The Australian Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse report Getting the National Redress Scheme right: An overdue step towards justice comments
The National Redress Scheme was a primary outcome of the comprehensive, five-year-long Royal Commission into Institutional Responses to Child Sexual Abuse. The establishment of the scheme tells survivors of institutional child sexual abuse that, as a nation, we believe their stories of abuse, that we failed to protect them, and that we will now do everything in our power to try to provide some degree of justice to survivors. The Prime Minister, the Hon Scott Morrison MP, has delivered a National Apology to survivors, but the redress scheme is our opportunity for our words to be translated into measurable outcomes. The National Redress Scheme is too important to not get right.
The report has found that, as it currently operates, the redress scheme is at serious risk of not delivering on its objective of providing justice to survivors. The National Redress Scheme commenced on 1 July 2018 and therefore has been operating for nine months. During this period it has received more than 3000 applications, a mere five per cent of the estimated 60 000 likely eligible participants. As at 28 February 2019, 88 redress payments had been made with a further 22 offers made that were being considered by the applicant.
There is still much about the practical application of certain provisions of the redress scheme that is unclear. This is due, at least in part, to the short period in which the scheme has been operating, combined with the small number of redress payments made. As the scheme matures, and as more survivors seek to access the three redress components, it is likely that some issues only briefly flagged in this report will emerge into sharp focus, while other issues not even considered here will come to light. As these new problems emerge, it is critical that there is ongoing oversight of the redress scheme to allow problems to be properly considered and appropriately addressed. The committee has found that the statutory reviews will not provide adequate oversight and that a committee, similar to this committee, should be established throughout the life of the redress scheme.
However, the committee's oversight of the scheme during its early stages of operation provides an opportunity to make changes to key legislative and policy concerns. The committee is conscious of the significant barriers to implementing any substantive legislative and policy amendments. In addition, the committee is mindful of the need for the scheme to provide certainty for survivors. These barriers and concerns have been balanced with the need to get the scheme right. Significant changes to the scheme cannot wait—they must be made now.
The report makes 29 wide-ranging recommendations. In implementing these recommendations it is essential that the following core principles are adhered to:
- The redress scheme and any amendments to the scheme must continue to be survivor-focused and trauma-informed.
- Amendments to the scheme must proceed on the principle of 'do no further harm' to the survivor.
- Amendments must be subject to proper consultation with key survivor groups and feedback from consultations should be appropriately incorporated.
Intrinsic to a survivor's access to redress are the institutions responsible for the sexual abuse and their decision to join the scheme. While all states and territories are now participating in the scheme, there are no mechanisms to force private institutions to join the scheme. Yet survivors will not be able to obtain redress if the institution responsible for their abuse refuses to join the scheme. This is both unfair and unacceptable. Plainly, more needs to be done to pressure non-participating institutions to join the scheme, and provide survivors with access to redress.
From 27 February 2019, the redress website published the names of institutions that were named in the Royal Commission but have not joined the scheme. Publicly naming these institutions is a start. But it is not, by itself, sufficient. Institutions that refuse to recognise their role in the abuses that occurred and to accept responsibility for their actions should be subject to clear penalties, which could include the suspension of tax concessions and the withdrawal of their charitable status.
While the participation of relevant institutions is crucial, in cases where the institution no longer exists, access to the scheme, and ultimately a step towards justice, can only be achieved if all jurisdictions fill this gap. The committee has found that the funder of last resort provisions are too narrow and that Commonwealth, state and territory governments need to fill the gap where the institution responsible for the abuse is a defunct institution and the defunct institution would not have fallen under the operation of another existing institution.
Central to the redress scheme are the survivors. Wherever possible, the scheme should be an inclusive scheme that does not exclude groups of survivors. Currently, certain groups of survivors are either not eligible for redress or are subject to potentially arbitrary decisions when seeking permission to apply for redress. The government has suggested that some of these exclusions are necessary to protect the scheme from particular risks, such as fraud, while others are necessary to ensure the efficient administration of the scheme. These are not sufficient justifications to unilaterally exclude large groups of survivors, who would otherwise have a legitimate claim, from accessing redress.
Instead, it is up to the redress scheme to find a mechanism, whether through the development of clear guidelines, practices or strategies, to mitigate these risks and overcome any administrative challenges. The committee makes recommendations in relation to the following groups of survivors to allow them to fairly access the scheme:
- Survivors who are not Australian citizens or permanent residents.
- Survivors who are currently in gaol.
- Survivors with serious criminal convictions.
