Published: 14 June 2017
Author: Kate Malone
Uncovering common misconceptions about the Royal Commission and Redress
The terms ‘Royal Commission’ and ‘redress’ are common within the institutional abuse sphere but their meanings are often misunderstood. In the course of our institutional abuse practice at Ryan Carlisle Thomas, our solicitors discuss these two important terms with our clients on a daily basis to help clarify the difference between them.
What is the difference between the function of a Royal Commission and a redress scheme? Can the Royal Commission make redress payments? Does telling my story to the Commissioners automatically entitle me to a redress payment?
What is the Royal Commission?
The Royal Commission into Institutional Responses to Child Sexual Abuse was established in January 2013 by the Commonwealth Government. Part of the Royal Commission’s function has been to investigate what institutions and Governments should do to ensure justice for survivors, including through the establishment of a redress scheme.
In September 2015, the Royal Commission made recommendations that a national redress scheme for survivors of institutional child sexual abuse be established. Importantly, a recommendation by the Royal Commission only comes into effect if the Government of the day passes legislation to implement it.
Is the Royal Commission making redress payments?
In a word, no. However, it has influenced the implementation of a Commonwealth led compensation scheme. On 4 November 2016, the Commonwealth Minister for Social Services, the Hon Christian Porter MP, announced that the Commonwealth Government will implement a national redress scheme for survivors of institutional child sexual abuse as recommended by the Royal Commission. (It is not yet clear whether other forms of abuse will also be compensable).
The scheme is due to be established in July 2018 and will run for 10 years with an option to extend. It is an ‘opt in’ scheme, with responsible entities being required to voluntarily participate. Notably, the Commonwealth Government did not accept the Royal Commission’s recommendation that the redress scheme have a maximum cap of $200,000, instead opting to cap payments at $150,000. This demonstrates that even where recommendations are made by the Royal Commission, they will not always be implemented by the Government of the day.
Mr Porter’s announcement stated that survivors would potentially have access to a lump sum payment as well as other forms of assistance such as counselling and a direct personal apology from the relevant institution. On the question of who is responsible for funding the redress scheme, Mr Porter was clear that the institution/s that are considered to be responsible for the abuse that a survivor suffered will be responsible for funding the redress payments for that person. This is called a ‘responsible-entity pays’ scheme.
Further, Mr Porter’s announcement indicated that where the Commonwealth Government, or a State Government, is assessed as having shared responsibility with another institution and that other institution either does not exist or does not have the capacity to make payments, the Commonwealth/State Government will be the funder of last resort.
However, if the responsible institution does not exist anymore or does not have the capacity to make payments, and their responsibility is not shared with a Government, then this may create a situation where a survivor does not have access to any form of redress.
Mr Porter stated that this type of situation will be considered by the Independent Advisory Committee that has been established to discuss matters concerning redress.
So whilst the Royal Commission was instrumental in encouraging the establishment of the national redress scheme, it will not be making payments to survivors of abuse.
If I am told that I was accepted within the Royal Commission’s terms of reference, does that mean I am entitled to compensation?
No. The Royal Commission’s terms of reference state that the Commission has the power to inquire into institutional responses to allegations and incidents of child sexual abuse and related matters. The abuse that a survivor suffered must be accepted by the Royal Commission as being within their terms of reference before that survivor can share their story with the Commissioners.
However, if your story is accepted as being within the Royal Commission’s terms of reference, this does not mean that you are necessarily legally entitled to receive compensation for the abuse that was suffered.
Survivors of abuse may be able to pursue compensation for the abuse that they suffered in a variety of ways. For example, a survivor may be able to pursue compensation from the relevant institution/organisation where the abuse occurred or from the perpetrator of the abuse directly if the perpetrator is still alive and has assets. Alternatively survivors may be eligible for compensation from the Victims of Crime Assistance Tribunal.
However, eligibility for these types of compensation is not dependent on your claim being accepted as being within the Royal Commission’s terms of reference.
If you require further information regarding any potential entitlements you may have to compensation, you should contact a member of our institutional abuse team on (03) 9238 7878.
Does the Royal Commission make findings of guilt?
No. The Royal Commission has the power to investigate the experiences of survivors of child sexual abuse in a variety of institutional settings, as well as the response of institutions to complaints of child abuse. The Royal Commission has done this through public hearings, private sessions with survivors, round table discussions with relevant parties and via its research reports.
The Royal Commission has published a number of reports, particularly following its public hearings, where it has made ‘findings.’ Whilst these findings are useful in establishing that the behaviour of the institution in question was negligent, they are not findings of guilt. The only way that a perpetrator of childhood institutional abuse can legally be found guilty of a crime is if the abuse is reported to the police and the perpetrator is successfully prosecuted in court.
Whilst the Royal Commission cannot make findings of guilt, the evidence that has been made public through the Royal Commission’s work has no doubt assisted the police and prosecutors bring successful claims against perpetrators of abuse. The Royal Commission’s most current data indicates that they have made over 2,000 referrals to authorities, including the police, in the course of their work since January 2013.
If you are a survivor of institutional childhood abuse and you wish to report the abuse to the police, we encourage you to contact the SANO Taskforce, a specialised Taskforce charged with investigating historic as well as new allegations of abuse. The SANO Taskforce can be contacted by email at firstname.lastname@example.org or by telephone on 1800 110 007.
If you are a survivor of abuse and you have further questions about the differences between the Royal Commission and redress, we encourage you to contact our office on (03) 9238 7878 and sign up to our redress database where you will receive regular updates on developments in relation to redress and any potential entitlements you may have once the redress scheme is established.