Survivor experiences of the National Redress Scheme
4.1
This chapter considers aspects of the National Redress Scheme (NRS) application process that have been identified as requiring consideration as part of the second anniversary review. Overarching principles to improve the application process, including communication and timelines, are discussed at the start of the Chapter. The three outcomes of a redress application: the award of a redress payment, access to counselling and direct personal representations are each considered separately.
4.2
Survivors and redress advocacy groups indicate that significant reforms are required across the breadth of the NRS process to ensure that the NRS fulfils its mandate whilst doing no harm.
Application process
4.3
Preparing an application is often a stressful and traumatic experience for survivors. Beyond Brave noted that it can take months for an applicant to finalise their application. One survivor said it took 17 months to finalise their application.
4.4
DSS highlighted that Redress Support Services are available to assist survivors during this process. Survivors noted the lack of counselling support available when starting the application process. Supports appear to comprise practical assistance in completing the application form rather than the provision of ongoing psychological support.
4.5
Survivors can complete the application form on their own, seek assistance from a Redress Support Service or engage lawyers to assist. Support services stated that there is a general lack of understanding within local communities about the NRS, highlighting that First Nation communities are one group where greater communication about the NRS and support options is needed. People with Disability Australia noted that whilst 60 per cent of applicants have a disability, only 10 per cent of those people have identified that a Redress Support Service assisted them with their application.
4.6
The lack of published guidelines for decision making limits the ability of survivors and their advocates to understand what should be included in an application. knowmore and Victorian Aboriginal Child Care Agency (VACCA) noted that without a framework they cannot advise survivors on what constitutes extreme circumstances. Tuart Place also highlighted that support services are unable to tell survivors how relevant prior payments will be apportioned. Both aspects can have a significant effect on the total amount of redress offered to a survivor.
4.7
The way that information is handled in the NRS was raised by witnesses. Once an application is received by the Department of Social Services (DSS), relevant information is sent to the institutions named. If the institution provides DSS with additional information to assist the Independent Decision Maker, the NRS retains that information. It is not provided to the survivor for consideration or response.
4.8
It was suggested that preventing a survivor from being able to access all the information considered by the Independent Decision Maker is a breach of natural justice, as the applicant is required to accept the offer for redress based only on the information they provided. One survivor stated:
The respondent’s response is treated as a protected disclosure, and I will not be provided with a copy. … I should be able to provide a response to the respondent’s response to the decision-maker so he or she is able to make a fully informed decision on my application for redress. Not to be able to do so is a denial of my right to natural justice.
Communication with applicants
4.9
There was a range of testimony heard relating to communication practice by the NRS. Support services acknowledged that DSS is engaging at a policy level with advocacy groups through roundtables and open to hearing feedback. Advocacy groups report that whilst being heard is positive, they are frustrated that change has not yet been seen.
4.10
Witnesses had varied experiences with caseworkers at DSS. Some individual caseworkers are working with empathy when contacted, while others appear to be ill-equipped to respond adequately to the needs of survivors.
4.11
There are inadequate levels of outward communication with applicants. Many survivors and advocacy groups spoke of a survivor receiving a phone call from the NRS to acknowledge receipt of an application and verify their identity, and then having no communication at all until a decision had been made.
4.12
Survivors spoke of how a lack of regular updates affects them. One survivor stated that the not knowing had a significant effect on her mental health:
I wasn’t just a victim once; I was a victim twice. But really I feel like I was a victim a lot more since all this has been going on.
4.13
Another survivor waiting for a decision stated:
Since I’ve been involved with the Redress Scheme I’ve also felt that I am nothing more than a number and I was having dehumanising experiences brought upon me. It causes me flashbacks and reminds me constantly of the abuse I suffered. … I am a person who has needs. I am not a number to be processed without care and consideration. This lack of understanding and empathy makes me feel that I am not worth anything and that I need to be gotten rid of as soon as possible.
4.14
Whilst the new practice of assigning caseworkers to individual survivors was agreed to be a positive step, concerns existed in relation to the turnover of staff, and the failure of the NRS to notify survivors of any changes in caseworker. Additionally, survivors spoke of the frustration at contacting their caseworker for updates to be told that they were unable to receive any additional information or sense of processing timeframes.
4.15
Concerns relating to complaint management were also raised. Tuart Place highlighted that it is not possible to make a formal complaint verbally to the NRS and outlined the problems this can create for survivors who can have limited literacy skills and access to technology at home. The support service noted that once a complaint is made via email, it is sent to a general complaints section of DSS, not the NRS directly. Following submission, a generic email is received in response. This can create anxiety for survivors who are wary of large institutions.
