3.2.1 What does 'reasonable likelihood' mean?
The Royal Commission into Institutional Responses to Child Sexual Abuse recommended in its 2015 Redress and Civil Litigation report, 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 meets each of the Scheme's eligibility requirements, including that it is reasonably likely that a person experienced sexual abuse as a child, and that a participating institution is responsible for bringing an alleged abuser/s into contact with them.
In considering whether it is reasonably likely that the person is eligible, the Operator must take into account to all of the information available. This includes:
- the information contained in the application form
- any documentation a person provides in support of their application, for example, written testimony to past schemes or inquiries, including the Royal Commission into Institutional Responses to Child Sexual Abuse
- the information provided by the relevant participating institution/s in response to a Request for Information (RFI) from the Operator, including any supporting documentation
- 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 eligibility 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 is eligible for redress.
Factors for establishing 'reasonable likelihood'
As part of the application process, a person is able to provide information that may assist in determining eligibility. For the purposes of the Scheme, reasonable likelihood that a person is eligible for redress 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 indicates 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 person may have attended institutional events where no attendance record would have been taken), and
- do not have corroborating evidence of the abuse they suffered.