The Royal Commission into Institutional Responses to Child Sexual Abuse released its final report on redress and civil litigation earlier this month. The report makes 99 recommendations. It is the commission’s “concluded views”, not an interim report.
The royal commission was set up in January 2013 and is due to hand its final report to the government in December 2017. Outlining a redress framework for survivors was a priority: the report was fast-forwarded more than two years.
How did the report come about?
Civil litigation and redress schemes are two ways that victims can receive monetary payments for institutional abuse. They differ in the evidence required and processes used to prove abuse. Civil litigation has a higher standard of proof, which is tested in court. Redress schemes have a lower standard, which is assessed with guidelines.
Payment amounts from civil litigation are typically higher, but redress schemes are more accessible to larger groups of people and rely less on lawyer time. They also include other elements such as counselling and apologies.
Government redress for institutional abuse is recent. Canada created the first scheme in 1993, then Ireland in 2002, and Australia in 2003. Today, 17 countries and two autonomous states or self-governing territories (Aland and States of Jersey) are responding to institutional abuse with public inquiries, redress schemes, or both. In Australia, government schemes have been carried out in Tasmania, Queensland, Western Australia and South Australia, and by church and charitable organisations.
The commission’s 656-page report is a significant achievement. Although it is sure to invite debate and cause some disappointment, the approach was consultative and evidence-based. Submissions were invited to issues papers on civil litigation, redress, and related topics.
Many roundtables were held with survivor advocacy and support groups, governments, regulators and insurers, church and charitable organisations, and academics. The commission’s private sessions with survivors were a key resource, as were submissions to a consultation paper on redress and civil litigation. That was released in January this year, with public hearings held in March.
The commission sought expert advice from Finity Consulting, whose report I rely upon in presenting data on volume and costs. Finity cautions that it is “not possible [to make estimates] with any certainty”, but some uncertain information is better than none.
Finity estimates 60,000 eligible claimants. Based on my research in Australia, Canada and other countries, this is the highest number of claimants to date in any scheme that uses an individualised assessment of abuse. Canada’s Residential Schools will have, I estimate, 28,000 eligible claimants in its individualised assessment; Ireland’s Redress Board has about 15,600.
In one case, claimant numbers are higher than 60,000, but payments were based on the number of years in an institution, not assessment of abuse.
The challenges for an Australian scheme
The proposed Australian scheme is the most complex to date because of scale, scope and the need to adjust for previous payments. For scale, the commission is calling for a national redress scheme, led by the federal government, to ensure:
… equal access and equal treatment of survivors.
This will pose significant political, legal and budgetary challenges for governments and non-government organisations in a federated country. In addition to a monetary payment, the scheme includes lifetime counselling and psychological care, and a “personal response” to individuals by institutions.
For scope, the scheme covers a broad set of abuse contexts: in closed institutions (residential and detention facilities), in foster care and in community-based settings (schools, clubs, faith-based institutions). The contexts are broad, but redress is limited to sexual abuse only. Adjustments to payments must consider monies received from previous schemes or civil claims to avoid “double dipping”.
Finity estimates that monetary payments will cost A$3.5 billion, assuming an average of $65,000 per eligible claimant, and deducting $400 million for previous payouts. Costs for counselling and administration bring the total redress budget to $4.01 billion, which will be spent over ten years.
Significant challenges and unknowns lie ahead. Who will pay? Will the federal government commit to a national scheme? Can the commission’s ambitious timeline be met?
Contributions by governments (state and federal) to the total redress budget are estimated at 31-47%; the latter figure assumes they are funders of last resort (this would occur when institutions no longer exist or have no assets). New South Wales and Victoria have expressed interest in a national scheme, as has the Catholic Church. Having the two states on board is crucial because their combined state and federal contributions are 67-70% of the government share of the redress budget.
The commission wants the federal government to:
… determine and announce by the end of 2015 that it is willing to establish a single national redress scheme.
In March, the Abbott government did not support a national scheme, saying it was too complex and costly. If the Turnbull government does support it, then 2016 will see intense negotiations among government and non-government organisations across the country, if it is to achieve the commission’s proposed date of July 1, 2017, to roll out the scheme.
If the government makes no announcement, the commission says that each state and territory should engage in negotiations to establish their own scheme.
The report makes a convincing case for a national scheme: it is more prudent in terms of economies of scale, and fairer and more equitable to survivors.