Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Community Affairs Legislation Committee
06/03/2018

John, Witness, Ryan Carlisle Thomas

SAVIDIS, Ms Penny, Partner, and Head of Institutional Abuse Department, Ryan Carlisle Thomas

WALLER, Dr Vivian, Principal Solicitor, Waller Legal Pty Ltd

CHAIR: I welcome witnesses from Ryan Carlisle Thomas and Waller Legal. Before we go ahead, I understand that one witness wishes to be known only as 'John'?

John : Yes.

CHAIR: Welcome, John. Does anyone else have any extra information about their appearance today?

Dr Waller : Yes, I've represented survivors of child sexual abuse in compensation claims for the last 23 years.

Ms Savidis : And I've practised in the area of institutional abuse for 10 years. Since the 1980s Ryan Carlisle Thomas has acted for over 2½ thousand survivors of institutional abuse. I'm appearing with John today.

CHAIR: Could you please confirm that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you?

Ms Savidis : Yes, it has.

Dr Waller : Yes.

CHAIR: The committee has your submissions. I now invite you to make a short opening statement. At the conclusion of your remarks we'll ask you some questions. I'm in your hands as to how you want to start.

Ms Savidis : We're first on the list, so maybe we'll keep it in that order? I promise not to take up the whole 45 minutes!

CHAIR: Okay.

Ms Savidis : I thank the Senate Standing Committee on Community Affairs for the opportunity to address you today and to answer any questions arising from our submission.

I appear before you today with the man identified by the pseudonym 'John'. John is a survivor of institutional abuse who has a criminal record. He was so incensed that survivors like him were going to be excluded from redress that he penned a letter to the Prime Minister, asking what more he had to do to be judged worthy of redress. You will find his letter as an attachment to our submission.

John's experience is not uncommon. Many of our institutional abuse clients have past and, sometimes, present criminal records. The royal commission itself reported that 10.4 per cent of survivors that it had spoken to as at 31 May 2017 were in prison at the time of their private sessions. Many of our clients, like John, haven't offended for decades.

We strongly urge the committee to reconsider the proposed blanket exclusion of those with criminal records of five years or more as foreshadowed by the then Minister for Social Services Christian Porter. The proposed exclusion is particularly unjust in circumstances where well-documented effects of child sexual abuse can include resorting to crime and imprisonment. Based on research in this field and our clients' testimonies, it's certainly not unusual for abuse survivors to go off the rails after suffering abuse. We consider that the committee needs to recognise that many of these crimes stem from psychological injury, antisocial behaviour and drug addiction caused by institutional abuse. To exempt abuse survivors with lengthy criminal records, we'd punish them again for crimes for which they have already served the time. The proposed exclusion would unjustly create two classes of survivors—the haves and the have-nots. A fairer scheme would judge survivors with criminal records equally to other abuse survivors. The proposed scheme, we say, is sophisticated enough to assess each claim on its merits.

In our experience of negotiating settlements for abuse survivors, our clients' criminal records are sometimes raised to attack credibility but seldom to deny all recompense whatsoever. There have been claims that we haven't taken on because we have assessed the nature of our client's significant offending and concluded that no offers of settlement would be made or compensation awarded, but our advice depends on the particular facts of each claim. In some circumstances, we've successfully acted for clients with significant criminal records including for murder and rape. At the other end of the spectrum, we've acted for clients with historical but unexpunged convictions for homosexual offences arising from their abuse. We've also acted for clients who have been charged with offences arising from when they have, in frustration or anger or both, attempted to confront perpetrators of their abuse.

We also believe that survivors who have suffered physical abuse, psychological abuse, cultural abuse and neglect with no associated sexual abuse should be covered by the proposed redress scheme. The effects of such abuse can also be debilitating for survivors and deserve recognition. Whilst we acknowledge that the royal commission's terms of reference did not extend to such abuse, the proposed scheme could be broadened to ensure that it is included, and the Victorian government's Betrayal of trust inquiry recommended that an independent redress scheme be established for survivors of criminal child abuse, regardless of whether such abuse was physical or sexual. I would now like to hand over to John to address the committee.

