The Commission's Terms of Reference require it to inquire into:
what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.The paper begins by stating -
Justice for victims
A number of survivors, and many survivor advocacy and support groups, have highlighted the importance to survivors of ‘fairness’ in the sense of equal access to redress for survivors and of equal treatment of survivors in redress processes. They regard equal access and equal treatment as essential elements if a redress scheme is to deliver justice.
Equality in this sense does not prevent recognition of different levels of severity of abuse or different levels of severity of impact of abuse. However, it does mean that the availability and type or amount of redress available should not depend on factors such as:
- the state or territory in which the abuse occurred
- whether the institution was a government or non-government institution
- whether the abuse occurred in more than one institution
- the nature or type of institution
- whether the institution still exists
- the assets available to the institution.
We accept the importance to survivors of equality in this sense. We accept that many survivors and survivor advocacy and support groups will not consider that any approach to redress that we recommend is capable of delivering ‘justice’ unless it seeks to achieve equality or fair treatment between survivors.
Institutional child sexual abuse can have a severe and sometimes lifelong impact on survivors. Survivors experience many difficulties in seeking redress or damages through civil litigation.
We have heard from survivors, survivor advocacy and support groups and others about the many difficulties that survivors experience in seeking redress or damages through civil litigation.
Individual experiences of inadequate or unobtainable redress should be placed in the broader context of a social failure to protect children. There was a time in Australian history when the conjunction of prevailing social attitudes to children and an unquestioning respect for authority of institutions by adults coalesced to create the high-risk environment in which thousands of children were abused. Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution they were part of, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society.
This broad social failure to protect children across a number of generations makes clear the pressing need to provide avenues through which survivors can obtain appropriate redress for past abuse.
The complexity of the task
Making findings and recommendations about redress is complex because of:
- what has already been done through past and current redress schemes, statutory victims of crime compensation schemes and civil litigation, with all the inconsistencies that have arisen
- the range of existing support services available to survivors that may overlap with or supplement redress and the need for us to avoid making recommendations that might reduce resources for, or divert efforts from, existing support services
- the breadth of our Terms of Reference through the definition of ‘institution’, which includes a far greater range of institutions than have been covered by past or current redress schemes; and the narrowness of our Terms of Reference in focusing on sexual abuse in an institutional context, in contrast to redress schemes that have typically also included physical abuse and neglect
- the need to make recommendations that can be implemented and that are likely to be implemented, including taking account of the affordability of what we recommend.
Elements of redress
The elements of appropriate redress for survivors appear to be:
- a direct personal response by the institution if the survivor wishes to engage with the institution, including an apology, an opportunity for the survivor to meet with a senior representative of the institution and an assurance as to the steps the institution has taken, or will take, to protect against further abuse
- access to therapeutic counselling and psychological care as needed throughout a survivor’s life, with redress to supplement existing services and fill service gaps so that all survivors can have access to the counselling and psychological care that they need
- monetary payments as a tangible means of recognising the wrong survivors have suffered.
General principles for providing redress
The following general principles should guide the provision of all elements of redress:
- redress should be survivor-focused – redress is about providing justice to the survivor, not about protecting the institution’s interests
- there should be a ‘no wrong door’ approach for survivors in terms of gaining access to redress – whether survivors approach a scheme or an institution, they should be helped to understand all the elements of redress available and to apply for those they wish to seek
- all redress should be offered, assessed and provided having appropriate regard to what is known about the nature and impact of child sexual abuse, and institutional child sexual abuse in particular, and to the cultural needs of survivors – all of those involved in redress, and particularly those who might interact with survivors or make decisions affecting survivors, should have a proper understanding of these issues and any necessary training
- all redress should be offered, assessed and provided having appropriate regard to the needs of particularly vulnerable survivors and ensuring access to redress can be obtained with minimal difficulty and cost and with appropriate support or facilitation if required.
Possible structures for providing redress
We have identified three possible options for structures for providing redress.
One approach to redress would be for institutions to adopt a common approach to what should be available under each element of redress, how allegations of abuse should be determined and how any variable elements of redress should be calculated. This approach would be the quickest and easiest to implement. However, many survivors do not want to have to go to the institution in which they were abused to seek redress, some institutions no longer exist and many survivors were abused at more than one institution. To achieve equal or fair treatment between survivors and to avoid survivors having to apply to the institution in which they were abused or make more than one application for redress, it is necessary to devise a structure for redress that provides an independent ‘one-stop shop’ for survivors – that is, it requires all institutions to participate in one redress process.
National or state and territory schemes
It is apparent that governments must participate in the redress process to meet claims of survivors abused in government institutions. Beyond this, however, it is likely that substantial government leadership will be required to establish a redress process in which governments and non-government institutions will participate. Options are a national redress scheme or separate state and territory schemes. There are arguments in favour of a national scheme, but there are also complications that arise from the different starting points of the different states and territories in coming to a single national redress scheme. These differences probably could be reconciled, but it is unlikely to be a quick or easy process to negotiate. There are also benefits and risks in recommending separate state and territory redress schemes. The ideal position for survivors would be a single national redress scheme led by the Australian Government and with the participation of state and territory governments and non-government institutions. However, the ideal position will be difficult to reach if the Australian Government does not favour it or if the state and territory governments do not favour it.
If the ideal position is not favoured or reasonably achievable, each state or territory could establish a single redress scheme for the state or territory, with the participation of relevant governments (the Australian Government will need to participate in some schemes) and non-government institutions. The state and territory schemes could be established in accordance with the principles recommended by the Royal Commission, which would operate as a national framework or principles to achieve reasonable national consistency across the elements of redress (that is, direct personal response, counselling and psychological care and monetary payments) and redress scheme processes. If there are to be state and territory schemes, there may be benefit in establishing a national advisory body to share information, encourage consistency, advise on implementation and discuss any concerns raised about particular schemes.
