Updated
June 19, 2020 05:04:12
As survivors try to reconcile a history of traumatic institutional abuse, a circling pack of law firms seeks to profit from their pain.
Dallas Phillips bellows beneath the walls of New Norcia.
“They should level this place. We should wipe it off the map.”
“What these mutts did It was a bad place for kids. It damaged so many.”
The surreal pink and orange hues of New Norcia shoot up out of the sparse Western Australian landscape, just shy of two hours north of Perth.
A self-styled quirky stop-off for tourists, it is home to Australia’s only monastic town.
New Norcia is also home to one of Australia’s worst records of alleged historical abuse of any institution in the country.
The Benedictine monks and nuns of New Norcia inflicted untold pain on young boys and girls both Aboriginal and non-Indigenous between at least the 1950s and 1970s.
WARNING: This article contains stories of abuse that some readers may find upsetting.
“It’s very hard for people to talk about what happened in New Norcia,” says Noongar-Yued elder Ben Taylor Cuiermara.
“It hurts terribly.”
“They destroyed a lot of lives,” says proud Ballardong-Noongar woman Dallas Phillips.
“But I feel empowered to speak out and if we all chip away, just chip, chip, chip away, we’ll get there.”
A new trauma emerges
In the quiet of a small rented home a few hours further north in regional WA, one Aboriginal abuse survivor is not quite ready to let others in his life know what happened to him.
He’s asked that he just be called Uncle Justin.
He doesn’t talk much about what happened when he was a child at New Norcia, but his memory of the place is confronting and clear.
“They had a cellar down there. We could hear one young bloke there.
“One of the monks was in there, could have been a couple, I dunno.
“They took him in there and we heard him screaming like hell.
“What they were doing to him, poor fella, I don’t know.”
“They used to make me and my first cousin go into a room, have a talk with us and give us a bottle of wine.
“We didn’t know nothing later on after that but I knew he was messing with us. Doing things to us.
“You wouldn’t call them monks. I reckon you’d call them rapists.”
All across Australia, survivors like Uncle Justin are still coming to terms with the trauma of years of abuse.
At the same time, many of them are seeking some form of acknowledgement of that trauma through Australia’s National Redress Scheme.
A key recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, the scheme was launched in July, 2018.
It is designed for people like Uncle Justin, who were sexually abused as children in institutions, to be given redress via a payment of up to $150,000.
The scheme also offers access to counselling and the option of a direct response from the offending institution.
The scheme is far from perfect it’s been widely criticised for being too slow, too complicated and not offering payments that reflect the suffering inflicted by institutions (the Department of Social Services says the current average payment to survivors is just under $82,000).
Nonetheless, the application process is supposed to be simple or at least, easier and less painful than pursuing a claim against an institution through the courts.
It’s something survivors can do themselves, but the government has also funded a small army of free lawyers and other support services to help people submit their applications.
The number of survivors eligible for the scheme is estimated at around 60,000, so the total amount administered through the scheme could run up into the billions.
With that amount of money on the table, law firms have begun to circle.
‘$5,000 I don’t know why they need that’
When Uncle Justin heard about the National Redress Scheme in 2018, he drove the few hundred kilometres south to the beloved Aboriginal advocacy centre Daydawn in Perth to learn more.
The front desk at Daydawn pointed Uncle Justin over to a lawyer set up inside the centre, who said they could help him with his application to the scheme.
Thinking it was a free service, Uncle Justin gave over his details and later signed forms he was sent by the lawyer.
“I just thought, you know, probably it was the procedure we [had to go] through,” he says.
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The lawyer turned out to be from a Perth-based personal injury law firm called CLP Legal.
Those forms Uncle Justin signed now tied him to having to pay a cut of his redress payment to the law firm estimated at up to $5,500. He says he didn’t fully understand what he was signing, or that there were any free services available.
“Five thousand dollars I don’t know why they need that.”
‘We don’t see a lot of money’
Adeline Parfitt scrunches up her face when she recalls her dealings with CLP Legal.
A survivor of abuse, her claim is not against New Norcia but against the Western Australian government.
Ms Parfitt also signed on to a cost agreement with CLP Legal after attending the Daydawn Advocacy Centre.
