Thursday, 26 October 2017
Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017; Second Reading
That this bill be now read a second time.
This bill will establish legislation for a Commonwealth Redress Scheme, which we'll call simply 'the scheme', for survivors of institutional child sexual abuse. With this bill the government introduces a best-practice, simple and supportive redress scheme.
Children placed in the trust of our society's institutions were some of the most vulnerable members in our community and the fact that must be confronted is that many children were sexually abused by the very people charged with their care and protection. No child should ever experience what we now know occurred. That is why it is time for all institutions and all governments to take responsibility for what has happened.
The establishment of the scheme is an acknowledgement by the Commonwealth government that sexual abuse suffered by children in institutional settings; operated by a number of governments state, territory and federal and by a number of non-government institutions was wrong, a shocking betrayal of trust; and simply should never have happened.
The Redress Scheme in this bill is designed to recognise the suffering survivors have experienced, to unequivocally accept that these events occurred and to ensure that each institution that has been responsible for abuse in their institutional settings must take responsibility for that abuse.
The Commonwealth government acknowledged the need to provide public recognition of the suffering experienced by survivors and investigate the inadequate responses provided by institutions through the establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse. The royal commission's Redress and civil litigation report recommended the establishment of a national redress scheme for survivors of institutional child sexual abuse. All governments and individual institutions were directed to make amends and take responsibility for the shameful acts inflicted on children while in their care. Critically, the royal commission determined that the payment of redress must align with institutional responsibility for the harms that were suffered and so redress should occur on what has become known as a responsible entity basis.
The royal commission identified more than 4,000 institutions where sexual abuse took place. More than 2,000 survivors reported sexual abuse in a Catholic institution, 500 survivors reported abuse in Anglican institutions and more than 250 reported abuse in institutions run by the Salvation Army. In total, the royal commission estimated that almost 40,000 survivors were sexually abused in institutions run by non-government bodies such as those run by churches and charities and 20,000 survivors were sexually abused in state and territory government run institutions. More than 6,500 people who gave private evidence said more than one person had abused them.
These estimates are, very sadly, merely a window into the scale and breadth of historical institutional child sexual abuse in Australia. It is vitally important to survivors that responsible governments and responsible institutions participate in this scheme and provide redress on a nationally consistent basis for survivors.
The royal commission has heard evidence of thousands of Australians who when vulnerable children were subject to the most horrendous sexual abuse in institutions throughout Australia. The psychological, physical and emotional injuries inflicted on these children were inevitably severe and are capable of long-lasting destabilising effects on survivors for the rest of their lives. In spite of the severity of the damage done, many survivors have not sought or have not obtained any kind of acknowledgement or redress for the harm suffered.
There is evidence that some survivors take years, even decades, to disclose their experience of child sexual abuse. It may also take years or decades for survivors to identify a connection between the abuse they suffered as a child and its impact on them as an adult. By the time many survivors feel ready to seek acknowledgment and compensation from a responsible institution, the natural passage of time is an enemy to traditional mechanisms operating effectively to hear and find the existence of common-law damages, and in many instances this traditional compensatory process is simply not feasible for survivors or may simply no longer be available.
The long-term impacts of child sexual abuse can leave many survivors much less able to confront institutions directly and they remain at great risk of retraumatisation. For some, the legality of traditional compensatory processes 'triggers' the memories to an extent that abuse becomes relived.
The sexual abuse we know was inflicted on children by the very institutions that were charged with their care and protection means that the acts, and the often inadequate responses of both primarily responsible institutions and governments, were shameful. This is why redress is so badly needed.
The establishment of a Commonwealth Redress Scheme demonstrates critical national leadership by acknowledging the wrongs of the past and providing a just response to survivors. It is also an important step towards healing and ensuring governments and institutions take the appropriate steps to safeguard against these heinous, criminal acts being repeated in the future. This bill responds to the royal commission's redress recommendations and the Commonwealth government's commitment to establish the foundation for a nationally consistent Redress Scheme.
