Wednesday, 24 November 2021
National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021; Second Reading
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
This Bill will amend the primary legislation for the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme). The amendments form part of the Government's response to recommendations from the Final Report,Second Year Review of the National Redress Scheme (the Review) undertaken by Ms Robyn Kruk AO.
The amendments increase access to the Scheme for survivors of institutional child sexual abuse by expanding Funder of Last Resort arrangements, and forms part of the Government's ongoing commitment to improving the Scheme.
The Scheme was established in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). The Scheme was established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act).
The Scheme's legislation requires that a review of the operation of the Scheme be undertaken following the second and eighth anniversaries of the Scheme. The Final Report,Second Year Review of the National Redress Scheme, presented byMs Robyn Kruk AO, makes 38 recommendations to increase access to redress, including through expanding Funder of Last Resort arrangements, and to improve the Scheme's operation, making it more trauma-informed, efficient and ultimately more survivor-focussed.
In undertaking the Review, survivor voices were front and centre and Ms Kruk consulted extensively with survivors, advocacy groups, support services, institutions and Commonwealth and state and territory governments.
It is essential that the needs of survivors are being met; that the Scheme is operating effectively; and that the unique and evolving challenges in administering such a measure are being addressed.
This year, the Parliament passed two separate pieces of legislation to improve the Scheme. The first piece of legislation addressed minor and technical issues associated with the administration of the Scheme.
The second piece of legislation was in direct response to recommendations made as part of the Second Year Review. This legislation made survivor focused improvements as an initial tranche of action on Review recommendations.
The second piece of legislation provided for an advance payment of $10,000 for elderly and terminally ill applicants, changed the indexation arrangements to be fairer for applicants, removed the requirement to provide a statutory declaration when making an application, enabled an extension of time a person has to accept their offer of redress or request a review, and authorised redress to be paid in instalments at an applicant's request.
The Scheme's establishment is 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 should never have happened.
The Scheme is an important step towards healing and provides a monetary payment as a tangible means of recognising the wrong survivors have suffered; access to counselling or psychological services; and a direct personal response from the institutions responsible where a survivor wants that to occur.
Over the past three years, the Scheme has secured the participation of all states and territories, and as of 8 October 2021, 526 non-government institutions are participating in the Scheme. This means the Scheme now covers over 69,000 sites across Australia. In addition nearly 6,400 payments totalling over $546 million have been paid to survivors to date.
Unfortunately, some survivors continue to be unable to access redress through the Scheme because their institution is not participating.
The Government remains committed to encouraging all institutions named in applications to fulfil their moral obligation to join the Scheme. For those institutions that choose not to join the Scheme, the Government has introduced financial consequences, in order to encourage them to join. This includes institutions being restricted from accessing future Commonwealth grant funding and possible loss of their charitable status and associated tax concessions.
It is important that where an institution can join the Scheme, that it does so as a matter of urgency and takes responsibility for past abuse by providing redress to survivors.
Some survivors are unable to access redress through the Scheme as the institution responsible for their abuse no longer exists, or the institution cannot meet the necessary requirements to be participate in the Scheme. Currently, applications from these survivors cannot be progressed. This is why changes to the Scheme's Funder of Last Resort provisions are critical.
The Australian Government recognises the views of survivors and other key stakeholders and has listened to the concerns raised. We are prioritising initial action on 25 of the 38 Review recommendations in full or in part and investing over $80 million over four years in the 2021-22 Budget to support implementation of these recommendations.
The Government released its interim response to the Review in June 2021 and we plan to provide a final response to all of the Review's recommendations in early 2022.
Following the Government's interim response to the Review the Parliament passed an initial package of legislative amendments, as I have outlined. The more substantial changes recommended by the Review required further negotiations with state and territory governments as Scheme partners and consultation with survivors and their advocates.
This Bill reflects the next legislative changes in response to the Review. It expands Funder of Last Resort arrangements, a significant recommendation made as part of the Second Year Review and one in which the Government has been very public in its support for. The Bill also strengthens the legislative basis on which institutions are publicly named as having not joined the Scheme.
Funder of Last Resort
Currently, a person can only access redress under Funder of Last Resort arrangements where a government is equally responsible for the abuse of the person.
This Bill recognises that regardless of whether a government was involved in the abuse of the person, where the institution responsible for the abuse no longer exists (that is, the institution is defunct), the affected survivors should have the opportunity to access redress.
As such, this Bill expands the Funder of Last Resort arrangements to allow state and territory governments to be a Funder of Last Resort in this circumstance. Wherever possible, an overarching institution that is affiliated with the defunct institution will be called on to take responsibility. However, where there is no such parent institution, governments can step in and enable access to redress.
The Bill also provides that a government can be a Funder of Last resort for an institution that is unable to meet the legislative requirements to participate in the Scheme. Presently, an institution cannot be declared as participating in the Scheme unless there are reasonable grounds to expect that they can discharge their liabilities and obligation under the Scheme. An institution that does not have the financial capacity to pay its redress liabilities would not meet this requirement.
There are currently 21 institutions listed on the Scheme's website that fall within this category of not meeting the legislative requirements to participate. This means survivors naming these institutions in their applications cannot currently access redress. Expanding Funder of Last Resort arrangements in these circumstances is the right thing to do for survivors.
The Bill provides the ability for these institutions to partly participate in the Scheme. Although unable to fund their redress liability, partly participating institutions can perform other important functions including providing a Direct Personal Response to survivors. This recognises that many institutions want to do the right thing by survivors and do what they can to ensure a survivor can access all three parts of redress available through the Scheme.
The Australian Government will contribute half of the funding for the expanded Funder of Last Resort arrangements, under a 50:50 cost-shared model with the relevant state and territory governments. This demonstrates the Australian Government's commitment to ensuring as many survivors as possible can access redress.
The expanding Funder of Last Resort arrangements aligns with recommendation 5.1 of the Second Year Review that allows governments to become a Funder of Last Resort for survivors that would otherwise be unable to access redress or pursue compensation through the civil legal system.
These arrangements will not cover institutions that can join the Scheme but choose not to. These institutions should join and provide survivors with the redress they deserve. Institutions shirking their moral obligations will continued to be encouraged to join the Scheme, will be publicly named, and will be subject to the financial consequences mentioned earlier.
Public Naming Institutions that do not j oin the Scheme
Institutions named in applications to the Scheme that have not joined within a reasonable timeframe are publicly named on the Scheme's website. Publicly naming institutions provides survivors who have applied for redress, and those considering applying for redress, with information on the institutions' participation in the Scheme and is a lever to further encourage institutions to join the Scheme.
The Bill provides that institutions named in applications to the Scheme, or institutions the Scheme Operator has a reasonable belief has a connection with the abuse of the person, can be publicly named if they do not join.
This measure does not change the existing naming practice. It provides a stronger and more administratively efficient basis to publicly name institutions, as well as making it clear to institutions that they will be publicly named should they be able to join the Scheme, but choose not to.
This measure provides a firm legislative basis to disclose protected information, namely the names of institutions.
This measure will also support increased institutional participation in the Scheme, which in turn will allow more survivors to access redress.
The Government has worked extensively with the states and territories on this Bill, and in line with the Scheme's governance arrangements, all state and territory governments have agreed to the amendments.
This Bill is the second tranche of legislative amendments to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 following the Review.
The Australian Government is pleased to outline the important measures in this Bill and will continue to work with Scheme stakeholders to bring forward further improvements in response to the recommendations of the Review for the benefit of survivors.