basis as damages are awarded by courts in civil litigation, but rather on the basis of accepted community standards’. These ‘community standards’ would be ‘developed independently of governments and institutions after consultation… with [them] and with claimants.’
Caps on compensation already exist in Australia, via civil liability legislation and also via relevant statutory schemes, where payouts can be appallingly low. However, the proposal of caps for a national redress scheme for institutional abuse should ring alarm bells, especially where many claimants continue to be impeded from access to the courts.
There is a wide disparity between amounts claimable under statutory compensation schemes, and at common law. In NSW, the maximum claimable under the NSW Victims Compensation Scheme (which was brutally slashed by the NSW government in 2012) for pain and suffering for extended abuse is $15,000. Under the Civil Liability Act, it is $551,000.
The Council asserts that redress schemes are ‘much quicker, more efficient, less onerous and… generally low cost to claimants’. However, it must be noted they can also end up cheaper in the long run for the defendants involved. Redress schemes are also highly vulnerable to scheme sustainability, and all claimants can suffer when unprojected liabilities or scheme administration costs rise.
The concern is that the Church is far more worried about keeping the scheme at low cost to the church, than it is about quick, efficient and fair compensation for abuse victims. Any scheme can be quick and efficient if it pays negligible benefits. The first priority must be to ensure proper compensation of abuse victims. A redress scheme that is ‘cheap’ for the Church would inevitably be ‘cheap’ for victims.
In Ireland, the relevant Minister was empowered under the Residential Institutions Redress Act 2002 to make regulations regarding the amounts to be paid, with up to €300,000 available for individuals meeting Redress Band V. The Board was further empowered to make an award in excess of €300,000 for exceptional cases. It could also make an additional award to an applicant calculated by reference to the principles of aggravated damages, on the same basis as an award of the High Court. This was required to take account of the circumstances of abuse, and cannot be more than 20 per cent of the award.
A redress scheme needs to be structured to ensure long term compliance by institutional contributors. The Irish experience is instructive. By 2009, seven years after the scheme had been established, the initial indemnity agreement between the government and institutions was flailing. At one stage, institutions were meeting only about 10 per cent of the Board’s payments.
The Council proposes that ‘limited free legal advice’ should be available through the scheme or another government agency, such as LawAccess NSW. (Of note, LawAccess largely provides legal information and referrals, and only some cases of legal advice.) Community legal organisations are neither funded nor resourced to take on an advocacy role in a major redress scheme.
The Council recommends that applications to the scheme ‘should be able to be completed without assistance from a lawyer’.
The Council also recommends that ‘the scheme should be designed so that legal representation would not be necessary, but should allow claimants to be legally represented if they choose’. In these cases, lawyers’ participation within the scheme would be significantly restricted via a prescribed fixed fee scale, which, depending on the level of restriction, could bar lawyers from being able to effectively represent their client, or require them to undertake the work pro-bono.
No such restriction is in place for the defendant institution’s lawyers, who, in the past, have been known to aggressively deny claims and heap legal abuse upon the abuse already suffered.
No matter how easy it is to fill out application forms, if lawyers are discouraged from assisting survivors in the scheme, the power inequality between the parties will be heavily weighted towards the defendant institution.
This would especially be seen in terms of the collation of evidence required for a claim and include evidence required in order to demonstrate an individual’s fair and proper entitlements. There are also difficult legal decisions about whether to seek review of decisions made. Crucially, in some cases, there may be a dispute about whether the abuse occurred and whether liability has been established.
No individual should be left alone to prove their claim against a well resourced institution.
Victims of abuse are predominantly suffering psychiatric injury. Revisiting their abuse in pursuing a claim can exacerbate their psychological condition. Lawyers provide the assistance to make the claims process less intimidating, and less confronting.
Previous bitter experience suggests that leaving the abused without representation simply places them at an enormous disadvantage compared to the large, well resourced and lawyered-up institutions against which they are claiming.
The Australian Lawyers Alliance believes that in any redress scheme for survivors of abuse, independent legal advice should be provided to survivors, with appropriate and reasonable assistance to be funded by the party at fault.