Like Uncle Justin, she was now on the hook for paying up to an estimated $5,500 for help with her redress application.
“I thought it was a non-for-profit. I thought we didn’t have to pay, but apparently we do,” says Ms Parfitt.
“The money that people get for redress is meant to help us. When they take $5,000, to us that’s a lot of money. We don’t see a lot of money.”
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Ms Parfitt says her experience with the law firm was frustrating, slow-moving and “unprofessional”.
She was particularly taken aback and became distressed when asked to tell the story of her abuse over the phone.
After almost a year of phone calls following-up on the progress of her application, Ms Parfitt’s daughter suggested she call the National Redress Scheme directly.
She was heartbroken to find no application had been submitted on her behalf. As far as the scheme was concerned, they had never even heard of her.
“I think these lawyers have got a whiff of this money so they’ve gone into this Daydawn agency and signed up all these people,” she says.
“I’ve got a family member that’s with them, she lives on the streets. There’s a lot of them who are on the streets [in Perth] that have signed up with CLP for this.”
Ms Parfitt thinks the law firm has exploited survivors in the Aboriginal community.
“A lot of these people are living rough, a lot of them aren’t well educated, so I don’t think a lot of them understand what they’re signing.”
Neither Adeline Parfitt nor Uncle Justin ended up having their redress applications submitted by CLP Legal. They have since had their claims lodged by lawyers from the government-funded legal service Knowmore, who are working to get them out of their obligations to the law firm.
CLP Legal would not respond to specific questions from ABC Investigations, citing, “ethical and confidentiality obligations”.
Daydawn Advocacy Centre did not respond to written questions, but Betsy Buchanan, who runs the centre, said Daydawn had, “a longstanding relationship of unprecedented success” with CLP Legal.
“I deeply resent the idea that we’ve exploited people, not given them a choice,” Dr Buchanan told ABC Investigations.
“If people had a complaint like that, they can come to me personally or put it in writing to the director of Daydawn and they can send a copy to CLP. There are remedies for that.”
Since researching this story, ABC Investigations understands survivors who attend Daydawn are now referred to the free service Knowmore.
A national issue
It’s not against the law to sign up survivors and charge them for helping with their redress applications.
Of the 7,073 applications lodged so far to the National Redress Scheme, more than 300 were submitted with the assistance of private law firms.
Lawyers from the free service Knowmore have become increasingly concerned about the behaviour of some law firms operating in the redress space.
“It’s a national issue,” says Knowmore’s executive officer Warren Strange.
“We are seeing a significant number of survivors that are locked into cost agreements with private law firms, charging them quite significant legal fees for work that they could have done without cost, either by our legal service or a number of support services around the country.”
Mr Strange says while most law firms operate in an ethical manner, he’s worried that some survivors, many of whom may have had interrupted educations, don’t know what they’re being encouraged to sign.
Knowmore is not alone in sounding the alarm.
“I’s probably one of the things we discuss most often at team meetings how disgusted we are about this,” says Silvia Galdamez, a former lawyer who now heads up Beyond Brave, a government-funded off-shoot of child sexual abuse support service Bravehearts.
“We see it day in, day out. For us it’s a huge issue.”
Ms Galdamez says the behaviour of some lawyers who are not trauma-informed specialists risks re-traumatising survivors during the redress process.
None of the survivors ABC Investigations has spoken to were aware of free government-funded support services prior to signing cost agreements.
In that vacuum, private law firms have pounced.
$16,500 for one application
Michael Warner is a survivor of abuse from Turana, a now-notorious state reception centre in inner-Melbourne.
He was on Facebook one day in 2018 when he clicked through on a post about the redress scheme and was taken to the URL nationalredressscheme.com.au.
The domain is actually owned by a private NSW law firm called Kelso Lawyers. Ironically, the firm’s namesake Peter Kelso is one of the scheme’s most outspoken critics.
Mr Warner signed a cost agreement with the firm and was initially happy in his dealings with them, but over time felt the level of care began to slip.
When a fellow survivor at a local men’s support hub told him he could get help with his redress application for free, Michael went back and reviewed the law firm’s fees.
