Fixing the National Redress Scheme

By Judy Courtin
Saturday Paper
March 23, 2019

https://www.thesaturdaypaper.com.au/opinion/topic/2019/03/23/fixing-the-national-redress-scheme/15532596007880

Although I have worked with victims of institutional abuse and their families for more than 12 years, initially through my doctoral research into sexual assault and the Catholic Church and more recently as a lawyer, I could never have imagined the fall of George Pell. He was always untouchable – as archbishop, as the architect of the Melbourne Response, then as a cardinal. That is, he was Australia’s most powerful Catholic, perhaps ever.

The toppling of a senior Catholic cardinal for child sexual assault no doubt deserves media attention. But we cannot let the news itself suck the oxygen from other critical issues facing survivors. Namely, the uphill battle they continue to face in seeking fair redress for the abuses perpetrated against them.

Of course, these lion-hearted victims and their families have fought and won before. Without them, we would not have had the Victorian parliamentary inquiry and the Royal Commission into Institutional Responses to Child Sexual Abuse, from which vital legal and other reforms have flowed.

There are two pivotal issues that must be urgently addressed. First, the National Redress Scheme for victims of institutional abuse, which was established in July 2018. It is reprehensible and must be changed.

Second, many thousands of victims have been legally hamstrung by the church and other institutions through the widespread use of so-called deeds of release. They were forced to sign away all their future legal rights when, over the past 25-plus years, they were paid a pittance from the offending institution.

They were cornered into this situation because they were unable to take institutions to court for the harm they suffered as children.

On Friday, I accompanied a group of survivors – all of whom have signed deeds of release – as they met an adviser to Victorian Attorney-General Jill Hennessy to advocate a legislative change that would allow them to sue institutions, including the Catholic Church, in civil court.

In 1954, six-year-old Hans (not his real name), his brother and parents fled the devastation of postwar Austria and settled in Tasmania. Dropped into a foreign culture and with a new language, Hans’s parents entrusted their young sons into the care of the Salesians of Don Bosco at Savio College in the Tasmanian town of Glenorchy, where they boarded for three years.

By their own description, the Salesians, one of the largest Catholic orders in the world, are “dedicated to the service of the young, especially the disadvantaged and marginalised”.

It took Hans decades to talk about the hideous sex abuses committed by a Salesian priest who was his piano teacher. He was also sexually abused by his dormitory master. Hans, propelled into hypervigilance, suffered fear, terror and anxiety. As a frightened 10-year-old, his passion for the piano was crushed and he has been unable to play since. He has suffered from post-traumatic stress disorder, anxiety and nightmares. He has attempted suicide. Depression has remained his constant companion.

In 2013, the provincial of the Salesians pledged that: “The welfare, both in the present and the future, of victims comes first.” The Salesians, he said, “demonstrate full honesty, transparency and integrity and … endeavour to do anything [they] could for victims” and not put the welfare of the Salesian priests and brothers before the welfare of the victims.

In November 2016, at the age of 69, Hans made a pact to break his lifelong silence and, despite his fears, he approached the Salesians. Not once, but twice, the Salesians rejected Hans’s pleas. He was fobbed off to the Redress Scheme, even though Savio College had not joined up. It still hasn’t.

There has been no acknowledgment, no apology, no support and no payment to Hans. Instead, there has been rejection, coldness and brutal indifference. His depression and suicidal ideation have worsened.

Even if Hans did apply to the scheme, though, he would face yet another bout of trauma. Its architects are Australia’s federal, state and territory governments, as well as key non-government institutions of which the Catholic Church is the largest and most powerful.

There is a shameless disregard for the trauma-informed and evidence-based recommendations of the royal commission. The National Redress Scheme does not deliver justice. It retraumatises victims and is inconsistent with the objects and principles of the legislation.

It was designed for those survivors without a viable claim in the courts and those who don’t want to suffer through an arduous legal process.

With recent legislative reforms, which vary from state to state, it is now possible to sue institutions. Victims considering the scheme should first obtain independent legal advice to determine the status of their claim. First established with the royal commission, knowmore is a free independent legal service that can provide such initial advice.

