29 June, 2018
The Government of the Commonwealth of Australia has established the National Redress Scheme in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
The Scheme aims to provide redress to persons who were sexually abused as a child whilst in the care of a Commonwealth run organisation. Subject to the passage of legislation, the Scheme is proposed to commence on 1 July 2018 and will operate for ten years.
The Commonwealth has encouraged State and Territory Governments and non-government organisations to 'opt in' to the Scheme. So far, all State and Territory Governments have committed to the Scheme, except Western Australia, which is expected to opt in shortly. A number of non-government organisations, including churches and charities, have also agreed to participate.
A person who applies to participate in the Scheme will be eligible for redress if they were under 18 years of age at the time of the sexual abuse, the abuse occurred before 1 July 2018, and the organisation responsible is a participant in the Scheme. Persons who have already received a court award of damages will not be eligible to seek further redress from the responsible institution through the Scheme.
The Scheme aims to provide redress to survivors of sexual abuse through psychological counselling, a direct personal response from the responsible institution, such as an apology, and a monetary payment which is capped at $150,000 and is to be paid by the responsible institution.
A person who accepts an offer of redress will be required to release the responsible institution from any further liability. It will therefore be necessary for persons to determine whether to apply for redress through the Scheme or pursue a civil claim for damages.
The proposed test to be used to assess claims under the Scheme will be one of "reasonable likelihood". That is, to be entitled to redress, the chance of the sexual abuse occurring as alleged will need to be determined as not "fanciful or remote".
The test of "reasonable likelihood" is a lower threshold than the civil standard of proof that is required to be met if a claim for damages is pursued through the courts. It is therefore anticipated that a person whose damages are unlikely to exceed the maximum monetary payment of $150,000 will seek redress through the Scheme. However, a person who can expect to receive an award of damages in excess of the maximum monetary payment is likely to still pursue their claim through the courts.
Many recent court awards of damages have exceeded the maximum monetary payment available under the Scheme.
When considering this, as well as the abolition of relevant limitation periods in many States and Territories, it is anticipated that we will continue to see an increase in claims arising from historic institutional child sexual abuse.
For further information, please contact:
Lucinda Lyons, Partner, Clyde & Co
Lucinda.Lyons@clydeco.com
