Stone, Andrew --- "President's page: Fighting for real redress" [2014] PrecedentAULA 41; (2014) 124 Precedent 3

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ALA FIGHTS FOR REAL REDRESS

By Andrew Stone

If children truly are our ‘most precious resource’, then this edition of Precedent makes it clear that protecting them from harm (and pursuing compensation when harm occurs) can be a full-time job for lawyers, as well as parents.

ALA members can take pride in our leading role in calling for and supporting enquiries into the institutional abuse of children. Whether it be the Victorian Upper House, the NSW Hunter Inquiry or the Royal Commission into Institutional Responses to Child Sexual Abuse, the ALA has been at the forefront in protesting about institutional misconduct and in seeking justice for victims.

Many ALA members have been active in litigating cases in this area. Special mention should be made of the tireless efforts of Dr Andrew Morrison SC, including his work for the ALA in drafting submissions and advocating for fairer outcomes.

The Royal Commission has reached the point of considering a national redress scheme. We support this proposal, providing that abuse victims retain common law rights as an alternative remedy.

However, attempts by some institutions to limit a fair redress scheme include three particularly troubling ‘recommendations’.

First, the Catholic Church’s Truth, Justice and Healing Council has proposed that the standard of proof within any redress scheme should be the ‘balance of probabilities’ test that applies in civil litigation. Our position is that the standard of proof should be lower than that applicable in civil proceedings, especially considering the fact that damages may be capped. Any suggestion of a higher standard such as the Briggenshaw ‘comfortably satisfied’ standard will be the subject of our lasting opposition.

Second, the Truth, Justice and Healing Council has suggested that damages recoverable within any redress scheme should be capped at ‘community standards’. This begs the question: which community? A number of institutions have applied internal caps on damages at appallingly low levels – $30,000 to $75,000 for pain and suffering. The ALA will continue to advocate for fair and proper compensation.

Finally, the Truth, Justice and Healing Council has recommended that victims’ lawyers be kept out of any redress scheme. We all know how that has worked in the past – institutions hectoring abuse victims in closed-door meetings, while the institution itself comes armed with senior officials and corporate lawyers. This bullying of victims must never again be allowed to happen.

In order to properly access their rights, victims must have the assistance they need to pursue those rights. The best defence against an unjust settlement is a lawyer representing the victim. The ALA will continue to advocate for the rights of victims of institutional abuse to receive proper legal representation.

On a happier note, it is not too late for members to join the party at this year’s National Conference, which is in Sydney from 23 to 25 October. Help us celebrate our 20th anniversary with an excellent educational program and the opportunity to enjoy some of the best experiences the harbour city has to offer.

If not the National Conference, consider the state conferences coming up early in 2015. The Queensland conference is at the Sheraton Mirage on the Gold Coast (13-14 February), the NSW conference is at the Fairmont in the Blue Mountains (27-28 March) and the Victorian conference will be held at the Pier in Geelong (15-16 May).

Our conferences are a vital part of our organisational strength. The educational program they provide keeps us all at the top of our profession. The discussions as to our political goals and objectives keep us focused in our ongoing battle against tort reform. The revenue that we generate from sponsorship helps to fund the political battles to come.

Let me again emphasise that the ALA and its lobbying efforts play a critical role in keeping our members in business. Without the advocacy of the ALA, no-fault, no-lawyer and no-benefits schemes would litter the Australian jurisdictions. To fight the good fight we need funds, and the revenue we generate from conferences is essential to that.

Coming to conferences is a great way to support the organisation and its goals. The fact that it allows us all to catch up, share a drink and a good time is a very pleasant bonus.

Andrew Stone is a barrister at Sir James Martin Chambers in Sydney. EMAIL [e-mail].