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Compensation, Reparation and Redress
Laura Thomas, Lizzie Simpson
& Enda O’Callaghan
April 2008
© PIAC 2008
Overview
• Introduction
• Three compensation or reparation schemes:
- Stolen Generations of Aboriginal Children Act (Tasmania)
- Residential Institutions Redress Board (Ireland)
- Indian Residential Schools Agreement (Canada)
• Activity: design a redress scheme for victims of abuse in
State care in NSW
© PIAC 2008
Some common themes
• Addressing historical wrongs
• Perpetrated by government & churches
• Particularly vulnerable victims
• Alternative to litigation
© PIAC 2008
Terminology
• Compensation
• Reparation:
- acknowledgement & apology
- guarantees against reptition
- measures of restitution
- measures of rehabilitation
- monetary compensation
• Redress
© PIAC 2008
Background to the Tasmanian Scheme
• 1995 -Aboriginal Lands Act
• 1997 - Tasmanian Parliament apologised to the
Stolen Generations of Tasmania
• 2003 - Abuse in State Care Review Scheme
• 2006 - Stolen Generations of Aboriginal Children
Act 2006
• 2008 - announcement of a new Review Scheme
© PIAC 2008
Eligibility Criteria - Category One
Category One - Child/Ward of the State (section 5(1)):
• Must be an Aboriginal person;
• Must have been living on 16 October 2006; and
• Must on or before 31 December 1975 have been admitted
as a child of the State under the Infants’ Welfare Act 1935 or
admitted or declared a ward of the State under the Child
Welfare Act 1960; and
• Must have remained a child or ward of the State for a
continuous period of 12 months or more and must not have
been in the care of an Aboriginal family during that period.
© PIAC 2008
Eligibility Criteria -Category Two
Category Two - Active Intervention of a State
Government Agency (section 5(2)):
• Must be an Aboriginal person;
• Must have been living on 16 October 2006; and
• Must have been removed from his/her family between
1935 and 1975 for a continuous period of 12 months or
more;
• Must not have been in the care of an Aboriginal family
during that period; and
© PIAC 2008
Eligibility Criteria - Category Two
• Was removed by the active intervention of a
State Agency;
• Without the approval of a parent or guardian; or
• Duress or undue influence was applied to bring
about removal
© PIAC 2008
Eligibility Criteria - Category Three
Category Three - Descendants Claim (section 5(3))
• Must be an Aboriginal person;
• Must be a living biological child of a deceased person who
satisfies the criteria in subsection (1) or (2)
© PIAC 2008
The Assessment Process
Stolen Generations Assessment Process
Applications Received
Initial Reading undertaken by Assessor
Further documentary evidence
Initial Assessment Undertaken
If criteria met
If criteria not met
Final Decision
Interview with applicant
Further advice sought
© PIAC 2008
Final Decision
Ireland
 Commission to Inquire into Child Abuse (known as the
Laffoy Commission)
 Compensatory Advisory Committee (produced the Ryan
Report)
 Residential Institutions Redress Board
© PIAC 2008
The Residential Institutions Redress Board - Ireland
HISTORIC BACKGROUND
Mid 19th Century - British Government policy to remove
children from families and place them in institutions. Policy
continued locally after Irish independence.
1970s - The Kennedy Report leads to the abolition of the
institutional system.
1990s - Survivors and victims of the institutions launch
litigation and campaign for compensation.
1999 - ‘States of Fear’ broadcast. An Taoiseach Bertie Ahern
apologises and commences legislative response.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
“On behalf of the State and all the citizens of the
State, the Government wishes to make a sincere and
long overdue apology to the victims of childhood
abuse for our collective failure to intervene, to detect
their pain, to come to their rescue.”
Taoiseach Bertie Ahern, 11 May 1999.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
LITIGATION
Statute of Limitations (Amendment) Act 2000 altered legislation
retrospectively to facilitate litigation in the interests of justice.
If person suffers psychological injury due to child abuse, they shall
be deemed to be under a disability.
Normal 3-year period of limitations not to commence until
psychological injury overcome .
Takes into account a tendency to delay reporting crime by victims
of abuse/sexual crimes.
Similar amendment in Australia would overcome the hurdles in
Cubillo and Gunner.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
THE COMMISSION TO INQUIRE INTO CHILD ABUSE
(LAFFOY COMMISSION)
Commission to Inquire into Child Abuse Act 2000.
Commission to listen to people who have been abused during
childhood in an institution tell their story.
Commission to inquire into the abuse of children since 1940, find
out why it occurred and who was responsible.
Commission to report directly to the public on the results of the
inquiry, any recommendations stemming from those results, what
steps should be taken to deal with any continuing effects of abuse
and what protections need to be put in place to prevent the abuse
of children in State care from taking place now and in the future.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
Four areas of abuse examined – neglect, physical,
sexual and emotional abuse.
Victims and survivors get a choice as to how they want
to tell and record their story - a Confidential Committee
or an Investigative Committee.
Evidence taken on oath
Failure to appear before or co-operate with Committees
an offence.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
Laffoy Commission - Confidential Committee
For survivors who don’t want to be involved in investigative proceedings.
