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Redress and Civil Litigation Report (2015)

The Victorian Government is working to ensure effective redress for victims and survivors of child sexual abuse, in recognition of the harm caused by child sexual abuse and related matters in institutional contexts.

Redress

The National Redress Scheme for Institutional Child Sexual Abuse (the Scheme) was established on 1 July 2018 and will operate until June 2028. The Victorian Government was one of the first states to join the Scheme and has been participating in it since its commencement.

The Scheme is administered by the Australian Government and is legislated under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (the Act).

People who have experienced institutional child sexual abuse and are deemed eligible by the Scheme can access a redress payment, counselling and psychological care, and a direct personal response such as an apology. All applications for redress are assessed by independent decision makers.

If a person resides in Victoria and accepts counselling and psychological care as a component of their redress offer, they can access services through the RESTORE consortium or through a private provider where they have an existing therapeutic relationship. The RESTORE consortium is funded by the Victorian Government and offers a range of delivery options and services in rural, regional and remote areas, including specialist LGBTIQA+ support and support for care leavers. Culturally responsive and safe services are available for Aboriginal and Torres Strait Islander people, including counselling and healing services.

As at 30 September 2020 for the calendar year, the Victorian Government received 367 applications through the Scheme from applicants who had identified a Victorian government institution as responsible for their abuse and returned 355 responses for determination by the independent decision maker. By the end of the second year of the Scheme’s operation, 492 applicants had accepted an offer of redress. This is an increase of 383 from 109 in the first year. Of these applicants, 264 accepted the offer to receive a direct personal response and 317 accepted the offer to access counselling and psychological care services from the Victorian counselling service provided by RESTORE.

Victorian Government’s advocacy for Scheme improvements

The Victorian Government continues to advocate to the Australian Government for improvements to the transparency and accountability of the Scheme. In March 2020, the Ministers’ Redress Scheme Governance Board agreed on a set of performance measures to publicly report against three priority areas: survivor experience, the health of the Scheme, and equity of access.

Another key area of advocacy has been ensuring institutions in Victoria do not avoid their responsibilities to survivors by failing to join the Scheme. Institutions may voluntarily join the Scheme if they can fulfil their obligations and responsibilities under the Act. If an application is made to the Scheme and the institution named has not yet joined, then the application cannot progress. This means that the person cannot access redress under the Scheme.

It is the Victorian Government’s expectation that all institutions operating in Victoria that are named in a redress application and have the capacity to join the Scheme do so. In March 2020, the Premier announced that joining the Scheme will become a condition of receiving Victorian Government funding.

On 28 April 2020, Australian Government, state and territory Redress Ministers agreed to extend the deadlines for institutions to join the Scheme by:

  • allowing named institutions to provide written confirmation of their intention to join the Scheme before 30 June 2020 with an outer deadline of 31 December. That is, after providing written confirmation of their intention to join, they then have six months in which to do so
  • allowing institutions named after 30 June 2020 six months to join the Scheme. At that time there were 280 institutions nationally, and 49 operating in Victoria, that had been named in redress applications but had not joined the Scheme.

Prior to the deadline for joining the Scheme of 30 June 2020, the Attorney-General wrote to all named institutions operating in Victoria, advising them of this decision and also advising them of the Ministers’ Redress Scheme Governance Board decision to publicly name institutions who had not indicated their intention to join.

By the 30 June 2020 deadline, all Victorian Government-funded institutions that had been named in redress applications, and many of those not funded by the Victorian Government, had committed to join the Scheme or had completed the onboarding process.

In July 2020, the Australian Government publicly identified four institutions that either declined to join the Scheme or did not signify an intention to join. Three of these, Jehovah’s Witnesses, the Lakes Entrance Pony Club and Kenja Communication, operate in Victoria. None of these institutions is funded by the Victorian Government.

Stolen Generations Redress Scheme

The Victorian Government will establish a landmark Stolen Generations Redress Scheme to acknowledge and address the role of past Victorian governments in the forced removal of Aboriginal children from their families, the impacts of which continue to be felt today. Many Stolen Generations survivors also experienced sexual abuse during their time in institutional care, further compounding their trauma.

A 2018 survey found many Stolen Generations members continue to suffer health, social and economic disadvantage, with up to 70 per cent relying on welfare and more than 50 per cent living with disability or a chronic health condition.

The Victorian Government is committed to the Stolen Generations Redress Scheme being entirely community-led and designed, with Stolen Generations survivors being consulted on Scheme design. A range of redress options will be considered, including redress payments, counselling support and a funeral or memorial fund. The funding may also go towards helping survivors tell their stories and ensuring they are appropriately supported in making redress applications.

The Stolen Generations Redress Scheme will sit alongside other initiatives supporting Stolen Generations members, including Connecting Home Limited and the Koorie Family History Service.

Civil litigation

The Victorian Government has introduced a suite of reforms to remove a range of hurdles faced by child abuse survivors seeking compensation from organisations associated with their abuse. These ground-breaking reforms work to make civil litigation a more effective means of providing justice for survivors.

In 2015, Victoria became the first jurisdiction in Australia to completely remove the statute of limitations for civil claims founded on child abuse.

Amendments to the Limitation of Actions Act 1958 removed the limitation period for all relevant child abuse claims regardless of the time or context of the alleged abuse. Before this reform, time limitations were one of the major barriers faced by victims of child abuse who wished to pursue legal action. Limitation periods often discouraged victims from bringing their claims in court, and the expiration of a limitation period was commonly used against victims in negotiations, including to reduce the settlement amount offered. This reform implemented a key recommendation of Betrayal of Trust and the Royal Commission.

While the removal of limitation periods for child abuse removed a significant barrier to civil litigation for survivors of institutional child abuse, it did not deal with the unjust product of previous barriers, which led to survivors accepting inadequate settlements and releasing institutions from future liability. To remedy this, the Victorian Parliament passed amendments to the Limitation of Actions Act to allow a court to set aside past judgments and previously settled causes of action relating to child abuse concluded after a limitation period had expired, where it is just and reasonable to do so. The amendments, which commenced in September 2019, allow the court to take into account any amounts paid or payable as compensation, damages or costs under a previous judgment relating to the cause of action or the previous voided settlement agreement, where the court is satisfied that it is just and reasonable to do so.

The Victorian Government has since introduced legislation to pave the way for all victims of institutional child sexual abuse to have access to the compensation they deserve. The Justice Legislation (Drug Court and Other Matters) Act 2020, passed by Parliament November 2020, builds on the earlier reforms of the Children Legislation Amendment Act 2019, by expanding the pool of eligible applicants to cover survivors who entered into agreements between 1 July 2015 and 1 July 2018.

The Victorian Government is continuing to implement an administrative guideline that requires Victorian Government departments, Court Services Victoria, and Family Safety Victoria to ensure that non-government organisations receiving government funding to provide services to children are incorporated and insured against child abuse. The Funding Guideline for Services to Children helps to ensure that organisations are capable of being identified and held financially responsible where they are responsible for child abuse, and to improve access to justice for survivors.

Reviewed 21 December 2020

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