This has been the case in Ireland, where over 97 per cent of applicants to the Residential Institutions Redress Board were represented by a solicitor.
The Council proposes establishing a ‘balance of probabilities’ test to determine if abuse occurred, and whether the institution is responsible for the abuse. The ‘balance of probabilities’ test is the standard burden of proof required in most civil cases.
This test would be assessed by an independent assessor who is not required to be legally trained, and whose role would be funded by the scheme.
For an individual attempting to navigate this test: how will a person meet that test without legal representation? Who is going to argue for them and for their case? What happens if a person is unable to represent themselves, or does not have the language skills or intellectual capability required, or is too injured to do so? These individuals will be up against the church’s lawyers. This is not an acceptable situation.
Only in cases where convictions have been secured, would there be a presumption that abuse occurred. For all other cases, including where the defendant is dead, a plaintiff will need to satisfy this ‘balance of probabilities’ test.
The reality is the vast majority of abusers have not and now never will be brought to justice. That in turn means that the majority of participants in this redress scheme will be needing to prove that their abuse occurred. This is so even where the abuser has been convicted of abusing others. The balance between onus of proof and restricted damages is inappropriate.
The test was previously employed during the Towards Healing process.
In the case of John Ellis, a Towards Healing assessor held that on the balance of probabilities, the abuse more likely than not occurred. However, this finding was subsequently disputed by the Archdiocese for the purposes of litigation.
The Council has justified utilising this standard of proof as the ‘intended award of financial redress… would be significantly higher’ than what is available under most other victims’ compensation schemes’.
However, the Council has also asserted that payments would be less than that available under civil law.
The balance of probabilities test applies in court, with common law damages. It must be asked, why should the standard of proof required be the same as required for civil litigation, while the payouts will be much lower?
The schemes referred to within the Annexure to the Council’s submission largely point to schemes with significantly lower caps or payouts of damages, including the Defence Abuse Reparation Scheme, where only 724 out of 1,900 (less than half) complaints have received a compensation payment.
Of note, the Council recommends that the assessor should also determine if the institution is responsible for the abuse.
Courts around Australia (and internationally) have wrestled at length with these concepts in recent cases, with institutions often asserting that they are not vicariously liable for criminal acts. It remains to be seen how these arguments may be raised by institutions within a redress scheme context, to a non-legally trained assessor.
It also remains to be seen how arguments of vicarious liability will be remedied in and beyond the redress scheme, especially as the issue continues to go currently unresolved at common law without legislative change.
The Council proposes that an internal review mechanism should be established which may review any determination of the claim, including access to the scheme, and the quantum or type of redress provided.
In effect, no decision would be appealable to an external body such as the Administrative Appeals Tribunal, and would serve to isolate further the redress scheme from accountability and justifiable scrutiny in its decision making.
The Council proposes that any acceptance of an offer from the redress scheme would subsequently nullify any right to pursue civil litigation.
The Australian Lawyers Alliance believes that a person may agree to give up their right to common law damages only after receiving appropriate and independent legal advice.
However, that advice must be by competent and experienced legal advisors, who assess the prospects of success (liability), assess damages at common law, advise on the risks and prospects and advise whether the amount offered under the proposed scheme is reasonable in the circumstances. The thought that such advice would be offered on a cheap casual basis by those neither trained nor equipped nor experienced in dealing with such cases beggars belief.
The Council also provided commentary on Issues Paper 5: Civil Litigation in April 2014. In their submission, the Council suggested that limitation periods should run from the age on which the victims reached their majority, and run for 25 years.
The Royal Commission’s Interim Report acknowledged that the average time from abuse to disclosure of the event was 22 years. Thus, the Council’s proposals regarding limitation periods would provide a very slim line for survivors of abuse to claim at common law.
The Council has also proposed that legislative change should ensure that all unincorporated associations which appoint or supervise people working with children should be required to establish an incorporated entity able to be sued on behalf of the institution. This would be inadequate as there would be no guarantee on the appropriate transfer of assets to the entity.
