Institutional Abuse

Institutional abuse is a term used to cover abuse of children (either historically or recent) and includes physical, emotional or sexual abuse.

The claim is that an organisation, such as a school, church or children’s home, failed to protect the person from a risk of abuse. Other examples of institutions include, but are not limited to, detention centres, dormitories or boarding schools, hospitals, missions, orphanages, sports clubs, training farms, welfare services and youth centres.

There are several ways in which an organisation can be held legally responsible for injuries, loss and damage suffered by children, or other vulnerable, people under their care and protection:

• Through the National Redress Scheme (‘the Scheme’). If the organisation has joined the Scheme, or if governments have stepped in as “funder of last resort”, survivors can obtain redress payments, counselling, support services, written apologies, and other rehabilitative acknowledgements through the Scheme.
• If an organisation has been negligent in the employment of a perpetrator, it will be liable (direct liability) for injuries, loss and damage suffered by a survivor of child sexual abuse. For example, if an employee was hired without the organisation performing requisite background checks (which would on balance have shown that that person was unfit to be working with children), and then that employee used their employment role to gain intimacy with, and harm, a child.
• Organisations can also be held vicariously liable for the intentional wrongful acts of their employees, agents, volunteers, or any other responsible third-party charged with the care and protection of a child or vulnerable person while under the institution’s care and protection.
• If the organisation is a school or school authority, it has a non-delegable duty of care to its pupils in most circumstances if they are harmed in connection with their schooling.

In short, the Scheme was established on the basis of one of the recommendations flowing from the Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report released 15 December 2017). It is intended to:

• acknowledge that many children were sexually abused in Australian institutions;
• recognise the suffering they endured because of this abuse;
• hold institutions accountable for this abuse, and
• help people who have experienced institutional child sexual abuse gain access to counselling, a direct personal response, and a Redress payment.

Yes, you may choose to do so. However, we note that you only have one opportunity to accept or decline an offer for a Redress Payment and, depending on your circumstances, it may not be the only option available to you. It is recommended that you obtain legal advice before making what can be a life-changing decision.

Unlikely. Even in the event that common law damages claims are made by filing court proceedings, the vast majority of cases are capable of being settled prior to hearing, by way of alternative dispute resolution (such as, informal settlement conference, mediation, or by way of correspondence between the parties).

Yes. There are several options available to you. You could be eligible to receive up to 22 hours’ counselling (and more if needed), financial support payments up to $5,000, recognition payments of up to $15,000. However, you will likely need some legal advice regarding the time limits for such compensation measures, as the standard timeframe is 2 years from the date of the offence, except in certain circumstances.

*To learn more, please visit the NSW Victims’ Support Scheme Government’s Time Limits page, on this link:

It is well-recognised that survivors of child sexual abuse often feel unable or unwilling to report offences to police around the time of the offending. The perpetrator need not be charged with a criminal offence before a survivor makes a claim in relation to sexual assault.

• Under common law, the courts assess the weight of evidence on the balance of probabilities (that is, that the survivor more likely than not suffered personal injury, loss and damage as the result of sexual assault(s) by the perpetrator).
• Under the Scheme, there simply needs to be a reasonable likelihood that the applicant is eligible for redress, meaning that the chance of that applicant being eligible is real, is not fanciful or remote and is more than merely plausible.

*Please note that it is always important to seek legal advice as soon as possible. As time goes by, witnesses may move or pass away, and it may become more and more difficult to obtain any corroborative or contemporaneous evidence (if additional evidence is necessary).

In short, the answer is “no”. It is well-recognised that survivors of traumatic events (especially during childhood) often suffer psychological symptoms as a result, and are often more prone to criminal acts and substance abuse – which in turn leads to police/medical interventions, counselling and psychiatric treatment.

Yes, your GP holds your health information in strict confidence and can refer you to appropriate specialist care and treatment services, based on your individual need for support and treatment.

More often than not, the answer is “no”. The Redress Scheme is accepting applications until 30 June 2027 and there is no limitation period in relation to child abuse cases pursuant to section 6A of the Limitation Act 1969 (NSW).

You may be eligible to receive counselling, a personal apology, and/or a Redress Payment of up to $150,000 (depending on your individual circumstances).

Most responsible institutions have joined the Redress Scheme (including all national and state government institutions and 459 non-government institutions). However, some have not, whether due to becoming defunct, lack of funding, or otherwise.

Federal and state governments will step in to become the funder of last resort for the Fairbridge Society (which no longer exists).

The following institutions have also failed to join to date:

• Gold Coast Family Support Group (now FSG Australia);
• Hunter Aboriginal Children’s Services (HACS);
• RG Dance Pty Ltd;
• Yeshiva Centre and the Yeshiva College Bondi (pre-2003);
• Chabad Institutions of Victoria Ltd (Yeshiva Centre Melbourne), expected to join in 2021; and
• Jehovah’s Witnesses, also expected to join in 2021.

*The Australian Government has reaffirmed its commitment to working with State and Territory governments, to ensure that they become funder of last resort in circumstances where survivors would otherwise be unable to access the Redress Scheme.

The Redress Scheme will run until 30 June 2027 for survivors who will turn 18 before 30 June 2028.

The Australian Government has committed to making the application process more intuitive and user-friendly for applicants. For the time being, you can apply by:

1. Asking your Redress Support Service for a copy;
2. Downloading it from nationalredress.gov.au; or
3. Calling 1800 737 377 (charges may apply) and asking for an application to be sent to you.

When you apply, you will be asked to provide the following information:

1. Your information. For example, your name, contact details and Centrelink Customer Reference Number (if you have one).
2. Details about the abuse you experienced and how it impacted you. Include as much information as you remember; and
3. Provide a signed statutory declaration. Please note that the person who witnesses the declaration does not need to read your application (this part of the application process is currently under review and may be removed).

• The first step is to contact a lawyer to investigate your individual circumstances and obtain advice as to whether there may be a viable common law damages claim available to you.
• Once your lawyer has had the opportunity to investigate your matter, they will advise you further as to your options.
• Generally speaking, if you have a viable common law claim, your lawyer will file a Statement of Claim with the appropriate court on your behalf, commencing proceedings. That claim is then served on the defendant institution in order for it to investigate and determine its response. From that point forward, the parties each prepare their respective cases for hearing and attend to the court’s procedural directions, until the matter either proceeds to hearing and judgment, or is otherwise settled out of court.

The courts have the discretionary power to order the removal of party names in favour of pseudonyms. In other words, your name can be replaced with a letter for the public record and non-disclosure / non-publication orders made. Here are some scenarios in which pseudonym orders have been made:

• proceedings relating to a stigmatising illness or condition;
• where it is necessary to protect a person’s psychological wellbeing;
• matters considering issues of fertility;
• actions concerning children; and
• where the prospective litigant would otherwise have been sufficiently deterred from commencing their case.

For more information about pseudonym orders and anonymity in court proceedings, please refer to our article on that subject.

Courts can use a discretionary power to set aside Deeds of Release, in circumstances where it would be just and reasonable to do so, weighing up the retrospective impact of the removal of limitation periods across Australia (in relation to child sexual abuse matters) against the circumstances of the parties entering the Deed, including the extent to which parties would be prejudiced if the Deed is indeed set aside.

It is important to obtain legal advice if you believe a previous settlement was unjust, unreasonable or the compensation agreed was trivial/insufficient when compared to the injuries, loss and damage you or a loved one suffered.

As you can see based on the questions and answers above, navigating through the various options available to survivors of institutional abuse can be a very confusing and stressful process. An experienced personal injury lawyer will assist you through whichever option is best for you, based on your individual circumstances and needs.