THE Australian Lawyers Alliance (ALA) says it is "extremely disappointed" by the Federal Government's rejection of a national compensation scheme for victims of institutional child sexual assault.
This follows a "troubling" submission by the government to the Royal Commission into Institutional Responses to Child Sexual Abuse which criticises the Royal Commission's proposed $4.3 billion national redress scheme.
According to ALA, the government stated "the institutions in which child sexual abuse occurred should bear responsibility for providing redress".
Spokesperson for ALA Dr Andrew Morrison SC (pictured) disagrees, saying the government took responsibility for setting up the inquiry and should assume at least some responsibility for damages.
"I think it is an extremely disappointing response from the Commonwealth Government, particularly given that the response ignores the fact that the government has some responsibility for some institutions itself," says Morrison.
"A redress scheme is important for recognition of what these victims went through. These victims have lost the opportunity for a decent lifestyle, a career and a family, and financial compensation goes somewhat to that - it is an important step for different reasons for different people."
Morrison says he expects the government will backflip on this submission and describes it as a "very surprising initial response".
"I would imagine it came directly form one minister because I would have thought that there would have been an outcry amongst members of the Coalition had they known that this was to occur," he says.
"I expect there will be those sitting in Cabinet who will be very unhappy with such an uncooperative, unhelpful response and I hope on reflection and at a higher level, a very different approach might be taken."
ALA adds that the government's submission offered no solution to how institutions should bear responsibility for providing redress to survivors of abuse and says there are many complexities and barriers preventing proper and timely compensation.
This includes nation-wide consistency around limitation periods and incorporation of entities of law - two areas which the government did not address in its submission.
"It is not primarily a matter of money for the Commonwealth, it is a matter of the Commonwealth doing its job to coordinate a national response," says Morrison.
"The Government can't walk away from this entirely and, more particularly, the Commonwealth has a responsibility to try and pull together the national response and not simply leave it to the states which are extremely divergent in the way they have been dealing with these issues in the past."
NSW and Victoria have begun the process of addressing limitation periods that block survivors from seeking compensation.
"Your entitlement shouldn't depend upon where you make your claim. Your rights should be the same throughout Australia," says Morrison.
"If NSW and Victoria go down the same root, then I would be optimistic that the other states, preferably with pressure form the Commonwealth, will fall into line."
In Queensland, the Project Axis survey found that, of 212 adult survivors, more than half took more than 20 years to disclose.
Where the perpetrator is a relative, research shows an even more prolonged process. A Criminal Justice Commission analysis of Queensland Police Service data found that of 3721 reported offences committed by relatives:
- 25.5 per cent of survivors took 1-5 years to report the acts;
- 9.7 per cent took 5-10 years;
- 18.2 per cent took 10-20 years, and
- 14.2 per cent took more than 20 years.
Morrision adds there needs to be a scheme in place to combat those seeking compensation from institutions that no longer exist.
"The Commonwealth needs to become involved, again, not so much in respect to money, but in respect of assisting with a scheme to impose a levy on all institutions which will include some provision for those institutions that can no longer be sued," says Morrison.
"A lot of institutions have indicated that they will cooperate with this, but obviously not all will and leadership is required - now is the time for the Commonwealth to step forward, not to wash its hands of the Royal Commission, which was commenced on an all-party basis with full support from those in the Coalition."
Bravehearts, an organisation that advocates for the rights of child sexual assault victims, agrees with ALA and is calling for the standard of proof for a national redress scheme to include a 'reasonable likelihood' test to satisfy any award of compensation.
Bravehearts Royal Commission director Monique Scattini (pictured right) says the civil litigation standard is the 'balance of probabilities' which is a higher test and difficult to impose in a redress scheme situation as it creates additional cost and administration and the necessity for contested hearings.
"How do you determine a case on the 'balance of probabilities' if the offender is deceased or the particular Institution no longer has any records which will be true of a number of the claims that will come before a national redress scheme to be considered," says Scattini.
"It is Bravehearts position that it shouldn't be a balance of probabilities and the civil test it should be a lower test to reflect the lower awards.
"The scheme is not attempting to reflect common law damages and doesn't intend to allow for rebutting or testing of the applicant's allegations or contested hearings."
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