… survivors want a trauma informed approach throughout the system, not just in our system but in working with government systems as well. They want to not have to repeat their story over and over. They want the information about them to be confidential. They also want to have consistency of the person they're working with. They want choice in the system.
3.1
The National Redress Scheme (NRS) had to quickly adapt operations during March and April 2020 in response to the COVID-19 pandemic. Since that time, administrative and staffing arrangements continue to be flexible to ensure that operations are maintained in a way that upholds NRS staff safety and maintains privacy standards.
3.2
Ongoing concerns in relation to fundamental operational aspects of the NRS continue to be raised by survivors, redress support services and advocates. Primary areas raised for consideration include the lack of transparency, inconsistent application of the assessment framework and the indexation of prior payments.
Impact of COVID-19
3.3
The Department of Social Services (DSS) initiated a dynamic response to COVID-19 that aimed to respond to the changing operational environment in a manner that protected staff and maintained operations. As noted by Tuart Place, early in the pandemic the 1800 helpline was temporarily suspended. While the phone line is now operating again, the temporary closure did affect survivors. Tuart Place highlighted that ‘at a time of heightened social anxiety and uncertainty, applicants need greater access to reassurance and connection with the NRS not less’.
3.4
A serious consideration raised by knowmore was the flow on effect to survivors from internal changes made in DSS operations. knowmore highlighted staff movement as an example:
Probably one of the major impacts of the pandemic has been the turnover of staff at the National Redress Scheme, which has impacted on continuity of contacts and relationships and also on the types of approach taken in response to queries and the information provided, as staff are moving in and out of those key roles and don't always necessarily have the full range of information that more experienced people have had about the scheme.
3.5
In Good Faith Foundation (IGFF) highlighted the case manager model was also suspended, which resulted in multiple staff contacting applicants for ‘differing and overlapping purposes within a fortnight’s period’.
3.6
Timelines were also affected during the initial stages of the COVID response as institutions requested extensions for the provision of institutional information and documentation necessary for applications to progress to IDMs. The most current wait time data suggests that this may have been a temporary concern.
3.7
In relation to participation rates, applicant numbers dropped significantly during the middle of 2020, but rebounded to pre-pandemic levels towards the end of 2020. knowmore stated:
[W]e have seen a very significant increase in the numbers of applications that are being determined, and that's flowing through to offers and payments that are being made to survivors. That's great to see.
3.8
Redress support services also pivoted quickly, supporting survivors through phone and video options where possible.
Committee Comment
3.9
The Committee appreciates the efforts of the NRS, redress support services, and advocacy organisations for their adaptive and supportive response to the rapidly changing operating environment.
3.10
The Committee notes that initial operational changes did limit the ability of survivors to engage with the NRS, and that this has largely been rectified. The Committee appreciates that operating requirements will always need to be responsive to changing local conditions given the nature of the pandemic.
3.11
Evidence suggests that despite lower participation numbers during the initial phase of the pandemic, it is positive that application rates have returned to pre-pandemic levels.
3.12
The Committee agrees that institutions should now be well placed to respond to NRS requests for information and have less need to seek extensions for the production of materials. The Committee believes that the NRS should continue to monitor institutional compliance with required timeframes.
Assessment Framework
3.13
Survivor advocates and redress support services maintain concerns in relation to the NRS assessment framework as originally identified in the First Interim Report. Primary concerns relate to the current framework being inconsistent with the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) and the framework remaining confidential to the NRS and IDMs.
3.14
The First Interim Report broadly noted concerns with the level of secrecy surrounding the assessment framework. Only limited details about the assessment framework is publicly known due to strict confidentiality clauses:
Section 32 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act) allows the Minister to determine a method for working out the amount of redress and counselling awards for applicants to be known as the assessment framework.
Section 33 allows the Minister to make guidelines to assist with the application of the assessment framework.
Section 104 makes it an offence for any person to obtain, copy, disclose or use information in the assessment framework or the guidelines, if not authorised to do so. The penalty for such an offence is imprisonment for 2 years, 120 penalty units, or both.
3.15
Knowledge of the framework and its application is consequently very limited. Redress support services have gained an imperfect understanding of the assessment framework, noting trends in their role as nominees.
3.16
Advocates noted that the lack of transparency in relation to the assessment framework contributes to re-traumatisation for survivors. This reflects evidence noted in Chapter 2 from IGFF who explained that the lack of detailed threshold information available on what behaviours meet the ‘exceptional circumstances’ test, means survivors understandably believe that their experience of sexual abuse justifies the maximum payment amount.