Past and future abuse
Our Terms of Reference require us to consider both past and future institutional child sexual abuse. We use ‘past child sexual abuse’ to refer to child sexual abuse that has already occurred or that occurs between now and the date that any reforms we recommend to civil litigation commence. We use ‘future child sexual abuse’ to refer to child sexual abuse that occurs on or after the date that any reforms we recommend to civil litigation commence. Many of the difficulties that survivors have encountered in trying to obtain adequate redress to date, whether through redress schemes or civil litigation, have arisen from the power imbalance between institutions and survivors. If any reforms we recommend to civil litigation are adopted, they may contribute to a substantial change in this power balance. A redress scheme for future abuse may be unnecessary if recommendations are made and adopted that make it more likely that survivors can recover damages at common law and if we make recommendations under other parts of our Terms of Reference that aim to minimise the occurrence of future abuse. It might also be difficult to identify with confidence now what might be sought by survivors long into the future.
Some children, or parents or guardians on their behalf, will wish to seek redress or compensation for institutional child sexual abuse while the victim is still a child. It is unlikely that there will be many applications to a redress scheme made by or on behalf of those who are still children, as children are more likely to be able to obtain compensation through civil litigation. However, there is no reason why children could not be accommodated within the sort of structures and approaches raised in this consultation paper. We welcome submissions that discuss the issues raised in Chapter 2. In particular:
- we seek the views of the Australian Government and state and territory governments on whether they favour a single, national redress scheme led by the Australian Government or an alternative approach
- we welcome submissions on whether we should recommend redress processes and outcomes for future institutional child sexual abuse.
To date, very little data on redress and compensation paid to victims of child sexual abuse in institutions in Australia have been publicly available. To address this gap and to improve our understanding of redress outcomes to date, we have collected data from a number of sources, often under summonses or notices to produce. We set out the sources of the data we have obtained and then present our analysis of different datasets. We obtained claims data under notice from governments, Catholic Church Insurance Ltd (CCI), and the Eastern and Southern Territories of The Salvation Army. The data cover claims of child sexual abuse resolved in the period from 1 January 1995 to 30 June 2014. The data cover claims resolved through litigation, out-of-court settlement and otherwise. The claims data are analysed as follows: number of claims by year of resolution (Table 3 and Figure 1); compensation in real dollars (2013) by years of claim resolution, including the mean (or average), median, minimum and maximum payments, and in 20 per cent payment bands (Table 4 and Figures 2 and 3). We obtained data on key elements of the following government redress schemes: Redress WA and WA Country High School Hostels ex gratia scheme; Queensland ex gratia scheme; Tasmanian Abuse in Care ex gratia scheme; South Australian payments under Victims of Crime Act 2001 (SA).
We obtained data of particular relevance to redress and civil litigation from our private sessions held between 7 May 2014 and 31 August 2014. The private sessions data are analysed as follows: abuse by number of institutions (Table 10), which shows how many private session attendees reported abuse in one institution, two institutions and three or more institutions; abuse by institution type (Table 11) which shows the types of institutions in which private session attendees reported they were abused.
Direct personal response
Many survivors of child sexual abuse in an institutional context have told us how important it is to them, and their sense of achieving justice, that the institution makes a genuine apology to them, acknowledges the abuse and its impacts on them and gives a clear account of steps the institution has taken to prevent such abuse occurring again. Many survivors also want an opportunity to meet with a senior representative of the institution to tell their story. They want a senior representative of the institution to understand the impacts of the abuse on them. Some survivors have had positive experiences when engaging with the institution in which they were abused; others have not. It is clear from many of our private sessions that this direct personal response from the institution can be a very important step in providing redress for a survivor. A personal response can only come from the institution. An apology and acknowledgment from the institution, or a meeting with senior representatives of the institution, must involve the institution itself.
Principles for an effective direct personal response
The following principles may be appropriate for an effective direct personal response:
- Re-engagement between a survivor and institution should only occur if, and to the extent that, a survivor desires it. Some survivors will want to re-engage with the institution in which they were abused. Other survivors may not want to engage or interact with the institution at all.
- Institutions should make clear what they are willing to offer and provide by way of direct personal response. They should ensure that they are able to provide what they offer. Further harm may be caused to survivors when institutions are unclear about what they are willing to provide or fail to provide what they offer.
- At a minimum, all institutions should offer and provide on request by a survivor: o an apology o an opportunity to meet with a senior representative of the institution o an assurance as to steps taken to protect against further abuse. These are three elements of any direct personal response that our work to date indicates are essential. Every institution should be able to provide at least this level of response.
- In offering direct personal response, institutions should try to be responsive to survivors’ needs. There is no ‘one size fits all’ approach to an appropriate personal response. Institutions should recognise the diversity of survivors and their needs in terms of a direct personal response. They should be responsive to those needs where possible.
- Institutions that already offer a broader range of direct personal responses to survivors and others should consider continuing to offer those forms of direct personal response. Some institutions currently offer a broad range of services to survivors, including: o assistance with gaining access to records o family tracing and family reunion o memory projects o collective forms of direct personal response such as memorials, reunions and commemorative events o culturally appropriate collective redress for Aboriginal and Torres Strait Islander survivors.
- Direct personal response should be delivered by people who have received some training about the nature and impact of child sexual abuse and the needs of survivors. Institutional staff may also require cultural awareness or sensitivity training to support particular survivor groups.
