Terms of Reference – Compensation (Or: Here’s Your Brass Watch, Now Get Lost)

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Image source: http://www.irishecho.com.au/tag/royal-commission-into-child-abuse

Noted law academic, Judy Courtin, remarked in an article in The Conversation that, “the elephant in the room is the issue of compensation.” While the royal commission’s terms of reference do not allow it to award compensation, they do permit it to make recommendations about processes for compensation. The Australian Lawyers Alliance has called on the government to draw lessons from the compensation systems arising from the Irish government’s enquiry. Hopefully they do not mean that it should serve as a model. Rather, it is to be hoped that they mean that its shortcomings should be taken into account – and there are many.

Sometimes more can be learned from what people do rather than from what they say. At a press function for the release of the final report of the Irish enquiry, in a swank hotel, the chairman Seán Ryan (pictured above) said all the right things, which were echoed by government and church representatives. However, as even the Huffington Post reported, victims and their representatives were, “shamefully excluded” from the function.

Calls for an Irish enquiry reached a tipping point with the documentary in May 1999 entitled “The States of Fear”. While the enquiry was in its early stages, the government set up a compensation fund under an act entitled “Residential Institutions Redress Act 2002”. The Irish government indemnified the institutions against any further claims, including against the government itself, in return for a fund of $US176,000,000, most of which was in the form of property transfers to the government, including, for example, school buildings (presumably, at fair market price rather than some arbitrarily inflated value).

According to some estimates, this figure represents close to 0.1% of the Catholic Church’s annual revenues from the US alone. The amount did not break them, it would seem. By the time the enquiry was completed in 2009, the main opposition party’s education spokesperson, Brian Hayes, of Fine Gael, urged a review of the redress fund because, “the total liability we know about currently is $US1.65 billion,” which is about 1/10th of what was available. Nevertheless, the government closed the fund payments shortly afterwards, with no increase in payments, also despite the fact that some people had not had the opportunity to access the fund either because they didn’t know about it, thought they were ineligible, or had emigrated from Ireland. A specific court challenge on this basis was lost.

In the original agreement, the institutions provided 12.7 million Euros dispensed through The Education Finance Board to help victims’ educational aspirations. Mostly due to agitating by Mr Hayes, the Board was abolished and replaced with a scheme which also included counseling, medical, and other support services. The scheme would only be available to those who had passed through the redress process. The new Board would be headed by a judge but would include two victims’ representatives chosen by the government.

The fund, paid by the institutions, was to be 110 million Euros, but at the time of writing, only 21 million Euro had been handed over, largely again as property, to the fund. Moves are being made to change the fund so that it has a 50-50 split between the government and the institutions. The enabling legislation for the fund was the “Residential Institutions Statutory Fund Bill 2012”. Reports of the scheme’s effectiveness or otherwise are not yet available.

With regard to the Irish redress fund, those who experienced the Queensland Government’s redress process a few years back will find the following all too familiar:

  • For any applicant under the fund, the name of the abuser and of a representative of the institution in which the abuse took place must be provided. Point one: The victim may not know or remember the abuser’s name. How many ‘Brother Patricks’ are there in Ireland? Names of institutions also frequently change.
  • A copy of the application is to be provided, plus any other information the Board deems relevant, is given to the abuser and the institutional representative for confirmation and / or response. Point two: Too obvious to discuss!
  • The Board makes an initial offer of up to 10,000 Euro (with no minimum) assessed on a formula of scale of perceived injury from abuse. It is to be deducted from any final offer. If the offer is accepted, the applicant must sign a statement relinquishing all further rights. If the offer is rejected, there is a hearing where the applicant may have a close relative present for emotional support. The abusers and institutional representatives (including legal representatives) are also invited to take part in the hearing. Point three: David vs. Goliath scenario – without the slingshot.
  • Next, the matter can go to the Redress Review Committee which may uphold the original determination, increase it, or decrease it. Point four: Take a chance of getting even less.
  • Ultimately, anyone who rejects the process entirely can go to the abuser or institutions directly for compensation. However, if they do, they will miss out on the help under the new statutory fund for medical and other assistance. If it is found that the applicant is likely to get less from direct approaches to the abuser or the institution’s representatives, he or she cannot go back to the redress scheme. Point five: All doors are locked to dissidents; you’re on your own, mate.

Most commentators and legal experts have pointed out that it is extraordinarily difficult for victims to gain recompense, and when it does occur, it is often scandalously and insultingly inadequate. Rather than go down the path of the Irish experience of a government-administered fund, with institutional sourcing, it would make much more sense to concentrate on removing the obstacles presently existing for gaining compensation through the civil court process.

[Postscript: In 2004, the Christian Brothers in Ireland successfully sued the government there to ensure the enquiry’s report did not name any abuser, living or deceased, from their ranks. The final report played safe in that it not only met the court’s requirement in relation to the Christian Brothers, it applied the same decision to all abusers, irrespective of organisation].

Read more here:

TOMORROW: Terms of reference – apportioning responsibilities

That’s all I can say

Lewis Blayse (né Lewin Blazevich)

 

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