3.17
The government, when introducing the original NRS legislation to Parliament in 2018, noted that maintaining the secrecy of the assessment framework helps prevent application fraud. The explanatory statement for the Act states:
[P]rotecting the assessment framework policy guidelines from unauthorised use and disclosure will assist with mitigating the risk of fraudulent and enhanced applications, as unauthorised disclosure of the guidelines could enable people to understand how payments are attributed and calculated.
3.18
Mr Golding submitted that instead of preventing fraud, secrecy had resulted in ‘people misunderstanding the process, misunderstanding the important elements of their application, and in fact doing themselves a disservice because they omit particular things.’
3.19
Mr Golding clarified that for the mental wellbeing of survivors, and procedural fairness, the NRS ‘need[s] desperately to be more transparent about what the rules are and what the key terms are.’
3.20
Mr Golding also provided the Committee with information in respect to the rate of fraud identified within comparative international redress schemes. In Nova Scotia, there were widespread accusations of fraud prompting an external investigation. Of the 1100 cases considered, the investigation concluded with one charge issued for fraud. A similar situation arose in the Irish scheme. Mr Golding told the Committee that from 16,650 claims, 9 applications were referred to the police, and resulted in one criminal conviction. Mr Golding suggested that these figures highlight that fraud prevention should not be a significant factor in the design of the NRS.
3.21
The Baptist Ministries of Australia held a different view, stating that it did not support publication of the assessment framework, as publication could have a negative impact on the design and effective operation of the NRS.
3.22
IGFF were also very concerned that despite the widely understood concerns and limitations of the assessment framework, it was still being used to determine the level of psychological support being offered to survivors.
3.23
Similarly, Tuart Place highlighted that there are concerns about procedural fairness when institutional information is provided to the NRS but not shared with applicants:
Information released to the NRS by a participating institution for the purpose of a redress claim is deemed a protected disclosure, and cannot be released to the applicant… Firstly, it is fundamentally unfair that applicants do not have access to the information used to assess their claims of abuse; and, secondly, applicants are denied access to potentially significant personal records of childhood and early family history.
Committee Comment
3.24
The Committee agrees that a balance needs to be found between transparency and NRS administration practice to ensure procedural fairness. Given that there are currently informal information sharing channels, the Committee believes that it would be suitable for the NRS to publicly share more information on how the assessment framework is applied. Education materials could take the form of case studies or interactive examples on the NRS website. Stakeholder consultation would be necessary to determine how best to share this information.
3.25
The Committee recommends that the National Redress Scheme produce public education materials to clearly explain and demonstrate how the assessment framework is applied to applications by Independent Decision Makers.
Independent Decision Makers
3.26
There were a number of concerns raised in relation to the functions of Independent Decision Makers (IDMs). Concerns ranged from those that can be easily rectified such as the suggestion that letters to survivors with their redress determination be amended to become shorter and personalised. Critically, survivors believe that letters should also be signed by the IDM.
3.27
Relationships Australia highlighted that ‘in the view of survivors’ the letter of offer is ‘coming from yet another faceless official making decisions about intimate matters in the applicant’s life’. This often reflects a survivor’s previous trauma experience within institutions. Care Leavers Australasia Network (CLAN) also noted that in comparable schemes, the decision-maker’s name is public.
3.28
The introduction of broad minimum training requirements for IDMs was raised by several stakeholders who questioned if IDMs have enough specialised training to accurately interpret applications from particular groups of survivors. CLAN stated that ‘we have been asking for the last two years for the IDMs to have care leaver training, and it still has not been taken up.’ The Victorian Aboriginal Child Care Agency (VACCA) stated that specific Aboriginal survivor training is required. Relationships Australia also highlighted the need for IDMs to undertake continuous training.
3.29
The creation of a moderation and review process was identified as the primary way to increase consistency in decision-making. The Committee considered inconsistent decision-making in Chapter 2. CLAN stated:
[T]he independent decision-maker seems to be operating individually and it seems to me that there's scope for some sort of a mediation process so that, if somebody's decision appears to another independent decision-maker to be extraordinary in some way, a second opinion is given before the decision is final.
3.30
The Northern Territory (NT) Government highlighted the importance of an internal review process prior to the finalisation of a decision. On two occasions, IDMs have sent decision letters to survivors determining that the NT Government was responsible for respective NRS claims. Unfortunately, in both cases, the claims related to matters that occurred before the establishment of the NT in 1978. DSS told the NT Government that even if an error had been made in the determination, there was no legislative mechanism to allow a determination to be revoked.
