- Availability of legal advice
Summary- What does this chapter talk about?
- Why getting legal advice matters.
- Getting free legal advice.
- Finding the right lawyer to help you and why that can be hard.
- Choosing between redress or a civil claim.
- Court cases that got blocked (permanent stays).
- Some people think that lawyers at knowmore do good work.
- Some people don’t get legal advice when applying for redress.
- Some lawyers give bad legal advice.
- Redress can be easier than going to court for some survivors, but you get less money. This makes the choices hard.
- There should be a way to change your mind after redress is accepted.
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9.1This report is not legal advice. If you need legal advice about redress or making a civil claim, you should talk to a lawyer.
9.2knowmore can help with legal support for anyone who is applying (or thinking of applying) for redress.
9.3To keep things simple, this chapter uses the term ‘civil claim’. Sometimes other words are used, such as ‘legal liability’, ‘civil action’, ‘civil litigation’ or ‘sue for negligence’. These words describe what happens when someone hires a lawyer and/or goes to court to get compensation for legal wrongs.
Why is legal advice important?
9.4We often heard that it is important to get legal advice before applying for redress or accepting a redress offer. Survivors and Mates Support Network (SAMSN) said that ‘obtaining legal advice about options is vital… to make an informed choice’.
9.5knowmore said that the Royal Commission and ‘every report of every major review’ since then has emphasised the importance of legal support for survivors.
9.6We heard from lawyers practising in abuse law about why legal advice is important:
- Karp O’Neill Lawyers and Kelso Lawyers said the biggest issue is redress offers being accepted without legal advice about the consequences.
- Accepting a redress offer could mean that a civil claim is not possible. Karp O’Neill Lawyers added that some survivors may accept redress without legal advice, later realising that ‘far greater payments’ are possible from a civil claim.
- Survivors can only apply for redress once. Kelso Lawyers said that if a survivor declines redress, a civil claim is likely the only remaining option.
- Maurice Blackburn, a private law firm, said lawyers deal with the ‘fallout’ of redress outcomes, usually when a survivor finds out that redress payments are ‘often vastly inferior’ (much less than) a civil claim.
Awareness and access to legal advice
9.8Some survivors do not know that they can get legal help with applying for redress.
9.9People With Disability Australia (PWDA) told us:
- Some survivors do not know about knowmore and that it is a free service. Some law firms do not explain that there are free services available.
- People with disability are not always supported to make informed decisions about signing up for legal services.
- As discussed in Chapter 6, many First Nations redress applicants likely seek Aboriginal community controlled services that are culturally safe.
- The Aboriginal Family Legal Services in Western Australia said that ‘making informed decisions about whether to proceed… and when and how to seek legal assistance to commence a court action… will be best supported by Aboriginal Community Controlled Organisations’.
- Relationships Australia said:
- Legal advice can be unaffordable and inaccessible for people with disability and First Nations people. This can impact on their potential redress outcome.
- If legal advice or help from a nominee is unaffordable and inaccessible, this leads to deficient or rejected applications.
- Bravehearts Foundation (Beyond Brave) said that more needs to be done to promote the legal support options available to redress applicants.
Should legal advice be required before applying for redress?
9.14Maurice Blackburn said that having a lawyer review redress applications would help identify anyone with a strong civil claim. A lawyer can assess potential liability and depending on the circumstances, ‘it might be a claim that’s worth more than a million dollars to them’.
9.15Karp O’Neill Lawyers said:
- Receiving legal advice should be mandatory before a redress offer is accepted and certificates issued to confirm this has happened.
- Some state schemes contribute a small amount of money, about $500 to $750, for a lawyer give legal advice before applicants accept what they are offered (known as giving advice on the election).
- Shine Lawyers expressed ‘some hesitation’ about making legal advice a compulsory step, because disclosures about relevant abuse is a process that takes time and a trusting relationship.
- Kelso Lawyers said that advice on options should be given ‘early’ and preferably before someone has finished writing a redress application.
Legal advice available from knowmore
9.18knowmore is a free community legal service who help survivors of child sexual abuse and Stolen Generations. This includes help with:
- Legal information, including on redress options.
- Financial counselling.
- Referrals to other services.
- Advocacy.
- In addition to helping survivors, knowmore helps redress support services and their clients. knowmore said that they have lawyers, social workers, counsellors, Aboriginal and Torres Strait Islander engagement advisors and financial counsellors to help clients.
- We heard some positive comments about knowmore:
- SAMSN said that they encourage all of their redress clients to get free advice from knowmore before they decide on redress or civil litigation.
