CHAPTER 2

State redress schemes

Introduction

2.1 This chapter discusses the existing state redress schemes, as well as some comparable international redress schemes. It also considers the evidence the committee received in relation to state redress schemes for former children in care.

State schemes relating to children in care

2.2 Tasmania, Queensland, Western Australia and South Australia have established schemes to provide redress to people who were neglected or abused while they were children in care. The Senate Community Affairs Committee has noted that some inequity arises from the variable terms of state schemes with respect to eligibility requirements, methods of determining compensation and levels of compensation.[1] The schemes also vary in whether claims must be lodged by a particular date and whether claimants must sign a deed of release indemnifying the state in relation to claims they may have with respect to the abuse they suffered while in state care. Some have queried whether the schemes provide appropriate redress to claimants, particularly where claimants are required to trade‑off their potential legal rights to compensation in exchange for an ex gratia payment.[2]

2.3 A table providing a brief comparison of the existing state schemes is contained in Appendix 1 to this report.

Tasmania

2.4 Tasmania was the first state to establish a redress scheme. In June 2003, the Tasmanian Government asked the Tasmanian Ombudsman to conduct an independent review of claims by adults who suffered abuse while they were children in state care. Six weeks after the review commenced, the Tasmanian Premier, the Hon Jim Bacon MP, announced that ex gratia payments of up to $60,000 would be made to provide some redress to eligible claimants. The Premier also appointed Mr Peter Cranswick QC as an independent assessor to review claims and determine the amount of ex gratia payments.[3] In order to receive an ex gratia payment applicants were required to indemnify the state against all current and future claims arising from the applicant's abuse in care.[4]

2.5 In addition to the ex gratia payments, the Tasmanian Ombudsman made recommendations to the Tasmanian Department of Health and Human Services for individual reparation which generally related to requests from claimants for:

(a) an apology;

(b) an official acknowledgement that the alleged abuse most likely occurred;

(d) guided access to personal departmental files; and

(e) professional counselling.[5]

2.6 The Ombudsman presented an initial report in November 2004 which recommended that the government continue to receive claims.[6] This recommendation was accepted and a statistical report on phase 2 of the process was presented in June 2006.[7] The Ombudsman reported that by the conclusion of phase 2 in June 2006, a total of 878 claims had been received, with 670 accepted as eligible.[8]

2.7 The Tasmanian Government has since announced that the scheme will be open‑ended with new claims eligible for payments of up to $35,000. By November 2009, over 1,800 claims had been considered and ex gratia payments of over $37 million had been made.[9]

Queensland

2.8 In May 2007, the Queensland Government established a redress scheme with funding of up to $100 million.[10] The scheme provided for ex gratia payments of between $7,000 and $40,000, and was open to applications for a limited period. The scheme provided for two levels of payment. Level 1 payments of $7,000 were offered to applicants who:

(a) were placed in a detention centre or licensed government or non‑government children's institution in Queensland covered by the terms of reference of the Forde Inquiry; and

(b) had been released from care, and had turned 18 years of age on or before 31 December 1999; and

2.9 An additional level 2 payment of up to $33,000 was made to applicants who suffered more serious abuse or neglect.[12]

2.10 Applicants were required to sign a deed of release which prevents them from making a further claim against the Queensland Government in relation to their abuse or neglect.[13] The scheme did not apply to people who experienced abuse or neglect while in foster care or in institutions which did not fall within the scope of the Forde Inquiry (such as adult mental asylums).[14]

2.11 The scheme received over 10,200 applications between 1 October 2007 and 30 September 2008 (the closing date of the scheme). Of these, over 7,400 were assessed as eligible for a level 1 payment. Approximately 3,500 applicants were offered an additional level 2 payment, ranging from $6,000 to $33,000.[15]

Western Australia

2.12 On 17 December 2007, the Western Australian Government announced the establishment of the $114 million Redress WA Scheme to provide adults who, as children, were abused or neglected in state care in Western Australia. The Redress WA Scheme includes access to counselling services, an ex gratia payments and an apology.[16] Initially, the maximum payment under the scheme was to be $80,000 but that was subsequently reduced to $45,000.[17]

2.13 Application for a payment under the scheme can relate to harm caused by sexual, physical or emotional abuse, or neglect.[18] Applications are assessed to determine the level of abuse or neglect the claimant suffered and are categorised as either moderate, serious, severe or very severe abuse or neglect.[19] The scheme includes people who suffered abuse or neglect in foster care as well as those placed in institutions. There is provision under the scheme for interim payments, of up to $10,000, to be made to eligible applicants who have a terminal illness, prior to a final offer to the applicant.[20] Applications to the scheme had to be received by 30 April 2009.[21]

2.14 In February 2010, the Western Australian Government made the first offers of ex gratia payments to 100 applicants under the scheme, ranging from $5,000 to $45,000. The recipients of ex gratia payments are not required to waive their rights to seek further legal redress when accepting an ex gratia payment.[22] By June 2010, Redress WA had paid over $13 million to eligible applicants.[23]

South Australia

2.15 In November 2009, the South Australian Government indicated that it would consider making ex gratia payments to people who suffered sexual abuse as a child while in state care.[24] There is currently no closing date for this scheme.[25] The amounts of the payments will vary and are discretionary, however:

...money will be offered according to the severity of the sexual abuse. For example, a person who establishes that they have suffered serious and lasting harm from sexual abuse whilst in State care may receive up to $30,000. In exceptional circumstances, where extreme sexual abuse has occurred, a total of up to $50,000 may be granted by the Attorney‑General.[26]

