Before the bills become law, the Senate Community Affairs Legislation Committee inquired into the bills and consulted with the public. Shine Lawyers made a submission to the Senate Committee urging the Government to implement a redress scheme without further delay. We also made suggestions for improvements to the proposed Redress Scheme, some of which are acknowledged and supported by the Senate Committee.
The Senate Committee report has 11 recommendations including that the bills be passed into law.
The proposed redress scheme will provide survivors of institutional child sexual abuse with:
- A monetary payment of up to $150,000
- Access to counselling and psychological services; and
- A direct personal response from the responsible institution.
Key elements of the scheme include:
- Survivors will be able to choose whether to accept one, two or all three of the components of redress.
- Eligibility for redress will be assessed on whether there was a reasonable likelihood the person suffered institutional sexual abuse as a child, and which occurred before the cut-off date of 1 July 2018.
- Non-sexual abuse in connection with the child sexual abuse will be taken into consideration as an aggravating factor.
- The amount of the redress payment will depend on the level of sexual abuse and related non-sexual abuse that a survivor suffered.
- Applications for redress are limited to one application per survivor. Survivors will be able to include multiple episodes of sexual abuse and related nonsexual abuse suffered in multiple institutions in the one application.
- A person who accepts an offer of redress must release the institution from civil liability for the abuse and related non-sexual abuse.
- Applicants must be an Australian citizen or Australian permanent resident, although the rules may provide for other persons to apply, such as former child migrants who no longer reside in Australia or children abused in Australian institutional settings outside Australia.
- Applicants will have access to legal advice services.
- Reviews of decisions made under the Redress Scheme are limited to internal review.
- Funding arrangements are based on the principle that the responsible entity pays.
- Any prior payments made by a participating institution in relation to the abuse suffered by a survivor that is within the scope of this Redress Scheme, will be deducted from the amount payable by that participating institution.
- The amount of the redress payment cannot be used to recover debts due to the Commonwealth and will not be subject to income tax.
- Redress Scheme Rules will set out additional requirements, and are proposed to include a bar on eligibility for persons convicted of sex offences, or
- sentenced to prison terms of five years or more for crimes such as serious drug, homicide or fraud offences.
Recommendations of the Senate Committee:
An Opt in Scheme
The scheme is voluntary for non-government institutions and State Governments to participate in. By making participation voluntary, culpable institutions may refuse to participate. The Committee outlined options available to Government to persuade non-government institutions to opt in. These include making funding for legal advice for civil litigation options for survivors available where the responsible institution has not elected to participate in the redress scheme. This would be an incentive for non-government institutions to participate in redress as an alternative to civil litigation. Another option is for governments to consider an institutions participation in the redress scheme when deciding whether an organisation is a childsafe organisation, particularly for those with historical child sexual abuse allegations. We support these proposals.
Consistent with the Senate Human Rights Committee, Shine was concerned that the proposed Redress Scheme will be government by Rules but that those Rules were not included in the bills or made publically available. There is evidence that the lack of clarity around the potential rules is one of the factors inhibiting some states and other institutions from opting in. The Senate Committee decided however that putting important parts of the Redress Scheme in Rules was important to the flexibility of the scheme and ensuring the Redress Scheme met its goals. The Committee says that the Department of Social Services will ‘communicate early and openly with survivors and their advocates’ about the Rules. We await this communication.
Standard of Proof
The test of ‘reasonable likelihood’ will be the standard applied to assess applications for redress. ‘reasonable likelihood’ means that the chance of an event occurring or not occurring is real – not fanciful or remote. Some institutions argued that a higher standard of proof should apply because insurance companies will not allow the institutions to recoup their losses if the threshold is as low as ‘reasonable likelihood’. This concern was dismissed as irrelevant in the context of the overarching goal which is to provide a survivor-focused redress scheme to survivors of institutional child sexual abuse.
Definition of sexual abuse
In the Redress Bill, sexual abuse of a child is defined as including:
…any act which exposes the person to, or involves the person in, sexual processes beyond the person's understanding or contrary to accepted community standards (e.g. exposing a child to pornography).