John : When I realised the Turnbull government wanted to have restrictions on victims' redress, I decided to write a bit of a story about my life and how it spiralled out of control when I was in the boys homes. They were supposed to be looking after me and, yet, they didn't. I was a system-made criminal. I'll start by saying that my story is one that should make such a judgement wrong. I was made a ward of the state at the age of 13. I was put away in a place called Billabong, a division of the Turana boys home. While in Billabong, I was a victim of molestation by an officer of the staff. After this happened, my life spiralled out of control completely. It had been tough already, but, after being molested in this government institution, I felt shattered. I wanted to commit suicide and I harmed myself a number of times. The only comfort I found in Turana was other inmates. I learned how to survive from older boys, which led to a life of crime. Already being a petty criminal at a young age, I continued on in that mode. I was then victimised at a Salvation Army institution at Bayswater. It seemed that I was a magnet for paedophiles. The abuse I suffered at Bayswater was mind-boggling and sent me right over the top. I committed major crimes at the age of 16, armed robbery, assaults and more. I was angry and I didn't care about my future. After going back to Turana, I passed the junior tech certificate. At the age of 14, I became a worker, gaining an apprenticeship as a printer. I was doing all right, but I committed an assault after an altercation and was committed to a short sentence in Turana again, from where I was then transferred to Bayswater for six months. I only served a short time of that sentence, but, in that time, I was raped, bashed, tortured and traumatised so much that I wanted to die. Nothing was ever going to be right for my life again. Even though I went back to my apprenticeship on release, it wasn't to be that I would settle in a normal life free from crime. I was ruined.

Although I committed major crimes, such as robbery, I was amazed that I never committed murder; I hated life so much. Can you understand how my life was? Nothing was going right in my life. Bayswater had taken away my future, and other things went against me, such as being rejected for national service. Being let down again I became more impulsive and the anger that had built up in me caused me that much frustration that they couldn't even control me in prison. I was continually a pain in the arse for the corrections authorities, attempting to escape, assaulting prison officers, serving time in maximum security, doing time in a prison by being locked away in a prison's prison, H division, for years, breaking rocks—would you believe!—and being bashed again and again by the thugs who worked there.

What I'm leading to here is the fact that I would have been all right in life if it hadn't been for the sexual abuse committed against me and rejections by the system. So how can Mr Turnbull judge me as not being eligible for compensation on the grounds of criminality? I was a system-made problem.

I played a huge part in the royal commission. I went to Adelaide and told my story, punching above my weight there. I then travelled to Sydney and added to what I had done in Adelaide. I made out it was easy to do this but all that time I was traumatised. I just want those many victims of institutional abuse who ended up in prison to be judged as equals to all other victims—in some cases, more tragic. In my case, I had to tell my wife and children what happened to me. I had already turned my life around. Now I found that I had been looking for most of my life for the love from a good person coming into my life and helping me become a good family man and a person my daughters are proud of.

To add to that, the last time I committed a crime was 1986. I haven't committed a crime since, although for seven years of that I was in jail. I've worked every day, and I'm just about to retire. I feel that I've done pretty well for a person who went through all of that, and I just don't want people to keep thinking that people in jail are just there become they're crims. They're there because a lot of them were put there, made there.

CHAIR: Thank you very much for telling your story. We really appreciate it.

Dr Waller : The redress scheme is a significant opportunity to provide acknowledgement, healing and redress to survivors, but the proposed redress scheme also poses some significant risks that we may do more harm than good if we don't turn our attention to some areas of the bill and the proposed scheme that needs improvement. Waller Legal's submission makes 28 recommendations that we think would be an improvement to the redress scheme. Today I just want to focus on what I feel are the three main points of that submission. The first one has already been eloquently covered by the other speakers here today, and that's eligibility. Secondly, I have some brief comments about the amount of redress. Thirdly, I want to talk about the importance of independent and expert legal advice to inform survivors so that they can make informed choices about how best to move forward.

I might commence with comments in relation to eligibility. The criteria for eligibility are not addressed in the bill whatsoever, and it seems that that might be something that a delegated authority turns their mind to. Firstly, it's not clear. Secondly, it has been reported that those who have been convicted of a sexual offence or who have served a term of imprisonment of five years or more will not be eligible to apply. This is contrary to the recommendation of the royal commission. The royal commission recommended equal access and equal treatment for all survivors. It's disturbing that such an important matter is to be determined by legislative instrument and is not subject to the scrutiny of parliamentary processes. It undermines the certainty in the application and administration of the redress scheme.

In our experience, children who were abused in institutional settings may, and I stress 'may', be more likely to commit crime as adults. This is perhaps so for those who were made state wards, institutionalised and then abused by their so-called caregivers. Many have difficulty dealing with persons in positions of authority. Some struggle with interpersonal relationships and may have anger management issues. Some succumb to self-soothing behaviours involving drug and alcohol abuse and related crime.

