4.1
A fundamental principle underpinning the National Redress Scheme (NRS) is that survivors engage in the NRS with freely given, informed consent. To achieve this, survivors and their advocates require free, high-quality, trauma informed legal advice at all stages of the application process.
4.2
Survivors require access to personalised and culturally appropriate legal advice that can assist them to understand:
how the NRS operates and if they are eligible;
the differences between pursuing redress or civil options;
which option may be suitable for their circumstances;
how to complete an application form;
the obligations of accepting an offer; and
considering any offer received.
4.3
Maurice Blackburn highlighted the importance of receiving legal advice when accepting an offer of redress:
The existence of the deed of release requirement makes it essential that the survivor is able to make an informed decision as to whether the determination is credible. The only way they can make an informed decision is through being offered expert, objective, professional advice.
Availability and Suitability of Free Legal Advice Services
4.4
The NRS advises on its website that knowmore provides free legal advice, stating:
The knowmore legal service is for anyone who is considering applying for redress under the National Redress Scheme. It is free, confidential and independent. …. You may want to use your own legal service to obtain advice and assistance. It may not be free.
4.5
Concerns were raised regarding current levels of community education about the availability of free legal services. A low level of knowledge can lead to survivors being targeted by private legal or advocacy firms. knowmore stated:
[I]t is clear that many survivors are not being advised about the availability of free and specialist services or are being openly dissuaded from seeking help from such sources and, in some instances, are paying a high price for services that are objectively not of an appropriate professional standard’.
4.6
Further, knowmore provided an example of a private law firm that acknowledges the availability of free legal advice but states on its website that “[t]he free lawyers are not experts in child sexual abuse. They may miss something a specialist would pick up”.
4.7
Any legal advice provided to survivors must be trauma informed to ensure that survivors are not harmed by engagement with the NRS. The Kimberley Stolen Generation Aboriginal Corporation raised concerns that free legal service providers are not always culturally informed. It provided an example of one service that recently started operating in the Kimberley region to illustrate how harm can be caused:
There was no discussions around how they would provide wrap around support to potential Survivors if they chose to make application. No thought process around the difficulties involved in survivors getting identification and other relevant documents required before making application, no plan around building a trusting relationship with the Survivors before asking them to tell their horror stories of abuse. No plan around ensuring that there is wrap around support for these survivors living in remote areas after they have relived their trauma to ensure they have access to a safe environment.
4.8
One survivor confidentially shared their views on the legal services and communication practice provided by knowmore. The survivor noted that even after being assigned a lawyer, all communications are through the generic email, and no confirmation is given to acknowledge receipt of correspondence. The survivor also raised concerns about the limited amount of information they are able to receive about their lawyer. For example, there is no information on what type of trauma or specialist legal training the assigned lawyer has completed. The survivor shared that they would have, if been able to afford it, engaged private legal advice.
Provision of Legal Services by Private Law Firms
4.9
Many legal firms offer services relating to institutional child sexual abuse. Law firm, Maurice Blackburn said that survivors come to private firms in relation to the NRS for two main reasons; the first is that they are seeking advice when deciding whether the NRS is the right option for them, or they have lodged an application with the NRS and are frustrated with delays or unsure of the offer received.
4.10
knowmore is aware of some firms charging up to $15,000 plus GST to act for survivors in NRS applications, with fees contingent upon the redress payment the survivor receives. Such reports have been received in relation to a small number of law firms, some of which are alleged to be targeting particular groups of clients, including First Nations survivors.’
4.11
Relationships Australia provided a comprehensive list of examples it is aware of private law firms undertaking in relation to survivors seeking redress:
securing domain names that appear designed to divert people from official sites in favour of sites operated by law firms seeking fees;
joining Facebook groups and engaging with them to discourage participation in the Scheme and aggressively pursue contracts with members of the group;
giving inaccurate advice about the scope and operation of the Scheme – such as representations that applications cannot be made in relation to abuse by a defunct institution or in relation to abuse perpetrated by a deceased person, or that the Scheme requires legal representation;
offering survivors financial inducements to refer other clients;
signing survivors to contracts securing up to 30-40% of the ultimate redress payment as legal fees; and
being persuaded to sign contracts that they do not understand (including in relation to consequences if a client changes their mind and decides to pursue remedy through the Scheme, rather than civil litigation).
4.12
Bravehearts provided an example of how First Nations communities are one group being targeted:
We go to Palm Island every six weeks to support survivors to do their application forms. There's a particular law firm that goes up to Palm Island as well and has been trying to pass themselves off as working with us. They go in there and they say, 'The redress support for this can't get you the outcomes we can get you; we can get you more money,' which is not true because, obviously, the matrix is what it is.
4.13
Disturbing reports are not limited to law firms, but extend to survivor advocacy businesses. An example was provided by knowmore:
[A] knowmore client was sent a costs agreement by a law firm they had never been in contact with. It is believed that an acquaintance of our client gave their name to a survivor advocacy business, which in turn passed our client’s name onto the law firm. Our client said that they “felt used and taken advantage of” by the lawyers, and felt that the lawyers “were out to make money from [their] pain”.