Notably, the Council does not address the issue of vicarious liability of the Church for its clergy in its submissions for change: a point of law which currently obstructs victims from making a successful claim.
There is nothing said as to whether the Roman Catholic Church would accept responsibility for abuse by its priests. If it does not, any scheme involving it is meaningless.
It must be acknowledged that through the Council, the Church is conceding the failures of past efforts at redress and the need for past settlements to be revisited, so that fair and just compensation is allowed.
Compensation previously offered under redress schemes has been referred to as ‘breadcrumbs’.
In some cases, such payments have not been acknowledged by the Church as compensation, but ‘a sum of money as a gesture of pastoral concern’.
Many claimants, lacking access to common law, have taken what little compensation has been on offer via statutory victims compensation schemes or institutional redress schemes, in the absence of other options.
Many survivors of abuse will continue to evaluate what are their genuine options for redress following their sharing their story with the Royal Commission.
With the Royal Commission expected to provide a separate report dedicated to civil litigation and redress schemes in mid-2015, it is clear that the issue demands careful and rigorous attention.
If any redress scheme were to be established in the near future, individuals accepting offers proposed under the current model could alienate any potential claims at common law that may be opened up via any legislative change recommended by the Royal Commission.
For many survivors of abuse, genuine access to justice and adequate compensation is highly dependent on legislative change, including a full waiver of existing limitation periods, and incorporation of the Church so that it is capable of being sued as a legal entity.
Offering paltry compensation amounts on the grounds that litigation can be ‘focused on financial redress,’ ‘public, adversarial and traumatic’ is patronising and demeaning. It further denies the fact that any litigation that has progressed to the Courts is due to a party not being amenable to pre-court settlement: and that party is not usually the victim.
It must be questioned as to whether the national redress scheme proposed by the Council is much more than a national expansion of the structures of the Towards Healing process, albeit with some greater ‘independence’.
What is evident, is that there two parallel requirements: legislative change to provide access to sue at common law; and a form of redress for those who, regardless of such change, will still not be able to sue at law. People should be able to choose the cause of action that is most appropriate to their case, and not have such a decision taken from their hands.
The gross horrors exposed by the Royal Commission on Institutional Responses to Sexual Abuse reveal a negligent and horrific history of the treatment of children in Australia. This has often at times been perpetuated by the absence of legal pathways for survivors to assert their rights.
The response to such systemic violence must provide victims adequate compensation and the dignity to move forward, knowing that their story has been heard, liability accepted, and justice has been done.
While we acknowledge that these are not simple legal pathways to navigate, it is the responsibility of current governments to take up the baton where their predecessors have failed.
In our submissions to the Royal Commission, the Australian Lawyers Alliance has submitted that these initial steps include opening up access to the common law for those who have been obstructed for far too long. This would include:
A full waiver of limitation periods for all survivors of institutional abuse, as recommended by the Victorian parliamentary inquiry, Betrayal of Trust;
Legislative change to all relevant state and territory based Trust Property Acts of the Roman Catholic Church, requiring incorporation of the association at law so that it is capable of being sued (distinguishable from the Church’s proposal of a creation of distinct separate incorporated entity);
Formalising at law the presumption of vicarious liability of institutions for clergy for criminal acts.
The establishment of any national redress scheme must be complemented by the above changes, and both solutions alone, are not adequate responses in themselves.
The Australian Lawyers Alliance believes that a scheme similar to that established in Ireland should be established in Australia, including a funding board overseeing the disbursement of funds pledged by institutions and access to independent legal advice.
Of note, initial negotiations surrounding the Irish scheme were hampered by institutions attempting to escape their long term liability, ultimately leading to unfunded liabilities within the scheme that were underwritten by the taxpayer.
This must be avoided at all costs in the development of any scheme in Australia, and governments should ensure that all institutions are appropriately held liable for their actions and inaction that have contributed to the abuse of thousands of Australians.
Emily Mitchell was the Legal and Policy Officer at the Australian Lawyers Alliance from 2011 to 2016.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).