5.1
For the operation of the National Redress Scheme (NRS) to meet its intended purpose, strong participation from both survivors and institutions is essential. There was lower than anticipated survivor participation in the first three years of NRS operation, and the on boarding of many responsible institutions identified in the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) took significantly longer than expected. This chapter examines participation for both survivors and institutions, with a particular focus on actions taken to encourage participation.
5.2
All information regarding participation numbers and status within this chapter was correct as at 1 November 2021. The Committee notes that there are regular changes in relation to the status of institutions participating in the NRS.
Institutions
5.3
The Australian Government has made significant reforms since the Committee’s First Interim Report was tabled in May 2020, which are designed to encourage institutions to join the NRS. Primary reforms included the introduction of grant prohibitions and the removal of charity tax concessions for institutions that refused to join the NRS.
5.4
Grant prohibitions mean that institutions responsible for a NRS claim that has been, or is likely to be, made against them and refuse to join the NRS are unable to apply for any type of Australian Government grant. This prohibition has significant consequences for organisations that operate with the assistance of community or sport based funding for example.
5.5
Charitable tax concessions save religious organisations significant amounts every year, as they ensure that relevant institutions are taxed as a charity instead of a business enterprise. The Federal Government introduced changes to Australian Charities and Not-for-profits Commission (ACNC) regulations which mean that religious institutions that refuse to join the NRS are unable to maintain their charity status in respect of tax concessions. This change was achieved through the introduction of a new governance standard and legislation.
5.6
The governance standard requires registered charities to take all reasonable steps necessary to become a participating non-government institution in the NRS if a claim has been, or is likely to be, made against them. Where a registered charity fails to join the NRS or take reasonable steps to participate, it will be subject to possible deregistration which would result in the entity losing access to a range of Commonwealth benefits and tax concessions.
5.7
Additionally, amendments to the Australian Charities and Not-for-Profits Commission Act 2012 give the ACNC the power to remove a religious group’s classification as a Basic Religious Charity, if it has been named in an application but have not joined the NRS.
5.8
These changes appear to have worked as intended, with the Jehovah’s Witnesses agreeing to join the NRS following the announcements.
5.9
There were concerns raised that the various and changing operating names used by the Jehovah’s Witnesses in Australia may in some way prevent the NRS from processing claims. In June 2021, DSS officials said that they are working to prevent such a scenario. In September 2021, DSS confirmed that the Jehovah’s Witnesses joined the NRS under the name Watchtower Bible & Track Society of Australia, and that all applications previously on hold have been prioritised for action by the NRS. There has been no indication to the Committee that there are difficulties processing applications in relation to naming conventions.
Institutions that Have Declined to Join the National Redress Scheme
5.10
There are six institutions listed on the NRS website as being named in the Royal Commission which have yet to join the NRS. Of these, the Fairbridge Society has been declared as defunct and is discussed under funder of last resort. Of the remaining five, one is on-boarding. The remaining four institutions are:
Gold Coast Family Support Group (now FSG Australia);
Hunter Aboriginal Children’s Services;
Yeshiva Centre and the Yeshiva College Bondi – pre 2003.
5.11
Additionally, there are four institutions that while not specifically mentioned by the Royal Commission, have applications naming them as the responsible institution currently on hold with the NRS. All have declined to participate in the NRS. They include:
CYMS Basketball Association;
Devonport Community Church;
5.12
The Forrest Tennis Club is in discussions with DSS and has not ruled out joining the NRS. The Pastor of the Devonport Community Church,
Mr Overton, said the church decided not to join the NRS because it could easily be subject to false claims for fraudulent purposes. The CYMS Basketball Association has not made a public statement in relation to joining the NRS. Kenja Communication is discussed in detail further below.
5.13
When institutions responsible for abuse chose not to join the NRS, there are negative consequences for the mental health of survivors. Relationships Australia highlighted that:
Survivors whose perpetrating institutions have not joined the Scheme report feeling silenced again… it is devastating for survivors.