2.16 Applicants must sign a deed of settlement and release in order to receive a payment. Under the deed, applicants indemnify the state from claims arising from 'abuse of any kind' while in state care. The Victims of Crime Fund will pay applicants who wish to obtain legal advice in relation to the deed (up to $750 to meet the cost of legal fees).[27]

2.17 The statutory basis of this scheme is section 31 of the Victims of Crime Act 2001 (SA) which provides that the Attorney-General has an absolute discretion to make payments from the Victims of Crime Fund to, or for the benefit of, victims of crime in order to help them to recover from the effects of crime or advance their interests in other ways.[28] A decision by the Attorney‑General under section 31 is not reviewable.[29]

New South Wales and Victoria

2.18 The New South Wales and Victorian Governments have indicated that they will not establish redress schemes.[30] However, the Victorian Government has stated that it will deal with abuse claims on a case‑by‑case basis.[31] The Senate Community Affairs Committee received evidence in November 2008 that the Victorian Government has spent over $4 million on out‑of‑court settlement of claims, with some claimants receiving 'very low six‑figure sums'.[32]

2.19 Similarly, in April 2009, the New South Wales Government gave evidence to the Community Affairs Committee that:

New South Wales claims for compensation in relation to abuse in care are assessed on a case‑by‑case basis. The department makes a determination based on the available evidence. If a legal liability is considered to exist, the claim may be settled. Claimants may also have the option of filing a suit against the Department of Community Services. In addition, there may also be entitlement to make a claim under the victims of crime compensation in New South Wales.[33]

Northern Territory and Australian Capital Territory

2.20 There is no redress scheme for people who experienced abuse or neglect while in institutional care in the Northern Territory or the Australian Capital Territory. In commenting on its progress towards implementations of the recommendations of the Senate Community Affairs Committee's Forgotten Australians report, the Australian Capital Territory Government noted that 'self government was established in 1988 and previously, responsibility for the protection of children was a Commonwealth responsibility'.[34]

2.21 In evidence to the current inquiry, the Department of Families, Housing, Community Services and Indigenous Affairs suggested that there is a lack of evidence regarding the experience of children in institutional care in the Northern Territory:

The Senate Community Affairs References Committee did not report any evidence of institutions in the Northern Territory during their Inquiry...

Further, available evidence as provided by the Northern Territory Government...is that no British child migrants were placed in the Northern Territory.

Forgotten Australians and former child migrants who are now residents in the Northern Territory but were in institutional care in other states are, generally, able to access relevant services and redress schemes in the states where they were in care.[35]

2.22 However, the committee notes that the Bringing them home report includes material which suggests that the treatment of children in care in the Northern Territory from the late nineteenth century until the 1980's was similar to that of children in care in other jurisdictions.[36]

Other state and international redress schemes

2.23 In addition to redress schemes relating to children in care, Queensland, Tasmania and New South Wales have established redress schemes with respect to the historical treatment of Indigenous people in those states. However, the Tasmanian Government is the only Australian government to have paid specific compensation to Indigenous people affected by policies of forced separation.[37]

2.24 It should also be noted that some international jurisdictions have established compensation schemes which are analogous to the Australian state government redress schemes relating to children in care. In particular, schemes have been established in Canada and Ireland to provide redress to people who were placed in institutional care as children.[38]

Redress for children in institutional care

2.25 Evidence received by the committee during this inquiry raised a number of concerns about existing state redress schemes relating to former children in care, as well as in relation to states which are yet to establish schemes.

2.26 Many submissions to the inquiry focused on the individual experiences of people who were children in care and, in particular, the continuing effect on their lives of the abuse and neglect they suffered while in care.[39]

Problems with existing state redress schemes

2.27 Many submissions were critical of existing state schemes which were established to provide redress to care leavers. In particular, there was criticism of:

(a) the time limits for making claims;

(b) the quantum of compensation available under the schemes;

(d) the application process.

Time limits on claims

2.28 Some submitters stated that they were unaware of the existence of state compensation schemes under which they were eligible prior to the closing date of the relevant scheme. This appears to have been a particular difficulty with the Queensland redress scheme.[40] Ms Leonie Sheedy of Care Leavers Australia Network (CLAN) also provided a specific example of a member of that organisation who was unaware of the Western Australian redress scheme until after the closing date for applications:

One of our members is 88. She lives in Eurobodalla down near Bega and she did not know anything about the Western Australian redress scheme. The scheme had closed by the time she found out. We wrote a letter to the Premier, Colin Barnett, to ask whether they would accept a late application on behalf of Flo Hickson and they declined.[41]

2.29 Wings for Survivors argued that insufficient publicity was given to the state redress schemes, especially given that some care leavers are illiterate.[42] The Alliance for Forgotten Australians explained in more detail that:

Many Forgotten Australians have been disadvantaged by scheme cut-off dates. As with other hard-to-reach people and families, many Forgotten Australians are more mobile than the general population. They tend not to live in the State or Territory where they were children. Many are socially isolated, not part of community or support groups, don't regularly read newspapers or listen to the news. Frailty and old age have also created problems for individuals accessing redress schemes given their isolation from mainstream services.[43]

2.30 Origins Inc, an organisation which provides support to people adversely affected by adoption and family separation, explained the impact the time limit on claims under the redress schemes has on its clients:

To this day we are still being approached by ex-residents for information regarding Redress schemes and they are devastated when learning that some [of] the schemes are closed, and states such as NSW Victoria and SA, etc have still not implemented redress schemes. This situation in effect leaves a large number of Australians that have not received redress in a particular state of inequity and injustice.