- The Women’s Cottage said that knowmore is ‘a thorough and high quality service’ although ‘waiting times have increased and we’d like to see the service better funded.’
- PWDA said knowmore has provided ‘comprehensive and sound advice to clients’ but experiences high demand.
- Tuart Place described knowmore’s advice as ‘comprehensive, timely [and] high-quality’.
- Robbie Gambley thanked knowmore and their support for survivors (his evidence is mostly discussed in Chapter 3). ‘I will give the first name of my lawyer’, he said. ‘Her first name is Emily and she is the most wonderful, kind young lady’.
- However, Lachlan Stonehouse said that advice from knowmore was ‘useless’.
- Loddon Campaspe Multicultural Services said that while knowmore is an ‘excellent service’ there could be improvements:
- Clients who are referred to knowmore are asked, for at least a second time, to repeat basic information, which can be retraumatising.
- knowmore ‘does not provide advice as to the prospects of a client’s success in pursuing a civil claim’. This might lead to a third referral, to another lawyer.
- The referral pathway to knowmore should be more welcoming, with reduced time and ‘emotional expense’.
Increasing demand
9.22In April 2024, knowmore told us:
- Requests for knowmore’s help have kept increasing since the National Redress Scheme (the Scheme) started.
- Each year, knowmore receives less money to do their work.
- knowmore made a ‘really difficult’ decision to help fewer people.
- Wait times started ‘blowing out’ and knowmore felt like they had done ‘a disservice to survivors’.
- knowmore previously told us in April 2023 about ‘divergent’ funding and demand for services and ‘significant increases in our wait times’.
- knowmore told the Australian Government about its funding levels compared to client demand in January 2023.
- The Australian Government funds knowmore to provide free legal advice to people applying for redress. The Department told us that:
- The Attorney-General’s Department primarily funds knowmore to provide financial counselling and funding to support redress support services.
- They encourage applicants to connect with financial counselling.
- knowmore’s legal support funding comes from the Attorney-General’s Department.
- knowmore reports on its work to the Attorney-General’s Department every 6 months.
- In August 2024, knowmore updated us about their funding:
- While helpful, knowmore requested an increase in funding ongoing to provide certainty.
- The extra money means knowmore has capacity to help prisoners (who are now eligible for redress) ‘but not beyond’ the 2024–25 financial year.
- PWDA recommended more funding for knowmore so that they can meet their client demand.
- In the 2024–25 Budget, the Australian Government budgeted an additional $7.2 million for knowmore (one off payment).
Long waiting times
9.27We heard that it can take between four and eight weeks to get an appointment with a knowmore lawyer. For example:
- Blue Knot told the Committee that wait times to get an appointment with knowmore used to be one to two weeks and that more recent delays coincided with reduced funding for knowmore.
- Kelso Lawyers said some clients who contacted knowmore were told they would need to be put on a waiting list as no solicitors were available.
- In April 2023, knowmore said that their wait times were 6 weeks for an appointment with both a lawyer and a counsellor, more than 5 weeks for an appointment with only a lawyer, and more than 4 weeks for an appointment with both a lawyer and an Aboriginal and Torres Strait Islander Engagement Advisor.
Not enough money to meet demand
9.30On behalf of the Australian Government, the Attorney-General’s Department is responsible for:
- Giving money (or granting funds) to knowmore for their redress work.
- Setting knowmore’s performance and reporting requirements, which would help to measure whether knowmore offers effective services.
- knowmore’s performance measures include:
- Giving free legal advice to assist with access to the Scheme.
- Making its services accessible and culturally sensitive.
- Developing relationships with other organisations such as redress support services.
- In response to questions from us, the Attorney-General’s Department would only say that ‘knowmore has met all the terms and conditions of the grant agreement to date’.The Department did not comment on what it does to monitor knowmore’s performance.
- The Attorney-General’s Department said that knowmore’s funding has been based on ‘modelling conducted by the Department of Social Services… when the Scheme commenced’.
- knowmore said that redress schemes in Ireland and Queensland experienced high demand near to the closing dates. knowmore said that the Irish scheme received 41% of its applications in 6 weeks prior to the closure date.
Class action against knowmore Legal Service
9.35A class action against knowmore in the Victorian Supreme Court commenced in July 2024. A class action is when a group of people with the same grievance or issue start legal action.
9.36knowmore told us that the class action says that they:
- Did not advise people properly about possible civil claims.
- Should give people advice about how much they could get in a civil claim.
- Should represent survivors in civil claims.
