The bill sets up a process by which victims can apply to the scheme alleging that they were subjected to sexual abuse as a child at a “participating institution”. The scheme operator will investigate the claim and, if a participating institution is found to have been responsible, will offer victims:
Victims must opt into the scheme. The scheme as presently proposed does not alter victims common law rights.
The scheme is open to victims of child sexual abuse from Commonwealth institutions and Territory institutions, who are expected to opt in. Liability for the monetary payment will be allocated to the participating institution and administered through a fund by the operator. It is hoped by the Government that the scheme may provide the framework for an eventual comprehensive national scheme.
The monetary payment is determined by the operator with reference to an assessment matrix which is yet to be published. The monetary payment will have subtracted from it any payments already made by a liable institution to the victim.
Significantly, the scheme operator must approve an application if they determine there is a “reasonable likelihood” that the person is eligible for redress. The Minister in his second reading speech confirmed that this test is lower than the “balance of probabilities test” at common law.
In our opinion, the success of the scheme will depend on the willingness of state governments and non-government institutions to join.
The scheme will likely be attractive to the following categories of victims:
The being said, even if there is participation by a significant number of state governments and non-government institutions, it remains to be seen whether the scheme will be attractive for many survivors. The maximum payment of $150,000 pales in comparison to some damages that have been awarded by the courts.