8.1 Introduction

Nemo judex in causa sua – no one should judge their own case – is a fundamental principle of natural justice. Yet, state redress programmes involve the state judging if, and how, it will redress its own offences. A history of systemically injurious practice involving the legislature, executive, and judiciary often means that there is no authority uncompromised by complicity. That makes it difficult for states to be credible redress providers. With reference to the criteria that Chapter 3 describes, this chapter explores how flexible and survivor-focussed strategies address the resulting challenges in programme design and delivery.

8.2 Designing Redress

Programme design always involves difficult trade-offs and public officials can lack the credibility needed to make the necessary decisions. To illustrate, recall how Redress WA’s payment values were reduced through unilateral cuts, which, made without survivor participation, damaged the programme’s credibility and became a focal point for public criticism (Green et al. Reference Green, MacKenzie, Leeuwenburg and Watts2013: 2). That is a high-profile example of a common problem. When difficult decisions are made by civil servants or politicians, it can be hard for them to demonstrate the independence and impartiality necessary for credibility.

The exemplars demonstrate two potential design techniques to promote credibility – the use of independent policymaking bodies and the participation of survivors in the process. Ireland used independent ad hoc committees – the Compensation Advisory Committee and the Quirke Committee – to design, respectively, the RIRB and Magdalene programmes. That strategy removed some obvious sources of bias, but independence is always partial and relational. All policymakers are subject to influences and constraints. The Compensation Advisory Committee was strongly influenced by lawyers representing survivors, and the RIRB’s legalistic character reflected their involvement. Responding to the legal capture of the RIRB, the government gave the Quirke Committee terms of reference that prohibited funding legal support for Magdalene laundry survivors. That stricture avoided one problem while creating another – it detached those survivors from robust legal support. Moreover, all design bodies are constrained by what they think the implementing agency (the government) will accept. Not all design recommendations can, or will, be accepted. Policy design bodies must work within what budget, staffing, and other resources the state will provide.

The fact that independence is always partial and constrained underscores the importance of survivor participation. Most exemplars limited survivors’ involvement in programme design: only the Canadian programmes included survivor representatives in the process. Even there, it was lawyers who negotiated and oversaw IRSSA, not survivors, and most lawyers represented interests other than their survivor-clients (CA Interview 3). Future programmes should enable much more robust procedures for co-design. Jane Wangmann argues that survivor involvement in design leads to more adequate eligibility requirements, helps programmes move beyond legalistic approaches, and promotes ‘creative forms of redress … that directly respond to survivors[’] needs’ (Wangmann Reference Wangmannc2016: 2). In support of Wangmann’s point, survivor feedback led to ameliorative changes in some exemplar cases, one example is the negotiated settlement process in Canada’s IAP. But the potential for practical benefit is not the only reason for inclusion. Including survivors in programme design respects the principle, popularised by disability advocates, that there should be ‘nothing about us, without us’ (Charlton Reference Charlton1998). To exclude survivors is to treat them as objects of state action (AU Interview 15). Conversely, including survivors could help build credibility among survivor populations, with one interviewee stressing the importance of participation as ‘Vital for trust. Vital for credibility’ (AU Interview 13).Footnote ¹ Participating survivors can serve both as programme champions and as feedback channels when problems arise.

Survivor participation in programme design involves trade-offs. Participation requires specific skills and resources and survivors who become representatives are, by virtue of those capacities and status, unrepresentative of most survivors. And the point is not only analytic. Some survivor representatives have distinctive non-representative viewpoints. One, an Irish interviewee told me,

There was conflict between survivor representatives in Ireland, Canada, and Australia. Bearing these difficulties in mind, it seems plausible to think that survivors participating in design would tend to improve redress programmes. There are many ways for survivors to participate, but some of the best practices I know happened in Scotland. There, the InterAction Action Plan Review Group, which included survivor representatives, brought stakeholders together in an inclusive developmental process resulting in a 2018 report on redress recommendations that would frame Scottish Redress.Footnote ²

I have stressed the importance of design independence. Equally important is the need for redress programmes to operate through independent agencies. Redress programmes perform different tasks: they support applicants; accept, research, and assess applications; issue payments; review complaints; and interpret regulations. Programmes can enjoy varying degrees of independence across these different tasks. Most exemplars were not independent from the executive with respect to most tasks because they were located within government ministries. The most independent exemplar, the RIRB, was a statutory tribunal with control of its own staff, budget, and administration. Nevertheless, most staff were seconded civil servants and its annual budget needed legislative approval. The situation in Canada was more nuanced. Originally a standalone government agency, IRSRC was subsumed by Canada’s Department of Indian Affairs and Northern Development in 2008, aggravating concerns with its independence and impartiality (National Centre for Truth and Reconciliation 2020: 33) (CDN Interview 7). However, the courts and NAC provided regulatory oversight. Other ministries (Health Canada and Service Canada) contributed significantly to the programme, working alongside First Nations in providing programme outreach, applicant assistance, health care, and cultural support. The programme’s independence benefitted from the number of agencies it involved. Governance by the representative and composite NAC (and the Oversight Committee) reinforced the checks and balances inherent to systems with multiple veto players. And the Canadian state’s involvement was highly pluralistic, involving different ministries while the courts maintained a supervisory role. IRSSA’s programmes did not depend upon the benevolence of a single state agency.

Both the RIRB and IRSSA were created by law. A legal basis helps ensure that the programme’s operating criteria are public and accountable because survivors can appeal to the ordinary courts when they confront a problem. Several exemplars with an executive basis, including Redress WA, Ireland’s Magdalene programme, and New Zealand’s HCP were marked by non-transparency and unfairness. In those programmes, the lack of an independent review process diminished their credibility. A legal basis also provides a public commitment to redress and helps ensure funding sufficient to discharge those obligations. New Zealand’s HCP offers a cautionary example of a programme that lacked the funds it needed to pay survivors’ claims. Moreover, legislating redress provides important opportunities for legislators and executives to publicly acknowledge the state’s history of offending and its obligations to survivors.

However, using law to create a programme can generate inflexibility. Redress programmes need to adapt as they develop. However, adapting the law is usually slow and costly. For example, both Canada’s IAP and Irish RIRB accumulated applications from claimants who could not be contacted. These programmes could neither process those claims nor terminate them. To resolve the problem, the Irish Dáil had to legislate an amendment to the original 2002 Act that terminated those ‘cold claims’. Canada’s IAP needed the responsible courts, the Oversight Committee, and the responsible state agency to authorise its ‘Lost Claimant Protocol’. By contrast, programmes with an executive basis can adapt more quickly, with changes authorised by ministers or public servants.

Moreover, if the principle of comityFootnote ³ obstructs judicial oversight, an executive basis can help protect survivors, the programme, and taxpayers from overly onerous judicial review (Western Australian Department for Communities c2012: 4). For the law’s superiority in terms of accountability comes with costs. Litigating procedural reviews slows delivery and requires programmes to divert resources to judicial proceedings. Moreover, when each decision needs to be vetted for legal acceptability, programmes adopt legal habits of justification and procedure. Courts will be similarly tempted to impose judicial norms of process, evidence, and settlement. There is a resulting danger that redress becomes identified with satisfying legal obligations, a tendency apparent in Canada’s IAP (National Centre for Truth and Reconciliation 2020: 31; CA Interview 4). As for survivors, some of their legal representatives will be interested in cost-building through tangential or vexatious legal challenges. Both programmes and the courts must guard against the abuse of review by those with the wrong incentives. The Canadian IAP and Irish RIRB guaranteed legal fees. And in both programmes, the courts reviewed hundreds of cases. One wonders if all those applications were for the benefit of survivors: lawyers are, after all, paid by the hour.

Courts will be asked to review individual claims and more general procedures. Procedurally, judicial review should ensure that a redress programme is generally fair and efficient and offers real benefits for survivors. But, as far as possible, courts should apply the redress programme’s internal regulations and avoid imposing specifically juridical criteria or procedures. Otherwise, judicial review risks reinscribing the problems with litigation – including its retraumatising, inefficient, and protracted character – that redress programmes are created to avoid. As a 2006 Ontario decision by Justice Warren Winkler makes clear, sensible judges will avoid treading too far into the redress process (Charles Baxter Sr. & Elijah Baxter et al. v. Attorney General of Canada et al. 2006). Because redress programmes are not ersatz courts, judicial review should furnish them with a wide margin of appreciation.

Because the job of programme design does not end after a programme begins, redress programmes should schedule periodic comprehensive reviews. Design is an ongoing process shaped by practical experience. To give an example, Canada’s IAP constantly amended its procedures, publishing over twenty new and supplemental directive and guidance papers between 2008 and 2016. The need to adapt is universal, every programme confronts unforeseen challenges. With that prospect in mind, programmes should be designed to be adaptive, with built-in mechanisms for reflexive development. A good example is the Irish Ombudsman’s report on the Magdalene laundries programme (Office of the Ombudsman 2017). Responding to survivor complaints, the Ombudsman found that the programme did not adhere to its own standards and enjoined the government to make necessary changes, which it did. And while the Magdalene review was an ad hoc response to complaints, it is equally possible for reviews to be scheduled as part of the programme’s development. Programmes need robust yet efficient strategic review processes that are comprehensive, independent, and include survivors.

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Programme design depends upon funding. What can be done with a budget of $20,000 per eligible survivor is very different from a budget of $100,000. Chapter 3 discusses (briefly) budgetary quantum, here I want to focus on how programmes are funded. The exemplars used a range of different funding models. I will address two points, the differences between capped and uncapped programme budgets and the use of funds provided by non-governmental religious orders.

Five exemplar programmes were publicly capped. Canada’s Personal Credits, Ireland’s Caranua, and Redress WA’s capped budgets included administrative costs, while the Forde Foundation and Queensland Redress capped settlement funds only. In addition, during 2014–2015, New Zealand’s Fast Track Process operated under a settlement cap that was not public knowledge at the time. From a public policy perspective, a capped programme has the advantage of budgetary certainty. A budget cap ensures predictability, the benefits of which are demonstrated by the profligacy in which two uncapped programmes, Ireland’s RIRB and Canada’s IAP, overspent their original estimates by billions of euros and dollars, respectively.

A capped programme offers some advantage to survivors in regard to assessment. Because it distributes a fixed monetary allocation, a capped programme needs only to apportion its fund among applicants. A budget cap can, therefore, help lighten the survivors’ evidentiary burden. If assessors need only the information necessary to allocate each survivor a portion of the capital sum, good design can permit them to effect that allocation while minimising costs, by, for example, not asking for details about the survivors’ injurious experiences. Such a capped programme may provide the same monetary payments to all eligible applicants, as in Queensland’s Level 1 payments and Tasmania’s redress for the Stolen Generations.Footnote ⁴ However, a capped programme that attempts to match payment values to the severity of injury puts survivors in competition with one another and hampers the programme’s ability to provide just compensation. Recall that the estimated numbers of valid applicants are usually very wrong. Uncertainty over the eligible application numbers necessarily limits any policymaker’s ex ante confidence in a capped budget’s ability to provide adequate payment values. A comparison illustrates the unfairness. Like the RIRB and IAP, Queensland Redress’s Level 2 provided comprehensive redress for both injurious acts and consequential damage, yet its average payment of AUD$19,987 was much lower than the average in either comparator (€62,250 and CDN$91,478). Similarly, the NZD$25 million cap on the Fast Track Process meant the resulting payments were, on average, NZD$5,000 less.

Capped programmes ease potential pressure on the public revenue. Another design tactic with a similar outcome is to raise funds from offending NGOs, such as churches. Many religious orders are well-resourced and have an incentive to contribute when that will relieve them of potential liabilities. From a resourcing perspective, having NGOs contribute is an advantage, so long as the costs of obtaining and processing those monies do not exceed the value received. And the costs can be significant. Both Canada’s IRSSA and Ireland RIRB had significant problems obtaining monies from the Catholic Church. In Canada, the Catholic Church failed to pay and then used its not-yet-delivered monetary promises as leverage in negotiations over access to its files and its participation in other aspects of Canadian reconciliation (Galloway and Fine Reference Galloway and Fine2016). After some legal missteps, Canada accepted only part of what was expected. In both Canada and Ireland, the Catholic Churches’ failure to pay a fair share of redress created a public scandal, for the church and for the state officials who facilitated their sub-optimal contributions (The Irish Times Editorial 2003; McGarry Reference McGarry2020; Warick Reference Warick2021). Because both IRSSA and the RIRB indemnified the religious organisations, there was good reason to complain that their release from liability was cheaply purchased. Future programmes should secure adequate contributory funding before providing NGOs with associated benefits, such as indemnity.

In sum, credible programmes are better designed by independent bodies that enable survivor participation. Moreover, a flexible programme might have a capped budget for common experience base payments, such as Queensland Level 1. But where the aim is to compensate survivors according to severity, then budgets should be uncapped or, as Chapter 3 suggests, set by the counterfactual costs of settling the claims through litigation. As a programme’s budgetary demands increase, the rationale for obtaining funding from NGOs becomes stronger. However, states should ensure that adequate funds are secured before providing religious orders and other funding organisations with associated benefits, such as indemnities.

8.3 Delivering Redress

Moving to programme delivery, tensions between the state’s status as an offender and as redress provider remain a standing challenge.

The analogy could be expanded. Smale is talking about New Zealand’s HCP, in which MSD operated as the offender, the investigating police, the defence attorney, and judge. The resulting conflicts of interest became a focal point for criticism, with one survivor observing that the HCP was ‘not looking after my best interests but rather the interests of [MSD]’ (Mahy Reference Mahyc2016: 7). Without independence from the offending agency, survivors may reasonably believe that their applications are not impartially administered. Moreover, potential applicants may fear reabuse or retraumatisation by unsympathetic officials.

But there are countervailing considerations. Because start-up organisations struggle to deliver large and complex redress programmes quickly, there are obvious benefits to leveraging the existing capacities of a government ministry (Audit and Assurance Services Branch 2015: 44). State ministries have dedicated administrative, financial, and infrastructural capacities that can support hiring and managing staff along with other administrative necessities. But those advantages come with their own difficulties, including cumbersome public service procedures (CA Interview 7). To illustrate, when application numbers for the IAP tripled the original estimate of 12,500 claimants, the Secretariat increased its staffing complement to a point that exceeded the ministry’s funding allocation, leading to a protracted restructuring of the Secretariat’s employment contracts through a different agency, Public Service Canada.

Because smaller, independent organisations can be more nimble, outsourcing at least some components provides some clear benefits. In Western Australia, an interviewee noted,

Australia’s approach deserves attention. Both Queensland Redress and Redress WA outsourced the taking of testimony to community agencies. There, survivors could assemble their applications in a familiar and comfortable environment. These community agencies had on-site counselling support and the capacity to address the survivors’ holistic well-being needs. Outsourcing leverages the skills of NGOs without incurring the associated management and administrative costs. It can be easier for a state to contract for a service than to develop and provide it, although the exemplar cases also involve states funding NGOs to build their capacity.

When survivors worked with community NGOs to develop their applications and submitted them to a redress programme housed within a government ministry, it was clear that the state occupied the role of both offender and adjudicator. That structure patently infringes the nemo judex in causa sua principle. Alternatively, Canada’s approach to the IAP attempted to distinguish between its representative, the SAO, and the independent Secretariat, which was responsible for contracting the independent adjudicators responsible for assessing each claim. How the state is impersonated is a policymaking question with implications throughout the redress process. If, for example, the redress programme negotiates, as the RIRB did, with survivors over the substance and value of their claim, those officials will necessarily represent an agency that opposes that of the survivor – the state. If the state is not assigned specific representation in the redress process, it may tend to subsume the whole. There may be an advantage to appointing a specific state representative that remains distinct from the redress programme.

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Shifting attention slightly, physical infrastructure is critical to delivery. If survivors are going to give oral testimony in person, whenever possible they should be able to choose the location. Hearing rooms should be easily accessible by public transportation and designed to make survivors feel calm and safe (Fallot and Harris Reference Fallot and Harris2009: 6–7). Furniture should be comfortable and the environment quiet. The facility should have private rooms where survivors can talk to a counsellor or support person. Rooms need clearly accessible exits. Survivors must ‘know that the door can open and close very easily for them’ so they do not feel trapped (IR Interview 9). Several interviewees stressed the need to balance comfort and formality.

Canada’s Winnipeg office was designed to put Indigenous survivors at ease.

Because not all survivors can access custom facilities, oral testimony must be heard where it can be given. Hotels are a common choice, as they usually have good transport infrastructure, are formal without being intimidating, and are available for short-term use. Little things matter. Michael Bay, a Canadian adjudicator, would ensure that he wore professional but colourful clothing to avoid reminding survivors of the residential schools’ presiding black cassocks (Bay Reference Bay2013: 3). Concern for the survivor’s well-being means that programmes should avoid hearing testimony in high-stress carceral environments such as prisons or psychiatric hospitals. But the setting should not be too casual, the setting needs to reflect the importance of the event to survivors. As one survivor told me,

Advisors should avoid taking testimony in the survivor’s home. Hearing the person somewhere else means that after they testify, survivors can leave their testimony behind and return to a (hopefully) safe home environment (NZ Interview 6).

Caranua, the Magdalene programme, the Forde Foundation, Redress WA, the CEP, and the Personal Credit process all operated without (much) face-to-face engagement, mediating their work with survivors in writing or by telephone. A remote interface can limit the psychological, logistical, and monetary costs of participation and can work well if the priority is speed and not engagement. In addition, working with survivors remotely promotes both security and equity. The security concerns are real: a google search will quickly reveal hostile language on some survivor-oriented websites – Redress WA received a number of threats (AU Interview 9).Footnote ⁵ In addition, mediating survivor interaction by phone helps ensure that clients cannot simply appear in an office and demand inequitable and resource-intensive attention.

Remote engagement is likely to become more common as technology develops. However, survivors may not wish to discuss their traumatic injuries with a distant and faceless operator (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 63–64). A Western Australian interviewee criticised the remote character of Redress WA, saying that survivors would have preferred to work in person (AU Interview 6). Moreover, it can be difficult for remote interviewers to ensure that the survivor is well-situated. A remote process makes it harder to monitor the survivor’s emotional well-being. In New Zealand,

Interviewers need to be able to ensure that the interview is taking place at an appropriate time and place. They also need to identify people who are under stress, and have an effective response strategy for people who are not coping. Redress WA created a ‘risk register’ for survivors with identified safety concerns, they would receive a follow-up call the next day (AU Interview 9). Many survivors will need immediate support, which is more difficult over the phone.

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Because Chapter 10 discusses the process of giving testimony, here I turn to the intake, storage, and retention of evidence, including testimony. The information needed varies according to eligibility criteria and assessment procedure. These operative demands must inform the programme’s data infrastructure. Information may arrive as video and audio files, professional reports, public records, and personal handwritten narratives. It may also come in different languages. Survivors should be able to choose the language in which they testify, or have a competent translator assist them. The data management system needs to be capable of managing these variables efficiently, which will require testing the system using real-world information. Off-the-shelf data systems may be inadequate and exemplar programmes often required bespoke software – Canada’s SADRE (Single Access to Dispute Resolution Enterprise) cost around CDN$8.4 million (Treasury Board of Canada Secretariat 2007). When programmes open to applications without systems appropriate to their data needs, technical problems will create delays and make it harder to assess applications accurately.

Because many applications will arrive incomplete and contain poor quality information, good data entry is critical.

Applications should be pre-screened when they are received to assess their completeness and (prima facie) eligibility. This should happen as quickly as possible. If survivors wait months or years before having an incomplete file returned to them, the quality of information may suffer along with the programme’s reputation. Programmes should confirm receipt of completed applications, using that opportunity to provide further information on the steps remaining to completion. The letter should provide information about available support services and remind applicants that completing the application does not guarantee payment. The final report for Redress WA remarks that because many applications will arrive with errors, the data management system should record the original application as a photograph or scan (Western Australian Department for Communities c2012: 12). Both the original submission and the corrected data should be preserved.

Data management must be secure and private. Programmes need to access secure government records, which can be easier if the work is done by civil servants, but programmes will also need access to the private archives of NGOs, such as churches. Any information the programme holds about survivors must be secure, but, at the same time, programmes may need to share data. Canada’s IAP used an online file management system that both counsel for survivors and programme staff could access, which held client files and could be used to coordinate hearings. Information management systems will need to restrict access to those who need it. Redress WA created a special database for more sensitive claimants (including celebrities), accessible by a limited number of senior staff (AU Interview 9). Programmes should audit staff access patterns to ensure that information is not accessed inappropriately.

Because programme data can be valuable for exogenous purposes, privacy’s demands do not stop when the programme closes. Historians and other researchers may hope for access, as might others: in Ireland I heard about an estranged spouse trying to uncover what a former partner had received, hoping to use their redress payment to augment their alimony. In a less personal example, Canada’s TRC sought access to the IAP’s rich database to support its own research. The TRC heard testimony from around 6,750 people, not all of whom were survivors (The Truth and Reconciliation Commission of Canada 2015f: 1). By comparison, the IAP validated 27,846 claims and heard testimony from many more people. Desiring access to the IAP’s larger dataset, the TRC confronted the IAP’s legal commitments to the survivors’ privacy and the ethical challenge that survivors had a right to control how their information would be used – no survivor had authorised anyone to give their information to the TRC (Independent Assessment Process Oversight Committee 2021: 54–55; McMahon Reference McMahon2017: 33ff). The case went to the Supreme Court with the result that IAP records on survivors will be destroyed on 19 September 2027 unless the survivors ask to have their information archived at the National Centre for Truth and Reconciliation, hosted by the University of Manitoba. IAP applicants have now been sent letters advising them of their options.

The principle of enabling survivor’s agency supports the Canadian court’s decision – survivors should be able to decide whether and how their data can be used. As far as is feasible, programmes should give survivors choice over how their information will be used, who will be able to access it, who will be responsible for storing it, and if and when information will be destroyed. Survivors must know if their information might be given to third parties, such as named offenders or the police. Some will consent to having their information being put to use outside the redress programme. Others will not. Ideally, survivors should be able to select their preferred options, for example, some might consent to having de-identified information retained, but not to having their names included in a permanent archive. Others will wish the opposite. Survivors should be informed about choices they do not have, such as when the law mandates a police referral. The demands of informed consent require a flexible range of options and it would be best if programmes have the relevant procedures in place when they begin.

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Staff are the medium through which survivors engage with redress and the state discharges its obligations. But the fact that the state needs staff to discharge its redress obligations points to another problem with credibility. As previously mentioned, impersonality inhibits the state’s accountability. Survivors never encounter the state, they only deal with its representatives. When survivors contact a redress programme, the people who answer the phone calls, emails, and letters are not offenders confronting their crimes, they are employees. The fact that state accountability is always vicarious means that state redress lacks the authenticity that comes when real people take responsibility for wrongdoing and work at a remedy.

Using government staff to deliver a redress programme blends the roles between offender and employee. Experienced staff from health, police, corrections, welfare and child protection come from fields responsible for systemically injurious care. The complicity of these professions adds to the tensions this chapter explores. I previously noted how the use of civil servants can compound concerns about impartiality and conflicts of interest. Similar points can apply to NGOs. For many survivors, the participation of religious orders is important because they committed, or were responsible for, significant injuries. But no survivor should be forced to use services, or work with staff, that they see as compromised. A survivor-focussed approach must enable a flexible range of access options. Chapter 12 returns to this discussion.

Redress programmes require staff to work with often marginalised survivors through complex and highly stressful processes. A consistent theme across the exemplar programmes was the need to get and retain high quality client-facing personnel. But even experienced staff will need training to guide vulnerable clients through new and often complicated redress programmes. This is highly demanding work. One Irish interviewee stressed the importance of employing:

There are benefits of having caseworkers administer claims because that enables survivors to develop a relationship with a few staff members (IR Interview 3; NZ Interview 6). But a casework approach makes each survivor depend on an individual staff member, creating obvious human resource concerns in organisations with high levels of staff turnover.

Smaller programmes that use few relatively senior staff to investigate and assess applications tend to experience less turnover. With a small and tightly knit team, programme managers can select resilient staff and provide them with robust support. Larger programmes are forced to hire from a broader pool and, in the exemplars, tended to have more staff turnover. A redress programme’s temporary character encourages staff to look for new (more secure) employment. Using contract workers aggravates the problem, but using civil servants will not solve it, if those staff fear redundancy or suboptimal redeployment when the redress programme closes (Indian and Northern Affairs Canada 2009: 11). To retain good staff, programmes need to work with them in their career development. That might include identifying future opportunities in the civil service or helping transition staff into the private sector.

A second point on staff turnover concerns the potential for psychological damage. The stress of working with survivors’ testimony can be a significant contributor to staff turnover (Fabian Reference Fabian, Kitty, Fabian and Felices-Luna2014: 246; Rock Reference Rockc2012: 10; AU Interview 12). ‘Vicarious traumatisation’, ‘secondary traumatic stress’, or ‘burnout’ happens when someone suffers a stress disorder caused by engaging with the experiences of traumatised people (Chouliara, Hutchison, and Karatzias Reference Chouliara, Hutchison and Karatzias2009: 47). Persistent exposure to distressing testimony can cause staff to exhibit symptoms that include doubting survivors’ testimony, avoiding traumatising material, or becoming personally involved with survivors (Swain Reference Swain, Sköld and Swain2015b: 185). One study examining potential causal factors identified a personal history of trauma, high caseloads, inexperience, and a lack of effective coping mechanisms (such as supervision) as potential contributors to developing vicarious trauma (Dunkley and Whelan Reference Dunkley and Whelan2006: 110). But anyone can be affected. ‘There are only so many rapes and other real-life horror stories that you can hear about in a day or a week or a month or a year before it starts to eat at your soul’ (Bay Reference Bay2013: 5).

When vicarious trauma makes staff doubt survivor testimony, actively avoid difficult material, or look for other work, it poses a strategic risk. There is a growing literature on preventive techniques (Bober and Regehr Reference Bober and Regehr2006; Wilson Reference Wilson2016). Those techniques include limiting staff contact with traumatising material. This can be done in different ways. Insofar as hearing survivors’ testimony is more challenging than written reports, programmes might encourage written testimony. Information management systems can reduce staff contact with traumatising material by enabling them to scan rather than retype material. Managers can limit caseload numbers or limit the number of cases each member of staff engages with per day. Other techniques offer positive support to staff well-being through yoga, fruit bowls, and therapy, alongside regular supervision and unburdening sessions. Managers should monitor staff for stress indicators and encourage psychological assessments or counselling. However, these techniques have countervailing disadvantages. If testimony is mechanically scanned unread, it will not be reviewed for errors. Survivors who are kept at arm’s-length through pre-recorded testimony will forego some of the participatory value involved in telling their stories. As always, there are trade-offs. But, redress programmes have a responsibility for the well-being of their employees and meeting that responsibility is both a legal requirement and necessary for efficient programme operations.

A third and last point on staffing concerns descriptive representation. Turning first to gender, Ireland’s Magdalene programme matched the gender of staff to that of the applicants. Others, like Canada’s IAP, enabled survivors to select adjudicators according to their gender, with around half the applicants expressing a preference (CA Interview 7). In addition, residential school survivors could choose the gender of their counsellors and other support workers informally. Having this option is important because some applicants are put off by the prospect of working with one gender or another. George Grant testified that ‘I couldn’t tell them [Redress WA] everything because the staff there were mainly females and it was unpleasant stuff for them to have to read or to listen to’ (Royal Commission into Institutional Responses to Child Sexual Abuse 2014d). Although Grant would have preferred to speak to a man, an Australian interviewee noted:

Programmes should enable survivors to choose the gender of key programme staff.

