5.1
This chapter examines the views expressed to the Committee about participation by non-government organisations in the National Redress Scheme (NRS), and is split into two sections.
5.2
The first examines the lower than expected number of applications for redress that have been received in the first two years of the scheme’s operation, and the second examines the number of non-government institutions that have (or have not) signed up to the scheme, and steps that could be taken towards encouraging more to do so.
Survivor participation
5.3
Initial estimates put the numbers of individuals being eligible for redress under the NRS as up to 60,000. The actual number of applications in the two years of operation is much lower than this. At a public hearing, the Department of Social Services (DSS) told the Committee that:
At 14 February [2020] we have received 6,217 applications to date. Of those, 4,787 are on hand, with 545 of those on hold because at least one institution named is yet to join.
5.4
As well as the lower than expected number of applicants, there was a very low number of payments made. At 14 February 2020, 1,196 payments had been made to survivors. DSS stated that:
I think that is something we’re still looking into. We don’t have a really strong sense of whether people are waiting until the scheme is more mature or whether they’re waiting because it’s traumatising and it’s a difficult process.
5.5
DSS elaborated on the possible reasons for the low number of applications for redress relative to earlier expectations. DSS indicated that there were a range of factors for survivors, including whether the institution had joined up and whether they would apply or not. DSS noted that the survivors are able to apply at any time over the life of the scheme.
5.6
Additionally, DSS raised the possibility that civil avenues for justice may play a role and provide more options, particularly changes to civil litigation being made by state governments in line with the recommendations of the Royal Commission, which puts survivors ‘in a more central position to help decide the best recourse for redress or justice’.
5.7
Another barrier to making applications is a perceived lack of information available about the existence of the NRS. Shine Lawyers told the Committee that:
…when the Redress Scheme was introduced, there was a lot of work done to let people know about the scheme. However, that needs to continue, particularly in some communities where people still don’t know about the Redress Scheme. So I think that it is a continuous requirement for people to talk about the existence of this scheme and how people who have suffered abuse within institutions have this as an option or should seek legal advice in relation to alternatives.
5.8
Beyond Brave compared the publicity surrounding the NRS to the royal commission noting that the royal commission was publicised well in the community but suggested there may have been other reasons why the NRS was not.
I acknowledge that this is to do with the fact that the scheme did not want redress support services to be inundated and not be able to meet demand.
5.9
Beyond Brave elaborated that if possible inundation of support services was a concern, there may have been consequential lack of knowledge about the scheme, including some survivors not knowing about the scheme. Beyond Brave acknowledged that the presence of ‘misinformation about the scheme’ may make survivors reluctant to apply.
5.10
People with Disability Australia echoed this concern about the lack of information:
We’re also 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.
5.11
Relationships Australia Western Australia (RAWA) noted considerable public confusion about the existence of the NRS, and that it was often confused with the Western Australian Redress Scheme. Tuart Place echoed these comments, noting their own experience of encountering public confusion between the Western Australian state scheme and the NRS.
5.12
RAWA noted that awareness was a key factor in the age of people applying, proposing that the low number of young people applying may be due to a lack of awareness or misunderstandings. They noted that they were not aware of any public information campaign.
5.13
People with Disability Australia also commented on the fact it may be difficult to target certain groups including people in ‘hard-to-reach settings’ and those impacted by violence that was perpetrated against them.
So all of those sorts of complexities are there in terms of the messages getting to those particular groups of people.
5.14
Shine Lawyers noted the approach of the Defence Force Ombudsman in raising awareness of avenues for Defence Force personnel to report abuse
Part of the reason with the Defence Force Ombudsman scheme is that it’s a certain sector of the population that is entitled to that scheme, so it’s a bit easier to educate people and let people know about the scheme The feedback on the scheme and how people are treated within that scheme is, on the whole, quite positive, whereas with the National Redress Scheme I think it’s a broader group of people. The potential 60,000 are spread all around Australia and have had a number of different experiences, so it’s harder, I guess, to let everyone know.
5.15
Shine Lawyers argued for greater continued efforts at public education, explaining that when the NRS commenced that there was more media and training in communities. Shine Lawyers contended that this education did not appear to be taking place and suggested this public education continue.