5.14
There was concerning evidence given to the Committee, that the NRS is encouraging survivors to take on an advocacy role and contact institutions directly when they refuse to join. Relationships Australia submitted that this has the effect of re-traumatising survivors:
Some survivors have reported that they have been encouraged by Scheme staff to contact institutions themselves to advocate for participation. It is egregiously unfair –and unsafe - to cast this burden on survivors.
Kenja Communication
5.15
Kenja Communication continue to refuse to join the NRS. Minister Ruston confirmed that the changes to the grants and taxation systems did not affect the operations of Kenja survivor:
My understanding is that Kenja Communications do not receive any government funding either by grant or by having tax deductible status. So, unfortunately, neither of those mechanisms were available to us.
5.16
Ms Michelle Ring, a Kenja survivor, explained that the culture of Kenja is such that it will continue to refuse to join the NRS if penalties continue to fall short of impacting current operations:
The culture in Kenja is complete control. People say and do what they're told to say and do, and they mostly do that through fear, I would suggest, because the intimidation through the mental, physical and sexual abuse is constant. The separation of individuals from family and community is what allows that ultimate control.
5.17
The culture of distrust and resistance to outside forces is evidenced in the Kenja public statement on its position and the NRS:
Kenja rejects any claim that sexual abuse of children has ever taken place at this organisation. While acknowledging the vital imperatives behind the National Redress Scheme, we do not consider it appropriate that we join in circumstances where genuine claims against us do not exist. Accordingly, Kenja will not be cajoled or threatened into joining the Scheme.
5.18
When asked to identify what changes would make a difference,
Ms Ring advocated for the Australian Government to act as the funder of last resort for all survivors initially, and then pursue action against responsible institutions. Ms Ring explained that there is a sense of survivors not being believed due to Kenja’s refusal to acknowledge claims and the government choosing not to progress those claims in the interim:
[W]hilst Kenja says, 'No, we didn't do it,' and the government can't follow through with the Redress Scheme, it means that that is a conditional redress. For those of us who have fallen through the cracks, I think the government—not purely for the sake of compensation at all but for the sake of us being believed—should unconditionally, without asking permission from Kenja, provide compensation and, later, just as importantly, find consequence, whether that be financial, criminal or otherwise.
5.19
Ms Ring suggested that NRS applications which relate to the behaviour of people who are still alive should trigger a criminal investigation. Ms Ring also suggested that institutions that refuse to the join the NRS should be prevented from being able to work with children. Not only would this be a significant incentive for organisations, including Kenja, to join the NRS, it may also contribute to existing child protection measures.
5.20
Micah Projects noted that one primary reason for people to go through the redress process is the hope that it might contribute to increased protection for children engaging with institutional settings moving forward. This view was also shared by survivor, Ms Dianne Lynn.
Institutions On-Boarding to the National Redress Scheme
5.21
The on-boarding process appears to be a very slow administrative endeavour. The NRS website lists 64 institutions as intending to join the NRS. The website is careful to state that the published list does not represent all institutions that are working with the NRS.
5.22
A number of institutions have been included in the on-boarding list for long time periods. DSS have not provided any explanation for why one institution may take significantly longer to on-board than others.
Institutions that are Unable to Join the National Redress Scheme
5.23
An emerging area of concern relates to institutions who have signalled intent to join the NRS but have been declared ineligible by the NRS. The NRS website states that:
To join, as required under the legislation, institutions must demonstrate their capacity to pay redress for current and any possible future applicants over the life of the Scheme. They must further demonstrate how they will provide a meaningful Direct Personal Response, provide details of current and historic institutional information, complete relevant training and sign a Memorandum of Understanding with the Department of Social Services.
5.24
The NRS website currently lists 21 institutions as being unable to join.
5.25
DSS officials confirmed that the assessment is made using a calculator which estimates institutional liability. If the initial calculation is determined as unsustainable by the institution, the NRS then looks to broader means to meet the financial need:
There are a range of different mitigation strategies we would start to explore with an institution who looked as though they didn't have sufficient funds. It can be anything from other organisations that they may partner with, bank guarantees—a large range of mitigations, so it's not just one.
5.26
DSS officials clarified that an initial decision is not final, with officials re-examining an institution’s ability to meet claims if there are changes made in relation to the institution.