Shine raised examples of abuse which we consider to be sexual in nature but which may or may not meet this definition. Individualised advice about whether abuse is sexual in nature should be obtained before making an application in order to avoid possible re-traumatisation.
The Government announced that people with certain criminal convictions would be excluded from Redress however we noticed that this exclusion was not included in the bill or accompanying material. The Department of Social Services admit that they plan to exclude those convicted of any sexual offence or another serious crime, such as a serious drug, homicide or fraud offence for which they received a custodial sentence of five or more years’ even though the exclusion is not in the bills. The exclusion will be in the Rules which have still not been made publically available. The Department says excluding people with certain criminal convictions protects the integrity of the scheme, an assertion Shine strongly opposed. Excluding these survivors effectively punishes people twice for offences they have already been punished for and allows a culpable institution to avoid being held to account for the sexual abuse of children in their care.
In February 2018, the Minister for Social Services announced this issue had not yet been fully resolved so there is some hope it will be rectified.
Acceptance of offers of redress
The Royal Commission recommended that applicants have one year to decide whether to accept an offer of redress. The bills allow a successful applicant only 90 days to consider an offer. The Committee acknowledged concerns that 90 days was not long enough and indicated the Department would address this before the scheme begins.
The Senate Committee acknowledgement submissions that the maximum payment of $150,000 is lower than the Royal Commission recommended however did not recommend it be altered.
The amount a survivor will be offered as a reparation payment will be determined under an assessment matrix. The Department does not intend to make the assessment matrix publically available. The Senate Committee accepted the Government’s excuse that keeping the matrix confidential would prevent fraudulent claims however supported the plan that a high-level version of the matrix being made public.
Prior payments made for abuse will be taken into account and deducted from any maximum payment amount offered to a survivor. The Senate Committee recommended that the amount as a payment for abuse in prior claims does not include medical care of counselling services and should not include legal costs. Shine calls on the Government to amend the bills to give effect to the Senate Committee recommendation.
The proposals about whether counselling would be provided for a survivor’s lifetime or just for the 10 years the redress scheme operates have changed and has not yet been finally decided. The Senate Committee recommended that counselling should be available for life however it may not necessarily be delivered under the guide of the Redress Scheme.
The provision of good quality and independent legal advice will be provided free of charge to survivors at four key stages of the application process:
- Prior to application so survivors understand eligibility requirements and the application process of the Scheme;
- During the completion of an application
- After a survivor has received an offer of redress and elects to seen an internal review; and
- On the effect of signing the acceptance document, which contains the release of future civil liability for participating responsible institutions and its impact on the prospect of future litigation.
This advice is provided through our partner organisation knowmore. Survivors may choose to engage private lawyers and can contact Shine on firstname.lastname@example.org.
Deed of release
A person who accepts an offer of redress will be required to release responsible participating institutions from liability for the sexual abuse (and related non-sexual abuse) for which redress is being provided. However survivors who signed deeds of release when offered low payments from institutions in the past will have those deeds waived by participating institutions to allow these survivors to access a top up payment through redress.
Right of review
An applicant for redress may request an internal review of a decision they are not satisfied with. If the applicant is not satisfied with the decision of an internal review officer, there are no further appeal rights.
What happens next?
The proposed scheme is still set to commence on 1 July 2018 however the bills must first be passed into law.
The Commonwealth does not have the power to create a truly national scheme and can only create a scheme covering the Commonwealth, territories and non-government institutions within territories. New South wales and Victorian governments have announced that they will join the scheme. We await further information about the next steps Government will take to urge all states and non-government institutions to opt in to ensure access to justice for all survivors. We await the Government’s response to the Senate Committee’s Report.
Who is Shine Lawyers' Abuse Law team?
Shine Lawyers' Abuse Law team includes some of the firm’s most experienced special counsel, solicitors and support staff, including law clerks and paralegals. The team includes: