“Should the Commonwealth not move on its current position it will be important to consider the establishment of state-based redress schemes, however they would only be effective if they operated with harmonised legislation.”
Mrs Scattini says consistency is key and if the Royal Commission Public Hearings have told us anything it’s that historically there has been too much inequity for survivors.
“If you were sexually assaulted as a child in New South Wales you should be entitled to the same compensation that a victim in
Queensland would be entitled too,” she says.
Mrs Scattini also criticised a move that would see those seeking compensation under a National Redress scheme required to sign a deed of release by the participating institutions.
“This should not be the case because the redress scheme as currently being considered by the Royal Commission is not designed to meet Common Law damages,” she says.
“Signing such a release would extinguish victims’ rights to pursuing a civil claim which is not appropriate if the scheme does not award compensation reflective of the amounts you would likely obtain by pursuing this avenue.
“The challenge of course is that institutions will be reluctant to front up and pay if they fear claimants will use their redress money to fund further civil litigation. The institutions are trying to buy some certainty and finality to proceedings.”
Mrs Scattini says any successful scheme would need to reduce complexity for survivors and administration and costs involved to access it.
“The learnings from the Irish Redress scheme have taught us that there are significant costs to run highly complex schemes,” she says.
She says the standard of proof should include a ‘reasonable likelihood’ test to satisfy any award of compensation. The civil litigation standard is the ‘balance of probabilities’ which is a higher test and difficult to impose in a Redress Scheme situation as it would create additional cost and administration and the necessity for contested hearings.
“How do you determine a case on the ‘balance of probabilities’ if the offender is deceased or the particular Institution no longer has any records which will be true of a number of the claims that will come before a National Redress Scheme to be considered,” says Mrs Scattini.
“It is Bravehearts position that it shouldn’t be a balance of probabilities and the civil test, but rather a lower test to reflect the lower awards,” she says.
“The scheme is not attempting to reflect Common Law damages and doesn’t intend to allow for rebutting or testing of the applicant’s allegations or contested hearings.”
Bravehearts has also called for the scheme to be independent from the institutions and government bodies.
The stark reality is that any scheme will take considerable time to establish and many survivors don’t have that luxury.
Mrs Scattini says the Commission should consider releasing Interim Guidelines for institutions to adopt.
“To ensure greater transparency and consistency, we would like to see a set of core guidelines implemented as many institutions are already talking to victims,” she says.
“Survivors of child sexual assault face enormous barriers in disclosing. The impacts of this crime on victims typically means they do not disclose until they feel safe to do so and this doesn’t occur until some time has passed.”