- knowmore said:
- More specifically, the class action alleges that when survivors signed their redress acceptance documents, this meant they ‘signed away their right to either making a new civil claim or going back to a previous civil claim that they have settled and reopening that deed of settlement’.
- knowmore told us that the class action is already ‘causing significant concern’ within their organisation and across the sector.
- Media reports about the class action is ‘having a really serious and negative impact on survivors and their sense of justice and overall trust being achieved through this scheme, undermining the good intentions of what the [Scheme] has been built to be.’
- They have already started receiving phone calls about the class action from distressed survivors. They are concerned that survivors are feeling ‘like the fabric of their justice-making processes is being questioned or pulled apart.’
- They are concerned about what the class action means for the broader Scheme, including the options for redress and what would happen if its advice was not part of the Scheme in the future.
- knowmore will continue to provide their free legal services for people applying for, or thinking about applying for, redress. Their work relies on government funding, which does not allow them to provide advice to survivors making a civil claim.
- knowmore intend to defend the claims in court. However, they also said that the idea of defending themselves against survivors ‘sits with us heavily and often.’
Legal advice available from private law firms
9.41We heard about the role of private law firms in giving legal advice. A firm is like a business or partnership. Private law firms can offer legal advice or legal representation. Usually, they help with making civil claims, although some firms will help with redress applications.
9.42We heard different views on whether private law firms are doing a good job. Private law firms said that they help people make informed decisions and get the best possible outcome. Support services had some criticisms.
What did we hear from support services?
9.43Relationships Australia said that an ‘[o]ngoing propensity’ by private law firms to pursue civil claims is ‘troubling’ because the courts have ‘well-known expenses and delays, more stringent burdens of proof, and complex laws of causation’.
9.44PWDA said:
- Private law firms ‘are not always good at explaining things in everyday understandable language.’
- For example, a client signed an agreement for ‘no-win, no fee’ legal representation with two law firms but did not understand that fees could be charged for work done if they chose to discontinue the case. PWDA explained that ‘This left the client with quite significant fees that they were unable to pay’.
- Law firms could charge money to help with a redress application, while possibly neglecting to say that knowmore does the same work for free.
- Micah Projects said that they encourage their clients to seek preliminary advice from knowmore.
- SAMSN said that law societies could create an obligation to give advice on the Scheme’s existence and free services available.
- Private law firms helped some survivors during the Royal Commission (before the Scheme existed). Tuart Place told us about what then happened in Western Australia:
- Many victims and survivors then ‘languished… sometimes for years’ until their civil claims were ‘deemed unviable’.
- Some law firms moved cases from civil claims to redress applications and then billed the clients (on average Tuart Place estimated around $5000).
- One group signed up to a class action. They were awarded less money than expected and ‘generally lost half their financial settlements to legal costs’.
- Tuart Place said that they refer clients to one private law firm that ‘stood out as exceptional’. Reasons include having a ‘genuine’ no-win no fee promise, a social justice approach, high financial settlements and fees that are kept to the ‘lower end of the scale’.
What did we hear from private law firms?
9.49Maurice Blackburn said that the Scheme is ‘useful and beneficial’ but a ‘last resort’ for when:
- A civil claim cannot be pursued for legal reasons.
- An informed decision is made not to make a civil claim and redress is the preferred choice.
- Kelso Lawyers said that private law firms have ‘an integral role’ in advising survivors on:
- Expectations regarding Scheme outcomes.
- The process to seek redress from the Scheme.
- The implications of accepting redress offered from the Scheme.
- Kelso Lawyers said that ‘advising survivors of all of the options available to them better places them to make informed decisions, rather than… centering it around the Scheme alone.’ Further, Kelso Lawyers noted that knowmore has long waiting times whereas they aim to see clients ‘within a few days of enquiring’.
- Sometimes advice offered to survivors can be misleading or good advice can be hard to find. We heard that this is because:
- People who are not lawyers might give advice on legal options.
- Some lawyers give bad advice about legal options.
- Maurice Blackburn said that there are multiple reasons why someone could receive poor quality advice:
- ‘Claim farmers’ who mislead vulnerable people. Claim farming might include:
- Making unexpected phone calls or emails to survivors.
- Pressuring people to sign legal documents that they don’t understand.
- Keeping excessive or high fees hidden.
- Saying nothing about free legal advice and help available from knowmore.
- Social workers or doctors (who are not lawyers) giving advice on whether a civil claim is likely to succeed.
- Lawyers who give bad advice against a person’s best interests (which is called professional negligence).
- Maurice Blackburn said that lawyers could be obligated to advise clients seeking help with redress applications that free services exist who will do this work. Maurice Blackburn said that when they receive requests for help with redress applications, the client is referred to knowmore.