The royal commission found that about 10 per cent of survivors were currently serving a term of imprisonment. I am not sure what those statistics might be for people who have already concluded their terms of imprisonment. There is no excuse for criminal behaviour and harming of others, yet a civilised society is capable of reaching a compassionate understanding about why some criminal conduct occurs. Waller Legal notes that each and every survivor was a child at the time of the abuse and was not capable of controlling their environment. Many children were placed in an institution by a state government where adults abused them. Most likely they have been impaired in attaining the usual personal, social, educational and work-related developmental milestones. To exclude those in prison for five years or more seems to lack compassion and understanding. It undermines the concept of equal access and equal treatment. It seems unfair not only to block a survivor's access to a redress payment but also to block their access to an acknowledgement, and to counselling and treatment options. They are not in any less need of such acknowledgement and services than a person without a criminal history. The provision of this kind of service and assistance may help in their recovery and may help to heal what a survivor earlier today called the 'generational curse'.

I'd now like to make some short comments in relation to the amount of redress. I know this has been addressed by other speakers before me, so I'll keep it extremely brief. The bill provides that a maximum amount of redress available to each applicant not be more than $150,000. This is contrary to the royal commissions' recommendation of a maximum payment of $200,000. The bill also does not stipulate a minimum amount of redress. This implies that an application can be successful but no monetary amount of redress be offered. For the psychological safety and wellbeing of survivor applicants, I suggest to you that it would be appropriate to have a minimum payment of redress addressed in the bill, even if it is a small one. I would like to see that the maximum payment be increased to what the royal commission recommended and that consideration be given to a minimum payment in the sum of $10,000.

One of the most disturbing things, I think, about the redress bill is its capacity to impinge upon people's common law rights in the absence of careful independent and expert legal advice. A redress scheme by nature should offer a fair, simple and cost-effective non-adversarial process to provide acknowledgement, pastoral and psychological care and the payment of redress to survivors, who have been advised that there are no better options available to them, or who freely choose not to use other available avenues.

A redress scheme should do the survivor no additional harm and it should be a trauma-informed process. A redress scheme should not diminish a survivor's common law rights unless the basis upon which it does so, and the likely value of a common law claim, is clearly explained to the survivor, who then exercises a free and informed choice. I submit to you that the proposed redress scheme risks significant disservice to survivors, as it requires a common law release to be signed in circumstances where the scheme has a cap of $150,000, and the average payment is anticipated to be $50,000 to $60,000.

The scheme does not provide for past or future loss of earnings to be taken into account. The scheme does not provide for past or future medical expenses beyond the 10 years of the operation of the scheme. It does not allow for a plaintiff to recover punitive of exemplary damages. Accordingly, it is incumbent upon the federal government to ensure that survivors have access to funded expert legal advice. A redress scheme should be an avenue of last resort for those who cannot access justice through any other means more likely to deliver a better result for survivors. Redress is welcome and appropriate in a number of circumstances—for example, where it can't be proven that an institution was negligent or otherwise liable; where a defendant can no longer be identified; where the survivor lacks the emotional resources to want to go through an alternative dispute resolution process or a litigation process; where the survivor is unwell or requires a quicker, simpler process; or otherwise where the survivor simply chooses that option being informed of their rights.

If survivors are not carefully advised of their common law rights, they will suffer a significant miscarriage of justice, and this is the real and most significant risk of the redress scheme as currently proposed by the bill. Because a release is required, the operation of the redress scheme necessarily restricts or extinguishes a survivor's common law right to run a compensation claim, and this is a matter of significant importance. It is not only critical that survivors have access to experienced legal advisers who can explain the impact of any potential deed of release—it's not difficult to understand that it ends your common law rights—but critical that survivors get advice and someone to investigate and advise as to the likely value of the common law claim. I put it to you that unless somebody knows the value of their common law rights they're not freely choosing one option over another.