Nominees
4.16
A survivor can nominate someone to communicate on their behalf in relation the NRS application process. This option is included in the application form for every survivor to consider. Nominees can receive copies of letter, ask questions about a person’s application for redress, receive phone calls about a person’s application, provide information and ask for an offer of redress to be reviewed. A significant number of applicants chose to have a relative, advocate, lawyer or counsellor act in this way.
4.17
Despite a nominee being appointed, DSS is contacting survivors directly without prior notice. This practice is causing great harm to survivors who are not prepared. Beyond Brave stated:
One of the key issues we have encountered is that nominees are often left out of the process, even when we have stressed the importance of not contacting the client without calling us first.
4.18
CLAN gave an example of one survivor who is unable to read or write and lives alone. The NRS called her directly on a Friday afternoon, without including CLAN, her nominee. The caseworker told her that her application had not been successful. The failure of the NRS to work with her nominee meant that she received the devastating news of her rejection alone, with no one ready to provide support.
4.19
A second example of nominee systems failing was a situation where the NRS told CLAN that they could not discuss a particular matter as there was no evidence of CLAN being appointed as nominee for a survivor. In response, CLAN had to provide the confirmation letter that the NRS had previously sent to them confirming the nominee arrangement.
Timeframes for application processing
4.20
Survivors did not understand why applications took so long to be determined and spoke of the trauma caused by long wait times. This view was strongly shared by support services. Noting that it is difficult to determine an average given the nature of applications being different, witnesses suggested that the average processing time would be between 12 and 18 months. For applications received between 1 January 2019 and
30 June 2019, DSS said the average processing time was approximately eight months. Shine lawyers noted that civil claims can usually be resolved within a shorter timeframe than a redress application.
4.21
DSS acknowledges that timeframes for the processing of applications is taking longer than expected and that the scheme is ‘not providing the fast, simple, trauma-informed response that survivors deserve’. Reasons given by DSS for long processing times include the number of institutions involved in an application, whether all institutions named are participating in the scheme, and the availability of information to support an application. To address the backlog of applications, an additional $11.7 million was provided to enable the employment of additional Independent Decision Makers in the 2019-20 financial year.
4.22
One survivor explained the pain that waiting causes:
[T]hey had to put my application on hold while they sent further information off to the institution. One was a church-run institution, and the other was Westbrook. While that was happening, your application was put on hold. It's difficult. During the whole process, you ring and you try, but they won't tell you where it's at and they won't tell you what's happening with it. You don't know whether it's going to be accepted.
4.23
It was suggested that the introduction of legislated time frames may improve the scheme.
Priority Applications
4.24
In recognition of the age and health of survivors, the NRS has adopted a priority stream for applications. If a survivor qualifies for the priority stream, institutions will have four weeks, instead of eight, to provide the NRS with information regarding the application.
4.25
There does not appear to be a clear process for identifying or processing priority applications. For example, the previous Joint Select Committee found that the application form has no questions asking if a survivor has a terminal illness, so DSS would be unable to determine the need for priority processing without additional information.
4.26
It does not appear that priority cases are being resolved at a significantly faster rate than non-priority applications. Beyond Brave stated that they are aware of priority applications that remain unresolved after 15 months.
4.27
DSS note that one factor influencing the progression of applications is the number of applications naming multiple institutions, which has exceeded initial expectations. Over 70 per cent of applications are naming more than one institution, and 1800 applications name four or more institutions.
4.28
DSS confirmed that as at 7 February 2020, 19 survivors had died prior to learning that their application was successful. Redress payments were made to their estates in each circumstance.
Committee Comment
4.29
Current NRS application processes can re-traumatise survivors. It is essential that the application process and practices are reformed to ensure the mitigation of harm to the survivor. The Committee agrees that the second anniversary review must consider the issues raised by survivors and their advocates as a matter of priority.
4.30
The Committee agrees that COVID-19 presents additional challenges for survivors, the support services assisting them and DSS. The Committee notes that the requirement for a redress application to be accompanied by a Statutory Declaration is a legislative requirement under section 19, 2 (d) of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018. As such an amendment and prompt consideration by the Ministers Redress Scheme Governance Board is necessary. The Committee hopes that this process is considered and actioned by all stakeholders as a matter of priority.