Funder of Last Resort
5.27
As highlighted in the First Interim Report, the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act) provides that where an Australian, state or territory government institution is responsible for the sexual abuse of a child in a now defunct non-government institution, the relevant government will pay the defunct institution's share of redress in addition to any existing liability.
5.28
Governments are currently acting as funder of last resort for 57 institutions that are defunct. DSS noted that as of March 2021, the Australian Government has been the sole, or partly, responsible institution for 291 redress payments. The average value of these payments is $58,270. DSS note that the average payment only reflects the Commonwealth’s average cost, not the average total payment received by an applicant due to shared responsibility considerations. The total value of the 291 payments is just under $17 million.
5.29
DSS also noted that the forward estimates account for ongoing funder of last resort payments:
Around $45 million was provisioned for redress payments where the Commonwealth has been a responsible institution, including for child migrants, with payments expected to be in the order of $19 million at 30 June 2021. Payments are expected to increase next financial year following the recent announcement that applications for five former Fairbridge farm schools can be progressed through the National Redress Scheme with the Commonwealth’s assistance as a funder of last resort with relevant states and territories.
5.30
DSS confirmed that as of September 2021, it is considering the eligibility of a further 15 defunct institutions to be included in the NRS under funder of last resort provisions and that these institutions account for 29 applications.
5.31
There was widespread agreement from redress support services that current funder of last resort legislative provisions are too narrow and require urgent amendment. knowmore stated:
[I]n accordance with the royal commission recommendations, anyone who is a survivor of institutional child sexual abuse should be covered by the National Redress Scheme and there shouldn't be these technical exceptions that are still in the scheme.
5.32
The Victorian Aboriginal Child Care Agency (VACCA) suggested that the lack of such an expansion may lead to injustice for some survivors. Relationships Australia Northern Territory explained that some survivors are dying while waiting for funder of last resort declarations to be made:
We have applicants literally passing away before receiving an acknowledgement of harm because the powers that be have not been able to determine who should take responsibility for absolutely horrific sexual abuse, physical abuse, emotional abuse and neglect.
5.33
The Australian Government has indicated that it is open to considering expanding funder of last resort arrangements, but that it cannot do so without the agreement of each state and territory government under existing governance arrangements.
5.34
Acknowledging that an expansion of arrangements may occur, Relationships Australia Northern Territory and knowmore both highlight that the monetary element is not the only aspect that must be considered:
[O]ften the money is secondary; it's the acknowledgement that they were not taken care of and that they experienced harm that is the key.
5.35
knowmore explained that it is essential that consideration be given to determining how a direct personal representation (DPR) would take place in cases of funder of last resort:
[W]here an institution doesn't join but still exists, it's important that there be some process of a direct personal response, if it's possible … [and] making sure that there's that responsibility provided.
5.36
knowmore also suggested that any expansion should include survivors of institutions that have declined or are ineligible to join the NRS as this would ensure equity for all survivors.
Fairbridge Farm Schools
5.37
The complexities associated with Fairbridge Farm Schools on-boarding to the NRS provide an example of how difficult it can be to apply the NRS legislation to different operating structures.
5.38
For the first two and a half years of NRS operation, survivors who attended Fairbridge Farm Schools were unable to access the NRS due to the current legal entity, Fairbridge (Restored) being in receivership in the UK. Despite the best efforts of the Prince’s Trust, who had legal responsibility for Fairbridge claims, complexities associated with UK charity and company law meant that neither Fairbridge (Restored) or the Prince’s Trust were legally able to participate in the NRS.
5.39
Grant Thornton United Kingdom, the administrators of Fairbridge (Restored), made it clear that Fairbridge (Restored) wanted to join the NRS:
It has always been our intention to try to join the National Redress Scheme. Unfortunately, the legislation which set up the scheme sets out criteria which organisations involved and looking to join must achieve. Chief amongst those criteria are that organisations must provide evidence of funding to meet the financial liabilities and that organisations must agree to participate until 2028, when the scheme will end. As you can appreciate, the scheme criteria and the administration legislation are in direct conflict. In this case, Fairbridge is insolvent and therefore cannot pass the financial test, and the duration to 2028 is not compatible with the statutory period for an administration.
