How the WA government tried — and failed — to limit payouts to abuse survivors

analysis How the WA government tried — and failed — to limit payouts to abuse survivors like Dion Barber The Western Australian government was trying to have its cake and eat it too when it walked into the Court of Appeal last week. Child sexual abuse survivor Dion Barber was last year awarded nearly $3 million in compensation for abuse he suffered while in state care in the 1980s and 1990s. The government wanted to argue it was too much, or shouldn’t have been given at all — a case even the most talented politician wouldn't be able to sell to the public. So it tried to have it both ways. It paid Mr Barber's compensation in full and promised it wouldn't take anything back if it was successful in its appeal. But at the same time, the government argued the court had made errors in its decision, including that it should be "immune from liability" because staff acted in good faith. That's significant because, as the government told the court, there are almost 200 people with similar circumstances currently seeking compensation from the state. A successful appeal would have effectively created a double standard — one for Mr Barber, and one for everyone who came after him. Setting a precedent The three Supreme Court justices who heard the government's case — including Chief Justice Peter Quinlan — rejected it on the same day, and this week published their reasons for doing so. In their view, the state government was seeking a decision "to facilitate its negotiation on those many other claims, presumably on a basis more favourable than the outcome in Mr Barber's case". "It would be inappropriate," the judges wrote, for the court to trawl back through the "deeply personal" evidence of the case "solely for the purpose of facilitating the state's resolution of other claims". "If the state wishes to deny another claim, it ought to do so, openly and transparently, in the ordinary course of litigation … rather than on the basis of an advisory opinion from this court." In other words, if the government wants to reduce compensation for a victim-survivor, it needs to say it to their face, and the face of every Western Australian. A question of liability Questioned about the decision on Tuesday, WA Premier Roger Cook said the government acted on "the best legal advice". "We were seeking to clarify elements of the law so that we could provide justice to more people faster," he said. Having a clear reference point on damages, and clear answers on how the courts interpret the law, can narrow the scope of negotiations with those remaining 200 people. But what the premier didn't mention — and what the Court of Appeal highlighted — was that a reference point could also help reduce the amount the state had to pay, or if they would have to pay at all. "If the Christian Brothers went to the Court of Appeal to say that we knowingly sent a child into the hands of a paedophile but we don't want to be found liable or responsible for it, there would be outrage in the parliament, outrage by the government and outrage in the community," Mr Barber's lawyer, Hugo Seymour, told 102.5 ABC Perth last week. "Yet that's exactly what the Department of Communities and the Insurance Commission of WA have done in the name of the state." Shouting match The Insurance Commission is the state government's insurer. A spokesperson declined to answer questions, only saying: "We respect the decision of the Court of Appeal." Shadow Attorney-General Nick Goiran said questions about the commission's conduct went beyond Mr Barber's case. "When it comes to the culture of handling these claims, these very difficult, sensitive claims for victims of sexual abuse, the organisation that needs to change is the Insurance Commission," he said. "And that's where [Treasuer] Rita Saffioti needs to step up and do something about it." Saffioti was asked about the matter during question time and pointed to laws Labor passed which removed a time limit restricting when survivors could bring legal action. "Over $110 million has been paid to over 300 victims in this state," she told parliament, before getting into a shouting match with the opposition. "The attorney-general and I always look at how we can make sure we get the best outcome for Western Australians." 'Further torment' Behind all of those arguments though is Mr Barber, who despite the government's assurances, said the last year had been "further torment". Mr Barber has also yet to receive an apology from the government. "It would be nice to get in one sense, but they're just words," he told 102.5 ABC Perth. "If they're not really meant, then I'd rather see change. Change would be a better apology." How the government chooses to resolve those 200 remaining cases will give an indication of whether this final resolution of Mr Barber's case has prompted the change he hopes for.