for anyone considering applying for the national redress scheme, we can provide legal advice about your options.
Arising from the recommendations of the Royal Commission into Institutional Responses to Child Sex Abuse the National Redress Scheme will commence on 1 July.
At Donaldson Law we believe it is vital that anyone considering applying for the scheme get legal advice about their options before doing so.
what is the national redress scheme?
The Redress Scheme is a government program, being established to provide support to people who were sexually abused as children while in the care of an institution. The Scheme starts on 1 July 2018, and will run for 10 years.
what is available under the scheme?
The Redress Scheme can provide three things:
- Access to psychological counselling.
- A direct personal response – such as an apology from the responsible institution for people who want it.
- A monetary payment.
Payments will be assessed on a case-by-case basis, reflecting the severity and impact of the abuse experienced with a maximum of $150,000. The average payment is expected to be $76,000, and the minimum payment is nil.
Redress is not compensation – it is about acknowledging the harm caused, but it does not compensate survivors for their losses. The Redress Scheme is an alternative to getting compensation through the courts or through a collaborative negotiation with the institution – you can do one or the other, but not both.
who will be eligible to apply for redress under the scheme?
There are rules about who can apply.
Applications are limited to one per person, but this can include multiple episodes of sexual abuse and related non-sexual abuse suffered at multiple institutions.
The type of abuse:
- It must include sexual abuse.
- It may also include related non-sexual abuse.
- An institution must be responsible for the abuse. The Scheme doesn’t cover non-institutional abuse, such as by a family member.
- The institution must be satisfied on a “reasonable likelihood” test that the abuse occurred.
Where and when it happened:
- The abuse must have happened when the person was aged under 18.
- It must have happened before 1 July 2018.
- The institution or organisation responsible for the abuse must have joined the Redress Scheme. All Australian State Governments have opted in, as have YMCA, Scouts Australia, the Catholic Church, the Salvation Army, the Uniting Church and the Anglican Church.
A person’s life now:
- The person applying must be an Australian citizen or permanent resident.
- A person who has been sentenced to 5 years or more in gaol in Australia or overseas may still apply, but the application process will be different.
- If the person applying is currently in gaol, they may not apply to the scheme until their release, unless there are exceptional circumstances.
- Any prior payments made by a participating institution in relation to the abuse will be taken into account and deducted from any amount payable under the redress scheme if they were the result of an out of court settlement, or a payment from another redress scheme or victim of crime scheme.
- A prior payment would not prevent survivors who would otherwise be eligible for a redress payment to get a “top-up” payment if they have previously signed a deed of release for a low amount of compensation/redress. Whether they would be eligible for a further redress payment would be assessed on the circumstances of their application, taking into account the prior payment.
- If there has been a prior payment made by a participating institution in relation to the abuse as the result of a court case the applicant will not be able to apply under the scheme.
What will the application process be?
From 1 July 2018 eligible survivors will be able to apply for redress, either through a paper form or an online platform. The Scheme is likely to be run by the Department of Social Services (Centrelink).
It is not necessary for a survivor to engage a private lawyer to represent them in a redress application, unless they choose to.
However, we strongly urge people to obtain legal advice before applying for redress. This is because obtaining redress will mean that the survivor will give away their common law rights. In some cases, redress will be the best option, but we strongly urge survivors to receive advice first on whether they would receive more compensation through a common law claim.
limitations of the redress scheme
Redress may be a good option for some abuse survivors to seek some form of justice for what they have experienced. However, the Scheme has significant limitations, and many abuse survivors would be better served by bringing a common law claim for damages, and only accessing the scheme as a last resort.
Some abuse-survivors will not be able to access the scheme:
Survivors of abuse in non-government institutions, or institutions not run by the institutions which have opted into the scheme will not have access to the national redress scheme.
Applicants must be an Australian citizen or Australian permanent resident, although the rules may provide for other persons to apply, such as former child migrants who no longer reside in Australia or children abused in Australian institutional settings outside Australia. Also, persons convicted of certain offences, or sentenced to prison terms of five years or more for crimes such as serious drug, homicide or fraud offences will be ineligible.
The Scheme has capped redress payments:
Redress payments through the scheme will be assessed on a case-by-case basis, reflecting the severity and impact of the abuse experienced with a maximum of $150,000. However, the average payment is likely to be $76,000, and the minimum payment is nil. So although there is potential for payments up to $150,000, it is possible, even likely, that most applicants would receive much less than that.
Previous redress or compensation payments are taken into account when deciding whether a further redress payment should be made.
Survivors must sign away their rights to common law compensation:
The Redress Scheme is an alternative to getting compensation through the courts (or through a collaborative process outside of court). A person who accepts an offer of redress must release the institution from future civil liability for the abuse and related non-sexual abuse.
Therefore, if you apply and receive a redress payment, you will not ever be able to seek common law compensation for the same abuse. In many cases, common law compensation would have been higher than the amount of a redress payment.
The Scheme only covers survivors of childhood sexual abuse, not physical or psychological abuse:
Survivors of childhood abuse which was not sexual in nature would not be eligible to seek redress, although non-sexual abuse in connection with the child sexual abuse will be taken into consideration as an aggravating factor.
No external appeal process:
If a survivor is unhappy with a redress decision such as the amount of redress they have been offered, reviews of decisions made under the Redress Scheme are limited to internal review. Given that the applicant will be foregoing their rights to pursue a common law claim by receiving redress, they would want to be satisfied that they have received the best offer they can under the terms of the redress scheme.
No allowance for payment of legal costs:
Knowmore is an organisation which will be able to assist claimants free of charge to prepare and submit redress applications, but they will not generally be able to provide comprehensive legal advice about all of a survivors options for redress and/or compensation.
If a survivor wishes to engage a private lawyer to advise them of their rights and legal ramifications of pursuing a redress claim, and to ensure they are making the best decision for their particular circumstances, there is unlikely to be any allowance for payment of those legal costs. Survivors will therefore need to pay the legal fees presumably from any redress payment that they receive.
Given the success Donaldson Law has had in recent years in obtaining significant common law damages for many abuse survivors, through a collaborative negotiating process directly with institutions, we consider that the redress scheme is a good option for survivors who would otherwise not have good prospects of seeking common law damages.
But, we strongly urge abuse survivors to seek legal advice first about whether or not a common law claim would be a better option for them. Contact us for a free initial consultation.
In order to give you the best legal advice, we need to hear your story. We realise it is important that you feel comfortable sharing your story. We are happy to meet with you at a place and time suitable for you. We can meet face to face, by Skype or telephone. There will be no charge for the initial consultation if you decide not to proceed with a claim.