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 in institutional contexts.
The Victorian Government was one of the first states to opt in to the National Redress Scheme for Institutional Child Sexual Abuse (Scheme) and has participated in it since it commenced on 1 July 2018.
The scheme is administered by the Australian Government and is governed by a framework for determining applicants’ eligibility for redress and institutional responsibility. Applicants may receive access to counselling, a redress payment and a direct personal response from the institution responsible for the abuse (for example, an apology).
All applications for redress are determined by independent decision makers. The Victorian Government is responsible for paying redress to a person if a Victorian Government institution is found reasonably likely to be responsible for a person’s abuse.
The Victorian Government provides counselling to all redress applicants residing in Victoria who receive and accept an offer of counselling and psychological care from the Scheme. A person is offered a choice of counselling service provider and a range of delivery options and services in rural, regional and remote areas. Culturally responsive counselling and healing services are available for Aboriginal and Torres Strait Islander people, as well as specialist services for the LGBTIQA+ community and people who were placed in institutional and other forms of out-of-home care as children.
Between 1 December 2020 and 1 November 2021, the National Redress Scheme Scheme in Victoria processed the following applications:
- received 269 applications for redress
- accepted 134 applications for Direct Personal Responses
- accepted 168 applications for counselling and psychological care services.
The Victorian Government continues to actively work with the Australian Government and other state and territory governments to improve the Scheme’s operation to ensure a trauma-informed redress experience for survivors.
In June 2021, the Second Anniversary Review of the National Redress Scheme (Review) was publicly released. It made 38 recommendations, which highlight tangible changes that can be made to improve the redress experience for survivors.
In September 2021, the Australian Parliament amended the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) to respond to the first tranche of Review recommendations requiring legislative change. These included the introduction of advance payments, removing the need for a statutory declaration with an application and changing the calculation date that prior payments are indexed.
In November 2021, further amendments were passed that respond to a key recommendation of the Review, the expansion of the Scheme’s funder of last resort arrangements. This means that relevant governments can now agree to cover the financial liability for institutions that are defunct (and have no connection to government) or cannot afford to join the Scheme.
The Victorian Government continues to work with the Australian Government and other state and territory governments to respond to the recommendations.
Stolen Generations Reparations Package
The Victorian Government has commenced work to establish a landmark Stolen Generations Reparations Package (Package), with an initial $10 million announced in March 2020 for development and implementation of the Package. The Package aims 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.
A 2018 survey found many Stolen Generations members continue to suffer health, social and economic disadvantage, with up to 70 per cent relying on government financial assistance and more than 50 per cent living with disability or a chronic health condition. Many Stolen Generations survivors also experienced sexual abuse during their time in institutional care, further compounding their trauma.
The Victorian Government is committed to the Package being community-led and designed. To ensure the Package is designed by and for Stolen Generations members, a Stolen Generations Reparations Steering Committee was established in 2020 to lead engagement on the design of a culturally safe and trauma-informed package. Steering Committee members included Stolen Generations members, their families, and representatives from key support services.
The Steering Committee conducted 25 consultation sessions in early 2021, both in person and online across regional Victoria and metropolitan Melbourne, to ensure the views and expectations of the Victorian Stolen Generations community were collected. More than 400 community members participated in the sessions. The Steering Committee has developed a set of recommendations based on the outcomes of consultation sessions.
The Steering Committee has provided its Final Report to the Victorian Government. The Final Report includes comprehensive recommendations around Package design, redress options and broader policy reform work. The Victorian Government is currently working towards finalising the design and implementation of the Package.
In April 2021, based on recommendation from the Steering Committee, a $300,000 Interim Funeral Fund was established. The Interim Funeral Fund will support families of Stolen Generations members who have passed since 1 January 2021, until the full Package is operational, providing up to $10,000 for costs of a funeral, headstone or plaque and repatriation.
The Package will sit alongside other initiatives supporting Stolen Generations members, including Victorian Government funded services provided by Connecting Home Limited and the Koorie Family History Service.