All responsible institutions and each state and territory and the Commonwealth government should be ashamed of what occurred on their watch and I urge all of them to join with the Commonwealth's best-practice approach to delivering redress that is set out in this legislation; to survivors that redress must be given in as fair and timely a manner as possible. The Commonwealth Redress Scheme will create a consistent approach, based on the essential and critical principle that 'the responsible entity pays'. If an institution bears real responsibility for the harm, that institution must rightly pay the costs of providing redress for that harm. Matching responsibility with redress is the critical condition for creating a better Australia where these types of outrages are far less likely to occur. No institution should expect another to pay for its often shameful conduct.
Detailed negotiations with states and non-government institutions are continuing in order to ensure maximum coverage for survivors across Australia. By establishing this Redress Scheme, the Commonwealth is ensuring that its own survivors will be able to access redress from 1 July 2018.
The scheme will provide survivors with three elements of redress, comprising:
1. a monetary payment of up to $150,000 as a tangible means of recognising the wrong that survivors have suffered;
2. access to counselling or psychological services of their choice throughout their lives; and
3. a direct personal response from the institutions responsible, where that is sought by the survivor.
The scheme will adopt a survivor focused and trauma informed approach; access to redress will be simple and support will be available throughout the application and acceptance process.
Survivors will not pay income tax on monetary payments they receive through the scheme and payments will not be directly garnished to recover any outstanding debts that may exist to the Commonwealth. Neither will payments be considered income for the purposes of determining social security and veterans' entitlement payments.
The scheme is not intended to supplant or detract from the enduring and important criminal law or common law avenues to seek justice. It is intended, however, to provide a survivor with a means to access a sense of and process in justice, through monetary redress and through restorative supports. It is intended in this sense to be faster, simpler and less distressing for survivors and provide governments and institutions with the means to deliver justice to their survivors.
In developing this legislation, we consulted with, and listened to, a broad range of stakeholders on the development of the scheme and this bill. The bill aligns with the views of the independent advisory council on redress (including many survivor groups), jurisdictions and non-government institutions.
Overview of the scheme
Under this bill, redress will be available for survivors of child sexual abuse that occurred in Commonwealth institutional settings. It will also provide redress to survivors abused in the Australian Capital Territory and the Northern Territory when these jurisdictions opt in or if they are ultimately compelled to do so by the Commonwealth.
The scheme will be established in 2018 and will run for 10 years, with all applications to be finalised by 30 June 2028, however the scheme can be extended if there is a cogent need to do so.
From March 2018, a dedicated telephone helpline and website will be available to provide information on a preliminary basis about the scheme. These services will also connect survivors with specialist community based support services including legal, financial and other social supports.
From 1 July 2018, the scheme will commence accepting applications from survivors of institutional child sexual abuse for which the Commonwealth and other participating governments and institutions are responsible.
For a person to be eligible for redress they must have suffered sexual abuse where a participating institution is responsible and where it occurred when the person was a child before the scheme's commencement on 1 July 2018.
While a person must have suffered sexual abuse to be eligible, the scheme will also acknowledge related non-sexual abuse, for example physical abuse. Sexual abuse, of course, rarely occurs in isolation and it is important to deal with the whole of the survivor's experience as it pertains to the requisite sexual abuse.
A person may only make one application for redress, so if they have suffered more than one instance of abuse, applications should disclose all instances in their application. This means that once a decision has been made on an application, a person will not be able to make additional applications to the scheme. This, again, is to ensure the speed and simplicity of the scheme and that the totality of the applicant's experience can be properly considered.
While there are no applicant age restrictions, applicants must be living. Families will not be able to lodge an application on behalf of a deceased relative. However, if a survivor dies after lodging a complete and eligible application, their estate will receive the redress payment due to the survivor.
For an application to the scheme to be approved and an offer of redress to be made, the operator must make a determination that there is a reasonable likelihood that the survivor is eligible. Reasonable likelihood is a lower evidentiary threshold than a balance of probabilities test which is generally applied in civil legal processes.
To be entitled to redress, a person must accept their offer and, in doing so, release the participating institution deemed responsible from civil liability in relation to abuse within the scope of the scheme.