…so that would be one suggestion – the appropriate people going out to communities, sitting down with support services for survivors of abuse and reinforcing that this scheme does exist and what’s involved with the process.
5.16
Like DSS, many witnesses put forward the accessibility of civil avenues for justice as a possible reason for the low uptake. The Australian Lawyers Alliance (ALA) stated that while ‘there’s no way we can put figures on it’, they are ‘aware of a fair amount of litigation’. The ALA was of the view that ‘many more are going down the common law litigious process than would be the case if the NRS was more adequate’.
5.17
Further, Shine Lawyers told the Committee that they provide advice to individuals on each case as to which option may be better, noting that a majority of people seeking legal advice end up deciding to undertake a civil claim rather than an NRS application.
5.18
Similarly, Ms Bianca Anstis notes that most survivors, ‘if there is sufficient evidence to mount a civil claim’ have chosen to do this instead of making a redress application.
5.19
Shine Lawyers outlined the factors that, in their experience, determined the direction an applicant took. They were the time involved, the amount of compensation as well as the prospects of success and the standards of proof required in a NRS claim. Shine Lawyers explained that most people that they were seeing tended to elect for a common-law claim.
5.20
According to People with Disability Australia, choosing civil litigation was sometimes linked to awareness of the scheme:
It could also be that there’s been more awareness of things like civil litigation for some survivors rather than the Redress Scheme, so that might’ve come up first and they may not know about the Redress Scheme.
5.21
People with Disability Australia discussed the reasons their clients had made the choice between civil litigation and redress which revolved around civil litigation being perceived as ‘perhaps offering greater compensation in dollar terms’ and for the survivor:
It’s not as if it’s about the money; it’s more about the concept of justice and that, if it’s a higher dollar amount, it serves an increased purpose.
5.22
Carolyn, a survivor, told the Committee about her thought process in weighing up the civil litigation and redress options:
Yes, the Redress Scheme is traumatic. But it would be less traumatic than having to stand up in the court and be fired at with questions and have people try to discount what you’re saying – having to go through the whole thing and be asked question after question, which I imagine would happen in a court case. You would be attacked, and it certainly shows.
5.23
Carolyn went on to explain her experience with attempting to access the NRS:
I haven’t put in for redress, but I have read the redress application. It took me a week to try and fill out what happened to me in the orphanage because I kept having to take time off to vomit.
5.24
Carolyn elaborated on her reason for not applying for redress:
I don’t know if I want to go through the trauma of everything. Also I get very upset if I think that there’s going to be a committee that sits there and tells me that they don’t think I’ve suffered that much.
5.25
Robert, a survivor, echoed Carolyn’s comments about the trauma of applying for redress:
If I had a big super fund and owned a house, I would not seek redress. I would not seek redress because it is so stressful and it brings so much to the fore that you don’t want to go through it. I am only doing it out of absolute, utter necessity; otherwise I wouldn’t be speaking to you today… If I could look after myself and I was in that gorgeous position, I would be applying for redress. I absolutely wouldn’t.
5.26
Another survivor, Phillip, told the Committee that making his application ‘was the most difficult thing I’ve ever had to do’.
5.27
Ms Suzanne Walker, a survivor, also noted the impact that trauma has on survivors’ capacity to apply to the NRS:
I know survivors who are trying to go alone with this and trying to do it online. There’s not a chance that I could have done this online. … for myself, I tend to disassociate, and when I’m talking and thinking about my abuse I really struggle with remaining present. Doing a complex task on the computer you really need to be present. I have a friend who’s trying to get through it, and I’m constantly trying to link her in with a service… I think maybe people are just not aware of what’s out there… Also, it’s really difficult to talk about your abuse. A lot of people feel a lot of shame. They shouldn’t, but they do. Its just part of being a childhood survivor. It may be difficult for them to be talking about it with someone else.
5.28
Similarly, Shine Lawyers stated that there is still a lot of difficulty for survivors in being able to come forward and share their stories:
That continues to be a difficulty for people – even addressing within themselves that they have suffered child abuse and that they do have legal options.
