Wednesday, 3 February 2021
National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Bill 2020; Second Reading
I rise on behalf of the Labor Party to talk about this extremely important issue, the National Redress Scheme for Institutional Child Sexual Abuse. Labor will be moving a number of very sensible amendments, and I will speak to them in some detail in a moment. But it's true to say that survivors of institutional child sexual abuse wait too long for redress. It's been two years since the national apology to survivors and almost a decade since the announcement of the royal commission by the Gillard government in November 2012. We asked people to bear their souls, to dig up old and painful memories, and they did. We said to them, 'We hear you and we believe you.' We also made a commitment that our words would be backed with action, a commitment to deliver redress.
Survivors have been through so much that it is unimaginable. We had a commitment to deliver redress that was timely, redress that does not retraumatise and redress that does not leave survivors missing out. It's been 31 months since the commencement of the scheme and a fraction of the projected numbers of survivors have received redress, and I will outline that in a moment. There are still too many waiting. Many are ill, many are old and many are dying. In fact, we know that some have passed. Many have missed out altogether.
It is time for us, in this parliament, to get the redress to deliver on its promise to survivors. I seek to make it better with amendments. Labor will introduce a series of amendments to address the longstanding structural and emerging issues with the National Redress Scheme. The scheme that was ultimately rolled out by the government did not fully realise the recommendations of the royal commission, but I hasten to say that I do believe that everyone in this chamber, on both sides of the House, are absolutely committed to redress. There is no question about that.
Labor's amendments will better reflect the reality of survivors and the spirit of the original recommendations. I ask that the government carefully consider these amendments. I am genuine in putting them forward. The minister knows that, and I respect the minister very much. I have met with her to talk through Labor's amendments.
Fixing the National Redress Scheme should not be put in a too-hard basket, and changes do not need to jeopardise any aspects of the scheme. This gives the government—and I stress this—latitude and flexibility to work constructively. We will work constructively with the government to get the scheme working and delivering to survivors, as was originally intended.
The bill makes largely administrative amendments to the operation of the National Redress Scheme, and we welcome those administrative amendments. They include making the process of identifying related groups of institutions more straightforward by simplifying the minister's power to declare related institutions. This will mean large institutions can be referred to by a single name rather than as many legal entities—for example, 'the Anglican church'. The bill clarifies that the amount for which a funder of last resort is liable is based on the number of funders of last resort for a defunct institution—and we saw during the summer break the issues that arose from the Retta Dixon Home in the Northern Territory. The amendments allow senior executives of the department, rather than the minister, to appoint independent decision-makers, allowing for faster appointments. The administrative amendments will protect the names and symbols associated with the National Redress Scheme which are being misused for commercial purposes by some lawyers and organisations, and I say that those organisations and those lawyers need to have a good hard look at themselves. The bill permits a redress payment to be made to a person who's been legally appointed to manage the financial affairs of an applicant for redress—for example, a court appointed guardian. The amendments allow the National Redress Scheme operator to extend the time institutions have to make payments to the scheme—and this is important. The bill authorises the disclosure of protected information about a non-participating institution for the purpose of encouraging the institution to join the scheme. It also corrects typographical errors. Labor very much support these amendments, but we also believe that this is an opportunity for the parliament to address major structural shortcomings in the scheme.
The original royal commission estimated some 65,000 survivors would be eligible for redress. That's a lot of people. As of 15 January 2021, the scheme had received 9,232 applications, had made 5,487 decisions and had finalised 4,060 applications, including 4,620 payments totalling approximately $385.2 million. In June, we know, there were 512 applications on hold, waiting on institutions to join the scheme. These delays cause further trauma to the people who are waiting, and those institutions that still have not signed up should get their skates on. The anxiety many survivors are experiencing at the possibility of missing out altogether due to their age or due to illness is also a further form of trauma.
The slow rate of applications indicates that the scheme is difficult to navigate, inadequate and hard to find. This is certainly what we have been told by people who are trying to navigate the scheme. Survivors have spoken of the difficulty in preparing an application. The Joint Select Committee on Implementation of the National Redress Scheme heard that, for one survivor, it was 17 months to finalise their application. Given their age and the fact that many of these people are extremely vulnerable, that is just too long. The application processing time by the scheme itself is a separate matter. For example, for applications received in the first half of 2019, the Department of Social Services said the average processing time was about eight months. At estimates in October the department advised that the average processing time was actually between 12 and 13 months.