- Institutions should welcome feedback from survivors about the direct personal response they offer and provide. This will help to ensure that the direct personal response is as effective as possible in meeting survivors’ needs and expectations. Interaction between a redress scheme and direct personal response An appropriate personal response can only be provided by the institution and cannot be provided through a redress scheme independent of the institution. An independent redress scheme could facilitate the provision of the direct personal response. For survivors who seek a written apology but wish to have no further contact with the institution, an independent redress scheme may be able to convey their request to the institution so that they do not need to have any further contact with it themselves.
Any other forms of direct personal response would require direct contact between the survivor and the institution. A redress scheme could facilitate the pursuit of a direct personal response by offering survivors the choice between having their details passed on to the institution with a request that the institution contact them directly or being given the contact details of the relevant person in the institution so that the survivor can initiate contact with the institution. We welcome submissions that discuss the issues raised in Chapter 4, including the principles for an effective direct personal response and the interaction between a redress scheme and direct personal response. Counselling and psychological care The effects of child sexual abuse on mental health functioning have been well documented. These effects are many and varied and affect survivors in many ways including: at the individual level: mental health and physical health; at the interpersonal level: emotional, behavioural and interpersonal capacities; at the societal level: quality of life, opportunity. Many survivors will need counselling and psychological care from time to time, throughout their lives. Survivors’ needs for counselling and psychological care should be singled out from the broader range of needs and addressed through redress as a necessary part of ensuring justice for victims.
Principles for counselling and psychological care
The following principles may be appropriate for the provision of counselling and psychological care:
- Counselling should be available throughout a survivor’s life. The trauma associated with sexual abuse is not a specified medical condition that can be cured at a specific point in time so that it will not reoccur.
- Counselling should be available on an episodic basis. Counselling is not necessarily needed continuously throughout a survivor’s life.
- Survivors should be allowed flexibility and choice. Different groups of survivors have differing needs in terms of counselling and psychological care. Survivors also have differing needs at an individual level.
- There should be no fixed limits on services provided to a survivor. The needs of survivors are complex and varied and there should be no fixed limit on the number of counselling sessions available to a survivor per episode of care.
- Psychological care should be provided by practitioners with the right capabilities to work with complex trauma clients.
- There should be suitable ongoing assessment and review. For good clinical outcomes, and to appropriately target limited resources, a suitable process of initial assessment and ongoing review is required for each episode of counselling or psychological care.
- Counselling and psychological care should be available through redress for family members if it is necessary for the survivor’s own treatment and there are no other sources of funding available.
Current services and service gaps
There are many services that currently provide counselling and psychological care to survivors. Most members of the general population will access mainstream services as an initial point of contact for assistance to address their psychosocial needs, whether or not these issues are associated with childhood sexual abuse. These services include in-patient, out-patient and community-based mental health services, alcohol and drug rehabilitation services, and primary health services. The Australian Government supports two primary health care initiatives that may be of particular use to survivors, principally through funding under Medicare. The Australian Government also supports specialist psychiatric services by providing unlimited funding through Medicare for these services. There are many specialist services, most of which receive extensive government funding. Specialist services include sexual assault services, which provide specialised and targeted therapeutic care for victims of sexual assault; support services for adults who, as children, were in out-of-home care, including Former Child Migrants; and Aboriginal and Torres Strait Islander organisations, which provide support targeted at Indigenous people, particularly members of the Stolen Generations. Some institutions provide counselling and psychological care as part of the redress they provide to survivors.
Despite the many services currently assisting survivors with counselling and psychological care, key gaps are as follows:
- resource limitations of specialist services, particularly specialist sexual assault services
- restrictions on access to Medicare, including the need for ‘an assessed mental disorder’, a GP referral and Mental Health Treatment Plan, the focus on shorter-term interventions and the charging of gap fees
- gaps in expertise, including where practitioners do not have the right capabilities to work with complex trauma clients
- gaps in services for specific groups, including for survivors in regional and remote areas and Indigenous survivors. Principles for supporting counselling and psychological care through redress The following principles may be appropriate for supporting the provision of counselling and psychological care through redress:
- Redress should supplement existing services rather than displace or compete with them. It may be counterproductive to the quality and choice of counselling and psychological care available to survivors to put pressure on governments to redirect funding from existing services into a stand-alone counselling scheme provided through redress.
- Redress should provide funding, not services. A redress scheme would not establish its own counselling and psychological care service for survivors. By providing funding, flexibility and choice for survivors is supported.
- Redress should fund counselling and psychological care as needed by survivors. Funding should be provided to service providers as survivors need care rather than as a lump-sum component of a monetary payment to individual survivors.
- Institutions should fund the counselling and psychological care where possible.
Our Terms of Reference refer to the ‘provision of redress by institutions’. A case can be made for full public provision of counselling and psychological care, but it may be necessary to recognise government funding of existing services and look primarily to non-government institutions to provide the funding for supplementing services through redress.
Options for service provision and funding
There are a number of options for ensuring that survivors’ needs for appropriate counselling and psychological care are met. Public provision of counselling and psychological care could be expanded by substantially expanding Medicare-funded services. To address the difficulties that survivors may experience with Medicare, a number of changes could be made to Medicare – for example, removing the need for ‘an assessed mental disorder’, a GP referral and Mental Health Treatment Plan, and the cap on services. There are precedents for these changes to Medicare. However, this would require services to be made available through Medicare based on a person’s status as an eligible survivor, not based only on need. We acknowledge the Australian Government’s position that equal and universal access to medical services based on clinical need is a fundamental principle of Medicare. The public provision of counselling and psychological care could be expanded by establishing a dedicated stand-alone Australian Government scheme. While this approach would also single out survivors based on where the abuse occurred, it would not interfere with the principle of universality under Medicare. There are examples of existing stand-alone Australian Government schemes.