- However, some survivors prefer to avoid anything related to the government, including knowmore, which is a free service.
- When someone accepts a redress offer from the Scheme, they must agree not to ask for further compensation from the institution. This is done by signing a document called a waiver.
- Kelso Lawyers told us that some survivors have accepted redress and signed this waiver without knowing the consequences, which ‘highlights the importance of independent legal advice’.
Unqualified legal advice
9.58People who are not lawyers are should not give legal advice. This is called unqualified legal advice because it comes from someone who does not have the recognised skills. A qualified lawyer has documents that allow them to say that they can practise as a lawyer.
9.59We heard that staff at some organisations, who are not qualified lawyers, may say things that amount to giving legal advice about redress or civil claims.
9.60Karp O’Neill Lawyers told us:
- Some counsellors and support workers have given unqualified advice on preparing redress applications and accepting redress offers.
- Some ‘well meaning’ organisations have advised survivors to apply for redress without mentioning the option of a civil claim or a possible referral to receive legal advice.
- In some cases, organisations told survivors ‘not to seek legal advice… because of the anticipated costs involved with consulting lawyers’.
- Maurice Blackburn said that not all support services have the same ‘depth of knowledge’ as knowmore. Maurice Blackburn said:
- Queries about civil litigation have come from survivors who have already accepted a redress offer.
- Accepting their redress offer meant that they had waived the right to make a civil claim.
- Unfortunately, ‘[p]rior advice that this is not within the rules is simply not being given’ when lodging a redress application or accepting a redress offer.
- Karp O’Neill Lawyers said that giving unqualified legal advice could breach laws related to legal professional standards. Further, someone could miss out on possible compensation worth much more than redress will offer.
Difficult choices and options
9.63Survivors of child sexual abuse have different ways that they can seek redress or justice. These include:
- Applying to the Scheme.
- Applying to another redress scheme.
- A civil claim and paying a lawyer to do this on their behalf.
- Taking no action, possibly because emotional toll would be too high.
- Maurice Blackburn Lawyers said that low literacy is a factor that can make applying for redress challenging, and these applicants can have trouble with understanding their options.
- Kelso Lawyers said:
- The ‘undeniable fact remains that civil claims are not capped’, whereas the Scheme’s maximum payment is $150 000. Kelso Lawyers said some of their clients had received over $1 million from a civil claim.
- Many civil claims are resolved unlitigated (without going to court) and that it is ‘straightforward for us’ to identify which claims have the potential to succeed.
- Micah Projects said:
- Civil cases begin with signing a costs agreement, which can be complex. The client then becomes a ‘spectator’ as lawyers do their work.
- The best pathway for survivors is ‘an intensely personal question’. Options include redress, civil litigation or a church complaints process. The choices ‘can be quite confusing’.
- In relation to the prospects of a civil case, Micah Projects said they refer clients to knowmore, who likely refer them to a private law firm. Clients must then decide which lawyer is best for them, which is a ‘challenging experience’.
Weighing up the options
9.68Karp O’Neill Lawyers said that there are both advantages and disadvantages of making a civil claim.
- Sometimes the facts are known, the perpetrator was convicted and the damage resulting from the abuse confirms the institution’s responsibility (or legal liability).
- In other cases, events happened a long time ago, the client has health issues and a civil claim could be a ‘stressful process’ for legal and personal reasons. Sometimes it is ‘much better’ to refer the client to knowmore for help with redress.
- Court trials are ‘very rare’. Most civil claims settle in a mediation.
- Tuart Place said:
- They advise their clients about redress or the option of a civil claim. Informed choices are very important.
- There are ‘large differences’ in terms of money that could be received, depending on the option chosen. If redress is chosen, a civil claim cannot be pursued afterwards.
- Giving that advice can be challenging. Some clients ‘may resist hearing about what is involved’ and ‘[t]rauma can make it difficult for some survivors to absorb verbal information’.
- Tuart Place added that prior payments can also impact on the choices available:
- Sometimes survivors ‘forget how much they received’ and this detail is ‘vital to find out before potentially assisting people to apply’ for redress.
- The prior payment could be more than what the Scheme is likely to offer (if that happens, the Scheme would reduce the redress payment to zero).
- We heard from Ashley Illma Gore who is waiting for a redress outcome. Ms Gore said:
- In making a civil claim, ‘I get the right to respond to evidence presented, judges set time frames for filing or to see the other side’s case documents’.
- However, there is ‘no control’ over a redress application and where it stands.