Institutions simply not signing up to the scheme, despite being named in applications for redress, is another major reason survivors are waiting in limbo for their application to be processed. I do acknowledge that prior to Christmas the minister very much named six of those recalcitrant providers or institutions. There is currently no mechanism, other than through civil claims, to compel institutions to join the scheme so that they can be held to account.
Labor supports the changes the government made to charity law last year, as I just indicated, to prevent organisations getting government grants and to remove their charitable tax deductibility status if they refuse to join the scheme within six months of an application being received. However, these changes will not guarantee that people will get access if an institution remains recalcitrant and refuses to join or if it deliberately restructures its affairs and hides assets to avoid its obligations. I find absolutely abhorrent that institutions that have responsibility for past trauma are going about restructuring themselves so that they cannot be accountable to this scheme. I have had concerns raised with me—for the chamber to understand—that Jehovah's Witnesses are doing this at the moment. It is absolutely reprehensible.
In these rare cases we are calling on the government to consider placing a levy on such institutions in order to cover the cost of redress and collect funds from these institutions through the tax system if need be. Survivors should not miss out on the opportunity to get redress because an institution refuses to take responsibility. It might seem unbelievable to us in the chamber that there are such institutions, but I can assure you that there are. I am sure that people in this chamber would be very aware of some of those institutions. I know the member for Lingiari is going to address that issue in his comments.
Many applications are in limbo because institutions that are the subject of applications are now defunct or have no present-day links or entities. In other cases, application for redress cannot be progressed because the institution itself does not have the financial capacity to meet obligations under the scheme. A notable example is the Retta Dixon Home in the Northern Territory, as I said earlier. This is where governments need to step up and provide a guarantee that they will act as funders of last resort. We don't think there are going to be many cases like this, but they do exist and people in the terrible situation of having suffered abuse at the hands of that institution, which is no longer viable, should not miss out on redress. That is why having a funder of last resort is so important.
No-one should miss out on access to the Redress Scheme because the institution responsible for their abuse has folded or simply cannot afford to pay. Labor's amendments will seek to ensure governments act as funders of last resort when people would otherwise miss out because institutions are defunct or do not have the capacity to join the scheme. I know that the government has done some work on this. We don't see that there are hundreds and hundreds of these cases, but these cases certainly exist in the community.
Labor's amendments are calling on the government to establish an advance payment scheme for people who are elderly or ill. This is very important. We've based this amendment on a model that exists in Scotland. There is capacity in that model for government to make an advance payment to those people who are incredibly ill or getting very old. This could be similar to the scheme which is currently used in Scotland, which has been well received by survivors there. So there is a working model that the government could actually look at in relation to an advance payment scheme. It wouldn't cost any more, because the advance payment would be considered in the final calculation of the person's redress. It would have no financial implications, but it would be an incredibly important process to put in place, given the advanced age and illness of some of the people we're talking about. Given the decades and years that many survivors have waited for a chance at redress and justice, it is vital that people do not die waiting. People deserve to see that institutions who have done them so much harm are held to account. They deserve to know that they are believed, they have been seen and they have been taken seriously.
Another major issue with the design and implementation of the scheme is the inadequacy of redress payments. Inadequate payments—in particular, the $150,000 cap on payments—are pushing people towards civil processes and away from or outside the scheme. We're hearing that survivors can get a more generous payment and are receiving these payments in similar time frames to the scheme. This issue is undermining the fundamental purpose of the scheme, which is to make it easier and quicker for survivors to access payments and support. Redress payments are also being significantly reduced because of prior payments, and I know the minister is very aware of this. The joint select committee heard of an instance in which a payment was reduced by $50,000 to $20,000, all because the survivor was awarded a payment of $15,000 years earlier. For example, it might be that prior payments to stolen generations survivors—a separate issue from institutional child sexual abuse—are being used to reduce payments. We know that, and I urge the government to look carefully at it.