3.31
There have been some positive stories shared with the Committee, highlighting that the current system does have flexibility for IDMs to use if they wish. Relationships Australia provided an example which highlighted the importance of both IDM training and moderation to ensure that all survivors receive a fair outcome:
One survivor, for example, simply could not bring himself to disclose the details of his abuse, but received a Redress payment in excess of $100,000. The outcome letter observed that it was clear to the independent decision-maker that there was much more to the story than was traversed in the application, and that the client just could not tell that story in its fullest form. The validation that our client experienced on receiving this letter has provided a foundation on which he has reconciled with his spouse, children and grandchildren, become drug and alcohol free, and has embarked on a suite of new, healthy pursuits.
Committee Comment
3.32
The Committee agrees that all IDMs should receive specialist training in relation to disability, care leaver and First Nations cultural awareness. The list of compulsory training undertaken by IDMs should be publicly available to build confidence in the decision-making aspects of the NRS.
3.33
The Committee is also concerned that if an error is made by an IDM or in the determination, there is no legislative mechanism to allow the determination to be revoked.
3.34
The Committee notes that the Second Year Review made a number of concerning findings in relation to inconsistencies of policy guidance materials used by IDMs. Commentary and recommendations in relation to this are discussed in Chapter 6.
3.35
The Committee recommends that the National Redress Scheme introduce annual mandatory training requirements for Independent Decision Makers and that the agreed minimum training requirements are published for survivors to understand.
3.36
The Committee recommends that the National Redress Scheme implement an internal moderation and review process for all application determinations prior to being finalised.
Review of Decisions
3.37
The Committee heard evidence in relation to current internal review processes and limited external review avenues. VACCA suggested that internal reviews sought by applicants after receiving a determination are not adequate:
The National Redress Scheme does not have a genuine review process. If a survivor, seeks a “review” of the final determination what actually happens is that a different IDM will assess the application, blind from the initial assessment findings. This equates to a second assessment not a review. Department of Social Services (DSS) staff have confirmed that the result of this “review” could be that the payment is reduced or even that the survivor is deemed ineligible to apply for redress. This is unacceptable.
3.38
Avenues for external or judicial review are very limited. The NRS is exempt from consideration by the Administrative Appeals Tribunal under the Administrative Decisions (Judicial Review) Act 1977. This means that the only avenues remaining for judicial appeal may be to the Federal Court under section 39B of the Judiciary Act 1903 or the High Court of Australia under section 75 of the Australian Constitution.
3.39
The judicial process would be very difficult for survivors to pursue. In addition to stress and legal costs, section 105(3) of the NRS Act allows the NRS to share protected information with courts or tribunals, but not with the applicant in the matter.
3.40
One survivor suggested that limiting the right of review, along with other elements of the NRS operation, may breach human rights law principles. The survivor sought advice from the Australian Human Rights Commission and was informed that the Commission is also excluded from considering matters associated with the operation of the NRS.
3.41
CLAN also raised a concern in relation to the processes surrounding a revocation. It suggested when a revocation is granted, the NRS provide a second opportunity to the institution to provide relevant information. While this may be appropriate in some situations, if the revocation is limited to the nature of events, it seems unnecessary to extend the process by months when it is likely that the same information will be provided by the institution.
Committee Comment
3.42
The Committee agrees that a review process conducted without the survivor being able to clarify statements or provide additional evidence is of limited benefit to the survivor or the IDM. Additionally, it raises significant equity issues in relation to survivors who may not have been able to seek support when initially making an application.
3.43
DSS should consider options such as establishing a separate stream of IDMs who are responsible for considering reviews; allow additional materials to be submitted to support existing claims in applications; and the possibility of allowing a survivor to make a verbal statement if appropriate. These changes would increase procedural fairness, reduce decision-making timeframes, and may also lead to a reduction of revocations being sought.
3.44
The Committee recommends that the National Redress Scheme amend current review processes to:
ensure that applications are only reviewed by senior Independent Decision Makers, and
allow for survivors to provide additional materials on matters raised by Independent Decision Makers.
Indexation
3.45
There were two primary issues raised in relation to indexation in evidence to the Committee. The first is that prior payments made to survivors should not be indexed prior to being deducted from a redress payment. The second is that payments made by the NRS should be indexed to inflation to ensure that a survivor is not disadvantaged by the length of time to determine an application or time that the application is submitted prior to 2028. Both issues raised reflect concerns previously considered in the First Interim Report.
3.46
From the commencement of the NRS to December 2020, a total of 2,095 survivors had their redress payment reduced due to a prior payment. The average reduction to the final award has been $41,912. The indexation effect on the total amount deducted would vary according to the value and the date of the prior payment.
3.47
Relationships Australia suggested that survivors engaging with the NRS have difficulty understanding how indexation on prior payments work in practice. Additionally, Relationships Australia raised concerns that some payments have been indexed despite the payments not relating to sexual abuse incidents.
