Thursday, 8 October 2020
National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Bill 2020; Second Reading
That this bill be now read a second time.
This bill will amend the primary legislation for the National Redress Scheme for institutional child sexual abuse (the scheme), with the aim of making ongoing improvements to the operation of this important scheme.
The scheme commenced on 1 July 2018 and will run for 10 years, in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. The scheme was established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the act).
The implementation of the scheme was an acknowledgement by the Australian government and state and territory governments that sexual abuse suffered by children in institutional settings was wrong, a betrayal of trust, and it should never have happened.
Over the past two years, the scheme has secured the participation of all states and territories, and, as of 18 September this year, 272 non-government institutions are participating in the scheme. This means that the scheme now covers over 52,000 sites across Australia. In addition, over 3,600 payments, totalling approximately $298 million dollars, have been paid to survivors to date.
Improvements have been made to the scheme, during the initial two years of operation operationally. But more can and should be done to make sure the scheme is operating as well as it can be. Implementing further improvements requires updating of the act.
This bill will increase the efficiency of the scheme for its remaining eight years of operation and assist in finalising outstanding applications. The amendments address minor and technical issues with the current operation of the act and will address unintended consequences or oversights in the initial drafting of the primary legislation that underpins the scheme. In line with the scheme's governance arrangements, all states and territories have agreed to the amendments in the bill.
In short the beneficial, minor technical amendments will provide clarity and improve scheme operations but will not have any financial impacts on scheme participants and will not change an institution's liabilities or obligations under the scheme.
A legislated second anniversary review of the scheme is also currently underway, and it is intended that the review will help drive further improvements to the scheme.
This bill will achieve its intended outcomes through progressing the following amendments to the act.
Li sting of associate institutions
Firstly, under the scheme, an associate is an institution that is a member of a participating group. Individually listing associates of institutions who are found responsible for abuse in the letter of offer to the applicant is not practical or trauma informed, especially for groups with thousands of participating institutions. This measure will clarify that associate institutions are able to be determined and listed in a letter of offer by way of a class description. Importantly, this measure will not affect the release from civil liability of the associate institutions.
Two or more f unders of l ast r esort in one application
Being the funder of last resort in relation to an institution is where a government funds redress costs in very specific and limited circumstances for non-government institutions that have ceased to exist, known as defunct institutions.
Currently, the act only specifies a single government institution being the funder of last resort for a defunct institution, including when calculating the funding contribution payable by the funder of last resort. However, more than one Commonwealth, state or territory government institution may have equal responsibility for abuse by a defunct non-government institution, meaning each could be a funder of last resort.
The amendment will clarify that where there is more than one funder of last resort the defunct institution's share of the redress cost is to be divided equally between the government institutions.
Engaging persons to be i ndependent d ecision m akers
Under the act, the Minister for Families and Social Services must approve each appointment of independent decision makers and consult the appropriate ministers from participating states and territories. This process has made it difficult to efficiently respond to the demands of the scheme.
In order to engage independent decision makers more efficiently, this measure will remove the need for ministerial-level approval before engaging an independent decision maker and will replace the need for consultation with the state and territory ministers with a requirement that the scheme operator consult with the jurisdictions via their respective responsible departments.
Protecting the name of the s cheme
This measure will include a statutory protection for the use of the scheme name and logo and impose pecuniary penalties for breach of the provisions. This measure will ensure that other parties do not misuse the scheme name and logo to the potential detriment of an already vulnerable cohort. Importantly, this measure will not affect state and territory governments and non-government institutions when referring to the scheme's name or logo in the course of their natural dealings with the scheme.
Bank account for payment of redress payment
Currently, if a person accepts a redress payment or a counselling and psychological care payment, the scheme operator must pay this to an account that the person holds with a financial institution and that the person has nominated in writing.
In not allowing payment to be made to third parties, unintended consequences have been observed, especially where an applicant has limited capacity to manage their financial affairs or where relevant court or tribunal orders exist.
This measure will enable the scheme to pay an applicant's redress payment to a public trustee, or similar body, with financial management powers made under relevant jurisdictional laws. This will provide a beneficial mechanism to ensure that the scheme can make a redress payment for an applicant whilst also ensuring that their interests remain protected in a way that is consistent with any legal arrangements in place.
When funding contribution is due for payment
Currently, the Commonwealth makes a redress payment to an applicant, and a responsible institution's funding contribution for the payment is then to be made by a date specified in a notice given by the scheme operator. There is currently no flexibility under the scheme to alter the payment date where funds are due to be paid to the Commonwealth. This measure will enable the due date for payment of a funding contribution to be extended and provide that no late payment penalties will be incurred.
Importantly, allowing a due date extension for institutions will not delay the redress payment to the applicant, which is made by the scheme and then later invoiced to the responsible institution.
The act includes provisions for how the scheme deals with protected information. Information about a person or an institution that was provided to or obtained by an officer of the scheme, for the purposes of administering the scheme, constitutes protected information.
The limitations that apply in relation to disclosure of protected information about institutions can make it difficult to efficiently and meaningfully consult with organisations for the purposes of encouraging institutions to join the scheme.
Maximising the participation of institutions is critical to the success of the scheme and survivor access to redress, and sharing information to enable governments to collectively target and encourage institutions to join is essential for this purpose. This measure will allow for a more practical process to disclose protected information about institutions and will enable the scheme to quickly and efficiently disclose the names of non-participating institutions that have been named in applications, to support coordinated efforts to encourage that institution to make amends for past wrongdoings and join the scheme.
In summary, this bill addresses minor and technical issues with the current operation of the act and will address unintended consequences or oversights in the initial drafting of the legislation. The amendments will increase the efficiency of the scheme, assist in finalising outstanding applications, strengthen legislative assurance and help militate against issues or confusion arising over the remaining eight years of the scheme.
This will ensure survivor experience is improved, scheme integrity is maintained, and the public is assured that all governments—Commonwealth, state and territory—are committed to continuous improvement for this important scheme.