5.40
On 24 March 2021 it was announced that the Australian, New South Wales, South Australian, Tasmanian, Victorian and Western Australian Governments would act as funder of last resort for the Molong, Drapers’ Hall, Tresca, Northcote and Pinjarra Fairbridge Farm Schools.
5.41
Following this announcement, Fairbridge kid, Mr David Hill informed the Committee that despite survivors appreciating the funder of last resort decision, questions remained in relation to the ongoing liability of Fairbridge (Restored). Mr Hill provided evidence that Fairbridge (Restored) plan to make compensation payments to survivors outside the scope of the NRS as the Prince’s Trust remain committed to making financial payments to survivors. Mr Hill questioned why governments would pay funds on behalf of tax payers when the responsible institution has funds to distribute and a commitment to do so.
5.42
DSS stated that it is aware of the Fairbridge (Restored) plan to make payments to Fairbridge kids and has spoken to the Prince’s Trust to clarify the matter. DSS maintain that any payments made will not represent a redress scheme as applicants will be eligible for payments solely due to their status as creditors. Mr Hill maintains that this distinction is at most, illusionary:
It is Fairbridge Restored that will invite claims from Fairbridge victims of abuse, it is Fairbridge Restored that will determine the eligibility of claimants, it is Fairbridge Restored that will assess abuse claims and it is Fairbridge Restored that will make the redress payments. … In my view, if it looks like a duck, swims like a duck and quacks like a duck, it's likely to be a duck.
5.43
Mr Hill also explained why a dual process can create harm and confusion:
Most of these people are not able to comply with the process. They need help just filling out the forms, because most of them are ill-educated and most of them are very old now. Added to that is the trauma of revisiting the abuse that's inherent in these applications. It's a very difficult, traumatic and trying experience. The simpler the process, the better.
5.44
Finally, Mr Hill highlighted that the participating Australian Governments may be able to recoup any funds distributed through funder of last resort payments, with both the Prince's Trust and Fairbridge (Restored) suggesting that the governments might be creditors in their own right. In correspondence between Mr Hill and DSS, officials confirmed that the NRS may not be able to receive funds from a non-participating institution as the Act only explicitly allows the NRS to receive funds from participating institutions.
Future reform
5.45
The National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021 (the Bill) was introduced in the House of Representatives on 27 October 2021. The Bill has not been debated in the House of Representatives or introduced to the Senate at the time of writing.
5.46
The Bill makes provision for the expansion of funder of last resort arrangements for institutions that are unable to join the NRS and for defunct institutions. For institutions that are unable to join the NRS, they can choose to partly-participate by fulfilling the DPR element of redress. These organisations would be subject to an annual reassessment of their financial viability.
Committee Comment
5.47
The Committee commends the Australian Government for introducing penalties to encourage institutional participation in the NRS. However, the Committee maintains concerns in relation to unaffected institutions that continue to refuse to join the NRS. There is a need to continue examining what actions may prove to be influential to those organisations.
5.48
Ongoing refusal also raises questions about the link between the NRS and child safety. The example of Kenja Communication demonstrates the urgent need to consider potential alignment between the NRS with state and territory based child protection measures. Governments must consider if it is appropriate for Kenja staff and volunteers to hold working with children and vulnerable people status whilst the institution refuses to acknowledge or answer institutional child sexual abuse claims. The Committee is aware that survivors of institutional abuse agree that the NRS has a role in keeping children safe.
5.49
The Committee is also concerned at the high number of institutions that have been on-boarding for extensive periods of time. The Committee considers that DSS may need to consider the application of penalties in this situation and at what point repeated delays trigger their application.
5.50
The Committee is also concerned at the high number of institutions that have been assessed as unable to join the NRS. The Committee agrees that the high number of survivors with applications currently on-hold highlights the need to extend the operation of funder of last resort provisions. The Committee notes that the recent introduction of the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021 may be a positive development in this regard.
5.51
The Committee is pleased that survivors of Fairbridge Farm Schools are now able to access the NRS. The example highlights that there is scope for governments to act as funder of last resort if there is the political will to do so. It also highlights that funder of last resort provisions must be expanded. Very simply, the NRS will not be equitable or trauma informed if some survivors are unable to access redress solely because of the legal status of the institution responsible for their abuse.