Hearings to be held in private before two committee members, no crossexamination.
Survivors may bring a person with them for support (reasonable costs of
bringing a person in support to be met by scheme).
Hearing may be audio recorded, but survivor can object to any recording.
No-one the subject of an allegation at this committee will be named in a
report.
At the end of the process the committee will issue a general report on its
findings, without naming survivors, perpetrators or institutions.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
Laffoy Commission - Investigative Committee
Full inquiry and investigation of allegations. Victims and survivors
can produce evidence. Committee can test evidence and rule on
cases of child abuse.
Victims submit an initial application, an officer of the Committee
investigates and any person or institution accused is notified of the
hearing.
Both victims and accused may be legally represented. Both victims
and accused may be questioned on the evidence they provide.
Committee can compel attendance of witnesses and production of
documents.
Committee to publish its findings at the completion of the process,
naming institutions and responsible persons or managers of the
institutions.
© PIAC 2008
Laffoy Commission - applications to give evidence
31 Jul 01
Confidential Investigation
Committee
(1,192)
Men
Committee
(1,957)
Total
(3,149)
650
1,406
2,056
542
551
1,093
301
440
741
378
670
1,048
(65%)
Women
(35%)
60 years of age or older
(24%)
Resident outside State
(33%)
© PIAC 2008
The Residential Institutions Redress Board - Ireland
The Compensatory Advisory Committee (The Ryan
Report)
Devise a scheme that is fair and reasonable,
provides individual assessment that is consistent with
court awards in similar personal injury cases,
or likely payouts from future court awards.
Scheme to provide predictability, sensitivity and
flexibility.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
Compensatory Advisory Committee
Scheme does not seek to put the injured person in
the position in which they were prior to abuse
taking place but to provide solace for victims in an
attempt to put right a grave wrong.
Awards can provide victims with tangible
recognition of the serious hurt and injury caused.
Providing redress can “allow many of those
victims to pass the remainder of their years with a
degree of physical and mental comfort which
would otherwise not be readily obtainable” - The
Ryan Report.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
.
Constitutive
elements of
redress
Weighting
© PIAC 2008
Severity
of abuse
1-25
Severity of
injury
resulting
from abuse
Severity of
injury
resulting
from abuse
Severity of
injury
resulting
from abuse
Medically
verified
physical or
psychiatric
illness
Psychosocial
sequelae
Loss of
opportunity
1-30
1-30
1-15
The Residential Institutions Redress Board - Ireland
Redress
Total weighting for
severity of abuse and
injury/effects of abuse
Award payable by
way of redress
V
70 or more
€200,000 €300,000
IV
55-69
€150,000 €200,000
III
40-54
€100,000 –
€150,000
II
25-39
€50,000 –
€100,000
I
Less than 25
Up to €50,000
.
Band
© PIAC 2008
Aus $1 = €0.60
The Residential Institutions Redress Board - Ireland
Additional redress on the principle of aggravated damages
Where the injury suffered by an applicant was not restricted to specific
acts of abuse, but was exacerbated by the general climate of fear and
oppression which pervaded the institution in which he or she was
resident, additional redress may be awarded by the Board.
Such additional award may not exceed 20% of the redress otherwise
payable.
An additional award based on the principle of aggravated damages will
only be made where the Board is satisfied that the manner in which
the applicant was abused was so oppressive or outrageous that an
award based solely on the constitutive elements of redress does not
represent an award which is fair and reasonable having regard to the
unique circumstances of the applicant.
No redress on the principle of punitive or exemplary damages.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
The Residential Institutions Redress Board (RIRB)
To compensate those who as children were victims of abuse while
in the care of institutions and in respect of which State bodies had
regulatory or supervisory functions.
The Residential Institutions Redress Board (RIRB) is a wholly
independent body chaired by a judge.
3-year application period: December 2002 to December 2005.
2,667 applications finalised in 2006.
Scheme was widely advertised in the global press and specialist
publications such as ‘Irish Echo’. Board officers travelled to the US
and UK to hear evidence and take submissions.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
Applicants to the Board must establish four
matters in order to qualify for an award:
his or her identity;
his or her residence during childhood (under 18
years of age) in an institution listed in the
schedule to the Act;
he or she was abused while so resident and
suffered injury, and
that injury is consistent with any abuse alleged to
have occurred while resident.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
Abuse of a child means:
the wilful, reckless or negligent infliction of physical injury on, or
failure to prevent such injury to, the child;
the use of the child by a person for sexual arousal or sexual
gratification of that person or another person;
failure to care for the child which results in serious impairment of
the physical or mental health or development of the child or serious
adverse effects on his or her behaviour or welfare,
or any other act or omission towards the child which results in
serious impairment of the physical or mental health or development
of the child or serious adverse effects on his or her behaviour or
welfare.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
The Board does not make findings of fault or negligence.
Applicants are not required to produce evidence of negligence by a
person, their employer or a public body.
Where there is a conflict of evidence, the making of an award to an
applicant does not constitute a finding of fact or fault.