3.48
knowmore recommended the introduction of ‘legislative amendments to ensure that redress payments are indexed over the life of the Scheme to account for inflation.’ knowmore was also careful to note that these amendments need to be applied retrospectively so that survivors who have already received their redress offers do not suffer an undue disadvantage.
3.49
knowmore demonstrated the realised effect for survivors:
The fact that redress payment amounts in the Assessment Framework are not indexed over the life of the Scheme means that these survivors will, in real terms, be receiving less than survivors who were able to have their applications assessed earlier. For survivors who have received relevant prior payments, the penalty is double because these payments are indexed. As an example, a survivor who received a $50,000 prior payment in July 2010 would be up to $2,229 worse off as a result of receiving an NRS offer in the second half of 2020 compared to the first half of 2019. It is perverse that the responsible institutions will have effectively earned a discount on their redress obligations, while survivors pay the price’.
3.50
The Second Year Review costed both options. It concluded that removing the indexation of prior payments would increase the average redress payment by $2,194 per applicant. Applying indexation at the time of the application, instead of the time of decision, would increase the average redress payment by $158 per applicant. Other considerations of the Review in relation to indexation are considered in Chapter 6.
Committee Comment
3.51
In the First Interim Report, the Committee recommended that the practice of indexation of prior payments be removed. The Committee continues to strongly agree with this view. The Committee also agrees that payments made to survivors should be linked to inflation. Both recommendations increase equity within the NRS, and these measures should be applied retrospectively to include those that have already accepted offers.
3.52
The Committee recommends that the National Redress Scheme eliminate the practice of indexing prior payments made to survivors.
3.53
The Committee recommends that the National Redress Scheme commence indexing awards to an inflation measure.
Payments
3.54
Relationships Australia suggested further administrative and legislative amendments are required to ensure that NRS payments do not negatively affect survivors in relation to other government or administrative processes. An example provided included an NRS payment being considered an assessable asset for the purposes of the Aged Care Act 1997. Relationships Australia reported that despite NRS payments not being treated as income within tax legislation, some survivors report being required to pay more for their public housing, or having payments misinterpreted as a social security award.
3.55
Ms Christine Gow, a survivor living in the United Kingdom, highlighted that whilst NRS payments do not influence a survivor’s social security payments in Australia, there is no international application of this principle. Ms Gow was informed that if she accepted her offer of redress, it would be considered a ‘personal injury payment’ and therefore be included in any eligibility assessment for social security support in the United Kingdom.
3.56
Secondly, Relationships Australia recommended that the government ‘re-negotiate the Scheme to provide that where an applicant has been abused across multiple institutions, the cap on redress payments should apply to each institution, rather than the cap being distributed among perpetrating institutions’.
Committee Comment
3.57
The Committee strongly agrees that legislative clarification is required to ensure that a redress payment is never considered an asset or income for the purposes of any other test, including aged care.
3.58
The Committee acknowledges that DSS has limited scope to influence the treatment of redress payments in external jurisdictions. However, this does not reduce the responsibility of DSS to undertake all possible measures to educate and advocate for survivors living in other countries.
3.59
The Committee urges DSS to consider what additional steps can be taken to ensure that survivors do not encounter penalties arising from the receipt of a redress payment.
3.60
In relation to awards being capped per application rather than per institution responsible for abuse, the Committee agrees that there is merit in a discussion to further consider the appropriateness of this approach. The real effect of the current cap is that in some cases, institutions are only responsible for meeting 30 or 25 per cent of a total award. This is true even in cases of extreme circumstances.
3.61
The Committee recommends that the National Redress Scheme consider amending the National Redress Scheme Rules so that the total financial award limit applies to each institution found responsible for institutional child sexual abuse, instead of each application.
Direct Personal Responses
3.62
Direct personal responses (DPRs) have the potential to assist survivor healing and encourage institutions to take responsibility for historical abuse. As highlighted by Relationships Australia, ‘direct personal responses, when done well, have been powerfully healing. Lives have been transformed for the better’.
3.63
Currently, survivors must tick a box on the redress offer acceptance form indicating that they wish to receive a DPR from the institution, or institutions, found responsible. The survivor must then contact the institution directly to start the arrangements. The institution is prohibited from approaching the survivor, even after the relevant box has been ticked.
3.64
There are low levels of engagement with DPRs. Table 3.1 shows that since the NRS commenced, less than 4 per cent of survivors have received a DPR. This is despite 80 per cent ticking the box on the offer acceptance form.
