Explanatory Memorandum
(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)Overview of the National Redress Scheme
The Bill establishes a National Redress Scheme for survivors of institutional child sexual abuse that is intended to operate for a 10 year period from 1 July 2018.
The purpose of the Bill is to implement the joint response of the Commonwealth Government, the government of each participating State and the government of each Territory, and each participating non-government institution's response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse's Redress and Civil Litigation Report. The objective is to recognise and alleviate the impact of past institutional child sexual abuse, and related non-sexual abuse, and to provide justice for the survivors of that abuse.
The Scheme provides three elements of redress in the form of a redress payment, a counselling and psychological services component (which, depending on where a survivor lives, consists of access to counselling and psychological services or a monetary payment), and a direct personal response. Survivors will also have access to legal advice services that will be provided as part of the Scheme.
The Scheme will cover sexual abuse, and any related non-sexual abuse, that occurred when the person was a child and where an institution participating in the Scheme is primarily or equally responsible for the abuse. For abuse to be within the scope of the Scheme it must have occurred before the Scheme start day.
The Royal Commission
On 11 January 2013, Letters Patent were issued for a Royal Commission into Institutional Responses to Child Sexual Abuse. The Royal Commission inquired into how allegations and incidents of child sexual abuse and related matters that occurred in an institutional context were managed by the responsible institutions.
In 2015, the Royal Commission released its Redress and Civil Litigation Report which recommended, among other initiatives, the establishment of a national redress scheme for survivors of institutional child sexual abuse. This Bill introduces a National Redress Scheme for Survivors of Institutional Child Sexual Abuse.
Commencement
The Scheme will start the day the Act commences.
Entitlement to Redress
Survivors of child sexual abuse are able to apply to the Scheme, provided they are an Australian citizen or an Australian permanent resident. The rules may provide for persons with other citizenship status to apply. This, for example, could include former child migrants who are no longer residing in Australia, or children abused in Australian institutional settings outside Australia who are not citizens or permanent residents. The sexual abuse suffered by the survivor must have occurred when the person was a child (that is, under the age of 18) and prior to commencement of the Bill. Sexual abuse includes any act which exposes the person, who is a child, to, or involves the person in, sexual processes beyond the person's understanding or capacity to provide consent, or contrary to accepted community standards. The survivor may also have suffered non-sexual abuse in connection with the child sexual abuse, which could include physical abuse, psychological abuse and neglect. Non-sexual abuse will be taken into consideration as an aggravating factor that contributed to the severity of the sexual abuse suffered. The sexual abuse, and related non-sexual abuse, must have occurred inside a participating State, inside a Territory, or outside Australia, and a participating institution must be responsible for the abuse.
A person will not be able to apply to the Scheme if: they have already made an application for redress under the Scheme, a security notice is in force in relation to the person, they are a child who will not turn 18 before the Scheme sunset day, they are in gaol, or the application is being made in the period of 12 months before the Scheme sunset day. If there are circumstances justifying an application being made from gaol, or in the period of 12 months before the Scheme sunset day, the Scheme Operator may allow the application to be made.
Eligibility for redress will be assessed on whether there is a reasonable likelihood the person suffered sexual abuse as a child in an institutional setting. A claim can be made at any time from commencement of the Scheme until 12 months before the closing date of the Scheme, which is 30 June 2028. Applications for redress under the Scheme are limited to one application per survivor, whether or not that person suffered sexual abuse in more than one institution. Survivors will be able to include multiple episodes of sexual abuse and related non-sexual abuse suffered in multiple institutions in the one application.
Redress consists of three components: a redress payment of up to $150,000, a counselling and psychological services component, which, depending on where the person lives, consists of access to counselling and psychological services or a payment of up to $5,000 and a direct personal response. Survivors will be able to choose whether to accept one, two or all three of the components of redress.