4.14
Another highly concerning example provided by knowmore involved a survivor advocacy business sending unsolicited mail to survivors in prison. Based on what knowmore has seen, these letters:
Ask survivors to contact the advocacy business “with the details required for your claim”.
State that the advocacy business requires an attached “new client intake form to be filled out and sent back to our head office [with] identification documents to start your claim”.
Advise survivors that “for your claim to be settled within a timely manner, you must participate in the process by providing all the information and documentation to us and your nominated law firm as soon as practicable”.
4.15
Bravehearts also confirmed that they are aware of both law firms and advocacy organisations targeting men appearing in court or in gaol to pursue civil claims without providing fulsome information on the range of options available to them.
4.16
Unfortunately, these concerning examples reflect similar instances of unprofessional and unethical conduct by lawyers in institutional redress schemes in Ireland and Canada.
4.17
People with Disability Australia highlighted that survivors are a vulnerable group and that some law firms could take advantage of any such vulnerability:
Some child abuse survivors are particularly vulnerable to exploitation by private law firms wishing to profit from providing advice about and preparing Redress applications, including people in prison and some people with intellectual, cognitive and psychosocial disability. Child abuse often produces intense and ongoing psychological impacts which intensify such vulnerability’.
4.18
The need for free culturally appropriate service provision was also highlighted:
…VACCA believes a more realistic and workable solution is to ensure Aboriginal survivors get the culturally-safe and culturally-informed support they need at the time of completing the application to ensure the application reflects the full extent of their abuse experienced. This would require funding Aboriginal Legal Services.
4.19
The Department of Social Services (DSS) is aware of the concerning practices and has taken steps to address the matters identified. Actions include:
amending the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Act 2021 to protect the name and logos of the NRS to ensure that private companies do not use them to confuse survivors;
sponsoring key search terms and making website updates to improve the NRS website’s search results position in relation to private law-firms (both commenced in October 2020); and
updating the NRS website and other letters and forms to emphasise the availability of free legal support through knowmore legal services.
4.20
DSS is currently also developing a fact sheet containing information for survivors to consider if hiring a lawyer is the best option for them and how to make a complaint to a professional body about a private law firm’s practice.
4.21
knowmore strongly advocated for reform to address exploitative practices must be done at a policy level:
In terms of addressing it, we are very much of the view that it needs systemic and legislative reform. Trying to address it on a case-by-case basis is not going to ultimately be successful or mitigate all of the forms of behaviour that we're seeing. It needs legislative reform… It requires certification around representation, charging of fees and those sorts of things.
4.22
DSS highlighted that many of the reforms identified by knowmore fall within the remit of state and territory governments rather than the Federal Government.
4.23
One suggestion for reform from Relationships Australia was that:
The Attorney-General’s Department should work with State and Territory legal professional conduct regulators to develop … model contract terms, and non-derogable terms in contracts to ameliorate the significant asymmetry of power and knowledge that exists between legal practitioners and many survivors.
Committee Comment
4.24
The Committee is very concerned that the practices of some private law firms and advocacy services are designed to take advantage of a vulnerable group. The Committee agrees that responding to these practices is essential. An adequate response must be multifaceted with both increased community education alongside the introduction of policy or legislation that restricts exploitative practice.
4.25
The Committee appreciates that the NRS has taken steps to mitigate the risks of exploitative practice. The Committee encourages the government to use the Ministerial Governance Board arrangements to continue working with state and territory governments to consider reforms.
4.26
Key to ensuring that survivors have access to appropriate legal advice is choice. At present there are no options available for survivors who wish to access free legal advice. Survivors may be impeded due to a number of reasons including potentially having personal connections to staff, not being able to make timely contact with the service or perceptions that the service may not be able to respond to the diversity of survivors. Additionally, while some face-to-face services are available, they are limited. This makes a difference to survivors who initially engage with very low levels of administrative trust.
4.27
The Committee acknowledges that there are many private law firms and legal practitioners engaging in appropriate practices, who provide valuable trauma informed care to survivors.
4.28
The Committee recommends that the National Redress Scheme engage additional free legal services for survivors to access.
4.29
The Committee recommends that the National Redress Scheme identify and fund legal services that can provide face-to-face, culturally diverse and trauma informed legal advice across regional, rural, and remote centres.
4.30
The Committee recommends that the Minister’s Redress Scheme Governance Board prioritise preventing the exploitation of survivors by private law firms and works to immediately implement the following measures:
Make it unlawful for lawyers to charge contingency fees for services delivered with respect to National Redress Scheme applications;
Impose a legal obligation on lawyers to advise a potential client of the availability of free services (knowmore and the Redress Support Services), and to certify such advice has been provided, before executing a costs agreement for a National Redress Scheme application;
Considering a cap on fees that lawyers can charge for services delivered with respect to National Redress Scheme applications;
Make it an offence for any person to:
contact a person without their consent and solicit or induce them to make a National Redress Scheme application; or
give or receive any money or other benefit in exchange for a referral to make a National Redress Scheme application;
Establish a set of expected practice standards for lawyers and survivor advocates providing services with respect to National Redress Scheme applications; and
Establish a specific complaints process within the National Redress Scheme to deal with concerns about the conduct of lawyers and representatives from survivor advocacy businesses.