Table 3.1: Survivor acceptance of and uptake of direct personal responses by financial year 2018 - 2020
|
|
|
|
|
|
Accepted offer of redress
|
239
(100%)
|
2,568
(100%)
|
2,807
(100%)
|
|
Accepted DPR offer
|
130
(54.5%)
|
2,129
(82.9%)
|
2,259
(80.5%)
|
|
Requested DPR
|
21
(8.8%)
|
157
(6.1%)
|
178
(6.3%)
|
|
Received DPR
|
8
(3.3%)
|
88
(3.4%)
|
96
(3.4%)
|
|
In progress
|
7
(2.9)
|
41
(1.6%)
|
48
(1.7%)
|
|
On hold
|
6
(2.5%)
|
25
(1.0%)
|
31
(1.1%)
|
|
Withdrawn
|
0
|
3
(0.1%)
|
3
(0.1%)
|
Source: Ms Kruk AO, Second Year Review, p. 137.
3.65
Third year operation data shows that between 1 July 2020 and 30 June 2021, 1,922 survivors indicated interest in a DPR. Of these, 188 people received a DPR. A further 284 people contacted an institution to begin the process to receive their direct personal response.
3.66
DPRs are undertaken using a variety of means as shown in Table 3.2.
Table 3.2: Type of DPR Completed 2018-2021
|
|
|
|
Face to face meeting
|
45
|
|
Face to face meeting and written apology
|
58
|
|
Face to face meeting, written apology, and video
|
1
|
|
Phone call
|
5
|
|
Phone call and written apology
|
8
|
|
Virtual face to face meeting and written apology
|
2
|
|
Written apology
|
165
|
|
Total DPR completed
|
284
|
Source: DSS, Consultation Paper, Second Year review of the National Redress Scheme Recommendation 4.7 Increasing the uptake and quality of direct personal response, 6 October 2021, p. 27.
3.67
knowmore suggested that the onus being put on the survivor to make the initial contact is not always best practice. This view was shared by advocacy bodies and participating institutions. The Salvation Army submission stated:
[The] prohibition on contact by the institution is preventing redress applicants from receiving the full benefit of the originally designed key element of redress and as such, has the potential of re-traumatising survivors by leaving them with the impression that the institution does not care about them and hence, does not wish to have a DPR session with them (which is the opposite of the reality).
3.68
The Salvation Army noted that of the 212 applications finalised prior to
May 2020, 67 survivors indicated that they would like to participate in a DPR, however only three applicants had contacted the institution to commence arrangements.
3.69
knowmore suggested that when DPRs take place, survivor experiences greatly vary:
We are overwhelmingly seeing early very positive feedback about the experiences of survivors attending state governments based DPRs, but we are seeing quite mixed responses to those by private institutions, unfortunately.
3.70
This feedback reflects broader concerns about the lack of systems in place to ensure that DPRs are a healing experience. One survivor stated:
When there is no independent facilitator, no structure, no agenda, no preparation, no understanding of the expectations by either party nor a clear articulation of the needs and aspirations of the parties, then there is plenty that can and will go wrong. In my case, nothing was discussed beforehand. Such an environment or “setup” is psychologically unsafe for survivors. In the absence of an independent facilitator or convener, who can prepare both sides for an open and honest communication, there is the potential for further suffering and re-traumatisation.
3.71
Examples of poor practice includes survivors being asked to sign non-disparagement clauses as part of the DPR, knowmore stated:
[W]e have heard of instances of that. It is completely inappropriate and absolutely counterproductive to the purpose of a DPR.
3.72
DSS has only received a small amount of feedback on DPRs. While unable to give specific examples due to protected information requirements, DSS was able to confirm that feedback has involved discussion of:
the quality, preparation and delivery of DPRs by participating governments and some non-government institutions;
professional facilitation;
seniority of officers delivering DPR; and
the value of authenticity in the delivery of the DPR.
3.73
DSS confirmed that feedback is being used to inform education and training resources for participating institutions and communications materials for applicants.
3.74
When negative feedback is received, DSS contacts the relevant institution to discuss the applicant’s concerns and follows this up in writing. Where an applicant is seeking a response to their feedback, a clinical advisor contacts the applicant. The NRS also seeks a written response from the institution, detailing the steps taken to address the applicant’s feedback.
3.75
The Second Year Review made a number of conclusions in relation to DPRs, including the development of a DPR action plan. DSS confirmed that consultation is now underway for the development of that plan. Findings and recommendations of the Second Year Review are discussed in
Chapter 6.
Committee Comment
3.76
DPRs are an essential component of the NRS, and if done effectively, contribute to healing for survivors and their support network. It is imperative that DPRs are conducted in a manner that reflects the principles identified in the Royal Commission. The NRS must ensure that it actively monitors any feedback received from survivors, and provides thorough high quality training and advice to any institution that requests assistance.