Another option is to create a trust fund as part of the redress scheme to hold funds to be used to supplement existing services and fill service gaps to ensure that survivors’ needs for counselling and psychological care are met. A trust fund could take actions to supplement existing services and fill service gaps, including by improving survivors’ access to Medicare; exploring with state-funded specialist services whether the trust could provide funding to increase the availability of services and reduce waiting times for survivors; and addressing gaps in expertise and geographical and cultural gaps. As an essential last resort, the trust fund could also fund counselling and psychological care, particularly for survivors whose entitlements under Medicare have been exhausted or whose needs for counselling and psychological care cannot otherwise be met.
We welcome submissions that discuss the issues raised in Chapter 5, including the principles for counselling and psychological care, existing services and service gaps and the principles for supporting counselling and psychological care through redress.
In particular: we seek the views of the Australian Government and state and territory governments on options for expanding the public provision of counselling and psychological care for survivors; we welcome submissions on the relative effectiveness and efficiency of the options in meeting survivors’ needs.
A monetary payment is a tangible means of recognising a wrong that a person has suffered. A redress scheme for survivors should include a monetary payment.
Purpose of monetary payments
The purpose or meaning of ex gratia payments is not always easy to identify. Identifying and clearly stating the purpose of ex gratia payments in a redress scheme is important in:
- helping claimants, institutions and other participants understand the purpose of the scheme
- informing choices about the processes that should be adopted for the scheme
- helping claimants to understand what any payment they are offered is meant to represent and to assess whether or not they should accept any payment.
The purpose of a monetary payment should have some connection with the amount of the monetary payment.
Monetary payments under other schemes
Any monetary payments offered under a new scheme will be assessed in the context of what has gone before, including under former and current state government schemes in Tasmania, Queensland, Western Australia and South Australia; non-government institution schemes such as Towards Healing, Melbourne Response and the Salvation Army Eastern Territory scheme; statutory victims of crime compensation schemes; and overseas schemes such as the Irish Residential Institutions Redress Scheme. The claims data also provide information about monetary payments to date.
These schemes have assessed monetary payments on a range of bases and provided a range of minimum, maximum and average payments. Almost all of these schemes cover types of abuse other than sexual abuse, including physical abuse and neglect. For example:
- the Tasmanian Government scheme made 1,848 payments, with a minimum payment of $5,000, a maximum payment of $60,000 and an average payment of $30,000
- the Queensland Government scheme made 7,168 payments, with a minimum payment of $7,000, a maximum payment of $40,000 and an average payment of $13,000
- the larger Western Australian Government scheme, Redress WA, made 5,302 payments, with a minimum payment of $5,000, a maximum payment of $45,000 and an average payment of $23,000
- as at 16 June 2014, the South Australian Government scheme had made 82 payments, with an average payment of $14,400
- according to the data summonsed by the Royal Commission, under Towards Healing 881 known payments were made between 1 January 1995 and 30 June 2014, with an average payment of $48,300
- according to the data summonsed by the Royal Commission, under the Melbourne Response 310 known payments were made between 1 January 1995 and 30 June 2014, with an average payment of $38,800
- according to data summonsed by the Royal Commission, The Salvation Army Eastern and Southern Territories made 478 known payments between 1 January 1995 and 30 June 2014, with an average payment of $49,100
- maximum payments available under statutory victims of crime compensation schemes range from $15,000 to $75,000
- as at 17 December 2014, the Irish Residential Institutions Redress Scheme had made some 15,547 payments, with the largest payment being €300,500 (around $423,000 in Australian dollars based on January 2015 exchange rates) and an average payment of €62,237 (around $88,000 in Australian dollars based on January 2015 exchange rates).
A possible approach
Assessment of monetary payments
In our consultations to date, there has been strong support for adopting a table or matrix that would take account of the severity of the abuse and the impact of abuse. There was also recognition that there may be other aggravating factors that should be considered. We have no fixed view on what form a table or matrix should take at this stage. A possible table or matrix could provide for the assessment of severity of abuse, severity of impact and distinctive institutional factors as follows:
[Table ES1 omitted]
Amounts of monetary payments
In our consultations to date, participants have found it difficult to nominate a maximum amount for monetary payments. Many participants also grappled with the issue of affordability. We have no fixed view on what the payments should be at this stage. For the purposes of this consultation paper, we commissioned actuarial modelling of the following possibilities, each with a minimum payment of $10,000 and: a maximum payment of $100,000, a maximum payment of $150,000, a maximum payment of $200,000. For each of these maximum payment levels, our actuarial advisers have modelled how payments could be distributed to achieve average payments of $50,000, $65,000 or $80,000. Monetary payments at these levels would be higher than the amounts available under previous state government redress schemes, both at the minimum, maximum and average amounts.
We are publishing Finity Consulting Pty Limited’s actuarial report to us in conjunction with releasing this consultation paper so that all interested parties can understand the detail of the actuarial advice that has informed our work on monetary payments and funding. It is published on the Royal Commission’s website. Finity Consulting have used a variety of data for their modelling, particularly detailed data from Redress WA. For the purpose of looking at a possible distribution of payments, the total number of eligible survivors who will make a claim for payment under a redress scheme has been estimated to be 65,000. The chart below shows the possible spread of payments when the maximum payment is set at $100,000 and the average payment is $50,000 (blue), $65,000 (yellow) or $80,000 (grey).
[Figures ES1 to 3 omitted].
