Published: 02 October 2018
Author: Kate Malone and Ian Dallas
How the new Sexual Abuse Redress scheme is not working
The Commonwealth Government’s sexual abuse redress scheme has now been operating since 1 July 2018 and we’ve learnt something already. Payments are assessed under a rigid system of classification which focusses on the act, ignoring how each individual reacts differently to abuse. This may lead to survivors being short-changed.
We explain how the so-called “matrix” of the redress scheme works, and how it often doesn’t work in the favour of a survivor of abuse.
You might do better instead to seek a monetary payment through common law.
How Redress Scheme “matrix” payments work
We have known for some time that the redress scheme would, against the recommendation of the Royal Commission, have a maximum cap of $150,000 for the most severe cases of institutional child sexual abuse.
You may be asking: “What am I going to get if I make a redress claim?”
The Commonwealth government has released a “matrix” which is to be used for the assessment of claims under the scheme.
This matrix has received a great deal of criticism, as contrary to the recommendations of the Royal Commission and the assurances of government prior to the redress scheme being adopted, the assessment regime does not focus on the impact of the abuse on the survivor.
Instead, assessment is focussed primarily on the nature of the abuse. The impact of the abuse on an individual survivor is only taken into account in limited ways, which is contrary to normal principles applied by the law to claims for compensation.
Under the matrix, payments are divided into three categories: penetrative, contact, and exposure.
|Max $||Min $|
|Contact abuse||30,000 + 10,000 + 5,000 + 5,000||30,000|
|Exposure abuse||5,000 + 5,000 + 5,000 + 5,000||5,000|
Penetrative abuse payments
The matrix dictates that the maximum payment of $150,000 will be reserved for any person who has suffered penetrative abuse. A survivor will automatically receive a minimum payment of $70,000 for penetrative abuse, plus a further allowance of $20,000 may be received in recognition of the impact of the sexual abuse on the person’s wellbeing. Further payments of $5,000 may be received for related non-sexual abuse, and also in situations where the person was placed in an institution when the abuse took place.
An additional $50,000 may be allowed where the assessor considers there to be ‘extreme circumstances’ of sexual abuse. However, this allowance of $50,000 only applies to penetrative abuse.
Contact abuse payments
Where a person suffered contact abuse (sexual abuse not involving penetration), they will receive a minimum payment of $30,000 and a further allowance of $10,000 may be made available in recognition of the impact of the sexual abuse on the person’s wellbeing. An additional allowance of $5,000 may be made in recognition of any related non-sexual abuse, and also if the abuse took place in a closed institution.
No additional allowance is payable for ‘extreme circumstances’ of contact abuse.
Exposure abuse payments
Lastly, a person who has suffered exposure abuse (ie: any non-contact sexual abuse) will receive a minimum of $5,000 with an additional $5,000 being made available for each of the following categories which might apply:
- the impact of the sexual abuse on the person’s wellbeing;
- related non-sexual abuse; and
- abuse which took place in a closed institution.
Again, there is no additional allowance for ‘extreme circumstances’.
What’s wrong with this scheme?
The redress scheme matrix has come under fire recently for its rigid approach to the assessment of claims of institutional child sexual abuse.
It is clear that the matrix does not allow for any negotiation or appreciation of the nuances involved in assessing claims of institutional abuse. For example, a person who has been abused by way of penetration is automatically assumed under the matrix to have also been the most significantly impacted by the abuse.
While penetrative offences are widely thought to be the most serious kind of sexual abuse and often do lead to a greater impact on the survivor, there are also several cases that we have seen where a person has been abused by way of penetration but has not been as significantly affected as someone who has suffered contact or exposure abuse. Each survivor is different in the ways that they have coped with the impact of the abuse on them and this is not recognised by the redress scheme matrix.
Further, the redress scheme only makes an additional payment of $50,000 for ‘extreme circumstances’ available where the abuse has involved penetration.
‘Extreme circumstances’ is defined in an unhelpful way by reference to whether a person was ‘institutionally vulnerable’, whether there was non-sexual abuse of the person and whether, taking these matters into account, it is reasonable to conclude that the sexual abuse was ‘particularly severe’.
Quite how this definition of extreme circumstances will be applied in practice is not at all clear. However, what can be said is that not all penetrative abuse will attract this extra $50,000 payment. It is certainly unfair to assume, as the matrix does, that only abuse that involved penetration could be considered ‘extreme’.
Ryan Carlisle Thomas has seen many cases where a person has been subjected to significant and severe contact abuse (which can include oral sex) that has occurred repeatedly and over a prolonged period of time. If the frequency of the abuse is to be considered in determining whether sexual abuse has been ‘extreme’, then arguably repeated instances of contact abuse could be considered to be as ‘extreme’ or more ‘extreme’ than some instances of penetration abuse.
However, the redress scheme matrix will not allow for such an assessment to take place and a survivor in those circumstances would be denied the possibility of receiving an additional $50,000.
Details hidden from parliament
The redress scheme matrix has been criticised by some politicians, including Western Australian Greens Senator, Rachel Siewert. The matrix was only made public after the redress legislation had passed through both houses of parliament and by this time it was too late for politicians to change their minds or advocate for an alternative matrix.
Higher payouts possible under common law
While the redress scheme may be suitable for some survivors and it does have its benefits, we are encouraging clients who have not had any previous claims to strongly consider the possibility of pursuing a common law claim for damages (either by trying to reach an out of court settlement or by issuing proceedings in court) before making a redress application.
This is because when assessing claims for common law damages, you are not bound by a strict matrix or any particular monetary figure. While precedents and the settlement of previous claims are of course relevant when assessing common law claims for damages, it still allows survivors to distinguish their case from others based on the unique combination of the abuse they suffered and the impact it has had on their lives.
Further, in our experience in pursuing common law claims for damages for survivors of institutional child sexual abuse, we have recently found that many defendants are awarding amounts of money that are beyond that which is allowed for in the redress scheme matrix.
If you are confused about your options or unsure whether you should pursue a common law claim for damages or a redress scheme application, you are welcome to contact our institutional abuse team to discuss your options further.