3.77
Current data suggests that further consideration needs to be given to how DPRs are initiated. Alternative models must be considered to ensure the prevention of harm for survivors.
3.78
The Committee agrees that a targeted consultation process should be undertaken to explore how alternative options could operate. Any new model would always need to maintain survivor determination as a key principle.
3.79
The Committee recommends that the National Redress Scheme undertake work with survivors and redress support services to determine appropriate alternative methods for the initiation of Direct Personal Responses and best practice guidelines.
Care Leavers
3.80
CLAN suggested that the NRS create a separate stream within the NRS for care leavers to adequately respond to their specific needs. It was highlighted that despite the NRS having incomplete data, it is believed that care leavers represent the largest cohort of applicants.
3.81
CLAN believes that a separate stream is needed as there is ‘no respect for care leavers and the childhood they endured in those orphanages that the churches, charities and state governments ran,’ and ‘no real understanding of the trauma upon trauma upon trauma’ within current operations. CLAN suggested that a separate stream with specialist NRS staff and decision-makers would help address some negative perception of the NRS currently held within the care leaver community.
3.82
The need for a separate care leavers stream was also identified by
Mr Frank Golding when he gave evidence in his personal capacity.
Mr Golding suggested that a separate stream is necessary as care leavers have additional barriers to applying and engaging with the NRS:
I'll say that the key feature of care leavers that makes it important to consider a separate stream is that they have very low levels of literacy. Reading and writing skills are really quite poor. Surveys show that more than half of Australian care leavers didn't complete the first certificate level of schooling, and fewer than 20 per cent have actually attained a final certificate. And many of those people are now old and frail. They're pensioners with low levels of family support and so on. So they need to be treated not as equals to non-care leavers in the scheme, but in fact as people with special needs.
3.83
Mr Golding clarified that a separate stream could operate within existing frameworks and rules, running parallel to other applicants. He suggested that the four essential elements of a separate stream would include specific resources for care leavers, including:
an application form designed to recognise average levels of education and streamlining the nominee process;
a specialist team being established to liaise with care leavers;
face-to-face information provided directly to care leavers with the opportunity for questions; and
specialist IDMs to consider care leaver applications.
3.84
CLAN believed that a separate stream may help data collection, as the NRS would be able to generate care leaver specific information which it currently is unable to do easily:
While [the NRS] regularly reports data on Aboriginal and Torres Strait Islander survivors and those with a disability—and so it should—it routinely fails to report data about survivors who are care leavers, state wards or in foster care. We've asked for this data numerous times in the past. When some statistics were finally given to a stakeholders' meeting a few months ago they were confusing and of dubious value. Categories were ill-defined and military service personnel were even included as state wards—that's just extraordinary!
3.85
CLAN highlighted the issues that poor data collection and reporting can create for care leaver survivors:
There are lots of care leavers who are saying, 'I think we're being dudded in this scheme. We're getting lower payments than non care leavers.' We don't know whether that's true, but that's certainly a strong feeling that's developing in the care-leaver community. It's not necessary that it happens. If the data were publicly available and broken down by categories, then we'd be able to see what was going on and take the steps necessary, if we believed that the data was tracking in the wrong direction.
3.86
DSS confirmed that there is no ‘care leavers box’ for survivors to tick on the application form. DSS noted that survivors can self-identify as having been in a state ward or orphanage which gives the NRS a sense of care leaver participation.
3.87
DSS also noted that concerns about care leavers receiving a lower average payment to non-care leavers and confirmed that this perception does not reflect average payments. In the first two years of NRS operation, the average redress award for people who identified as a care leaver was $88,489.30 compared to $81,699.25 for non-care leavers.
Committee Comment
3.88
The Committee strongly agrees that data collection and reporting could be improved with the introduction of a care leaver self-identification box on the application form. The Committee believes that a negative perception has arisen due to the current lack of clarity and low levels of transparency. The Committee has made a number of findings and recommendations relating to transparency and broader data collection considerations throughout this report.
3.89
Further, the Committee strongly supports the amendment of the application form, care leavers training for IDMs and the introduction of community education sessions. These changes would benefit all survivors, including care leavers, to engage with the NRS.
3.90
The Committee understands that a specific care leaver case management model has been reinstated following the initial pandemic response. Despite staff turnover, the Committee understands this team has improved information sharing for care leavers.
3.91
The Committee recommends that the National Redress Scheme undertake consultation to amend the application form as a matter of priority. The amended form should be designed for survivors who may have low levels of literacy and allow care leavers to self-identify.