The amount of the monetary payment will be determined by looking carefully and closely at all of the circumstances of each person and applying consistent criteria. The maximum amount of redress payable under the scheme will be $150,000.
Access to counselling or psychological services
Eligible survivors will be provided with access to counselling or psychological services in addition to the assistance already provided by the Commonwealth through Medicare. Consistent with the royal commission's recommendations, the scheme will provide survivors with flexibility to access the counselling or psychological services of their own choice. This will empower survivors to make decisions about their own counselling needs and will support them to maintain existing therapeutic relationships.
Direct personal response
Survivors will also have the opportunity to receive a direct personal response from the participating institutions responsible for the abuse. A direct personal response is a statement of acknowledgement, regret and apology and will be delivered to survivors by the relevant participating institution after the survivor has accepted the offer of redress.
The response may be delivered through a range of mechanisms including face-to-face meetings with an appropriate representative of the institution or through written engagement with the survivor. The participating institution will be required to make quite clear what they are willing to offer by way of a direct personal response to survivors and what that process will involve.
The direct personal response will give the survivor the chance to be directly acknowledged and to tell their personal story of what they experienced and the way in which it has impacted upon them. Through this process, a participating institution can develop a shared understanding, a critical understanding, of what happened to the survivor and the harm that was caused, which will enable the institution to consider what else it may need to do to prevent such abuses and harm occurring in the future.
Deed of release
Before survivors receive redress, the survivor will accept their offer by signing an acceptance document in the form of a deed of release. Accepting an offer of redress has the effect of releasing the responsible participating institutions from any further liability for instances of sexual abuse and related non-sexual abuse of the person the subject of the redress payment.
This means that the survivor by a transparent agreement will, upon accepting the offer of redress, undertake not to bring or continue any civil claim against the responsible participating institution or institutions in relation to the specific abuse.
Ensuring the availability of redress for survivors is dependent on the extent to which states and territory governments and non-government institutions decide to join the scheme. The deed of release is perhaps the most important feature in terms of encouraging those critical institutions to opt in to the scheme and thus it is a mechanism by which we can ensure greater coverage for survivors as without it institutions may be exposed to paying compensation through civil litigation in addition to providing redress under the scheme and so might decline to opt in to the scheme.
The release will never preclude any criminal liabilities of the institution or alleged perpetrator, nor provide release in relation to any other abuse outside the scope of the scheme.
A survivor may have previously signed a deed of release for money received in relation to institutional child sexual abuse. Importantly, the rules of the scheme will contain, as a foundational principle for entry, that institutions will need to waive reliance on a prior deed of release signed by a survivor.
Any relevant prior payments made by participating institutions in relation to the abuse within the scope of the scheme will be subtracted from the redress payment. In essence, survivors who have received a previous payment related to circumstances the subject of the present redress application would receive an effective 'top-up' to the previously received payment up to the total redress amount determined under the scheme. If a survivor's monetary payment is reduced to nil as a result of past redress payments, the assurance is that they will still be entitled to access counselling or psychological services or receive the direct personal response available under the scheme.
Responsibility for abuse
The scheme is based on the critical principle of 'responsible entity pays', which was a key recommendation of the royal commission. A participating responsible institution will be expected to pay for redress for their survivors, along with a proportionate share of the administrative costs. This is the best way to ensure fairness and justice for survivors and prevent the prevalence of the conditions of immorality derived from irresponsibility that gave rise to these terrible events in the first instance.
For a participating institution to be responsible, the abuse must have occurred in circumstances where the institution was primarily or equally responsible for the abuser having contact with the person who is the survivor. In making this determination, the following criteria will be considered:
A participating institution is primarily responsible for an alleged abuser having contact with a survivor if the institution is solely, substantially or primarily responsible for that contact, even if there are other institutions that, in a minor or tangential way, might also have responsibility for that contact. In such cases, the institution will be required to pay the full amount of redress, that is the institution will pay the full 100 per cent share of redress even if some other institution might have been responsible in a minor or tangential way.