To say that when finding out that one has missed out on the opportunity for redress is devastating to the client is an understatement, and leaves the victims of abuse feeling worthless and devoid of a sense of justice.[44]

Amount of compensation

2.31 Some submissions argued that the amount of compensation offered under the state schemes was inadequate. For example, Ms Cherie Marian submitted that:

The proportionality of ex-gratia payments issued by redress schemes must take into account what the payment is being made for. The highest level [of] payment currently available ($35,000 in Tasmania) is equivalent to approximately a mere one year annual average full-time salary. The question must be asked; is this amount reasonable in the case [of] a survivor of sexual abuse spanning some years whose resulting psychiatric injuries have caused them to be unable to participate in paid employment for the majority of their adult life? To even the lay person, it would appear, surely not![45]

2.32 Ms Lily Arthur compared the compensation provided under the Queensland redress scheme with the $2.6 million in compensation provided to Ms Cornelia Rau for her unlawful detention:

Many tens of thousands of young women forcibly incarcerated like myself, with the added trauma of having their newborns stolen from them at birth are owed that right, we should not have to go to the expense of taking legal action that is doomed to fail in order to receive justice, or redress, and this situation should apply to all those who have been harmed by governmental negligence.

I would add here that in 2009 I received Redress payments from the Queensland Government of $21,000 for "serious harm suffered in a Queensland institution" whilst grateful to receive anything at all, it is a far cry from the judgment in the Cornelia Rau matter.[46]

2.33 Similarly, Origins Inc argued that the compensation offered under the Queensland redress scheme was inadequate:

If a claimant sought similar relief though victims or workers compensation or a civil action the outcomes would be more generous.

The "damages" received by some clients in no way represented the extent of the harm they [had] suffered with some receiving the basic lower level of $7000 others receiving around $20 000 and for the most [seriously] harmed, an amount of $40 000 which would not go far for an aging client suffering serious physical/psychological harm...[47]

2.34 There was similar criticism of the amounts payable under the South Australian and Western Australian redress schemes.[48] There was also intense criticism of the decision of both the Western Australian and Tasmanian Governments to reduce the maximum amount of compensation payable under those two schemes.[49]

2.35 Submitters expressed different views on whether compensation should be a flat amount or should be scaled to reflect the individual experience of claimants. For example, Mr Maurice Vickers submitted that:

...we should all be paid the same amount and not a graduated scale because of what the governments decide on how you [were] treated. It doesn't matter how we were treated, "We were all stolen from our mothers or parents" and deserve the same.[50]

2.36 By contrast, other submissions argued that compensation should be scaled to reflect factors such as:

(a) the length of time in care;

(b) the type and severity of the abuse or neglect the claimant suffered; and

2.37 Ms Muriel Dekker acknowledged that it is fair for people who spent most of their childhood in children's homes to receive a higher amount of compensation than those who were only in care for a couple of years. However, she argued that the ongoing emotional, psychological and physical effects on the lives of people who were in care for a shorter period can be just as devastating and long lasting:

Therefore it seems fairer that something over half the amount of compensation granted to those in "homes" for a longer period – should [be] given for those there for a lesser time – but who also suffer similar lifetime effects because of abuse in children's homes.

...I emphasize that once the abuse occurs the ongoing effects last a life time – whether the abuse was for a shorter or longer period – the damage is done.[52]

2.38 Mr Brian Hanrahan commented on how compensation was calculated under the Queensland redress scheme and queried whether sexual abuse should be given primacy in calculating the amount of compensation applicants receive:

...anyone who admitted to being sexually abused was considered to be a financial priority, I am a little curious how this was the motivating force over mental and physical abuse with long ranging financial effects, my suggestion [is that] in any future schemes more attention be given to such a delicate issue...[53]

2.39 Other submitters argued that they should be compensated not only to provide redress for their experience in care but also to reflect the ongoing impact this has had on their lives, particularly in terms of the economic impact of the health problems resulting from their time in care and the reduced income earning capacity caused by the limited education they received while in care.[54] One submission argued that, in some respects, the situation of care leavers is analogous to that of people who receive workers' compensation:

We should be in good health, physically active, functionally independent and able to work for as long as we choose but instead we are in poor health, deteriorating each year and becoming more dependent. Most Australians require health care in the last few years of their lives. Many of the Forgotten Generation need that assistance now. Our needs extend beyond medical care. We need considerabl[y] more support for daily living which is outside the scope of medical care in order to remain independent and live our lives in dignity. Some of our injuries are work related from the work regimes we undertook as children in the homes and the Good Shepherd laundries. We should be entitled to compensation as anyone else in Australia who suffers ill-health as a consequence of work.[55]

2.40 CLAN more broadly compared the circumstances of care leavers with the range of situations in which significant awards of compensation have been made by governments, including for wrongful immigration detention, injuries sustained while in jail, bullying in schools, and discrimination or harassment.[56] CLAN stated that:

