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Published: 09 November 2017
Author: Kate Malone
Last month the Federal parliament finally introduced a Bill to establish a Commonwealth government-led redress scheme for survivors of institutional childhood sexual abuse.
One of the big unanswered questions is: how will the proposed redress scheme work without the support of State governments and non-government institutions?
In its current form, the redress Bill only relates to the following institutions that were responsible for abuse:
This would mean that survivors of abuse that occurred in a State government institution or non-government institution of a State would not be eligible to participate in the redress scheme.
At Ryan Carlisle Thomas, a large portion of our clients have been abused in institutions that were operated by the Victorian State government or a Victorian non-government institution such as a Church or school. The Bill as it stands would therefore exclude almost all of our current clients from participating in the redress scheme.
More broadly, according to some estimates, the current proposed Bill would exclude some 60,000 survivors nation-wide from participating in the redress scheme.
Commonwealth Social Services Minister, Christian Porter MP, has said that the Bill is constrained by the fact that the Federal government does not have the Constitutional power to include the State governments in the Bill.
He said that following the introduction of the Bill into the Federal parliament, the onus would be on the State governments to refer their Constitutional power in relation to the redress scheme to the Federal parliament so that the scope of the redress scheme could be widened.
The States’ ability to refer powers to the Federal parliament is entirely voluntary. Thus, while the Federal parliament may strongly encourage the States to refer their powers in relation to the redress scheme, they do not have the power to compel the States to do this.
Furthermore, the Constitution allows for a situation where some States could refer their powers, while others could refuse to do so. If this occurred, the Federal parliament would have the ability to make laws that apply to the States who referred their powers, but not to the States that didn’t.
The response from the State governments to the Commonwealth-led redress scheme has been mixed since it was first announced in November 2016.
The Victorian and NSW governments have previously expressed theoretical support for the Commonwealth led redress scheme, but have not yet confirmed whether they will be referring their Constitutional powers regarding redress to the Federal parliament. Both the Victorian and NSW governments have sought further details regarding their liability under the scheme.
Other State governments have so far indicated that they are unlikely to participate in the redress scheme, particularly those that have already operated State-wide redress schemes such as South Australia.
It appears likely that survivors who were abused in States that do not agree to the referral of their Constitutional power will not be eligible to apply for redress through the Commonwealth-led scheme. This could leave many thousands of survivors in the lurch.
Further, early indications are that arguably the biggest non-government institution, the Catholic Church, would not opt into a national redress scheme unless there is nation-wide participation.
One of the Church’s most prominent figures, Mr Francis Sullivan of the Truth, Justice and Healing Commission, reiterated the Catholic Church’s theoretical commitment to the Commonwealth-led redress scheme, but stated that the advice received to date indicates that unless the States opted into the scheme, then the Churches and other non-government institutions in those States would not participate. Mr Sullivan said that until each State opts in to the scheme, the Catholic Church will not be in a position to opt in itself.
Sadly, survivors are once again in a position where their fate is in the hands of the governments and non-government institutions who are responsible for their abuse. Survivors will no doubt nervously await the responses of the various State governments and non-government institutions to determine whether they will be entitled to seek redress.
In the event that some States do not agree to refer their Constitutional powers to the Federal parliament, this will likely mean that many non-government institutions, such as the Catholic Church, will also be unable or unwilling to participate.
This would mean that rather than the nation-wide scheme that survivors have long hoped for, they would instead be left with a disjointed scheme that affords rights to some and not to others, through no fault of their own.
Watch this space for further updates regarding the responses of the States and non-government institutions to the redress Bill.
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