5.52
The Committee recommends that the Australian Government work with all Australian states and territories to examine child safety measures in relation to institutions that refuse to join the National Redress Scheme.
5.53
The Committee recommends that funder of last resort arrangements are expanded to ensure that survivors of institutions who are unable or unwilling to join the National Redress Scheme are able to receive all components of redress.
Survivors
5.54
The NRS continues to experience lower than expected rates of survivor participation. A number of reasons for this were suggested over the course of the inquiry which included limited eligibility, increased civil options and poor administration practice.
Eligibility Limitations
5.55
There are additional barriers for some survivors who wish to apply to the NRS. Groups unable to apply include people under 18 years of age and people who are in gaol or who have been convicted of a serious offence.
People in gaol
5.56
Relationships Australia highlighted that current provisions restricting survivor access based on incarceration may be partly responsible for lower than anticipated participation numbers:
[W]e have serious concerns about the limits imposed on participation by incarcerated survivors. Further, our practitioners are aware of:
inconsistent applications of section 20 of the Act;
obstacles for incarcerated survivors to access their records for the purpose of making an application; and
difficulties encountered by people who have been in prison for most of their adult life in seeking to quantify, for the purposes of Part 3 of the application form, the impact that the abuse has had on them.
5.57
Bravehearts highlighted that the exclusion was not a recommendation of the Royal Commission and shared that the exclusion of people in gaol is disappointing as for some survivors, it is a safe environment from which to commence the traumatic application process.
5.58
VACCA also agreed, highlighting that the exclusion is ‘one of the most devastating barriers to our Aboriginal people’.
5.59
In September 2021, DSS confirmed that 96 applications had been received from people in gaol citing exceptional circumstances. Of these, 18 exceptional circumstances requests have been granted and seven have not, and 71 remain pending. DSS stated that applications are pending for four primary reasons:
incomplete exceptional circumstances documentation was provided and the person is unable to be contacted;
the person requested that their application be placed on hold until they are released from gaol;
the Scheme Operator is in the process of making a decision; or
the Scheme has received an application which indicates the person is in gaol, however no exceptional circumstances application has been provided to the Scheme, and the person is unable to be contacted.
Children
5.60
In Good Faith Foundation (IGFF) suggested that the survivor demographic is changing as the NRS continues and that this must be considered when designing reforms.
[W]e have observed a downward trend in the age of survivors and also their abusers. The age of our clients is shifting to reflect a change in demographics of those engaging in the redress process.
5.61
The impact of a changing demographic has implications for the NRS. For example, IGFF highlighted that younger survivors are reporting sexual abuse from institutions that operate within the wellness or personal development industry. This type of institution, depending on how it is established can fall outside the scope of the NRS.
5.62
Tuart Place also emphasised that a younger offender cohort has significant operational considerations for the NRS in relation to mandatory reporting:
… a younger client demographic and increased likelihood of an offender remaining active in the community can result in Mandatory Reporting processes being activated. There is a lack of resources and key supports within the National Redress Scheme for the applicant when a Child Safety Report is triggered by their application.
5.63
IGFF also highlighted that a younger age of disclosure can require a greater term of counselling and ongoing support being provided to survivors accessing the NRS.
Survivors Increasingly Choosing Civil Options
5.64
Some survivors are choosing to pursue civil options rather than engage with the NRS. This is the result of complex and intersecting factors that include recent changes to state laws that remove previous legal limitations and civil actions resulting in larger financial awards. The Committee heard that factors that may influence survivors to pursue civil options include, but are not limited to, greater financial compensation, delays in the NRS, the strict eligibility criteria under the NRS, and a perception that civil options may give survivors a greater sense of justice.
Legal changes
5.65
Since the Royal Commission, every state and territory has removed limitation periods for civil claims in relation to sexual or physical abuse. This means that survivors previously unable to start an action due to the length of time that had passed since the abuse occurred now have this option. Care Leavers Australasia Network (CLAN) noted that ‘reforms in a number of jurisdictions make civil litigation more feasible than before’.