We struggle to understand the distinction in principle between the circumstances leading to these compensation payments and the circumstances of the many vulnerable children who were owed a duty of care and whose trust was violated. Many children were incarcerated in institutions for most of their childhood years because of their supposed need for 'care and protection'; but in fact they were neither cared for nor protected from sexual assaults, vicious beatings, emotional abuse, neglect and deprivation of access to their parents and siblings. A clear duty of care was owed by the states and churches and charities who failed to discharge that duty of care.[57]

2.41 Several submitters also noted that the consequences of their experiences in care have a continuing impact on their family members. For example, Ms Sandra Beaton, who was placed in care in New South Wales, explained:

...redress is important as not only did I suffer as an innocent child, my children also suffered, due [to] the lack of and love & care shown when I was a child & the emotional and psychological damage done.[58]

2.42 Finally, the transparency of the compensation payments made by the redress schemes was also raised. A lack of transparency was seen as creating uncertainty where compensation recipients were unable to assess whether they had received an equitable amount. Mr Frank Golding compared the state redress schemes with the Irish scheme which had openly published criteria and distributed a newsletter to communicate 'how things were going and what sort of outcomes were being found'.[59]

Limits on eligibility

2.43 Several submissions were critical of the limits on eligibility applicable to existing state redress schemes. For example, the Queensland redress scheme was criticised on the basis that it excluded children who were placed in foster care or in institutions outside the scope of the Forde Inquiry such as adult mental asylums. CLAN noted that, under the Queensland redress scheme:

...those who have been in foster care are not eligible. For example, one of our members who was a Queensland state ward was not eligible for redress as she had been placed in foster care; however her 84 year old father received redress since he had been in a Queensland orphanage. Furthermore, only Care Leavers who were in orphanages, institutions and Children's Homes named in the Forde Report (1999) are eligible for redress. These terms of reference exclude foster care and Homes for disabled children like the Montrose Home for Crippled Children that one of our members was in...[T]he Queensland government has belittled the experiences of those who were in foster care and in homes for children with a disability and in doing so has not accepted its responsibility to those children whom they placed in foster care.[60]

2.44 Similarly, Ms Christine Waite and Ms Gwen Robinson submitted that compensation should be paid to people who were wrongfully placed in adult institutions when they were Queensland state ward children.[61] Ms Robinson noted that the Queensland redress scheme did not provide compensation to this group and described being held in an adult institution as 'the most horrific part of our childhoods'.[62]

2.45 The Tasmanian redress scheme does not apply to children who were voluntarily placed in care. The potential for inequitable outcomes to arise from this limitation is illustrated by the submission from the Hon Ruth Forrest MLC on behalf of Mrs Sandra Radford. In the case of Mrs Radford, she was too young to know the circumstances leading to her original placement in foster care and, as there is no documentary evidence to demonstrate that she was placed in care by the state, she has been found to be ineligible under the Tasmanian scheme.[63] In another case, this limitation meant that a brother who was a state ward was awarded compensation under the Tasmanian scheme, while his sister who was a 'voluntary' placement was not eligible.[64]

2.46 Several submissions were critical of the South Australian redress scheme on the basis that eligibility is limited to those who suffered sexual abuse. This means that no compensation is available to care leavers who suffered other forms of abuse such as physical, psychological or emotional abuse.[65]

2.47 Some submitters also argued that payments under the South Australian scheme should not be reduced or refused where a person has a criminal record since many of the people eligible for an ex gratia payment under the scheme may not have ended up with a criminal record if they had not been placed in state care facilities.[66]

Application process

2.48 The application process itself is traumatic for many care leavers: a recurring theme in the submissions related to the pain, shame and humiliation involved in having to relive their experiences in order to apply for compensation.[67] For example, Mr Tony Young, a member of the Alliance for Forgotten Australians, stated that he had suffered 'sexual abuse, physical abuse, neglect, psychological abuse'. He described speaking to authorities regarding his experiences:

When I went to the first review, I was given an hour and a half to tell my life's story, which I had tried to put it behind me. At 57 years of age or something, I had tried to forget about the majority of this abuse.[68]

2.49 Other care leavers have experienced difficulties in obtaining records relevant to their time in care.[69] This not only hampers their capacity to obtain compensation under the state redress schemes, but also effectively prevents them pursuing compensation through litigation. For example, one submitter was advised that their records had been destroyed in the 1974 Brisbane floods.[70] Ms Caroline Carroll from the Alliance for Forgotten Australians described the common experiences of those attempting to access records:

Sometimes, depending on where you were, private places can still try to charge people for their own information. You get a copy of your ward file and it is read by the department, or whoever the agency is, and they deem whether it is worthy of giving to you. They make the final choice about what and how much you are able to access...Accessing ward files is not easy for people. We need to supply ID, and a lot of Forgotten Australians do not have ID.[71]

2.50 The submission from the Hon Ruth Forrest MLC, on behalf of Mrs Sandra Radford, outlined the unfairness to claimants which can result where redress schemes require applicants to support their claims with written records. The following specific issues were raised with respect to the Tasmanian redress scheme:

Proving eligibility for claimants puts great onus on the claimant to provide sufficient information for records to be checked and verified.
The absence of evidence, such as a birth certificate, can prevent a claim from proceeding despite all reasonable attempts to provide one [having] failed.
Failure to recognise that in many cases claimants were too young to be aware of some of the details surrounding their care and circumstances.
The current mechanisms make the assumption that records are traceable and complete.
Archival records are very difficult to trace, if available at all, and are necessary to provide evidence to support many of these claims.[72]