The ethnicity of programme staff – specifically, their indigeneity – was significant in Canada, New Zealand, and Western Australia. Recall that 51 per cent of Redress WA applicants were Indigenous – in New Zealand it was over 50 per cent, while in Canada it was nearly 100 per cent. These proportions reflect the roles played by out-of-home care in the systemic repression of Indigenous peoples. Moreover, the genocidal character of Canada’s residential schools made indigenising the redress process a step towards post-colonial relations (Henderson Reference Henderson, Henderson and Wakeham2013: 66). Stakeholders emphasised the need for Indigenous redress staff because connecting, or reconnecting, with Indigenous cultural practices was an important (potential) element of redress (CDN Interviews 5 & 6). In Western Australia, the Indigenous Kimberley Legal Services and the ALS helped applicants overcome the ‘inherent mistrust’ Indigenous Australians have towards state institutions (Western Australian Department for Communities c2012: 13). Because some survivors ‘don’t trust white people’ (Dion Stout and Harp Reference Dion Stout and Harp2007: 43), Canadian exemplars strongly encouraged Indigenous staffing. The ISCRC prioritised hiring Indigenous staff and, in addition, health and cultural support work was outsourced to Indigenous agencies (Indian Residential Schools Adjudication Secretariat 2011: 5). Survivors preferred hearings with Indigenous adjudicators (Hanson Reference Hanson2016: 12) while programme management recognised the need for local support to reach into marginalised communities. As one (non-Indigenous) interviewee said,

Canada’s Personal Credits programme stands out as a process in which Indigenous First Nations worked with their survivor-members to identify and provide services that they would find beneficial, often in ways that helped both individuals and communities develop. However, not all survivors felt that cultural affinity was given the same priority in the IAP and CEP (National Centre for Truth and Reconciliation 2020: 28).

Indigenous populations tend to be relatively small, meaning that there are fewer Indigenous persons available for staff positions. That relative scarcity aggravated hiring delays that created, in turn, inefficiencies and increased staff turnover (Ish and Trueman Reference Ish and Trueman2009; AU Interview 6). During Redress WA, the ALS reached capacity and began to turn survivors away (AU Interview 6). Second, the use of local Indigenous providers for cultural and health support in small communities can create conflicts of interest and privacy problems, with some applicants deterred by the prospect of locals learning the intimate details of their experiences (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 71). By providing multiple support options, programmes can alleviate that concern, enabling survivors to choose where they get help. A flexible programme should ensure that privacy concerns do not block culturally appropriate local support.

As a last point, the popularity of Indigenous staff in IRSSA may reflect a more broadly held view that programmes benefit from having staff who share experiences with survivors (Allen and Clarke Policy and Regulatory Specialists Limited 2018: 3; Feldthusen, Hankivsky, and Greaves Reference Feldthusen, Hankivsky and Greaves2000: 107). The experience of injury

I return to the importance of managing the challenges posed by survivors working in redress programmes in Chapter 12. Here, I simply note that redress programmes should publicly present an adequate number of staff members whose background and position make them credible to survivors.

8.4 Administrative Recommendations

• Redress programmes need design techniques that bridge the credibility gap. Credibility-building techniques include independent design bodies and having survivors participate in co-designing redress programmes.

• A capped budget can be effective in funding the redress of collective or structural injuries. But it is difficult to ensure that capped programmes are adequately funded to apportion payments according to the severity of individual injuries.

• Policymakers must assess whether the advantages of external funding from religious orders (and other NGO offenders) outweigh the associated difficulties. States should secure contributory funding before providing NGOs with associated benefits, such as indemnity.

• Programmes need robust and efficient strategic review mechanisms that operate independently of both programme staff and the judiciary.

• Survivor representatives should be part of any review process.

• Programme delivery should remain, to an appreciable degree, independent of the state. To prevent the personality of the state from subsuming the redress administration, there may be an advantage to appointing a specific state representative that is distinct from the redress programme.

• The information needed by the redress programme must inform systems for data intake and database infrastructure.

• The data infrastructure needs to be ready when the programme opens to applications. The system needs to be tested with real-world information.

• Applications will be submitted with errors. The intake processes needs to identify errors promptly and correct them. However, the system should retain the originally submitted material for reference.

• Whenever possible, survivors should be able to choose where they testify. Designated hearing rooms must be easily accessible by public transportation and designed to support the survivors’ well-being.

• Survivors need to give informed consent as to how the information they provide will be used. Flexible options should be made available.

• Programmes need to hire and train good staff in sufficient time to meet the administrative demands of the programme.

• Redress programmes are responsible for their employee’s well-being. Meeting those responsibilities can be necessary to enable the efficient operation of the programme. Limiting the effects of vicarious stress must be a key strategic focus.

• To retain good staff, programmes need to manage the risks that job insecurity poses.

• Survivors need ongoing support throughout the programme. It is preferable for them to develop positive working relationships with staff. There are benefits to a caseworker structure.

• Programmes should consider enabling survivors to choose the gender of the staff they work with.

• Programmes should consider enabling survivors to choose the ethnicity of the staff they work with.

• Programmes should publicly present an adequate number of staff members whose background and position give them credibility with survivors.

9.1 Introduction

Should convicts be eligible for redress? If so, then taxpayers may fund large monetary payments for rapists, murderers, and other violent offenders. The resulting potential for negative publicity is a concern for policymakers (Western Australian Department for Communities Reference Rockc2012: 25; Lane Reference Lane2017). To illustrate, in 2010, New Zealand’s Crown Law wrote to Cooper Legal stating:

Persistent concerns with public opinion meant that those imprisoned for more than ten years were excluded from the HCP’s Fast Track Process, their exclusion then became general HCP policy until 2018. Looking elsewhere, Australia’s NRS excludes those imprisoned for five years or more, unless officials determine they would not ‘bring the scheme into disrepute; or adversely affect public confidence in, or support for, the scheme’ (Commonwealth of Australia 2018: §63). In other words, eligibility depends upon what programme officials think observers (the media) will say about the survivor.

Excluding prisoners is unfair because their right to redress is independent of their offences. As Dinah Shelton argues, ‘the character of the victim … is irrelevant to the wrong and to the remedy’ (Shelton Reference Shelton2015: 72). Moreover, prisoners report much higher than normal rates of non-recent abuse (Dalsklev et al. Reference Dalsklev, Cunningham, Dempster and Hanna2019). Not only is the experience of abuse criminogenic, higher rates of incarceration stem from survivors’ social and economic marginalisation – the more marginalised a person is, the more likely they are to be imprisoned and, when sentenced, marginalised persons tend to receive longer prison terms (Western Reference Western2006: 35ff). Excluding prisoners will, therefore, discriminate against the most marginalised. The ineligibility of criminal survivors is unfair and discriminatory because it makes a potential consequence of abuse in care – part of their injurious experience – into a reason preventing them from obtaining redress.

This chapter explores what a flexible approach to eligibility entails. Setting the parameters for eligible claims involves a series of trade-offs. A programme that arbitrarily excludes certain people and injuries is discriminatory. But, as a programme includes more people, and more injuries, it becomes larger and more expensive. The parameters of eligibility have significant operative implications. These parameters help determine the evidence a survivor needs to provide, which, in turn, is an important factor in determining the quantity, and character, of the information a programme needs to manage. The trade-offs that arise support the argument for flexible redress programmes that enable survivors to choose how they will pursue redress.

9.2 Who Is Eligible?

Some exemplar programmes limit eligibility to survivors associated with certain institutions or placement types, while others require applicants to bear a specific status, such as being a ward of the state or having been legally removed from parental care. Although approaches can differ in subtle ways, for illustrative purposes I begin with a simple contrast between ‘defined-list’ and ‘open’ programmes.

‘Defined-list’ programmes limit eligibility using a schedule of institutions – only survivors associated with a scheduled institution are eligible for redress. Survivors might be associated with an institution in different ways, including both attendance and residence and it is common for schedules to change. Recall how Ireland’s Magdalene programme was originally restricted to former residents of twelve scheduled institutions, before legal and political pressure pushed the government to admit fourteen more facilities. Some programmes offer standing processes for adding institutions. Ireland’s RIRB and Canada’s IRSSA permitted survivors to petition (or sue) to add institutions that met the general description for eligibility but were omitted from the original schedule. Nevertheless, although schedules changed, they were always definitive.

The advantages of a defined-list programme lie in its transparency, efficiency, and expressive value. A programme is more transparent if the rules defining eligibility require little interpretation. A defined list of scheduled institutions helps survivors know if they are eligible – they can simply look at the schedule to see if ‘their’ institution is listed. In terms of efficiency, programme staff can proactively research scheduled institutions, obtaining relevant records and compiling dossiers. Better-informed officials will process applications more quickly, potentially using automated systems. If restricted to large institutions with good records, defined-list programmes may generate firmer population estimates and better budget projections. Moreover, there is an expressive value to using a schedule of institutions to tailor a redress programme to a distinctive form of wrongdoing. Canada’s Indian residential schools are a compelling example of injurious institutions that demanded distinctive acknowledgement. That expressive aspect of redress is part of what makes these programmes valuable. Similarly, some (usually large) institutions like St. Joseph’s Industrial School in Artane, Dublin, and Parramatta Girls Home in Sydney are important to the identity of many former residents. Providing a schedule recognising these places as inherently injurious is another way of acknowledging survivors’ experiences.

Defined-list programmes work well when survivors have good information about their care experience and adequate records exist to validate their claims. But that describes only a minority of survivors. Many care leavers do not know where they resided. Some will have been too young to remember and survivors often went through many residences, recall (from Chapter 2) that New Zealanders could experience ‘as many as 40 or more’ placements (Henwood Reference Henwood2015: 13). Another New Zealand interviewee related that

The extent of the problem is highlighted by a Swedish study comparing survivor testimony with care records that found 33 per cent of survivors did not recall one or more placements recorded in their files (Sköld and Jensen Reference Sköld, Jensen, Sköld and Swain2015: 163). If survivors do not remember a placement, they may not know whom to ask for their records – a Catch-22. Adding to their difficulties, care institutions are not static – they change their names, locations, and identities over time. And the poor quality of existing records exacerbates the problem. Survivors who hope their personal records will help place them at certain times and locations are often disappointed.

Defined-list programmes need to distinguish between survivors who are eligible because they associated with the institution in the right manner and those who did not. But lived experience may not conform to that binary distinction. For example, Canada’s CEP programme excluded survivors who did not legally reside at residential schools. However, these schools were attended by thousands of ‘day students’ who experienced poor schooling and food, along with abuse and neglect, while residing somewhere else, such as a hostel, mission, or private residence. The interstitial public/private nature of care enabled movement between and within different care placements, making non-arbitrary line drawing difficult. The need for non-discriminatory criteria suggests that, contrary to its widespread use, the concept of residence is not well-suited to defining the relevant form of association. Future policymakers might consider using a more appropriate concept.

Invariably, a programme that restricts eligibility to a specific list of institutions will face pressure to include similar institutions. Adding institutions is psychologically and logistically difficult. Because expenditures will increase when more institutions are included, usually only senior officials (judges or ministers) can add institutions and the process tends to be onerous, expensive, and uncertain. Recall how Canadian survivors succeeded with only 7 of the 1,531 institutions they sought to add to IRSSA’s schedule. The last addition required six years of litigation. Kivalliq Hall was scheduled in 2019, thirteen years after IRRSA began (APTN National News 2019).

Whereas defined-list programmes have a definitive schedule of institutions, an ‘open’ approach defines eligibility according to care status or type of injurious experience. For example, Redress WA and New Zealand’s HCP extended eligibility to any survivor legally in the care of the state prior to a specified date. Open programmes are more inclusive and flexible, mitigating concerns with the unfair distinctions created by defined lists. An open approach reflects the fluid histories of out-of-home care across a range of placements and differing legal and administrative designations. In open programmes, assessors can respond to that diversity by deciding eligibility on a case-by-case basis.

However, that flexibility makes the ambit of eligibility less transparent. Redress WA was open to anyone in state care, but survivors placed by state officials in religious institutions or private care homes might not know that they were legally in state care (AU Interview 6). Existing records may not help. ‘Redress WA encountered many instances where applicants’ circumstances and care arrangements were legally complex, ambiguous, or not explicitly defined’ (Western Australian Department for Communities Reference Rockc2012: 5). That programme rejected 600 applications after deciding that the state did not have legal responsibility for the survivors’ placement. Many of those rejected were Indigenous survivors who had been placed with family members with the knowledge and financial support of state officials, but the state never assumed legal responsibility for their care. Those applicants reasonably claimed that they had been in a form of state care, but the programme applied a more restrictive interpretation.

Inchoate evidence requires programme staff to make judgements about eligibility. Wherever judgements occur, there is non-transparency because the survivor cannot know what programme staff will decide. Moreover, when eligibility is uncertain, programmes will tend to require more information, increasing the costs of participation for all parties. The varying quality of available records aggravates the resulting difficulties, creating unfair inconsistencies between applicants. Open programmes also raise budgeting concerns for states. As previously noted, poor record-keeping and the informality of many care arrangements make robust population estimates generally difficult. Open programmes aggravate that difficulty due to the diverse range of care placements and the potential for staff to arrive at differing interpretations of eligibility in each case. And because each applicant needs to establish their eligibility independently, open programmes will tend to have higher costs per case than more transparent and efficient defined-list programmes.

Turning from operational matters to an expressive concern, redress programmes are public statements that care has been injurious. As such, they risk stigmatising all those involved. Not only is that unfair to carers who discharged their responsibilities appropriately, there are potential strategic risks to existing care systems. If care is stigmatised as injurious, the public odium will discourage potential care workers. Many care systems already struggle to find high quality placements for young people. Any decrease in availability may lead to the increased use of inappropriate and harmful placements, including serial temporary placements. Many survivors argue that one of their motivations for speaking about their injuries is to help protect others from being injured (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 220). It would be an ironic injustice if, by adding to the opprobrium surrounding care, redress contributed to the mistreatment of those presently in care. Because they embrace a broader range of care placements, the reputational risk of open programmes appears higher than that of defined-list programmes focussed on institutions that no longer exist such as religious orphanages and ethnically segregated residential schools. To minimise the risk of overly broad stigmatisation, programmes should link payments to discrete abusive events or institutional forms by clearly articulating the purpose of redress and the types of injurious experiences to which it responds.

To summarise the discussion, a defined-list programme works best with a schedule of distinctive institutions with good archives. Defined-list programmes will be less effective when encompassing a diverse range of care placements. As the definition of eligible institutions becomes less specific, the greater the incentives for applicants seeking to add related institutions and the harder it will be to estimate programme costs ex ante. By contrast, open programmes are more flexible. However, they will tend to increase the demands on applicants, who may be less certain about their eligibility – leading to an unfortunate combination of higher rejection rates and lower application numbers from the eligible population. Note that open programmes usually require applicants to evidence interactional injurious experiences – simply being ‘in care’ is not itself an adequate basis for a redress claim. By contrast, a defined-list programme can redress survivors who experienced structurally injurious institutions.

The trade-offs between open and defined-list programmes suggest that a survivor-focussed programme might enable flexibility by developing pathways incorporating both techniques. A defined list’s transparency is a significant advantage: every programme should have a pathway in which association with one or more institutions on a scheduled list enables eligibility. That list should be supplemented by reasonable and low-cost procedures for adding institutions to the schedule. However, given the interstitial nature of care, an effective programme should also have pathways that enable survivors who were not associated with a scheduled institution to apply if they meet appropriate criteria. When investigating the survivor’s care status, programmes might be encouraged to use discretion in the survivor’s favour – the semi-private nature of care encouraged non-standard arrangements that should not now disadvantage claimants.

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Most redress programmes specify a closing date, making prior submission a condition of eligibility. There is considerable variation in duration: Table 1.1 gives the exemplars’ open periods. With an open period of twelve months, Queensland Redress was the shortest, while the longest, Canada’s IAP, was open for five years. More recent programmes tend to be longer, both Scottish Redress and Northern Ireland’s Historical Institutional Abuse programmes will be open for five years, and Australia’s NRS will be open for ten.

Neither New Zealand’s HCP nor Ireland’s Magdalene laundry programme specify a date when they will stop accepting new applications. These schemes manage a small number of applications using the resources of an existing ministry. But most other exemplars had deadlines. Canada’s IRSSA was unique (among the exemplars) in having two. Survivors had to notify the programme before 20 August 2007 if they wished to opt out of IRSSA, then there were application deadlines for each of IRSSA’s three component programmes. Programmes with a budget cap, like Queensland Redress and Redress WA, need to have an application deadline. In these Australian programmes, all validated applicants divided a finite capital sum and officials needed a deadline to know how many survivors would lodge a claim. For larger programmes, run by independent bodies with programme-specific funding and large staff complements, deadlines help manage expenditures. If the programme ends on a certain date, policymakers can know when its resource demands will end. A time limit can concentrate programme resources. For example, Canada’s CEP process assembled hundreds of people who devoted a year to the programme. That focus of investment may create efficiencies. The data offered by exemplar programmes suggests a potential (weak) evidence for a deadline effect on processing time. The average processing time in the two large and comprehensive programmes, the IAP and RIRB, was around twenty-one months. That compares favourably with the twenty-seven-month average in New Zealand’s comprehensive and open-ended programme. Moreover, a deadline might offer some psychological benefits. Because applications are difficult for survivors, one interviewee suggested there was a psychological advantage to making survivors meet a specific time frame or lose their chance at redress (AU Interview 9).

But most other commentators disagree and point to the difficulties that deadlines create. Survivors may take a long time to learn about and decide to apply for redress. Some recoil from the difficulties involved and trauma prevents others from submitting their applications promptly. Because the redress process is of ‘major emotional and psychological significance’ for most survivors, it can take time before they can apply (Murray Reference Murray2015: 106). Eileen Patricia O’Reilly, a senior redress officer with Redress WA, observes:

Similarly, Karyn Walsh, of Lotus Place, has said:

Deadlines can be harmful if the financial inducement of the wished-for settlement compels survivors to apply before they are psychologically ready (Green Reference Green2016: 103).

For the programme, using deadlines to limit eligibility tends to compress the receipt of claims. Although Ireland’s RIRB was open for twenty-seven months, it received 9,432 of its 16,662 applications (57 per cent) in its final year; 3,700 (22 per cent) arrived in the two weeks prior to the deadline. Redress WA and Queensland Redress also experienced late surges that over-loaded their processing capacities, leading to delays and consequential procedural changes to expedite the administrative process. Deadlines also encourage incomplete applications, Canada’s Personal Credits, Redress WA, and Ireland’s RIRB all received large numbers of unfinished applications in the last few months. Managing those incomplete applications added to delays and processing expenses, which, in turn, damaged the programmes’ reputation, while spikes in application numbers overwhelmed records searching and survivor support services, leading to further delays. These delays damaged survivors’ well-being and caused higher burn-out rates among staff, aggravating staffing problems.

Because a too-short window for applications can be unfair and ineffective in settling meritorious claims, programmes come under pressure to admit late applications. That pressure often succeeds. But the difficulties involved in getting extensions granted, and the fact that many survivors will be dissuaded when they find that they have missed the closing date, means that longer open periods encourage more applications. That should, hopefully, make the programme more effective at settling meritorious claims. A longer application period also permits survivors greater choice over to when to apply, enabling them to do it when they are psychologically better prepared. If survivors have a longer time to collect necessary evidence, they can spread the logistical demands out over a longer period, making the programme more accessible. Given the difficulties that survivors experience during the application process, if the programme operates for several years, survivors might suspend their application if psychological or other difficulties impede their progress. Finally, a longer open period can accommodate survivors who become eligible after the programme opens, for example, if new institutions are added to a defined list. Although a programme will tend to cost more as it attracts more applications while incurring ongoing operational expenses, a longer open period may have the virtue of ‘flattening the intake curve’, helping prevent the programme from being overwhelmed by application numbers during critical phases. A longer open period might enable a more sedate pace, allowing the programme to develop the capacity to manage larger numbers of applications.

There is an alternative to making programmes longer. Between 2003 and 2008, Tasmania reopened a programme for people abused in state care several times to accommodate late applicants (Children and Youth Services 2014: 3). Then, in 2011, Tasmania created a successor programme with a small staff to manage a slender stream of applications. The successor programme used the same procedures as the original; however, the maximum payment decreased from AUD$60,000 to AUD$35,000. Although that programme would close in 2013 to be, eventually, superseded by the NRS, Tasmania might serve as an inspiration for a forward-looking flexible approach. A redress programme might be designed with two phases. An initial phase paying higher amounts might motivate a large proportion of the eligible population to apply promptly, making the programme more effective. Applications received after the initial deadline would enter a successor programme, with smaller staff numbers, simpler eligibility criteria, and lower settlement values. If this two-phase structure was built into the original programme, there would be no need for continual extensions, decreasing the survivor’s psychological costs and the state’s administrative expenses.

Flexible, survivor-focussed practice enables survivors to apply at the time and over a period that best suits them. Longer open periods enable greater survivor choice and may help flatten intake curves. Still, given the significant resourcing required to operate a comprehensive redress programme, states can reasonably impose closing dates. However, to avoid pressure to reopen programmes and disappointing survivors who miss out, policymakers should consider operating successor programmes for applicants who do not apply before the initial closing date. A successor programme might provide a base level payment through a relatively low-cost process administered by a permanent independent office.

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Although most programmes prioritise applications submitted by the elderly or very ill, some survivors will die during the process. Fairness suggests that the estates of survivors who die while waiting should receive redress. Making posthumous claimants eligible will blunt criticisms of slow-running programmes that will otherwise be accused of waiting for claimants to pass away. The eligibility of posthumous claims also lends the redress programme a more collective character. Because a substantial redress settlement provides survivors with opportunities to perform as a family or community provider, insofar as families and communities become beneficiaries, enabling posthumous claims reflects the importance of these opportunities.

Programmes manage posthumous claims in different ways. The most restrictive require a living survivor to accept the settlement offer but will pay if the survivor dies prior to receipt. In others, a survivor must be alive to lodge an eligible claim (the Magdalene laundries programme is an example), but the claim can continue if they die before receiving a settlement. Less restrictive programmes permit posthumous claims to be submitted by the survivors’ estate or next of kin. In Canada’s CEP, survivors who were alive on 30 May 2005 were eligible, even if they died before submitting a CEP.

When survivor testimony is necessary for success, posthumous claims confront considerable challenges. Canada’s IAP permitted posthumous claims only if a living survivor had submitted testimony regarding their injurious experiences. As with most aspects of the IAP, the rules surrounding posthumous claims were complicated and subject to various court rulings, which were summarised in a 2015 policy brief (Indian Residential Schools Adjudication Secretariat 2015 (2018)). The larger point is that if programmes depend upon survivor testimony, the necessary evidence may disappear when the survivor dies. Therefore, if a programme needs testimonial evidence, it should be collected quickly. Applicants might be encouraged to record, as soon as possible, testimonial evidence relevant to their case. A flexible programme could use recordings of oral interviews, signed affidavits, witness statements, and hearsay evidence to process posthumous claims.

Posthumous claims are more easily managed when the primary validating evidence is documentary – the CEP is an example. Other programmes manage posthumous claims by allowing next of kin to obtain redress. This can be done in different ways. Tasmania’s Stolen Generations programme had a separate process for children of primary applicants. Whereas primary survivors received AUD$58,333 each, their children were eligible for payments of AUD$5,000, up to a maximum of AUD$20,000 per family group (Office of the Stolen Generations Assessor 2008: 8). Scottish Redress offers a different approach. Scottish claimants can nominate a beneficiary to take over their redress claim at any time prior to settlement. Some infirm or elderly applicants may choose to reassign their claim to a beneficiary to permit the claim to continue posthumously. But should the claimant die without assigning a beneficiary, either the surviving spouse or partner will receive the whole settlement, or it will be apportioned equally among surviving children. In cases where a deceased survivor had not applied, their next of kin can apply on behalf of a survivor who died after 31 November 2004 for a payment of £10,000.

Given the age and morbidity profiles of survivor populations, it is reasonable to give priority to elderly and gravely ill applicants. Enabling claims to be reassigned to beneficiaries or letting family members assume posthumous claims enables further flexibility. The leniency of such provisions may depend upon the programme’s purpose. If it is primarily about settling the survivor’s claims, then when death ends those claims, the programme will have little reason to permit them to continue. But if the programme has broader community and social aims, then enabling posthumous claims can help fulfil those larger purposes.

9.3 What Injuries Are Eligible?

Recall (from Chapter 2) that survivors experience(d) injurious acts and consequences, with both interactional and structural causes, that afflict survivors as both individuals and groups. The eligibility of different categories of injuries shapes programme operations. One way a programme can create a flexible framework for survivors is to enable them to choose pathways that redress different forms of injury.

Public discussions of redress often concentrate on interactional injurious acts: reports of sexual assault and physical cruelty have become the expected currency of survivor testimony. Individual injurious incidents include abusive events, such as physical blows, sexual touching, or medical malpractice along with emotional (mental) abuse, including insults and other degrading treatment. Some programmes are narrowly tailored. New Zealand HCP only admits injurious acts. The other exemplars tend to be less narrow, however, they often treat interactional (and individual) injurious acts as more severe than structural or collective injuries.

Pushing back against that trend are those who argue for the importance of structural injuries, such as neglect. Neglect is not a single event, it involves a pattern of mistreatment in which someone’s physical, emotional, and developmental needs are systemically unmet. Structural neglect was common in systemically injurious care. Frank Golding observes that neglect was more frequently reported than either physical or sexual abuse in Australia (Golding Reference Golding2018: 197), while Shurlee Swain argues that structurally neglectful conditions predispose institutions to more frequent sexual and physical abuse (Swain Reference Swain2015a: 301). Equally, care leavers testify that fear of abusive incidents coloured their communal life in care – survivors lived in an ‘atmosphere of fear’ (Ryan Reference Ryan2009c: 101). Other critics note that redress programmes that emphasise discrete interactional acts focus blame on individual offenders in ways that decentre structural faults attributable to institutions and organisations (Green Reference Green2016: 129; McEvoy and McConnachie Reference McEvoy and McConnachie2013b: 503).

Redressing interactional injurious acts is important to many survivors. Not only might they demand just compensation for their injuries; they may want the redress process to acknowledge those experiences. But those claims should not displace the redress of structural injuries. Evidencing interactional injuries can impose serious psychological costs – a point I return to in Chapter 10. By contrast, information about structurally injurious practices is more likely to be held in institutional records, to illustrate, Queensland’s Forde Report cites numerous contemporary reports evidencing poor-quality care (Forde Reference Forde1999: 35–36). Moreover, because the redress of structural injuries focusses on general environments and not specific acts, redress programmes can limit logistical costs for participating survivors, offenders, and their respective lawyers. Redress programmes that have access to institutional records or reports compiled by public inquiries may be able to redress structural injuries more quickly and at lower costs than those redressing individual injuries. An example is the Magdalene programme, which settled most claims within a few weeks or months (IR Interview 7). A similar point applies to collective injuries, including the family separation, cultural disconnection, and genocide inflicted upon Indigenous peoples in Canada and Australia. In many cases, a programme would not have to collect evidence unique to an individual’s case before acknowledging that they experienced some collective injuries.

