On 26 October 2017, the Federal Minister for Social Services introduced a Bill into Parliament which, if passed, would introduce a national Redress Scheme for survivors of institutional child sexual abuse.
Under the proposed Scheme, which is intended to commence operation of 1 July 2018, victims would have available to them payments of up to $150,000, as well as access to counselling services and a direct personal response by way of an apology from the institution itself.
State Governments and other institutions, including churches, would be required to opt into the Commonwealth Scheme.
The Scheme is the product of recommendations made by the Royal Commission Into Institutional Responses to Child Sexual Abuse. The Royal Commission recommended a Government run scheme as a preferable system to the current schemes run by the institutions themselves.
Whilst there has been a largely positive reaction to the proposed Commonwealth Scheme, there are particular concerns that the Scheme, if it is to come into effect, will be too selective in its nature and will limit the access of certain individuals to justice. For example, the Scheme, in its current form, excludes survivors of sexual abuse who have gone on to commit sexual offences themselves or who have been sentenced to 5 years or more in prison for serious drug, homicide or fraud offences. These restrictions, if they are to come into effect, are likely to exclude a significant number of victims of institutional child sexual abuse.
In respect of these particular concerns, Mark O'Connor, an accredited specialist in compensation law at the Brisbane firm Bennett & Philip, believes that the proposed Scheme unfairly ignores the circumstances that caused such individuals to engage in these criminal offences. Mr O'Connor has commended:
I expect this view will be criticised but it is wrong and grossly unjust to simply exclude people because of what they have done and ignored the very real likelihood that their spiral downwards is due to themselves being abused as children...
Additionally, a number of advocate groups have criticised the selective nature of the proposed Scheme. The Care Leavers Network CEO, Leoni Sheedy, has said the following:
They were once children and they deserve redress just like any other care leaver who was sexually abused in an orphanage, children's home or foster home.
Another concern is the fact that effectiveness of the Scheme requires the various States, Territories and institutions to opt in to participate. The Federal Opposition has criticised the Federal Government for failing obtain co-operation and agreement of the states and various institutions prior to introducing the legislation.
The justification for the compensation payable under the Scheme being capped at $150,000 is to maximise the number of States and other institutions to opt into the Scheme.
A further incentive for participation is that the Scheme will provide that, if a survivor accepts compensation from the particular institution under the Scheme, they will be required to release the institution from any further liability. This means that the survivor will be required to provide a legal undertaking not to bring or continue any civil claim against the particular institution in any jurisdiction in relation to that particular abuse. This is believed to be a powerful incentive to institutions to participate in the Scheme, particularly given the large amount of civil litigation in the various jurisdictions in respect to institutional abuse.
It remains to be seen whether or not the various institutions will choose to opt into the Scheme. The New South Wales Premier has indicated that New South Wales is in favour of the national Scheme coming into effect.
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