4.31
The Committee recommends that the second anniversary review examine the following areas for reform as a high priority:
Publishing the Assessment Framework Policy Guidelines to assist survivors prepare their application;
Providing each applicant with an individualised application flowchart, which maps out the next steps and approximate timeframes, to keep survivors and their nominees better informed about the progress of their application;
Establishing a more formal practice of regular updates to applicants;
Creating a direct complaint avenue for survivors, their nominees, support groups, and their advocates;
Streamline applicant and decision making processes to ensure faster processing times;
Implement measures to provide greater consistency for survivors engaging the National Redress Scheme; and
Reviewing guidelines and processes to guarantee the consistent and appropriate use of nominees.
4.32
The Committee recommends the removal of the requirement for a Statutory Declaration to accompany each application for redress, as is currently required under section 19, 2 (d) of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.
Redress payments
4.33
This section examines structural aspects of the NRS that influence the award of redress and discusses how these factors affect survivors.
Pathways to redress
4.34
The NRS has received significantly lower application numbers than was anticipated by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). Lawyers said one reason for this is that large percentage of survivors who choose to seek compensation from a civil action, instead of pursuing redress through the NRS. Various reasons for this were suggested, including the higher monetary rate often achieved for survivors and high rate of matters being settled out of court within timeframes similar to the NRS. Advocacy organisations supported this proposition, however no empirical research was provided to the Committee in this respect.
Cap on redress payments
4.35
Advocacy groups expressed concern that despite ongoing advocacy, the cap for redress remains at $150 000 and not $200 000 as recommended by the Royal Commission.
4.36
The lower cap may be a reason for survivors pursuing civil actions. While it is difficult to give an average, one lawyer suggested that civil actions tend to award ‘hundreds of thousands of dollars rather than the current average of the Redress Scheme, being $80 000’.
4.37
The effect of a lower cap is exacerbated when indexed prior payments reduce the total award amount. Saines Lucas Solicitors provided an example of a redress payment falling from $50 000 to $20 000 when a payment of $15 000 was awarded many years prior. The solicitors held that this is ‘grossly inadequate given the severity of the consequences for the victim of sexual abuse’.
4.38
CLAN highlight that indexing calculations should stop once a survivor submits their application. Currently indexing continues to apply while applications are considered. This includes applications on hold waiting for an institution to join the NRS.
4.39
The Committee is opposed to the practice of indexing payments. The matter of indexation will be examined in the Committee’s next interim report. Prior to that consideration the Committee believes an immediate step needed to address some of the inequity is that the indexing practice be amended as a matter of urgency.
4.40
DSS advised that as at 7 February 2020, 449 payments had been adjusted due to prior payments, with the average value of the adjustment being
$34 574.02. DSS also confirmed that the maximum adjustment made was $150 000 which reduced the redress award to zero.
4.41
The Committee recommends that:
The practice of indexation of prior payments be removed; and
Until the removal of indexation is implemented, the practice of indexing prior payments is amended so that indexation is applied up until the date of application submission, rather than the date of payment offer.
Redress Matrix
4.42
The matrix for assessing the amount of redress awarded to a survivor was widely criticised. Survivors, advocacy organisations, service providers and lawyers are in agreement that linking the amount of redress awarded to the physical type of abuse perpetrated fails to recognise the lifelong harm that any sexual abuse has on a survivor. Of grave concern was the decision to limit the payment of exceptional circumstance to penetrative abuse. This approach fails to acknowledge the harm caused by other types of sexual abuse. The Australian Lawyers Alliance stated:
The award needs to be clearly related to the amount of damage done, not the type of sexual abuse.
4.43
Additionally, VACCA stated that survivors may not disclose penetrative abuse due to ‘the shame experience’.
4.44
The departure from the recommendations made in the Royal Commission was highlighted by survivors. One survivor stated:
It penalises the victims. The victims have been retraumatised, there's no doubt. It should be more transparent. I don't know how they came up with the matrix. There was no following of the recommendations of the royal commission—very little of it. That's what makes you think that it's been structured to protect institutions, and that would be predominantly the church groups, the charities et cetera.
4.45
Ms Bianca Anstis suggested that the definition of penetration be clarified. This would prevent a limited interpretation being applied.
4.46
Many support services also raised concerns that the redress scheme was limited to sexual abuse, which has not been clearly defined, and suggested that all emotional and physical abuse should be included.