5.29
People with Disability Australia noted that there were systemic barriers to applying for redress, particularly for people in marginalised or unsafe communities. PWDA explained that they may be subject to violence, unable to access mental health support or face barriers which prevent them from being able to engage with the scheme.
5.30
According to Shine Lawyers, the functioning of the NRS has also acted to limit the number of applications being made. They told the Committee that ‘there is a perception’ that the NRS ‘can be difficult to navigate’, and that this perception may lead people down the path of seeking justice via the civil courts instead.
5.31
Mr Morris Pitt, a survivor, commented on his experience of how the NRS has functioned after making his application, and the effect this has had:
My experience with Redress has been anything but helpful and the book is still well and truly open, leaving me unable to move forward with my life.
5.32
Mr Phillip Hodges, a survivor, explain why he believes so few survivors have applied for redress:
One reason is we’re required to give in-depth detail and all our information, but the institution, the church or the non-profit organisation are not required to give their details. The Privacy Act does not ensure that what we say remains private.
5.33
Ms Larissa Kaput spoke of a range of factors for survivors of abuse by Jehovah’s Witnesses not applying for redress:
Survivors understand that no Jehovah’s Witnesses entities will ever sign up. They’re daunted by the application form… They have a fear of being shunned… by their family and friends for taking their brother to court – that’s a phrase known to Jehovah’s Witnesses. And they have a fear of providing information about the organisation that could then be used against them.
5.34
Similarly, Ms Cevrina Reed of Forgotten Australians Coming Together and a survivor, told the Committee that, given her foster care placements were arranged by the Churches of Christ:
Because the Churches of Christ won’t join the scheme and because I wasn’t a ward of the state, there is no point in me applying, as the National Redress Scheme holds nothing for me, even though I qualify to apply, especially at this time.
5.35
Overall, DSS noted the consistency in the number of applications being received, at a rate of approximately 75 per week. It also stated that, while this will ‘not take us to 60,000’, DSS is ready to respond to an increase in the number of applications being made.
Committee comment
5.36
The Committee has received a range of evidence regarding the lack of applications for redress relative to the expected 60,000. Much of this evidence was compelling and given the NRS is already almost two years into its ten year lifespan, requires urgent attention.
5.37
The opening up of civil avenues for justice was raised by many submitters and witnesses to this inquiry. In the Committee’s view, this is entirely a matter for survivors, as they are always best placed to understand what option best suits their situation and capacity.
5.38
However, it is vital that survivors have access to the best possible information on what their options are. In this regard, the Committee commends the work of organisations like knowmore, and the legal firms who have engaged with the Committee during its public hearings. Without this legal advice, many survivors would be making these decisions without the best information available, so this legal advice plays a key role in achieving the best outcomes for survivors.
5.39
Greater efforts at public education, particularly in regional and remote communities, and in marginalised communities, needs to be undertaken as a matter of urgency.
5.40
The complexity and trauma associated with making a redress application has clearly been a major issue for many survivors, and has resulted in a lower than expected number of applications being lodged.
5.41
These are all issues that require further examination as part of the second anniversary review, due to commence on 30 June 2020. The NRS is only two years into its legislated ten year lifespan, and way to encourage more survivors to come forward and make applications for redress for the historic injustice they faced needs deep and thoughtful consideration at this early stage of the scheme.
5.42
The Committee recommends that the second anniversary review of the National Redress Scheme should examine the reasons for the relatively low rate of applications for redress, including:
The role of law reform in states and territories in opening alternate avenues to justice for survivors via the civil courts;
The extent to which survivors are discouraged from accessing the National Redress Scheme as a result of the application process; and
Whether the application process causes undue harm to survivors through re-traumatisation.
Non-government institutions
5.43
As discussed below, a number of applications for redress are on hold as they had named institutions that had not yet joined the scheme. Under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act), non-government institutions:
…are only participating institutions if they agree to participate in the scheme and the Minister makes a declaration under section 115 that they are participating institutions.
5.44
Further, while defunct and lone institutions can participate in the scheme, they must have a representative in order to do so.
