Private Roundtable on Redress and Civil Litigation

The Centre for Excellence in Child and Family Welfare (the Centre) has provided feedback to the Royal Commission into institutional responses to child sexual abuse through submissions on its issues papers. The Royal Commission releases issues papers on topics of interest to its work and recommendations, to allow organisations and individuals an opportunity to provide their opinions and expertise in an open forum. The Centre has provided submissions on the following issues papers:

1. Working with Children Check;
2. Child Safe Institutions;
3. Preventing sexual abuse of children in out of home care;
4. Civil litigation;
5. Redress schemes; and
6. Statutory victims of crime compensation schemes.

In September 2014 the Royal Commission invited the Centre to a private roundtable on redress and civil litigation. Private roundtables were held with invited organisations to allow for direct and focussed consultations on key structural issues. Public roundtables on redress and civil litigation are planned for October 2014. To date, there have been roundtables on Working with Children Checks and preventing child sexual abuse in out of home care.

The Royal Commission distributed a discussion paper prior to invited participants of the roundtable to guide consultation on key themes on redress and civil litigation. In brief terms, the discussion paper included the following key themes:

• Determining whether redress or civil litigation is the best approach for past and future abuse
• Options for redress schemes:
  1. Recommend minimum standards for institutional redress
  2. External verification and assessment scheme
  3. State and Territory redress schemes
  4. National redress scheme.
• Options for civil litigation reforms: removing limitation periods; establishing revised limitation periods; duty or liability of institutions where they have or have not taken reasonable care to prevent child sexual abuse; identifying the correct defendant.

The discussion paper included the following key matters for consideration:

• Determining whether redress schemes need to be legislated
• Insurance coverage for institutions
• Organisational governance structures
• Funding for redress schemes
• Other considerations in establishing redress schemes: size of institutions; where an institution does not exist; previous payments under other redress schemes.

The Centre’s approach to responding to the Royal Commission’s issues paper is to advocate for the safety of children in institutional care. This can pose some challenges as agreement on the most suitable scheme and legislative amendments will not resolve the issues many victims have and do face in seeking redress but also, may not be beneficial to organisations and vice versa. For example, the Centre advocated for a national redress scheme, like other organisations did such as Berry St, and this may potentially have financial implications for the organisations, particularly smaller organisations. Further, the removal of limitation periods in civil litigation may result in an increase in the number of claims against organisations that may be financially challenging. On the other hand, it is well documented that victims can take many years before they are able to disclose child sexual abuse, well beyond legislated limitation periods which would leave them with no redress for the crimes committed against them as children that have had a lasting effect on their life. 

The potential implications for institutions, particularly smaller organisations in redress and civil litigation are as follows:

• The cost of insurance for organisations for claims of sexual abuse.
• The cost of addressing governance, entity, cooperation structures to ensure that institutions have insurance and to identify the organisation/entity to enable applications for redress or civil litigation
• The proposed extension of limitations periods in civil litigation through legislative amendment could have financial implications for organisations as it could allow for proceedings to occur that are currently limited. It may also increase the number of claims made against an organisation.
• The proposed option of legislating redress schemes may include all abuse types or child sexual abuse and potentially increase claims thus financial implications for organisations.
• The funding of redress schemes by institutions and government may have financial implications particularly those who have a number of claims made against them, smaller organisations and organisations that have not had claims made against them previously.
• Proposal of a legislative amendment to clarify organisations duty and liability for child sexual abuse by an employee, volunteer or contractor/visitor. There is consideration if this should include circumstances where there has been reasonable care taken to prevent child sexual abuse by institutions.

The Royal Commission will publish a paper seeking comments on redress schemes and civil litigation in January 2015. Community service organisations should make submissions to have further input into any recommended scheme or legislative amendment as the implications will be significant for all organisations/institutions, large and small but also for past victims of child sexual abuse and future victims.  The Centre advocates that all organisations ensure they have the appropriate child safe policies in place to prevent any abuse of children.

The Centre will inform you once the discussion paper on redress and civil litigation is released by the Royal Commission to seek your views in preparing the Centre’s response. In the meantime please do not hesitate to contact Mary Kyrios if you wish to discuss the work of the Royal Commission.