Jurisdictions which have not established schemes

2.51 Many submissions were critical of the New South Wales and Victorian Governments for failing to establish redress schemes relating to children in care.[73] The submission from the Centre for Excellence in Child and Family Welfare on behalf of the Victorian 'Forgotten Australians Report' Sector Working Group (the Centre for Excellence in Child and Family Welfare submission) argued that:

...the time is well overdue for the Victorian and New South Wales Governments to determine what is required by way of redress for their "Forgotten Australians". In Victoria the Centre for Excellence has lobbied regularly [for] government to consider the establishment of a redress scheme that contains the best elements of other schemes – both within Australia and internationally. The Victorian Government's position, which provides funded services and possible legal redress to claimants, ignores the plight of Forgotten Australians for whom services are not adequate and who feel either unable or disinclined to take legal action.[74]

2.52 Ms Cherie Marian noted that failure to establish redress schemes in New South Wales and Victoria means that there is a great disparity in the resources allocated by different state governments to providing redress to care leavers:

State redress schemes which have been established have been substantially resourced by those State governments. (Western Australia = $114 million, Queensland = $100 million, Tasmania = $25 million). In comparison, on the 9th of August 2006, the Office of the Victorian Premier issued a media release boasting settlement of approximately 60 compensation claims since 1995 totalling $4.3 million. The disparity between this figure and funding provided by the aforementioned States, is the measure of justice yet to be served to survivors of abuse in 'care' in Victoria and New South Wales.[75]

2.53 Ms Angela Sdrinis, who has represented many claimants in negotiations with the Victorian Government, acknowledged that the Victorian Government will now deal with claimants even where proceedings have not been issued or where legal defences would be available to a claim. However:

...the State of Victoria will not make offers where there is no "legal" basis for the claim ie they still require evidence of breach of duty and require that a claimant has "evidence" in support of their allegations. Further they will not make offers of compensation in cases of neglect, emotional abuse or where they believe that physical punishments were consistent with the standards of the time.[76]

2.54 Mr Brian Cherrie was also critical of the approach of the Victorian Government to claims by former children in care. He stated that he has been waiting two years for a settlement offer, and that the Victorian Government has requested the exact dates he had been abused as a child and required corroborative evidence from witnesses or other victims. He submitted that:

It was nice that the Federal Government gave us an apology, at least it is an acknowledgement of our pain, but the matter of redress has been left to the state governments and that is just a total disaster.[77]

2.55 Another Victorian submitter argued that all care leavers should be compensated:

I believe all forgotten Australians who grew up in these hell holes should receive some kind of compensation...If a parent [had done these things] it would be considered child abuse. I was a ward of the state (Victoria). As my legal guardian they abused me physically, emotionally and sexually.[78]

2.56 Submitters who were in state care in New South Wales made similar arguments as to why they should receive compensation. For example, Mr Edward Bain contended:

I was not only robbed of my childhood, and of my mother and family, but I also suffered years of physical and emotional abuse at the hands of people who were meant to care for me. The state was meant to ensure that I was safe and educated, but I experienced neither.

I believe the NSW government owes me a great deal. However, there are no avenues for me to follow. No compensation scheme that acknowledges the great harm done to me.[79]

2.57 Mr Donald Edwards was also in state care in New South Wales. He stated that:

I feel we should be compensated for the loss of our childhoods, our families, and the abuse we suffered, both physical and mental as well as our ongoing problems over the years with our loss of self esteem and the ability to trust and show love.[80]

Litigation as an alternative to redress schemes

2.58 The committee notes that many care leavers simply do not have the financial means to pursue compensation through litigation, particularly given the risk of costs being awarded against them.[81] Origins Inc explained that it has explored the possibility of a class action to pursue compensation for 100 claimants with similar experiences. However, after significant preparatory work, a major law firm advised that the action could take decades, would involve a tremendous amount of work and would be very costly.[82]

2.59 Care leavers also face a number of legal hurdles to successfully make out a claim for compensation. The most obvious hurdle is that, for most care leavers, the usual period for pursuing an action under state statutes of limitations has expired.[83] This difficulty is compounded by the fact that, for some care leavers, it was many years before they were able to speak of their experiences or thought that they would be believed.[84] Some submitters suggested that the Commonwealth should legislate so that state statutes of limitations do not prevent former children in care from pursuing legal action in relation to the abuse and neglect they experienced in care.[85]

2.60 Mr Frank Golding explained that, in addition to statutory limitation periods, legal hurdles include:

[t]he difficulty in proving injury with claimants facing significant evidentiary barriers due to their vulnerability while in care, trauma both during and after 'care' and the passage of time since the events. It is exceedingly difficult to prove even on the balance of probabilities that abuse occurred after so many years when possible witnesses are dead, difficult to find, or when found, have become frail or ill...Yet Care Leavers have been confronted with extraordinary demands for detailed evidence such as the exact date and time of the abuse. Well-paid lawyers are instructed by government to set unreasonably high demands on claimants to demonstrate that their current injuries, including mental health problems, were causally connected to their alleged childhood abuse. Care Leavers find it extraordinarily hard to produce evidence because of the difficulties in establishing the required onus of proof with the passage of time and the loss or destruction of records and material documents.[86]

2.61 In addition, it can be difficult for care leavers to establish the liability of religious organisations which ran institutions, particularly where those organisations do not have a legal identity or are able to argue that they are not vicariously liable for the actions of their agents or employees.[87]

