Introductory Info
Date introduced: 15 November 2023
House: House of Representatives
Portfolio: Social Services
Commencement: Sections 1 to 3 commence on Royal Assent. Schedule 1 commences 7 days after Royal Assent. Schedule 2 commences on the earlier of Proclamation or 6 months after Royal Assent
Purpose of
the Bill
The purpose of the National
Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023 (the
Bill) is to amend the National Redress
Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress
Act) and other Commonwealth Acts to:
- allow
redress applicants to provide additional information and documents with their
requests for internal review of an initial determination (Part 1, Schedule 1)
- allow
survivors who are in gaol to make applications for redress, and to amend the
special assessment process under the Redress Act so that it is only
required for persons who have committed specific classes of offence, or where
there are ‘exceptional circumstances’ (Part 2, Schedule 1)
- make
changes to the Scheme’s protected information framework by introducing
additional authorisations for the disclosure of protected information (Part 3,
Schedule 1)
- correct
drafting errors with respect to the calculation of redress payments following
the passage of the National
Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last
Resort and Other Measures) Act 2021 (Part 4, Schedule 1) and
- introduce
a new assessment process where an institution identified in a person’s
application for redress later joins the Scheme, or where a government later
agrees to be the funder of last resort for the institution (Schedule 2).
Background
Operation
of the National Redress Scheme
The National Redress Scheme (the
Scheme) was established
in 2018 in response to recommendations made by the Royal
Commission into Institutional Responses to Child Sexual Abuse. It is
established under the Redress Act
and is scheduled to be in place for 10 years.
The Scheme aims to recognise and alleviate the impact of
past child sexual abuse that occurred in an institutional context, providing
people a simple, trauma-informed way to access redress.
The Scheme provides three
elements of redress to eligible applicants:
- a
monetary payment of up to $150,000
- access
to counselling and psychological services and
- the
option to receive a direct personal response from a responsible institution(s).
A person will meet the Scheme's eligibility
requirements where there is a reasonable likelihood that:
- the
person was sexually abused
- the
sexual abuse is within the scope of the Scheme
- the
sexual abuse is of a kind for which the maximum amount of redress payment that
could be payable to the person would be more than nil (i.e. that was within a
type of abuse under the Assessment Framework)
- one
or more participating institutions are responsible for the abuse and
- the
person is an Australian citizen or a permanent resident.
The Redress Act sets out who is eligible to apply
for redress, the objectives and principles under which the Scheme operates, and
the requirements for institutions participating in the Scheme:
An applicant can only make one application for redress
through the Scheme, although their application can include multiple claims of
abuse. A person who accepts an offer of redress is required to release the
responsible participating institution/s from liability for sexual abuse and
related non-sexual abuse that is within scope of the Scheme. This means that an
applicant cannot pursue an institution for compensation through the civil legal
system for the abuse that they received redress for under the Scheme, providing
legal certainty for [non-government institutions] NGIs that participate in the
Scheme. The Scheme holds institutions accountable for past sexual abuse,
requiring a responsible institution to pay for compensation. NGIs are liable
for abuse regardless of the Scheme’s existence; joining the Scheme does not
create liability for past wrongdoing, and NGIs can still be pursued through
civil litigation.[1]
The Scheme operates
on a co-operative basis between Commonwealth, state and territory
governments. It is underpinned by referral legislation in each state, which
mirrors the Redress Act.[2]
Second
anniversary review of the National Redress Scheme
Subsection 192(1) of the Redress Act required the
Minister to cause a review to be undertaken of the Scheme as soon as possible
after the second anniversary of when the Scheme commenced.
On 17 June 2020, the then Minister for Families and Social
Services, Senator Anne Ruston, announced
the Second
Year Review of the Scheme (the Review) would commence in July 2020.[3]
Ms Robyn Kruk AO was appointed to conduct the independent review of the Scheme
and she delivered her final
report to the Minister (the Review Report) at the end of March 2021:
The window for making meaningful changes to the Scheme is now
extremely limited. The Review has focused on those issues that have the most
potential for improving survivor participation and experience with the Scheme
and sustaining scheme viability. This includes facilitating greater access for
people who are likely to be eligible and are not aware of the Scheme or
reluctant to access it because of negative reports about its operation.[4]
The Review called for ‘a significant and urgent’ reset of
the Scheme and made 38 recommendations to increase access to redress and
improve the Scheme’s operation (see pages 15–24 of the Review’s
Report).[5]
In June 2021, the Morrison Government released its interim
response to the Review, where it stated it was ‘prioritising action on 25
of the 38 recommendations in full or in part … with the goal of providing a
final response to all of the Review’s recommendations by early 2022’.[6]
In September 2021, the Parliament passed the National Redress
Scheme for Institutional Child Sexual Abuse Amendment Act 2021 which
sought to implement certain recommendations of the Review. In November 2021,
following agreement by all governments, the Parliament passed the National Redress
Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort
and Other Measures) Act 2021, which extended the Scheme’s funder of
last resort arrangements.
On 4 May 2023, the Albanese Government released
the Final Government
Response to the Second Year Review, noting it had taken longer than expected
to consider the recommendations. According to Minister Rishworth’s second
reading speech on the Bill, ‘of the recommendations, 29 were supported in
full, five in part and four were not supported’. With respect to the 4
recommendations not supported, this
was ‘due to concerns they could create inequities or could prevent
institutions participating in the Scheme, which would ultimately prevent
survivors being able to access redress’.
One of the recommendations which was not supported by
governments’ was recommendation
4.3, which recommended the Australian Government provide a minimum monetary
redress payment of $10,000, even where a relevant prior payment would otherwise
have reduced the redress payment to a lesser amount.[7]
The Government also did not support changes to the legislative framework
concerning the Scheme’s standard of proof (recommendation
3.4).[8]
Committee
consideration
At the time of writing, the Bill has not been referred to
any committees.
Senate Standing Committee for the Scrutiny of Bills
At the time of writing, the Senate Standing Committee for
the Scrutiny of Bills had yet to consider the Bill.
Policy
position of non-government parties/independents
At the time of writing, non-government
parties/independents do not appear to have commented on the Bill.
Position of
major interest groups
At the time of writing, stakeholders do not appear to have
commented on the Bill.
Financial
implications
The Explanatory
Memorandum states that ‘in the 2023-24 Budget, $7.4 million was provided to
implement the Government’s Response to the Second Year Review of the Scheme’.[9]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act.
This Bill engages with the following human rights:
The Government considers that the Bill is compatible.[10]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Parliamentary Joint Committee
on Human Rights had yet to consider the Bill.
Key issues
and provisions
Provisions
in Schedule 1 of the Bill
Provision of additional information for internal review
applications
Subsection 75(2) of the Redress Act currently
allows a decision maker (either the Operator of the Scheme[11]
or an independent decision-maker) to vary, set aside or affirm the original
decision of the Operator to approve, or not approve, an application for
redress.
The Review Report identified a number of barriers which
led to applicants being hesitant to have their applications reviewed, including
that applicants are currently prohibited from providing additional information
with their review request, and the risk of receiving a worse outcome.[12]
The Review Report recommended that the Government review
the process for internal review of redress claims and amend the legislation to:
- allow
for the provision of additional information with an internal review request
- ensure
all reviews are to be without prejudice to the original determination (i.e.
original payment determination cannot be reduced on review) and
- publish
and make easily accessible an approved mandatory template for review requests.[13]
The Government stated that it supported this
recommendation, with the amendments in Part 1, Schedule 1 of the Bill somewhat addressing
the first two bullet points.[14]
In particular, item 2 of Schedule 1 inserts proposed
subsection 73(3) which provides that an application for review may be
accompanied by new information and documents the person making the application
considers relevant to the review of the original determination.
Item 4 repeals subsection 75(3) and inserts proposed
subsections 75(3) and (4). These amendments will allow the reviewer to have
regard to new information provided by the applicant and prevent the reviewer
from reducing the amount of the redress payment that was determined in the
original determination, except in certain circumstances. The reviewer will
still be able to reduce the redress payment where either:
- the
reduction is the result of considering new information or
- the
Operator has reasonable grounds to believe that information given, a document
produced, or a statement made to an officer of the scheme in relation to the
application for redress, or the application for review, is false or misleading
in a material particular
and the reduction is appropriate, having regard to the principles
set out in section 10 of the Redress Act.
Serious
criminal convictions and applications by persons in gaol
The Redress Act currently imposes restrictions on persons
in gaol or persons the subject of serious criminal convictions from applying
for redress under the Scheme.
