The Royal Commission recently released a consultation paper on Redress and Civil Litigation for victims of abuse in institutions. If implemented, the changes proposed have the potential to enhance access to justice for survivors of abuse. Kelso Lawyers have provided an extensive submission in response to the paper, outlining important factors that will ensure survivors benefit from these changes.
Kelsos believe that a National Redress Scheme, established by statute in all jurisdictions is required. For such a scheme to be effective, it must include the following:
- Generous monetary payments to survivors that recognise the wrong committed and the harm suffered;
- Personal and sincere apologies to survivors (at the request of the survivor);
- Funding of legal fees by the institution responsible so that survivors can be legally represented by a lawyer of their choosing. Survivors should be entitled to representation by the best of the best in the legal profession;
- Those who have signed deeds of release must also have access to the redress scheme;
- Redress should be available to survivors of sexual AND physical abuse and should take into account emotional abuse, neglect and other aggravating factors;
- The scheme should be funded by the institutions responsible for the abuse, not by taxpayers;
- Applicants not happy with their award should have the opportunity to appeal.
In terms of civil litigation, significant law reform is needed to ensure that this option is open to survivors of child abuse. To date, survivors of child abuse have been met with legal obstacles which have prevented them from taking the institution responsible for their abuse to court. Kelso Lawyers makes the following recommendations:
- Limitation periods for claims involving child abuse should be removed retrospectively;
- All religious institutions must able to be sued in civil litigation, thus removing the ‘Ellis defence’;
- All assets held in property trusts by religious institutions must be made available to victims;
- States must adhere to their own model litigant policies so as to minimise re-traumatisation to survivors;
- Courts and defendants must be sensitive to the special needs of survivors of sexual abuse so as to reduce the risk of re-traumatisation;
- Courts need to recognise that institutions responsible for the care and protection of children owe a non-delegable duty to prevent physical and sexual abuse of these children. Breach of this duty must result in strict liability on the institution for the harm suffered by the victim.
Click the link to read our submission in full: Kelso Lawyers Royal Commission Redress and Civil Litigation Final Submission