“It’s a knee-jerk reaction to the Ellis defence coming down,” Clergy abuse survivor Paul Levey said of the Catholic Church’s decision this week to join the Royal Commission Institutional Responses to Child Sexual Abuse recommended National Redress Scheme.
The Australian Catholic Bishops Conference and Catholic Religious Australia (CRA) confirmed on Wednesday that the Catholic Church would enter the scheme, when it becomes possible under national legislation.
Since Wednesday, the Anglican Church, the Salvation Army, the Scouts and the YMCA have pledged to join the $3.8 billion national redress scheme, meaning 80 per cent of child sexual abuse survivors will be covered.
The Catholic Church's move is significant as it will be the first non-government institution to opt in to the scheme and because it will itself be liable for an estimated $1 billion in compensation.
However, Mr Levey and other local clergy abuse survivors believe the (Catholic) church is worried that, with the abolition of the Ellis defence, it will open the way for more civil lawsuits.
The passing of the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 last week quashed the legal technicality and now prevents unincorporated organisations from relying upon the ‘Ellis defence’ to avoid civil lawsuits.
“They (the church) think the redress scheme is going to be less costly, so they’ve jumped on this because they think it will minimise the financial impact,” Catholic clergy abuse survivor Phil Nagle said. “150,00 when you’ve been robbed of your childhood? You only have to look at the payouts in America ... if we get lawyers and get in front of a jury, you never know where it might end.”
“Some will take the money and run, but I will go ahead with civil action. I want to make sure they pay,” Mr Levey said. “If I could offer any advice, I want survivors to be very careful about this redress, give it a lot of thought and be careful about signing.”
Long term institutional abuse lawyer, Angela Sdrinis does not believe it will open the floodgates for civil lawsuits. “We have already been overwhelmed since 2014-2015 when the Royal Commission first recommended redress, then when the Federal Government announced the scheme and whenever there is a legislative change, we get calls,” she said.
“A lot of survivors have been hanging out for legislative change and there is an expectation they will receive the maximum amount. We don’t yet know what the assessment criteria, matrix is but we expect only the most severely impacted will receive the maximum.”
“The reality is that many survivors in Victoria may get little or nothing because of prior settlements. Under the redress scheme, prior settlements will be indexed and subtracted, so $35,000 a couple of decades ago will be notionally indexed to between $55,000 and $60,000 today. The average payout is $76,000 so that makes for some difficult conversations.”
“Viable common law claims will do far better before the courts, but (the) redress scheme provides a good option for some survivors,” Ms Sdrinis said.
“With the legislative change and the lifting of legal barriers over the past five years, now we at least get the chance to fight some cases in court. What is worse is not having that opportunity.”
Ms Sdrinis said her firm had more 1000 institutional abuse claims registered, including previously settled claims and a handful of test cases, from throughout Victoria and Tasmania. “We have been fighting this fight in Victoria for more than 20 years. The good thing is that the law is constantly changing so, after 20 years of beating my head against a brick wall, I finally have some weapons.”
Survivor Andrew Collins said he and other survivors welcomed the Catholic Church signing up for the redress scheme, and hoped it would encourage other institutions to follow.
“Now we call upon the church to show further leadership. The redress scheme should be seen as the minimum response. Survivors need ongoing care and support and, although a good start, the scheme barely provides acknowledgment of the trauma suffered,” he said.
“The redress scheme is only a 10-year program and it doesn’t cover enough the ongoing care and counselling that survivors need,” Mr Nagle said.