6.1
Section 192 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act) provides that the responsible Minister must initiate a review of the operation of the National Redress Scheme (NRS) as soon as possible after the second anniversary of the start day.
6.2
On 17 June 2020 the Minister for Families and Social Services, Senator the Hon. Anne Ruston (the Minister) announced Ms Robyn Kruk AO as the independent reviewer for the Legislated Second Anniversary Review (the Second Year Review). Minister Ruston said that the Review would be provided to the Federal Government by the end of February 2021. The Minister later confirmed that Ms Kruk had requested an extension to the end of March 2021 and that this had been agreed.
Background
6.3
On 14 July 2020, Ms Kruk shared an open letter with interested parties about the Second Year Review and invited interested stakeholders including survivors, nominees, redress service providers and other interested parties to make a submission, complete a feedback survey, or both.
6.4
During the course of the Second Year Review, Ms Kruk met with 81 survivors, support services, government agencies and Ministers. Additionally, there were 226 submissions made and 503 responses to the feedback survey.
Key Findings
6.5
Ms Kruk had access to data not previously shared with stakeholders or the Committee. Subsequently a range of key findings and insights were made across the scope of the NRS. Each part of the Second Year Review is discussed below.
The Survivor Experience
6.6
The Second Year Review received feedback that the NRS had failed to protect applicants and provided examples of instances where the NRS ‘has harmed them in their journey for redress’.
6.7
The Second Year Review noted that the issues raised cut across all aspects of the NRS including:
initial contact by survivors
the lack of trauma informed responses
incorrect identification of institutions
long waiting periods with no contact at all
inconsistent and incorrect advice from case officers
the loss of personal records and applications
significant privacy breaches
inconsistent IDM determinations
poorly conducted direct personal responses
the inadequacy of provision and availability of counselling and psychological services in non-metropolitan locations.
6.8
The Second Year Review found that the emphasis placed on the need for trauma informed practice and provision of appropriate support for survivors by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) had not been effectively implemented by the NRS.
6.9
The Second Year Review concluded that ‘a trauma informed approach supported by appropriately scoped recruitment strategies and training is critical if the Scheme is to improve and deliver on its statutory objectives’.
6.10
The Second Year Review noted that the Department of Social Services (DSS) had identified this as a key area for improvement and created ‘specialised case teams that would have sole responsibility for direct contact with survivors’. Additionally, the Blue Knot Foundation had been engaged to run staff training.
6.11
While acknowledging the efforts made, the Second Year Review recommended that DSS implement a change process to help the NRS to understand what it means to be trauma informed and consider how this might change operations to ensure they ‘do no harm’ and improve the experience of survivors.
6.12
The Second Year Review received feedback indicating that the NRS lacks transparency in key areas. Specifically, survivors felt that ‘there are few opportunities for ongoing systematised engagement’. This in turn ‘facilitates a climate of mistrust’, which is difficult to resolve given the high level of mistrust in institutions among survivors.
6.13
These findings reflect evidence presented to the Committee and considered in chapter 2. The evidence received by both the Second Year Review and the Committee clearly indicates that fundamental improvements to the survivor experience of the NRS is required, and that in order to achieve improvement some deeply considered reform of the NRS is necessary.
6.14
The Second Year Review also suggested an approach that is more systematised in applying improvements across the operations of the NRS. Specifically, the Second Year Review noted that improvements in NRS operations need to be based on a commitment from all governments to success measures for ‘driving integrated changes and increasing survivor confidence in the Scheme.’ In this regard, the Second Year Review stated that focusing ‘on the survivor journey is also a very sound basis for improvement’.
6.15
These considerations led the Second Year Review to recommend the development and implementation of a Survivors’ Service Improvement Charter by the end of 2021. According to the Review, this Charter should:
include service standards to improve survivor experience
be reflected in Scheme rules, the inter-governmental agreement and key governance and performance documents and contracts with support services
provide a service guarantee to survivors including:
guaranteeing survivor information is safe and secure
setting expectations regarding service delivery, transparency and accountability
giving surety regarding responsiveness and resolution of issues
establish a robust feedback loop to ensure the survivor voice is embedded throughout the Scheme.
Applying for Redress
6.16
In discussing the process of applying to the NRS, the Second Year Review identified a number of issues that require consideration and reform.
