The important difference between the National Redress Scheme & making a damages claim

It's been over six years since the release of the Royal Commission into Institutional Responses to Child Sexual Abuse final report.

Since that time, the Royal Commission has received over 42,000 phone calls, over 25,000 letters and emails, held more than 8,000 private sessions and had over 2,500 referrals to authorities including police. 

These numbers represent real people. Real people let down by institutions that had a responsibility to protect and safeguard their wellbeing as children and young people.

However, there have still been challenges for survivors seeking justice. In the years since the Royal Commission released its report, several defendants have been granted permanent stays. Permanent stays can be used as an unfair legal tactic that halts legal proceedings if the abuser or witnesses are unavailable (in this case often they have died since many of these cases are historical).

Fortunately, earlier this year, the High Court confirmed that ‘permanent stays’ are only to be granted by Courts as an absolute last resort.

This is an important step towards ensuring survivors really can have a different future, that permanent stays are not weaponised by the defendant institution and that the legal system is there to provide justice.

Legal options for survivors of institutional sexual abuse

If you are a survivor of institutional sexual abuse, no amount of financial compensation can undo the pain you have experienced. In cases of abuse, psychological injuries are severe and almost always stay with survivors throughout their lifetime. As the Royal Commission into Institutional Responses to Childhood Sexual Abuse exposed, for too long many survivors either suffered silently or were forced to accept inadequate settlements and waive their rights to future claims. 

As a result of the Royal Commission, there have since been significant changes to the law. And now survivors of abuse have options as to how they seek compensation. Those options are:

1. a claim under the National Redress Scheme; or
2. a damages claim.
    

It’s important to know that once you accept a payment from the National Redress Scheme you can never bring a damages claim – even if a damages payment may have been higher. 

Here we explain more about the two avenues for compensation and explore the key differences for survivors of institutional abuse.

What is the National Redress Scheme?

The establishment of a National Redress Scheme was a key recommendation of the Royal Commission. Simply, it aims to acknowledge harm done to survivors of sexual abuse. Compensation can be awarded if the institution in which you were abused has signed up to participate, but there are limitations to the amount you will receive which, in many cases, is less than that of a legal claim. Importantly, if you seek a payment through the National Redress Scheme, you will never be able to make a legal claim.

The Scheme helps survivors of institutional abuse to seek:

• a payment which is calculated according to the type of the abuse, and the type of institution in which the abuse happened – the maximum amount awarded is $150,000 (for the most severe cases)
• a further small payment for psychological treatment
• a request for a personal response from the institution responsible for the abuse. This could include an apology from a senior member of the institution, or an explanation of what that institution does today to protect children.
   

What is an institutional abuse damages claim?

Another recommendation from The Royal Commission was that governments around Australia introduce laws that allow survivors to bring legal institutional abuse claims, even if the abuse was many decades ago.

How the institutional abuse claim is brought can differ according to the State you live, but the principles are the same. Usually you can:

• Claim compensation for the actual impact the abuse has had on your life including loss of earnings, past and future
• Claim compensation for the pain and suffering you’ve endured
• Be reimbursed for treatment you have paid for and/or receive a sum to allow you to get treatment in the future
• Seek a personal response from the responsible institution, including an apology.
   

Seeking damages is a legal claim; which means a lawyer will gather evidence to prove the institution a survivor was abused in was negligent. 

What are the key differences?

Compensation

One of the key benefits of a legal claim for damages is they are not capped at $150,000 like under the national redress scheme and, in most cases, will be worth considerably more. Your payments are calculated in accordance with how Judges have calculated other payments for survivors. And these payments can be hundreds of thousands of dollars.

Under the National Redress Scheme, the maximum payment you can receive is $150,000. However this maximum amount can only be achieved by survivors who suffered the most severe abuse – in an institution where their living arrangements made the abuse easier to occur. Many survivors will not qualify for this payment, even if their abuse was severe and the impact has lasted a lifetime.

Exclusions

Not everyone is eligible for the National Redress Scheme. If the institution where a survivor was abused hasn’t signed up to the scheme voluntarily, it can’t be forced to join. As a result, anyone abused in that institution is not eligible. However, in March 2024 changes were introduced to the ‘protected information’ disclosure, allowing information about non-participating institutions to be shared with survivors who have named the same institution in their applications. This will enable better access to justice for a survivor who may not be able to access NRS.

You are also not eligible if:

• you are not an Australian citizen or permanent resident
• you have ever been sentenced to a jail term of five years or more for one of the following offences:

- unlawful killing
- sexual offence
- a terrorism offence

On the other hand, anyone is eligible to make an institutional abuse damages claim – unless they have already accepted a payment through the Redress Scheme. 

Time limits

Because the National Redress Scheme is new, claim processing times aren’t clear. In its first year of operation, around 4,000 survivors applied for compensation, but only 215 received payments, though it is hoped this will speed up as the Scheme progresses. The Scheme will run for 10 years, and will stop accepting applications on 30 June 2027.

As a result of new legislation, there is now no time limit on when an institutional abuse damages claim can be brought. Importantly, you will still be able to make a damages claim after the Redress Scheme closes - but not if you have already accepted a Redress payment.