Requirements of accepting a redress payment
4.47
Advocates criticised the six month time limit to respond to an offer of redress, noting that emotional duress may mean survivors need more time to assess their options. Blue Knot highlighted that survivors mental health is significantly affected at the time of receiving a decision. They noted that stress can sometimes mean survivors accept the offer without extensive consideration or the provision of legal advice in order to quickly resolve the process.
4.48
Extra challenges arise as detailed reasons for a decision, or the amount of redress offered, are not provided to the survivor. This limits the ability survivors and their support services to decide if the offer is fair. A lack of detailed reasoning can also compound feelings experienced by survivors who are not provided with an institution’s response earlier in the process.
4.49
The Uniting Church also raised the lack of information provided in a determination, and stated that the process could be improved if:
[F]urther information was provided in the Reasons for Determination regarding how the assessment framework has been applied, the amount of any prior legal costs which have been offset against a prior payment and how the institution’s gross liability has been determined, particularly in situations whether [sic] there are multiple sets of abuse or responsible institutions.
4.50
DSS confirmed that a survivor must sign a deed of release when accepting an offer, and that is the reason a six month review period is in place. A senior official stated:
I know there are a couple of hundred offers out there at the moment awaiting acceptance because people are considering their options.
4.51
Survivors also question why they must waive any future rights to compensation when accepting an offer of redress. One survivor highlighted that there is an important distinction as redress is designed to recognise prior harm done, while compensation is designed to meet the lifelong needs that have arisen as a result of harm caused. Another survivor stated:
‘It’s not compensation; its supposed to be recognition. You can’t say it’s recognition and then say you have to waive your rights to compensation’.
4.52
A combination of these factors were linked to feeling of justice for survivors being sought, but not achieved. One survivor stated:
I think the biggest healing component in this whole process for victims of sexual abuse is going to be if they feel that they have been justly dealt with. That doesn’t resonate for me at the moment, if that makes sense, and I think that’s the critical thing.
Committee Comment
4.53
The Committee is concerned that survivors feel as though they do not receive enough information when asked to accept a determination. Survivors need to be able to weigh up their options clearly as accepting a redress offer will have significant legal consequences. Reform in relation to the practice of signing a waiver to forgo any future rights to compensation should be considered by the second anniversary review.
4.54
The Committee believes there is merit in the second anniversary review examining all divergences in the structure of the NRS and recommendations made in the Royal Commission to ensure that the NRS can fulfil its aspirations.
4.55
The Committee recommends that the second anniversary review examine the following areas for reform as a high priority:
The provision of additional information in the final determination and offer provided to a survivor;
Appropriateness of the requirement for survivors to sign a deed of release when accepting redress payments, restricting any future compensation claim through civil courts;
Appropriateness of indexing prior payments; and
Appropriateness of the current cap and matrix for calculating redress payments.
Access to counselling and psychological care services
4.56
This section considers the availability and accessibility of counselling and psychological care services along with specialist financial counselling, for survivors engaging with the NRS.
4.57
There are service gaps for survivors seeking counselling and psychological care services in rural and remote areas, including access to culturally safe and sensitive healing programs and specialist financial counselling. These concerns are heightened during the COVID-19 pandemic with face-to-face support services needing to adapt and find alternative ways to support survivors when physical offices are closed.
Provision of counselling services
4.58
DSS acknowledge that the counselling and psychological care services offered to a survivor will depend on where a survivor resides. Survivors living in South Australia, Western Australia and overseas can receive a lump sum $5000 as part of their offer. As 7 February 2020, the NRS had paid
$936 250 to survivors for counselling and psychological care services as part of offers of redress. In relation to survivors living in all other States and Territories, survivors are connected to a free, local service for a minimum of 20 hours of counselling as part of their offer. DSS state that as 7 February 2020, 536 referrals have been made.
4.59
In states that choose to provide services, some survivors felt that they were being pushed to use existing government funded counselling and psychology services, instead of specialised providers.
4.60
Both survivors and advocacy services highlighted that gaps currently exist in the following areas:
Face to face services in regional and rural areas,;
Culturally sensitive services;
A lack of service for family members of survivors.
4.61
Administrative processes are also creating delays in accessing support. One survivor’s nominee explained how a DSS caseworker told him that she had ‘contacted all the psychologists in the public system in [the] area but she was finding it very difficult to find anything suitable.’ With the permission of the caseworker, the nominee on the same day found a specialised trauma counsellor within the region who agreed to work with the survivor through the NRS. The caseworker thanked the nominee for researching options, and agreed to this arrangement. Since this verbal agreement, two months have passed and the NRS paperwork has not yet been provided. This means the survivor is still unable to access psychological care services despite great need.
