2.2.1 What does 'reasonable likelihood' mean?

Summary

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended in its 2015 report, Redress and Civil Litigation, that reasonable likelihood should be the standard of proof for determining eligibility for redress. For the purposes of the Scheme, reasonable likelihood means the chance of the person being eligible is real, and is not fanciful or remote and is more than merely plausible.

The Operator must consider whether it is reasonably likely that a person experienced sexual abuse as a child, and that a participating institution is responsible for an alleged abuser/s having contact with them as a child.

In considering whether there was reasonable likelihood, the Operator must take into account to all of the information available. This includes:

  • the information contained in the application form (or any supplementary information provided by a person by way of statutory declaration)
  • any documentation a person provided in support of their application
  • the information provided by the relevant participating institution/s in response to a Request for Information (RFI) from the Operator, including any supporting documentation provided
  • any other information available including from Scheme holdings (for example where the Scheme has built up a picture of relevant information about the same institution during the relevant period, or the same abuser).

As stated above, the Operator is able to obtain information from participating institutions by requesting information to help determine reasonable likelihood and responsibility of participating institutions. However, where a participating institution does not hold a record (i.e. historical information) this will not preclude the Operator from determining a person's entitlement to redress.

Factors for establishing 'reasonable likelihood'

As part of the application process, a person is able to provide information that may assist in determining reasonable likelihood. For the purposes of the Scheme, reasonable likelihood means the chance of the person being eligible for redress is real, is not fanciful or remote and is more than merely plausible. Certain factors will inform the decision about whether or not the chance that the child sexual abuse alleged by the person (and the institutional circumstances surrounding the allegations) occurred is real, and not fanciful or remote and is more than merely plausible.

These factors may include, but are not limited to:

  • the person states the abuse occurred
  • a participating institution/s agrees they should be treated as responsible for the person's abuse
  • a report or complaint of the abuse occurred
  • the person has received a prior payment for the abuse from the institution, and
  • people with similar claims against an abuser or institution have been found eligible for redress.

In determining reasonable likelihood, the Operator must also consider that the Scheme was established in recognition that some people:

  • have never disclosed their abuse and disclosure to the Scheme may be the first time they have done so
  • would be unable to establish their presence at the institution at the relevant time (the institution's records may have been destroyed, record keeping practices may have been poor, or the survivor may have attended institutional events where no attendance record would have been taken), and
  • do not have corroborating evidence of the abuse they suffered.

Act reference: NRSAct Part 2.2 Division 2 Entitlement to redress under the scheme

Policy reference: Redress Guide 2.3 When is a person eligible?

Last reviewed: 13 August 2018