Different maximum payments can be set without affecting the total cost of payments – that is, the cost of payments is affected by the average cost rather than the maximum cost. A scheme with an average payment of $65,000 will have the same total cost of payments, regardless of whether the maximum payment is set at $100,000, $150,000 or $200,000.
Within any given range of minimum and maximum payments, the higher the average payment, the greater the relevant proportion of total payments will be directed to those less seriously affected by abuse – that is, those with a lower total assessment determined under the table or matrix. In contrast, the lower the average payment the greater the relative proportion of total payments will be directed to those most seriously affected by abuse – that is, those with a higher total assessment determined under the table or matrix.
Other payment issues
Survivors may experience difficulties in receiving lump-sum payments that are much larger than the amounts of money they are used to handling. However, many survivors want to receive a lump-sum payment. A redress scheme could provide an option for monetary payments to be paid to survivors in instalments rather than as a lump sum if this option would be taken up by many survivors. It would involve additional administrative costs for the scheme. Many survivors have already received redress through previous and current government and non-government redress schemes, including statutory victims of crime compensation schemes. Some survivors have received monetary payments through civil litigation. In our consultations to date, there has been support for the principle that those who have already received monetary payments should remain eligible to apply under a new scheme, provided that any previous payments are taken into account.
We welcome submissions that discuss the issues raised in Chapter 6, including the purpose of monetary payments. In particular, we welcome submissions on:
- the assessment of monetary payments, including possible tables or matrices, factors and values
- the average and maximum monetary payments that should be available through redress
- whether an option for payments by instalments would be taken up by many survivors and whether it should be offered by a redress scheme
- the treatment of past monetary payments under a new redress scheme.
Redress scheme processes
For a redress scheme to work effectively for all parties, its processes must be efficient. They must be focused on obtaining the information required to determine eligibility and calculate monetary payments, and then making that determination and calculation fairly and in a timely manner. Previous and current redress schemes provide many examples of effective and less effective processes.
Eligibility for redress
An effective redress scheme must clearly define eligibility for the purposes of the scheme. Eligibility refers to the criteria that determine whether a person is able to obtain redress through the scheme. This requires consideration of: the types of institutions included; the connection required between the institution and the abuse; the type of abuse included; any cut-off date by which the abuse must have occurred; whether those who have already received redress may apply.
Duration of a redress scheme
Whether a redress scheme is open-ended or has a fixed closing date has significant implications for survivors who may be eligible for the scheme and for those responsible for funding and administering the scheme. Given that fixed closing dates create significant difficulties for survivors and particularly risk excluding eligible survivors, a scheme should not be subject to a fixed closing date.
Publicising and promoting the availability of the scheme
A key feature of an effective redress scheme is a comprehensive communication strategy. This strategy should ensure that the availability of the scheme is widely publicised and promoted. Particular communication strategies are needed for people who might be more difficult to reach.
The application process for redress should be as simple as possible while obtaining the information necessary to assess eligibility and determine the amount of any monetary payment. A scheme may require additional material or ‘evidence’ and additional procedures to determine the validity of claims if it has higher maximum or average payments available. A scheme should fund a number of support services and community legal centres to assist applicants to apply for redress.
Decisions about redress should be made by a body independent of the institutions. The scheme should provide any institution that is the subject of an allegation with details of the allegation. It should seek from the institution any relevant records, information or comment. If an allegation is made against a person who is still involved with the institution, the institution may have to act on the allegation independently of any issues of redress.
Standard of proof
The standard of proof used in a scheme determines the degree to which a decision maker must be satisfied of an allegation in order to accept it as true. Current and previous redress schemes have adopted different standards of proof. There are arguments against adopting a standard of proof used in civil litigation. A plausibility test or a test of reasonable likelihood may be more appropriate.
Decision making on a claim
A national or separate state and territory redress schemes should provide sufficient independence of decision making from the institutions in which abuse occurred. Administrative decision making, with levels of delegation, seems appropriate. A mix of legal, medical, psychosocial and similar skills, including experience in issues relating to institutional child sexual abuse, is likely to ensure that properly informed decisions are made.
Offer and acceptance of offer
Once a decision has been made on an application, the applicant should be provided with a statement of decision. The scheme could encourage (and pay for) applicants to have an additional consultation with their support service or community legal centre before deciding whether or not to accept the offer. If a deed of release is to be required on acceptance of an offer, the scheme should require (and pay for) applicants to receive legal advice before they accept the offer. Offers should remain open for acceptance for at least three months.
Review and appeals
Review and appeals processes for redress schemes appear to depend in large part on how they are established. A redress scheme could offer internal review to the applicant. It may be appropriate to leave external review or appeal rights for the decision of those establishing the scheme.
Deeds of release
We have heard very different views on whether or not a deed of release should be required. At the very least, an applicant should be required to agree that the value of any redress should be offset against any common law damages and that, if common law damages are obtained, the applicant will cease to be eligible for any counselling and psychological care through redress. This approach may not go far enough. If a deed of release is required, the scheme should fund a legal consultation for the applicant before the applicant decides whether or not to accept the offer of redress and sign the deed of release. There should be no confidentiality obligation imposed on survivors. The scheme would be subject to any relevant privacy obligations.
Support for survivors
A redress scheme should offer counselling during the scheme from assistance with the application through the period when the application is being considered to the making of the offer and the applicant’s consideration of whether or not to accept the offer. A redress scheme should also consider offering a limited number of counselling sessions for family members, particularly in cases where survivors are disclosing their abuse to their family for the first time in the context of the redress scheme.