- ‘I worry that I will wait 13 months to receive a denial when I could have spent time starting a civil procedure… that at this point may be less traumatizing’.
Making a late decision
9.72The Scheme has extended redress offer deadlines for applicants who are considering whether to pursue a civil claim instead.
9.73Maurice Blackburn said that giving redress applicants extended time to consider their redress offer is ‘invaluable’ so that survivors can ‘thoroughly explore alternatives to redress’.
9.74Shine Lawyers said:
- There can be limited time to research a case when a redress offer is pending acceptance. Sometimes, advice is given based on incomplete information.
- Ideally, advice should be given before a redress application is started.
Choices impacted by ‘permanent stays’
9.75Occasionally, the courts have ruled that civil claims cannot go ahead because:
- Events happened a long time ago.
- Evidence has been lost.
- This kind of ruling is called a ‘permanent stay’ on proceedings. This essentially means that the court has declined to hear the case. The gives the defendant an ongoing immunity. The defendant in this context is likely to be an institution.
- Karp O’Neill Lawyers said permanent stays had a ‘pronounced impact’ on survivors, who were ‘greatly affected’.
- Based on the likelihood of a permanent stay impacting their case, some survivors may have decided to seek redress instead of making a civil claim in the courts.
- However, the law has changed over time, as recently as 2023:
- Usually, civil cases must start within a fixed time after the event (known as statutory limitation). Generally, this is limited to 7 years.
- Laws were changed so that civil claims relating to child sexual abuse could be made without this time limit, given that it takes around 23 years to disclose.
- Some survivors then decided to start a civil claim for abuse that may have occurred decades ago.
- Some institutions asked the courts to rule that a permanent stay should be granted because, for example, evidence is lost or witnesses are deceased.
- When the courts started granting permanent stays, this encouraged institutions to dispute claims (rather than mediate and settle out of court). Defendants knew that the permanent stay would end the case and they could escape legal liability.
- In 2023, the High Court made a ruling that means it can be harder to get a permanent stay and easier to have civil claims heard. This ruling was made in the case called GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (the GLJ case).
- The GLJ case improved the chances of civil cases being successful for survivors.
- Some survivors may have accepted a redress offer before the GLJ case was decided.
- When a redress offer is accepted, the survivor must agree not to make a civil claim for that abuse.
- That means a survivor cannot reverse their decision to accept redress and pursue a civil claim instead.
- We received evidence on the impacts of permanent stays and changing laws.
- Tuart Place said:
- Watching and waiting had created ‘stress and anxiety for survivors’ who want an outcome.
- Permanent stays undermined the ‘very reasons’ for removing the statutory limitations on civil claims for child sexual abuse.
- knowmore said:
- How much permanent stays influenced choices is ‘difficult to say’, given that choosing redress or a civil claim is ‘deeply personal’.
- However, ‘knowledge that a permanent stay order is likely to be made can also be a deterrent.’
- Maurice Blackburn said:
- Defendants were ‘threatening stays and using it as a negotiating tactic to try to intimidate and knock down the proposed settlement amounts’.
- This ‘certainly influenced settlements’ and ‘a lot of people… ultimately decided to go down the redress path because they were concerned about that risk.’
- Karp O’Neill Lawyers told us about an anonymous person’s civil claim:
- The case against the institution was ‘relatively strong’ and involved a known perpetrator. However, in a very similar case involving the same institution, a permanent stay had been granted.
- That resulted in advice to the client that ‘there would be no chance’ of the civil claim succeeding given the similar case.
- Separately, the client accepted around $90 000 from redress, but should have ‘got a lot, lot more financially than he did in the redress scheme’.
Should it be possible to change your mind?
9.86The GLJ case largely took away the option for institutions to ask for a permanent stay. Many survivors with civil claims now have a better chance of success.
9.87Karp O’Neill Lawyers said:
- When the GLJ case was decided, their offices had requests for advice about switching from redress to a civil claim.
- However, someone who accepted redress ‘does not have the right’ to now pursue a civil claim.
- Karp O’Neill Lawyers told us that the Scheme’s legislation should be changed so, in limited cases, someone who accepted redress should be permitted to make a civil claim:
- If the person did not get legal advice.
- If the person had accepted redress due to their civil claim being affected by a permanent stay of proceedings.
- This rule change should be retrospective (backdated).
- Maurice Blackburn agreed with this suggested change, describing it as a ‘logical step’ and added that there should be a mechanism for ‘setting aside’ a redress outcome where the applicant ‘hasn’t had legal advice on a civil claim’ and where the outcome was ‘otherwise unfair or unjust.’