5.66
Additionally, a recent decision in the Victorian Supreme Court suggests that courts are now willing to examine the terms of previous settlements and consider if it is fair that they be upheld. In the case, the court agreed the survivor had agreed to settle for ‘far less than a reasonable assessment of damage’. This decision means that other survivors may be able to have their previous settlements set aside and for their claim to be reassessed.
5.67
It is possible that similar principles will be enacted more broadly across Australia. For example, in New South Wales, the Civil Liability Amendment (Child Abuse) Bill, will allow courts to set aside certain settlements in similar circumstances to the Victorian case.
5.68
Finally, evidence suggested that civil processes are not considered as traumatic as they once were previously, as many institutions are willing to offer formal acknowledgement of the abuse and have a genuine commitment to change.
High monetary awards
5.69
Whilst there is a public perception of civil cases resulting in large awards, there is limited public information available about the average civil award made to survivors.
5.70
IGFF is aware of settlements ‘frequently being awarded in the vicinity of $500,000’. Mr Mark Jones, a survivor, explained that his civil award was ‘greater than the maximum amount currently available under the redress scheme, even taking into account a legal fee investment of approximately $120,000’. Ms Lisa Flynn from Shine Lawyers separately told the Australian Broadcasting Commission that Shine has represented survivors in around 900 actions resulting in close to $150 million dollars in awards since the Royal Commission. Roughly this equates to an average award of over $165,000 per action.
5.71
Professor Kathleen Daly and Research Fellow Juliet Davis of Griffith University studied 4,563 civil justice and redress outcomes received over 35 years and found that the average monetary payment for civil litigation in relation to Australian Catholic Church authorities is $138,755. The Committee notes this may change as earlier settlements are set aside given recent law reform.
5.72
Given the vast scope of these payments, and an acknowledgment that very little is publicly known, IGFF stated that survivors may chose civil action rather than limit themselves to the NRS cap of $150,000:
The Redress Scheme cap is insufficient with many individuals more inclined to consider the far greater compensatory amounts achievable through civil litigation and out of court mediation processes. This disparity between options is streamlining people into litigation options.
5.73
In contrast, the average monetary payment for the NRS to
30 December 2020 was $83,210. For survivors who accessed a redress support service the average was slightly higher at $88,145. Survivors supported by knowmore and no other redress support service received an average payment of $85,200, while survivors assisted by other lawyers received an average of $83,727. The average award for survivors who did not access a support service was $78,924.
5.74
The average monetary payment also varied according to cohort. First Nations survivors received an average payment of $87,844. Care leavers received an average payment of $88,489 compared to $81,669 received by a non-care leaver.
Administrative Limitations
5.75
Redress support services suggested that low applicant numbers are likely a result of a combination of factors including poor survivor experience, and ongoing media coverage of poor administrative practices including privacy breaches and long wait times. As knowmore explained:
It's very hard for us, when we're explaining options to survivors, to talk about the Redress Scheme being necessarily a quicker, easier and less traumatising option than civil litigation, when people have applications that haven't been determined for 18 months.
5.76
CLAN shared the view that long wait times are also encouraging care leavers to pursue civil options instead of the NRS:
Redress is not an insurance claim; it is supposed to be less legalistic, less arduous than going down the civil path. But now many care leavers are saying they're not going to apply for redress; they are going to go down the civil path. They used to have to wait years for a civil case; they're waiting for their third year [for redress] now.
5.77
This is clearly reflected in the administration of priority applications. Tuart Place stated:
Currently, applications in the 'priority' category do not appear to be processed any more quickly than non-priority cases, seemingly because the assessment process is no different, and still often involves waiting for responses from multiple past provider institutions.
5.78
There was no evidence heard by the Committee to suggest that priority applications are being resolved faster than other applications in order to ensure those with greater need have their application processed prior to death. As VACCA explained:
[W]e have so many people who are unwell, who could die at any moment and who are just waiting for their outcome. We really need to see the scheme up the ante a bit and get these applications assessed really quickly.
5.79
This view was also shared by CLAN:
For people who are terminally ill there's supposed to be a priority scheme. But we don't see that working effectively at all.