Eligibility
6.17
The Second Year Review found that the criteria for eligibility ‘appear arbitrary and unjust’. Specifically, the Review noted that certain categories of survivor have been excluded from seeking redress for childhood abuse through the NRS. For example:
The Act states that survivors in gaol cannot make an application for redress. The expectation was that survivors in gaol could make an application on release from gaol.
6.18
The Second Year Review noted that the ‘restriction against prisoners applying was in part a response to concerns that confidentiality and access by support services would be difficult’. However, according to the Review, this restriction ‘is perceived as unjust’ particularly in light of the fact that the Royal Commission found that ‘people in gaol are more likely than the general population to have been victims of child sexual abuse’.
6.19
People with Disability Australia (PWDA) agreed with the need to examine eligibly for people in gaol noting that existing rules may be ‘disproportionately affecting people with disabilities, because … around 29 per cent of the prison population compared to 18 percent of the general population’ have a disability. PWDA emphasised that any change must be implemented alongside targeted NRS education for the gaol population who may face additional barriers to applying.
6.20
The Second Year Review noted its support for processes accommodating prisoners’ participation in the NRS, and set out the trauma informed requirements for facilitating this.
6.21
Similarly, the Second Year Review also examined the participation of survivors who have subsequently been convicted of serious criminal convictions. It noted that ‘survivors with a single serious criminal conviction of five years or more for an offence against the Commonwealth, a state or territory, or a foreign country’ are able to access a separate assessment process.
6.22
The Second Year Review stated of the 309 applications from survivors with serious criminal convictions and/or in gaol, 120 had received determinations, the majority of which resulted in the applicants receiving redress payments.
6.23
In terms of the participation of people with disability, the Second Year Review noted concerns that DSS has ‘a lack of visibility of applications from survivors in disability institutions’, and additionally, the Review had received ‘no submissions from disability institutions or guardians in relation to’ survivors in disability institutions.
6.24
Following consultation with the disability sector, the Second Year Review put forward possible reasons for the lack of representation including reliance on others for access to information, privacy issues, potential exploitation, general lack of awareness of the NRS, and difficulties with the application process.
6.25
As a result, the Second Year Review concluded that ‘the Australian Government should consider introducing additional specialist support services to assist with applications and increasing awareness within these supported institutions and their residents’.
6.26
Non-citizens and people living outside Australia are explicitly excluded from apply for redress through the NRS, despite the fact that they were abused in institutional settings in Australia as children. This exclusion was justified in the legislation on the basis that it was to ‘mitigate the risk of fraudulent claims and to maintain the integrity of the Scheme’ as it ‘would be very difficult to verify the identity of those who are not citizens, permanent residents, or within the other classes’ deemed eligible to apply for redress.
6.27
The Second Year Review disagreed with this assertion, noting that:
…it would be possible to minimise the risk of fraud which could arise from non-citizen/permanent resident applicants by using alternative methods to confirm identity. This could include using international passports or immigration records where available.
6.28
According to the Second Year Review, some survivors have been excluded from the NRS on the basis that their abuse took place after they turned 18 years old. The Review noted that this eligibility restriction applies current legal standards on the age of majority, when until 1974, there was ‘no possibility’ that those in care could be released until they turned 21.
6.29
The Second Year Review concluded that ‘the Scheme should recognise these care leavers if they were abused in care over the age of 18 and under the age of 21 prior to 1 November 1974’ because these care leavers were still required to remain in care.
6.30
As a result of these perceived omissions in eligibility, the Second Year Review took the view that access to the NRS should be significantly expanded to include prisoners, those with serious criminal convictions, non-citizens and non-permanent residents, and care leavers abused between the ages of 18 and 21 prior to November 1974.
Standard of proof
6.31
During its investigation, the Second Year Review found that the standard of proof used in assessing claims resulted ‘in difficulties for decision makers, applicants and support services’, and that the standards used in ‘different decisions vary’.
6.32
The Second Year Review noted that ‘the standard of proof for eligibility for redress’ is the ‘reasonable likelihood test’, which includes indicators such as the person stating the abuse took place, the institutions agreeing they should be treated as responsible, a report of the abuse occurring, any prior payments made, and similar claims against the abuser or institution being found eligible.
6.33
The Second Year Review quoted the National Redress Guide to highlight the differences in guidance materials provided to independent decision makers IDMs:
In determining reasonable likelihood, the Operator must also consider that the Scheme was established in recognition that some people:
Have never disclosed their abuse and disclosure to the Scheme may be the first time they have done so.