Previously, I noted the concern that redressing individual injuries inflicted by individual offenders serves to individuate blame and so decentre institutional and systemic responsibilities. In comparison, a structural approach to redress responds to systemic and common experiences. In that way, such programmes acknowledge the policy wrongs committed by institutions. Moreover, the redress of collective incidences of injury can help the programme to be more inclusive, enabling more survivors to participate. A good example appears in the Canadian IRSSA, where the CEP offered redress for the collectively injurious residential schools and the IAP focussed on individuated abuses. That flexibility enabled 79,309 survivors to obtain redress for (some) collective injuries, while the IAP settled 27,846 individual claims.

Redress programmes can potentially include a wide range of structurally and interactively caused injuries and their collective and individual results. Turning to the overarching argument for flexible design, offering a pathway to redress structural and/or collective injuries alongside opportunities to pursue individuated redress enables survivors to choose which claims they pursue. Although I distinguish between structural and interactional and between collective and individual forms of injury, policymakers should look beyond these simplistic labels to analyse what will work in the relevant context. As the discussion of posthumous claims suggests, it may be easier to get evidence for some injuries than others. Or perhaps survivors will strongly prefer to include or exclude certain injuries. Or, equally, financial constraints may encourage excluding more grievous injuries, leaving the remedy of those to the courts.

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I now turn to the question as to whether injuries that were permitted at the time when they were committed should be eligible for redress. Present standards of behaviour may condemn previously permitted practices and some survivors experienced injuries that were celebrated by the communities in which they lived. Examples include the legal misuse of forced labour – the sadistic Francis Keaney, principal of Bindoon Boys Town from 1942 to 1954, was proud of his sobriquet ‘Keaney the Builder’ – which he obtained by forcing resident children to construct the institution’s stone edifices (Senate Community Affairs References Committee 2001: 116). ‘Keaney the Builder’ received an MBE in 1953, Bindoon Boys Town was renamed Keaney College in 1966, and his life-size bronze statue stood on the grounds from his death in 1954 until 2016. Other injurious practices might have been less celebrated, or even formally illegal, but nevertheless normal. An example is corporal punishment. Despite its prevalence, the practice of corporal punishment often violated regulations limiting its use. Elizabeth Stanley similarly details how New Zealand’s restrictions on secure confinement (isolation) were regularly ignored by care staff (Stanley Reference Stanley2016: 128). In these cases, the standards of the day were impermissible de jure, yet New Zealand’s HCP relied on them when deciding what injuries to redress (NZ Interview 2).

Because the purpose of state redress programmes is not to extinguish legal liability, there is no general reason to exclude injuries for which no one can be held legally liable. Nevertheless, some contemporary standards are clearly relevant. In the early twentieth century, education was compulsory in the Canadian Province of Manitoba for children aged seven to fourteen; however, in 1962, the minimum school-leaving age increased to sixteen (Oreopoulos Reference Oreopoulos2005: 10). The IAP adjusted its eligibility categories accordingly, but it would not redress a failure to provide education beyond what was legally required. A similar point was made by interviewees in Ireland, who pointed out that when survivors complained of receiving a bland and largely meatless diet, their experience reflected what the post-war Irish normally ate (IR Interview 3). The RIRB did not accept that survivors were injured by eating common Irish fare.

I think the question as to whether injuries permitted by contemporary standards should be eligible for redress is easy to answer. Education standards and the bland Irish diet of the mid-twentieth century are examples of contemporary practice that are not wrong in themselves – they are not malum in se. However, when programmes confront legal, or otherwise permitted, injuries of forced labour and isolation, and other permitted wrongdoings, the defence of contemporary standards should not limit eligible injuries. Redress programmes do not determine culpability or extinguish legal liability. They redress injuries. And abuse does not become less injurious because it was socially or legally permitted. Indeed, the fact that care providers were permitted to injure young people is a salient feature of systemically injurious care practices. The permissibility of injurious regimes is one of the things that ought to be redressed.

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Offending agents included both institutional and natural persons. Where an institution’s regulations or practices were structurally injurious, the offender is the institution itself. Institutional offenders include both state and non-state agents, such as religious organisations. Natural offenders occupy three distinct relationships with survivors. Some offenders were staff members: exemplars that redressed interactional injuries invariably addressed staff offending. However, eligibility varied regarding the treatment of injuries inflicted by offenders in two other categories, non-staff adults and peer offenders.

Many care leavers were injured by non-staff adults while in care. For example, one Australian survivor was sexually assaulted by her father when he visited her in a residential institution (Senate Community Affairs References Committee 2004: 81). Her injuries include both those assaults and the fact that the care institution did not protect her from them. Other survivors might be injured when they left a care residence to spend time elsewhere, this might include being forced to labour at a farm, building site, or holiday camp. Some programmes excluded these offences. New Zealand required injuries to have been associated with a failure attributable to the state, either a government institution or an employee (NZ Interview 6).

The survivors’ peers constitute a third category of offending natural persons. Peer offending was common in many care placements (Mazzone, Nocentini, and Menesini Reference Mazzone, Nocentini and Menesini2018; Barter et al. Reference Barter, Renold, Berridge and Cawson2004: 21; Stanley Reference Stanley2016: 81–86; Ryan Reference Ryan2009c: 109–10; Bombay, Matheson, and Anisman Reference Bombay, Matheson and Anisman2014: 52ff). To illustrate, Canada’s TRC reports Louise Large’s account of her bullying, she was ‘the leader of the pack’ at the Blue Quills residential school.

As Chapter 2 remarks, some placements had hierarchies of bullies, who could be endowed with a semi-official status and were permitted, or encouraged, by care staff to engage in peer offending.

Peer offenders create distinct challenges for redress programmes. Many peer offenders were children at the time of their offences and not liable for their actions. There may be liability for an institution’s failures to regulate the behaviour of young people, but not for the specific injurious incidents. Moreover, some peer offending is normal. Acts that would be criminal between adults, or between adults and children, can be part of the normal developmental process. Children are not expected to act like adults. Large’s account goes further. She suggests that bullying was a survival strategy for negotiating the terrible conditions of the residential school. She is what Luke Moffett calls a ‘complex victim’, whose offending was an adaptive response to a hostile environment (Moffett Reference Moffett2016: 150). Care institutions encouraged bullying by developing practices in which weaker residents needed protection. Some would argue that Large was injured by being compelled to become an offender. But one does not need to accept that claim to recognise the fact that because systemic injurious care is criminogenic, many survivors are offenders (Marshall and Marshall Reference Marshall and Marshall2000: 253).

Contacting peer offenders as part of an investigation risks exposing them unfairly. Offenders who were children at the time might reasonably expect not to be asked to account for their actions now. Moreover, peer offenders may themselves be (potential) redress claimants and if the programme treats them as an offender that will colour their own applications. Finally, when peer offenders and (other) survivors live together in families and small communities or continue to share religious fellowship, involving them in redress claims raises serious privacy and well-being concerns (Bombay, Matheson, and Anisman Reference Bombay, Matheson and Anisman2014: 78–83).

At minimum, if a programme is going to ask for offenders’ names, it should inform survivors how that information will be used and someone without an interest in their settlement (which may not be their lawyer) should talk with the survivor about the potential ramifications. In Australia, some survivors who provided an offender’s name to the NRS were then contacted, unexpectedly, to participate in a criminal or workplace investigation (Kruk Reference Kruk2021: 68). The previous chapter argues that survivors must know what will happen to information that they give to the programme. Some survivors will want to use the redress process to create accountability – they will want prosecutions (AU Interview 13). Others, worried about putting themselves and others at risk, will wish to proceed without giving names. And every survivor should be able to choose whether or not alleged offenders (both institutional and individuals) participate in their interview.

Non-staff and peer offending both raise difficult issues. In both cases, programmes will confront injuries for which the respondent is not legally liable. But I have already said that redress programmes do not exist to extinguish legal liability. They emerge as a response to meritorious claims that the courts are unable to address. Therefore, legal liability should not circumscribe eligibility for redress. What then should set a limit? I think redress programmes should extend a broad latitude for injuries inflicted by non-staff and peer offenders, acknowledging the criminogenic conditions of structurally injurious care. But the problems that arise underline the importance of survivors participating in policymaking. Different programmes, confronting differing legal, logistical, political, and financial constraints, could reasonably differ in their inclusiveness. In some cases, it may be better to treat at least some peer offending as a collective injury, when, for example, institutional structures encouraged peer offending. In addition, programmes that redress individual offences may wish to adopt special investigative provisions that recognise the distinctive privacy and well-being concerns associated with offenders who are members of the survivor’s family and community.

In accord with the argument for flexibility, different pathways to redress might distinguish between injuries inflicted by different offenders. A pathway redressing collective injuries might respond to structurally injurious care environments. Additional pathways could then address individual injuries occurring in a broader range of placements, including offences committed by individual staff, non-staff adults, and peers. These pathways might employ different investigation techniques for adult and peer offences and permit survivors to opt-in, or out, of pathways as they prefer. Survivors should not need to accuse members of their family or community to be eligible for redress.

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Most programmes use cut-off dates to delimit eligible injuries. To illustrate, claims for residence arising after 31 December 1997 were ineligible in Canada’s CEP, while Queensland Redress and Redress WA were limited to injuries occurring prior to 31 December 1999 and 1 March 2006, respectively. Those cut-off limits reflect the programme’s purpose. Redress programmes are (in part) justified by the evidential problems associated with non-recent claims. Without a cut-off date for eligible injuries, programmes will receive more recent claims. Given changes in record-keeping, staff training, and accountability practices, more recent claims are likely to have more relevant information (evidence) available. Moreover, more recent care experiences may not involve the injurious extremes of deprivation, punishment, medical malpractice, and child labour characteristic of the worst placements of the early and middle of the twentieth century. Reflecting significant changes to the epistemic and regulatory environments, ordinary legal processes may be better able to manage more recent claims.

While there are good reasons to have special redress programmes for non-recent injuries, choosing a specific date to exclude more recent offences may appear arbitrary. Arbitrary line-drawing invites charges of unfair discrimination when it is unclear why an injury occurring on one day is eligible, but the same injury occurring the next is not. This line-drawing problem is unavoidable and familiar to many policy fields. I suggest that terminal dates will be less arbitrary insofar as policymakers can point to significant regulatory change. In the case of Queensland, the terminal date of 31 December 1999 matched the beginning of the Forde Inquiry and the advent of a new Child Protection Act. That new statutory regime, alongside the increased accountability created by the Forde Inquiry, represented a salient point differentiating injuries occurring on different dates. Redress WA’s cut-off date corresponded to the full implementation of Children and Community Services Act 2004. In Canada’s case, the 31 December 1997 limit matched the year in which the last Indian residential school closed, ending the possibility of injuries occurring in these institutions. These examples illustrate the advantage of selecting dates that can be justified by reference to substantial change. However, to return to the participatory theme, survivors should share in selecting cut-off dates.

9.4 Consequential Damage

The damage caused by injuries suffered in care marks the lives of many survivors. As Chapter 2 outlined, consequential harms can have structural or interactional causes and be individually or collectively experienced. Individual damage includes physical health problems, including frequent illness and risky health behaviours, including self-harm; mental health problems and psychosocial maladjustment, including depression, anxiety, personality disorders, and post‐traumatic stress disorder (PTSD); alcohol and substance abuse; financial management problems; and educational and occupational difficulties (Fitzpatrick et al. Reference Fitzpatrick, Carr and Dooley2010: 388). The large range of harmful outcomes can include potentially opposite phenomena, for example, childhood sexual abuse can lead to both sexual inhibition and/or exhibition. Collectively experienced damage includes exposure to higher probabilities of physical and psychological illnesses – a higher chance of getting ill afflicts survivors in general. Injurious care can have intergenerational effects and other collective harms may include care leavers’ marginalised social status and their experience of cultural and family disconnection. In communities where survivors comprise large portions of the population, the negative effects of care may be statistically discernible.

Few programmes clearly specify monetary redress as a response to collectively experienced damage. They tend to engage with collective consequential damage through measures that supplement or support monetary redress, such as counselling or family tracing assistance. However, the Canadian Personal Credit programme provided monies to help survivors engage with their First Nations communities – helping redress the communal harms of the Indian residential schools’ assimilative effects. And previously mentioned programmes that include family members as beneficiaries respond to the negative effects of injurious care they experience.

The redress of some collectively experienced damage will be efficient if relevant evidence derives from population-level data, such as demographics. By contrast, the redress of individual damage poses significant challenges. Chapter 12 addresses problems associated with assessing consequential damage, here I examine the treatment of survivors. To be eligible for consequential damage, survivors need to show that they are damaged, and that they are not responsible for that damage – demonstrating that the course of their lives was set by what others did to them (Pearson, Minty, and Portelli Reference Pearson, Minty and Portelli2015: 30). This requires assessing the survivors’ responsibility for their choices, decisions, and life plans. In effect, the programme must judge how well people have lived (Diller Reference Diller2003: 741). Any investigation of consequential damage will focus on the survivor – subjecting their life to privacy invasions that entail alienating and undignified representations.

In previous work, I observe how representing oneself as a damaged person involves alienation (Winter Reference Winter2018b). Alienation occurs when people see something that is (or should be) integral to themselves as a separate and hostile force. Eligibility for consequential damage encourages survivors to represent themselves as damaged persons. To claim redress, survivors need to represent consequential damage as both something they endure and as part of their person (something they are). The survivor is harmed, and the damage lies within. For example, Cheryl Kelly’s submission to the Australian Senate’s Inquiry into Children in Institutional Care attributes her parental failings to her experience of child abuse:

Kelly represents the way she parents, something that she thinks should be central to herself as a person,Footnote ¹ as something imposed upon her. That is alienation. And that alienation develops in a context of indignity. Over 50 per cent of respondents to a 2010 postal survey of Australian care leavers indicated that they confront ‘shame or fear’ regarding their injurious experiences (Golding and Rupan Reference Golding and Rupan2011: 36–37). Of course, survivors might be embarrassed by aspects of their injurious experience that are not consequential damage. But in the context of this discussion, it is worth observing how the personal history and characteristics eligible for consequential damage – unemployment, innumeracy, illiteracy, and disorderly tendencies such as alcoholism and violence – are often viewed as shameful. Survivors know that other people will judge them (Senate Community Affairs References Committee 2004: chapter 6). And the redress of consequential damage encourages survivors to display attributes of their person – their personal decisions, behavioural patterns, and character attributes – in alienating and shameful ways. The process is aggravated by its public and bureaucratic character. The redress judgement creates an impersonal depiction of the survivor as a defective person.

A second problem with the eligibility of consequential damage concerns the invasive character of the process. To investigate the harms that occurred and assess their severity, a comprehensive redress programme could examine a survivor’s entire life. Moreover, a programme that attempts to redress only those harms caused by injurious care experiences must exclude damages attributable to other injurious experiences. In that effort, the programme needs information about potentially harmful events that occurred prior to, or after, the survivor’s experience of care. The redress of consequential damage fosters wide-ranging invasions of privacy. As an Irish informant observes,

A comprehensive investigation can include hundreds of medical, financial, employment, and educational records, and probe the survivor’s relationships with their community, family, and friends. This investigation gathers deeply private information, exposing it to public assessment. Redress WA’s assessment matrix (Appendix 3.6) offers a good example. In that programme, eligibility for consequential harm included ‘sexual dysfunction, negative body image, anxiety about sex etc’. Reflect for a moment on how a survivor would evidence those harms. It is hard to imagine anything more invasive.

Chapter 12 returns to the difficulties of assessing consequential damage. Those difficulties underline the obvious solution of making the redress of consequential damage optional. Some survivors may prefer to avoid it altogether. Others may benefit from the redress of collectively experienced damage, through processes that eschew invasive personal assessments and alienating personal representations. Still others will want all possible injurious damage redressed.

9.5 Eligibility Recommendations

• A defined-list programme works best with a schedule of distinctive institutions with good records, while open programmes are more flexible and responsive. The trade-offs between open and defined-list programmes suggest that a survivor-focussed programme might develop pathways incorporating both techniques.

• Programmes require transparent criteria to define how survivors need to be associated with institutions on a defined list to be eligible. Programmes might use discretion in the survivor’s favour – non-standard historical practices should not now disadvantage claimants.

• Developing and communicating the ambit of eligibility should aim to mitigate the reputational risk to existing care services.

• Programmes should be open to applications for a period sufficient to make them accessible to all eligible survivors.

• Policymakers should consider operating successor programmes to manage applications submitted after an initial closing date.

• Facilitating posthumous claims is fair and enables familial and collective benefits.

• Survivors should be encouraged to record, as soon as possible, testimonial evidence relevant to their case.

• Programmes should give priority to elderly and/or gravely ill applicants.

• All programmes should include a relatively low-cost pathway to redress structural injuries; that pathway might be supplemented by one or more pathways in which survivors pursue the redress of individual injuries.

• Legal liability should not define eligible injuries.

• Subject to other considerations, redress programmes should extend a broad latitude for injuries inflicted by non-staff and peer offenders.

• Generally, contemporary standards of what was permissible should not be used to exclude meritorious claims; however, there are certain claims where non-invidious contemporary standards are relevant, such as the legal requirements for education.

• Because redress programmes respond to unique concerns associated with non-recent claims, programmes can reasonably impose cut-off dates. Injuries that were incurred after that cut-off date can be pursued through ordinary processes.

• Programmes should seek to align cut-off dates with relevant regulatory change or another distinctive event.

• The redress of consequential harm should be an option but not required for a successful claim.

• Policymakers should consider designing flexible programmes that distinguish the redress of collective and individual consequential damages, enabling survivors to choose to pursue the redress of structural and/or collective harms alongside one or more pathways redressing individual damages.

10.1 Introduction

Through phone calls, letters, emails, interviews, and application forms, redress programmes get evidence from survivors. Programmes also get evidence from other sources, including religious organisations, care institutions, governmental departments, and professionals, such as counsellors, psychologists, and medical practitioners. Often complex and working through successive phases, the evidentiary process constitutes a critical element of programme operations and the survivors’ redress experience.

Information is the primary instrumental purpose of the evidentiary process. Because information is costly for survivors to provide, and for programmes to manage, an efficient programme would only acquire what it needs to distinguish eligible from ineligible claims and, where relevant, assign them to the correct severity standard. But because a redress programme provides a way for survivors to tell their story, there are also participatory values inherent to the process (Hanson Reference Hanson2016: 12). For Lana Syed-Waasdorp, Queensland Redress was ‘a great thing to have’ because ‘[i]t gives us a chance to write to the government and let them know how we did all suffer and it lets us be heard, lets our stories go and be heard’. (‘Official Committee Hansard’ 2009a: CA25). If the application process is viewed primarily through an instrumental lens, policymakers might try to limit survivors’ engagement. But participatory values can provide reasons to amplify survivor engagement and increase the costs of their involvement. Tensions between participatory values and instrumental optimality reinforce the need for flexible programmes that negotiate the resulting trade-offs.

10.2 Advertising Redress to Survivors

Survivors need to know about a redress programme before they provide it with evidence. Effective advertising must reach survivor populations that are ‘information disadvantaged through low income, poor education, an inadequate knowledge of English, disability, geographical isolation or other reasons’ (Redress WA Reference Redress2008b: 10). Moreover, survivors who are suspicious of governmental institutions may mistrust or ignore outreach attempts. Success depends on informing survivors in ways that motivate them.

To cast a wide net, exemplars used radio advertising to target high-profile sporting and cultural events, and ran print adverts in popular and/or freely available newspapers, while state agencies, such as prisons, displayed posters, distributed pamphlets, and hosted information sessions. Confronting challenges of both geography and Indigenous cultural difference, both Redress WA and IAP staff held community-level sessions in remote communities. Redress programmes are popular news items and programmes can use newsletters and periodic reports to provide content for the media. Making information available to journalists and other observers can also be a way of ensuring accountability and transparency.

Redress programmes should leverage survivor networks and community agencies. These bodies can advertise the programme on their websites, mailing lists, newsletters, and social media pages, and host in-person events. If survivors already trust these local networks and agencies, redress programmes can piggyback upon their reach and credibility – Chapter 5 notes the Child Migrants Trust’s effective organising of Redress WA applications. To motivate survivors, advertising must clearly and accurately represent the programme. It should also be iterated. An iterative strategy increases not only the numbers reached but also the probability of repeated engagement. People are more likely to act when they are repeatedly exposed to information (Keller and Campbell Reference Keller and Campbell2003). As Chapter 6 observes, Canada’s advertising strategy for IRSSA sought to reach each survivor an average of fourteen times. As a result, the CEP and IAP received applications from over 100 per cent of their eligible population estimates. Moreover, as different survivor communities (rural, disabilities, Indigenous, and those incarcerated) may belong to different networks, the programme may need different forms of advertising to reach all those eligible effectively. This may include advertising in minority languages.

First-contact advertising merely tells survivors that the programme exists and where to find the pamphlets, guidebooks, and websites that provide more detailed information. Websites are cost-effective and easy to update, but some survivors may find accessing text-based websites challenging. Because phones are now more common than computers, programmes should present information in a manner optimal for mobile viewing. In general, survivors need to know whether they could be eligible, what they could be eligible for, what they need to do to apply, and, perhaps most importantly, where they can obtain assistance – most survivors will not complete and submit effective applications on their own. Immediately connecting survivors with support groups allows programmes to outsource some of the work involved in getting usable evidence to lawyers and other support workers.

10.3 Testimonial Evidence

Evidential testimony comes from different sources and can be either pre-recorded or provided in person. With one exception (New Zealand), all the exemplars used application forms. These forms shape what, and how, testimony is given. As Robyn Green argues,

Green rightly emphasises that application forms shape how survivors describe their claims. To illustrate, many female survivors were subject to unnecessary internal examinations to check for venereal disease when in care. Survivors applying to the Australia’s NRS now claim that those injuries constitute sexual abuse (Kruk Reference Kruk2021: 72–73). Some of those claims may be products of the NRS’s eligibility requirement. Sexual abuse is necessary to get redress from the NRS: applicants must provide evidence of a sexual event, and the application form requires survivors to ‘describe … your experience of child sexual abuse …’ (National Redress Scheme c2019: 10). If the programme was otherwise structured, then some survivors might describe their injury differently, perhaps as physical assaults or medical malpractice. The categories a programme uses will shape the evidence it receives.

An evidentiary process requires survivors to learn what injuries the programme can redress, what information is relevant, and how to craft their evidence accordingly. Well-designed forms help applicants give officials the information they need (Howlett Reference Howlett2017). While application forms can vary, universally beneficial techniques include using simple language and separating complex information into manageable portions. Because survivors are culturally diverse, the programme may need different application forms to convey and acquire information effectively, changing not only the language, but also the style and approach to suit cultural norms. If the programme has more than one pathway, then the application form should be divided so that applicants need only provide information relevant to the pathway(s) they want to apply for, thus avoiding inefficiencies. Forms can be both web-based and on paper, enabling survivors to use technology that works for them. Programmes should vet their forms using accessibility software and run pilot tests with users.

The application form should clearly explain why it is collecting information and indicate what evidence is necessary and what is optional. As noted in Chapter 8, it should, of course, also tell the applicants what will be done with the information. The form should capture necessary identification and contact details, including any previous names or other identifiers (such as numbers or nicknames) by which the applicant was known in care. Because redress can take a long time, and some survivors are itinerant, the application should ask for alternative contact persons or organisations. Where institutional residence is relevant, the form should prompt applicants with a list of named institutions, such as orphanages or schools. Because some placements (like foster care) will not have proper names, or applicants may not recall where they resided, the form should include free text space so applicants can describe what they do know. It is good practice to ask for information in more than one way. For example, the IAP’s application form asked for information about abuse using both a table and free text space. The table summarised the relevant experiences and encouraged survivors to define those experiences using concepts and categories used by the programme. The free text space then allowed applicants to describe their experiences in their own words.

Chapter 9 recommends that programmes accept pre-recorded testimony to offset the risk of a survivor dying during the application process. Pre-recording also enables survivors to develop their evidence over time. Survivors can revise for clarity, accuracy, and effectiveness, making reference to programme guidelines and receiving assistance from support workers. Some programmes accept testimony initially recorded for other purposes. For example, New Zealand’s HCP accepted transcripts of testimony given to CLAS. The overarching point is to enable survivors to use processes and formats that suit them, while at the same time providing the programme with the necessary information. One could imagine a programme operating a web portal through which survivors (or their lawyers) could log on to progressively develop their application. Survivors could upload written, audio, photographic, or video-taped testimony, alongside written accounts and electronic records. This would allow programme staff to review that material as the application develops, helping survivors provide clarifying or missing information.

I advocate flexible programmes that provide survivors with different pathways through to redress. To choose how they will participate, survivors need to be well-informed about the available options. If the application needs to provide a lot of information about a complicated set of options, they will become very large and complex in themselves. That is a worrisome result. Large application forms are more difficult, even intimidating, to complete. To mitigate the problem, programmes can offer more simplified information as a first resource, putting more complex information into guidebooks with explanatory sections that match the structure of the application form. Greater complexity is an inevitable and necessary trade-off to flexibility and is an unfortunate consequence of ensuring that survivors have the information they need to understand the programme. This is another reason to ensure that survivors have competent support during the process.

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When pre-recorded testimony is insufficient, oral testimony can help add or develop pertinent information. Oral testimony is usually provided through interviews. Interviewers who know what evidence a successful claim needs can help identify evidence helpful to the survivor’s claim and ask clarifying questions. Centred on the survivor, the interview is, perhaps, the most survivor-focussed aspect of redress. ‘[W]e need to have an opportunity to say what we need to say’ (CA Interview 2). An interview offers important participatory values, enabling survivors to speak directly to the programme. When an interview goes well, it can help survivors feel validated, empowered, and, potentially, to heal.

Transitional justice practice promotes the benefits of testimony. In the 1990s, the South African Truth and Reconciliation Commission embraced the idea that testifying about injurious experiences can be good for people psychologically (Hamber Reference Hamber and Biggar2003). Building upon popular understandings of the ‘talking cure’ in psychotherapy, the commission’s posters told the world that ‘Revealing Is Healing’ (The Truth and Reconciliation Commission c1995). The message was received enthusiastically, spurring an evolving and dynamic range of testimonial-based remedial initiatives (Skaar Reference Skaar and Oberleitner2018: 415).

Some survivors say that testifying has therapeutic or other benefits (Independent Assessment Process Oversight Committee 2021: 24). But that therapeutic potential is matched by serious concerns for the survivors’ well-being (Senate Community Affairs References Committee 2009: 55–56; Dion Stout and Harp Reference Dion Stout and Harp2007: 19) (IR Interview 6). Imagine a survivor preparing to tell the worst parts of their life story in an unfamiliar room to someone they just met. Interviews ask survivors to relive detailed memories of their past abuse and submit that testimony for judgement. Their words will be judged for veracity and weighed as evidence. The survivor is effectively ‘on trial’ and the stakes are high. Not only is money involved, survivors also risk having their accounts discredited. Being disbelieved or understood differently than intended can undermine the participatory value of testimony (Turner Reference Turner2016: 37).