2.62 Mr Golding also noted:

A lot of the losses that people suffered—loss of family, loss of dignity, being lied to as a child and having letters from your family withheld from you—are not matters which the courts will hear about. These are not matters that are considered actionable.[88]

2.63 A submitter from New South Wales pointed out that pursuing compensation through the courts would involve the additional trauma of having to relate their experiences of sexual abuse in court.[89] Even where matters are resolved through mediation rather than proceeding to court, the process of pursuing claims on a case by case basis appears to be both expensive and traumatic for claimants. For example, Mr Gordon Waters stated:

I had to bring up all that had happened to me, which was gut wrenching just to be told "sorry for what might have happened".[90]

2.64 Similarly, Wings for Survivors argued that the process of pursuing compensation on a case by case basis traumatises care leavers again and means they will require further counselling.[91]

Need for a national redress scheme

2.65 Many submitters argued that redress for former children in care should be dealt with as a national issue.[92] In particular, it was argued that redress for former children in care should not depend on which state they grew up in.[93] The submission from the Centre for Excellence in Child and Family Welfare noted that:

Neglect and abuse endured while in the "care" of the State should not be dismissed only as an issue for individual States – this is a national issue, as evidenced by Prime Minister Rudd's apology and some of the promises he made as part of that apology.[94]

2.66 At the committee's public hearing in Canberra, an officer from the Department of Finance and Deregulation noted that the Commonwealth has a limited role with respect to addressing concerns about the existing state redress schemes:

The Commonwealth does continue to raise the issue of redress schemes with the states. Specifically the Australian government raised the issue of redress at the meeting of the Community and Disability Services Ministers Conference on 11 September 2009. It is the case that the Commonwealth's role in relation to those schemes is one of influence and discussion. It is not possible for the Commonwealth to direct states in relation to their redress schemes. But the Commonwealth...continues to be actively involved in discussing matters of redress with the states.[95]

2.67 The International Association of Former Child Migrants and their Families argued that the Commonwealth has a specific responsibility to provide redress to child migrants given its role in bringing the child migrants to Australia and its statutory responsibility for their guardianship and welfare.[96] The association submitted that:

The Federal Government needs to take a more active role to ensure that redress is not a postcode lottery – justice should not be dictated by arbitrary details such as which State you finished up in when you landed in Australia as a child migrant.[97]

2.68 Even where states have established redress schemes, Mr Frank Golding noted that considerable inequity results from the variations between those schemes:

Compensation and redress schemes in Australia are so inconsistent as to produce grossly inequitable outcomes. The States with a current or now-closed redress scheme all operate in different ways set different eligibility criteria mandate different timeframes and offer different amounts of redress.[98]

2.69 In a similar vein, Ms Cherie Marian submitted that:

Lack of oversight by the Commonwealth with regards to the establishment of redress schemes nation-wide has left the States 'rudderless'; floundering to address the issue in an ad-hoc fashion, which...in turn, has caused much confusion, dissention and in some cases outright bitterness, among those affected many of whom feel that such an approach has added mere 'insult to injury'.[99]

2.70 Many submitters expressed support for the establishment of a national redress scheme with financial contributions being made by all states.[100] It was also argued that churches and charities which operated institutions where children were abused or neglected should contribute to a national redress scheme.[101] CLAN submitted that:

...the Commonwealth must lead the way and encourage the states and churches and charities to contribute to a coordinated national redress or compensation scheme for Care Leavers. This is possibly the only way that universality, consistency, fairness, accessibility and equality can be achieved.

Under current redress schemes in Australia, an intolerable injustice is being shown not only to those Care Leavers of states that do not have a redress scheme, but also to those within each redress scheme. As it stands, redress in Australia is sub-standard in comparison to international practice. By those standards Care Leavers are not attaining the justice they deserve.[102]

2.71 In her evidence to the committee at the public hearing in Sydney, Ms Leonie Sheedy of CLAN expanded on the argument that a national scheme is required:

One of the recommendations in the Forgotten Australians report was that the Commonwealth set up a national reparations and redress fund, and the federal government continue to wash their hands of this issue and say it is a states and territories issue...

We want to be treated equally. It should not matter which state you were raised in. We are all Australian citizens and we all deserve redress and reparations regardless of where the harm and damage was done. I hope that in the recommendations to come out of this inquiry your committee will put pressure on the federal government to show leadership and set up a national reparations fund that creates equity for everybody.[103]

2.72 However, in response to a question from the committee, Ms Sheedy conceded that there would be no need for a national scheme if all states and territories established their own redress schemes:

If South Australia, Victoria and New South Wales implemented redress schemes...there would not be a need for a Commonwealth one. But there is no pressure brought on those three states to bring this issue to a head and introduce schemes, and there is no pressure brought on the churches and charities that ran these institutions and caused this harm.[104]

2.73 Some submitters more specifically supported a national scheme modelled on the Irish redress scheme.[105] Ms Angela Sdrinis noted that the lowest band of compensation under the Irish redress scheme resulted in higher payments than the highest payment available under any of the Australian state redress schemes.[106] She submitted that:

The strength of the Irish scheme has been firstly that adequate compensation was made available to victims but it also provided for a more "consistent" and transparent method of assessing compensation as compared to the Australian models.[107]

2.74 In states where a redress scheme has already been established, Ms Sdrinis suggested that the national scheme could provide top-up payments to claimants depending on the maximum payment available through the national scheme.[108]