If a common law claim were to be possible for a survivor, they would have access to uncapped general damages for pain and suffering; they would have access to exemplary or punitive damages in some circumstances; they would have access to the recovery of funds for past and future medical expenses, and past and future loss of earnings; and they would also have the capacity to recover legal costs on a party/party basis. There have been some recent decisions of the Supreme Court of Victoria which demonstrate that, with recent legislative reforms, sexual assault survivors can achieve significant awards of damages against institutional defendants. One case I want to mention briefly is the matter of Hand v Morris, where the plaintiff in that case alleged that he was sexually assaulted by his schoolteacher. The court ordered that the plaintiff should receive general damages assessed at $260,000; past pecuniary loss—which was loss of wages—in the sum of $100,000; future pecuniary loss at $320,000; and future medical expenses at $36,400. If Mr Hand had applied under the redress scheme, the most he could have recovered would be $150,000, and it's not likely that he would have recovered the maximum but perhaps only the average payment of around $50,000 to $60,000. It's also important to note that Mr Hand would not have been able to recover the cost of past and future medical expenses and would not have been able to recover loss of earnings.

There was also the recent decision in Erlich, which was the case in relation to a school that assisted the alleged offender to flee the jurisdiction to avoid a police investigation. That matter also had a very significant award of compensation, but it also awarded exemplary damages to reflect the court's displeasure at the conduct of the institution in assisting the alleged offender to flee the jurisdiction. Things like exemplary damages are not available under the redress scheme.

So it is very important that survivors receive informed advice about whether or not they have a potential common law claim and the value of that claim. The value of common law rights is likely to be substantially in excess of what is available under the redress scheme. It's therefore incumbent upon us to make sure that great care is taken around the execution of the release that will be required in order for a person to receive their redress payment, and it's critical that survivors have access to funded expert legal advice.

It's probably a common concern of people that funds go to survivors and that legal expenses not eat up substantial amounts of public funding. I would propose something like what occurred in the royal commission, where lawyers were able to apply for funding on, basically, a legal aid type of rate so legal fees were kept to a modest amount. I would also suggest that lawyers be appointed to a panel of experts so that there is some checking to ensure that suitably qualified and experienced lawyers are appointed to the panel and, in the event that there were any concerns about legal fees being charged, a lawyer could be removed from the panel.

The other thing that I would like the senators to take note of is that there is sweeping law reform taking place across all jurisdictions in Australia. Civil litigation and alternative dispute resolution processes are increasingly available and accessible to survivors. There are significant law reform projects progressively underway in a number of Australian jurisdictions. This ongoing process of law reform will continue to facilitate access to justice for survivors of institutional abuse. It is anticipated that Western Australia may soon abolish limitation periods for child sexual assault matters, as part of a civil law reform project taking place in that state. In 2015, Victoria abolished time limits for child sexual abuse matters, allowing plaintiffs to issue proceedings as of right. In 2016, Queensland made legislative reform to facilitate survivors being able to commence common law proceedings and the capacity to overturn previously signed releases. We understand that the law reform project flowing from the Victorian parliamentary inquiry is not yet complete, and that improvements will continue to be made. In fact, today, announcements have made in this regard, reducing the availability of the Alice type defence to allow institutional defendants to avoid responsibility for child sexual abuse occurring in the past.

At a time when governments across Australia are moving to make compensation claims more accessible to sexual abuse survivors, it would be a travesty of justice in the highest order to fail to advise survivors of the viability and potential value of their common law rights. The Victorian parliamentary inquiry and the royal commission have criticised many in-house church schemes that have offered survivors money in exchange for the signing of a release in circumstances where independent legal advice was not provided. I submit to you that the redress scheme as proposed in its current form poses a significant risk that we will repeat the harms of the past rather than learn from them. It is submitted that it would add insult to injury if the common law rights of survivors were unfairly diminished by the operation of the redress scheme.

After all that we have learnt through five years of the royal commission, I would ask the Senate to ensure that the redress bill is an historic moment of justice and healing for the Australian community. Please help make it an initiative that heralds the turning point from the mistakes of the past.

CHAIR: Thank you, Dr Waller. Senator Siewert, do you want to start things off?

Senator SIEWERT: I want to go to two things that are interwoven. It seems to me that it's in the institution's interest that they have a redress scheme rather than common law remedies, because it significant reduces the amount of money.

Dr Waller : I agree.

Senator SIEWERT: I don't know if you have been here for the whole day, but one of the discussion points we've heard is that the cap was reduced from $200,000 to $150,000 basically through roundtable discussions with institutions. That is what we have been told. So it seems to me that this helps institutions significantly.

Dr Waller : I would agree with that analysis.

Ms Savidis : I second that analysis. Also, the passage of time that it is taking to introduce redress, $150,000 is going to diminish with time, and there doesn't appear to be any sort of factor for inflation down the track.