Paragraph 20(1)(d) of the Redress Act provides that
an application for redress cannot be made by a person if they are in gaol
(within the meaning of subsection
23(5) of the Social
Security Act 1991) except in exceptional circumstances. According to
the Review Report:
The restriction against prisoners applying was in part a
response to concerns that confidentiality and access by support services would
be difficult. However, given the Royal Commission report stated the evidence
that people in gaol are more likely than the general population to have been
victims of child sexual abuse, the restriction on prisoners applying to the
Scheme is perceived as unjust.[15]
Section 63 of the Redress Act also provides for a
separate assessment process for survivors who have been sentenced to a term of
imprisonment of five years or more for a single serious criminal offence against
the law of the Commonwealth, a state or territory, or a foreign country. As
explained in the Explanatory Memorandum:
The special assessment process requires the Operator to write
to certain persons, including the relevant Attorney General of the State,
Territory or Commonwealth, requesting advice as to whether the determination
should be made. A person with a sentence of imprisonment of 5 years or longer
for a single offence must go through a special assessment process before they
can be deemed entitled to access redress (subsection 63(2) of the Redress
Act). The person will not be entitled to redress unless there is a determination
in force under subsection 63(5) that the person is not prevented from being
entitled to redress.[16]
The Review Report noted that these restrictions
‘constitute a significant bar discouraging applicants and deterring other
potentially eligible applicants from applying’.[17]
The Review Report stated that as at 31 December 2020 the Scheme had received
309 applications or requests for determination as to whether they are able to
make an application from survivors who were in gaol and/or with serious
criminal convictions (compared to 9,117 applications received overall during
that period).[18]
The Review Report recommended that the Government amend
the eligibility criteria to include a single application process for all
applicants, including allowing for applications to be made by non-citizens,
non-permanent residents, prisoners, those with serious criminal convictions and
care leavers if they were abused in care over the age of 18 and under the age
of 21 prior to
1 November 1974.[19]
In its response, the Government stated that it ‘supports expanding eligibility
to increase access to redress’.[20]
Items 6 and 7 of Schedule 1 will amend section
20 of the Redress Act to allow survivors who are in gaol to make
applications for redress. Items 9 and 10 amend section 63 of the Redress
Act to provide that the special assessment process will only apply where:
- the
person is sentenced to imprisonment for 5 years or longer for unlawful killing,
a sexual offence, a terrorism offence, or certain related offences or
- the
Operator has determined that the person should undergo a special assessment
process.
As is currently the situation, a person who has committed
one of the above classes of offences will not be entitled to redress unless
there is a determination in force under subsection 63(5) that the person is not
prevented from being entitled to redress.
Disclosure
of protected information
Certain information about a person or an institution is protected
information and can only be obtained, recorded, disclosed or used in accordance
with the provisions in Division 2 of Part 4-3 of the Redress Act.[21]
The amendments in Part 3 of Schedule 1 of the Bill will
allow for protected information to be disclosed by the Operator for the
following additional purposes:
- to an
applicant that an institution is not participating in the scheme (proposed
section 95B)
- to a
public trustee or similar institution about an applicant in relation to
financial management orders (proposed section 96A).
The amendments in items 13 and 14 will remove the
current restrictions which prevent a person engaged by a participating
institution from disclosing protected information to another institution within
the same participating group for the purpose of an internal investigation and
disciplinary procedures.
These amendments respond to Recommendation 3.14 of the Review
Report which provided:
The Australian Government review the scope and content of the
protected information provisions in the legislation, and have specific regard
to the protection of information provided by applicants and the permitted use
by the Scheme Operator and institutions of that information, including the
appropriateness of protections provided to institutions.[22]
In its response, the Government stated:
All governments support progressing survivor focused changes
that would enable disclosure of protected information, including to improve
transparency regarding an institution’s participation status and to support
engagement and on boarding of institutions, and to a relevant public trustee to
facilitate a redress payment being made. The proposed amendments balance the
ongoing protection of an applicant’s information while authorising the use and
disclosure of information where there is a genuine and justified need.[23]
However, this recommendation was largely drafted in
response to concerns raised by stakeholders about the level of information that
was being shared with institutions and how it was being protected, which has
not been fully addressed in the Government’s response.[24]
Provisions
in Schedule 2 of the Bill
The most significant reforms relate to the establishment
of a new assessment process where an application for redress has been finalised
(that is, where a person has accepted or rejected a redress offer, or the
Operator has determined not to approve the application).
