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 right of the child to be protected from abuse, neglect, sexual exploitation and sexual abuse and the right to state-sponsored recovery for child victims of abuse – Articles 3, 19, 34 and 39 of the Convention on the Rights of the Child (CRC)
• The right to privacy – Article 16 of the CRC and Article 17 of the International Covenant on Civil and Political Rights (ICCPR)
• The right to equality and non-discrimination – Article 2 of the CRC
• The right to health – Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• The rights of people deprived of their liberty – Article 10(1) of the ICCPR
• The right to effective remedy – Article 3(a) of the ICCPR.

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]