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Lawyers welcome redress bill but question fairness

Lawyers welcome redress bill but question fairness

Scales of Justice

The federal government has introduced a bill to create a compensation scheme for victims of child sexual abuse, but it has raised questions over access to justice. 

Social Services Minister Christian Porter introduced the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 in Parliament yesterday.

If passed, the bill would establish a tripartite redress scheme for survivors of institutional child sexual abuse, comprising a redress payment of up to $150,000, access to counselling and a direct personal response from the institution.

State governments and other institutions would still be required to opt in to the scheme. Mr Porter encouraged them to opt in “on what’s known as a responsible entity-pays basis”, the ABC reported.

The Law Council of Australia (LCA) applauded the introduction of the bill. LCA president Fiona McLeod SC said it was a crucial step towards ensuring access to justice for victims.

“Survivors of child sexual abuse have suffered injuries that are often uniquely severe and long-lasting,” Ms McLeod said in a statement yesterday.

“In many cases survivors have not been able to receive appropriate redress or compensation and there has been a failure to recognise their significant trauma.

“A government-run redress scheme has greater capacity to be independent and transparent than institution-run schemes, which is why it was recommended by the Royal Commission.”

The LCA emphasised that the scheme must not diminish existing common law or statutory rights, and called for a specific allocation of legal assistance to help applicants navigate the scheme.

“Legal aid commissions, Aboriginal and Torres Strait Islander legal services, family violence prevention legal services and appropriate community legal services are critical in assisting applicants navigate the redress scheme,” Ms McLeod said.

“The introduction of this legislation is certainly a landmark moment for survivors of child and sexual abuse and we applaud the government for its national leadership.”

However, there are concerns that the selective nature of the scheme will limit access to justice.

It specifically excludes survivors of child sexual abuse who have gone on to commit sex offences themselves, or who have been sentenced to five years or more in prison for serious drug, homicide or fraud offences. 

Mr Porter said that while it was an agonising decision to exclude these victims, the government decided there must be limitations on the scheme to give it “integrity and public confidence”.

However, Mark O’Connor, an accredited specialist in compensation law at Brisbane firm Bennett & Philp Lawyers, said the bill unfairly ignored the circumstances that led to these peoples offending. 

“I expect this view will be criticised but it’s wrong and grossly unjust to simply exclude people because of what they have done and ignored the very real likelihood that their spiral downwards is due to themselves being abused as children.

We deal with many people who have ended up in jail for things they are ashamed of, but when you delve deeper it usually starts with some terrible abuse they suffered as children.

“My feeling is it’s not for us to arbitrarily judge who should or should not be entitled to be compensated for their ordeals as children. The process should be open and fair at all times.”

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