National Redress Scheme Senate Review

The bill establishing the National Redress Scheme (Institutional Child Sexual Abuse Bill 2017) has been reviewed by a Senate Committee which has recommended the passage of the Bill with some suggested changes.

Purpose of the Bill

To provide an alternative mechanism, outside the civil law framework, in which survivors of institutional child sexual abuse may seek redress. This means that these survivors, whom may have been road blocked from seeking redress within the strict parameters of the law, may now seek relief under the National Redress Scheme (“the Scheme”). The Scheme is intended to operate for 10 years.

Redress Scheme Elements

 

Eligibility

 

Clause 16 outlines the eligibility criteria for redress as the following:

 

  1. a) The person was sexually abused;

 

  1. b) The sexual abuse is within the scope of the scheme (that is, occurred when the person was a child, inside or outside Australia, before the start of the scheme, a participating institution was responsible); and

 

  1. c) The person is an Australian citizen or permanent resident at the time the person applies for redress.

 

Limitations of the Scheme’s eligibility criteria

 

There are concerns that the scheme offers redress to survivors of sexual abuse only. Physical, psychological, cultural abuse or neglect are considered only as “aggravating factors” to the primary sexual abuse. This strict definition of abuse diminishes the deep and often life long impacts of non-sexual abuse on survivors.

 

The Scheme precludes survivors who have committed a sexual offence or another serious crime (drug, homicide or fraud) from applying (clause 16(3)).  This exclusionary provision has been greatly contested by submitters. The conflict lies within the Government wanting to manage community expectations around pay outs being awarded to convicted persons and enabling institutions to avoid liability entirely with regard to this particular class of survivor.

 

Eligibility for redress is contested and the committee has put forth recommendations 4 and 9 (see below) to broaden the Scheme’s eligibility criteria and reflect the broader intention of the bill to extend the margins of relief.

 

Scheme Participation

 

The Scheme has a participant “opt-in” structure. That is, state governments and institutions must voluntarily elect to participate in the scheme before a person may be able to pursue redress.

 

Limitations of the “opt-in” nature of the Scheme

 

There is no incentive or time pressure for institutions and state governments to commence participation early.

 

In addition, there is particular concern with regard to the piecemeal structure of the Church that would mean that every single entity, rather than a single representative body, would have to voluntarily sign up to the Scheme. This would inevitably be a tedious process that would promise frustrating inconsistent sign-up success.

 

A survivor is limited to making a single application for redress. The “opt in” nature of the Scheme, that allows state government and institutions up to 2 years to elect to participate, could mean that the survivor could be put on hold for 2 years, waiting to see whether the remaining institution signs up to the Scheme before lodging their application.

 

The Legislation Committee tabled recommendation 1 (below) with regard to modifying the opt-in nature of the Scheme.

 

Forms of Redress and Monetary Compensation

 

Subclause 18 (1) of the Scheme outlines the three elements of redress:

 

  1. a) Payment of up to $150,000;

 

  1. b) Access to counselling; and

 

  1. c) A personal response from the institution to the survivor

 

Limitations of the Forms of Redress

 

The cap of $150,000 is substantially less that recommendation proposed by the Royal Commission, which stands at $200,000 with an average pay out of $ 65,000. The Scheme does not propose a minimum pay out amount.

 

The assessment matrix of calculating the amount of compensation has yet to be released.

 

Standard of Proof

 

Clause 15 of the bill outlines the standard of proof as “a reasonable likelihood that the person is eligible for redress under the scheme”. “Reasonable likelihood” is defined as “the chance of an event occurring or not occurring which is real- not fanciful or remote”. This threshold is lower than the civil standard of proof being “on the balance of probabilities” to execute the bill’s intention to distinguish the scheme from civil law processes and minimizing survivor trauma through expediting the decision-making process.

 

Deeds of Release

 

A person who accepts an offer is required to release the institution(s) from further liability. Despite the forming of a deed of release upon acceptance, the Minister in his comments, stated that past deeds of release will be waived by participating institutions.

 

Legislation Committees’ Recommendations to Amend the Bill

 

The Committee put forth eleven recommendations to amend the tabled bill. The committee’s recommendations, that highlight some of the limitations of the bill, are as follows:

 

  1. The two-year limitation of institutions opting -into the scheme be abolished as a means to encourage on-going institutional participation;

 

  1. The Department ensures the flow of communication between themselves and the survivors’ representative groups with regard to the evolving rules of the Redress Scheme;

 

  1. The Department actively engage with survivors’ representative groups, the media, and the community at large, particularly when communicating redress amounts which should focus on the average redress payment amount rather than the maximum;

 

  1. The Department factor in the long-term impact of non-sexual abuse on survivors, including the needs of Indigenous survivors;

 

  1. The Government to consider setting up avenues of ongoing counselling;

 

  1. The Redress Support service be extended to the survivor’s affected family members;

 

  1. The minimum time frames regarding the provision of documents or answers to an offer of redress should be adjusted to account for any survivor living in a remote community, encounter communication barriers and those survivors who are experiencing abuse related trauma or mental health episodes;

 

  1. The time restriction of survivors accepting the redress offer be extended from 3 months to 6 months, including a provision to apply for a further time extension;

 

  1. The Government should acknowledge the Redress Scheme as a mechanism for survivor rehabilitation and as such, re consider its stance against the exclusion of serious criminal offenders which creates the consequence of institutions avoiding liability to this class of survivors;

 

  1. The annual report to Parliament regarding the performance and operation of the Scheme, should include data concerning the number of applications received, average pay out amount and average processing time to facilitate the ongoing operational improvement; and

 

  1. The committee recommends the bill to be passed.

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