2.75 One submitter, who was in institutional care in Victoria, explained that the national apology to Forgotten Australians led many to believe that redress would be dealt with as a national issue:

It is time for the Government to provide financial redress to all Forgotten Australians / Care Leavers. The National Apology in 2009 led us to believe that, at last, our Government believed us when we told them what had happened to us. How can you believe us but not want to make true amends.[109]

Non-monetary compensation

2.76 Some submitters argued that care leavers should receive other forms of redress in addition to, or in place of, monetary compensation. The most common proposal was for a 'gold card' which would entitle care leavers to benefits such as:

(a) private medical insurance;

(b) dental services;

(d) free travel on public transport.[110]

2.77 The Alliance for Forgotten Australians proposed that the gold card should provide access to services similar to those provided to Department of Veterans' Affairs gold card holders:

Providing 'gold card' access to health care would recognise the extreme disadvantage suffered by survivors who had poor medical and dental care as children and who now have high needs for which they cannot afford to pay. Some report refusal by private health insurers on the basis that their poor health arises from a prior, unspecified health condition. Dental care is a recurring theme in correspondence, as is mental health. A card would also be a useful signal to doctors and allied health care professionals, alerting them to the disadvantage and the multiple health issues faced by this group.[111]

2.78 Another common proposal was that care leavers should be given priority access to employment, education and training programs and have their TAFE fees or HECS debts waived.[112]

2.79 However, in evidence at the Melbourne public hearing, Mr John Dommett from Connecting Home distinguished between providing compensation and providing services:

I do not think we can confuse the funding of support agencies, which are a social response by government, to compensation. People with disabilities, people who are elderly, people who have all sorts of issues have, as part of government's response to them, agencies that are funded. That is not even seen as part of compensation; that is seen as an inherent right of being a citizen of this country.[113]

2.80 A number of submissions pointed to the importance of redress schemes providing acknowledgement and recognition for recipients. Dr Jane Wangmann, who appeared with CLAN at the Sydney public hearing, noted that '[a]pplicants rarely talk about the process in terms of its numerical value...but they talk about whether or not they were believed, heard, listened to and acknowledged in the process'.[114] She argued this should be incorporated into redress schemes:

Courts provide meaning to the decisions that they give. The judge provides extensive written decisions. We need to see how compensation schemes can include this so that people know that the money—which can never replace what has happened to them—has some sort of symbolic meaning and provides recognition of the harm that is done and is not seen as a payoff or a mechanism of silencing.[115]

2.81 Mr Alfred Stirling, who was a state ward in Victoria, noted that redress is important to care leavers because it is 'about acknowledgement that we are telling the truth about the abuse in "Care"'.[116]

2.82 Mr Frank Golding noted that there had been some forms of non-financial redress, through the establishment of specific services. However, he considered that it is 'very hard not to feel cynical about this exercise because of the amount of money...allocated', namely $7.1 million in Victoria, and $9.1 million in New South Wales over four year periods.[117] Mr Golding noted:

Compensation is a tangible means of acknowledging the wrongfulness of the abuse and the harm that was done; it can close an unhappy chapter in a person's life and be the start of a healing process. Compensation is also a form of vindication: in acknowledging the truth of the matter the victim is set free from the suffering caused by abuse all those long years ago.[118]

2.83 Ms Varina Gilbert, who was in institutional care in Tasmania and Victoria, stated that, for her, recognition was the most crucial aspect of redress:

I think it is much too late for me for apologies given under pressure, uncomprehending counselling and conditional compensation. The Salvation Army owes me and State Governments should have been responsible for the institutions they were approving. They are the ones who should have the counselling and vocational training. What I need is recognition that I really did pass this way and live this childhood – just because records have been disposed of, people have died and buildings knocked down doesn't erase my history. I want everyone to know what happened to me and who did it.[119]

Compensation for members of the Stolen Generations

2.84 A few submissions and witnesses supported the establishment of a compensation scheme for the Stolen Generations. The Aboriginal and Torres Strait Islander Social Justice Commissioner reiterated a previous recommendation by the Australian Human Rights Commission (AHRC) that the Commonwealth should work with state and territory governments to develop a consistent approach to providing financial redress to the Stolen Generations.[120] The Social Justice Commissioner noted that the United Nations Human Rights Committee has also recently recommended that Australia:

...should adopt a comprehensive national mechanism to ensure that adequate reparation, including compensation, is provided to the victims of the Stolen Generations policies.[121]

2.85 Similarly, Connecting Home, an organisation which provides services to members of the Stolen Generations in Victoria, urged the committee 'to consider the establishment of a compensation scheme for Aboriginal and Torres Strait Islander people who were removed from family'.[122] At the Melbourne public hearing, Mr John Dommett from Connecting Home stated:

The fundamental issue around compensation is that it is about righting a wrong. It is not about the money that people get. It is about a responsible government saying, 'We got it wrong'...When people from stolen generations try to access compensation through common law, they need to prove that there has been abuse. We would argue very strongly that the abuse occurred when they were taken. The abuse was systemic.[123]

Committee view

Redress for care leavers

2.86 On 16 November 2009, the national apology made by the then Prime Minister, the Hon Kevin Rudd MP, and the then Opposition Leader, the Hon Malcolm Turnbull MP, highlighted the situation of children who had suffered in institutional care in Australia. This followed a number of inquiries by the Senate Community Affairs Committee which focused attention on the historical abuse of children and the need for this suffering to be recognised and redressed.