3.92
The Committee recommends that the National Redress Scheme commence a series of face-to-face education sessions across Australia targeting known under-represented groups and regions. All sessions should be run by senior National Redress Scheme employees and make provision for a question and answer component.
Advance Payment Scheme Options
3.93
Survivor advocates have strongly supported the adoption of an early payment for survivors who have applied to the NRS, and are waiting for a determination. As explained by Tuart Place:
Advance (or interim) payment is a mechanism used by redress schemes to assist elderly or ill applicants at risk of dying before their claim can be fully assessed.
3.94
The requirement for an interim payment arises from the practical need to address the ongoing lengthy delays in the NRS which, due to the age and health profile of many survivors, means that there is a possibility that they will not be alive when a final determination is made. DSS confirmed that as of 3 June 2021, 95 payments have been made to beneficiaries in respect of 90 deceased applicants. It is expected that this number will grow as the Second Year Review highlighted that there are a significant number of applications currently being processed where the applicant is now deceased.
3.95
Additionally, many advocates, including PWDA suggested that an early payment option would improve survivor mental health and engagement with the NRS generally, but particularly for those in ill health.
Professor Kathleen Daly and Research Fellow Juliet Davis stated:
[R]eceiving at least a partial payment would help to give elderly or terminally ill claimants some sense of justice before they die or lose their mental capacity. This process needs to be carried out expeditiously and with little additional burden on survivors.
3.96
VACCA suggested that the introduction of an advanced payment would provide a particular benefit to First Nations survivors:
The majority of clients Ngarra Jarra Noun are supporting have particular vulnerabilities, including living in poverty, homelessness, caring responsibilities for grandchildren, chronic health conditions, and advanced age. An advance payment could relieve some acute financial stress for these clients while they wait for a determination.
3.97
The Child Migrants Trust confirmed that ‘where schemes have paid an interim payment, that has been very well received and taken up fairly quickly’. The Trust stated:
We've assisted about 40 former child migrants to apply for the advance payment from the Scottish government ahead of their scheme. It feels like it takes the heat out of the anxiety. Sometimes it's an amount about which they'll say: 'Well, at least I can pay for my funeral. I can have some of the most fundamental things that I'm worried about sorted.' It's also like a mark of confidence that this isn't just going to go away, that it will develop. That has been received very positively.
Committee Comment
3.98
The Committee notes that a number of redress schemes including Scotland, New Zealand, Ireland, and Western Australia included interim payment options. While all slightly different in nature and scope, such a varied cross-section shows that redress schemes can successfully manage an advanced payment element.
3.99
The Committee agrees with evidence presented that the introduction of an early payment, which is deducted from the final payment, provides benefit to survivors and would be a positive reform.
3.100
The Committee notes that the introduction of an advanced payment was a recommendation in the Second Year Review. The Committee is very pleased to see the interim government response agree with this recommendation. The Committee commends the speed of the government introducing legislation to enact this change and notes that advanced payments will be made to eligible survivors from 2022.
Cost of Operating the National Redress Scheme
3.101
The total cost of administering the NRS for the first three years of operation is close to $129 million. This excludes Australian Government costs associated with meeting funder of last resort obligations, which are discussed in Chapter 5.
3.102
The total amount of redress payments to survivors at 31 March 2021 was approximately $445 million. This includes the contributions made by responsible institutions.
3.103
Budget papers provide guidance on the expected ongoing costs of administering the NRS. For the forward years, the following is currently budgeted:
Table 3.3: National Redress Scheme – Administration Funding
|
|
|
|
|
|
|
($m)
|
$49.06
|
$36.14
|
$33.50
|
$30.86
|
Source: DSS, answer to question on notice DSSSQ20-000880, Senate Community Affairs Legislation Committee Budget Estimates 2020-2021, 28 October 2020 (received 23 February 2021).
The funding provides for the processing of applications including costs for the Independent Decision Makers, ongoing engagement with jurisdictions and participating institutions, policy and legislative activities to support Scheme operations, training and wellbeing for the Scheme workforce, and the implementation and ongoing management of funding arrangements for redress support services and legal support for applicants.
The higher level of funding in 2020–21 represents costs associated with the second anniversary review, surge support to on-board the significant number of institutions who provided a commitment to join the Scheme prior to 31 December 2020 and increased resources to process the claims coming off hold as institutions join the Scheme.
3.105
From 1 July 2018 to 30 June 2021, participating institutions (including jurisdictions) have contributed $38.6 million for the NRS administration charge and $10 million for the contribution to legal costs. DSS confirmed that despite the contribution of institutions, there are numerous expenses not reclaimed by the government:
After deducting the administrative contributions received from institutions, in the 2019-20 financial year, the average cost of processing a redress application to the Commonwealth was around $12,000.