The Victorian Government has implemented several legislative reforms based on Royal Commission and Betrayal of Trust recommendations. These have come into effect over time and have contributed to an increase in the proceedings and applications related to damages for child abuse that have been filed in the courts since 2015 (see, for example, Case Study 2). The reforms include:
- Limitation of Actions Amendment (Child Abuse) Act 2015, which commenced on 1 July 2015. This legislation abolished the limitation period for damages in relation to child abuse claims, allowing victim survivors to sue organisations responsible for their child sexual abuse regardless of how long ago the abuse occurred. Limitation periods had previously presented one of the biggest barriers for victim survivors seeking to access compensation
- Legal Identity of Defendants (Organisational Child Abuse) Act 2018, which commenced on 1 July 2018. This legislation closed an unfair legal loophole which prevented child abuse victim survivors from suing some organisations due to the organisations’ legal status. It made it a requirement for organisations to nominate or appoint a legal entity to act as proper defendant in child abuse proceedings and to incur any relevant liability arising out of child abuse. In this way, child abuse cases can no longer be prevented from participating in court proceedings due to organisations failing to nominate proper defendants
- Children Legislation Amendment Act 2019, which commenced on 18 September 2019. This legislation allows a court to set aside a prior judgment or settlement in respect of damages for child abuse if it is just and reasonable to do so.
Case Study 2. Court sets aside unfair deed of release
The plaintiff in this case, known as WCB, was a former altar boy who suffered abuse by late priest Daniel Hourigan in Gippsland from 1977 to 1980, between the ages of 11 and 14. WCB originally brought a claim against the Bishop of the Catholic Diocese of Sale in 1996, seeking compensation for the post-traumatic stress he suffered from the abuse. When WCB brought the claim, the time limit to bring such a claim to court had expired, placing him at a significant disadvantage in bringing the proceedings. The claim was settled with the Catholic Church directly for $32,500 and a deed of release was signed, releasing the Church from any further obligation to WCB in this matter. WCB stated that he felt forced into accepting a ‘terrible’ settlement as ‘the Church had all the power [and] I had none.’
In 2019, amendments were made to the Limitation of Actions Act 1958 to allow courts to set aside previous settlements in certain historical sexual abuse claims when it is deemed just and reasonable to do so. These amendments enabled WCB to bring a claim against the Roman Catholic Trusts Corporation for the abuse he suffered as a child. The Judge presiding over the case found that the settlement sum of $32,000 paid to WCB in 1996 was significantly less compensation than the amount he may have received had he not been faced with the issue of the statute of limitations for his claim having expired. Additionally, when WCB originally made his claim in 1996, he had been unable to sue the Catholic Church itself as it was not an incorporated entity. This had put him at further disadvantage. Following legislative reform in 2018 WCB was able to bring a claim against the Catholic Church.
The Judge noted that there was evidence that WCB had been subjected to horrendous abuse by Hourigan over two and a half years, and that he continued to suffer as a result of this abuse. Justice Keogh was therefore satisfied that it was just and reasonable to set the deed of release aside, enabling WCB to sue the church for damages.
This Supreme Court ruling marked the first case to be decided following the 2019 amendments to the Limitation of Actions Act 1958. Of the outcome, WCB stated, 'This is a fresh chance not just for me, but for many abuse survivors' (Ty Cowie, ‘Church's legal defence 'dismantled' after sex abuse pay-off thrown out’, The Age, 1 October 2020).
Administrative guidelines for organisations providing services to children
In 2019, the Victorian Government introduced an administrative guideline requiring all Victorian government departments to confirm that non-government organisations receiving government funding to provide services to children are incorporated and appropriately insured against child abuse. The Victorian Funding Guideline for Services to Children helps ensure organisations are capable of being identified and held financially accountable where they are responsible for child abuse, and to improve access to justice for survivors.
Improving access to justice for child abuse victim survivors – impact of the Royal Commission
The following graph shows a significant increase in the initiation of child abuse damages claims in the Supreme Court of Victoria from the 2018-19 financial year onwards. The data highlights that the ground-breaking reforms implemented by the Victorian Government have been effective in improving access to justice for victim survivors of child sexual abuse.