Transparency and accountability
A redress scheme should be transparent and accountable, including by:
- making its processes and timeframes as transparent as possible
- allocating each applicant to a particular contact officer who they can speak to with any queries
- operating a complaints mechanism and welcoming any complaints or feedback
- publishing data, at least annually, about applications and their outcomes.
Interaction with alleged abuser, disciplinary process and police
Past and current redress schemes have adopted different approaches to whether and how they interact with the alleged abuser, institutional disciplinary processes and the police. If any alleged abusers are, or may be, still working or otherwise involved with the institution, the institution should pursue its usual investigation and disciplinary processes when it receives advice from the scheme about the allegations. The scheme must comply with any legal requirements to report or disclose the abuse. A scheme should also seek to cooperate with any reasonable requirements of the police. We welcome submissions that discuss the issues raised in Chapter 7, including any aspects of redress scheme processes.
In particular, we welcome submissions on:
- eligibility for redress, including the connection required between the institution and the abuse and the types of abuse that should be included
- the appropriate standard of proof
- whether or not deeds of release should be required.
Funding required for redress
Funding for redress would require funding sufficient for the counselling and psychological care and monetary payments elements of redress, as well as the administration costs of the redress scheme. Funding also needs to take account of amounts already spent on providing redress to the extent that these would reduce funding requirements under a new scheme.
Our actuarial advisers have conducted modelling of the funding needs across states and territories. They have estimated the breakdown between government-run institutions and non-government-run institutions. Our actuarial advisers have not been able to estimate the cost of counselling and psychological care already provided to survivors through existing support services. If this amount can be estimated, it should be deducted from the counselling and psychological care amounts below. For the purpose of this consultation paper, we have included the modelling based on an average monetary payment of $65,000. The modelling of costs based on average monetary payments of $50,000 and $80,000 is set out in the actuarial report, which is published on the Royal Commission’s website. The monetary payment amounts below have been adjusted to take account of amounts already spent on providing redress under past and current redress schemes. The following table shows the total estimated cost by jurisdiction and by government and non-government institutions.
[Table ES2 omitted]
Australian Government funding contributions may be relevant to: government-run institutions, if the Australian Government ran an institution or under its broader social or regulatory responsibilities; non-government run institutions, under its broader social or regulatory responsibilities. Clearly the total funding would not be required immediately upon establishment of a scheme. Our actuarial advisers have modelled a possible pattern of claims and funding requirements as follows.
[Figure ES4 omitted]
This modelling of the funding needs is based on the estimate of 65,000 eligible claimants. Our actuarial advisers have also shown the impact on costs if there are 45,000 or 85,000 eligible claimants. This is set out in their actuarial report, which is published on the Royal Commission’s website.
Possible approaches to funding redress
Our Terms of Reference refer to the ‘provision of redress by institutions’. A reasonable starting point for funding redress may be that the institution in which the abuse occurred should fund the cost of:
- counselling and psychological care, to the extent it is provided through redress
- any monetary payment
- administration in relation to determining the claim.
We know that some institutions in which abuse is alleged to have occurred no longer exist. Where those institutions were part of a larger group of institutions, or where there is a successor to those institutions, it might be reasonable to expect the larger group of institutions or the successor institution to fund the costs described above.
The breakdown in funding requirements between government and non-government institutions in the actuarial modelling takes account only of whether or not an institution was run by a government. However, there are other bases on which governments could be considered responsible for institutions and conduct within them. Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. The broad social failure to protect children across a number of generations makes clear the pressing need
to provide avenues through which survivors can obtain appropriate redress for past abuse. In addition to this broader social responsibility, governments may also have responsibilities as regulators and as guardians of children. There will be cases where institutions in which abuse occurred no longer exist and they were not part of a larger group of institutions or there is no successor institution. There will also be cases where institutions that still exist have no assets from which to fund redress. Possible options for who might fulfil the ‘funder of last resort’ role are the institutions that fund redress (both government and non-government), or governments, or some combination of the two. Arguments can be made in support of governments being funders of last resort on the basis of governments’ social, regulatory and guardianship responsibilities. The extent to which governments might take on some or all of the responsibility for funding of last resort might depend in part upon actions they have already taken on redress.
Our actuarial advisers have estimated the adjustments to the government and non-government shares of the estimated total costs for redress if governments were to act as funders of last resort.
[Table ES3 omitted]
Different starting points between the states and territories might influence contributions to funding for redress. It seems that some flexibility is likely to be needed in order to allow adequate funding for redress to be secured efficiently and with appropriate recognition for what has already been done. The following principles may provide some guidance for implementation:
- Whether a single national redress scheme or a system of separate state and territory redress schemes is favoured, the relevant government or governments could propose a scheme structure that would enable the scheme to make decisions or recommendations about eligibility for the scheme and any amount of monetary payment to be offered.
- Non-government institutions that are expected to be subject to a number of claims for redress could be invited to participate with the relevant government or governments in developing the scheme. These non-government institutions could be participants in the scheme from the start.
- Other non-government institutions could participate in the scheme if and when either they or the scheme receive an application for redress for abuse in the relevant institution.
- The relevant government and non-government institutions that are initial participants in the scheme from the start could fund the administrative costs of the scheme. Other non-government institutions that participate in the scheme, if and when an application for redress in respect of abuse in relevant institution is received, could pay a reasonable fee for use of the redress scheme.
- If a system of separate state and territory redress schemes is favoured, in states and territories where the Australian Government has or had particular regulatory responsibility for some children the Australian Government and the relevant state or territory government could negotiate a reasonable contribution by the Australian Government to offset the funding responsibilities of the state or territory government.