Whereas trained psychologists conduct therapy under controlled low-stress conditions, a high-stress inquisitorial interview is, almost inherently, conducive to retraumatisation. It is, therefore, unsurprising that every exemplar that used oral testimony received complaints that it harmed survivors. Sinead Pembroke’s findings concerning the Irish RIRB are symptomatic. In her study of twenty-five Irish survivors, several respondents described their interview as ‘cathartic’, but the majority ‘emphasi[sed] that it caused further trauma and opened up psychological wounds’ (Pembroke Reference Pembroke2019: 56). Illustrating those different experiences, Canada’s National Centre for Truth and Reconciliation’s Report is balanced. At one point, it states that

But the report also highlights Eugene Arcand’s more difficult experiences:

From the perspective of the programme, interviews need to produce evidence. That purpose need not require lengthy discussions about traumatic events, and interviewers may naturally avoid spending more time talking about injuries than is necessary for evidential purposes. But a too-short exposure to the traumatic experience during testimony may aggravate the interview’s harmful character. Karen Brounéus suggests that short-term engagement with traumatic memories can intensify trauma as the body’s bio-psychological responses are triggered without the survivors having enough time to work through the traumatising memory (Brounéus Reference Brounéus2008: 62). A short interview that leaves traumatising memories unprocessed may aggravate retraumatisation. To protect the well-being of survivors, interviews must work in a trauma-informed manner. No seriously injured survivor should tell their story for the first time in an evidential interview. If survivors are not comfortable engaging with those memories, the highly stressful evidentiary interview can lead to further and serious psychological harm.

Testimony may have real value for some survivors, however, because those benefits are neither universal nor unmitigated, interviews should be optional for survivors, which, in turn entails pathways that do not require oral testimony (Lundy and Mahoney Reference Lundy and Mahoney2018: 281). Given the difficulties associated with testimony, survivors who choose to participate in an interview need the option of having support persons attend. Reflecting the psycho-emotional difficulties involved, one interviewee (a therapist who worked with the Irish RIRB) observed that people could lack memory of the interview in the same way that people can lack memories of traumatising injuries.

While not all survivors will want family or friends with them – they may have privacy concerns, and participation risks vicariously harming everyone involved – having support in the room can be crucial to making the process safer and more effective.

Survivors should also have some choice over who hears their testimony. It is easier to have a single interviewer hear testimony, while a multi-person panel communicates formality. Moreover, an interview panel may be better at obtaining information, with members from different professions – social workers, psychologists, legal and medical professionals – attuned to different kinds of data. The use of panels can also help with consistency. Ireland’s RIRB panellists were regularly shuffled by lot so that panellists did not develop idiosyncratic and inconsistent procedures. However, survivors may find the presence of multiple interviewers intimidating. Wherever possible, programmes might permit survivors to choose the number of interviewers at their hearing. Recall the recommendations made in Chapter 8: where possible, survivors should be able to choose the ethnicity, gender, and language of their interviewer.

Considering the well-being difficulties involved, survivors need to be provided with pathways to redress that do not involve interviews. And where it is likely that an interview risks harming survivors, the survivor should have the support of long-term counsellors (or other support people), not merely their lawyers. Programmes have a responsibility for the well-being of applicants, and staff need training in trauma-informed engagement to help them identify problems and respond appropriately. Survivors should be monitored by trauma-informed supporters during the days immediately following testimony, for they may be at a high risk of psychological deterioration, including suicide. Moreover, a programme needs to manage the public relations (business) risk that retraumatisation poses. A programme will be less effective if it develops a retraumatising reputation that deters potential applicants. On that point, Redress WA is candid.

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Some programmes include representatives of ‘offending institutions’ at interviews. Canada’s IAP required legal representation of Canada (the SAO) at hearings and Ireland’s RIRB could include church entities and other institutional representatives. The RIRB even permitted alleged individual offenders to cross-examine survivors, although that rarely happened. The value of including offenders in an evidentiary interview is uncertain. Some might provide useful information, but equally they might provide that information at some other time. Sometimes their inclusion is justified by a potential restorative justice benefit. Restorative justice involves processes that bring offenders and survivors together as a way to help repair damaged relationships (Strickland Reference Strickland2004).Footnote ¹ When representative offenders listen to the survivor’s testimony and offer condolences:

A Canadian report quotes an unnamed SAO representative as saying,

I think involving offenders is expensive and risky, it also makes logistics more challenging. Staffing shortfalls in Canada’s SAO contributed to delays in the IAP. And some SAO representatives did what a lawyer is supposed to do – look out for the interests of their client – helping some interviews become more adversarial (National Centre for Truth and Reconciliation 2020: 31). Regardless of how offenders (or their representatives) act, the survivor may be uncomfortable testifying in front of people they see as opponents (CA Interview 8; IR Interview 9). Moreover, should the survivor wish to pursue a civil claim against the offending institution, the offender’s participation may provide them with information prejudicial to the survivor’s claim.

When programmes confront countervailing considerations, the best option is to enable choice. But choice is always constrained, a point that is clear in the issues involved in asking survivors to name offenders. Survivors will have to give the names of offending institutions so that programmes can get evidence of their time in care. However, survivors may not need to give the names of alleged individual offenders. Most programmes are legally obliged to refer potential criminal prosecutions to the police and take steps to safeguard young people from potential offenders. But, as Chapter 9 observes, these (otherwise reasonable) steps create privacy and safety concerns for survivors.

Since testimony is psychologically difficult, a programme might try to minimise the number of times that survivors testify. As previously mentioned, that is one reason to accept testimony produced for other bodies, such as public inquiries. Limiting testimony also reduces the amount of information flowing into the programme, which will tend to lower operating costs and, hopefully, increase processing speeds. But these measures confront trade-offs. Most interviews last only a couple of hours. In such a short period, survivors may fail to say all that they wish. They may fail to recall certain facts. Or they may fail to mention them at the right time. Human memory is not a well-sorted catalogue; testimony is active, creative, and, importantly, partial. Survivors often progressively recall more information about abusive events each time they testify (Tener and Murphy 2015). In New Zealand,

In Canada, progressive disclosure during an interview could result in significant delays as applications were recalibrated, new potential offenders notified, and new professional reports obtained. While new disclosures will, usually, increase processing time and costs, there are mitigating steps that programmes can take, such as not contacting named offenders and dispensing with the need for professional reports to evidence familiar forms of consequential damage. It is important that survivors know that progressive disclosure is normal and acceptable, and that they can add to their testimony at minimal cost.

Generally, survivors benefit if they can present their evidence in a well-ordered narrative, with all the details in the right places. But memories of abuse may not fit that model. Perfect recollection is improbable, not least because trauma can disorder and fragment memory (Samuelson Reference Samuelson2011). Oral testimony is likely to differ from that recorded in written applications. Inconsistencies should be expected and are not necessarily evidence of dishonesty. Programmes that emphasise the potential legal consequences of making errors risk deterring survivors, especially those used to being disbelieved by hostile officials. For many survivors, testifying will involve emotional and challenging behaviours, others may be reticent, not wishing to tell a stranger the most intimate details of their lives.

That said, a programme’s integrity is in tension with the oft-heard injunction to ‘Believe Survivors’. The fact that a survivor says something does not guarantee its truth, and ‘acknowledging and respecting the pain suffered by victims does not entail a suspension of critical faculties’ (McEvoy and McConnachie Reference McEvoy, McConnachie, Spencer and Walklate2013a: 130). The practice of simply believing survivors can create problems. In the 1980s and 1990s, many people believed in the widespread satanic ritual abuse of children. As lurid stories of demonic rituals spread through the media, more and more people came forward claiming to be survivors. The desire to believe what complainants said led to hundreds of false allegations and wrongful convictions, demonstrating how well-intentioned practice can lead to injustice (Smith Reference Smith2008a, Reference Smith2010). When the act of questioning survivor testimony is seen as disrespectful, or even abusive, people will fail to check basic facts, and errors will occur (Smith Reference Smith2008a: 32).

Inaccurate testimony need not result from fraudulent intent. A well-known experiment colourfully demonstrates how people can be encouraged to remember things that never happened. The experimenters showed people a childhood photograph of them taking a hot air balloon ride and asked what they could remember about the experience. The trick was that the subjects had never ridden in a balloon. The childhood photograph had been doctored to include a photo of the subject in a stock balloon ride photo. After seeing the doctored photograph, nearly half the subjects invented some memory of an experience that never happened. Some of those memories were very detailed. One subject said,

Human memories are not stored data recalled from the past, they are contemporary constructions that respond to what is happening in the present. Research has found that media reports, peer discussions, therapy, even what people think they ought to have experienced, will influence what they remember (Kebbell and Westera Reference Kebbell, Westera, Kaladelfos, Small and Finnane2016: 125). Human memory is so suggestable that it would be surprising if the publicity given to injurious care histories did not affect survivors’ testimony.

These qualities of human memory are a serious problem. People want to believe survivors, yet it is normal for survivors to construct memories, that is what everyone does all the time (Wilson, Lonsway, and Archambault Reference Wilson, Lonsway and Archambault2020: 27–28). In non-recent abuse cases, it can be difficult to cross-reference survivors’ memory with other evidence. However, when cross-referencing can happen, errors are uncovered. In 2009, Debra Rosser, an archivist who helps survivors find records, told an Australian Senate inquiry that she was presently working with twenty-one cases. Of these, Rosser thought that around half had told her stories that ‘do not make sense in terms of the practices of child care institutions of the time’ (‘Official Committee Hansard’ 2009b: CA4). However, these errors concerned who was legally responsible for the survivor at the time, which is information that might not have been relevant to the young person at the time. Things are different when survivors are asked about their injuries. One widely cited review into the adult recall of childhood abuse indicates that positive claims of abuse tend to be accurate (Hardt and Rutter Reference Hardt and Rutter2004: 270). That review compared testimony with recent records of abuse. It observed a significant rate of under-reporting, survivors did not testify to around one-third of documented abusive events. Under-reporting may be common. Kimberley Community Legal Services told the McClellan Commission that their ‘clients frequently received less than they were entitled to [from Redress WA] because they were reluctant to fully divulge past abuse’ (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 251).

When thousands of survivors apply for redress, many will make honest mistakes, both in their own favour and against it. Others will try to cheat the programme – survivor populations include a share of rogues. Although redress programmes rarely identify out-and-out fraud, they tend not to look for it and, when they do discover potential cases, they may dismiss the claim instead of reporting it. I am familiar with only one review that explicitly looked for fraud, and it found numerous cases, including a claimant who had his mother lie about his claim (Kaufman Reference Kaufman2002: 298). The prospect of fraud involves two concerns. First, survivors who get redress illegitimately reduce the programme’s efficiency. Second, if suspicion of fraud becomes widespread, payments may lose some of their value. If the general public begins to see those who receive payments as potential cheats, that will undermine public acknowledgement of the survivors’ injurious experiences.

Deciding how much credibility programmes should give testimony is difficult. Programmes can expect some false claims. Programmes should take particular care with evidence arising from group processes, where one individual is asked to support claims made in another’s application. A natural wish to help one another might not be an incentive to be truthful, especially when collaborators live in the same families and communities. But disbelief is harmful to survivors who may believe what they are saying, even when it is inaccurate. Although a lenient approach risks inviting false claims, it may be more efficient to quietly pay some non-meritorious claims, than to attempt to invalidate them.

10.4 Institutional Records

Apart from testimony, institutional records are most important sources for evidence. I have frequently noted that the records of young people in care are very poor. Institutions did not invest adequate resources in creating and archiving records. Many records were never created, many more are now missing and those that remain are hard to locate and access. Some records contain false information. Forgotten Australians quotes an anonymous survivor,

And institutional records seldom provide evidence of specific injuries:

It is unfair to survivors when deficiencies in record-keeping and records-access harms their claims, especially when the offender was (and is) responsible for developing and maintaining those records (Ministry of Social Development 2018c: 22). For that reason, making access to available records as easy as possible is critical to the evidential process. Records can provide survivors with relevant information about where they were in care, what happened to them, and who they were in care with. Programmes should develop, as quickly as possible, high-quality accessible databases and begin to compile and analyse relevant documents. Moreover, programmes should move to secure access to records held by relevant private organisations, potentially funding the necessary archival work. Transparency requires that all records used as evidence should be available to both survivors and programmes.

The records needed by a programme will reflect the demands created by its ambit of eligibility. Programmes that assess consequential damage engender the greatest demands because, as Chapter 9 argues, assessors must develop a comprehensive picture of the survivor. Such claims can involve thousands of documents, each taking time to obtain, compile, distribute, and analyse. In general, increasing informational demands will increase costs for both states and survivors. Conversely, programmes can reduce the costs of records-management by reducing the programme’s epistemic demands. As an example, using only placement-duration as a metric, Canada’s CEP focussed on a relatively narrow set of records, with the state assuming primary responsibility for accessing and analysing those documents, reducing the costs associated with distribution. But no option is costless, as the challenges faced by the CEP demonstrate. Poor-quality records meant the CEP proceeded slower than expected and survivors often disagreed with the outcome, leading to large numbers of reconsideration requests. Again, transparency is important, had survivors been able to view the relevant records when the CEP was assessing their claims, they might have been able to understand how their claim was adjudicated and point out errors of fact present in the files.

10.5 Professional Evidence

Survivors in Ireland’s RIRB who claimed for consequential damage needed to submit one or more reports from a medical professional. These reports had to say what damage the survivors suffered and how their care experiences caused that damage. Similar provisions applied in Canada’s IAP and Queensland Redress Level 2. Professional reports hold out the prospect of objective evidence. That objectivity enables programmes to outsource judgements about survivors, using independent professionals for a more impartial process. Moreover, if professionals prescribe effective treatment, or catch undiagnosed illnesses, the process can support survivors’ health and well-being.

However, getting professional reports can create significant delays, stress, and expense. Canada’s IAP experienced long delays as survivors waited for appointments with the few professionals willing to work in rural locations. Medical specialists often have lengthy waiting lists and they may not prioritise report-writing over the acute needs of their other patients. The expense of professional reports makes them inaccessible to self-funding survivors, yet, if the state defrays the costs, the taxpayer will shoulder the resulting burden.

The added costs in time and money mean that programmes should only require professional reports when those are necessary. Programmes that contract external professionals to provide these reports confront the usual problems associated with outsourcing. Training external contractors is harder than training employees and inconsistencies may increase as different contractors apply differing standards. Because consequential damage is only ever stochastically linked to injuries in care, and the range of potentially linked harm is very large, almost any syndrome might be said to be caused by injurious care. The difficulties involved in causal diagnosis mean that a judgement formed during a single consult is not guaranteed to be accurate. In some cases, these difficulties will be aggravated by cultural barriers, for example, standard psychological tests may not appropriately assess Indigenous applicants (Dingwall and Cairney Reference Dingwall and Cairney2010: 26–27; AU Interview 5; CA Interview 2). In other cases, programmes will confront bias. Professionals might be predisposed to link syndromes to care experiences out of a natural wish to help claimants. But if the survivor’s lawyer arranges the professional reports, those professionals will also have a financial incentive to encourage repeat business. Quality concerns led Ireland’s RIRB to engage relevant professionals to analyse reports submitted by their peers. Similarly, Canada’s IAP sought to stop lawyers from leveraging biased expertise by having the Oversight Committee approve a schedule of acceptable professionals. These measures added further delays. A flexible redress process should have at least one pathway to redress that does not require third-party reports. In those pathways for which they are required, reports should be available free of charge for survivors; however, programmes should take steps to ensure robust quality control and to minimise the number and depth of such reports.

10.6 Evidentiary Recommendations

• The evidentiary process should aim to be optimally efficient, engendering adequate information while minimising burdens borne by applicants and costs to the state.

• Programmes need to use a range of techniques to engage hard-to-reach survivor populations. Repeat contact is likely to be necessary. Programmes should leverage existing survivor networks and agencies.

• Programme information must be accessible. It should be tested on a representative sample of users, including members of hard-to-reach communities.

• Application forms should help survivors present information that is easy for staff to use. But survivors should have options to use a range of technologies to provide testimony in ways that suit them.

• The difficulties that survivors experience with testimony means that they should have options as regard to what they testify about and the processes involved. If interviews are to be optional, a programme needs a pathway to redress that does not require in-person testimony. Programmes should have at least one pathway to redress, wherein survivors can quickly and efficiently obtain a settlement by providing a limited amount of evidence.

• Interviews must be conducted in a trauma-informed manner. Given the difficulties associated with testimony, survivors need the option of having the presence of support persons. As far as possible, survivors should not be testifying for the first time in an evidentiary interview.

• Programmes should consider having multi-person panels hear testimony. Survivors might want to choose the number of interviewers at their hearing.

• Survivors need to be able to progressively develop their applications over time. Survivors may not provide all salient information during a single interview.

• Survivors should be able to choose whether alleged offenders (both institutional and individual) participate in the survivor’s interview.

• Survivors should be able to choose not to name individual alleged offenders, or, if they do name them, that those names are kept confidential. If that is impossible, then survivors need to be clearly informed of the consequences of naming offenders.

• If programmes are going to believe survivors, they must accept that they will receive some inaccurate testimony. Particular care should be taken with group processes.

• Programmes need to develop secure, high-quality databases that include all relevant records. Survivors should be able to progressively augment their claim.

• Survivors should be given access to all the records (and other evidence) used to process their claim.

• Programmes should minimise the use of third-party reports. Where reports are necessary, programmes need to monitor their quality and work with professionals to overcome delays and avoid excessive costs.

11.1 Introduction

Programme assessors decide what injuries to redress and how much money to pay. Both judgements can be difficult. Some observers insist that it is impossible to set a monetary value on injurious care experiences. ‘[N]othing could repair the impact of institutional child sexual abuse on their [survivors’] lives, … no amount of money could compensate them adequately for the abuse’ (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 93). However, those arguments rarely proceed to the conclusion that if quantification is impossible, then survivors deserve nothing. Chapter 13 addresses how policymakers can set values on injuries. This chapter looks at the tools and procedures used to assess claims once those tariffs are specified. Since people will reasonably disagree about how much to pay, good procedure is essential. To restate values introduced in Chapter 3, a good redress programme will be transparent, impartial, and fair while protecting survivors’ privacy and well-being. In addition, assessment should be lawful, public, effective, and efficient.

11.2 Assessment Tools

Assessors use various tools to decide what information will count as evidence, how that evidence will be interpreted, and how much to pay survivors. The tools they use shape programme operations and the survivors’ redress experience. This section focuses on the primary tools of rules and factors, the secondary use of categories and guidelines, and the tertiary functions of matrices. Assessors can use these tools to build pathways to redress that include or avoid certain benefits and barriers.

Rules specify how information will be used in advance. When using rules, an assessor functions like a Turing machine, putting evidence through a sequence of tests. When rules prescribe how claims will be assessed, survivors can know in advance what they can expect to obtain. As a result, rules-based assessment has significant advantages in both transparency and accountability. To illustrate, in the Magdalene programme, every month of residence at a scheduled institution was valued at a specific sum (Appendix 3.3). In the ideal situation, once an assessor decided how long a survivor had resided at a scheduled institution, simple rules of addition determined how much they received. The process was mechanical. Moreover, the programme used a single and simple metric of residence duration: if a survivor knew how long they had been in a laundry, they knew how much they were due.

Transparency enables efficient applications. If survivors know what evidence is relevant, they can focus their applications accordingly. Using rules reduces the amount of information that programmes need, helping assessors avoid superfluous and intrusive investigations, which, in turn, speeds up the process and limits its financial and psychological costs. Turning to fairness, rule-based transparency allows survivors to understand how claims are assessed. Assessors can easily explain how they apply rules to the evidence. Similarly, applicants can discover errors when rules have been misapplied, decreasing assessors’ discretionary power and promoting fairness. If the same rules apply to all similar claims, then rules help programmes avoid discrimination.

Rules are predictable, quick, fair, and cost-effective. But they are not flexible. Rules determine how programmes will use information prior to (and abstracted from) actual cases. That means what the rules require may not accord with what is relevant to survivors or what justice requires. Rule-based assessment cannot weigh all the components of a complex injurious experience. And the capacity of rules to eliminate discretion and create fairness can be overstated. For example, recall how the CEP’s strict assessment rules led to some claims being rejected in whole or in part despite the staff believing the applicant’s claim (Fabian Reference Fabian, Kitty, Fabian and Felices-Luna2014: 248). At other times, assessors will need to judge what facts a certain piece of evidence supports, if testimony is reliable, or what its content, which might be circumstantial, entails for residence duration. These judgements create opportunities for discretion. And they are often made using factors.

A factor of assessment is a relevant consideration for which no ex ante rule stipulates an outcome. To illustrate, Redress WA graded applications according to severity (Appendix 3.7). There were four categories: moderate, serious, severe, and very severe. When assigning a claim to a category, assessors considered a diverse set of factors including: the number of abusive incidents, their duration, the degree of harm sustained, the length of recovery, and the age of the survivor when the abuse occurred. Such factors weigh in favour or against certain decisions; they require assessors to make judgements. Although Redress WA specified some potentially relevant factors ex ante, assessors ultimately had to decide how each would bear upon their decisions. Moreover, assessors can have discretion to address novel considerations. The result is greater flexibility and comprehension. Factor-based analysis enables programmes to engage with what survivors say is most important to them.

The disadvantages of factor-based assessment mirror the advantages of using rules. As the range of potentially relevant information widens, factors make programmes more complicated and harder to understand. The volume of data rises as claimants are induced to submit more potentially relevant information. Assessors need to work with more information and decide what weight to give it. They also tend to collect more evidence. Because factors require assessors to make subjective judgements, the need for justified (defensible) decisions may encourage extensive, costly, and potential harmful investigations. That, in turn, means that survivors need more support. Factor-based assessment will, therefore, tend to be slower, more intrusive, and cost more.

Some of these challenges are ineliminable. But some, like inconsistency, can be mitigated. The weighting of factors may differ from case to case and from assessor to assessor, making the process more inconsistent and less transparent. Inconsistencies create risks of invidious discrimination (Pearson, Minty, and Portelli Reference Pearson, Minty and Portelli2015: 30). But programmes can take consistency-improving steps. Canada’s IAP ran training programmes for assessors, both at the outset of the programme and periodically afterwards. Programmes can also use panels instead of individuals. As Chapter 10 notes, having assessors work as panels of two or more means that decisions have to be mutually justified, thus reducing discretion and helping to develop common practices. Moreover, policymakers should consider developing accessible databases that include (de-identified) exemplar judgements that demonstrate how representative factors are valued so that assessors and survivors can understand the process and apply those weightings and considerations to novel claims.

As other consistency-promoting devices, programmes use secondary tools to organise the use of factors and rules. Categories and guidelines can be composed of either factors or rules or both. A category is rule-like in that its satisfaction specifies a particular outcome. In practice, some categories are, in fact, fulfilled by rules. For example, Redress WA did not accept psychological reports as evidence – that prohibition was a rule prescribing how a category was defined and used. Other categories contain one or more factors that require assessors to exercise judgement – recall how Redress WA categorised applications into four standards of severity. Categories are retrospective, they classify existing data and judgements. By contrast, guidelines indicate how assessors should proceed. Some guidelines use rules to limit discretion. An example appears in Ireland’s RIRB, which divided the survivors’ injurious experience into four categories, each corresponding to a limited points range (Appendix 3.1). Once assessors pegged a set of facts into a category, they used factors to assign a specific points value within the corresponding range. That guideline used the rule ‘stay inside the range’ to restrict discretion. Guidelines can also be presumptive rules operating in the absence of certain considerations. So, for example, the maximum payment in the RIRB was €300,000, but in exceptional cases (a category) assessors could add up to 20 per cent to the payment. That discretion turned what would otherwise be a rule (no claimant will receive more than €300,000) into a guideline, with assessors deciding what factors constituted an exceptional claim.

By structuring how assessors use rules and factors, categories and guidelines help decompose complex procedures into discrete components, making assessment easier to perform and understand. These secondary techniques make assessment fairer and more accurate, while reducing costs for survivors and states. However, just as categories and guidelines produce certain advantages, they bear the trade-offs involved in applying the rules and factors from which they are constituted.

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As processes become more complex, assessors need tertiary structuring techniques. A common example of a tertiary tool is the matrix. To return to the Magdalene programme, its two-step matrix (Appendix 3.3) converted residence duration directly into payment values. More complex programmes use a three-step (or more) process. Canada’s IAP disaggregated four grounds of eligibility: the experience of abuse, aggravating factors, psychosocial harms, and consequential loss of opportunity. For each ground, assessors used a matrix comprised of guidelines and categories that applied rules and proposed relevant factors. To illustrate, using the consequential harms matrix (Appendix 3.9), the IAP provided more points to survivors who experienced a ‘severe post-traumatic stress disorder’ than those assessed with a ‘mild traumatic stress disorder’. These two standards (severe and mild) were part of a rule: claims for severe post-traumatic stress disorder were assigned to a higher category. And IAP assessors used factors to distinguish between the categories of severe and mild stress disorder.

A good matrix clearly displays what information is relevant to the various parts of a complex process. That transparency helps reduce the costs borne by survivors and promotes speedier assessment. Insofar as matrices enable applicants to understand how the process should operate, they can help identify errors and reduce discretion. Matrices promote fairness by fostering consistency, prompting assessors to treat similar cases in the same way. A step-by-step process ensures that survivors are all similarly prompted for information and assessors use consistent procedures.

Matrices help programmes to be more comprehensive when they require assessors to look at different aspects of each application. For example, Queensland Redress divided its Level 2 assessment into seven different categories (Appendix 3.4). Having seven categories encouraged assessors to look at each claim from multiple standpoints, making the programme more comprehensive. Assessors examined claims for evidence in each category and then assigned a point-value to each. They then added up the total score. That score was then put into another five-row payment matrix (Appendix 3.5). Fourteen points or less resulted in no payment (or, rather, the claimant simply received the Level 1 payment), while higher scores were slotted into progressively higher-paying categories. The matrix makes the process simple to understand but its rule-based aggregation is inflexible, which reduces the programme’s ability to respond to the distinctive experience of the survivor (Sunga Reference Sunga2002: 52). To illustrate, Queensland Redress gave in-care injuries more weight than post-care damage. I suspect that did not correspond to the experience of many survivors living with the debilitating consequences of injurious care.

Because redress programmes offer survivors acknowledgement, the procedures they use are communicative. To take a simple example, recall how Redress WA’s matrix assigned claims to one of four categories of severity, each associated with a payment value (Appendix 3.7). Learning how their claim was assessed told the survivors both how the programme labelled their experience and how it was valued. Programmes should consider the labels they use carefully, for the wrong terms can be insulting. The lowest tier on Redress WA’s matrix was labelled ‘moderate’. This category included a loss of family contact, multiple physical assaults, and diminished educational opportunities – it is clearly unacceptable to describe these injuries as moderate (AU Interview 8). More generally, matrices reduce human suffering into discrete figures and cells abstracted from survivors’ lives. Survivors often disapprove of how matrices construct/present hierarchies of victimhood (Pembroke Reference Pembroke2019: 53; Feldthusen, Hankivsky, and Greaves Reference Feldthusen, Hankivsky and Greaves2000: 109; Daly Reference Daly2014: 179–80). These critics object to the comparative grading of injuries like ‘meat’ (Miller Reference Miller2017: 127) and argue that assigning points to different experiences turns redress into ‘some kind of diabolical board game’ (Cherrington Reference Cherrington2007: unpaginated). The result, Robyn Green argues, is that quantifying injury through rigid processes undermines a programme’s capacity to reconcile or heal (Green Reference Green2016: 130).