Committee Comment
3.106
The Committee notes the additional budget measures being committed to support the operations of the NRS. It is hoped that a subsequent investment in community education and redress support services will enable more survivors to participate in the Scheme. Greater participation will work towards ensuring that there is an adequate balance between investment and survivor outcomes.
Governance Arrangements
3.107
The NRS has complex governance arrangements underpinning its operation. While Minister Ruston acknowledges that this can affect timeframes for the implementation of reform, DSS does not consider this an ‘impediment,’ and noted that the Ministers’ Board could make decisions either at scheduled meetings or out-of-session, which can expedite matters.
3.108
As discussed in the First Interim Report, the Inter-governmental Agreement (IGA) provides the foundation for jurisdictions to work together to implement and operate the NRS. The IGA establishes the Ministers’ Board which has decision-making powers in relation to legislative amendments, rules and policy guidelines. Major design decisions require unanimous agreement.
3.109
In contrast, the Second Year Review found that the IGA’s decision-making model is a barrier to increased efficiency, as any changes requiring consideration by the Minister’s Board can take around 6 to 12 months to achieve:
This acts to the detriment of significant change and is a source of frustration to the Australian Government’s partners and the department. Given that a number of decisions regarding the Scheme were rolled into this Review, the department needs to consider, in consultation with the Australian Government and state and territory governments, the means to quickly and efficiently act on recommendations that are agreed.
3.110
The Second Year Review confirmed that although there was some frustration about the timeliness of decisions, most jurisdictions were satisfied with current governance arrangements.
3.111
When discussing reform, the Minster reinforced that any change to the Act requires the agreement of all states and territories. For example, in relation to funder of last resort provisions, Minister Ruston highlighted that the Australian Government decision to expand the rules is contingent on state and territory consensus.
Committee Comment
3.112
The Committee is concerned that existing governance arrangements are cumbersome and may delay decision-making and the subsequent implementation of reform.
3.113
The Committee sought the views of all state and territory governments regarding their perspective on governance arrangements. Each jurisdiction that responded highlighted its commitment to survivors and the success of the NRS.
3.114
The South Australian Government raised two issues. The first related to the need to ensure that institutions do not leave the NRS if reform results in greater financial contributions. Attorney-General, Ms Vickie Chapman MP highlighted that the Federal Government could guarantee to cover any additional expenses arising. Secondly, a concern was raised in relation to the current delay in referring recommendations to the Inter-Jurisdictional Committee for consideration.
3.115
The NT Government raised a number of operational issues that are considered throughout this report. In relation to governance, the NT Government highlighted that all decisions made must recognise unique needs of the NT and its often very vulnerable population. The NT Government stated:
The fact that the process of redress is being viewed as traumatising as opposed to therapeutic or restorative should ring alarm bells for the Scheme Operator and cause an absolute need for the reconsideration of how the Scheme is both communicated and implemented.
3.116
The Committee also contacted relevant State and Territory parliamentary committees to understand if any other parliamentary body had considered the appropriateness of existing governance arrangements. No Committees identified relevant findings to this inquiry.
Legislative Amendments
3.117
The Federal Government passed two Acts in 2021 that aimed to strengthen the operation of the NRS.
3.118
The first, National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Act 2021, made minor technical amendments to the NRS. The bill was introduced in October 2020 and passed both houses on 15 February 2021. Changes were designed to clarify matters that may be unclear rather than introduce new or additional measures. Amendments clarified that:
participating institutions that are associates of a responsible institution can be determined and specified;
where there is more than one funder of last resort, the defunct institution's share of the redress cost is to be divided equally between the government institutions;
the names and symbols used in connection with the NRS are protected;
a payment can be made to a person who has been appointed by a court, tribunal or board to manage the financial affairs of a person entitled to redress;
DSS can extend the timeframe for payment of a funding contribution by an institution; and
DSS can authorise the disclosure of certain protected information to institutions on-boarding to the NRS.
3.119
One amendment also changed the approval process for recruiting independent decision makers to ensure it was as fast as possible.
3.120
Of note is the amendment to protect the name and symbols of the NRS. This was designed to frustrate measures taken by law and advocacy firms that were not advertising in good faith.
3.121
The second, National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021, implemented five recommendations of the Second Year Review. This Act is considered in Chapter 6.
Committee Comment
3.122
While acknowledging that there is essential reform outstanding, the Committee strongly commends the Federal Government for passing legislation to implement aspects identified in the First Interim Report and the Second Year Review in a timely manner.
3.123
The Committee hopes that DSS continues to engage with stakeholders about how best to implement all outstanding recommendations.