The amount of the redress payment will depend on the level of sexual abuse, and related non-sexual abuse, that a survivor suffered and will be an amount up to a maximum of $150,000. The intention of this payment is to recognise the wrong the person has suffered. A survivor who has accessed redress under another Scheme, is not excluded from applying for redress under the Scheme. However, any prior payments made by a participating institution in relation to the abuse suffered by a survivor that is within the scope of this Scheme, will be deducted from the amount payable by that participating institution.
Access to counselling or psychological services is intended to enable survivors to access trauma-informed and culturally appropriate counselling or psychological services to assist with the impacts of the sexual abuse they experienced as a child. If a survivor lives in a jurisdiction that is not a declared provider of counselling and psychological services under the Scheme, they will be entitled to a counselling and psychological services payment of up to $5,000. If the survivor lives in a jurisdiction that is a declared provider of counselling and psychological services under the Scheme, then they will be entitled to access those services.
The redress payment or counselling and psychological services payment will be inalienable and cannot be used to recover debts due to the Commonwealth. The payment will also not be subject to income tax.
Survivors will also have the opportunity, if they wish, to receive a direct personal response from the participating institution responsible for the sexual abuse. The survivor will have the chance to have their abuse acknowledged, tell their personal story of the abuse they suffered and the impact of the sexual abuse on them. The format of the direct personal response may include an apology, an acknowledgement of the impact of the abuse on the person, an opportunity to meet with an appropriately senior person from the relevant institution and an assurance as to the steps the institution takes to protect children in their care against abuse.
Survivors will also be given the opportunity to receive legal assistance provided by the Scheme, if they wish, before making a decision as to whether to accept the offer of redress. If an offer of redress is accepted, the survivor will be required to release the relevant participating institutions the Operator determines are responsible for the abuse, from any liability for the sexual abuse and any related non-sexual abuse, they suffered that is within scope of the Scheme. The survivor will also be required to release any institutions that are associates of the responsible institution, and officials of those institutions (other than an official that was an abuser of the survivor).
In the event that an offer of redress is made to a survivor, but the survivor dies before accepting the offer, the redress payment will be paid to the estate of the survivor. However, the other two components of redress (the counselling and psychological services component and direct personal response) will not be available to the survivor's estate.
Funding
The Scheme funding arrangements are based on the principle of the responsible entity pays. The Consolidated Revenue Fund will be appropriated for the purposes of paying the redress payment and the counselling and psychological services component of redress under the Scheme.
Non-Commonwealth entities (participating state and territory institutions and non-government institutions) will be invoiced quarterly in arrears with their funding contributions credited to the Consolidated Revenue Fund.
Internal review
Reviews of decisions made under the Scheme are limited to internal review. This follows the recommendation of the Independent Advisory Council on redress, appointed by the Prime Minister, which included survivors of institutional abuse, representatives from support organisations, legal and psychological experts, Indigenous and disability experts, institutional interest groups and those with a background in government. The Independent Advisory Council considered that providing survivors with external review would be overly legalistic, time consuming, expensive and would risk further harm to survivors.
The internal review processes will enable applicants to seek review of determinations on applications for redress. The person conducting the review must have had no involvement in the original decision and may affirm, vary or substitute the original decision.
Merits review in the Administrative Appeals Tribunal or judicial review in the Federal Circuit Court or Federal Court under the Administrative Decisions Judicial Review Act will not be available to survivors or participating institutions.
This is considered appropriate as redress is not intended to replicate civil litigation standards or processes. The Scheme is intended to be an alternative to civil litigation that avoids the risk of further harm to survivors. The lower evidentiary thresholds under the Scheme and the broad discretion of the independent decision-makers mean that merits review and judicial review under the Administrative Decisions Judicial Review Act are not appropriate for decisions under the Scheme. The Scheme is to be supportive, survivor-focussed and non-legalistic and decisions will be made expeditiously.
Participating institutions will also not have the right to seek a merits or judicial review under the Administrative Decisions Judicial Review Act of any decisions made under the Scheme. This is because institutions participate in the Scheme voluntarily and agree to participate in the Scheme with the understanding that certain matters will be decided by the Operator (or delegate).