Senator SIEWERT: Bear in mind that my questions are coming from a non-lawyer. Could you outline a little bit further how you would see amendments made that would address the concerns you are expressing about people essentially signing away their common law rights or access to the law? It has also been put to us that the redress scheme will help survivors, and they talk about the last resort option but also that it is easy to access and they don't have to go through the harrowing experience of court and all things bound up with that. How do we come to a position that is the most ideal outcome for survivors?

Dr Waller : The first is that it is important that we don't see it as redress 'or' litigation. We've been running common-law claims, or resolving them early, through alternative dispute resolution mechanisms. So, the first distinction I'd like to draw is that it is not redress or litigation; it is redress or attempts to resolve a matter out of court, with litigation still being a last option for people. We do find, even when prosecuting people's common-law claims for compensation, that most matters resolve well ahead of any hearing. That is the first thing. And trauma informed practices can be incorporated into those alternative dispute resolution processes. Nonetheless, there is a role for redress, and it's very important for people who don't wish to explore the alternative—people who may be unwell or who may be looking for an expedited and more cost-efficient process—and that's perfectly legitimate. But when exercising that choice about whether to go down the redress path or pursue common-law rights, I think the important advice is not so much: 'You're being asked to sign a release. That will sign away your common-law right to run a claim for compensation.' Almost anyone could give that advice. The important analysis is: do they have a viable claim? What is the probable value of their common-law rights?

So, I would imagine it might be an idea to set up a panel of lawyers who have experience in investigating and assessing these matters. I think there needs to be more time. The bill says an offer has to be accepted within three months. We can't do a proper investigation of a person's potential common-law claim in three months. We might need to get their state ward file or we might need to access police records or transcripts of evidence from criminal trials. More time would be needed. So, I would imagine that there could be a panel of suitably experienced lawyers. People are referred off—if you want someone who can assess your common-law rights for you, here are some people who come suitably recommended. More time to make a decision is needed. Obviously, it is a concern for the community as a whole that not too much money is spent on legal costs. It is important that the bulk of the funding available goes to assisting survivors, but I don't think that that should be at the expense of survivors being equipped to make informed decisions.

Senator SIEWERT: John, could I ask you a question?

John : Yes.

Senator SIEWERT: Thank you for sharing your experiences. It's really valuable for us to hear people's personal experiences and accounts. Can I ask you what would it mean to you personally to be able to access redress.

John : Personally, it's the only way left, I think, to compensate for the trauma, because no sort of counselling or anything like that can help. People like me have had to redress it ourselves—my counsellor and myself—and I decided I didn't want to continue on as a criminal. I decided long ago that you have to bite the bullet and say enough is enough. To get compensation will help the finances. I'd love to be able to get back to England and visit the family that I haven't seen and I've been looking for for over 60 years, and that sort of thing. It would just help with that sort of thing and any other financial problems that I might have or that might come up with in the future. It might give me a bit of comfort. That's all I can say. The thought of getting it wasn't what turned me around from being a criminal; it was finding what I wanted to find and that was a loving wife, kids and grandkids.

Ms Savidis : Can I just add that John has already settled his claim and given up his common-law rights many years ago before some of the reforms that Dr Waller spoke about, when there were still statutory limitations in force and there were many barriers. And claims were settling for a lot less than they settle for now that they could go to court and resolve. In his case, redress is the only option and that is one additional category to the ones that Dr Waller mentioned. There are some people who don't have the opportunity to pursue the common law now because they have signed deeds of release.

Senator WATT: Thank you for your evidence today. I was thinking about the fact that it's pretty unfortunate timing for survivors. At the very time we are looking at a redress scheme, all these law reforms are being made to open up other opportunities for people. We don't have a lot of precedent to draw upon to establish what the ballpark figures are for damages in these kinds of settings.

Ms Savidis : But we have some: two recent decisions of the Supreme Court. One was in excess of $700,000 for Mr Hand and we also have the decision of Erlich, which was an award of damages in excess of a million dollars.

Senator WATT: Your point is well made that both those are well above the cap that is being proposed here. In one of the cases you mentioned there was an award for exemplary damages where the institution assisted the offender to escape the jurisdiction. We had a lot of evidence about the need for the cap to be increased. Do you think there should also be some provision for an exemplary damages style of payment for particularly egregious examples or where an institution has been additionally culpable? I know it would be very difficult to work out the circumstances in which that applies and every example is egregious but what is your attitude towards that?

