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The child abuse redress scheme – a thumb on the scales of justice

23 September 2019

5:00 AM

23 September 2019

5:00 AM

The National Redress Scheme for victims of institutional child abuse has fallen into ‘the road to hell is paved with good intentions” category. Though the scheme has a noble goal to bring justice and help to those that have suffered past institutional child sexual and related abuse, it does so by putting a fat thumb on the scales of justice, while adopting a menacing attitude toward organisations that deal with young people.

Most Australians would agree that there needed to be a national response to the disturbing issue of the historic sexual abuse of children within government and non-government institutions. The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 was the government’s response to the Royal Commission into Institutional Responses to Child Sexual Abuse.

Royal Commissions play an important role in our system as they can dig deeply into issues, dissect them, expose wrongs, and produce a list of recommendations they believe will help address those wrongs. Unfortunately, governments are placed under enormous pressure politically to adopt all the recommendations, which is where they often fail in protecting broader societal values. The government response was a one size fits all approach, even though there are around 30,000 very diverse organisations that could be asked to participate in the scheme.

The scheme is an existential threat to many small organisations due to the inherent justice imbalance, the financial exposure risk, and the lack of process transparency. Given that many organisations remain hesitant to join, governments are now resorting to subtle coercive measures.

The National Redress Scheme website has a shame list of organisations named in the Royal Commission that haven’t yet indicated they are joining.

Organisations are receiving veiled threats that if they don’t sign up, they won’t receive government funding in the future to support their services.

The joint parliamentary committee stated:

Institutions that refuse to recognise their role in the abuses that occurred and to accept responsibility for their actions should be subject to clear penalties, which could include the suspension of tax concessions and the withdrawal of their charitable status”.

The thumb on the scales of justice is the low standard of proof required by an applicant. It is not “the balance of probabilities” or “beyond reasonable doubt”. Instead, it is way down at “reasonable likelihood”.

This is not unprecedented, the similarly low standard of “plausibility” was set for the Defence Abused Response Taskforce by the former Minister for Defence The rationale was that the normal standards of proof “would be an insurmountable obstacle” to gaining outcomes to as many complainants as possible. As the government, through the DART, controlled the whole thing, the scope, the standards, and the compensation. All costs and false claim payouts were simply passed on to the taxpayer.

The normalisation of a low proof of guilt standard is a deeply disturbing development that undermines the principle of balance and fairness within our justice system. The government is now dictating to thousands of organisations what they must accept as the burden of proof standard, plus the amount of compensation they must pay.

The scheme says, “an institution is primarily responsible for abuse of a person if the institution is solely or primarily responsible for the abuser having contact with the person”. This is a totally unrealistic standard to be held to. Organisations can take all reasonable steps to minimise the risk of exposing children to potential abusers, but having a Working with Children check and other investigative processes in place won’t identify those that have no known abuse history. These people are secretive about their predation – their closest friends probably won’t even know, let alone those they work with.

The following highlights unintended, but catastrophic consequences of the Redress Scheme, when a believable, but largely fictional claim is made against a small organisation.

The applicant puts in a claim and it is assessed as “reasonably likely” to have taken place. The organisation is contacted and given eight weeks to respond with their side of the story. The Independent Decision Maker weighs it all up and rules in favour of the applicant – laying out how much compensation is to be paid, how much for counselling, and what form of apology is expected. The applicant accepts the ruling, though they could have asked for a review of the case seeking more compensation, or even have said no thanks – deciding to take it to court instead, using the information gained through the process.

The very low bar of reasonable likelihood as the standard of proof will logically lead to numerous false claims being compensated. For any small not-for-profit, the financial compensation burden will be challenging enough with most running on tight budgets, but there is a greater existential threat.

A successful false claim against the organisation greatly impacts its current and future financial viability, due to reputational damage hindering its ability to access grants and fundraise for the ongoing important work it does. A falsely targeted staff member would have their future ruined. The organisation has no recourse to have the verdict of the Independent Decision Maker reviewed.

Instead of the government bullying thousands of organisations into signing up to a flawed scheme, they should undertake a review, make the necessary modifications to build trust, confidence, and greater buy-in. Perhaps a two-tier model that deals with large and small organisations differently is needed. The fundamental issue of the proof standard imbalance must be rectified with

Here are some possible steps forward:

  1. Make the applicant process more robust. Have a legal team build a historical picture using all medical and psychological records, work history, and statutory declarations from various individuals aware of the situation historically – information that will be vital for the applicant if they choose to pursue the actual perpetrator through the courts.
  2. If the organisation had not been complicit with, or knowingly enabled the abuser, then lower the compensation cap to $25,000, and raise the counselling cap to $8,000.
  3. Provide the organisation with a clear rationale on what basis a decision in favour of the applicant was made and give the organisation the opportunity to challenge that decision.
  4. Greatly simplify and streamline the scheme’s on-boarding process.

Wrongs are not righted by more wrongs. Don’t punish good organisations as a substitute for the actual perpetrators.

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