Sexual and Institutional abuse 30 January 2015


Earlier today in a public hearing Justice McLellan read a statement outlining some preliminary comments about redress for victims of institutional abuse. The Royal Commission (the Commission) also released a consultation paper on redress to which Angela Sdrinis Legal has been invited to respond.


The head of the Commission indicated that there was universal agreement between governments and major institutions that justice for victims includes appropriate redress. However, Justice McLellan said that in considering this issue it was important that remedies available at civil law should also be taken into account and he referred to some major differences in the development of the common law in this area between this country and Canada and the UK where as a result of various decisions, victims of historical abuse can more readily access justice in the civil courts.


Justice McLellan said that having considered all the material before it, the Commission had formed the view that effective redress includes 3 elements:


a personal response from the institution;the availability of counselling on an ongoing basis and for life if necessary; andmonetary compensation.


He also said that any scheme must be independent and must treat claimants equally regardless of the institution. Justice McLellan also noted that there was wide ranging support for a national scheme sponsored by the Commonwealth Government to which institutions would be required to contribute. He noted however that others support state schemes or individual schemes run by institutions to which common principles would apply.


Justice McLellan also spoke about the cost of a national redress scheme for victims of historical abuse. He said that in determining the amounts payable in any scheme various assumptions must be made with respect to the number of survivors, the amount of counselling required (and the resultant cost) and the amount of any monetary compensation. Actuaries are assisting the Commission in doing some modelling with an actuarial report available on the Commission website.  Justice McLellan said that initial modelling by actuaries has estimated the number of survivors nationally i.e. the number of potential claimants at 65,000 people.


Justice McLellan spoke of the cost of a compensation scheme where there were so many potential claimants. Justice McLellan noted that some victims will need lifelong psychological care which would come at a significant cost. He also noted that some services already exist. He said however, that existing services are not adequate with one option being to significantly expand current public services. Another option is to establish a trust fund that would operate as part of the redress scheme. Justice McLellan was clear that any new services should supplement existing services.


As to the issue of appropriate monetary compensation, the Commission was considering many factors including fairness and affordability.  Justice McLellan spoke of caps on compensation of $100,000, $150,000 or $200,000 as having been considered.  Justice McLellan also pointed out that the cost of the scheme was actually not significantly affected by the cap but more so by how the claims would be spread. He also referred to modelling whereby compensation would be weighted based on factors including the severity of abuse. This reference seems to be based on the Irish Redress Scheme which the Commission has paid close attention to. Justice McLellan also indicated that payments already made would have to be offset against any future award, clearly leaving the door open for revisited settlements and “top ups”.


Justice McLellan also spoke of what are huge figures in terms of the potential costs and he indicated that if 65,000 claimants received an average payment of $65000, the total cost would be $4.378 billion. Whilst this is a lot of money, when the wealth of some of the institutions which appear to have allowed children to be systemically abused in their care is considered, the capacity to pay is certainly there.  Justice McLellan also noted that spread over a period of 10 years, the max cost of redress in any one year would be $650 million nationally.


Justice McLellan also suggested that in addition to redress, civil remedies should continue to be available and he referred to a number of barriers that victims of historical abuse face including the statute of limitations and proving negligence in a clear indication that the Commission would also be considering the need for legislative change in this area so that access to justice in the civil courts will become more readily available.


Angela Sdrinis Legal is taking registrations for potential redress claims. We are also re-opening claims in settled matters. We encourage anyone who may have been a victim of institutional abuse to register on our website or to contact our office directly.

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