Ms Savidis : A thing the royal commission referred to when it was discussing how to assess claims in its redress final report, looking at a factor of—I'm trying to remember the particular terminology; I think it's 'other distinguishing factors', and I think they mention the aggravating nature of the abuse as a factor that could be considered then.

Senator WATT: In addition to the maximum that they recommended?

Ms Savidis : No, in arriving at an amount. That could be a factor to be considered in the amount that would be awarded. So if there was some capacity to take into account those types of factors in arriving at an amount, ideally above $150,000, aggravating factors could be considered in the context when considering the matrix of how to assess the claim.

Senator WATT: I take it from your evidence that your argument is not so much that people shouldn't have to sign a release but it's vital for them to get proper advice so they know what they are giving up.

Dr Waller : That is the gist of my submission. I think the concept of a redress scheme is a good one as long as there are safeguards built into it. I would imagine that many institutional defendants would be reluctant to participate in a redress scheme if it did not provide them with the certainty that a release provides them about the matter being concluded. Obviously we want as much participation in the scheme as possible so I do not necessarily have the view that a release should not be required because I think it is probably necessary to ensure broad uptake. But I do think that great care needs to be exercised around the circumstances in which that release is signed and I believe that survivors should have access to funded, independent expert legal advice to help them make those choices.

Senator WATT: Did you want to say something about the exemplary damages?

Dr Waller : Yes I did. I thought that another kind of circumstance in which that might apply would be where it has been well established that the defendant institution knew. I was here earlier this morning when Ms Christine Foster gave her evidence. Of course it has been well established that the Archdiocese of Melbourne were on notice from at least 1958 about the sexual offending of O'Donnell, which was well before her girls were even born let alone attended the school in Oakley where they were abused by O'Donnell. It would seem to me that those kinds of circumstances, just the blatant disregard, where knowledge is clear could also constitute an aggravating circumstance for an additional payment

Senator WATT: For an additional payment above whatever the cap is?

Dr Waller : Yes.

Senator WATT: Do you think that the relatively low cap on the redress payments could actually lead to states and institutions incurring a greater expense because it might provide an incentive for survivors to pursue civil litigation? There are a lot of disadvantages in undertaking litigation and going through the trauma of a court case. But if they think there is a reasonable is chance of a significantly higher payment, do you think that low payment will have people opting for the other option, which would actually lead to greater cost to institutions and the states?

Ms Savidis : Absolutely, I do. And our advice to a lot of clients, if we were providing advice about common law rights would be that they could get significantly more based on the recent decisions that Dr Waller has discussed, and, if they're giving up those rights by signing a deed of release, it's something that needs to be weighed very seriously. I've got a different view in our submission in relation to legal fees that we provided to the royal commission that was an attachment to our submission to the committee. We agree with what Dr Waller said about people being able to get advice beyond the terms of the deed of release itself. The Catholic Church's Towards Healing process has been criticised for a similar provision of legal advice just in respect of a deed where you're providing advice in a vacuum without any regard for the allegations of abuse and the quantum of the payment that's being offered to someone. You can't really give proper advice in that situation. We believe that there should be similarly a panel of legal experts but there should be fixed legal fees so that there is a cap, so that lawyers don't gouge the amount of money that survivors receive by way of legal fees. But, in order to genuinely agree to the terms of a redress payment, you really need to know what the opportunities would be to litigate the matter, and I'm concerned that we'll be giving advice to people that they should pursue those other avenues which would then be more costly and which you'd imagine would cost institutions a lot more in defending, rather than raising the cap for redress and hoping that more people go down that path.

Dr Waller : I don't disagree with that proposition. Any sensible arrangement to make sure that legal fees are kept at a reasonable level would be appropriate.

Senator SINGH: Thank you for your submission and thank you, John, for sharing your story with this committee and for your open letter to the Prime Minister. Obviously, we've talked about this limit that the current legislation has, excluding people like John, and what percentage of your firms would include victims who have had some contact with the criminal justice system over the years. I'm interested in knowing what the breadth is we're talking about when we're talking about exclusion, based on this particular part of eligibility.