Fundamental to the success of the redress scheme and the assessment as to whether the objects of the scheme are being achieved is whether the key components of redress align with the recommendations of the Royal Commission. The report has found that the redress scheme falls short of many of the key recommendations of the Royal Commission, including in the following areas:
- In relation to the monetary component:
- an assessment framework that does not reasonably recognise the impact of abuse for each individual; • a maximum redress payment of $150 000—which is $50 000 short of the maximum payment recommended by the Royal Commission; and
- a failure to set a minimum payment of $10 000.
- In relation to the counselling and psychological care component:
- an assessment framework that unreasonably provides that institutions pay an insufficient amount for the counselling and psychological care of survivors, and which inappropriately places a monetary amount on the care provided based on the kind of abuse suffered rather than the survivor's need for counselling and psychological care;
- concerns relating to the counselling and psychological care not being available for the life of the survivor, nor on an episodic basis; and
- concerns relating to the quality and flexibility of care.
- In relation to the direct personal response component:
- concerns that the responsible institution will be leading the process for the provision of a direct personal response; and
- concerns relating to the lack of oversight.
Remedying the disparities between the redress scheme and the recommendations of the Royal Commission will require substantive legislative change or changes to key policy. All amendments will require agreement from state and territory governments. These are significant barriers, but they should not be considered insurmountable, nor should they be the reason to not push for legislative amendments when required. The committee has concluded that without legislative change the scheme may never be properly accepted by survivors as a fair scheme and a real alternative to litigation. The report has also found that redress services—community-based support, financial support services and legal support services—must be adequately funded to ensure that they meet the needs of survivors when required, and regardless of the survivors' location or other barriers that might exist.
Survivors will have difficult decisions to make about the viability of applying for redress. The process of applying for redress will, for many, be a traumatic experience. It will require survivors to recount stories of the abuse they experienced and detail the impact of that abuse on their life. Equally, those who decide to receive a direct personal response from the responsible institution will also need adequate support. It is essential that survivors are supported throughout the entire process. This report highlights the need for the redress scheme to be transparent and accountable. More information needs to be made publicly available. Governments and departments have a responsibility to ensure that processes are visible and understood by survivors. The committee makes recommendations aimed at ensuring a more transparent scheme.
Additionally, it appears that unnecessary restrictions have been placed on the review of determinations made about an application. When these restrictions are considered in combination, they result in unreasonable outcomes for survivors in what should be a beneficial scheme. The committee makes recommendations to address these unfair outcomes.
The committee recognises that no scheme can remove the trauma felt by victims or adequately acknowledge or correct the wrongs inflicted on survivors. The committee's recommendations are aimed at ensuring that, as far as it is able to, the National Redress Scheme delivers on its objective of recognising and alleviating the impact of past institutional child sexual abuse, and providing justice for survivors. The committee looks forward to Commonwealth, state and territory governments meeting this call.The Committee makes the following recommendations
Recommendation 1 The committee recommends that any amendment to the scheme proceed on the principle of 'do no further harm' to the survivor, be subject to proper consultation with key survivor groups, and appropriately incorporate feedback from those consultations.
Recommendation 2 The committee recommends that Commonwealth, state, and territory governments place and maintain pressure on all relevant institutions to join the redress scheme as soon as practicable.
Recommendation 3 Noting that such a mechanism should only be applied in the context of the National Redress Scheme, the committee recommends that the government consider mechanisms and their efficacy, including those available under the Charities Act 2013, to penalise all relevant institutions that fail to join the scheme, including the suspension of all tax concessions for, and for the suspension of charitable status of, any institution that:
- could reasonably be expected to participate in the scheme, including because the institution was named in the Royal Commission into Institutional Responses to Child Sexual Abuse, or an application for redress names the institution;
- has had reasonable opportunity to join the redress scheme; and
- has not been declared as a participating institution in the National Redress Scheme for Institutional Child Sexual Abuse Declaration 2018.
Recommendation 4 The committee recommends that Commonwealth, state and territory governments expand the circumstances in which the funder of last resort provision applies so that the relevant participating jurisdiction acts as the funder of last resort where:
- the institution responsible for the abuse is now a defunct institution; and
- the defunct institution would not have fallen under the operations of an existing institution.
Recommendation 5 The committee recommends that, in regards to the National Redress Scheme, that Commonwealth, state and territory governments revisit the practice of indexing prior payments.
Recommendation 6 The committee recommends that the Parliament consider referring an inquiry to a parliamentary committee into the adequacy of state and territory responses for survivors of institutional child non-sexual abuse, including consideration of the redress models that could be available to these survivors.
Recommendation 7 The committee recommends that Commonwealth, state and territory governments give consideration to allowing all non-citizens and non-permanent residents access to redress provided that they meet all other eligibility criteria. Particular regard should be given to allowing the following groups to be eligible for redress:
- former child migrants who are non-citizens and non-permanent residents;
- non-citizens and non-permanent residents currently living in Australia; and
- former Australian citizens and permanent residents.