Would be unable to establish their presence at the institution at the relevant time (the institution’s records may have been destroyed, record keeping practices may have been poor, or the person may have attended institutional events where no attendance record would have been taken).
Do not have corroborating evidence of the abuse they suffered.
6.34
Despite these published standards, the Second Year Review noted that IDMs have the following indicators of ‘reasonable likelihood’ included in their training material:
a signed statutory declaration
whether the relevant institutions believe they should be treated as responsible
medical treatment or therapeutic support sought
criminal charges or convictions in relation to the abuse or the abuser
prior report of the abuse
information provided in the request for information process.
6.35
The Second Year Review found that reasonable likelihood is the appropriate standard of proof, but that the policy guidelines and training material for IDMs should be reviewed to ensure that inconsistencies are avoided.
6.36
In terms of the Assessment Framework used by decision makers in determining the calculation of entitlement for survivor applicants, the Second Year Review noted that a ‘different and higher standard of proof to reasonable likelihood applies’. Specifically:
The Assessment Framework currently provides that a decision-maker can find institutional vulnerability and extreme circumstances where it is ‘reasonable to conclude’ that particular circumstances exist. This imposes a higher and more objective standard than the ‘reasonable likelihood’ standard of proof applied when assessing a person’s eligibility for redress under section 29 of the Act.
6.37
According to the Second Year Review, this ‘imposes two different standards’, which ‘results in unnecessary complication for the IDMs’. This further led to inconsistency in the determinations made by IDMs:
The Review found differences in application – some IDMs strictly apply the Assessment Framework Policy Guidelines and others apply the Assessment Framework. This disparity in the weight given to the Assessment Framework Policy Guidelines means that IDMs are using different measures for the assessment of extreme circumstances, creating inconsistency.
6.38
Additionally, the Second Year Review noted that inconsistencies in guidance materials lead to inconsistencies of decisions, including decisions about the application of extreme circumstances:
The inconsistency of the assessment outcomes for the extreme circumstances payment arises out of confusion on the part of IDMs because of the differences in content of the Assessment Framework Policy Guidance for extreme circumstances (advisory only) and the Assessment Framework (legislation).
6.39
This has serious consequences for survivors, with the Second Year Review finding that there ‘is potential for survivors to not receive fair and equal treatment under the Act,’ and that ‘it is likely that fewer people are receiving payments for extreme circumstances than there should be’.
6.40
The Second Year Review was concerned ‘that these varying objective tests and standards of proof are difficult for decision-makers, applicants and support services’, and recommended that ‘a prescribed and consistent standard of proof – preferably the reasonable likelihood standard – to apply to each relevant decision point under the Act’.
6.41
Additionally, the Second Year Review concluded that there are ‘serious inconsistencies’ between the Internal Assessment Guide and the Assessment Framework Policy Guidelines, which ‘result in inconsistent decision-making under the Assessment Framework’.
6.42
As a result, the Second Year Review called for the simplification and clarification of the assessment process to assist both applicants and IDMs. The Review noted the need to give consideration to implementing any changes retrospectively and the funding ramifications of this action.
6.43
The Second Year Review also found that, similar to the work undertaken by the Committee in its First Interim Report, there was benefit in making the Assessment Framework Policy Guidelines a public document. The Review identified a number of reasons to make the assessment framework public:
It is the Review’s view that making the Assessment Framework Policy Guidelines a publicly available document will also improve the application process, as applicants have clear guidance as to how their application will be assessed. This in turn should also approve the timeliness of processing applications, as more relevant information can be provided. The publication of the Assessment Framework Policy Guidelines would not remove or reduce the discretion of an IDM in making their determination.
Protected information and privacy
6.44
The Act contains provisions designed to protect information provided to the NRS, and defining who can obtain, record, and disclose this protected information. As noted by the Second Year Review, these provisions ‘afford the same protection to an institution’s information as to an individual’s information’.
6.45
The Second Year Review characterised these provisions’ application to institutions as ‘overreach’, and argued that:
Only where it is reasonable and necessary to maintain the integrity of the Scheme should institutional information attract the protection of the legislation. Further, institutional information that is to be protected should be specifically identified in the legislation.
6.46
In certain circumstances it is possible for the NRS to disclose protected information when it is in the public interest to do so. Additionally, the Act contains provisions which ‘allows participating institutions to provide protected information to an insurer to facilitate a claim under an insurance policy’.