A participating institution will be considered equally responsible where they are equally responsible with one or more other institutions for a child having contact with an alleged abuser. In these cases the responsibility for funding redress will be shared equally and each responsible institution will be required to pay an equal 50 per cent share of redress.
This structure is designed as the best means of achieving a simple, clear, non-legal scheme which avoids all the complexities associated with exhaustive allocations of divided responsibility that causes great cost and time to be expended in civil litigation. The Commonwealth Redress Scheme rules will further define the extent of institutional responsibility as cases are assessed under the scheme. This will allow the scheme to deal with any unanticipated issues that might arise over the 10-year life of the scheme.
With respect to the issue of funder of last resort, in cases where a government is considered equally responsible, they—the government—may be determined to be the funder of last resort. This will occur when the other equally responsible participating non-government institution:
Where a funder of last resort arrangement is determined to exist, the government that shares the responsibility will pay the full amount of redress by paying the equal share of redress the participating non-government institution would have otherwise paid.
The scheme will provide for the development of agreed categories of cases where responsible governments will share responsibility with an institution and will be a potential funder of last resort. If a case falls into an agreed category, the relevant government will automatically be determined to be equally responsible and therefore liable for redress.
Where a case does not fall into a specified category, other factors will be considered, including: who was responsible for the care of the child; the employment of the abuser; and the placement of the child in the institution at the time of the abuse such that an obligation on the institution could be inferred.
With respect to the issue of shared financial obligation, in cases where there are multiple instances of child sexual abuse which occurred across multiple institutions, the scheme operator will decide which was the responsible institution in each case. Each responsible institution will contribute a share of the redress for the survivor. The redress contribution will be apportioned in accordance with the severity of each instance of abuse.
With respect to information use, disclosure and mandatory reporting, the bill includes provisions for the use and disclosure of information under the scheme. This will ensure all aspects of the scheme's ability to share and gather information is underpinned by law. Information sharing protocols have been balanced against the need for the scheme to have appropriate transparency and flexibility, with survivors' rights to privacy.
Information received by the scheme will be confidential and will not be able to be further disclosed or used for an unspecified purpose. Participating institutions will also be restricted in the ways that they can use protected information provided to them from the scheme operator. Misuse or unauthorised disclosure of scheme information may constitute an offence under legislation and would carry with it a penalty of imprisonment for two years or 120 penalty units, or both.
In keeping with mandatory reporting obligations, referrals to law enforcement authorities will not require the consent of the survivor or participating institutions and 'blind' reporting will occur (that is, where the individual survivor is de-identified).
With respect to independent decision makers, the Secretary of the Department of Social Services is the formal operator of the scheme. The bill will allow the scheme's operator to delegate decision-making responsibilities to appropriately qualified, independent assessors, who will be known as independent decision-makers. These independent decision-makers will be supported in their decision-making by recommendations from the dedicated redress recommendation team that will be located within the Department of Human Services.
With respect to the rules, the bill will include a provision to make legislative instruments known as the Commonwealth Redress Scheme Rules. The rules will set out additional requirements necessary for the implementation of the scheme and may cover matters such as: eligibility requirements or exemptions; determining the amount of payments for an eligible person under the scheme; and the form and manner of the direct personal response.
Before closing, there have been innumerable individuals who have contributed to the construction and the advice in preparing the principles for this bill, including those who sat on our independent advisory council. I'd like to personally thank them for their enormous assistance, input and forbearance through a difficult process. I'd like also to make some special mention of the member for Swan, who himself as a child endured some of the worst that these institutions had to offer. His insight, advice and assistance to me as a minister and his ability to act as a conduit with the survivors for whom this bill purely exists has been something for which I personally will be indebted to him for a long time.
In summary, the Commonwealth is showing national leadership by introducing a redress scheme that is flexible and as non-legal and as informal as the circumstances will allow. The scheme paves the way for all governments and institutions across Australia to take responsibility and provide long-awaited redress to survivors who suffered sexual abuse as children while in their care and protection. It is of course now time to acknowledge these shameful wrongs and finally provide survivors with the recognition they deserve. For these and other reasons, I commend the bill to the House.