Cindy Hanson offers a related concern regarding gender. She observes that assessing injuries according to severity involves judging which injuries are worse than others. Her analysis of Canada’s IAP found that it used a masculinist and hetero-normative framework when defining severity. As evidence, she points out that more severe forms of sexual abuse were defined by penetrative assaults with a penis or object. She argues that served to minimise the severity of assaults by female perpetrators because the programme was less likely to assess their offences as among the most severe (Hanson Reference Hanson2016: 8). Hanson further notes that the word ‘breast’ does not appear in the IAP’s matrices (Appendices 3.8–3.12). Although assaults involving the survivors’ breasts were included in the categories of fondling and touching, the larger point is that there should be a gender, and one might hastily add, a cultural analysis, of the assessment categories to ensure that they are fair and non-discriminatory.

In summary, different ways of organising the use of rules and factors through categories, guidelines, and matrices have different benefits and drawbacks. Carrying forward the argument for flexibility, programmes should have at least one pathway to redress in which a simple rule-based process works quickly and transparently to redress the maximum number of survivors. As models, the Magdalene programme, Canada’s CEP, and Queensland Redress Level 1 used simple residence-based rules for eligibility and processed most claims quickly. Queensland Redress Level 1 was the simplest. With every validated claim receiving the same amount, the pathway did not need a matrix. Although they were more sensitive to residence duration, the CEP and Magdalene programmes’ matrices made no effort to quantify the survivors’ injuries, instead, they set out simple rules for converting residential duration into payment values. However, their inflexible and narrow character made it impossible to acknowledge the severity of injury comprehensively. To do that, a programme needs one or more pathways that assess applications using factors, making the programme more complicated, more demanding of information, slower, and less transparent. Greater use of categories and guidelines creates complexity that, in turn, demands tertiary structuring techniques. And while observers criticise those techniques, it is noteworthy that programmes using matrices attract applications from large numbers of survivors. The factor-dominated RIRB, Queensland Level 2, IAP, and New Zealand Redress all received much larger than expected application numbers – indicating that a large percentage of survivors chose to participate in these programmes. To respect and enable their decisions, better programmes support survivors to choose whether they will pursue redress through rule-based processes, or through factor-dominated procedures, or both.

11.3 Fast and Slow Tracks

Just as the tools that assessors use are important, so are the processes in which they use them. Because survivors in poor and declining health need to have their claims processed quickly, Chapter 9 argues that programmes should assess all claims for prioritisation when they are submitted. Not only is it in the survivor’s best interest, assessing survivors while they are alive helps programmes avoid the administrative challenges entailed by posthumous claims. Interim payments are a similar technique to get money to survivors as quickly as possible. For example, Scottish Redress paid £10,000 to all applicants with a terminal illness or aged sixty-eight or older. It may be tempting to treat interim payments as conditional (and repayable) if a full assessment later finds an overpayment. But attempting to recover money from survivors is unlikely to be effective (many will not have any money to repay), will detract from their well-being, and harm the programme’s public reputation. Potential overpayments could be minimised if the interim payment derives from a simple rule-based pathway.

Politicians, survivors, and the media will demand that programmes assess claims quickly. That pressure creates dilemmas. Waiting imposes costs upon survivors. Uncertainty over the outcome of their claim while waiting for a settlement may aggravate financial stress. Survivors who borrow against their future settlement will then watch interest charges consume ever-greater portions of as-yet-unknown sums (Assembly of First Nations c2017). Turning to the interests of the state, a speedy programme is likely to generate fewer criticisms and cost less to administer. These reasons in favour of speedy assessment may explain some of the unrealistic commitments among the exemplars. For example, Canada committed to processing 80 per cent of CEP claims within thirty-five days, a standard initially met for only 28 per cent. Delays happen for good reasons. Getting the staff, the information management systems, and procedures in place to launch a programme takes time. As previously noted, complex factor-based processes will induce programmes to accumulate information, with each byte adding time to the process.

This trade-off between time and information can be viewed from a different perspective. As programmes progressively accumulate data, the evidence they have improves. The Canadian IAP held back claims identified as likely to fail without supporting evidence from other claims. Such a case might have involved an alleged offender against whom the claimant’s testimony was the only available evidence. But if another claimant later accused the same offender (independently), then that second claim would benefit from the prior allegation. Because it can be unfair if early claims are assessed using less developed data, programmes may wish to give survivors the option of a ‘slow track’ process wherein their claims are held back to permit the programme to amass relevant data on care experiences and similar fact claims. Equally, the programme might assess claims provisionally, and then reassess them should further evidence emerge. To avoid over-payment, the programme might pay a percentage of the provisional assessment, with the complete payment deferred until the process concluded. That would be another way to make interim payments. Provisional payments would ensure that survivors receive some monies promptly without being put at a comparative disadvantage. It would also enable survivors to add evidence progressively. Moreover, a holistic reassessment might stand in place of a case review process, at least in the first instance.

Obviously, a slow track process and similar techniques favour better-off survivors who are willing to wait. For others, the need for a quick settlement may outweigh the desire for greater accuracy. I have already stressed the relative speed advantage of simpler rules-based pathways. But factor-dominated pathways can also use techniques to speed up assessors. Regular procedural reviews can look for inefficiencies and bottlenecks. In some cases, programmes learn from experience. For example, over time, the Canadian IAP began to accept that experiencing abuse was likely to lead to related psychological disorders. That meant that abused survivors did not have to procure further professional reports confirming that psychological damage was caused by injurious care experiences, and the programme did not have to pay for and assess those documents. Programmes confronting growing backlogs of cases can hire or redeploy staff or they might use processing quotas or bonuses for speedy work. These latter techniques encourage assessors to reduce the time spent on each case, which, in turn, limits the amount of information they can work with. The trade-off is a less accurate and less personal process for survivors.

Another technique promises both faster outcomes and more survivor participation. Both Ireland’s RIRB and Canada’s IAP made greater use of negotiation as these programmes developed. If the parties agreed on a monetary outcome, then their agreement was evidence of its appropriateness, saving assessors from producing time-consuming adjudicative judgements. Post-hearing judgements can take a long time, the IAP, for example, took between six months and a year. If survivors have an opportunity to say how they would assess their own claim, that is an important way to participate in the process (IR Interview 3). However, no programme can, or should, rely on case-by-case negotiation to resolve claims. That would be non-transparent and unfair, the resulting power imbalances would disadvantage most survivors. Where redress monies have significant, even life-changing potential, the incentive to settle quickly is powerful. One interviewee told me that ‘[survivors] come to us and say, “I got offered NZD$5000. I took it because I was sick, I was dying”’ (NZ Interview 2). Another related,

While clearly respectful of the survivor’s agency, negotiation creates a conflictual dynamic between the survivor and whoever is representing the state at the point of settlement. As Chapter 8 notes, it is important to reflect on how the state is represented in the process – is the state represented by the redress programme or by another party, such as the SAO in Canada’s IAP? A programme that negotiates with survivors will no longer be a disinterested adjudicator. The logistical costs involved are also significant, and survivors will need legal representation to mitigate inequalities. It is very likely that such a process would increase the risks of retraumatisation significantly. Still, survivors should not be prevented from choosing a quicker option, if they know that it might have some disadvantages for them. A programme could offer an optional negotiation pathway, overseen by an impartial professional mediator. That professional would be charged with preventing exploitation. Successful negotiation would conclude the procedure. However, if the parties fail to reach an agreement, adjudication might be a secondary option.

11.4 Publicity

No programme can operate without some publicity. Survivors need to know that the programme exists and, at least roughly, what injuries are eligible for redress. But how much information about assessment should be available? At least three reasons militate against publishing procedural details: privacy, truth, and perversity.

New Zealand officials cited privacy concerns to explain why they refused to publish details of MSD’s assessment process, arguing that it would be possible to infer what happened to a survivor if one knows how much they were paid and how that was assessed. In 2017, I received a response to an Official Information Act request explaining that MSD had redacted the descriptions of injuriesFootnote ¹ the HCP used to categorise claims because:

The concern is not unfounded. In Chapter 2, I used what survivors said about their Redress WA payments to make such an inference when observing that the survivors who testified at a public hearing in Perth were unrepresentative. If transparency can reveal the nature of a survivor’s injuries, that could be a privacy concern.

A further consideration concerns transparency’s potential to create untruthfulness. Chapter 10 introduces the problem of inaccurate testimony. Procedural transparency can aggravate that problem. If applicants know what forms of injury will attract the greatest monetary settlements, that may affect the evidence they provide. One concern is the potential for fraudulent applications. Recall that Redress WA did not advertise its assessment criteria because it did not want to publish a ‘cheat sheet’ (‘Official Committee Hansard’ 2009b: 56). But apart from fraud, insofar as the redress process is supposed to provide survivors with an opportunity to have the state acknowledge their experiences, knowing what will get more money may cause survivors to focus on aspects of their experience that are less personally important, or to testify about experiences about which they would prefer to remain quiet. To illustrate the concern, redress programmes often provide more money for sexual abuse than other injuries. Chapter 10 intimates that if it is known that sexual abuse attracts higher payments than physical abuse, survivors may feel – and their lawyers and others with an interest in the financial outcome of the application may put – pressure to accentuate sexualised aspects of their experience. Not only do incentives mould testimony, but they may also encourage survivors to talk about things that they are not ready to discuss, aggravating retraumatisation.

And finally, if survivors know what garners higher payments, that might pervert the potential participatory benefit inherent to the redress process. The participatory value of testimony requires survivors to tell the programme about their injurious experiences and have that experience officially acknowledged and validated. Policymakers might hope to create a process in which survivors come to the redress programme to state on record what happened to them in care and what that has meant for their lives. But knowing what experiences will get more money might encourage survivors to engage with redress instrumentally, with the goal of extracting the maximum monetary value, to the detriment of intrinsic goods inherent to the process.

These concerns confront the general benefits of transparency in making redress fairer and more efficient. When weighed against these values, the concern with privacy appears speculative. I have never heard a survivor complain that publishing assessment criteria interfered with their privacy. In part, this is because those survivors who speak publicly about their redress experiences tend to be activists who also speak about their injurious experiences. Policymakers could mitigate the potential threat to privacy by notifying redress recipients of the potential problem, allowing survivors to make an informed choice about revealing their payment values. Similarly, while the problem of fraud cannot be dismissed, it is balanced by concerns over underreporting, as Chapter 10 notes. And the problem of perverse incentives confronts a powerful counterargument: if survivors wish to engage with redress instrumentally – aiming to maximise their payments – that is their prerogative.

On balance, I think the arguments for transparency outweigh those against, which can, moreover, be mitigated by informing survivors about the potential consequences of disclosing payment values. When survivors have a greater understanding of how the programme works, they can know what to expect. Knowing the rules of the game will enable survivors to be better players. I have already reviewed how transparency enables survivors to focus their testimony on relevant rules and factors. More streamlined applications will make programmes more efficient, benefitting both states and applicants by being faster and cheaper to administer. And knowledge facilitates agency. Greater transparency enables survivors to see themselves as part of the redress process, not merely an object of it. Indeed, knowing how assessment will proceed can help survivors make an informed choice about whether and how they wish to participate. Transparency also makes programmes fairer by reducing the assessors’ discretion and enabling survivors to know how redress values are derived.

As a last point, transparency enables survivors to make an informed decision as to whether to have their offer reviewed. Survivor-instigated review reduces assessor’s discretion while promoting accuracy, fairness, and transparency. External review may be carried out by redress-specific bodies, such as Canada’s NAC, or more versatile institutions, such as an Ombudsman/person or the courts.

11.5 Standards of Evidence

An evidentiary standard determines how certain an assessor must be to accept something as a fact. A standard is a type of category, when something meets a standard it can be judged as belonging to a category – such as being a fact. Relevant considerations for evidentiary standards include the quantity and reliability of information and the presence or absence of contradictory evidence. Lower standards accept facts supported by poorer quality and/or less evidence; higher standards require better quality and/or more information.

I have frequently observed that non-recent claims tend to lack robust evidence. That is an important reason why redress programmes replace litigation. In civil litigation, the ‘balance of probabilities’ standard assesses which out of a limited set of factual scenarios is the most likely to have occurred. If plaintiffs need to show that their account is the most probable, then the preponderance of evidence must favour their claim. Few redress programmes require all claims to meet that high standard. Programmes usually advertise lower standards, indicating that claims need only be plausible or that there is a reasonable likelihood of survivors’ testimony being true.

Assessors often use multiple standards of evidence. The RIRB applied higher standards to evidence of residence when they could access robust institutional records, but used lower standards when archives were missing or damaged. Some programmes, Queensland Redress is an example, imposed higher standards of evidence upon claims for more serious abuses. However, that may be unfair to those with more serious injuries. Many programmes treat sexual abuse as the most severe form of injury. Yet non-recent claims for sexual abuse are among the least likely to enjoy strong confirming evidence. Therefore, using higher evidentiary standards for more grievous injuries can be unfair to survivors of sexual abuse.

Unfairness also arises from inequalities between survivors. Educated and well-resourced applicants are likely to provide better evidence than applicants who lack those advantages. Redress WA found that application quality was ‘strongly linked to the literacy level of the applicant … This had the potential to significantly disadvantage applicants with poor literacy skills’ (Western Australian Department for Communities c2012: 9). The advantages that better-resourced survivors enjoy can be reinforcing and comprehensive. Better-resourced applicants may be more likely to get expert assistance, obtain their personal records, and receive treatment for physical and psychological complaints. The resulting differences in available evidence could be aggravated if more serious injuries are associated with greater disadvantages, and therefore, lower quality applications. Fairness may, therefore, justify the use of lower standards that all survivors have an equitable chance of satisfying. As evidentiary standards decrease, per-case assessment should speed-up and procedural costs decrease because, if applicants need to provide lesser quality, and lower quantities of, evidence, that data will be less costly to manage and produce.

But lower evidentiary standards entail trade-offs. In programmes that calibrate payments to the severity of injury, lower evidentiary standards would not only validate more claims, but they would also pay more per claim, making the programme more expensive. Lower standards can also damage a programme’s integrity, as Chapter 10 observes. Some claimants will provide inaccurate information by mistake. Others will commit fraud. A redress programme needs to test claims so that political authorities and other observers, including the citizenry, can be confident it is not being abused.

Lower evidentiary standards favour fairness at the cost of integrity. But programmes can use their rich databases to alleviate that trade-off. Conventional litigation uses higher evidentiary standards because, in most cases, courts have evidence about a single case only. By contrast, redress programmes can receive hundreds, or thousands, of applications. Moreover, they often follow or accompany public inquiries that investigate injurious care systems. As a result, assessors need not address each claim in isolation, but can look at how claims fit into emerging patterns. Redress WA used information provided by applicants to compile historical dossiers on institutional practices and staffing.

A common evidential pool can strengthen weaker applications while mitigating some integrity concerns, if false claims are discovered by reference to contradictory common evidence. And the fact that many potentially eligible survivors will not claim for all their injuries (or not apply) offers a further counterweight to concerns with fraud. But there is no way to eliminate unfairness. Databases will tend to have more information about some periods and some residences than others. Placements with larger populations, such as large orphanages, are likely to engender more applications, each contributing to a more comprehensive historical picture. Moreover, larger institutions may have more accessible records. By contrast, other survivors will benefit less. A survivor of foster care may be the only applicant with any information about their personal history. Still, if increasing evidentiary standards excludes more meritorious claims than fraudulent ones, programmes may balance the state’s interest in protecting the public revenue with its interest in resolving meritorious claims. Better programmes match the appropriate standard to the evidence available.

11.6 Consequential Damage

I will finish this chapter by looking at some further difficulties involved in assessing consequential damage and broach an alternative approach using collective data and/or collective harms. Recall that relevant harms include a broad range of physical and psychological disorders, illiteracy, family separation, and cultural estrangement, inter alia. Exemplar programmes adopt different approaches to assessing consequential damage. The Magdalene laundries programme assessed a single form of harm – damage to the survivors’ pension entitlements. Others, like Ireland’s RIRB, Canada’s IAP, and Redress WA were more comprehensive. More comprehensive programmes tend to make higher payments, enabling greater recognition of the survivors’ post-care injurious experiences. Chapter 9 discusses how this approach is both intrusive and costly. Here, I explain why the individuated assessment of consequential damage punishes resilient survivors and confronts serious epistemic uncertainty. The difficulties involved are such that Redress WA’s Key Learnings report recommends excluding consequential damage from future programmes (Western Australian Department for Communities c2012: 27). I think that recommendation is unwarranted. But before I say why, I will explain the difficulties.

Redressing consequential harm punishes resilient survivors who find it harder to provide evidence of damage than others (Green et al. Reference Green, MacKenzie, Leeuwenburg and Watts2013: 4). For example, resilient survivors may not have evidence of the psychological harm they experience(d). One interviewee said,

The interviewee’s resilience helped him succeed in higher education and prevented him from displaying behaviours typically associated with psychological harms, which he encapsulates as ‘drinking a bottle of wine on the street’. That meant that he was unfairly disadvantaged in his capacity to produce evidence of consequential damage.

A second concern comes from the difficulties with counterfactual causal judgements. Because this discussion is a little abstract, I will start with a simple example. Suppose you are walking down the street. Distracted by an oddly shaped cloud in the sky, you trip, fall, and cut your knee. It seems right to say that tripping caused the cut to your knee. That judgement depends on a counterfactual assessment in which you imagine a plausible counterfactual world in which you walk without tripping. When you replay the same sequence of events, but omit the trip, you would not have cut your knee because no other knee-cutting cause appears in the imagined counterfactual. Causal assessment compares a counterfactual series of events with what actually happened to see what harms exist now that would not have otherwise occurred. Note how the counterfactual is bounded by what might have plausibly happened. When you counterfactually imagined walking without tripping you did not imagine aliens using space lasers to cut your knee. That would not be a plausible alternative sequence of events. In the same way, if a survivor is to claim consequential damage in a redress programme, assessors need to imagine a plausible counterfactual world in which the survivor would not have experienced the relevant harm – they need to suffer damage that they could have reasonably expected to avoid if the injury did not occur.

Using what they know of the survivor and the world in which they live, assessors use a variety of causal factors to construct plausible counterfactuals. Unfairness occurs when cumulatively disadvantaged survivors have a harder time establishing the plausibility of better counterfactuals. A good example appears in the Canadian IAP wherein applicants could claim for actual income losses resulting from abuse experienced in a residential school. Valid claims needed to show how abuse deprived survivors of income that they could have otherwise reasonably expected. That required assessors to imagine counterfactual worlds in which survivors received the income that they claimed to have lost. Very few (eighteen) survivors were successful.Footnote ² These claimants tended to have experienced a psychological event that caused them to lose a job or work fewer hours – their actual career constitutes part of the relevant counterfactual. But the programme did not redress the income lost by those who did not have a well-paid career. Survivors who were persistently unemployed could not point to plausible counterfactual income. That glaring unfairness meant some better-off survivors obtained redress denied to those whose were worse off, whose injuries might have contributed to their economic marginalisation.

The injurious consequences of residential school were comprehensive. One interviewee illustrated the problem as follows:

In this case, the interviewee, an Indigenous Canadian, argues that the counterfactual for determining what is harmful was unfair. She suggests that the programme should have considered the multi-generational collective damage inflicted by the residential schools. Instead of assessing her educational or employment experiences against the minimum standards of graduating high school and not being unemployed, it should be assessed against what her innate talent could have achieved in a counterfactually less-racist society. For extremely marginalised populations, what is normal may be a consequence of systemic injustice. Programmes that attempt to redress the damaging consequences of injurious care can only partially grasp how pervasively unjust social structures affect how, and what, harms arise (Green Reference Green2016: 136).

The interviewee’s argument points towards epistemic concerns with assessing counterfactuals over longer histories. Recall the simple example of your knee-cutting trip. Your trip is what lawyers call the proximate (closest in time) cause of the cut to your knee. The trip and the cut were separated by seconds. Counterfactual causal assessment becomes progressively harder over longer periods. Causation is not lineal; it is a network that grows ever more complex the further one goes back in time. Non-recent claims ask assessors to consider the causes of harms decades after survivors have left care. What should those counterfactual worlds exclude? It can be challenging, or impossible, to distinguish damage experienced as a result of injuries in care, from the consequences of other events experienced prior to, or after, care.

Post-care experiences differ as well. Many survivors will have spent time in the military or prison, had an abusive spouse, or other psychopathological experiences. Now middle-aged, they might have an attachment disorder, which is a common consequence of abuse in care. But to what extent is that disorder caused by pre- or post-care experiences? The question may be unanswerable: there may be no way to discover, even approximately, the true consequences of eligible injurious acts.

One common technique to mitigate this problem is to identify certain forms of consequential damage and redress all survivors who experience them. Recognising the harmful potential of structural injury, Queensland Redress accepted any psychological disorder as consequential damage. In a similar approach, the Magdalene programme redressed a specific form of damage (diminished income) by applying a simple rule: all valid applicants received a full pension. While both approaches risk redressing non-meritorious claims, at the aggregate level the experience of structural injuries means that survivor populations exhibit high frequencies of certain harms; therefore, a programme can use a structurally oriented causal analysis to assess some consequential damage.

To summarise, survivors have claims for the redress of consequential damage. But assessing those claims poses serious problems. Programmes that try to assess the exact consequence of injuries experienced in care may create unfairness or impose significant costs in trying to overcome the epistemic challenges involved. As alternatives, programmes may use aggregate population data to redress frequently experienced harms, such as psychological disorders. Or programmes could redress collectively experienced damage, such as the intergenerational harm residential schooling inflicted upon Canada’s Indigenous peoples.

11.7 Assessment Recommendations

• Survivors should be able to choose whether they wish to pursue redress through a rule-dominated pathway or through a factor-based process, or both.

• At least one pathway to redress should use rules and simple eligibility metrics. That will make it quick, transparent, and accessible.

• More comprehensive pathways may employ more complex procedures making greater use of factors.

• Categories, guidelines, and matrices can help organise assessment, making it fairer and more transparent. However, programmes should recognise the harmful potential of pejorative labels.

• Applications should be assessed for prioritisation. Alternatively, programmes might provide interim payments, deferring complete payment until after a final assessment. A programme could minimise the potential for overpayments if the interim payment derives from a simple rule-based pathway.

• Because it can be unfair if early claims are assessed using less developed data, programmes may wish to give survivors the option of a ‘slow track’ wherein their claims are held back to permit the programme to amass relevant data on care experiences and similar fact claims.

• Programmes should undertake regular procedural reviews to look for inefficiencies and bottlenecks.

• Programmes should conduct gender and cultural analyses of assessment processes to ensure that they are fair and non-discriminatory.

• Programmes could offer survivors the option of using a negotiated settlement process mediated by an impartial professional. If mediation is unsuccessful, the claim would be adjudicated.

• Programmes should publish the assessment criteria they use.

• Survivors should be able to have their assessments reviewed by an appropriate body.

• A good evidential database might include exemplar judgements of more common claims explaining (and demonstrating) how representative factors are valued so that assessors and survivors can understand the process and apply those weightings and considerations to novel claims.

• While publicising the programme’s assessment criteria risks the survivors’ privacy, on balance, programmes should maximise the transparency of their assessment criteria and procedures.

• Programmes should match the appropriate evidentiary standard to available evidence.

• Fairness may justify the use of easier-to-satisfy standards. While lower standards risk validating non-meritorious claims, some of that risk can be offset by using a common pool of evidence.

• It is difficult to assess claims for consequential damage. One common technique to mitigate this problem is to identify certain forms of consequential damage and redress all survivors who experience them.

• Survivors should not be required to apply for individuated consequential damage.

12.1 Introduction

Survivors need support when preparing and submitting redress applications; they need help through (often protracted) assessment processes, assistance when they receive payments, and afterwards. Large numbers of survivors will have ‘low levels of education and varying literacy skills, high levels of mental health issues and a reduced capacity to cope with delays and frustrations’ (Western Australian Department for Communities (Reference Rockc2012): 3). The resulting difficulties make good support necessary to survivors and to the effectiveness of any redress programme. Support work is not ancillary, it is part of redress.

The chapter moves through two phases. I first explore how local, often long-standing, community agencies support survivors. This discussion encompasses the roles of survivors and offenders in providing support. I then look at four key professional services: legal advice, records access, psychological counselling, and financial advice. This chapter stresses the advantages of providing holistic support through, or alongside, community agencies. While survivors should have real choices where they get support, comprehensive services that embed professional support in local agencies reduce access barriers and help ensure that support does not stop after the payment is accepted or the redress programme ends.

12.2 Community Agencies

I begin by looking at what community agencies do well and some of the difficulties they confront. Community agencies are a diverse bunch, as are the roles they undertake in redress. Some provide specific services, such as counselling, while others are more comprehensive. Many agencies are small and informal; others are large professional organisations, and there are those that blend informal and formal components. All are constantly evolving.

The distrust that many survivors have for government accentuates the need for trusted community agencies to participate in delivering redress effectively. Chapter 5 described Lotus Place’s work as the shop front for Queensland Redress. Lotus Place is a characteristically informal community centre located in Brisbane. Like many such agencies, it offers survivors a place where they can be at home. Many survivors need regular assistance. Agency staff develop long-standing relationships with survivors who come in to have (or make) a meal or read a book (AU Interview 17). Personal relationships are an important aspect of community agencies. Survivors get to know agency staff, forming supportive friendships.

Because they are trusted presences in the community, local agencies can help survivors surmount the barriers they confront in getting redress (Audit and Assurance Services Branch 2015: 14; Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 65; National Centre for Truth and Reconciliation 2020: 15). During Queensland Redress, Lotus Place provided

At Lotus Place, survivors would get help accessing their personal records and be guided through the application process. They could also be put in touch with counsellors. And, most importantly, that process happened within a holistic focus on the survivor’s well-being. The survivor would have a case worker help them through the redress process, but that was only part of the agency’s work with survivors, together with helping survivors to get a job, housing, or medical treatment. This model, in which redress is part of a larger relationship enables services to continue after the redress programme ends. The capacity to offer holistic and long-term services, as opposed to short-term support that is narrowly focussed on redress, is a critical point of advantage for community agencies. For those reasons, policymakers should consider offering redress applicants the opportunity to register with a community agency, enabling support to continue long term.

Eris Harrison, speaking for the advocacy group Alliance for Forgotten Australians, argues that Queensland Redress’s high application numbers resulted from the effective work of community agencies (Senate Community Affairs References Committee 2009: 39). Queensland’s approach stands out: for many survivors, Lotus Place was a ‘lifesaver’ (RPR Consulting c2011: 7). But redress programmes also create challenges for these agencies because they increase the number of survivors they work with, while changing the work that they do (Evaluation, Performance Measurement, and Review Branch: Audit and Evaluation Sector 2009: 36). In Perth, Tuart Place’s client numbers grew from 500 to 1,400 during the two years of Redress WA (AU Interview 6), while, at the same time, agency staff had to learn how best to support applicants in a new (to everyone) redress programme. Queensland Redress similarly increased the numbers of survivors using Lotus Place. Robyn Eltherington notes that the resulting changes were

Because they are flexible and responsive, community agencies can quickly reorient themselves to support survivors’ needs. But there are other forces at work. Tendering service contracts selects organisations that can compete for funding successfully, a process that has clear disciplinary effects (Green Reference Green2016: 164). Where existing organisations are robust, programmes can use them as assets. Other agencies will evolve to become more successful in getting funding. Across all the exemplar cases, redress programmes encouraged the rapid growth and professionalisation of service agencies. States can aid that process by investing in community agencies. For example, prior to the 2018 advent of the Shaw Commission, support services in New Zealand were inferior to those in other jurisdictions. New Zealand has since begun funding certain agencies to develop, including Male Survivors Aotearoa, which received more than NZD$12 million to upgrade its national capacity (Male Survivors Aotearoa 2020). That is a considerable sum for an organisation that was once a coffee-and-muffin peer support group meeting in a Christchurch community hall (NZ Interview 1).

The personal service provided by community agencies is critical to their effectiveness. But it also creates privacy challenges. Many survivors will not want their family, friends, or associates knowing about their redress application. But the intimate environment of a community agency can make confidentiality difficult. In small communities, ‘even the location of office space might compromise a Survivor’s privacy’ (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 71). In response, Canadian agencies developed privacy-preserving techniques, including home visits. The demands of privacy also underscore the survivors’ need to have multiple points of access to the redress programme. One-stop local services are an important asset, but they need to be augmented by accessible centralised assistance. Local support favours those who live in the right area. Most survivors will not be so fortunate. The widely praised Lotus Place helped 20 per cent of Queensland Redress applicants – a modest minority. Technology is making remote support ever-more accessible; however, it remains impersonal. Programmes should consider using itinerant in-person services to reach survivors in more remote locations. In short, the answer is to provide options and enable survivors to select those services best suited to them.

Redress programmes benefit from better quality applications that cost less to administer and are quicker to assess. To help survivors submit better applications, support workers need to ‘understand exactly what information is required from the applicant and how that information should be formatted’ (Western Australian Department for Communities c2012: 14). That knowledge can develop through experience and training. Canada’s IAP offers a good practice model. There, programme staff visited small communities to engage and train support workers, who could then champion the programme to survivors and help them through the application process. These workers were salaried contractors. By contrast, Redress WA contracted community agencies to provide a specified number of hours of assistance for each applicant (no training was provided) (Green et al. Reference Green, MacKenzie, Leeuwenburg and Watts2013: 4). Alternatively, if service providers are block-funded ex ante to assist people with applications, they will be able to train staff appropriately and use their more secure funding to provide holistic support.

By raising the political profile of survivors’ claims, redress programmes can help community services get needed funding. Conversely, survivors who come to local agencies for help with a redress application will be introduced to the agency’s broader services and community, potentially beginning long-term beneficial relationships. Redress programmes can thereby play important roles in connecting survivors with services and in developing the quality and reach of these services. Good support services are critical to survivors’ well-being. Many ageing care leavers are concerned about the prospect of being reinstitutionalised in residential care homes and hospitals (Browne-Yung et al. Reference Browne-Yung, O’Neil and Walker2021). As nodes in overlapping networks of survivors, community agencies can provide critical support for survivors and advocacy on their behalf.

I will close by addressing a general worry. I support block-funding agencies that deliver holistic and comprehensive services. That advocacy appears at odds with the fashionable thinking in policy circles known as new public management (Lane Reference Lane2002). Many analysts believe that because block funding lacks incentives linked to individual clients, it leads to lower-quality services. They believe it is better to have market competition that enables users to select providers who best meet their needs (Lapuente and Van de Walle Reference Lapuente and Van de Walle2020: 464). As competition develops better services, it drives specialisation, with providers filling ever-more refined niches in a market serving ever-more sophisticated consumers. That may work in some fields. But that argument depends on a problematic set of assumptions. Most survivors only make one application for redress. That means that they do not benefit from opportunities to try out different service providers. As the Canadian experience with legal professionals (discussed below) demonstrates, one-off service fees can have perverse effects when there is no chance of the user becoming a repeat customer. While survivors need to be able to choose services that are accessible to them, the time-limited character of most redress programmes reduces the opportunities for markets to develop among the (often very few) existing service providers. Service agencies need to be monitored for quality and to prevent corruption. They need to be accountable to survivors and to the broader public. But in a field where survivors face steep access barriers, I think the evidence supports stable and robust funding for holistic, comprehensive, and ethically driven agencies.

***

Every time I visited a support agency or group, I heard about the importance of survivors working with other survivors. For example, in Australia, a support worker told me,

An Irish interviewee said,

Similar points were made at each of the eleven local agencies in which I conducted interviews. Survivors occupy leading roles in many of these agencies. As credible representatives, their leadership brings the authority of lived experience. Moreover, their presence can help overcome mistrust. Working to support one another through redress helps survivors build and maintain communities in which they feel at home. As the New Zealand survivor Jim Goodwin notes, ‘Abuse happens in isolation, healing happens in communities’ (Quoted in, The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 302). Survivors can grow into effective support workers by volunteering at an agency where they have personal contacts and feel comfortable. Survivors describe their work supporting other survivors as important to their personal development, gaining experience and self-respect from their accomplishments, while providing local agencies with dedicated staff who are connected to the work they do and the people they work with (IR Interview 9; NZ Interview 1; AU Interview 1; AU Interview 15).

Being involved in supporting one another is an important way survivors can participate in redress. But interviewees emphasised the challenges it creates, including privacy concerns. Some people, of course, make their identity as survivors publicly known. But no one should need to publicise their injurious experiences to get a job – most organisations would confront serious legal and ethical challenges should they make victimhood a condition of employment. And survivors have different capacities. While observers emphasise the contributions made by those who are ‘more articulate and resilient’ (Ministry of Social Development 2018c: 21), interviewees often highlighted problems. The psychological difficulties that many survivors experience can make it hard for them to work in an organisation (AU Interview 17). And more concretely, many survivors have problems with literacy and other technical skills that make it difficult for them to serve on a board or make administrative decisions (AU Interview 6). While that interviewee argued survivor-leadership was, on balance, an undoubted and crucial asset,

As previously mentioned, conflict of interest problems occurred in Ireland, where survivors on the Board of Caranua helped decide the criteria for disbursing benefits and then made applications for those benefits themselves (IR Interview 4). Similar problems occurred at a programme in Melbourne (Frederico and Long Reference Frederico and Long2013: 90). Another agency said that when they

Other problems concern evidence. Survivors risk contaminating each other’s testimony, creating potential problems when one survivor helps another compile a redress application. And where past trauma has led to psychological damage, survivors may not be able to help others. Two Australian interviewees reported issues with sex-offending survivors creating risks for others at their agencies (AU Interviews 6; AU Interview 10). Having learned from past difficulties, one Canadian agency requires survivors to be actively pursuing psychological well-being as a condition of employment (CA Interview 2). More generally, survivor participation can risk aggravating injuries. Psychological support needs to secure well-being, but some formats, such as group sessions, can be harmful if not well-managed (AU Interview 10; AU Interview 17). I have participated in several group sessions that exploded emotionally, with survivors threatening and insulting each other.

As a last comment, redress programmes and associated support agencies must beware that some people become professional victim advocates, while others operate as professional victims (AU Interview 7). ‘Activities and groups that serve to strengthen victim identities and communities can sometimes lock people into the past’ (Huyse Reference Huyse and Huyse2003: 63) when survivors would be better helped to move beyond their injury. Numerous interviewees spoke off the record about difficulties with survivor advocates. Some advocates use survivors as stepping stones for a career. Others exploit them. And, as I have noted previously, the views expressed by survivor representatives may not be very representative at all. There was conflict between survivor’s representatives (and potential support agencies run by survivors) over service contracts in Australia, while survivors jostled for remunerative positions with Ireland’s Caranua. These concerns reflect the usual effects of inducement and bias. Still, while survivors supporting survivors poses challenges, most interviewees stressed that these difficulties were manageable through good hiring processes and managerial support.

***

When offending agencies take leading roles in providing redress, some survivors will see the difficulties they experience during the process as further institutional offending. I have observed that because the state is an offender, a state redress programme can confront survivors as an offending institution. Equally, redress programmes can need offending NGOs, such as churches, to participate by providing funding, documentary evidence, or witness testimony. Having discussed these roles previously, here, I want to look at the support roles that offending NGOs can undertake.

Offending NGOs often want to support survivors to make amends and rehabilitate themselves as organisations. Massimo Faggioli, a historian of the Catholic Church, argues that continuing revelations of systemic sex abuse comprise ‘the most serious crisis in the Catholic Church since the Protestant Reformation’ (Faggioli Reference Faggioli2018). Embracing several Christian denominations, the crisis targets the churches’ moral authority and their financial health (Boorstein and Bailey Reference Boorstein and Bailey2019), which means their institutional well-being may depend on being seen to repent. And offending NGOs offer more than motivation. As long-standing service providers, many offending NGOs have useful experience, skills, infrastructure, and client networks. Having offending NGOs involved can be valuable to survivors. After all, these organisations ran the institutions, and it was their priests and employees who inflicted injuries and abuse. Survivors who want to hold them accountable may welcome their participation in redress.

Offender participation can happen in different ways. In a holistic manner, many churches have offered general apologies, sought to reform their organisations, and invited survivors to (re)join them in fellowship. More immediately, offending NGOs can take up roles in redress. In Ireland’s RIRB and Canada’s IRSSA, the churches part-funded redress payments. Canadian survivors could also ask church officials to attend IAP hearings to offer a personal acknowledgement or apology. Although only a minority did, their contributions could be a ‘really powerful thing in terms of individual reconciliation’ (CA Interview 4). The IAP’s final report emphasises the value that churches brought to the process (Independent Assessment Process Oversight Committee 2021: 70). Equally, in Western Australia, I was told that

For survivors who are ready and when the NGOs do it well, having offending institutions participate can be advantageous (White Reference White2014: 3). But it is critical that they participate only when invited. Some survivors feel ‘so much anger and rage’ that they cannot bear to work with past providers (AU Interview 13). The Magdalene laundries programme required survivors to approach the religious orders that ran the laundries to get their records. That provision likely deterred survivors who feared conflicts of interest and retraumatisation or who simply did not want to contact an offending religious order. A survivor-centred approach might adopt a two-pronged strategy. The first prong involves offending organisations funding independent agencies to work at arm’s-length. Support agencies must be clearly autonomous – that means funding needs to be long term and unconditional and staffing appointments must be made independently. The exemplar programmes include good examples. Lotus Place is an independent branch of Micah Projects, a Catholic initiative, while in Western Australia, Christian Brothers Ex-Residents Services was an early and important advocate for Redress WA. Christian Brothers Ex-Residents Services was succeeded by Tuart Place, which continues as an independent community agency.Footnote ¹ In the second prong, organisations can engage with those survivors who want direct contact, for example, the Irish Catholic Church runs a survivor counselling service, Towards Healing, that has worked with nearly 7,000 survivors and family members since 1997 (Towards Healing Counselling and Support Services 2020: 5). Best practice involves developing trauma-informed specialist agencies that adopt a survivor-focussed ethos.

12.3 Professional Services

This section focuses on the supportive work of lawyers, archivists, counsellors, and financial advice services. The quality of that support, and how it is organised and funded, shapes the survivor’s experience of redress. It also affects programme operations. Embedding these services within local community organisations makes them easier to access and more effective.

In litigation, plaintiffs pay their own lawyers. New Zealand’s HCP largely continued that model, as did Redress WA and Queensland Redress. When survivors need to pay for their own lawyers, most go through redress without legal support. This can be fine for some applicants in relatively simple programmes. But more complex programmes demand significant legal assistance, creating opportunities for problems. The most complex exemplar programmes, Canada’s IAP and Ireland’s RIRB, confronted widespread difficulties with legal professionals. Public scandal over legal costs damaged the RIRB’s reputation (Kelly Reference Kelly2006) while frustration with the legal malpractice led the IAP’s Dan Ish to complain,

Ish’s frustration was precipitated by an epidemic of malpractice affecting thousands of claimants (Coughlan and Thompson Reference Coughlan and Thompson2018: 24). The RIRB and IAP attracted lawyers who were previously uninvolved in historic abuse claims. Some joined to help vulnerable clients navigate a difficult process. Others saw opportunities to exploit those vulnerabilities. Putting gross malpractice aside (for a moment), a programme’s structure can create perverse incentives. Ireland’s RIRB would only defray the survivor’s legal costs if the survivor accepted a settlement. A survivor who rejected the RIRB’s offer would become responsible for their legal costs – a noteworthy incentive. However, if the deep-pocketed state guarantees their fees, lawyers can increase their billable hours by increasing the amount of information they process for each case, creating delays. Similarly, increasing fees in tandem with the survivor’s redress payment can encourage lawyers to extract retraumatising information from unprepared survivors (Pembroke Reference Pembroke2019: 52; National Centre for Truth and Reconciliation 2020: 40; CA Interview 7). Other lawyers can maximise returns by doing very little for large numbers of claimants. One Irish survivor named ‘Robert’ said, ‘I felt like I was just a number to my solicitor, and I was! I was one of hundreds of other survivors they were representing at the same time!’ (Quoted in, Pembroke Reference Pembroke2019: 52). In Canada, ‘form fillers’ completed thousands of applications while offering minimal support to each applicant, with lawyers secure in the knowledge that high success rates would guarantee large numbers of fee-paying claims (Petoukhov Reference Petoukhov2018: 87). Gross malpractice occurred when lawyers cheated and exploited thousands of vulnerable care leavers.

Even when lawyers behave ethically, legal representation risks aggravating a redress programme’s adversarial potential (White Reference White2014: 4). Lawyers who focus on getting the largest possible monetary settlement can obstruct other benefits, perhaps, most importantly, the survivors’ sense that they have been heard and had their experiences validated. A ministerial report in New Zealand (the potential bias of which should be strongly underlined) observes that

While there is some evidence that legally supported applicants receive higher payments (Kruk Reference Kruk2021: 42; NZ Interview 2), legal representatives increase the risk of instrumentalisation, wherein redress becomes valuable to the survivor only in terms of its monetary outcome. Lawyers come with their own skills and perspectives. Used to the adversarial dynamic of litigation, they may not appreciate the different needs and purposes of redress. Danielle De Paoli, a solicitor who works with Australian survivors, argues that lawyers should subordinate their role as advocate to that of membership in the survivors ‘network of supporters’ (De Paoli Reference De Paoli2017: 57). The role of lawyer-in-support means attending to the entirety of the survivor’s well-being (De Paoli Reference De Paoli2017: 54).

A community law initiative in Australia offers a promising model for holistic practice. Originally developed to help survivors work with the McClellan Commission (2013–2017), knowmore was well-positioned to support applicants when the NRS began in 2018. Services are free to survivors because knowmore receives block funding from Australian governments. Block funding limits cost-building incentives: because knowmore staff are salaried (and not fee-for-service), they do not profit from individual claims. More importantly, knowmore trains legal professionals to work with survivors. That includes training in Indigenous cultures and workshops on trauma-informed practices (AU Interview 5). As a result, knowmore’s lawyers are redress experts with a personal and professional ethos that prioritises the survivors’ well-being. And, of course, knowmore’s funding structure and ethos limits the prospect of gross malpractice.

Knowmore’s holistic practice offers counselling and financial advice alongside legal services. It can be difficult to talk about injurious experiences with a lawyer. Some survivors will be difficult clients – they will miss meetings, fail to provide evidence, or have problems managing their emotions. Trauma-informed training can help lawyers learn how to get information from clients effectively in ways that make survivors feel safe and supported (AU Interview 10). At knowmore, lawyers and counsellors collaborate to promote survivor-focussed practice. And while knowmore’s distinctive approach might not be replicable everywhere, it highlights the value of embedding lawyers in comprehensive community agencies. Still, the usual problems emerge. A review praising knowmore’s work observed that resource limits were creating delays, with some survivors waiting up to twelve months for an initial consult, and there were difficulties with access outside metropolitan areas (Kruk Reference Kruk2021: 211). As I have previously said, to ensure fair access, local services need to be accompanied by initiatives that reach smaller and rural communities. Survivors should be able to choose and retain the legal counsel of their choice. However, because better legal representation is a key to better redress programmes, knowmore’s holistic service is a model for how programmes can support survivors to access records, get psychological counselling, and receive financial advice.

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Turning to survivors’ personal records, I have consistently noted how institutional records are often incomplete or missing. Moreover, survivors experience severe difficulties with accessing records, difficulties that archival professionals can help navigate. Getting access to records can be cumbersome, slow, and expensive and care leavers may be deterred by the need to contact offending organisations. (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 252–53; AU Interview 4). Survivors may not trust offending organisations to release all the relevant information, they (the survivors) may have experienced their initial, or even repeated, requests for records being wrongfully denied (NZ Interview 8). Once they get their records, survivors may have difficulty understanding what they received. Problems with literacy combine with technical jargon. For example, one expert told me that Irish care records sometimes describe survivors as having been ‘found receiving alms’ as children (IR Interview 11). When they read their files, many survivors thought that meant that they were found begging on the streets. But that was not true – the phrase meant that children were with foster parents. Terminological difficulties are aggravated by derogatory or insulting language that increases the need for emotional support (Allen and Clarke Policy and Regulatory Specialists Limited 2018: 2). The result is that survivors need specialist assistance to acquire, understand, and use their records.

Exemplar programmes were frequently delayed when they could not access records or when records management systems were inadequate. Even comparatively simple schemes, like Ireland’s Magdalene programme, found primary care records deficient, requiring innovative and broader archival searches or evidentiary interviews. To anticipate problems with delays in records-access, programmes need to enable survivors to submit applications with only minimal records, permitting them to augment their files as records become progressively available. In some cases these problems could have been mitigated by investing in, and testing, a records system prior to opening the redress programmes or by having the programme open to applications over a longer period. Archivists need time to discover what information is held where and to identify gaps or problems in that tapestry of information. But public officials confront a trade-off, any delay in the opening of the redress programme will attract public criticism and imposes further costs upon survivors.

To move forward, there are lessons to be drawn from Irish and Australian practice. Ireland did two things well. First, Ireland digitalised relevant records before the redress programme began. This was a bit lucky – the initiative emerged in response to pressure from adoptees and care leavers for information about their birth families. However serendipitous, digitalisation helped the RIRB. Future redress programmes would similarly benefit, and, as Chapter 10 urges, any jurisdiction contemplating a redress programme should compile and digitise all care records as soon as possible. States should also review their file retention and destruction policies to ensure they do not dispose of relevant material and similarly encourage NGOs to follow best practice (for best practice guidance, see Department of Social Services 2015). The second thing the Irish did well was to use a competent service provider to assist survivors. As Chapter 4 describes, Origins staff were embedded in Barnardos community agencies across Ireland. With access to the state’s digitised database, Origins staff became experts at locating relevant records for the RIRB and experienced in supporting survivors. Similar points might be made about the Find and Connect service in Australia (‘Find & Connect’ 2021). Initially launched in 2011, Find and Connect is a website that describes where records relevant to survivors are, what those records contain, and how people can access them. Find and Connect builds upon previous publications, including Queensland’s Missing Pieces and Western Australia’s Signposts (Queensland Department of Families 2001; Information Services 2004). The database is open access. At present, support workers around Australia are using Find and Connect to help NRS applicants. This includes state funding for Find and Connect staff in community agencies, such as Lotus Place. Note how, in both Ireland and Australia, archival staff operated out of community agencies that help survivors through the difficult process of accessing records.

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I have emphasised that redress processes harm applicants who must recall, relive, or even learn about their injurious experiences. To manage these difficulties, survivors need access to counselling throughout the programme, and after. Most programmes refer survivors to professional counselling services that they block fund or pay fees-for-services, authorising a pre-set amount of support. That counselling is often focussed on high-stress activities, such as evidentiary interviews. But that approach might not match the requirements of survivors whose needs are not episodic. Nor it is best practice for survivors to meet counselling staff just before highly stressful events (IR Interview 6). It is better for survivors to develop a stable relationship with one or more counsellors throughout the redress process (AU Interview 17). Counselling must be accessible and provided for as long as it is needed. Appropriately responding to the survivors’ complex and acute needs can involve community, family, and individual measures (Aboriginal Healing Foundation 2006: 12).

This study is not an account of good counselling practice (see instead Sanderson Reference Sanderson2006; Cloitre, Cohen, and Koenen Reference Cloitre, Cohen and Koenen2006). But among the exemplar programmes, Canada’s comprehensive local support stands out. Leveraging the AFN’s on-reserve infrastructure was part of a post-colonial drive to devolve delivery to Indigenous-run services (CA Interview 6). Canada funded cultural, emotional, and psychological support, combining mental health services with culturally appropriate and often local support for survivors that was integrated with existing public health services to avoid inefficient duplication. Involving the local community in providing emotional and psychological support is likely to help build survivors’ trust in the programme (Dion Stout and Harp Reference Dion Stout and Harp2007: 53–55). When getting help is normalised, it loses its stigma. Moreover, a community-level strategy helps alleviate persistent problems associated with finding and retaining appropriate psychologists. As redress programmes increase the demands upon counselling professionals, alternative means of support can help reduce (often substantial) waiting times. In Canada, local cultural support and, to a lesser extent, health support workers offered accessible non-professional alternatives to psychologists. In all the exemplar jurisdictions, local community workers supported survivors going through redress. This could include getting them accommodation near the evidentiary interview, accompanying them to professional consultations and/or interviews, helping answer questions, and just being there for survivors going through a difficult time. When the experience of abuse is widespread in the community, it is important to have community-level responses (Degagné Reference Degagné2007: S53). In that respect, Canada’s group-based redress practices enabled mutual support. Similarly, Australia’s Lotus, Tuart, and Open Place, along with knowmore, combine counselling support with other survivor services.

I have been talking about counselling support for survivors through redress. Counselling can also be a redress outcome. Canada’s IAP allowed survivors to apply for psychological care provisions as part of redress. Similarly, counselling is part of the NRS’s redress package. These programmes give survivors the option of choosing counselling-as-redress, creating flexibility. Survivors regularly report that counselling is one of the most important and regularly accessed services (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 67–73; Watson Reference Watson2011: 4; Golding and Rupan Reference Golding and Rupan2011: 34). Block-funding specialised counselling services can be cheaper than paying survivors to find counselling on a case-by-case basis (Boyce and Wood Reference Boyce and Wood2010: 511–12). It can also be more accessible for survivors. Redress programmes can fund services embedded in local agencies, alongside more private telephone and video-calling services to make a flexible and holistic range of options available and provide services that are accessible to survivors in rural areas.

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My last topic in this chapter concerns managing money. Legally incapable survivors will need to have their money managed by third parties, as will those currently incarcerated. But financial management will be optional for most survivors. To help survivors manage their redress monies, redress programmes offer financial advice services. Similarly, most major redress reports endorse the value of financial advice, including, for example, the McClellan Commission (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 379). Those recommendations reflect submissions made by agencies with significant experience working with survivors. The benefits of professional advice are clear. Many survivors combine poor literacy and numeracy with little experience in managing larger sums of money (Petoukhov Reference Petoukhov2018: 96; Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 43). Marginalised survivors may not be able to find good advice within their communities, while their vulnerabilities to those who would exploit them create fears that survivors will misspend their redress monies (Dion Stout and Harp Reference Dion Stout and Harp2007: 33–34; Miller Reference Miller2017: 169).Footnote ² At the same time, redress payments can affect the survivor’s eligibility for means-tested benefits. While most states mandate that redress does not count as ordinary income, the attendant complexities of law and regulation may not be easy to understand. Moreover, these complexities may not be known to officials in the government agencies that administer benefits. Officials who mistake redress payments for ordinary income may deprive survivors of entitlements. Survivors need to have someone to whom they can come to help resolve problems.

Unfortunately, these excellent reasons to offer financial advice do not reflect any evidence that most survivors benefit from it. In no exemplar case was financial planning widely used. For example, an Australian survey reports that only 10 per cent of 136 respondent survivors had financial counselling concerning their redress payment (Care Leavers Australia Network 2016: 21). Low uptake may stem from ignorance regarding financial counselling’s benefits, fatigue resulting from protracted redress processes, and/or anxiety in relation to visiting an upscale office to meet a wealth professional. Simply offering financially counselling is not an effective way to make it accessible.

Dion Stout argues that accessible financial counselling needs to engage the survivor in determining what goals they have and then provide them with what they need to realise those goals (Dion Stout and Harp Reference Dion Stout and Harp2007: 71). Advice needs to be delivered by people who are used to working with survivors and provided in places where survivors feel comfortable. For Indigenous survivors, financial advice should reflect distinctive cultural values. Programmes can provide a helpline for survivors to call with questions or get general guidance. But a holistic agency like knowmore can link personalised financial advice with legal and counselling services. Survivors who come to talk to counsellors or their lawyers could be encouraged towards financial advice. Because most survivors will talk to their counsellors and lawyers on multiple occasions, that encouragement can be repeated. Moreover, being embedded in a community agency allows financial advisors to benefit from trauma-informed training and experience with survivors. Making financial advice part of everyday community services could be more helpful to more survivors. More generally, as I previously observed, future redress programmes could offer survivors the opportunity to register with a community agency for ongoing help with accessing services.

12.4 Support Recommendations

• Holistic support for survivors should be understood as a core component of redress.

• Comprehensive community agencies should be at the centre of the programme’s survivor-support strategy. The best community agencies are local, personable, and comprehensive. They take a holistic approach centred on the survivor’s well-being.

• Funding for support, or its provision, should supplement and augment existing public services. It should not duplicate.

• The support provided by comprehensive local agencies must be accompanied by services accessible to all survivors, including those in rural areas. This may include itinerant services alongside remote telephone, email, and video call options.

• Community agencies may need help adapting to the workload and skills challenges created by redress programmes.

• Having survivors work with survivors through redress can be widely beneficial, despite the challenges involved.

• Offending NGOs (such as churches) can provide effective support services. However, survivors should never be compelled to engage with offending organisations.

• All redress programmes should consider funding legal assistance. It is necessary in more complex programmes.

• Programmes must take proactive steps to reduce the potential for legal professionals to harm and exploit survivors. This can include trauma-informed training and ensuring that funding structures promote survivors’ well-being.

• Professional support services are best delivered as part of a comprehensive and holistic service.

• Survivors should be able to choose and retain the legal counsel of their choice, however, Australia’s knowmore service offers a good practice model that combines legal and financial advice along with professional counselling.

• Programmes should provide survivors with specialist records access support. This can include developing efficient and comprehensive data management systems and by training and funding local service providers.

• Those who provide counselling support should do so in line with best practice. The design of counselling support and its funding should enable an adequate standard of care.

• Programmes should consider offering counselling as a redress outcome.

• Effective financial advice needs to be attractive, responsive, and accessible.

13.1 Introduction

The headlines announcing Australia’s NRS highlight maximum payment values. The accompanying articles tell readers that Australian governments had negotiated with religious organisations in response to the McClellan Commission’s call for a redress programme paying up to AUD$200,000 (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 22). Those negotiations would reduce that figure. As the then Minister for Social Services, Christian Porter, told a press conference,

In other words, states and NGOs would not agree to fund redress at the rates recommended by the McClellan Commission. The NRS’s maximum of AUD$150,000 was what the offending institutions were willing to give, not what survivors were due.

Payment values are among the most widely publicised facts concerning any redress programme. But despite the public attention those figures receive, there is little commentary on how redress should value injuries. Chapter 3 argues that survivors have strong claims for full compensation. Justice requires that each receive what they are due. That requires a credible redress programme to try to fully compensate survivors, at least for some injuries. Within the scope of redress, survivors are entitled to full compensation. Programmes should not, as the NRS did, impose general discounts.