5.45
In cases where defunct institutions that are not participating in the scheme are found liable for redress payments, ‘the government institution will be liable to pay the defunct institution’s share of the costs’. This can only occur in cases where the Operator – DSS – has made a determination, which in turn can only be made if:
The Operator has determined that the government institution is equally responsible with the defunct institution for the abuse; and
The defunct institution is listed for the jurisdiction that the government institution belongs to.
5.46
The Committee examines the funder of last resort provisions in more detail in Chapter 6 of this report.
5.47
The NRS website states that:
Institutions have till 30 June 2020 to join the Scheme and are encouraged to start engaging with the Scheme as early as possible. On average, institutions take between three to six months to go through the on-boarding process and be officially declared as participating.
5.48
At a public hearing, DSS told the Committee that as at 14 February 2020, 545 applications for redress were on hold because at least one institution named in the applications is yet to join the scheme. These 545 applications relate to 284 non-government organisations that have not joined the scheme.
5.49
Of these, nine have declined to join the scheme. 53 institutions are in the process of ‘on-boarding’, which refers to the final stage of joining the scheme.
5.50
A further 13 institutions are ‘actively engaging’ with DSS, which denotes a ‘positive interaction’, and 41 are defunct. DSS told the Committee that they are engaged in ‘outreach’ with a further 135 institutions, and that the remaining 33 institutions are currently being researched to be accurately identified.
5.51
In terms of institutions joining the scheme, the Committee notes that there is considerable good will, and that many, if not most, institutions are seeking to do the right thing. For example, according to the Centre for Excellence in Child and Family Welfare (the Centre), which represents over 150 community service organisations:
Most if not all of our institutional members have joined or are in the process of joining the scheme. They are doing this because they recognise that they have a moral obligation to address past wrongs.
5.52
The Centre elaborated on this view:
The position of this organisation and that of its members has always been that our organisations will join the scheme. We have had no organisation that we have very regular contact with that we are aware of saying that they wouldn’t join the scheme. In fact, I think almost all of them either have joined or are in the pipeline. In think, early on – we don’t hear about it as much – getting signed on presented its challenges. I think some of them has some challenges early on about making sure that they could meet all the requirements.
5.53
Professor Kathleen Daly, of Griffith University, told the Committee that persuasion could be a way of convincing institutions to join the scheme.
5.54
Professor Daly elaborated on this, proposing that individual responses to institutions could assist with identifying reasons why organisations are not opting in and finding what these organisations might need to opt in.
Each institution, I would argue, needs to be addressed quite individually, because we don’t know what the reasons are for not opting in, and we need to find out what they need to opt in. What will they say? Do they not believe in the scheme? Do they not have insurance? Is their insurance minimal? Will they go bankrupt? What are their reasons? If we find all of those reasons to be not rational and acceptable, we’ll say, ‘Well look, unless you do it by this date’ – you seek to figure out what kind of punitive response will get the result.
5.55
Professor Daly, contended that ‘punitive measures’ will lead to ‘coercive participation’, which in turn will produce poor outcomes. Instead, Professor Daly advocated for a set of other measures based on a careful, individualised plan.
5.56
Organisations such as the Centre have indicated that, where these barriers to participation exist, they – along with other organisations in the various states and territories – are able to provide help. The Centre also noted that in some cases it may be necessary to provide extensions on the 30 June 2020 deadline.
5.57
Ms Bianca Anstis considered that public pressure may play a useful role in encouraging institutions to join the scheme, where the media, groups such as the ALA and other bodies are involved in putting pressure on institutions:
A lot of the institutions, as you would be aware, were sort of trying to say that they were intending to join and getting all the good PR and not following through with it. I think when the media came through and put that pressure on, it really, really helped. I think that would be helpful again in the future.
5.58
knowmore Legal Service expressed support for more punitive measures, including removal of charitable status and government funding, noting the length of time that the scheme has been operating and the awareness of institutions about the scheme.
They’ve now has years, in effect, to get their house in order and to join. We know there are processes that have to be gone through to join, but we struggle to understand why it’s taken the best part of two years since the initial legislation for some of these institutions that have not yet joined. Some haven’t even indicated their intention. Clearly that reflects an intention that they won’t be joining unless somehow they are compelled.