4.62
Many organisations advocated for counselling to be available from the time a survivor first considers applying for redress and expresses a desire for psychological assistance. VACCA highlighted that culturally sensitive healing is required following the submission of an application, and prior to a final determination being made. They state:
Changes in access need to be made to ensure survivors can access cultural healing when they need it, not waiting for further distress to develop.
4.63
Many witnesses stated that there should not be a time or occasion of service limit on psychological care services as recommended by the Royal Commission.
4.64
DSS noted that Redress Support Services can assist survivors at any time, including the application drafting period. It is unclear if this includes specialised counselling, or references advocacy supports. Whilst Care Leavers Australasia Network confirmed they offer counselling services at any time, other services suggested there is limited scope for providing specialist psychological care services prior to a determination being made.
4.65
In relation to concerns regarding access to quality counselling services, DSS state that this matter will be reviewed as part of the second anniversary review.
Provision of financial counselling services
4.66
Survivors can have limited financial literacy and require support when planning for the receipt of a redress payment. knowmore expressed concern that survivors can be referred to the National Debt Hotline, which in some regions is auspiced by Anglicare and the Salvation Army. There can be grave consequences for survivors if appropriate support is not made available before receiving the funds.
4.67
Witnesses shared examples of survivors being pressured to share the payment with family or friends, or being used to clear a partner’s debt. The Alliance of Forgotten Australians highlighted a case where a church that was responsible for abuse supported a survivor to nominate the church in the survivors will.
4.68
Relationships Australia WA and Tuart Place highlighted that financial counsellors contracted by the NRS need to be trauma informed about the characteristics of survivors to ensure positive outcomes.
Committee Comment
4.69
The Committee agrees that the provision of high-quality specialised counselling and psychological care services is essential to ensuring that survivors and their families can engage with the NRS in a way that limits re-traumatisation. Likewise, high-quality, trauma-informed financial counselling can assist survivors to realise their aspirations for any redress payment received. This aspect is vital to the success of the NRS, yet there appears to be no provision for funding specialist financial counselling services under the scheme.
4.70
The Committee recommends that the second anniversary review examine the following areas for reform as a high priority:
Increasing access to counselling and psychological care services, including specialist financial counselling, for survivors who intend to apply for the scheme, and throughout the application process;
Expanding the provision of out-of-hours support and counselling services;
Expanding the provision of culturally sensitive services with a particular emphasis on the needs of First Nation’s people; and
Removing any caps or limits on counselling and psychological care services for survivors.
Direct Personal Representations
4.71
A direct personal response is an opportunity for a survivor to tell their story to a representative of the institution that is responsible for their abuse and to receive an apology and an explanation of what the institution is doing to stop anyone else from being abused in the future. A direct personal response can be done in a variety of ways including a face-to-face meeting, a written letter or other arrangements, depending on your circumstances.
4.72
The NRS website explains that a direct personal representation is not possible until a determination on an application has been made. It states:
If you receive an offer of redress and want to accept a direct personal response, you will need to tick the appropriate box on your acceptance document.
The Scheme will then send you the details of the contact person(s) at the responsible institution(s) who will work with you to arrange your direct personal response. You, or your support person, can contact that person when you feel ready to start discussing what you would like to happen in your direct personal response.
4.73
DSS confirmed that fifty-two per cent of applicants indicate that they may pursue a direct personal response following the award of redress. Despite the high rate of interest, as at 30 June 2019, institutions reported that only eight direct personal responses were completed. DSS suggested that this could reflect low number of institutions signing up in the first year, and that the reported figure for the current financial year may be higher.
4.74
The Uniting Church submitted:
We understand and support the policy rationale for ensuring that survivors have control of whether and when to commence the DPR [direct personal response] process. However, we are concerned that low take up might indicate a barrier in having to make yet “another” call, to someone they don’t know. We … consider that it would be useful if we could add material to the applicant’s final correspondence from the Scheme Operator, which outlines the institution’s approach to DPRs and warmly invites the initial contact to be made.
Committee Comment
4.75
The Committee notes the importance that the Royal Commission placed on the ability of a survivor to access a direct personal response and encourages DSS to ensure that the second anniversary review consider ways to support survivors to access this aspect of the NRS.
4.76
The Committee recommends that the second anniversary review examine options to facilitate and better support survivors to seek a direct personal response as a high priority.