13.2 Setting Values

A fair redress programme would give survivors what they are due – full and just compensation. Full compensation requires programmes to offer payments that reflect credible estimates of the injuries’ (dis)value. No exemplar redress programme offered full compensation, most paid much less. To illustrate the gap, recent Australian research on historic abuse claims found that civil litigation paid an average of AUD$138,775 (Daly and Davis Reference Daly and Davis2021: 450). Supposing those court judgments are at least closer to full compensation, redress is remarkably low – average payments in Queensland Redress and Redress WA were AUD$13,500 and AUD$22,458, respectively.Footnote ²

Apologists offer three arguments justifying the disparities between what survivors are due and what redress typically provides. For some, the relative ease of redress justifies less than full compensation. Since litigation is protracted, costly, and uncertain, if redress is relatively quick, cheap, and sure, it will offer a good bargain for survivors, even when it pays less than what they deserve (Pearson, Minty, and Portelli Reference Pearson, Minty and Portelli2015: 41; Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 374). The idea is that survivors are compensated for getting less than what they deserve because the state makes it easier for them to get it. But that is a perverse argument. Many of the difficulties survivors experience with litigation were/are created by offending states that failed to prevent, uncover, record, and investigate abuse. To pay survivors less because the offending state did not fulfil its responsibilities risks compounding injustice.

A second argument holds that full compensation is unaffordable (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 248). Redress programmes are expensive and because states must allocate scarce resources, it would be unfair for survivors to insist that they receive full compensation. This argument looks good in the abstract. But in reality, it is unclear whether paying full(er) compensation to survivors would in fact be unfair to others. Survivors can rightly ask why their claims are judged too costly. Why they should get short shrift while states spend billions on a myriad of other things? Some of the decisions made in the exemplar cases appear questionable. Recall, from Chapter 5, how the government cut Redress WA’s maximum payment from AUD$80,000 to AUD$45,000 to keep the programme within its AUD$114 million budget cap. That cut was announced in 2009, just after the government announced funding for an AUD$1.8 billion athletics stadium in Perth. Survivors nicknamed the new sports ground ‘Redress Stadium’ as a wry comment on how the government spent ‘their’ money (Moodie Reference Moodie2019). As another example, in 2006, the same year Canada announced IRSSA’s redress programmes, it cut 1 per cent from the federal goods and services tax, which decreased the state’s annual revenue by CDN$4.5 billion (Government of Canada 2006). IRSSA paid survivors around CDN$5 billion, meaning that a one-year delay in the tax cuts could have funded an almost twofold increase. It would be easy to find further examples. The larger point is that while redress programmes are expensive, the monies involved are well within the states’ budgetary capacities. Of course, policymakers must exercise some budgetary control, but they cannot argue that fuller compensation is unaffordable.

A more subtle argument for partial payment concerns the purpose of redress. This argument usually begins, correctly, with the point that it is impossible to calculate a precise (dis)value for injuries like sexual abuse, wrongful removal from one’s family, and loss of cultural attachment. The argument then takes a further step into what Kathy Daly calls the ‘antinomy of denial and support’ (Daly Reference Daly2014: 176). Denying the possibility of full compensation, supporters argue that redress payments are instead measures that acknowledge and assuage the survivors’ injuries (e.g. Palaszczuk, Trad, and Farmer Reference Palaszczuk, Trad and Farmer2018; The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 304). Referring to the NRS, Robyn Kruk argues that redress serves ‘to recognise and alleviate the impact of past institutional child sexual abuse and related abuse, not to determine and compensate for the severity of the impact of that abuse’ (Kruk Reference Kruk2021: 92–93).

Kruk’s antinomious passage continues,

Kruk implies that fully compensating survivors would be bad for them. But it is unclear how the paternalistic argument is supposed to work. How would a programme ‘recognise’ the survivors’ injuries without ‘detailed and specific information’ about their experiences? One might think that recognising those experiences requires information about them. Moreover, the NRS’s thirty-page application form asks for detailed and specific information – Kruk’s argument does not justify the practice that she is defending.

Kruk is right to suggest that participating in redress can be difficult for survivors. Defective redress processes can harm survivors. But redress can be better designed. Moreover, I think survivors should get to decide what information they wish to share. Survivors may wish to incur some difficulties and risks. Therefore, if they are appropriately supported, providing survivors with the options to choose less difficult pathways to redress need not preclude providing them with options for pursuing more fulsome (and difficult) pathways.

When asked, survivors argue that fair redress payments should match their injuries (Lundy and Mahoney Reference Lundy and Mahoney2018: 273). That is, after all, normal corrective justice practice and what full compensation requires. Seetal Sunga argues that survivors tend to understand redress money as communicating an exchange value – the monetary award indicates what the injury is worth (Sunga Reference Sunga2002: 54). That understanding is powerful, even for those who agree that it is impossible to put a monetary value on their injuries. In 2016, the Care Leavers Australasia Network surveyed 259 Australian survivors asking: ‘In regards to Redress / Compensation, what do you believe is a fair amount that Care Leavers should receive?’ The resulting report offers a selection of survivors’ answers, nearly allFootnote ³ of which represent a ‘fair amount’ as an exchange of like value – fair redress would pay back the costs imposed by injury (Care Leavers Australia Network 2016: 19). The quoted survivors all agree with the first step in the antimony – compensation is impossible. But they still argue that fairness entails full compensation. Anyone who hopes to convince survivors otherwise is paddling against a roaring current of interpretation. As one survivor, Paul Zentveld, puts it: ‘we want to get paid money, big money, because we deserve it’ (Quoted in, Ellingham Reference Ellingham2021). Because survivors understand themselves as deserving full compensation for their injuries, they complain when redress undervalues their suffering (Daly Reference Daly2014: 179–80). ‘One of the most common grievances voiced by people who were unhappy with the outcome of a [redress] process is that the level of payment they were offered was unfair’ (White Reference White2014: 4). Reframing redress as a non-compensatory measure of acknowledgement, alleviation, healing, and reconciliation might sound like a good idea, but it will not satisfy what fairness demands.

I think policymakers can refuse the antinomy by recognising that full compensation can be a just aim even when it is impossible. Impossible things are often worth attempting. To use a mundane example, if I were to grab a pencil and ruler right now and draw a straight line, I would fail. Straight lines are a conceptual ideal beyond the capabilities of the human hand. But millions of people draw lines every day that are straight enough for their purposes. And by analogy, that is what redress programmes should aim to do. A redress programme may not discover what perfect compensation requires, but it is likely to come closer to that discovery if it at least tries. In other words, full compensation is a regulative ideal governing the value of compensation.

Because survivors are due full compensation, a programme needs to demonstrate that it has made a credible effort to appraise the disvalue of their injuries. The remainder of this section sketches how a programme might set redress values. But I will not propose any specific figures here. Appropriate values will vary from time to time and place to place and will be more credible when co-developed with survivors. Policymakers need to use effective methods to develop credible values – drawing upon data and techniques from markets, litigation, insurance, and public health. No method is perfect, but there are several techniques that can help policymakers set values for different components of injury.

In the easiest cases, there may be injuries (usually interactive and individual) that have a market value. If a survivor had something stolen from them while in care, the programme can price a replacement using existing markets. Similarly, if consequential harms require medical or dental treatment, programmes can price the market cost of necessary procedures. Analogous techniques might be used for survivors with reduced employment capacity. Using existing markets to set values, a programme could compensate those who earned below an average or living wage, or some other appropriate baseline. Shifting focus slightly, to value the experience of living with physical or psychological disease and/or disability, programmes might use the public health tools of Quality-Adjusted Life Years (QALYs) and the related metric of Disability-Adjusted Life Years (DALYs). These metrics combine the expected shortfall in individual life expectancy relative to the quality of each expected life year to provide an objective measure of how to value living with disease or disability (Maldonado and Moreira Reference Maldonado and Moreira2019). The literature on both DALYs and QALYs is well developed, and policymakers can refer to broadly accepted tables to calculate payment values. Finally, court precedent and insurance settlements offer aggregated statistics on average awards for many different types of injuries. These statistics reflect thousands of accumulated judgements. The use of average judicial award values would be apposite for two reasons. Not only does litigation present a public valuation of injuries, it also offers a ready procedural alternative. If redress values fall too far below what litigation can provide, survivors with potentially good tort cases will opt out of redress.Footnote ⁴

Market data, life tables, and average judicial and insurance awards provide relevant information. Still, this data has limits. The cost of repairing damage is not the same as the disvalue of experiencing harm. Large-scale award databases or payment schedules can lump different injuries into homogenous categories. Jurisdictionally specific legal frameworks, contractual conventions, and award norms affect payment values exogenously. The available information is only partial and approximate. But a programme might start with that data and then innovate when necessary.

Redress programmes will confront some injuries for which no adequate data exists. When programmes need to innovate, there are three prominent approaches to assessing the disvalue of injuries (Chalfin Reference Chalfin2015: 4). The ‘contingent valuation’ method surveys what people say that they would pay to reduce the probability of injury by a certain percent. For illustrative purposes, if the average respondent would pay N to reduce the chance of being lied to about the death of a parent by 10 per cent, then the disvalue of that injury could be = N × 10, adding frequency multipliers to capture recurring injuries. A second option, ‘hedonic pricing’, infers the disvalue of non-market goods using market observations. This method decomposes the value of a market good, such as a house, into its component parts. To illustrate, a programme might try to capture the disvalue of living in a threatening environment by looking at the relationship between house price and crime rates to estimate how much people actually pay to reduce security threats.

Both contingent and hedonic pricing assess what people would pay, or have paid, to avoid injury ex ante. A third method decomposes injuries into sub-components that are priced using analogous market goods and services. An example is child neglect. Some American courts approach neglect as a failure to provide information and services. Those courts define thirteen core domains of non-neglectful childcare: psychological/emotional development; education; diet; medical care; dental care; fitness; access to athletic experiences; culinary skills; faith/morality; personal finances; household services; career counselling; and learning to drive (Laurila Reference Laurila2013: 64). By estimating the amount of time an average parent spends on each of these activities for a child of the appropriate age, assessors can work out the cost of replacing those services with professionals. The aggregate value would then be multiplied by the number of days the child was denied different aspects of care. Although the initial calculations are complex, it would be relatively easy to create a formula or table to estimate the disvalue of neglect.

None of the techniques canvassed above provide perfect information. Contingent valuation is subject to significant epistemic concerns – not least of which is that values are set by people with no experience of the injury, a problem that merely headlines all the other problems of subjective survey responses (Tourangeau Reference Tourangeau2003: 5). Hedonic pricing requires good data on what motivates people to pay different prices and it may turn out that prices are not very sensitive to the relevant concerns. Turning to the service-replacement approach, the price of services is not the same as the cost of experiencing the injury. And the approach confronts difficult questions, including which services to include in the calculation; how to value partial provision; and how to value goods for which there are no market equivalents, such as parental love. Thinking more generally, many of the techniques estimate average disvalues, which means they offer mere proxies for the disvalue experienced by specific individuals. Moreover, my survey of different ways of estimating the disvalue of injury depends upon the possibility of aggregating the costs of component injuries. But simple aggregation will not reflect the compounding disvalue of a complex injurious experience, for example, a physical assault is made worse when no one provides medical treatment.

Because it is impossible to estimate the disvalue of many survivor’s injuries accurately, people are right to say that full compensation is impossible. Nevertheless, survivors deserve a credible explanation of the values that redress offers: hand waving and platitudes are all too common and need to stop. To that end, these techniques offer survivors (and others) methods for critiquing existing or proposed payment values. For example, using the service-replacement method Andrew Laurila suggests that a single parent’s nurture between the ages of four and eighteen is worth around USD$269,501.37 (Laurila Reference Laurila2013: 70). That figure comfortably exceeds the highest average value paid by an exemplar programme – the IAP’s CDN$91,000. And, of course, most survivors have claims for injuries other than neglect. A moment’s reflection suggests that robustly priced payments would likely exceed most payments offered by the exemplar programmes.

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Having supported a robust approach to evaluating injuries, I want to consider why participants might, in fact, prefer less precise approaches. The sensitivity of an individual’s injurious experience to the payment received is a matter of degree. The least sensitive approach would pay all validated applicants the same amount. For example, a Swedish programme paid all successful redress claimants SEK 250,000 (Sköld, Sandin, and Schiratzki Reference Sköld, Sandin and Schiratzki2020: 179). Refusing to distinguish between injurious experiences, insensitive programmes might work well when redressing collectively experienced injuries or when survivors all experienced similar structural injuries. But when survivors have complex and varied experiences, then undifferentiated payments create false equivalences. By contrast, highly responsive programmes vary monetary values in step with every injurious nuance. For example, Ireland’s RIRB gave each application a score out of 100 points. That score fixed the application into one of five standards of severity, with each category corresponding to a range of €50,000 – that is, an applicant scoring between 40–54 points would be pegged in the €100,000–€150,000 range (Appendix 3.2).Footnote ⁵ Because each €50,000 band was defined by fewer than fifty points and the RIRB rounded payments to the nearest thousand euros, every point made a difference to the monetary outcome. That is an example of a highly responsive approach. And if payments depend on every nuance of the survivor’s experience, programmes will need to acquire and assess all relevant evidence. I have repeatedly noted that as programmes demand more information, they tend to be slower, less consistent, and impose higher costs upon participants.

The offsetting disadvantages posed by the extremes of very sensitive and insensitive programmes suggest that a better strategy may lie somewhere in between. A programme can distinguish between some, but not all, injurious experiences by using categories that group roughly similar injuries together. Exemplars include Queensland Redress and Redress WA (Tables 5.1 and 5.2).Footnote ⁶ These programmes reduced informational demands and made assessment easier by sorting claims into bands according to their severity and making identical payments to all claims in each band. This technique makes assessing the most grievous claims easier – once assessed as meeting the minimal criteria for the highest standard, they require no further work by assessors (AU Interview 9). Further, a less sensitive process may increase everyone’s confidence that the claim has been correctly valued – it may be clearer how a claim fits within a broader, rather than narrower range.

The point is practical. If payment values are only moderately sensitive to different injurious experiences, then an applicant will have less incentive to seek a review (rescoring) if they score at the bottom or in the middle of a range. That means broader ranges, with less sensitive conversion ratios, can create cost savings. Similarly, from the survivor’s perspective, knowing the minimum requirements for a category could let them limit their evidence to only what is necessary to meet the relevant standard. For example, if categories are defined by the experience of different forms of abuse, but insensitive to frequency, a survivor could limit their evidence to a single event.

Similarly, programmes could redress collectively experienced injuries or structural injuries through less sensitive approaches by providing base-level payments. The values should reflect a specific injurious experience and, importantly, be set high enough to avoid insulting survivors. Because monetary values are communicative, very low payments can be offensive (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 223; Death Reference Death2017: 148; Allen and Clarke Policy and Regulatory Specialists Limited 2018: 6). As one Queensland survivor said, ‘The [AUD$7000] compensation offered by [Level 1] was an insult that was not worth applying for’ (Quoted in, Porcino Reference Porcino2011: 6). Although people will differ on what they think insulting, it should be possible to select a reasonably respectful base figure.

One approach suggests that a respectable figure is one that is ‘meaningful, in the sense that it would provide a means to make a tangible difference in their [survivors’] lives’ (Royal Commission into Institutional Responses to Child Sexual Abuse 2015a: 151). There are different ways to understand what a ‘tangible difference’ might entail. From a material perspective, redress could, ‘help survivors rebuild their lives’ by making a noticeable difference in how they live (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 304–5). As a good effort, the £10,000 base payment in Scottish Redress is 36 per cent of that nation’s £27,716 median average household income (Congreve and Mitchell Reference Congreve and Mitchell2021) and 6 per cent of the 2021 average Glaswegian house price of £159,0000 – just enough for a down payment (HomeCo 2021). By contrast, AUD$7,000 was 11 per cent of the Queensland’s 2011 median income of AUD$63,804 (Queensland Treasury 2017) and 1.5 per cent of the 2010 median house price (AUD$460,919) in Brisbane (Clegg Reference Clegg2019). The reference to housing is merely illustrative. While a route to a secure home is one way redress could make a tangible difference, policymakers should co-develop adequate base values with survivors. Ideally, all eligible survivors would get a base payment. Pre-screening should eliminate clearly fraudulent or duplicate applications, but otherwise any survivor injured in care should be eligible for a base payment. No one should receive a zero award.

To conclude, programmes must explain how they appraise injuries. The processes through which policymakers derive values should be accessible, transparent, publicly justified, and include survivors. While setting values upon injurious experiences will be contentious and difficult, programmes should make credible efforts to explain and justify the values they offer. That said, there are advantages to both survivors and states if programmes are somewhat rough when calibrating payments. There are obvious trade-offs as programmes approach the regulative ideal of full compensation. However, good participatory programme design could work towards acceptable outcomes. Policymakers should consider providing multiple avenues for redress wherein lower payments come from roughly assessed and lower cost processes. In addition, survivors can choose more nuanced pathways to fuller compensation.

13.3 Paternalist Reservations

There are reasons to fear that survivors made vulnerable because of their care experiences will misspend their money or be exploited by the dishonest. Fear for survivors’ well-being can tempt programme designers with paternalism. One advocate illustrated his concern by telling me about a survivor who had received NZD$80,000 in redress. The survivor was

The interviewee argued that lump sum payments could be harmful. Not only will survivors misuse their money, but once the misspent money is gone, they are left to regret that they have squandered an important opportunity.

As an alternative, the interviewee emphasised the importance of working with survivors to identify and meet their needs. He argued that redress should not pay survivors directly, instead, their money should be held in trust. A social worker would manage their redress money in the survivor’s best interest. That professional would holistically review the survivor’s circumstances – examining their health, housing, employment, and education – then allocate money according to the survivor’s needs. Should any redress monies remain, the survivor would receive a nominal pension, no more than ‘fifty dollars a week’ (NZ Interview 1).

I generally oppose this kind of blanket paternalism. I appreciate that community workers, like the interviewee, with experience working with many disadvantaged survivors, may have a different perspective. Moreover, my opposition is coloured by my support for holistic community-level support for survivors. Chapter 12 argues that redress programmes should offer survivors the opportunity to register with agencies whose staff can help facilitate access to services. Survivors need high quality, accessible, and holistic support. This can work in different ways, illustrating one option, Magdalene survivors have cards providing augmented access to health care services. In addition, local agencies should receive ongoing funding to support survivors. To a certain extent, my opposition to paternalistic restrictions depends on the complementary provision of high-quality services. Moreover, I accept that redress programmes will need to make provisions for legally incapable survivors, like prisoners, to have their money managed by third parties. But having made those concessions, because paternalistic imposition takes away the rights of survivors to do what they want with their money, it needs robust justification. Paternalism must be the exception, not the rule.

Redress programmes ‘must always respect the ultimate right of Survivors to make their own decisions’ (Dion Stout and Harp Reference Dion Stout and Harp2007: 53). Because it is extremely fungible, money empowers survivors. As Chapter 3 underlines, money gives people control over the course of their life. By contrast, having a social worker or other government official control the survivors’ money risks recreating the injurious structures that governed them as young people. The just treatment of survivors demands respect for them as persons:

Restricting access to monies for paternalistic reasons presumes that survivors will act against their own interests (Alliance for Forgotten Australians 2015: 12). Furthermore, it presumes that programme officials know better than survivors what those interests are. I doubt that is normally true. And making paternalism into policy entails sweeping judgements concerning the incapacity of all survivors. Survivors are diverse, with differing needs and capacities. Too often, concerns around the misuse of monies are born from anecdote, fed on prejudice, and are better addressed through robust and holistic support.

Paternalism is appropriate when people will otherwise make bad choices that lead to serious and irreversible self-imposed harms. I have never seen evidence of that resulting from a redress programme. Some survivors will make bad decisions, but others will make good ones (Graycar and Wangmann Reference Graycar and Wangmann2007: 17). In Canada, for example, there were widespread concerns that Indigenous redress recipients would not manage their redress monies well. However, the

Policymakers should make pension and/or trust facilities available as an option, but they should only be forced upon survivors when that is demonstrably necessary for that specific individual.

***

Similar points apply to in-kind redress programmes. In-kind redress is a paternalistic technique that controls how survivors spend their money. Exemplars included Ireland’s Caranua, Queensland’s Forde Foundation, and Canada’s Personal Credits. These programmes were/are paternalistic in two ways. First, they decide and limit what kinds of goods and services survivors will be able to claim, within the parameters of eligible claims set by policymakers. Second, they make judgements about what will be good for individual survivors on the basis of their applications. The latter process involves empowering professionals to make judgements about what is in the care leavers’ best interest.

In response, survivors rightly object that they should control how their money is spent. Discussing Canada’s Personal Credits programme, Robyn Green notes the frustrations expressed by survivors concerning the limits imposed by the programme (Green Reference Green2016: 104). Similarly, Tom Cronin argues that Caranua’s paternalist basis made survivors ‘beg for our own money – money that we are entitled to’ (Quoted in, Ó Fátharta 2016). Cronin’s point was echoed by one survivor who told me that she was presently ‘begging’ Caranua for services (IR Interview 10). Because applications for in-kind services take time and resources, they are much more cumbersome than simply letting survivors spend their money as they see fit. Inequities arise when more motivated and capable survivors apply for more money and do so more often (IR Interview 4). For that reason, Caranua imposed a €15,000 lifetime limit on each survivor. Canada’s Personal Credit programme limited each survivor to CDN$3,000 and the Forde Foundation imposed a maximum of AUD$5,000 in funding over five years. Finally, the rules constraining eligible applicants are often inflexible, excluding reasonable claims that do not fit into preconceived categories. To illustrate, the Forde Foundation will pay fees for vocational or Technical and Further Education (TAFE) courses, but not for university degrees (Forde Foundation Reference Tener and Murphy2018). Why not? Recall, from Chapter 2, how survivors were denied education as young people because those charged with their care thought them unfit for academic pursuits. One might think that the Forde Foundation is making the same judgement.

13.4 Communicating Values

I previously noted that payment values are widely publicised, with media often highlighting maximum available sums. But because most programmes make maximum payments to very few survivors, a popular focus on those figures can encourage false assumptions (Daly Reference Daly2014: 180). Redress WA observes the

If few survivors receive maximum payments, publicity that focuses upon those values can be misleading. Recognising the problem, the McClellan Commission suggests emphasising the average values a programme expects to pay (Community Affairs References Committee 2018: 30). Programmes should advertise and report median payment values and encourage the media to do likewise.

Turning to individuals, communicating payment offers to survivors is an integral part of redress. Institutional representatives may need training to communicate well, and survivors may need support during the offer process (Kruk Reference Kruk2021: 147; IR Interview 6; NZ Interview 1). Although survivors usually benefit from good and transparent information about how their claims were assessed, many will not want to receive a letter full of confronting information for psychological and privacy reasons (AU Interview 9). For the same reasons, survivors may prefer to have their redress money discretely deposited in a bank account. Survivors should be able to choose whether or not they will receive an explanation. Either way they may need support. Some survivors will be retraumatised by confronting their injurious experiences. Other will be angry or insulted if they do not get what they expect. Lower than expected sums may suggest that staff did not like them, or thought they lied, or indeed that programme staff have cheated them (Reimer et al. Reference Reimer, Bombay, Ellsworth, Fryer and Logan2010: 29; AU Interview 6). These concerns underpin the need for clarity regarding monetary payments. Clearly stating how programmes derived payment values can help avoid misunderstandings and accusations. When part of a claim is not redressed, survivors should be told why and what recourse they have through review processes or litigation.

Exemplar programmes adopted different strategies in communicating payment offers, with many offering apologies. The literature on apologies is large and I will touch on a couple of key points only (for an introduction see, Smith Reference Smith2008b). An apology is an obvious complement to an explanation of redress that accepts responsibility for injuries. Some survivors never open apology letters and others discard them in the rubbish, but many survivors welcome them. I have met survivors who frame their apologies for display in their living rooms or who carry them folded in their wallets. In New Zealand,

Some programmes despatched generic apology letters lacking any information about the individual’s claim.Footnote ⁷ A better approach would acknowledge the survivor’s unique experience (IR Interview 1). Letters must be clearly and accessibly written. An excerpt drawn from an apology letter that I have on file offers a cautionary lesson in obfuscation. The letter was sent to a New Zealand survivor and it reads (in part):

The second sentence addresses what redress is for. And it opens by distancing the writer from the injurious acts. The offending, if there is any, pertains to failures in how MSD assessed caregivers. Even there, the author (Brendan Boyle, chief executive of MSD) does not acknowledge wrongdoing, instead he reports what someone else has told him – Boyle has ‘been advised’ of failures. Those abstract failures are never described and are not attributed to an agent. Moreover, Boyle is not certain of their injurious character. When he suggests that one failure ‘arguably contributed’ to abuse, he implies the possibility that it did not. It is not even clear which of two failures (no more is said about them) is the potential contributor.

Evasive ambiguity is ‘inappropriate, insulting, and counter to the purpose of [redress]’ (Allen and Clarke Policy and Regulatory Specialists Limited 2018: 7). Better statements clearly explain what redress is for. Looking for best practice, Reg Graycar and Jane Wangmann examined a small Canadian programme redressing survivors of the Grandview Training School for Girls (Graycar and Wangmann Reference Graycar and Wangmann2007). Payment decisions issued by that programme carefully explained how redress payments were calculated and who was responsible for what. Around ten pages long, those statements reproduced core elements of the survivor’s testimony, so that survivors could know that they had been heard. Accessibly written and reflecting the care leavers’ personal experiences, 87 per cent of survivors said these statements were ‘very important’ to them (Graycar and Wangmann Reference Graycar and Wangmann2007: 28).

Observers emphasise the importance of having a representative of an offending institution apologise to survivors as individuals (Philippa White in “Official Committee Hansard” 2009b: CA16; CDN Interview 4). Personal apologies are more expensive and time consuming than generic statements. But more personalised accounts can match the seriousness of the experience addressed (Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 10). To lend the apology weight, observers suggest that they should come from high-ranking officials, preferably leading politicians (The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 223; Lightfoot Reference Lightfoot2015: 23).

Survivors should have the option of receiving a letter that explains what is being redressed and how the programme adjudicated their payment values. Good in itself, that clarity also enables the fair use of waivers. Waivers require survivors to release the state from future claims and agree to a final settlement of their claim(s). It is unfair to ask survivors to waive claims for which they have not been offered credible payments. Waivers should only settle claims that are redressed. The advantages of settling claims with waivers are obvious to states, but they can be good for survivors too. By legally resolving the claim, a waiver might help survivors move forward with their lives.

As an aside, the point of payment is an opportunity for the survivor to get information about the use of data held by the programme about the survivor. Chapter 8 argues that survivors should control how their information is used and archived and when (or if) it will be destroyed. Survivors would benefit if they could learn, at the end of the process, whether information from their claim aided other applicants, was used in prosecutions, or informed policy research. Survivors should also be given an opportunity to (re-)instruct the programme as to future use of that data, where and how their information should be archived, or whether it should be destroyed. Redress programmes will hold highly sensitive and private information about survivors. Survivors need to be able to control what happens to that data.

