Redress – Are we there yet?
Published on April 15, 2019 by Hayley Aldrich
Recent events in the Australian legal and political fields has seen a growing public focus arise regarding the complex issues around childhood abuse, be it emotional, physical or sexual. This attention has resulted in different avenues of restitution, available through the law and other schemes. Each State and Territory has handled compensation and rectification in their own unique ways.
This article will explore the work that Carroll & O’Dea Lawyers has done, specifically with the NSW Aboriginal Stolen Generations community, as well as the NSW Reparations Scheme and the Commonwealth’s Redress Scheme.
In late 2011 Carroll & O’Dea Lawyers was approached to represent members of the Stolen Generations who wished to seek compensation for treatment they experienced whilst they were wards of the State of New South Wales. As with any litigation process a number of obstacles arose, including but not limited to the Statute of Limitations, the standard of time defence, historical legislation, lost or damaged historical records and fading memories and the possibility of re-traumatisation.
Maithri Panagoda and Hayley Aldrich negotiated an alternative dispute process that saw individual claims progressed against the State of New South Wales, without the need for expert medical evidence. This process is still continuing, with 222 cases finalised to date. Each claimant receives a personal apology of behalf of the State for the trauma they suffered after being removed and some financial compensation.
Early in this process it became clear that a significant aspect of a victim’s trauma was the act of removal from their family. Due to historical legislation, this was unable to be compensated within these un-litigated claims.
The NSW Stolen Generations Reparations Scheme
The removal of Aboriginal children from their biological families and placement into State-run institutions and/or foster care, led to significant loss of culture, heritage and language. Survivors noted that when they returned to their families they suffered great disconnection with their community, which has consequently played out in a number of different ways throughout their lives.
All of this culminated in a loss of, and struggles with, identity which fed into depression.
This was something that was unable to be compensated under law.
Around the same time that Carroll & O’Dea began finalising unlitigated claims, the Parliament of New South Wales instigated an Inquiry into Reparations for the Stolen Generations in New South Wales. This inquiry was referred to the Committee by the House on 25 June 2015, to inquire into and report on reparations for the Stolen Generations in New South Wales. The inquiry considered the implementation of the New South Wales Government’s response to the Bringing Them Home report, published in April 1997.
At the parliamentary inquiry, Government employees who were directly involved in the process that Carroll & O’Dea was involved with, gave evidence on how claims were proceeding, and noted that Stolen Generations victims were unable to be compensated for removal and loss of culture.
The report was tabled on 23 June 2016.
As a direct result of this report, in December that same year, the New South Wales Government announced the Stolen Generations Reparations Scheme and Funeral Assistance Fund.
The reparations scheme provides ex gratia payments to living Stolen Generation survivors who were approved by, committed to, or otherwise came into the care of the New South Wales Aborigines Protection or Welfare Boards under the Aborigines Protection Act 1909, up until the Act is repealed on 20 March 1969 (our emphasis). The scheme is to run for 5 years, from 1 July 2017.
The establishment of this fund means that clients who were removed or came into the care of the Aborigines Protection or Welfare Boards are able to potentially make two types of claims – one under common law through our group action for mistreatment/abuse suffered after being made a ward of the Board, and one for the actual act of removal.
While Carroll & O’Dea welcomed this initial development by the Government, a new conflict arose for Stolen Generations Survivors. Well over 50% of our “Stolen Generations” clients were removed by the Child Welfare Department and made wards under the Child Welfare Act 1939. Children could be taken under this Act as opposed to the Aborigines Protection Act, for as simple a reason as the lightness of their skin colour.
The Child Welfare Act 1939 was therefore another opportunity for the Government at the time to continue its policy of assimilation, by removing children from their families and irrevocably damaging family and cultural ties.
By the New South Wales Parliament limiting the Stolen Generations Reparations Scheme to those who were made wards of the Aborigines Welfare Board only, a considerable portion of the Stolen Generations community in New South Wales has been excluded from making additional claim for payment for the act of being removed from their family. These Claimants are limited to making a claim under common law, and then only if they suffered abuse after removal and whilst being placed in State run institutions or State approved foster care.
This unfortunately has seen a number of survivors experience re-traumatisation.
In our opinion, for our indigenous clients, a reparations scheme for removal should have been set up for those who could prove that they were taken under the Child Welfare Act rather than the Aborigines Protection Act due to their “caste” and/or light skin colour. This would be relatively easy for a number of claimants, as this information is readily available in historical ward files.
The National Redress Scheme
On 1 July 2018 the National Redress Scheme was commenced for people who have experienced institutional child sexual abuse. Although the creation of such a scheme is to be commended, limitations have led to discrimination for those victims of abuse who were not sexually abused in institutions or foster care.
Child sexual abuse is a horrific experience for any child to endure. However, there are some situations where children have been subjected to severe emotional and/or physical abuse, which has left permanent mental scars. In this respect, there is no additional redress that these victims can obtain apart from common law. We are of the opinion that a similar scheme should have been created, for victims of severe and debilitating emotional and physical abuse resulting in mental harm.
The cap for financial damages under the National Redress Scheme is $150,000; $50,000 less than what was recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse
The scheme also places limitations on who can make applications, the most controversial perhaps being that an application may be “processed differently” if a claimant has ever been sentenced to more than five years in gaol.
This directly repudiates the evidence that many victims of childhood abuse enter a cycle of institutionalisation and incarceration as an adult. To exclude these victims from being able to receive compensation, just because they have engaged in criminal activity, is to ignore one of the major impacts of childhood physical, emotional or sexual abuse.
Carroll & O’Dea continues to provide advice to potential Claimants of the National Redress Scheme, regarding whether or not a common law claim could also be pursued. Due to the financial damages cap, it may be the case that victims are better suited to pursue a common law claim, where they may have been able to claim various heads of damages, such as past and future economic loss.
Whilst it is encouraging to see a broader acceptance of the truth of the epidemic of institutional abuse that occurred in our past, the limitations of the various restitutive scheme has resulted in many people being excluded from achieving justice through alternative dispute resolution. This stops many victims from actually pursuing justice, as the prospect of commencing court proceedings can be re-traumatising.
Whilst NSW has now abolished the Limitation defence in cases of child sexual abuse, court proceedings are still affected by lost records, death of witnesses and fading memories.