The National Redress Scheme demands overhauling.

Without explanation, the maximum cap of $200,000, recommended by the royal commission, was reduced to $150,000. I argue for a much higher cap.

Contrary to the royal commission’s recommendation of a minimum payment of $10,000, the scheme does not prescribe a minimum. Victims could be awarded as little as $1000.

The royal commission produced a carefully considered matrix to guide redress determinations consisting of 100 points – 40 points for the severity of the abuse, 40 points for the severity of the impacts and 20 points towards circumstances, such as whether the child was in an orphanage.

This sagacious recommendation was recklessly ditched with an assessment framework dictated purely by a hierarchy of abuse. It dismisses the severity of impacts on a survivor in favour of creating absurd, unintelligent and antiquated distinctions between “types” of sexual abuse.

The current scheme has three levels of abuse. Level 1: Children who suffered penetrative abuse are the only survivors who can apply for the maximum payment of $150,000. Even in these cases, the amount reduces significantly to $100,000 unless there were additional “extreme circumstances”. Level 2: For children whose abuse was “only” contact abuse – no penetration – the maximum payment is $50,000. Level 3: Children who suffered “exposure abuse”, which does not involve physical contact, can receive a maximum redress payment of only $20,000.

Consider a child in an orphanage who was sexually, psychologically and physically assaulted by a priest weekly for five years. This victim has attempted suicide several times, suffered alcohol and drug abuse, could not study or work and could not form trusting or intimate relationships. Because the priest did not penetrate this child, the maximum amount they can apply for under the redress scheme is $50,000.

The scheme contends that the crimes committed against this victim could never be considered “particularly severe” or “egregious, long-term and disabling”. This betrays a fundamental lack of understanding of how abuse impacts survivors.

There is no transparency with the current scheme. Decision-makers are assisted by policy guidelines, which, if used or disclosed by an unauthorised person, can attract up to two years’ imprisonment.

It fosters discrimination by excluding non-citizens and non-permanent residents, such as child victims in detention. Also, victims who have had serious criminal convictions are excluded, despite the documented potential relationship between child sexual abuse and subsequent criminal offending.

Suicide looms large for victims. The royal commission, honouring the evidence, recommended funding of counselling as needed over a lifetime. What we have is an arbitrary fixed amount based on the level of the abuse. If there were no penetration, a survivor could receive as few as four sessions. The maximum number is about 25.

There is no access to external review of decisions, scorning the royal commission’s recommendations for survivor-focused, accountable, procedurally fair and transparent redress processes.

The scheme also inflicts pain on victims who previously accepted inadequate payments from the offending institution, the second area of widespread and ruthless injustice, demanding immediate attention.

Up until recently, victims were barred legally from suing an offending institution. The statute of limitations and what was known as the “Ellis” defence were legal defences upon which institutions relied heavily. Instead, these psychiatrically harmed people were inveigled by the institution into accepting profoundly inadequate compensation (for example, $27,000 for three years of sexual assaults) and were forced to sign a legally enforceable deed of release, which prevented them from suing in the future – a “take it or leave it” ultimatum.

The unfettered decision-makers of the institutions ruled with complete discretion the amount they paid the victim. Often nothing was paid. There was no independence and, critically, there was no reviewability of the decisions. Many victims were not legally represented, and coercion and secondary abuse were commonplace.

Queensland and Western Australia have addressed these discriminatory deeds of release by introducing legislation that provides a court with the power and discretion to set aside these deeds if it is “fair and reasonable to do so”. All Australian jurisdictions must immediately follow this lead.

In 1997, George Pell accused victims’ families of spreading gossip about the church. He said: “It’s all gossip until it’s proven in court and I don’t listen to gossip.”

Institutions continue to earmark victims as combatants who are to be fought to the death using the hostile black letter of the law. Tragically, in far too many cases, this is literally so.

Pope Francis said recently: “Those who spend their lives accusing, accusing, accusing [the church] … [are the] friends, cousins and relatives of the devil.” I argue that those who accuse, accuse, accuse victims and their families as the enemy are the ones fraternising with the devil.