In 2013, the Australian government set up a formal inquiry into how institutions had responded to child abuse. Terms of reference were established and 6 Commissioners were appointed chaired by the Honourable Justice Peter McClellan. Their brief was to enquire into institutional responses to allegations and incidents of child sexual abuse and related matters.
The commissioners were directed to focus on the systemic issues, be informed by an understanding of individual cases, and make findings and recommendations to better protect children against sexual abuse and alleviate the impact of abuse on children when it occurs. The Royal Commission conducted public hearings, private sessions and a policy and research programme.
On 15/12/2017, the Royal Commission into Institutional Responses to Child Sexual Abuse presented a final and lengthy report, detailing the culmination of the five-year inquiry.
The Royal Commission’s report included a number of recommendations, which are wide-ranging and far-reaching. Some of these are of specific interest in the context of civil compensation claims:
Advocacy, support and therapeutic treatment services
Volume 9.4 states that the Australian government should establish a “national service to navigate legal processes”. This includes funding a legal advice and referral service for victims and survivors of a child sexual abuse. The service should provide advice about accessing, amending and annotating records from institutions, and options for initiating civil litigation redress processes as required.
Support should include advice, referrals to other legal services for representation and general assistance for people to navigate the legal service system. The Commission recommends that funding and related agreements should require and enable the services to be:
- Trauma informed and have an understanding of institutional child sexual abuse
- Collaborative, available, accessible, acceptable and high quality.
Clearly this recommendation is laudable, well intentioned and entirely appropriate, but will inevitably be determined by funding availability, the sources of which may not yet have been completely thought through.
Religious institutions recommendations
At volume 16 the Commission sets out recommendations to all religious institutions in Australia, but has singled out the Anglican church, the Catholic Church, the Jehovah’s Witness organisation and Jewish institution with specific recommendations.
Redress and civil litigation report recommendations
The report recommends a process for redress providing equal access and treatment for survivors of abuse, in the form of a Redress Scheme. This should include monetary payments, counselling / psychological care as well as a ‘direct personal response’.
A single national redress scheme should be set up by the Australian government, with the next best option “being a redress scheme set up in the relevant state or territory”.
The Redress Scheme but should be funded as much as possible by the institution in which the abuse occurred or if it no longer exists and was part was part of a large are group of institutions, or had successors, those organisations.
Proposed compensation
The Commission explains that the purpose of a monetary payment under redress should be to provide a ‘tangible recognition’ for the seriousness of the hurt and injury suffered by the survivor.
The relevant report provides a great deal of detail as to how the redress scheme will operate. A matrix has been devised which takes into account the severity of the abuse, the impact of it, and “additional elements” which include whether the survivor was in state care at the time of the abuse, whether the applicant experienced other forms of abuse at the same time including physical, emotional abuse or neglect, and whether the applicant was particularly vulnerable at the time.
The Commission recommends that the appropriate level of monetary payments should be between AU$10,000 and £200,000 Australian dollars for the most severe case, with an average payment of AU$65,000.
Clearly no amount of compensation will ever be sufficient to remedy childhood sexual abuse, and tariffs set in any redress scheme will no doubt be vulnerable to challenge and controversy.
No two survivors’ experiences are the same, so blanket tariffs do not easily lend themselves to easy application, or the fairness and justice that survivors deserve.
Trust fund for counselling
It is recommended that a trust fund should be set up to receive funding for counselling and psychological care.
It is clear that the setting up of a redress scheme is not going to be straightforward to achieve.
My experience of representing survivors of abuse in Jersey institutions has made me only too aware of the vulnerabilities and difficulties of an abuse redress scheme.
The time limit obstacle – ‘limitation’
The Commission’s recommendation on the time limit obstacle (also known as ‘limitation’) in civil claims is welcome. It is recommended that legislation to remove any limitation period that applies to a claim for damages brought by a person who has suffered sexual abuse in an institutional context should be introduced.
The time limit obstacle in all such cases should therefore be removed with retrospective effect. State and territory governments should implement these recommendations to remove time limit period as soon as possible.
The Australian Royal Commission is indeed a trail blazer for the Independent Inquiry into Child Sexual Abuse set up by Theresa May in 2015, the Scottish Child Abuse Inquiry, and the Historical Institutional Inquiry (Northern Ireland). It is likely and indeed hoped, that many of the Royal Commission’s recommendations will inform those considered by the similar UK inquiries set up subsequently.
The UK inquires will have the advantage of considering what progress has been made in Australia on the implementation of the Commission’s recommendations.