6.47
In the course of its work, survivors told the Second Year Review that ‘too much information is shared’. In relation to sharing protected information with insurers, the Second Year Review argued that it should be minimal and de-identified, although it acknowledged that this may cause ‘difficulties where an insurer requires specific information’.
6.48
More generally, the Second Year Review noted that ‘the sharing of applicant information should be more closely protected’, and that any information about the impact of abuse on a survivor’s life should not be shared with institutions ‘unless and until the survivor requests a direct personal response’.
6.49
The Second Year Review took the view that the informed consent of applicants should be ensured in relation to the disclosure of any protected information. In terms of the application form, the Second Year Review considered it necessary to make changes to ensure applicants understand and consent to the ‘future use of protected information about them by institutions’.
6.50
Further, the Second Year Review argued that survivor permission should be required to share any information provided in an application form with institutions, to ensure they are ‘specifically aware of what information is being provided’.
6.51
The Second Year Review stated that there have been ’13 eligible data breaches during the operation of the NRS, all of which amounted to unauthorised disclosures of personal and protected information under the Act’. Additionally, the NRS ‘provided a request for information containing protected information to the wrong institution on 98 occasions between 2018 and 2021’.
6.52
Given the issues identified, the Second Year Review recommended that:
The Australian Government review the scope and content of the protected information provisions in the legislation, and have specific regard to the protection of information provided by applicants and the permitted use by the Scheme Operator and institutions of that information, including the appropriateness of protections provided to institutions...
The Elements of Redress
The monetary payment
6.53
The Second Year Review conducted a detailed examination of both the payment cap, and the matrix for calculating payments, as recommended by the Committee in its First Interim Report.
6.54
Ultimately, the Second Year Review did not recommend any increase to the existing payment cap of $150,000, despite a $200,000 cap aligning with the recommendation of the Royal Commission and the disappointment expressed by survivors over this difference.
6.55
In this regard, the Second Year Review raised the lack of support from governments for a revised payment cap, noting that ‘its adoption had been fundamental in the negotiations moving to a national scheme’, and that an increase could risk ‘the maintenance and overall viability of a national voluntary opt-in scheme’.
6.56
In considering the benefits and risks to survivors of a revised cap, the Second Year Review noted that a revision ‘would require reassessment of applicants, significantly extending timelines and increasing uncertainty for most applicants’. The Review argued that ‘significantly more focus and consensus’ had been placed on ‘the need to address fundamental issues about the Scheme’s operation’ in order to make it a ‘more viable and less traumatic experience for survivors’.
6.57
On balance, the Second Year Review concluded that governments should ‘direct their energy and additional resources towards issues that will improve the integrity and fairness of the Scheme’, including:
…expansion of funder of last resort, improvements to the consistency of decision-making, additional specialist support services for applicants, bespoke outreach, and more communication about progress of applications and how determinations are reached.
Prior payments
6.58
In examining the role of prior payments, the Second Year Review noted that the NRS’s application of the ‘policy causes confusion and significant distress for applicants’, specifically in cases where prior payments for neglect and physical abuse are taken into account.
6.59
The Second Year Review noted that there are some instances where prior payments for non-sexual abuse are deducted from redress payments, specifically in cases where prior payments cannot be separated into sexual and non-sexual abuse, and in cases where prior payments for non-sexual abuse have been made by the same institution found liable for sexual abuse through a redress application.
6.60
Additionally, the $5,000 payment for non-sexual abuse under the Assessment Framework was a cause for concern. According to the Second Year Review:
In circumstances… where there has been a prior payment for both non-sexual and sexual abuse which cannot be broken into components, or where there was a prior payment for non-sexual abuse only but a subsequent redress application for sexual abuse by the same institution, the result would be that reduction to the redress payment due to the prior payment could far exceed $5,000.
6.61
As a result, the Second Year Review concluded that, ‘applicants are disadvantaged if they identify related non-sexual abuse in their application for which they have received a prior payment’.
6.62
The risk of inconsistency in decisions and outcomes is increased by the lack of clarity on the application of prior payments. An example highlighted by the Second Year Review was in relation to prior Stolen Generation payments:
Applicants who have received Stolen Generation payments should not have those payments taken into consideration as a prior payment. However, the Review was advised that this has occurred on occasion. The reason they should not be considered is that those payments are not intended to relate to or compensate for sexual abuse.