- If a system of separate state and territory redress schemes is favoured, where the Australian Government itself operated an institution it could participate in the relevant state or territory scheme just as any non-government operator of an institution would participate.
- Each government could be a funder of last resort for its scheme or it could negotiate with or require non-government institutions to contribute funding of last resort.
- Governments could also determine whether or not to require non-government institutions, or particular types of non-government institutions, to fund a redress scheme.
- Governments would also have to determine how to fund their contributions to redress.
We welcome submissions that discuss the issues raised in Chapter 8, including the modelling of required funding and the possible approaches to funding redress. In particular, we seek the views of the Australian Government, state and territory governments and institutions on:
- appropriate funding arrangements
- appropriate funder of last resort arrangements
- the level of flexibility that should be allowed in implementing redress schemes and funding arrangements.
Commissioners have agreed to make findings and recommendations on redress and civil litigation by the middle of 2015. However, no matter how quickly we report, it will inevitably take some time to implement our recommendations. The amount of time may be greater if larger or more complex structures are favoured. There is also the possibility that our recommendations may not be implemented, either nationally or in some states or territories. It seems likely that additional recommendations might be required to guide institutions as to how they should provide redress either while any national or state and territory arrangements are being implemented or if such arrangements are not implemented. We would expect that individual institutions should be able to adopt the principles and approaches we recommend generally. It may also be that some or many institutions could combine together to provide an interim scheme for redress. Institutions may need additional guidance on some issues either until the structures we recommend for redress are implemented, or if they are not implemented.
Independence from the institution
A single national redress scheme or state and territory redress schemes would ensure that decision making on redress is independent of the institutions that the abuse occurred in. Until these structures are implemented, institutions will need to seek to achieve independence in decision making on any redress claims that they receive. It seems likely that institutions would need to consider the following in seeking to achieve independence in an institutional redress process:
- they should provide information on the application process, including online, so that survivors do not need to approach the institution if there is an independent person with whom they can make their claim
- if feasible, the process of receiving and determining claims should be administered independently of the institution to minimise the risk of any appearance that the institution can influence the process or decisions
- they should ensure that anyone they engage to handle or determine redress claims is appropriately trained in understanding child sexual abuse and its impacts and in any relevant cultural awareness issues
- they should ensure that any processes or interactions with survivors are respectful and empathetic, including by taking into account the factors discussed in Chapter 4 in relation to meetings and meeting environments
- processes and interactions should not be legalistic. Any legal, medical and other relevant input should be obtained for the purposes of decision making.
Cooperation on claims involving more than one institution
A single national redress scheme or state and territory schemes would ensure that a survivor’s experiences of institutional abuse could be assessed in one redress process, even where the survivor had experienced abuse in more than one institution. Until these structures are implemented, institutions will need to seek to achieve a similar outcome in decision making on any redress claims that they receive. This issue will clearly arise where a survivor alleges abuse in more than one institution. In these circumstances, with the survivor’s consent, the institution’s redress process should approach the other institutions named to seek cooperation on the claim. If the survivor consents and the relevant institutions agree, one process should assess the survivor’s claim in accordance with the redress processes and under the table or matrix and amounts of monetary payments we finally recommend and allocate contributions between the institutions. If any institution no longer exists and has no successor, their share should be met by the other institution or institutions.
Counselling and psychological care
The option for supporting the provision of counselling and psychological care through redress by creating a trust fund to supplement existing services and fill service gaps would not be available in the absence of a ‘one-stop shop’ redress scheme. Institutions may not have the number of claims necessary to allow efficient pooling of contributions and individual institutional trust funds may have little capacity to supplement existing services or fill service gaps. Through their redress processes, institutions could undertake to meet survivors’ needs for counselling and psychological care. Institutions would also need to ensure that a survivor’s need for counselling and psychological care is assessed independently of the institution.
In the absence of a national redress scheme or state and territory redress schemes, there may be structures that institutions could adopt in order to offer redress more effectively than through individual institutional redress schemes.
There is no legal impediment to institutions establishing cooperative arrangements on an on-going basis, rather than on an ad hoc basis as particular claims require cooperation. However, some institutions have told us that cooperation is unlikely in the absence of government leadership or direction. Unless governments join any cooperative effort, at least in relation to claims of abuse in government-run institutions, then a cooperative structure may have limited application.
Some level of coordination might be achieved through an independent entity offering a redress process on a fee-for-service basis. In order to offer an effective redress process, the entity would need to adopt the principles and approaches we recommend generally, as well as any relevant additional principles for institutions. Again, such an approach may have limited application if governments do not participate, at least for claims of abuse in government-run institutions. Options for non-government institutions to adopt effective cooperative approaches to redress in the absence of government leadership and participation appear limited. We welcome submissions that discuss the issues raised in Chapter 9, including the additional principles for interim arrangements and possible structures. In particular, we seek the views of survivors, survivor advocacy and support groups and institutions on whether there are other issues on which direction or guidance might be required for interim arrangements.
In Australia, the process for obtaining civil justice for personal injury is by an award of damages through successful civil litigation. Redress schemes may provide a suitable alternative to civil litigation for some or even many claimants, but they do not offer monetary payments in the form of compensatory damages obtained through civil litigation.
In considering possible reforms to civil litigation systems, we have focused on the issues that appear to be particularly difficult for survivors. In focusing on issues of particular significance for survivors, it may be possible to improve the capacity of the civil litigation systems to provide justice to survivors and in a manner at least comparable to that of other injured persons.
