Published: 27 May 2021
Author: Penny Savidis
Victorian law unfairly treats State child abuse survivors: we tell the A-G
RCT Law has written to the Victorian Attorney-General recently seeking reform of certain provisions of the Corrections Act 1986 (Vic) which we believe have the unintended consequence of unfairly disadvantaging survivors of historical child abuse.
Part 9C of the Corrections Act 1986 (Vic) (‘the Corrections Act”) provides for the quarantining of all or part of a civil award of damages (of over $10,000) to a prisoner for at least 12 months in respect of claims made against the State of Victoria. Any agreement between the State and a prisoner to settle a claim has no effect until being approved by a court. Any damages awarded are paid into a prisoner compensation quarantine fund pending the Secretary to the Department of Justice and Community Safety publishing a notice to victims of criminal acts of the prisoner to seek further information and potentially claim upon the fund. During the period of quarantining, the prisoner is unable to access the funds.
RCT Law considers that Part 9C of the Corrections Act has the presumably unintended effect of quarantining prisoner compensation where the prisoners in question are survivors of historical child abuse. In some situations, our clients suffered institutional abuse in State-run facilities such as Turana and Baltara, and then suffered further abuse as children in prison settings.
Many prisoners themselves victims
Many of our clients who were in State care subsequently committed criminal offences and were sent to penal settings when under the age of 18. Children as young as 17 years old were then brutally abused in prison settings, including being raped, at Pentridge, having being sent there as very young offenders. At times they were sent to Pentridge by Ministerial order when they ought to have been serving a Youth Training Centre Order.
These young offenders were among society's most vulnerable and disadvantaged, sent into the care of the State for protection – as wards of the State and under Youth Training Centre and Supervision Orders. They are now some of the most psychologically damaged of our clients by reason of the abuse they endured.
When claims involving abuse in prison and non-prison settings settle, it is necessary to apportion the settlement sum so that it comprises a) a component for the payment of damages for the civil wrong(s) suffered by the abuse survivor when s/he was a prisoner within the meaning of The Act; b) a component for the payment of damages for the civil wrong(s) suffered by the abuse survivor when s/he was not a prisoner; c) a component for the payment of existing and future medical costs; and d) a component for legal costs.
There are further issues for survivors of historical child abuse with settlements subject to Part 9C of the Act, including its retrospective application, delay in payments for abuse survivors and uncertainty regarding the application of the Corrections Act where clients are on remand and then subsequently imprisoned, sometimes years later, in relation to unrelated offences.
We believe it must not have been the intention of the legislature in enacting Part 9C of the Act to quarantine funds of these survivors who suffered horrific child abuse. We have written to the Attorney-General to this effect.