5.80
CLAN also confirmed that the application form does not allow an applicant to self-identify as requiring priority.
5.81
DSS confirmed that as of 3 June 2021, 95 payments have been made to beneficiaries in respect of 90 deceased applicants. It is expected that this number will grow as the Second Year Review highlighted that there are a significant number of applications currently being processed where the applicant is now deceased.
5.82
The Queensland Law Society highlighted how long waiting times affect survivor engagement with the NRS:
The lack of informative and timely updates and the absence of guidance about the process causes greater anxiety for clients who worry their case has been forgotten and will never be decided. It is paramount this issue is addressed as the abuse survivors who are claiming, are already vulnerable… in addition to informed guidance being provided, NRS administrators could provide timely meaningful updates on what has been progressed or what is awaiting finalisation.
5.83
knowmore suggested that a large number of survivors are choosing to proceed with civil litigation instead of the NRS due to ongoing issues relating to the participation of institutions which also leads to long waiting times:
People would understand that it's effectively pointless to do so if the institution that is responsible for their abuse is not participating and there is no indication that it's going to participate. That's another factor and it's one that, I think, particularly resonates with many survivors who have adopted a wait-and-see attitude with the scheme.
5.84
Poor data collection may make it difficult to comprehensively understand where survivor participation gaps may be. For example, the NRS data collection methods mean that it is not possible to say with certainty how many people with disability are engaging with the NRS or whether people with disability are underrepresented amongst applicants. This is also the case for care leavers.
5.85
The Queensland Law Society suggested that practical changes in NRS administration practice would support greater survivor engagement. It identified simple changes such as allowing survivors to write to staff at the NRS instead of being compelled to call and speak with someone they do not know, or making the online application form PDF fillable to ensure that survivors can file their application without a printer or scanner.
5.86
People with Disability Australia (PWDA) noted that NRS services are ‘not always accessible, which can leave people in a position where they give up rather than pressing on through with the process.’
5.87
DSS agreed that more can be done to ensure that survivors are adequately supported throughout the application process, stating:
The department is committed to providing outreach support to assist applicants in the completion of their applications. This includes better access to enhanced front-end financial, legal, psychological, Indigenous and disability support services to minimise trauma and assist survivors to obtain better outcomes. As part of the current Grants process, the Scheme is funding support services that meet the diversity of survivors’ needs with regard to disability, gender, sexuality, culture and language. The Scheme is also taking proactive steps to better communicate the availability of all support services, including access to free legal services to survivors, nominees, advocates and institutions.
5.88
As noted in Chapter 2, actuarial firm, Finity Consulting considered potential NRS participant numbers based on the first two years of operation. The advice estimates that a total of 32,000 applications may be expected during the life of the scheme. This is a significant departure from the 60,000 that the Royal Commission anticipated as eligible to apply.
Low Public Awareness of the National Redress Scheme
5.89
There was evidence to the Committee that suggested existing community education materials are not meeting the need of survivors who are currently unaware of the NRS, or service providers that might be well placed to make referrals. Additionally, survivors shared that existing resources available on the NRS website to help survivors throughout the application process are long, boring and generic.
5.90
The Northern Territory (NT) Government highlighted that the June 2020 actuarial report from Finity Consulting found that the number of NRS claims from the NT are 80 per cent lower than initially expected. The NT Government’s submission to the Second Year Review noted that ‘the NT routinely requested that an overarching communication strategy be developed for the Scheme’, further noting that:
[A] major contributing factor to the low number of applications from NT residents is the limited communication about the Scheme and general community knowledges of the Scheme’s existence, rather than the paucity of eligible applicants in the Territory.
5.91
The NT Government’s submission highlights how poor community education significantly impacts First Nations communities:
This is particularly amplified in remote areas where many Aboriginal Territorians may have English as a second or third language. Communication, marketing and information sharing about the Scheme is the responsibility of the Scheme Operator, however in the NT there appears to be very little knowledge sharing about the Scheme, particularly knowledge sharing in a culturally informed manner. It is the NT Government's view that the lack of understanding of the Scheme is one of the main reasons for the significantly reduced 2020 /2021 estimates for the NT Government liability.