6.63
Nonetheless, the Second Year Review noted that it ‘was made aware of certain prior Stolen Generation payments which may be taken into account for the purposes of the calculation of redress payments’. Specifically:
These include payments relating to the New South Wales class action concerning the Stolen Generation. It is understood that these settlements may include a component for sexual abuse. In this situation, the amount paid for the sexual abuse is separated from the total settlement amount and only that component is taken into account as a relevant prior payment.
6.64
As a result of this inconsistency, the Second Year Review recommended that the application and understanding of prior payments be addressed via legislative amendments that ‘achieve a fair and transparent outcome’ for those who received prior payments, and the provision of clear guidance to both the public and IDMs on the operation of the prior payment provisions.
6.65
The Second Year Review also examined the practice of indexation on prior payments, noting that indexation was a recommendation of the Royal Commission, but that there is nonetheless ‘strong consistency in the opposition to the policy’.
6.66
In its First Interim Report, the Committee recommended either the cessation of the practice of indexation of prior payments, or that it only be applied to the redress application date, rather than the award determination date.
6.67
The Second Year Review noted that a wide range of stakeholders raised concerns about the practice of indexation, including survivors, redress support groups, the Australian Government, and state and territory governments. The Review was supportive of these concerns, and costed the two options recommended by the Committee.
6.68
The Second Year Review found that the cessation of indexation would mean an average increase of $2,194 per applicant, while calculating indexation up to the date of application would increase the average increase to $158 per applicant.
6.69
The cost to NRS operations of removing indexation was approximately 2.59 per cent of total costs or almost $70 million. Applying indexation to the date of application would cost $5.5 million, which equates to 0.17 per cent of the total NRS operation cost.
6.70
The Second Year Review ultimately recommended the removal of indexation, but failing this that the date of application, rather than the date of offer, be the basis for indexation. Additionally, the Review argued that any changes should be retrospectively applied in the interests of equity.
Advance payments
6.71
The Second Year Review examined current processes for priority applications, noting that the age of applicants had emerged as a significant issue with many priority applications being received by the NRS. Specifically, in its first 18 months of operation, NRS data showed that:
19.7 per cent of all applicants were aged 70 or older
the Scheme had made 69 payments to beneficiaries in respect of 66 deceased applicants; and
a further 66 applicants were deceased but their application had not been finalised.
6.72
The Second Year Review found that the advice on which applicants require priority processing has been ineffective in ensuring that vulnerable applicants had their applications processed in a timely manner. According to the Review, between July 2018 and December 2020, 57.6 per cent of applications received were granted priority status.
6.73
The Second Year Review noted that ‘redress staff have encountered significant challenges in implementing and managing the applications prioritisation policy’. This is evidenced by the average time taken to process priority applications being higher than the overall average processing determination time.
6.74
In addition to the problems with establishing an effective priority system for urgent applications, the Second Year Review noted that many survivors have lodged applications relating to institutions that have not joined the NRS, or no longer exist. At the time of the Review’s final report, there were 443 applications on hold, including 98 applications lodged between July and September 2018. The Review noted that these applicants ‘have waited a very long time’.
6.75
These factors led the Second Year Review to recommend the provision of advance payments of $10,000 to eligible survivors who meet certain criteria, including those born before 1944 (1964 for Aboriginal and Torres Strait Islanders) and those with terminal illnesses.
Minimum payments
6.76
At present, there is no set minimum payment under the NRS. According to NRS data provided to the Second Year Review, 42 applicants received redress offers of less than $10,000.
6.77
The Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse during the 45th Parliament recommended a minimum monetary payment of $10,000, as did the Royal Commission. Two state and territory governments supported this in their submissions to the Second Year Review, as it would acknowledge ‘the abuse as well as the effort involved in making an application and to date, the lengthy delays in receiving a determination’.
6.78
The Second Year Review took a similar view:
Applicants should not wait 13.4 months or more for an outcome – to wait this time for a nil outcome is even more distressing. Acknowledging the impact of child sexual abuse, the Scheme should recognise a standard minimum payment to recognise the abuse and its effects on applicants.
6.79
The Second Year Review recommended a minimum redress payment of $10,000 ‘even where a relevant prior payment would otherwise have reduced the redress payment to a lesser amount’.
