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by Alexis Goodstone
The New South Wales Victims Compensation Tribunal recently awarded $35,000 to Mrs Valerie Linow, an Aboriginal woman from New South Wales and a member of the stolen generations.[1] It is the first time a member of the stolen generations has been awarded compensation for harm arising from their treatment while under the care of the State. The compensation was awarded for psychological harm caused by sexual assaults that occurred while Mrs Linow was a domestic worker on the rural property where the Aborigines Welfare Board placed her when she was 14 years old.
Mrs Linow's application included a statement by her describing the assaults, copies of police documents that revealed the early stages of a police investigation into the assaults (obtained from her Aborigines Welfare Board file), and a psychiatric report detailing the psychological effects of the assaults. A Compensation Assessor dismissed her initial application. However, an appeal to the Victims Compensation Tribunal was successful. Mrs Linow’s application faced numerous hurdles, including overcoming time limitations and proving the alleged assaults, psychiatric injury and causation.
The alleged assaults which were the subject of the application occurred in 1958. Section 26(1) of the Victims Support and Rehabilitation Act 1996 (NSW) (the ‘Act’) provides that applications for compensation must be lodged within two years of the relevant act of violence occurring. However, s 26(2) of the Act entitles the Director of the Tribunal to accept applications despite the fact that they have been lodged out of time, and s 26(3)(b) establishes a presumption in favour of giving leave in cases involving sexual assault.
In determining whether to give leave, the Act provides that regard should be had to certain factors, including whether the act of violence was reported to a police officer within a reasonable time. Mrs Linow complained to the police only after the alleged perpetrator called them in response to Mrs Linow's attempts to escape the abuse by running away. Mrs Linow was found and then attempted, but was ultimately unable, to report the incidents in full. This failure to communicate the extent of the allegations was due to, amongst other things, her lack of knowledge of the language to describe sexual activity.
In Mrs Linow’s case, it was submitted that leave should be given to apply out of time because:
Based on these submissions, leave to apply out of time was granted.
Apart from Mrs Linow’s statement and the psychiatrist’s report, which in part attested to the veracity of her claim, the application also included copies of pages retrieved from Mrs Linow’s Aborigines Welfare Board file. These pages contained correspondence between the Undersecretary of the Aborigines Welfare Board and the Commissioner for Police.
A letter from the Undersecretary to the police stated that Mrs Linow had reported that the alleged perpetrator had thrashed her with a wire and exposed himself to her on a number of occasions, and referred the matter for investigation. A later letter from the police to the Undersecretary stated that ‘despite extensive inquiries conducted by members of this Department into the above subject matter, insufficient evidence has been elicited to warrant any proceedings being instituted ...’
On the basis of this corroborating evidence, Mrs Linow’s statement and the psychiatric report, the Tribunal Assessor accepted on the balance of probabilities ‘that the applicant was subjected to a series of indecent and sexual assaults by the alleged offender.’
The psychiatric report submitted with Mrs Linow’s application stated that she suffered from dysthymic disorder, alcoholism (in remission) and mixed anxiety disorder. It noted her numerous suicide attempts and admissions to psychiatric hospitals during the 1970s. It stated that she continues to suffer symptoms of intense anxiety, depression, insomnia, as well as an intense sense of guilt and shame about the assaults and abhorrence of talking about them, accompanied by physiological symptoms of anxiety and vivid flashbacks. The Tribunal Assessor accepted that Mrs Linow suffered from psychiatric disorders.
Mrs Linow’s claim was initially denied because the Assessor was not satisfied ‘that the injury was caused as a result of the sexual assaults’. The decision stated that had Mrs Linow had the opportunity to be reared in a loving family, she would not have suffered from the psychiatric disorders. In other words, the claim failed on the basis that the effects of her being removed from her family and growing up in the Cootamundra Girls’ Home were seen by the assessor to be the cause of her extreme psychological harm, whereas the subsequent sexual assaults were not considered to have caused her harm.
In the appeal from the decision of the Assessor to the Victims Compensation Tribunal, it was argued that the Assessor erred in holding that the injury must have been ‘the’ result of the violent conduct. Section 14 (1)(a) of the Act states, relevantly (emphasis added):
The statutory compensation for which a primary victim of an act of violence is eligible comprises:
(a) compensation for compensable injuries received by the victim as a direct result of the act of violence, ...
Section 7(1) of the Act states, relevantly (emphasis added):
A primary victim of an act of violence is a person who receives a compensable injury, or dies, as a direct result of that act.
On appeal, it was submitted that the statutory provisions require proof that the compensable injury claimed is ‘a direct result’ (not ‘the direct result’ as stated by the Assessor) of the particular act of violence, and therefore, the Assessor applied an incorrect test to Mrs Linow’s claim.
This is supported by the provisions in the Act relating to the aggravation, acceleration, exacerbation or deterioration of an existing condition. Schedule 1, clause 4 of the Act provides that if an act of violence results in a compensable injury because of the aggravation, acceleration, exacerbation or deterioration of an existing condition, the standard amount of compensation for the injury is to be reduced by the proportionate amount that the Tribunal or Assessor considers is attributable to the existing condition.
In Victims Compensation Fund Corporation v Ainsworth & Anor,[2] the New South Wales Court of Appeal found that while the aggravation of an existing condition does not of itself necessarily mean that there is a compensable injury:
...there will be circumstances where a worsening of the symptoms and disability by virtue of an act of violence would lead to an affirmative finding. The Act speaks of ‘a’ direct result, not ‘the’ direct result.[3]
The Victims Compensation Tribunal accepted these arguments and allowed the appeal, granting Mrs Linow $35,000, the maximum amount of compensation payable in her case being $50,000.
Since 1995, the Public Interest Advocacy Centre (‘PIAC’) has been advocating for the establishment of a stolen generations reparations tribunal to provide reparations (including compensation) to people affected by forcible removal policies. In the absence of such a tribunal Mrs Linow sought to have her harm recognised by the Victims Compensation Tribunal.
As Mrs Linow’s legal representative, PIAC treated the claim as a test case to establish an alternative process (to the courts) for members of the stolen generations seeking compensation for harm that occurred to them while in State care. PIAC believes that the success of Mrs Linow’s case may give some hope to other members of the stolen generations who suffered similar harm. The Human Rights and Equal Opportunity Commission estimated in its Bringing them home report[4] that one in six witnesses who appeared before its National Inquiry in 1995-1996 had been subjected to sexual or physical abuse.
To succeed, however, applicants will most likely need the type of evidence that was available to Mrs Linow to prove physical or sexual assault (that is, some kind of corroborative evidence), as well as psychiatric evidence to prove harm and good reason for applying out of time. Also, similar schemes in other states may have different statutory provisions and may take a different approach.
Alexis Goodstone is a solicitor employed by the Public Interest Advocacy Centre. Alexis represented Mrs Linow in her application before the Victims Compensation Tribunal.
[1] This decision of the New South Wales Victims Compensation Tribunal was not officially reported.
[3] Ibid [30].
[4] Human Rights and Equal Opportunity Commission, Bringing them home: Report of the National Inquiry into the separation of Aboriginal and Torres Strait Islander children from their families (1997).
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2003/6.html