Recommendation 8 The committee recommends that Commonwealth, state and territory governments agree to and implement amendments that would allow all survivors who are currently in gaol or who have been sentenced to imprisonment for five years or longer to apply for and receive redress, unless:
- the Operator decides in relation to a particular survivor that providing redress to the survivor would bring the National Redress Scheme into disrepute or adversely affect public confidence in the scheme; and
- the decision of the Operator is based on publicly available guidelines that set a high threshold for bringing the scheme into disrepute or adversely affecting public confidence in the scheme.
Recommendation 9 The committee recommends that Commonwealth, state and territory governments work together to develop and implement a new Assessment Framework which more closely reflects the assessment matrix recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse and which acknowledges that the type or severity of abuse does not determine the impact of sexual abuse for the individual.
Recommendation 10 If a new Assessment Framework is implemented to replace the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, the committee makes the following recommendations:
- That applicants who were assessed using the current framework are re-assessed using the new framework.
- When re-determining the redress payment under the new framework, offers of redress must not be lower than the original offer.
Recommendation 11 The committee recommends that the government clearly communicates to the public, to the maximum extent allowed under current provisions, how applications for redress are considered and the grounds on which determinations are made.
Recommendation 12 If the current National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 is maintained, then the committee recommends that any acknowledgment of 'extreme circumstances' in the Assessment Framework be applicable to all applicants, not only those who experienced penetrative abuse.
Recommendation 13 If the current National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 is maintained, then the committee recommends that the government publicly clarify key terms in the Assessment Framework.
Recommendation 14 The committee recommends that the government clearly and openly explain how the maximum payments came to be set at $150 000 rather than $200 000, and the rationale for this decision.
Recommendation 15 In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments agree to increase the maximum redress payment from $150 000 to $200 000.
Recommendation 16 In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments implement a minimum payment of $10 000 for the monetary component of redress, noting that in practice some offers may be lower than $10 000 after relevant prior payments to the survivor by the responsible institution are considered, or after calculating a non-participating institution's share of the costs.
Recommendation 17 In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments agree to and implement amendments that would ensure that each survivor receives an adequate amount of counselling and psychological services over the course of their life, noting that the amounts currently provided for, pursuant to section 6 of the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, are wholly inadequate.
Recommendation 18 The committee recommends that the Commonwealth government clarify, in the case of declared providers of counselling and psychological care, what services are provided to eligible survivors of the redress scheme that are distinct from or in addition to services already available to Australian citizens.
Recommendation 19 In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments consider mechanisms to ensure that survivors have life-long access to counselling and psychological care that is available on an episodic basis, is flexible and is trauma-informed.
Recommendation 20 The committee recommends that Commonwealth, state and territory governments agree to amend an institution's reporting obligations under section 17 of the National Redress Scheme for Institutional Child Sexual Abuse Direct Personal Response Framework 2018 to require institutions to provide to the Operator the following information:
- the number of complaints made to the institution in relation to direct personal responses;
- the nature of these complaints; and
- how these complaints were resolved.
Recommendation 21 The committee recommends that the government ensure that redress support services are appropriately funded so that they are available to all survivors, regardless of the survivor's location, cultural or other barriers.
Recommendation 22 Noting that the Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse committed to providing survivors with access to financial support services, the committee recommends that Commonwealth, state and territory governments explore mechanisms to ensure that survivors have access to free and appropriate financial counselling services, when required.
Recommendation 23 The committee recommends that the government ensures a clear process to allow survivors to indicate on the redress application form whether their application should be considered a priority.
Recommendation 24 The committee recommends that the government ensures that people are regularly informed of the progress of their application.
Recommendation 25 The committee recommends that the government publish, on the National Redress Scheme website, the average processing time for applications and other key data concerning the redress scheme, and that this data be regularly updated to ensure they are reasonably current. The average processing time should be from either: the date the application was lodged to the date an offer was made; or the date all relevant information was received for an application to the date an offer was made.
Recommendation 26 The committee recommends that Commonwealth, state and territory governments agree to and implement amendments necessary to allow applicants to provide additional information in support of their review application, up to the point of the redress payment being made.
Recommendation 27 The committee recommends that Commonwealth, state and territory governments agree to and implement amendments necessary to ensure that a review does not result in an applicant receiving a lower redress amount than their original offer.
Recommendation 28 The committee recommends that the government closely monitor the timeliness of internal review determinations.
Recommendation 29 The committee recommends that the new Parliament consider the establishment of a parliamentary committee, similar to this committee, to oversee the National Redress Scheme throughout the life of the scheme.