Currently, under the Scheme, an applicant can only make
one application and is there is no process to review a finalised application.
The Review Report noted that the current arrangements are ‘problematic’ and
created issues for applicants where an institution has yet to join the Scheme:
In cases where an applicant has named several institutions,
only one of whom is participating in the Scheme, that person can elect to go
ahead with the initial application or to have the application put on hold
pending the other institution or institutions joining the Scheme. If the
applicant elects to go ahead, they are denied the opportunity to obtain redress
from the other named institution/s if or when they join the Scheme. However,
applicants can pursue other named institutions through civil litigation.
If the person elects to hold their application until the
other institutions have joined, they will also be financially disadvantaged
through delay and in terms of access to the other elements of redress. The
lapse of time will also minimise their redress payment while indexation will be
applied to any prior payment. They do not have the option of pursuing redress
at a later date from the institutions that have not joined.[25]
The Review Report recommended that the Government ‘review
the current restriction on survivors making a single application, and assess
this requirement to ensure fairness to the survivor and to acknowledge any
changes in their circumstances or additional available information’.[26]
In its response, the Government stated that ‘the principle
of a single application remains an important part of the Scheme’s design’ but agreed
to legislative amendments which will allow finalised applications for redress
to be reassessed where an institution identified in the application has
subsequently joined the Scheme or been listed under funder of last resort
arrangements.[27]
Schedule 2 of the Bill gives effect to this commitment by
inserting proposed Part 3.3 into the Redress Act which outlines
the process for reassessing determinations. Proposed section 71B sets
out the circumstances where an application can be reassessed (namely, where an
institution identified in the application, or in the course of dealing with the
applicant, has subsequently joined the Scheme or been listed under funder of
last resort arrangements). Proposed sections 71R and 71Q require the
Operator to identify each determination made under section 29 that may be
eligible for reassessment under the new arrangements and to contact the
relevant person.[28]
Importantly, the Operator can only make a reassessment
decision where the applicant (referred to as the reassessee) has agreed to have
their application reassessed (proposed subsection 71D(1)).
The Operator must, as soon as practicable, reassess the
current determination and make a decision (the reassessment decision), in
writing, which either affirms the current determination or set asides the
current determination and substitutes a new determination (proposed
subsection 71D(2)). In making the reassessment decision, the focus is on
the new institution having joined the Scheme:
The purpose of a reassessment is to account for the
previously non-participating institution in the determination as if they had
been participating, rather than undertake a fresh assessment of the whole
application. This may result in changes for an existing institution under the
reassessment decision, including a change to the amount of its redress
liability or responsibility for abuse. Additionally, information obtained for
the purpose of undertaking the reassessment may identify another participating
institution not previously identified that should be included in the
reassessment decision.[29]
If the Operator makes a reassessment decision to set aside
the determination and substitute a new determination, the Operator must give
the reassessee a new offer of redress (proposed subsection 71G(2)). As
noted in the Explanatory Memorandum, a person’s reassessment offer will not be
less than the amount of their previous offer.[30]
The reassessee may choose to accept or decline the new
offer of redress:
- if the
reassessee declines the new offer, the current determination and anything done
based on the current determination is not affected, and the new determination
has no effect from the time the new offer of redress is declined (proposed
subsection 71H(4))
- if
the reassessee accepts the new offer of redress, the new determination is taken
to be the determination made by the Operator under section 29 and the new offer
of redress, the reassessee’s acceptance of the new offer and the acceptance
document given by the reassessee are taken to be given in relation to the
determination under section 29 (proposed section 71K). The Operator must
give relevant institutions and participating jurisdictions notice of an
accepted reassessment decision (proposed section 71L).
Proposed sections 71M-71Q set out special
arrangements for where the reassessee dies before the new offer of redress is
accepted, declined or withdrawn, or before the reassessment decision is made,
or before the original determination is identified for reassessment.
The reassessee may apply to the Operator for a review of a
reassessment decision (proposed section 71U). However, the provisions in
Part 1, Schedule 1 of the Bill relating to providing additional information as
part of a request for review do not apply to reassessments (though decision
makers can still seek additional information from the person during the
reassessment).[31]