5.59
Shine Lawyers similarly saw a possible need for compulsion, indicating that they felt more could be done to persuade institutions to join the scheme, supporting measures to strip institutions of their charitable status.
5.60
The Australian Lawyers Alliance also advocated for stripping of charitable status, noting that it was ‘likely to be effective.’ They also considered that some organisations seemed to be trying to avoid responsibility:
It’s curious to me that they would do so, because the institutions which have looked at it carefully, like the Catholic Church, have concluded that the scheme is vastly cheaper for them overall than being vulnerable to common-law liability. So it’s not in the interests of these institutions themselves, but they are not seeing it that way.
5.61
Pastor Bob Cotton of the Maitland Christian Church echoed these views, stating that the government should withdraw the tax-free status of churches and charities. Pastor Cotton also proposed an alternative tax structure for churches which would provide funding to ‘properly compensate survivors and properly care for them.
Survivor views
5.62
The issue of institutions not having already joined the scheme is having a detrimental impact on survivors. Blue Knot Foundation told the Committee that survivors are distressed and ‘feel like there’s nowhere to go’. Blue Knot communicate to their clients about the work that governments are doing to bring institutions on board but note ‘it’s a horrible place for clients’.
5.63
The Care Leavers Australasia Network (CLAN) saw the optional nature of institutional participation as a design flaw with the NRS:
This should’ve been sorted out at the beginning so that the vast majority of institutions were in at the very start. It’s really hard to imagine a more damaging design of the scheme than to have institutions joining in such a piecemeal fashion.
5.64
CLAN put the view that participation should not be optional:
In the first place, they should never have been given an option to join. We didn’t get an option to opt out of abuse, but the abusers get an option to join up to the Redress Scheme. They had five years notice of the royal commissions, and it’s now been nearly two years [since the NRS commenced].
5.65
In CLAN’s view, punitive steps are required to ensure participation by institutions:
The redress laggers need to lose their charity tax status, and let’s not wait till 30 June. Why the delay? We’ve given them the carrot over and over and over again. Where’s the big stick and the feather dusters and the straps that were used on our bodies? They don’t seem to get any of this treatment from the leaders of our nation.
5.66
Many other survivors or survivor organisations agreed with this view, including Mr Phillip Hodges, Ms Larissa Kaput, Tuart Place
5.67
However, in the case of the Jehovah’s Witnesses, Ms Kaput expressed doubt as to whether revoking their tax deductibility status would be effective:
On the mechanism of tax deductibility, do I think that would definitely force them to join up to redress? No, I don’t. But naming and shaming them has absolutely no effect; they have no shame. So it is a lever that will help, but I think we have to go much further than just removing their charity status.
5.68
In terms of what these further steps should be, Ms Kaput continued:
For example, holding individuals to account. My understanding is that since the royal commission there have been no criminal charges against any of the leadership, either here or overseas, for the child abuse that occurred. If individuals were held to account by a further investigation, I think that would be effective.
Department of Social Services
5.69
During the public hearings for this inquiry, the Committee questioned DSS on its efforts to bring more institutions into the NRS. DSS noted that they were working with organisations who were ‘expressing various views on joining the scheme’.
5.70
DSS explained the process in more detail:
Even when an organisation essentially says that they are declining to join the scheme, we keep working with them even after that point, trying to understand what it is that is making that institution come to that decision and then trying to support them with other ways that might – not mitigate what they’re doing, but trying to find the reasons and then the department trying to come up with a response why that reason may not be an issue for them and continuing to work with them like that.
5.71
DSS explained that their approach to institutions which were named in applications involved interaction with the institution to ‘try and bring them on board.’ They further explained that state and territory colleagues were also involved in working with these institutions.
So, for every institution that has been named in an application, there is a strategy. Again, it is on a case-by-case basis depending on what interaction we’ve already had with that organisation. As soon as an application comes in and an institution is named, we inform that institution. We provide them with information about what’s involved.
