Published: 06 November 2016
Author: RCT Abuse Law team
Fair, simple and generous? Queries remain for abuse compo
In announcing a Commonwealth-led compensation scheme for survivors of institutional sexual abuse yesterday, Social Services Minister Christian Porter said the scheme would be fair, simple and generous. But as the dust settles on the announcement, concerns are being raised as to whether the proposed scheme will in fact be fair, simple and generous.
'Opt in' can also mean 'opt out'
In particular, the opt in nature of the scheme has been the focus of criticism, noting that not only can governments, churches and charities choose whether to opt in or not, but if they do opt in they can also opt out.
Already, the South Australian Government, who have had a state-based redress scheme, has made it clear that they are not prepared to opt in to a national scheme. It is not clear whether Western Australia will follow in their footsteps, choosing instead to rely on their state-based scheme which saw compensation slashed from a maximum $80,000 to $45,000 when more survivors of severe abuse came forward than had been anticipated.
While the Victorian and NSW governments and the Catholic Church have previously indicated that they would opt in to a national scheme the fate of survivors of abuse in institutions run by other states, territories, church and charitable institutions remains unclear. The opt in nature of the scheme seems far from simple and far from universal.
It remains to be seen what the process will be for survivors with claims against multiple institutions where only some of those responsible entities opt in but others opt out. In these circumstances the survivor would not have a clear avenue to compensation and would be reliant on the co-operation of potential defendants or else be faced with the need for litigation—a less than preferable approach for many survivors. It is unclear whether these circumstances have been considered by the Commonwealth or will be considered by the advisory counsel proposed to assist in the implementation of the scheme.
Is the maximum payment sufficient?
The Commonwealth led compensation scheme will have a maximum payout of $150,000. While significantly more than compensation paid out under previous state-based redress schemes, the maximum compensation proposed still falls $50,000 short of the $200,000 maximum recommended by the Royal Commission. The reduction in the maximum compensation remains unexplained and some survivors and advocacy groups might argue that $150,000 is not generous enough to address the lifetime of suffering that survivors have endured.
Beyond monetary compensation
The Commonwealth should be commended for its acceptance of the Royal Commission’s recommendation that in addition to monetary compensation, any redress scheme should also offer access to counselling and to personal and direct contact with the institutions responsible for the abuse, should it be sought.
While provision has been made for access to counselling over the lifetime of the scheme which at present is envisaged operating until 2027 (with the option of a further 10-year extension), it is not clear whether survivors of abuse will be able to access ongoing mental health support once the scheme finally concludes.
This is an important issue for survivors who are currently unable to access the appropriate treatment or sufficient government-funded treatment.
In our extensive experience at Ryan Carlisle Thomas with the medical professionals engaged to work with survivors of abuse, we know that mental health services are often required throughout the lives of those who have suffered severe abuse. How on-going support can be provided might not be simple, but it is crucial.
The announcement of the Commonwealth led compensation scheme is a step in the right direction, but the details of the scheme will be crucial to determining whether the scheme will in fact be simple, fair and generous.