Limitation periods are a significant, sometimes insurmountable, barrier to survivors pursuing civil litigation. Given what we know about the average length of time that victims of child sexual abuse take to disclose their abuse, standard limitation periods are fairly clearly inadequate for survivors. Options for reform are to remove limitation periods for actions relating to child sexual abuse altogether or to substantially extend them. There is also an issue as to whether any changes should apply prospectively only or retrospectively. The Exposure Draft for the Limitation of Actions Amendment (Criminal Child Abuse) Bill 2014 (Vic), released on 24 October 2014 by the Victorian Department of Justice, would remove limitation periods altogether, including retrospectively. If limitation periods are removed altogether, defendants may be required to defend proceedings without evidence that would have been available to them previously and in circumstances where the trial could not be fair. If limitation periods are removed altogether, an option is to include provision for the courts to stay proceedings for reasons of unfairness to the defendant.
Duty of institutions
A survivor will have a clear cause of action against the individual perpetrator or perpetrators of the abuse in the intentional tort of battery. Causes of action against an institution are considerably more difficult. Difficulties arise because civil litigation against the institution seeks to have the institution found liable for the deliberate criminal conduct of another person. The legal bases for institutional liability for abuse currently available in Australia are:
- an action in negligence involving breach by the institution of a duty of care owed to the child. It will require proof of the existence of the duty and its breach; and that the breach caused the damage. The duty is a duty to take reasonable care. What is ‘reasonable’ is determined by reference to the standards applying at the time the duty is alleged to have been breached
- vicarious liability of the institution for torts committed by its employees while acting in the course of their employment. In Australia, this liability has been limited to apply only to the acts of ‘employees’ and it is unclear in Australian law when child sexual abuse might be found to have occurred ‘in the course of employment’
- an action for breach of the institution’s non-delegable duty to ensure that a third party takes reasonable care to prevent harm. This is a duty to ensure that reasonable care is taken by others. It is somewhat similar to vicarious liability, but it applies to the acts of independent contractors rather than employees. It is not clear that a non-delegable duty will extend to liability for the criminal acts of the third party. The leading Australian case, New South Wales v Lepore, decided by the High Court in 2003, has left the law on vicarious liability and non-delegable duties in a somewhat uncertain state. Courts in Canada and the United Kingdom have adopted considerably broader approaches to finding institutions liable for institutional child sexual abuse.
Options for reform include:
- imposing an absolute liability on institutions so that institutions would be liable for the abuse regardless of any steps they had taken to prevent it
- imposing liability on institutions, unless the institution proves that it took reasonable precautions to prevent the abuse. There is also an issue as to whether any changes should apply prospectively only or retrospectively.
Identifying a proper defendant
Survivors and their legal advisers have had difficulties in finding a proper defendant to sue. A survivor will always have a cause of action against the perpetrator of the abuse, but survivors may wish to sue the institution in which they were abused. Much of the discussion of difficulties in finding the proper defendant to sue has focused on the absence of an incorporated body, particularly for some faith-based institutions. However, in some cases the difficulties for survivors may arise not so much from the absence of an incorporated body at the time the abuse occurred as from the passage of time between the occurrence of the abuse and the survivor wishing to commence civil litigation. Incorporation does not guarantee that an entity will survive for any particular period of time. Also, incorporation does not guarantee that an entity will have any assets to meet the claim. In considering options for reform, it seems reasonably clear that the difficulties for survivors in identifying a correct defendant when they are dealing with unincorporated religious bodies should be addressed. It may be appropriate for state and territory legislation to be amended to provide that any liability of the religion or religious body that a statutory property trust is associated with for institutional child sexual abuse can be met from the assets of the trust and that the trust is a proper defendant to any litigation involving claims of child sexual abuse for which the religion or religious body is alleged to be liable. Alternatively, some religions or denominations might prefer to solve the problem in different ways, such as by providing a ‘nominal defendant’ that is to be a proper defendant to any claims of child sexual abuse.
A requirement for incorporation and insurance, particularly for small, temporary, informal unincorporated associations, may deter people from forming such associations, potentially losing the various sporting, cultural and other activities they provide in the community. However, it might be reasonable for state and territory governments to require that certain children’s services that are authorised or funded by the government be provided only by incorporated entities and that those entities be insured.
Model litigant approaches
There is a general common law obligation on governments to act as ‘model litigants’. The Australian Government and some state and territory governments have adopted written model litigant policies. Some states and territories have gone further in adopting principles for how they will handle civil litigation in relation to child sexual abuse claims.
The Productivity Commission has recently concluded that model litigant rules should not be extended to non-government litigants where there are power imbalances between the parties. While there might be no harm in non-government institutions choosing to comply with model litigant principles in responding to civil claims for institutional child sexual abuse, these principles may not be sufficiently specific to help institutions, and their lawyers, to respond more appropriately to such claims.
Both governments and non-government institutions that receive civil claims for institutional child sexual abuse would benefit from adopting more specific guidelines for responding to claims for compensation in relation to allegations of child sexual abuse. Victoria’s Common Guiding Principles for responding to civil claims involving allegations of child sexual abuse and New South Wales’s Guiding Principles provide useful models to consider.
We welcome submissions that discuss the issues raised in Chapter 10. In particular, we welcome submissions on:
- the options for reforming limitation periods and whether any changes should apply retrospectively
- the options for reforming the duty of institutions and whether any changes should apply retrospectively
- how to address difficulties in identifying a proper defendant in faith-based institutions with statutory property trusts
- whether the difficulties in identifying a proper defendant arise in respect of institutions other than faith-based institutions and how these difficulties should be addressed
- whether governments and non-government institutions should adopt principles for how they will handle civil litigation in relation to child sexual abuse claims
- whether any changes may have adverse effects on insurance availability or coverage for institutions, including specific details of the adverse effects and the reasons for them.