2.87 In the context of the current inquiry, the committee is concerned about the lack of consistency under existing state redress schemes in the treatment of individuals who had damaging experiences while in institutional care as children. In the view of the committee, there is scope for improvements to these redress schemes. A consistent and transparent approach to determining the quantum of compensation would benefit those receiving redress, allowing them to be certain they were being treated fairly, regardless of where their claim was made. Similarly, consistent eligibility criteria for compensation in each state would mean that persons are not arbitrarily excluded from claiming redress merely because of the particular jurisdiction in which they suffered abuse. Persons making applications for compensations should also feel confident that their redress claims will be treated sensitively and thoughtfully, and the assessment process will not be unreasonably stressful or traumatic.

2.88 A further issue of concern is the evidence received by the committee from care leavers who would have been eligible for payments under the Queensland and Western Australian schemes but were unaware of those schemes until after the closing date for applications.

2.89 Many witnesses and submitters supported the establishment of a national redress scheme to ensure greater consistency and fairness in the treatment of care leavers. Given the operation of state redress schemes to date, the committee is of the view that the establishment of a national scheme would cause considerable duplication in states which have already provided some measure of redress to care leavers. Responsibility for reparations for victims ultimately rests with those who managed or funded the institutions where children suffered abuse, namely state governments, but also relevant charitable and religious organisations. The committee considers that the administration of state redress schemes is primarily a state responsibility. In the view of the committee, the best approach to this issue would be for state governments to agree to separate but consistent redress schemes to compensate care leavers. Nevertheless, the committee encourages the Australian Government to continue its dialogue with the states in relation to these schemes. That dialogue should seek to deliver greater consistency between the schemes, as well as more consistent treatment of analogous claims under the terms of each scheme.

Recommendation 1

2.90 The committee recommends that the Queensland, South Australian, Tasmanian and Western Australian Governments review their redress schemes relating to children in institutional care to ensure:

a consistent and transparent approach to the quantum of compensation provided;
consistent eligibility criteria for redress which avoid arbitrarily excluding applications for compensation based on where abuse occurred; and
the application and assessment process for compensation appropriately reflects the traumatic experiences of care leavers.

Recommendation 2

2.91 The committee recommends that the Queensland and Western Australian Governments consider applications for redress from care leavers who were unaware of the redress schemes which operated in those states prior to the closing dates for applications.

2.92 The failure of the New South Wales and Victorian Governments to establish redress schemes is of significant concern to the committee. If governments approach the claims of former care leavers on a case‑by‑case basis behind closed doors, this would appear to limit liability as far as possible rather than to accept responsibility for providing redress. Furthermore, it means that the most marginalised care leavers (those who are illiterate, suffer from mental illness or are otherwise less able to protect their own interests) are the least likely to obtain any measure of compensation. It is clear from the evidence before this inquiry that, for care leavers, redress is as much about acknowledgement and recognition as it is about monetary compensation. The approach of the New South Wales and Victorian Governments ignores the crucial symbolic elements of redress.

2.93 The committee echoes the views of the Senate Community Affairs Committee that the Australian Government has a critical role to play in ensuring that redress schemes are established in New South Wales and Victoria.[124] More specifically, the Australian Government should pursue the establishment of redress schemes in those states through the Council of Australian Governments (COAG) and other appropriate national forums, such as the Standing Committee of Attorneys-General (SCAG).

Recommendation 3

2.94 The committee recommends that the New South Wales and Victorian Governments establish administrative schemes to provide redress to people who experienced abuse or neglect while in institutional or foster care in those states.

Recommendation 4

2.95 The committee recommends that the Australian Government pursue all available policy and political options, including through the Council of Australian Governments and other appropriate national forums, to ensure that:

New South Wales and Victoria establish redress schemes for people who suffered abuse or neglect in institutional or foster care in those states;
Queensland and Western Australia make provision to ensure continued receipt of redress claims; and
greater consistency between the criteria applied under state redress schemes is achieved.

2.96 The committee also notes that, in the period between 1911 and 1978, the Commonwealth was directly responsible for administration of the Northern Territory. Similarly, the Commonwealth was responsible for the Australian Capital Territory in the period between 1911 and 1989. It is not clear from evidence received by this inquiry, or previous inquiries, whether children who were placed in institutional care in the Northern Territory or the Australian Capital Territory during this period experienced similar abuse and neglect as children placed in care in other jurisdictions. However, the Bringing them home report contains sufficient material in relation to the experiences of Indigenous children in care in the Northern Territory to suggest that the experiences of all care leavers in the Northern Territory are likely to have been similar to those of children in care in other jurisdictions.[125]

2.97 Rather than rely on an absence of evidence, the committee considers that the Australian Government should take positive steps to establish whether abuse and neglect occurred in the territories and, if it did, to provide redress. Specifically, the committee considers that the Department of Finance and Deregulation and the Department of Families, Housing, Community Services and Indigenous Affairs should consult with the Northern Territory Government, the Australian Capital Territory government and the non-government organisations which represent care leavers in those territories to establish whether there is a need for a scheme to provide redress to people who were placed in care in the Northern Territory and the Australian Capital Territory.

Recommendation 5

2.98 The committee recommends that the Australian Government examine whether people who were placed in institutional or foster care in the Northern Territory or the Australian Capital Territory, during the periods that the Commonwealth directly administered those territories, suffered similar abuse and neglect to children placed in care in other jurisdictions.

Navigation: Previous Page | Contents | Next Page