Abuse Compensation Priority for Commission

Daily Mail
January 22, 2015

http://www.dailymail.co.uk/wires/aap/article-2922629/Abuse-compensation-priority-commission.html

When Western Australia halved the compensation payout for children abused in state care Premier Colin Barnett received half a Christmas card from a survivor.

It was an ironic "thank you" on behalf of thousands of people still suffering the effects of what happened to them as children.

Next week the Royal Commission into Institutional Responses to Child Sexual Abuse is expected to reveal its thinking on how people should be compensated for physical, sexual and psychological damage inflicted in organisations where children should have been safe.

The commission is prioritising redress because many abuse survivors are old and ageing.

A public hearing in March will follow the commission's consultation paper next week and final recommendations will go to the federal government in June-July.

A lot of people are anxiously awaiting the consultation paper - and they're not all abuse survivors.

Many of those who left institutional care want an apology and enough money to get their teeth fixed or at least cover their funerals. Dental work is needed because in the 1960s and `70s it was common practice in government-run homes to extract every tooth - some survivors allege it was done as a punishment.

The commission's report will also attract broader interest from those representing institutions that failed to protect children, or put an institution's standing ahead of the welfare of abuse victims.

Institutions who've fronted the commission face the prospect to having to make significant restitution.

It's likely the Australian royal commission will lean toward a national redress scheme.

But who will pay to set up and manage it are open questions and it will a complicated task to set up a unified scheme across all states and territories.

As well, there are legal and political complexities, and myriad vested interests.

When the commission published a redress issues paper last June it received 86 submissions - almost double what it normally gets.

The most detailed submission came from the Truth, Justice and Healing Council (TJHC) representing the Catholic Church.

The church has been in the commission spotlight many times for its shoddy dealings with abuse victims and for its historical penchant to protecting criminal clergy.

It now appears willing to atone for past failings.

Council CEO Francis Sullivan says the Australian church favours a generous national redress scheme that is independently administered.

By generous, he means six-figure sums. In Ireland, the highest payout granted by the Redress Board established by the Ryan Commission was 375,000 euro ($536,000).

The council supports a mandatory scheme funded by the institutions that would administered or managed by governments with independent assessors.

It believes financial redress should be capped, and the acceptance of an offer would rule out future civil action. Caps would be determined by reference to community standards.

The council isn't alone in this approach.

However, Australian Lawyers Alliance (ALA) spokesman Andrew Morrison SC says the TJHC is being disingenuous.

"They (the Catholic Church) want to be part of a government scheme knowing full well that the governments will want major caps on compensation," he said.

"If you create a scheme that sweeps up everyone, the state governments and the territories are going to fiercely resist having to pay out money," he says.

Evidence supports this - the WA redress scheme was slashed from $80,000 to $45,000 and NSW, which does not have a specific scheme for abuse victims, offers crime victims just $15,000.

State-run schemes can also be subject to political vagaries; the cut in WA followed a change of government.

But Sullivan says it's time attorneys-general and treasurers started applying moral leadership to the issue.

"Governments also need to be held to account for what went on in their institutions just like everyone holds us to account," he said.

The ALA would prefer to see all abuse victims getting easier access to the courts.

Dr Morrison acted for John Ellis in his landmark case against Catholic Cardinal George Pell and the Trustees of the Sydney Diocese which cemented the precedent known as the Ellis defence - which holds a trust cannot be held liable for the criminal activity of its clergy.

He says court access for victims would be easier if the Catholic Church stopped using that defence.

But it's not only the Ellis defence that makes taking court action difficult for victims of abuse.

The term "legal abuse" has now entered the commission's lexicon after a number of hearings which exposed the behaviour of some lawyers for institutions defending claims.

A redress scheme would be simpler, less traumatic and not require the legal level of proof from victims.

In October, commission chair Justice Peter McClellan addressed a law conference and forewarned changes to criminal and civil law for abuse cases would be recommended.

He told the story of Alan (not his real name), who was abused by a scout leader who preyed on children.

Years later Alan went to police. But they were slow to act, so Alan went to the abuser's home and bashed him.

For this, he was sentenced to three months in prison.

The abuser received an eight months suspended sentence and was required to pay a victims-of-crime compensation levy of $450 to the Crown.

Alan told the commissioner: "Work that out and stay sober. That's the justice system."