Can I access compensation?

Almost two years after the Royal Commission released their Redress and Civil Litigation Report the federal government have finally introduced a Bill for an Act to establish the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (‘the Bill’) to parliament, and an accompanying Explanatory Memoranda, setting out their plans for redress. A further Bill containing consequential amendments to other Acts has also been introduced to parliament (‘the further Bill’).

Christian Porter, Minister for Social Services, announced there would be a Commonwealth redress scheme in November 2016 but there was deafening silence as to the eligibility and practicalities of the scheme, leaving survivors fearing the announcement might be a political smoke screen rather than the long-awaited justice they had hoped for.

Key details of the Bill

• The redress scheme will commence on 1 July 2018
• The redress scheme will compensate institutional child sexual abuse. Physical abuse will be considered an aggravating factor to the sexual abuse but will not be considered in its own right.
• Redress will be available in three forms; a monetary payment of up to $150,000, access to counselling and psychological services and a direct personal response from a liable participating institution
• To be eligible for redress a survivor must
  • have been sexually abused as a child before the date the scheme commenced
  • have been either inside or outside Australia when the abuse occurred
  • be an Australian citizen or permanent resident at the time of making the application for redress and;
  • one or more of the following institutions must be responsible for the abuse:
    • A Commonwealth institution;
    • A participating Territory institution
    • A participating non-government institution of a Territory
• Top up payments will be available to survivors who have previously received compensation including for those who have signed a deed of release. However, the top up payment will be in the form of an adjustment of the original compensation payment received by the survivor to account for inflation. If the adjusted original compensation payment  exceeds the amount that a survivor is deemed to be entitled to under the redress scheme then they will not receive a top up payment. However, if the adjusted original compensation payment is less than the amount that a survivor is deemed to be entitled to via the redress scheme, then the survivor will receive the gap between the two amounts.
  • Those who are not entitled to further monetary compensation will still be entitled to apply for access to counselling/psychological services and a direct personal response.
• Accepting redress from the scheme will exclude survivors from bringing any further claims against the participating institutions. i.e. survivors will relinquish their right to sue the government or organisations responsible for them at the time of the abuse, providing that the relevant government/organisation was a participating institution in the redress scheme.
• An institution that is a participating institution at any time during a quarter (3 month period) is liable to pay funding contributions for that quarter (redress component and scheme administration component)
• The only appeal mechanism for survivors and effected participating institutions will be by way of internal review. A survivor may appeal a determination regarding the acceptance or rejection of an application for redress or the amount of redress awarded where an application for redress was accepted.  An internal review will consist of an independent decision maker (‘IDM’) reviewing the decision. The IDM may only consider materials that were available to the primary decision maker. They can then affirm, vary or set the determination aside and substitute it for a new determination. There will be no process for judicial review by either the survivor or the participating institution/s.
• Each survivor will only be allowed to make one claim
• Legal advice will only be paid for regarding obtaining legal advice about whether to accept or reject the offer
• Compensation received under redress will be tax free and will not affect payments under the Social Security Act and Veterans Entitlement Act. The payments will also be quarantined from any bankruptcy proceeding. They will also be protected from any garnishee orders.
• The Commonwealth and self-governing Territories will only be the funders of last resort for a participating non-government institution of a Territory if the Minister makes a declaration to this effect.
• Further information can be sought from an institution or survivor for an application. If the relevant information is not received in the prescribed time period a decision can be made without the information.
• If a claimant dies after making a claim for redress but before payment is made the redress operator must determine who should be paid the redress payment and must consider  the survivors wills or the laws of intestate in doing so. The redress operator may pay the redress payment without requiring production of probate or letters of administration.
• The Act (and therefore the redress scheme) ceases to have effect on the 10th anniversary of the commencement of the redress scheme unless this is otherwise altered before the 10th anniversary.

The Bill clarifies some of the major questions on survivors’ minds but leaves many details of the scheme and the practicalities to be covered under the Rules set to accompany the law if enacted.

The details of the Bill will be the subject of much debate over the coming weeks and months. Over the coming days and weeks our team will comment more in depth on the details of the Bill and the amendments we consider necessary if the scheme is to properly compensate survivors.

If you are a survivor of abuse and are interesting in understanding your rights under redress further please call 1300 366 441 or email our team directly at iaclaims@rctlaw.com.au.