Survivors also need time to consider payment offers. For example, Canada’s IAP required survivors to request a review within thirty days. Australia’s NRS provides six months. Longer periods are better for survivors, allowing them time to seek advice, make a decision, request a review, or, potentially, augment their claim with further evidence. Survivors should be able to extend the offer period by notifying the programme. But should the survivor fail to respond within a reasonable period, the offer should lapse and the claim should close. Ireland’s RIRB experienced difficulties with claims that they could not close because survivors did not respond to settlement offers. Those claims continued in limbo until the Dáil legislated to terminate them. After a reasonable period, the survivor’s failure to respond should be treated as a refusal. That refusal would leave survivors able to reanimate their claim either through litigation or in a successor programme.

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Tensions between the public and private are a theme in this study. I have previously remarked that individual monetary payments can individualise and privatise experiences that are better understood as collective and systemic injuries affecting families, communities, peoples, and polities. Pushing back against those individualising tendencies, Madelaine Dion Stout and Rick Harp advocate giving Indigenous survivors the option of linking payments to a communal sweat (Dion Stout and Harp Reference Dion Stout and Harp2007: 63). Non-Indigenous survivors might also appreciate payment ceremonies. While apology letters are worthwhile, ‘[A] lot of applicants wanted a face-to-face apology. A standard letter, even though it came from the Premier, didn’t really cut it with them’ (AU Interview 8).

Policymakers should consider having ceremonies for awarding monetary payments. Participation would need to be strictly voluntary, but having community events could be valuable for those who choose to participate. Ceremonies might be tailored to the survivors’ context. Some survivors might prefer an intimate approach involving only a small number of people. Others would benefit from larger events. Still others might want a response to a specific institution, such as a large orphanage or residential school. Where survivors have gone through redress as a group, that collective might host the ceremony. Again, there is value to taking a flexible approach.

However devised, formal processes communicate respect for survivors and provide opportunities to develop and affirm the meaning of payments. One could imagine survivors participating in a ceremony with politicians or senior civil servants. Some survivors might testify, but this would be voluntary and no one other than the survivor need know their payment values (which would have already been agreed). If survivors wish, the ceremony could include institutional representatives, such as church officials, offering personal apologies or statements. A formal event could link individual payments to larger practices of communal reconciliation in ways that militate against individualising tendencies. Community award ceremonies would enable senior officials to state publicly how monetary redress connects with the survivors’ membership in their communities and in the larger polity. That is one reason the survivor advocate Sir Roger Martin argues that redress programmes should include a ceremonial recognition of the survivors as citizens (Neilson Reference Neilson2019). Martin argues that care leavers need to be publicly recognised both as survivors and as equal citizens.

If community events acknowledge survivors publicly, they could also help shape survivors’ understanding of their redress monies in positive ways. Some survivors report that they feel their redress money, or things purchased with it, are tainted by their association with abuse or neglect (Feldthusen, Hankivsky, and Greaves Reference Feldthusen, Hankivsky and Greaves2000: 98; Dion Stout and Harp Reference Dion Stout and Harp2007: 33; The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 94). A communal celebration could help mitigate the sense that redress money is soiled. Adding to their intrinsic value, high-profile events could encourage the development of survivor networks. Moreover, by publicly highlighting survivors’ needs, such events could provide opportunities for advocacy that helps secure funding for necessary support services. Of course, payment ceremonies create additional costs and delays. And privacy concerns will deter some. But if the ceremony was optional, and attendance was cheap, it is an option worth exploring with survivors.

The potential benefits are evidenced by the value survivors find in the grand public apologies offered by senior politicians. It has become normal for premiers, prime ministers, and presidents to apologise to survivors. It has also become normal for survivor representatives to participate in those apologies. In 2008, Phil Fontaine, a survivor, and national chief of the AFN, spoke in Parliament in response to the Canadian prime minister’s national apology for the residential schools. Accepting the apology, Fontaine described it as ‘signif[ying] a new dawn in the relationship between us and the rest of Canada’ (Fontaine Reference Fontaine2008). Twelve years later, a survivor-focussed report confirms that apology ‘had a profound effect on the Survivors in terms of feeling believed and having their personal experiences validated’ (National Centre for Truth and Reconciliation 2020: 16). Larger communal ceremonies can recognise the collective and political character of the survivors’ experiences of structurally injurious policy. When survivors see those apologies as components of a substantial and holistic remedial process (and not merely a self-serving publicity stunt), public apologies and monetary redress can each gain strength from one another, improving the quality of both.

13.5 Payment Recommendations

• Survivors are due full compensation; therefore, a programme needs to demonstrate that it has made a credible effort to appraise the disvalue of injuries.

• Programmes need to use the best available methods to develop credible payment values, drawing upon data and techniques from markets, litigation, insurance, and public health. Appropriate values will vary from time to time and place to place and will be more credible when co-developed with survivors.

• If a redress programme offers a base payment, it might be set at a value sufficient to make a tangible difference in survivors’ lives.

• Although survivors have a right to full compensation, programmes might consider using categories that group roughly similar injuries together and pay the same amount of money to all those assessed at a specific standard.

• Better programme design would provide multiple avenues for redress wherein lower payments are associated with roughly assessed and lower cost processes, while also enabling survivors to choose more nuanced pathways to fuller compensation.

• Programmes will need to make provisions for legally incapable survivors to apply for and obtain redress.

• Programmes should offer survivors the option of putting their redress payments into pension and/or trust facilities.

• Programmes should not use concerns for survivors’ well-being to impose paternalistic restrictions on their use of redress payments.

• Holistic redress programmes should provide a range of direct support services, rather than make survivors apply for in-kind redress.

• Programmes should advertise and report median average payment values, and encourage the media to do likewise.

• Programmes should offer survivors clear explanations of what their redress is for, and how values were derived. Survivors should be able to choose whether they will receive an explanation, or not.

• Redress should be accompanied by both collective and personal apologies. These might be provided orally and/or in writing.

• Personal apologies should not be limited to generic statements. Better apologies clearly indicate who is taking responsibility for what.

• Payments should be accompanied by statements regarding what has and will happen with the survivor’s information and enable survivors to direct what will happen with their information.

• Programmes should only ask survivors to sign waivers when they have been offered credible redress payments. It is unfair to ask survivors to waive claims for which they have not been offered credible payments.

• Survivors need enough time to consider payment offers, however, their claim should lapse once that period concludes.

• Policymakers should consider developing redress ceremonies that recognise the collective and political character of injuries experienced in care.

14.1 Introduction

It might seem natural to conclude this book with a detailed blueprint for designing a redress programme. But that would be antithetical to my argument that survivors and other stakeholders should participate in co-designing redress policy. Outsiders can make recommendations, but better programmes demand local ownership and participation. Part of the reason is practical. Redress programmes must operate in distinctive socio-political contexts that shape their potentialities. They need to draw upon available capacities for providing records, psychological support, legal expertise, and many other services. Because the programme’s quality depends on the commitments that stakeholders are able and willing to make, those stakeholders must be part of the policymaking process. Redress programmes always involve trade-offs between competing values. It is, therefore, vital that survivors participate as equals in designing and delivering redress programmes. Decisions about programme design are likely to be better made when those decisions include those most closely affected. Moreover, survivors’ experience of injurious care and its consequences can anticipate potential problems, help solve problems when they emerge, and lend the programme credibility. And finally, participation can help overcome alienation and mistrust. Too many survivors have a history of decisions being made for them by those who claimed to be working for their best interests. If redress is foisted upon survivors, it will reproduce the same structures that injured them. A report criticising New Zealand’s HCP captures the point:

Because marginalised survivors can struggle to be effective participants, there are real dangers that professionals will dominate policymaking and implementation (Murray Reference Murray2015: 178). Survivors may need support to offset participatory disadvantages. Survivors can and should participate in every phase of policymaking: deciding the programme’s administrative structure, which injuries will be eligible for redress, how claims will be assessed, how support will be provided, and how monetary payments will be valued. The fact that people will reasonably disagree about each of these decisions underscores the need for robust and transparent design processes.

14.2 Enabling Choice

While policymaking can try to be open and democratic, for practical reasons participation is inevitably limited. While many hundreds of survivors could participate in redress programme design, many thousands more will pursue claims. Survivors are a diverse group of people with differing capacities and needs. They will, as a result, need to pursue redress in different ways. That diversity underpins the argument for flexible programmes in which survivors control how they pursue redress. If survivors are to control their redress journey, they need to be able to choose between different options. That is an important reason to offer pathways that differ according to the injuries they redress, the evidence required, the tools and processes used by assessors, the support survivors need, and the payments they receive. As that is one of this book’s major arguments, I will say a little more about each point.

Survivors experience many different types of injuries. Although survivors’ complex lived experiences are not easily sorted into distinct categories, some of that diversity can be captured by the distinctions between interactional and structural causes, between individual and collective effects, and between injurious acts and their damaging consequences. Programmes can use the differing costs and benefits associated with claims for each type of injury to develop distinct pathways. Moreover, these pathways might be administered by different agencies that respond to their differing operational needs. These agencies could have different budgetary and staffing arrangements to meet their distinctive demands.

When developing these pathways, policymakers need to decide what evidence will validate claims and how the programme will get that information. These decisions are intertwined: the processes chosen will affect what information is gathered and its complexion. Programmes should provide survivors with pathways that offer differing ways of providing evidence. The psychological difficulties that many survivors experience when giving verbal testimony suggest that programmes should have one or more pathways that minimise the use of interviews. Chapter 3 notes how the Van Boven/Bassiouni Principles’ backing for ‘effective access’ supports programmes that offer quick and low-cost (in all the relevant senses) pathways. However, despite the costs involved, for many survivors the participatory value of testifying and having their experiences acknowledged and validated are among the principal benefits they get from redress.

There are clear administrative cost differences between pathways that prioritise records over those that centre on oral testimony. To illustrate, one source suggests that Canada spent CDN$969.7 million administering the IAP (Independent Assessment Process Oversight Committee 2021: 60). That figure excludes CDN$55.5 million per year from Health Canada for health and cultural support (Office of Audit and Evaluation 2016: 1).Footnote ¹ It also excludes the nearly CDN$1 billion in fees charged by survivors’ legal counsel, half paid by survivors.Footnote ² With 38,276 claims, CDN$969.7 million represents an average of CDN$25,334 per claim. By contrast, Canada spent around CDN$140 million (plus costs incurred by Health Canada) to administer the CEP’s 105,530 applications, an average of CDN$1,327 per claim. The roughly 2000 per cent difference is clearly explained by the differing evidentiary demands. Concerned solely with records, the CEP needed relatively little information. Because it was more comprehensive, the IAP sought much more evidence and cost much more.

Differing pathways to redress can use differing assessment techniques. While all programmes need to use a range of assessment tools, they can craft pathways that accentuate the role of some and minimise others. Chapter 11 describes how assessors applying rules can work faster and more fairly than when they use factors. Factors impose higher costs on survivors but are necessary for comprehensive and flexible responses. Efficient programmes will only use high cost and intrusive assessment techniques when those are needed to acknowledge the survivors’ individual experiences. Programmes can also craft fast or slow track pathways, have differing degrees of transparency regarding assessment criteria, and different standards of evidence. Although circumstances vary, the exemplars indicate that programmes redressing structural and/or collectively experienced injuries can use rules, avoid comprehensive assessments, and have more transparent criteria than those that aim to comprehend an individual’s injurious experiences. A programme that has at least one pathway designed for quick redress might use that pathway to provide interim/provisional payments.

Chapter 13 discusses how programmes might set the value of payments. There are countervailing virtues and vices to differing techniques, but my key argument is that survivors should receive full compensation (or a credible estimate of full compensation) for any injury they have redressed. Having discrete pathways for different types of injuries permits payment values to vary. Some survivors will wish to get as much money as possible, enduring greater costs in the pursuit. Others will prefer a quicker pathway that remedies a narrower range of injuries but provides less money. A 2015 submission by the Alliance for Forgotten Australians indicates that

I agree that redress programmes should offer a substantial base payment to all eligible survivors. Additional pathways might be more factor-based and more individuated, attempting a more precise match between the severity of injury and payment values. There are, as always, trade-offs involved: greater precision will tend to increase the costs of assessment. Balancing the costs of precision against the survivors’ claims to full compensation, policymakers might consider using reasonably large increments between settlement values to reduce procedural costs.

As the previous quote from the Alliance indicates, the strategy of offering differing pathways to redress enjoys support among survivors. Patricia Lundy’s work with North Irish survivors reports ‘broad agreement’ on the appeal of a programme that has both ‘a broad common experience payment and an optional individual assessment’ process (Lundy and Mahoney Reference Lundy and Mahoney2018: 270). Similar arguments can be found elsewhere (Senate Community Affairs References Committee 2009: 54; Open Place 2014; Royal Commission into Institutional Responses to Child Sexual Abuse 2015b: 251; The Royal Commission of Inquiry into Historical Abuse in State and Faith-Based Care 2021: 292, 309; Kendrick, McGregor, and Carmichael Reference Kendrick, McGregor and Carmichael2018a: 51). Adding to the textual support, oblique empirical evidence of survivor-support for the strategy appears in the high numbers of survivors engaged in Canada’s IRSSA. IRSSA was also the most disaggregated exemplar, with multiple pathways that distinguished the CEP, Personal Credits, and IAP, with the IAP itself comprising a series of sub-pathways to redress. The CEP validated a few more claims than its original population estimate. But the IAP received more than three times its expected application numbers. The data is merely suggestive, more research would be needed for stronger claims. Nevertheless, Canada’s high application numbers is evidence supporting that programme’s flexible structure.

A flexible programme would permit survivors to change pathways. Survivors may originally approach a programme as an instrument for a quick base-level payment, but then wish to change to a more comprehensive and participatory process. Conversely, survivors who confront psychological barriers when pursuing payments for interactional injuries may prefer to shift onto a pathway redressing structural injuries. Because different survivors will have different preferences at different times as to how they balance participatory costs and payment values, policymakers should permit movement between different pathways. Procedural choice enables survivors to exercise more control throughout the redress process.

A programme that enables survivors’ choice will necessarily be complicated simply because survivors have different options from which to choose. There are tensions between enabling survivor choice and concerns with well-being. Choice entails complexity and complexity is not good for everyone. However, while many survivors will struggle to participate effectively, many others are fully capable. Survivors are not homogenous; they have differing capacities and needs. A programme that enables choice will better enable survivors to control their journey through redress. It will also, therefore, need to support survivors to navigate complexity. That entails holistic and robust support from counsellors, medical professionals, archivists, lawyers, and community workers. Survivors who choose longer, more difficult, pathways to redress will need long-term support. I think that support is best provided by local and accessible community agencies that work with survivors through the redress process and beyond. However, programmes need to ensure support is accessible to all survivors.

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One of my key arguments is that policymakers must balance a survivor-focussed approach to redress policy with attention to the state’s interests. Ignoring the interests of those states that provide redress programmes would not only be foolish, it would be wrong. As a matter of policy, states cannot underwrite redress programmes with blank cheques. Although Chapter 13 argues that credible efforts at full compensation lie within their fiscal capacities, the costs should be predictable and feasible. Obvious techniques include better modelling of application numbers, capping budgets, recruiting funds from NGOs, imposing closing dates, and moving late applications into lower-paying successor programmes. Because previous chapters discuss those techniques, here I turn to some potential cost savings that flow from flexible programme design.

The previous section sketches how programmes can offer survivors different pathways to redress. A flexible approach enables survivors to control how they participate in redress. But it could also be a technique for limiting administrative costs. Recall that Canada spent around CDN$1,327 to administer each of the CEP’s 105,530 applications as compared to the IAP’s average of more than CDN$25,334. The total cost differences are also stark. The CEP paid out CDN$1.622 billion to survivors: the IAP paid CDN$3.2 billion. Offering two pathways enabled most applicants to seek a CEP payment only. The same point applies to Queensland Redress’s 7,168 Level 1 payments, which more than doubled its 3,481 Level 2 payments. Had those programmes been unitary, like Ireland’s RIRB or New Zealand’s HCP, potentially many more survivors would have sought higher paying redress through more costly procedures. Offering multiple pathways is not only good for survivors; it may save billions of dollars.

That point, however, must be balanced against the procedural costs of running a more complex programme. The complexity of Canada’s IAP helps explain why it was the costliest exemplar to administer. By comparison, the RIRB’s unitary programme spent €69 million on administrative costs (excluding legal fees) for 16,649 applicants – an average of €4,144 – less than a third of the IAP’s average.Footnote ³ The RIRB’s per claim administrative cost remains, however, more than triple that of the CEP. Policymakers must balance the flexibility of a more complex programme with the associated administrative costs, nevertheless, the exemplars suggest that many survivors will accept limited redress, eschewing the difficulties associated with more comprehensive pathways. Therefore, by offering a low-cost pathway, programmes may realise procedural cost savings while reducing the total cost of redress payments.

Survivors should not be asked to accept less money in exchange for settling quickly. But if they can choose which of their claims to redress, some may prefer to collect lower payments through faster processes. It is important that survivors retain the option of pursuing all their meritorious claims, even those that require in-depth investigations. Not only do their claims merit redress, the process has intrinsic value. Still, it is expedient if a more accessible pathway supplants, for those who so choose, the pursuit of more comprehensive redress, thereby helping make redress more efficient. Redress must be survivor-focussed. But it also must respect the interests and capabilities of states. Policymakers should recognise and secure any benefits for the taxpaying citizenry that flow from providing survivors with options.

Survivors who pursue pathways that circumscribe the injuries eligible for redress should be left free to pursue unredressed claims through other redress pathways or through the courts.Footnote ⁴ Lower-paying pathways redress a limited ambit of eligible injuries: they should not impose arbitrary limits on compensation. No one should be asked to waive unredressed claims in exchange for a token payment. Only once an injury has been fully redressed might survivors be asked to sign a waiver releasing the state (or other organisations) from further claims. If redress is limited, then survivors need to have fair and accessible processes for pursuing outstanding claims through the courts. Making litigation accessible may require an independent review of the challenges involved in litigating non-recent abuse. That review could look at a range of issues including statutes of limitations, the burden of evidence, and the use of model litigant strategies for states. The review could then support the necessary legislative change, a process that has already happened in several Australian states. If litigating becomes easier, that will put competitive pressure on a redress programme to remain attractive to survivors.

14.3 Holism

This study focuses on monetary redress. That narrow scope is an analytic technique, not a recommendation. Chapter 1 observes that monetary redress operates alongside other initiatives, including ‘public inquiries and criminal trials; political apologies and memorials; medical and psychological care and counselling; and access to personal records and help with family reconnections’. Some of those initiatives are necessary to monetary redress, for example, a programme that respects the well-being of survivors must provide counselling and Chapter 12 argues for a holistic range of support for survivors throughout the redress process.

A holistic remedial strategy should also involve non-monetary initiatives. The VBB principles advocate a range of rehabilitative, restitutive, satisfaction measures, to be provided alongside compensation. For example, survivor memorials can be an important means of publicly recognising survivors – a form of satisfaction. In Perth, for example, there are two public memorials for survivors. One is located on the waterfront and recognises the experience of child migrants, the other, a memorial for the Forgotten Australians, is downtown and located in a civic square that includes the state library, museum, and art gallery. Reflecting the importance of these memorials, I was told that child migrants often take visitors to see ‘their’ memorial (AU Interview 6). I can personally confirm the claim. Other survivors are

I suspect that remedial measures have interactive effects. Perth’s memorials reinforce the public recognition of survivors in ways that continued to resonate after Redress WA ended. It is likely that a larger context shapes how monetary redress operates and how it is understood, both of which, in turn, affect survivors’ redress experiences. As a result, a full appraisal of monetary redress must encompass a broad range of initiatives. I do not pretend to offer that here, instead, I will address some points supporting the value of a holistic remedial strategy.

A holistic approach to redress responds to the complexity of the survivors’ injurious experiences. For many, being taken into care resulted from societal injustices involving colonialism, race, class, gender, and wealth. Survivors continue to experience overlapping disadvantages that stem from enduring societal injustices. Their complex histories of disadvantage and marginality demand maximally holistic responses. The alienating effects of societal injustice can mean that survivors do not identify as full members of the polity (Nobles Reference Nobles, Mihai and Thaler2014: 19, 131) and survivors who do not see themselves as respected members of the polity may forego the potential participatory benefits of redress.

When monetary redress is part of a holistic set of mutually supportive initiatives, it becomes more accessible. This can work in different ways, but to return to an important theme, I think local community agencies can help survivors access redress by providing services that directly support survivors in ways that help them both access redress and see themselves as valued citizens. Having a range of initiatives can optimise the value of redress for survivors (Graycar and Wangmann Reference Graycar and Wangmann2007: 17). Holism can also reduce the risk that survivors see redress as a cynical ploy to buy their silence.

Looking more broadly, holism demands practical consistency across related policy domains. Records access offers an easy example. Too often, freedom of information laws have restricted survivors’ access to records (AU Interview 1; IR Interview 11). In part, this is because those laws clearly entail legal obligations on records-holders not to release private information concerning third parties (Murray Reference Murray2014: 500–1; AU Interview 16). However, when survivors are given records with hundreds of redacted pages, that can impede their redress claims. The risk is not merely hypothetical. In a 2016 New Zealand case, Judge Rebecca Ellis compared some redacted documents with the unredacted versions. Her judgement states, ‘that some of the material redacted is plainly relevant to the [survivor’s] claim’ (N v. The Attorney General 2016). In other words, the state’s policy on redaction was inconsistent with its redress commitments.

The need for holistic consistency also emerges in expressive terms. A good redress programme acknowledges the survivors’ injurious experiences and commits the state to their remedy. If the state is to be consistent, the expressive aspects of other state actions should resonate with that remedial undertaking. A good example of damaging inconsistency occurred in Canada. Canada’s TRC ran in parallel with the monetary redress programmes. But the Canadian government’s relations with the TRC were often inconsistent with the expressive work of monetary redress. These inconsistencies boiled into public awareness when the TRC sued Canada over the state’s refusal to provide documents from the state archives on the residential schools (Fontaine v. Canada (Attorney General) 2013). The government’s argument that it was not legally obliged to provide those records was wrong and at odds with the TRC’s purpose. The inconsistency of a government working to obstruct the TRC’s investigation while simultaneously working to redress the injuries that the TRC was trying to investigate undermined the IAP’s credibility (Sterritt Reference Sterritt2014). Similarly, I was told that Australian governments’ positive statements about their responsibilities towards survivors were not matched by the necessary funding. As the McClellan Commission increased pressure on services, one interviewee, who managed a local agency, observed they were not getting adequate resources. She worried that she was, in effect, ‘administer[ing] a system that is really a front for a failed redress scheme’ (AU Interview 17).

Redress programmes consistently confront tensions between the public and the private and between the personal and impersonal. While a politician may be personally committed to redress, the impersonal state is a complex set of pluralistic institutions that is rarely amenable to rapid change. In every aspect of redress, when public policy seeks to remedy private injuries gaps emerge between what people need and what the impersonal state provides. Flexible and holistic remedies that include, but are not restricted to, monetary redress are, I think, a potential strategy for working through those problems. But it will take time and evidence to see what best practice demands. Moreover, participants may need to learn what they can reasonably expect and what state redress cannot deliver.

14.4 In Closing

Monetary redress can be an important measure in overcoming embedded structural injustice. My optimism is not shared by observers who see redress programmes as a governmentality technique channelling larger political issues of race, class, gender, wealth, and colonial injustice into the narrow framework of redressing abuse. Because survivors’ injurious experiences are interwoven with enduring societal injustices, the ameliorative capacity of any monetary redress programme will be limited. But asking a monetary redress programme to remedy all of a nation’s ills would impose unreasonable standards for success. After all, no other policy has accomplished that feat. Because monetary redress is not a panacea, it must be accompanied by other progressive measures of structural change (Green Reference Green2016: 123).

A broad-reaching holistic remedial strategy could require profound changes in a polity’s constitutional imagination. Where systemically injurious care practices were (are) a colonial technique, policymakers need holistic redress initiatives that enable decolonialisation. Monetary redress programmes can play a part in those larger developments. By working in partnership with Indigenous peoples, redress programmes can enact, in small but important ways, emancipatory political forms. Whatever the survivors’ ethnicity, redress programmes can enact the equitable and lawful treatment that every citizen claims as of right in a manner salient to each. But no monetary redress programme can deliver a just society on its own. If states and other constitutionally significant actors do not take consistent remedial steps, they risk submerging the value of redress in the effects of larger societal injustices.

There is reason for optimism. Like any other form of politics, redress politics is productive and creative. Redress programmes do not settle claims, they do not ‘turn the page’ of history, and they do not reconcile a polity. Instead, redress spurs further political demands. Some of these demands come from survivors. Others will come from groups with similar experiences of injustice. No political society marked by histories of profound injustice will ever see an end to remedial politics. Yet a redress programme must operate within defined boundaries – responding to certain injuries within a certain time period using a specific set of procedures. This has an important consequence. If the scope of atrocity always exceeds any attempt at repair, remedial justice will always be partial and problematic. That fact will always provide material for critics. But I wish to close this book with a brief reflection on whether redress might play a role, perhaps only a small one, in building better polities.

As a matter of theory, redress politics can, potentially, contribute to realising justice and, therefore, be a means of improving society. But I cannot say any exemplar programme was an overall benefit either to survivors generally or their broader societies. All redress programmes confront serious challenges and, while I offer some suggestions, it is uncertain what best practice requires. State redress is a relatively new domain of policy and analysis is underdeveloped. This study’s modest contribution is limited by its short time frame and small-N approach. The existing literature on redress programmes offers little longitudinal data or analysis of interactive effects. In short, there is not much evidence for analysis.

At points, this book touches on the relationships between monetary redress and the larger field of transitional justice. This field offers some insights into the design of better redress programmes and their prospects for success. Matching my argument, the transitional justice literature indicates that better outcomes happen when polities deploy a holistic plurality of initiatives (Olsen, Payne, and Reiter Reference Olsen, Payne and Reiter2010). Redress (or ‘reparations’, to use the field’s preferred term) must be part of a larger suite of measures. And the process takes time. Anja Mihr argues that a generation must pass before transitional justice can consolidate democratisation (Mihr Reference Mihr2018: 402). In the cases that Mihr studies (Germany, Spain, and Turkey), transitional justice accompanied or involved constitutional changes, often driven by broad-based participatory civic engagement, including survivor advocates. The process takes time and, while no outcome is certain, the general sense is that best practice needs local nuance and participation.

As a field of study, transitional justice coalesced during the late 1980s and early 1990s (Arthur Reference Arthur2009). The field has since undergone a series of developmental phases (Balasco Reference Balasco2013). The first wave was marked by advocacy and by scholarly attempts to delimitate the field and to provide causal explanations of how transitional justice evolved. The second wave took a critical turn, interrogating conceptual assumptions and critiquing transitional justice’s failings, omissions, and contradictions. Only in the third wave, beginning around ten years ago, did scholars begin to compile and analyse empirical data systemically. By that point, analysts could draw upon decades of data collected across many different polities to see what processes worked, for whom, and in what combinations.Footnote ⁵

By comparison, redress scholarship and practice are both very new. Although small-scale redress programmes began in the 1990s, the large programmes addressed in this study all took place after the millennium. If one were to compare the study of redress policy with the trajectory of transitional justice studies, it appears to me that redress scholarship is in the midst of the second wave. That means, as this study has shown, states are spending billions of dollars to redress abuse in care without good data on the benefits these programmes can deliver and the evils they inflict. This study contributes to filling part of that knowledge gap. But there is much more to be done, and it will take time and robust data collection before the third wave of systemic empirical analysis can really begin.