5.92
The NT Government concluded that the risks of a continued poor approach to community awareness and education has the potential to escalate risks across the operation of the NRS:
The delay in implementing a comprehensive communications strategy is likely to have two serious consequences. The significant shorter life expectancy rates of Aboriginal Territorians means there is a potential risk of vulnerable eligible Territorians not living long enough to learn about and access the Scheme. Secondly, leaving a void of information may allow the space for other agents to move into the space and charge redress recipients for assisting with redress applications.
5.93
In response, the NT Government, in partnership with redress support services, commenced delivery of training and information sessions for stakeholders, service providers and staff who work at the grassroots. Since the commencement of the NRS, the team has presented to over 1,344 stakeholders.
5.94
PWDA highlighted that there are significant barriers for people with disabilities accessing the NRS, and subsequently there is a need for existing disability service providers being supported to make referrals to redress support services. Effective community education materials play a vital role in supporting access:
We are finding that many helping professionals across the disability, health, housing and justice sectors are unaware of the scheme or have very limited information, and generally are not proactive in providing accessible information to people with disability about the Scheme when disclosures of potentially relevant child sexual abuse are made. This lack of awareness and proactivity present significant barriers to raising awareness of the Scheme among people with disability’.
5.95
This was mirrored by Micah Projects who highlighted that the group of survivors they are supporting is quite limited. Micah suggested that this is a reflection of poor community education activities undertaken in diverse communities:
[O]ur redress service has not supported one member of the deaf community nor anyone under the age of 30. While this is due, in part, to our lack of resources and our inability to divert personnel to at least these cohorts, we know these cohorts are entitled to access redress. I think we have an ethical obligation, as does the scheme and the department, to make sure that we're providing information to these members that are marginalised and aren't engaging in the processes.
5.96
When considering how to improve community education activities and materials, VACCA emphasised the need for First Nations outreach to be led by community:
Another critical priority is our outreach service to survivors in the community, which is aboriginal led. As an Aboriginal service provider, we need to ensure that we build trust and we keep that trust in our community. That is why we believe this messaging should come from us, the Aboriginal community. Outreach from an Aboriginal led service is [inaudible] and more effective than coming from government.
5.97
DSS acknowledged that improvement is needed and has engaged a program of work to address identified needs:
The Government has committed $4.1 million over four years for targeted communication activities to improve awareness of the Scheme, increase engagement with support services, and increase access to redress amongst Aboriginal and Torres Strait Islander peoples, people with a disability, culturally and linguistically diverse populations and other vulnerable cohorts.
Committee Comment
5.98
The Committee notes that estimates of survivor participation have been reduced to almost half of the originally anticipated 60,000. The Committee agrees that this is due to a broad range of complex reasons and that increased civil litigation options are one element. The Committee supports the broadening of options that uphold choice and self-determination for survivors.
5.99
For the NRS to meet the needs of survivors who wish to avoid a civil claim, the NRS must be less traumatic and offer procedural ease. If survivors can reasonably expect similar administrative timeframes and associated trauma, the Committee understands that many survivors rightfully choose to pursue a civil claim for an increased award which can then fund ongoing therapeutic care as chosen by the survivor.
5.100
The Committee is concerned that poor community education has affected participation rates. Firstly, current materials are not fit for purpose. Secondly, redress support services need to be given the tools and skills to deliver community education materials. These services are largely funded to provide direct support to survivors who are already aware of the NRS. For many, providing education is an additional and separate task to other support programs. Support from DSS is essential for this work to be effective.
5.101
The Committee is concerned that survivors in gaol are being excluded from the NRS and agrees that the current limitations require reconsideration. There should also be consideration given to existing processes as the length of time it currently takes for special exemptions to be granted can be excessive.
5.102
The Committee notes evidence of younger survivors who are reporting abuse in personal development environments that may not represent traditional institutions. The Committee agrees that this needs to be considered by DSS to ensure that there is clear information for people prior to submitting an application.
5.103
The Committee recommends that funder of last resort provisions be expanded to ensure that all survivors can access the National Redress Scheme if they wish to do so.