Dr Waller : I don't have those kind of statistics at my fingertips, but, just based on general knowledge of my practice, for claims of abuse occurring in schools, it has some impact but not a huge impact. For claims arising out of someone being made a state ward and being placed in institutionalised care over long periods of time, my feeling is it is much more of an issue for state ward type claimants, which is not to say that every person who has been a state ward has these kinds of difficulties, but I would say it's more likely that long periods of institutionalised abuse play a factor in coping mechanisms later in life that might lead to some difficulty.

Ms Savidis : I would agree with that. We have a number of clients—primarily the clients who have gone through wardship or the juvenile justice system—who are currently still incarcerated. In keeping with the royal commission's findings that it takes 23.9 years for survivors to first disclose the abuse and that the offending diminishes with age, most of the clients who are still incarcerated are probably in their 40s. At the oldest, some are in their 50s. But a lot of our clients, on top of the ones who are currently incarcerated like John, have got previous criminal records. They've often stop offending decades ago. Again, I was going to try and run off some figures, but it's not possible to do that with our system for past incarceration. Speaking anecdotally, in terms of my practice that deals with wardship claims, I would estimate that as many as probably 50 per cent of clients have got past criminal records. I'm not sure whether they would be all be for five years or more, but certainly a lot of clients—

Senator HINCH: A cheap set of circumstances.

Ms Savidis : I won't comment about that. I'm not sure if parliamentary privilege would extend to commenting. But, certainly, a lot of them have got past criminal records and it relates to, as in John's case, things that happened many years ago, often when they were still wards of the state or in detention of some sort.

Senator SIEWERT: Thank you.

CHAIR: Senator Hinch.

Senator HINCH: Ms Savidis, RCT is very strong in saying that you oppose the exclusion of abuse survivors who have suffered non-sexual abuse like physical abuse, psychological abuse et cetera. Similar views have been put by a lot of witnesses this morning, especially very eloquently by people from CLAN. I have been pointing out that the royal commission and this committee and my future committee are restricted by terms of reference to only look at redress for sexual abuse victims in institutions. I want to hear your theory on how we get around that.

Ms Savidis : I'm not sure. In terms of the Victorian government, it has also publicly committed to implementing all of the recommendations of the Betrayal of trust inquiry, so, as far as the state government of Victoria opting in to a federal scheme, I don't know how that would work if it's not going to extend to physical abuse and they have committed to a redress scheme dealing with physical abuse. I'm not an expert in constitutional law. But whether there is a possibility of the terms of reference—

Senator HINCH: Speaking personally, I can't see the terms of reference being broadened so I'm trying to find some other way we can take care of all the other issues that you have been raising today.

Ms Savidis : I understand that the royal commission was limited by the terms of reference. I wasn't aware that that extended to the terms of the redress scheme itself. I presumed that parliament could have power to add extra things if it saw fit. I really think—

Senator HINCH: I think they do, but only if it deals with sexual abuse. Chair—

Dr Waller : Could I just add something that we have noticed—

CHAIR: We can have that discussion offline. Please, go ahead.

Dr Waller : We have noticed quite a bit—and I don't mean to cut you off, Penny. In institutions where physical violence seems to be very prevalent—and we have done a lot of claims in relation to Christian Brothers schools, where a particularly robust view about corporate punishment was the norm. I have over the past 20 years or so seen a correlation between the infliction of physical violence, making children compliant and keeping children quiet. So I would say that there is a relationship between the prevalence of physical abuse and individuals within institutions being able to get away with sexual abuse, because a kid is not likely to complain if they are regularly being strapped or beaten or seeing their classmates strapped or beaten. And they are going to be too scared to go home and tell their parents if they have been abused. So I will just leave that idea with you.

Ms Savidis : It also ties into—

Senator HINCH: I have one more quick one. I know we are running out of time. A lot has been talked about the level of $500,000 down to 300 to 200. The royal commission settled on—now 150,000. We hope we can get that back up to 200. But you mentioned a minimum; there is no minimum. Would you have a suggestion?

Dr Waller : I thought perhaps a minimum of 10,000. But I'm not wedded to a particular view about that. I think it should have a minimum, because, for trauma informed reasons you would want someone if they are able to make out that they have been abused to be eligible for some payment. I think it might be a distressing experience for there to be a finding of fact or acceptance that someone was harmed and yet no redress is given to them.

Senator HINCH: Like in the old days when a farthing would be given in damages, something like that.

Dr Waller : Yes.

CHAIR: We will need to move on. Thank you very much. Thank you very much, John, for your testimony today. It was very good hearing from you all. We now move on to Maurice Blackburn Lawyers and the Law Council of Australia.