In years past, public statements by people who had suffered sexual abuse as children were rare. When someone did speak out, it often made headlines. It also gave the impression that such events were themselves a rarity.
How that has changed.
Even before the Royal Commission into Institutional Responses to Child Sexual Abuse, complaints of this nature had become more commonplace. Now it’s virtually a nightly news story – gut-wrenching and profoundly disturbing.
Children are vulnerable and deserve every protection we as a society can offer, yet night after night we hear adults telling of the horror they endured as children.
In many cases, the perpetrators have acted in a deliberate and systematic way, exploiting children and subjecting them to unspeakable abuse.
As to the institutions responsible, we have almost lost count.
Our churches, our charities, our schools … the list seems endless, as if there was no place where the evil of pedophilia did not exist.
Indeed, that is the truth of it. The tentacles of this abhorrent and aberrant criminal conduct exists around every corner. It is now plain that the extent of the problem is monstrous; the damage to those subjected to it incalculable.
On September 15 this year, the Royal Commission published its Redress and Civil Litigation report, which followed a consultation paper released earlier in the year. In many ways, its recommendations are unsurprising – at least to lawyers.
In law, any person wronged is entitled to sue the wrongdoer at common law. Common law is a reference to the established law when there is no statutory remedy provided by the parliament. It is the law as determined by the courts, with long historical precedent.
There are problems and limitations with common law claims, however, which can be more pronounced in some states and territories than others. First, all common-law actions have time limitations. It is not always easy to prosecute a common-law claim years or decades after the event of the wrong committed.
There are sometimes issues of proof, given the passage of time and the fact that many victims were very young at the time of their abuse and thus have an incomplete recall of what happened to them, at least as to detail.
Finally, there is the question of the ability of the wrongdoer to pay, particularly when the person sued is an individual.
In the case of suing an institution, it is necessary to claim in negligence, requiring proof that the institutional defendant knew or ought to have known of the abuse. Additionally, an institution may by now have ceased to exist, may have changed in its corporate and legal nature, or may be insolvent, making claims impossible.
In some cases, those hurdles can be overcome, in which case a common-law claim is encouraged and the damages, depending on the harm caused, may be substantial.
Plainly, that does not work for everyone.
The Royal Commission, in its September 15 report, said: “Because of the nature of the abuse they suffered, many victims of child sexual abuse have not had the opportunity to seek compensation for their injuries that many Australians generally take for granted. While it cannot now be made feasible for many of those who have experienced institutional child sexual abuse to seek common law damages, there is a clear need to provide avenues for survivors to obtain redress for this past abuse.”
The report is a lengthy document and I cannot begin to do it justice here, but in a nutshell and as pertains to compensation, it recommends that there should be a national redress scheme for survivors of child sexual abuse funded collectively by the institutions, and federal and state governments.
While the proposed scheme is relatively modest, the peak body representing lawyers in Australia, the Law Council, has called for it to commence.
Our Law Council president, Duncan McConnel, described the suffering of the abused as “often unique and long lasting”, and said that a “national scheme is therefore needed, as the most effective structure for ensuring justice for survivors of child sexual abuse”.
The Law Council also supports other recommendations, including funding for support services and community legal centres to help applicants applying for redress, and for legislative reform in states and territories to facilitate claims.
Of course, with the nature of a federation, such endeavours can occur only when the state and federal governments act in concert.
Mr McConnel remarked on the “lack of consistency between institutional and state and territory government responses” as a reason to embrace a national scheme. The same factors are at play in the setting up of a national scheme. One would think the Federal Government would have to come on board first, then hopefully the states and territories will follow.
The responses thus far have been underwhelming. Federal Labor has pledged $33 million, which feels like a drop in the ocean. It relies on the fact that the slack will be taken up by the institutions.
Our state government is perfectly happy with the scheme, with one rider: it won’t contribute. That is on the basis that it has established something of a state scheme already.
If this is repeated around the country, an outcome may be long coming, but I don’t think so. I think the Australian Government is bound to recognise the pressing need for a national redress scheme and act, for this is nothing other than a national disgrace.
Collectively, we owe a national response to an appalling and wretched chapter in our country’s history. Delay and prevarication will only add insult to injury and salt to the wounds.
To add to that, the proposed scheme is modest. No person will be enriched. They will receive something for the hurt, the pain, the humiliation and the often lifetime of anger at the realisation of the scale of their betrayal.
To the governments of Australia: get on with it.
Morry Bailes is managing partner at Tindall Gask Bentley Lawyers, a member of the Executive of the Law Council of Australia and immediate past president of the Law Society of SA. The opinions expressed in this column are his own. His column appears every second Thursday.
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