The fact that applicants do not have to prove fault separates the
RIRB redress scheme from litigation, where proof of negligence
and fault is the key to success or failure.
Applicants unhappy with a decision or non-decision to pay can ask
for a review.
The quantum of compensation offered can be appealed also.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
Interim payments of 10,000 Euro are available depending on
age and health of applicant (Aus$14,000).
The highest level of compensation for the worst case
scenario is Euro 300,000 (approximately Aus$480,000,
almost equal to the only court determined compensation for
a member of the Stolen Generation in which Mr Bruce
Trevorrow was awarded $500,000 by the South Australian
Supreme Court.)
Applicants unhappy with a decision or non-decision to pay
can seek review. The quantum of compensation offered can
be appealed also.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
.
NATURE OF INJURY
EXAMPLES
PHYSICAL OR
PSYCHIATRIC
ILLNESS
1. Physical injury
2. Physical illness
1. Loss of sight or hearing. Loss of or
damage to teeth. Permanent
scar(s)/disfigurement.
2. Sexually transmitted diseases.
Respiratory diseases. Skin
diseases.
3. Psychiatric illness
3. Severe depression with suicide
attempts. Personality disorder.
Post-traumatic stress disorder.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
PSYCHOLOGICAL
.
INJURY
1. Emotional disorder
2. Cognitive
impairment/
educational retardation
3. Psychosocial
maladjustment
4. Anti-social
behaviour
1. Inability to show affection or trust. Low selfesteem; persistent feelings of shame or guilt.
Recurrent nightmares or flashbacks.
2. Literacy level well below capability.
Impoverished thought processes.
Limited vocabulary leading to communication
difficulties.
3. Marital difficulties involving sexual
dysfunction. Low frustration tolerance. Shyness
and withdrawal from mixing with people.
4. Substance abuse. Compulsive stealing.
Physical aggressiveness.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
.
LOSS OF
1. Having to refuse
OPPORTUNITY employment opportunity/
promotion because of illiteracy.
2. Need to concoct a false
identity and to live a lie with
workmates.
3. Unable to pursue certain
occupations, e.g. police,
because of “record”.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
.
TYPE OF ABUSE
EXAMPLES
SEXUAL ABUSE
Violent anal or vaginal
penetration.
Victim made to masturbate
member of staff or perform
oral-genital acts.
Sexual kissing; indecent
touching of private parts
over clothing.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
.PHYSICAL
ABUSE
Serious injuries requiring hospitalisation;
profound deafness caused by blows to ears.
Severe beating causing e.g. a fractured limb or
leaving permanent scars.
Corporal punishment more severe than was
legally sanctioned at the time, but leaving no
permanent physical signs;
Gross over-work involving inadequate rest,
recreation and sleep.
© PIAC 2008
The Residential Institutions Redress Board - Ireland
.
EMOTIONAL
ABUSE
Depersonalisation
e.g.
through family ties being
severed
without
justification or through
deprivation of affection.
General climate of fear and
apprehension.
Stigmatisation by staff, e.g.
through repeated racist
remarks
or
hurtful
references to parents
© PIAC 2008
The Residential Institutions Redress Board - Ireland
.
NEGLECT
Severe malnutrition; failure to protect
child
against
abusive
placements;
inadequate guarding against dangerous
equipment in work-place.
Failure to provide legally prescribed
minimum of school instruction; lack of
appropriate vocational training and
training in life skills.
Inadequate clothing, bedding or heating.
© PIAC 2008
Canada - Indian Residential Schools
Historical context
• Assimilation policy
• Government and churches
• 1874 to 1980s
• Similar harms
• 80,000 survivors
© PIAC 2008
Canada - Indian Residential Schools
More recent history:
• More than 10,000 claims
• Several large class actions
• Focus on torts - physical and sexual assaults
• Government Alternative Dispute Resolution
© PIAC 2008
Indian Residential Schools Settlement Agreement
Negotiation of Agreement:
• May 2005 - Political Agreement between Canadian
Government and Assembly of First Nations
• Former Supreme Court Justice appointed to
represent Canadian Government and facilitate
negotiations
• 6 month negotiation process
•Canadian Government, Anglican, United,
Presbyterian and Catholic Churches, AFN and other
Indigenous organizations, lawyers for claimants
• Settlement approved by 9 Canadian Courts
© PIAC 2008
Indian Residential Schools Settlement Agreement
• Common experience payments: $10,000 +
$3000 for each year in Institutionalisation, at least
$1.9 billion total
• Independent assessment process: serious
physical or sexual assault and other abuse that
caused serious psychological harm.
- $275,000 cap
- $430,000 cap lost income
- $15,000 future care
- 15% costs
• Right of review
© PIAC 2008
Indian Residential Schools Settlement Agreement
• Truth and Reconciliation Commission
($60 million, 5 year mandate)
• Commemoration fund ($20 million)
• Aboriginal Healing Fund ($125 million)
© PIAC 2008
Indian Residential Schools Agreement
• Total cost well in excess of $2 billion
• Churches contributing:
- $40 million for Common Experience Payments
- in-kind support
- contribution to payments under Independent
Assessment Process depending on facts
© PIAC 2008