The cost agreement he signed has a scaled series of charges, meaning if he was awarded the maximum redress payment, which is what his application had sought, he would have to pay Kelso Lawyers $15,000 plus a further $1,500 GST.
“I mean, why as a victim should I pay a solicitor $15,000 when there is a free service for God’s sake?”
“It just doesn’t make sense.”
Mr Warner is now working with Knowmore to try and get out of having to pay the potential $16,500.
Peter Kelso from Kelso Lawyers is unapologetic about the fees his firm charges.
“We have developed a cost agreement, which is outcome-based,” says Mr Kelso, who says he has represented hundreds of abuse survivors in a civil and redress capacity.
“So the bigger amount of money we achieve for the client, the larger fee and the smaller amount we get for them, the smaller amount. I’ve never had anyone complain about that.”
He says it is not in survivors’ best interest to use the government’s free legal service Knowmore and questions whether such a service can even be trusted.
“My philosophy is this: victims deserve the best legal service possible. They don’t deserve free legal services,” says Mr Kelso.
“The cheapest out there is something that the government’s funded. They don’t deserve that. Nobody should trust that service.”
Government warned this would happen
Abuse survivor Warren Yorkshire says he was shocked “a stunned mullet” when an inner-city law firm offered to help with his application to the scheme, in exchange for $10,000.
He didn’t sign anything with the firm, but knows others who did. He thinks survivors don’t understand their options and believes the government needs to wear its share of the blame for the confusion surrounding the scheme.
“I think it’s shocking. These law firms don’t really give a damn, they know you’re going to win so that’s why they put their fee in,” he says.
“I think the government is at fault here by not explaining to people that they have options, when they are offering free advice and free legal service.”
Back in 2018, the government was warned Australia’s redress scheme could be exposed to “legal misconduct and exploitation of vulnerable survivors” by private law firms.
Professor Kathleen Daly and Juliet Davis from Griffith University have studied redress schemes the world over. Based on what they’d seen in schemes in Ireland and Canada, they knew Australia’s would offer up a honeypot too tempting for law firms to resist.
“We were seeing a lot of misconduct or unconscionable behaviour occurring in these two schemes and we really wanted to sound the alarm and let people know that this could happen in Australia as well,” says Juliet Davis.
The two researchers raised their fears in a formal submission in 2018, and remain concerned that law firms operating in the area are not subject to sufficient oversight.
“The National Redress Scheme doesn’t contain any specific rules for lawyers working within the scheme and state regulators are operating in silos, so there’s no umbrella organisation which can identify and address legal misconduct nationally. At the moment, there’s not really the safeguards in place to ensure that lawyers and other people working in this space are held to account,” says Ms Davis.
“To create a slightly dodgy analogy yes, there are some cowboys, but there’s not really a sheriff in town either.”
The two researchers would like to see a uniform code introduced that all lawyers working with redress clients are held accountable to.
Both Knowmore and Beyond Brave had formally raised their concerns about private law firms operating in the redress space with the senate Joint Select Committee responsible for oversight on the implementation of the National Redress Scheme.
They are calling for standards on law firms working with survivors’ redress claims, as well as a limit to the amount that can be charged to help with applications.
The Chair of the Joint Select Committee responsible for oversight of the scheme’s implementation, Liberal Senator Dean Smith, told ABC Investigations the committee would seriously consider any changes that would help prevent survivors being exploited.
“The idea that some law firms might be able to act in an unethical [manner] because no one is watching it that is totally unreasonable,” says Senator Smith.
“There should be a formal requirement for lawyers to disclose to a survivor that there is opportunity for free access to legal services.
“There should [also] be a requirement on the provider of legal services to be made by people that are suitably qualified so as to not inadvertently re-trigger some of those traumatic experiences and memories for survivors.”
A Second Anniversary Review of the National Redress Scheme begins in July.
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Topics:child-abuse,
community-and-society,
royal-commissions,
law-crime-and-justice,
indigenous-aboriginal-and-torres-strait-islander,
australia,
perth-6000,
nsw
First posted
June 19, 2020 04:42:16
Contact Jeremy Story Carter