5.72
In terms of punitive measures, such as naming institutions that refuse to join or revoking tax deductible status, DSS noted that ‘no particular option’ is ‘off the table’. However:
There would have to be found a public interest to do so. In order to establish that we would have to be able to give evidence that we have exhausted all possible opportunities to support organisations to join the scheme. We don’t believe that has occurred yet.
Committee comment
5.73
The Committee is very concerned at the number of applications that cannot be progressed due to institutions not signing up to join the scheme. Of particular concern are the nine institutions that have actively refused to join.
5.74
While the Committee is cognisant that the role of public and political pressure has been a factor in encouraging some institutions to join, it is also mindful that in some cases – the Jehovah’s Witnesses has emerged as one in the evidence given before the Committee – moral pressure applied via public discourse and the media may not be sufficient in and of itself.
5.75
This is not to say that the Committee is of the view that this pressure should not be maintained, and even escalated. The Committee acknowledges the work being undertaken by DSS in engaging with and encouraging institutions – particularly those named in applications – to join the scheme. This work is vital to the effective functioning of the scheme and must continue.
5.76
Further, it is far preferable that institutions join the scheme voluntarily. Given that participation by institutions is voluntary, and that they can leave the scheme at any time, the smoothest possible route to joining the scheme will always be the best possible means of doing so.
5.77
Also relevant is the conduct of institutions once they have joined the scheme. Those that have joined willingly will likely be more active and positive participants in the NRS process. This will result in better outcomes for all, including survivors and applicants.
5.78
However, it is also clear that some institutions will – and indeed have – decline to join the scheme. Given the harm these institutions and their representatives have inflicted on survivors, and the need of these survivors to access justice in the fastest, easiest, and least painful way possible, the Committee considers declining to join unacceptable. Where pressure and persuasion is not effective, more punitive measures may become necessary.
5.79
This is particularly the case with institutions that have both the capacity and the opportunity to join, yet still refuse to do so. The Committee believes that, given the 30 June 2020 deadline is quickly approaching, more robust methods of encouraging institutions to join the NRS need to be considered and implemented as a matter of the highest urgency.
5.80
In the immediate term, the Committee believes that a concerted effort to maintain public and media attention on recalcitrant institutions who have declined to join would be best facilitated through the publication of the names of those institutions. This could take the form of a public register of institutions that have declined to join the scheme by 30 June 2020.
5.81
Following the 30 June 2020 deadline, strong consideration needs to be given to implementing Recommendation 3 of the Joint Select Committee on Oversight of the Implementation of the Redress Related Recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, which stated that the government should ‘consider mechanisms and their efficacy’ to ‘penalise all relevant institutions that fail to join the scheme, including the suspension of all tax concessions’ for institutions that could reasonably be expected to join the scheme, and had the opportunity to do so.
5.82
This step must be taken only once all other avenues of encouragement and pressure have been exhausted and have been shown to be ineffective.
5.83
The Committee recommends that:
In advance of 30 June 2020, the National Redress Scheme obtain a written statement from each institution which has not yet joined the National Redress Scheme, but has been named in applications, detailing their intention and timeline for joining the National Redress Scheme.
Where an institution discloses it is unable to join the National Redress Scheme by 30 June 2020, the written statement should provide:
detailed reasons for the delay;
include a list of all officers; and
details of the date the institution expects or intends to join the Scheme.
Where an institution discloses that it has no intention to join the National Redress Scheme by 30 June 2020, the written statement should provide:
detailed reasons for their decision;
include a list of all officers;
details of all financial benefits accrued by means of charitable status and/or any other sources of public funding or concessions they receive.
A full list of institutions unable to join the scheme by 30 June 2020 and those who have declined to join the National Redress Scheme should be published on the National Redress Scheme website one week prior to 30 June 2020, and include the written statement provided by the institution to the National Redress Scheme.
5.84
The Committee recommends that the Minister for Social Services convene the Ministers’ Redress Scheme Governance Board by 30 June 2020 to review decisions given by institutions declining to join the National Redress Scheme and to determine and advise what initiatives will be undertaken by the relevant Commonwealth, state, and territory governments to remove their charitable status and/or other concessions or sources of public funding.