Published: 30 July 2019
Author: Alyssa Lewis and Amy Olver
Commonwealth-led Redress Scheme gives traumatised sexual abuse victims the run around
What was intended by the Commonwealth Government to be a less complex and time consuming way of obtaining compensation for survivors of institutional child sexual abuse has morphed into a bureaucratic maze with some of the criteria used in assessing entitlements to compensation being hidden from the public.
It is unclear when $50,000.00, a third of the maximum $150,000.00 payment available under the child sexual abuse Redress Scheme, will be paid to survivors. Fifty thousand dollars is potentially available to survivors who satisfy the criteria for “extreme circumstances” compensation. But the definition of extreme circumstances remains unknown to survivors, creating a lack of transparency that the scheme was employed to avoid.
The Redress Scheme, unfortunately, leaves many survivors in limbo and, in many cases, they are better served by suing for compensation through the courts or pursuing alternative dispute resolution out of court.
This means that survivors seeking the maximum compensation available under the redress scheme ought to seek advice in order to fully explore their other legal rights including an out of court settlement or common law court claim, which in many cases produce a more predictable and significant outcomes.
The Redress Scheme
Every day, our sexual abuse legal team responds to abuse survivors with advice about the potential avenues they have available to them to obtain compensation. We advise survivors of their best pathway to financial compensation, of which there are three main options:
- a claim via the Commonwealth-led Redress Scheme;
- an out of court settlement through an established settlement process; or
- a court claim (by way of a common law civil claim).
However, because of the broad and unclear language used in parts of the policy guidelines (the National Redress Scheme for Institutional Child Abuse Assessment Framework 2018), survivors are often left in the dark as to their claimable entitlements. This means that survivors cannot receive clear advice on which legal path is best suited to their circumstances.
If survivors fail to qualify for the $50,000 extreme circumstances compensation, the maximum payment they can obtain is reduced to $100,000. Whether this extreme circumstances abuse top-up compensation is likely to be paid to an applicant under the Redress Scheme will often mean the difference between choosing to pursue a redress claim or taking a case to court.
What are “extreme circumstances”? Good question.
The Government’s own policy guidelines do not define “extreme circumstances”.
In fact, the entire assessment framework is missing from the legislation, which is called the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (‘the Act’).
The policy guidelines are nebulous and subject to interpretation by those administering the Redress Scheme, which is hardly desirable, and which leads to inconsistencies and uncertainties.
For example, according to the guidelines, survivors will only be entitled to the extreme circumstances compensation if the abuse was penetrative abuse, meaning:
“...if any of that abuse involved penetration of the person.”.
What also needs to be taken into account for the abuse to amount to extreme circumstances according to the guidelines is:
a. whether the person was institutionally vulnerable; and
b. whether there was related nonsexual abuse of the person in circumstances where it would be “reasonable to conclude that the sexual abuse was so egregious, long-term or disabling to the person as to be particularly severe”.
The guidelines then go on to define “institutionally vulnerable” as follows:
A person is ‘institutionally vulnerable” if they have suffered sexual abuse and if the having regard to the following matters relating to the responsible institution for the abuse and the time of the abuse, it would be reasonable to conclude that the person’s living arrangements at the time increased the risk of sexual abuse of the person occurring:
(a) whether the person lived in accommodation provided by the institution;
(b) whether the institution was responsible for the day-to-day care or custody of the
(c) whether the person had access to relatives or friends who were not in the day-to-day
care or custody of the institution;
(d) whether the person was reasonably able to leave the day-to-day care or custody of the
(e) whether the person was reasonably able to leave the place where the activities of the institution took place.
The problem is that, while the guidelines set out factors against which “extreme circumstances” will be assessed, they do not confirm that if those factors are all present the maximum compensation will be paid. The discretion still exists for a bureaucrat to deny a survivor the extreme circumstances compensation.
The problem with the ‘factors’ in the policy guidelines
To make matters more indecipherable, the requirement of “related non-sexual abuse” seems superfluous when you consider the definitions offered by the Act and policy guidelines.
The Act defines “non-sexual abuse” as including “physical abuse, psychological abuse and neglect”. For it to be related non-sexual abuse, the participating institution must be responsible for both the sexual abuse and the non-sexual abuse of the survivor.
In our vast experience with survivors, sexual abuse is inevitably accompanied by psychological abuse and the institution is almost always responsible for both. Considering this, one would reasonably conclude that the related non-sexual abuse factors are almost always fulfilled in cases of child sexual abuse.
Our lawyers have also found that sexual abuse, whether it includes penetrative abuse or whether there is related non-sexual abuse, results in long-term disabling effects for an individual. The very definition of “egregious” that being “outstandingly bad or shocking” surely applies to all circumstances of child sexual abuse.
Will I qualify for the extreme circumstances compensation?
The situation remains unclear.
Our sexual abuse lawyers have been seeking clarification from those responsible for managing the Scheme, under what circumstances compensation will be paid under the category of “extreme circumstances”?
Our questions have been put to delegates of what is called the Independent Decision Maker (‘IDM’) of the Scheme.
We have tried to clarify whether it is a prerequisite to obtaining extreme circumstances compensation that a person be institutionally vulnerable and have suffered related non-sexual abuse. Or whether there are circumstances where a person may not be both institutionally vulnerable and have suffered related non-sexual abuse but the abuse still be seen as “egregious”?
The response we received was vague, at best.
Essentially it seems that the IDM has discretion in applying the definition of “extreme circumstances”, and that while the IDM may take into account the factors listed in the guidelines, they will also consider the person’s overall experience and whether different institutions are responsible for the abuse.
It has become clear in our communications with IDM delegates that there exist additional criteria or factors which the IDMs may take into account in assessing extreme circumstances. These criteria are available neither to the public nor to the survivor.
This flies in the face of the purpose of the scheme, which was to create a transparent, simple and consistent process for survivors to access the redress they deserve.
Where does that leave survivors in relation to serious abuse?
Although the Redress Scheme has and will assist some individuals who face significant difficulties pursuing a common law claim, it is fraught with uncertainty and seriously lacks transparency.
Further, the Scheme, which was initially set up to offer faster redress to survivors of abuse, is currently bogged by wait times of in excess of a year.
According to the Commonwealth Department of Social Services, only 5% of applications to the Redress Scheme have been processed within the 12 months that the Redress Scheme has been in operation. This means that, out of more than 4,000 applications, only 215 payments have been processed.
What were once considered teething issues now seem to be entrenched features of the scheme.