The indexation of prior modest payments has also seen redress payments reduced. According to the interim report of the joint select committee, the Department of Social Services advised that as at February this year 449 payments had been adjusted due to prior payments, with the average value of the adjustment being about $34½ thousand. DSS also confirmed that the maximum adjustment made was $150,000, which reduced the redress award to zero. That is just not right. To that end, Labor's amendments would lift the cap on redress payments from $150,000 to $200,000, as recommended by the royal commission. Labor's amendments would also ensure that prior payments are not indexed when calculating a redress payment and that prior payments which do not relate to institutional child sexual abuse—for example, payments to members of the stolen generations—are not deducted from redress payments.
The redress assessment matrix has also been widely criticised, particularly by care leavers. As the joint committee found, the assessment matrix arbitrarily links the amount of redress awarded to the physical type of abuse perpetrated. It fails to recognise the lifelong harm that any sexual abuse has on survivors. Of great concern is the decision to limit the payment of exceptional circumstances to penetrative abuse. This approach fails to acknowledge the harm caused by other types of sexual abuse and is a noted departure from the original recommendations of the royal commission. One survivor stated, 'I don't know how they came up with the matrix.'
Labor's amendments will require the minister to remake the redress assessment framework to properly recognise the impact of abuse when calculating redress payments, as recommended by the royal commission. The limited one-off payments for psychological counselling and support are contrary to the recommendations of the royal commission. We are concerned that, in many cases, people are being provided with as little as $1,250 to cover future counselling and psychological care. Originally, the royal commission recommended that ongoing support be provided, not one-off payments. It said, 'Many survivors will need counselling and psychological care from time to time throughout their lives.' Counselling is not necessarily needed continuously throughout a survivor's life, but it should be available throughout a survivor's life. It should be available on an episodic basis, and I know people in this chamber understand that. To that end, Labor's amendments will ensure that necessary ongoing psychological counselling and support will be provided to survivors.
Often we hear a claim from the government that they can't make changes to the scheme on their own, and that's a very true statement. They need the support of states and territories, and I acknowledge this. Of course agreement is needed for certain changes, but so is leadership and so is action from the Commonwealth, which is incredibly powerful within that process. Improvements will not happen in a vacuum, just as this scheme and the royal commission that was asked to make recommendations on it did not happen in a vacuum. They happened because there was leadership from the top, leadership from Prime Minister Julia Gillard. The legislated two-year review of the scheme is due to report soon, and we know, from talking to survivors, that the issue reflected in Labor's amendments has also been raised as part of that review.
Only the government—and I'm pleased to see Minister Fletcher at the table—can move amendments that have a financial impact. That is why Labor has put forward a series of amendments that will require the minister to investigate change and report back to the parliament. This is a sensible and flexible approach for the government. There is absolutely no reason why the government should not support these amendments. They afford the minister and the Prime Minister the time to talk to jurisdictions and institutions, consider the two-year review and report back to the parliament on what they will do to fix problems with the scheme. As I said, I am very genuine in putting forward these amendments.
The scheme, as it currently stands, fails to deliver on the promise of redress for everyone—timely redress, redress that does not retraumatise, redress that does not leave survivors missing out. The reality is that the Redress Scheme, as rolled out, does not reflect—and in fact falls short of—the original recommendations of the royal commission. The amendments Labor has put forward seek to address major structural shortcomings in the scheme by bringing the scheme back in line with those original recommendations. We want to end the delays caused by institutions not doing the right thing and not joining the scheme. We want to ensure no-one misses out, through strengthening funder-of-last-resort provisions and the introduction of an advance payment scheme. We want to deliver full redress to survivors by lifting the cap on payments, as prescribed by the royal commission, and making sure prior payments are not indexed to take away from a redress payment, including for members of the stolen generations; scrapping the existing misguided and arbitrary assessment matrix and delivering one that is fair and that properly recognises the full impact of sexual abuse, particularly psychological and lifelong impacts; and ensuring ongoing psychological support for survivors throughout their lives. After so long, it is time that we in this chamber delivered on the promise of redress for survivors.
That all words after "That" be omitted with a view to substituting the following words:
"whilst not declining to give the bill a second reading, the House:
(1) notes the deficiencies in the bill as drafted; and
(2) urges the Government to respond to calls from survivors to improve the National Redress Scheme and deliver quicker, fairer and better outcomes for recipients, as recommended by the Royal Commission".