Payments by instalments
6.80
The ability to receive redress payments in instalments was recommended by the Royal Commission on the basis that some survivors may not be used to handling such large, lump-sum payments. The Second Year Review examined this issue in its report and agreed that ‘there is benefit in exploring the merits’ of payment by instalment, and noted that this would complement the provision of financial counselling.
6.81
While the Royal Commission acknowledged that Aboriginal and Torres Strait Islander survivors were vulnerable to being pressured into spending payments ‘against their wishes and intentions’, the Second Year Review noted that:
…this is not an issue exclusively for the Aboriginal and Torres Strait Islander community – it affects all vulnerable survivor groups. Specific concerns were raised with the Review regarding potential elder abuse in these situations.
6.82
According to the Second Year Review, the provision of flexible payment options along with financial counselling would act in a complementary way. The Review determined that flexible payments should be explored through the Survivor Roundtable and ‘in consultation with banking institutions’.
Counselling and psychological care
6.83
Consistent with the findings of both the Royal Commission and the Committee, the Second Year Review found that access to redress support services was required ‘before, during and after making an application’.
6.84
The Second Year Review noted that the offer of redress counselling came as part of the acceptance documentation. Counselling and psychological care are one component of redress offered to applicants (along with monetary redress and a direct personal response), and no counselling services are offered by the NRS prior to a redress offer being made.
6.85
Once the acceptance offer has been submitted, the Second Year Review noted that there is ‘no legal avenue for applicants to subsequently amend their decision’. According to the Review, 67.6 per cent of applicants had opted to accept the offer of redress counselling to 31 December 2020.
6.86
After accepting the offer, applicants are provided with counselling and psychological care based on where they live. For Western Australian, South Australian, and overseas residents this component is provided as a lump sum payment, while in New South Wales, Victoria, Queensland, Tasmania, the Northern Territory and the Australian Capital Territory, survivors are referred to a government-funded service.
6.87
The Second Year Review noted that in cases where applicants are offered a lump sum payment, the acceptance rates are much higher than in cases where a referral to government-funding services is provided. Between July 2018 and December 2020, more than 90 per cent of applicants accepted lump sum counselling payment offers while in jurisdictions offering referrals acceptance rates sat between 45 and 60 per cent.
6.88
In the jurisdictions offering referrals, the Second Year Review received data showing that of the 2,008 survivors who accepted offers of redress, only 1,025 of those who accepted offers of redress counselling had sought to access the service. It further noted:
Of these 1,025 survivors, only 204 survivors, or 20% have actually accessed counselling. The Review supports further analysis of this uptake to better shape this redress component and its offering to better understand and meet survivor needs.
6.89
The Second Year Review sought feedback from survivors on the redress counselling and psychological services offered, which showed that many survivors and survivor advocates believed that the monetary value of the counselling offered was insufficient for complex trauma, and did not accord with the recommendations of the Royal Commission.
6.90
The Second Year Review noted that survivors in jurisdictions with a lump sum payment are disadvantaged, as the payment ‘may cover the cost of episodic counselling but not ongoing, lifelong counselling’.
6.91
In states and territories where survivors receive referrals to redress counselling and psychological services, the Second Year Review noted the considerable variation between jurisdictions. The variation covers a wide range of aspects of the counselling services offered, including the amount of counselling offered, the process for accessing more than 20 hours, the accessibility of counselling for survivors who move between jurisdictions, the availability of alternative and culturally appropriate services, the availability of counselling for family members, and consistency between metropolitan, rural and remote areas.
6.92
The Second Year Review concluded that action needed to be taken to ‘improve the equity, scope and quality of counselling support’.
6.93
Consequently, the Second Year Review recommended that:
All survivors have lifelong access to trauma informed redress counselling.
Access to redress counselling should not be determined by the state or territory in which the abuse occurred or where the survivor resides.
The Australian Government should work with state and territory governments to review the current support services and counselling models to ensure survivors receive seamless support.
The Australian Government should work with state and territory governments ensure that counselling services are culturally appropriate, including Aboriginal and Torres Strait Islander healing approaches, and meet the diversity of survivors’ needs, such as to disability, gender, sexuality and language, consistent with the requirements of the national service standards.
The national service standards should be amended to provide access to redress counselling for families of survivors.
Direct personal response
6.94
According to the Second Year Review, ‘a direct personal response is a foundational NRS element’, which:
…has the potential to provide a unique opportunity for a restorative engagement between a survivor and a representative from the institution(s) responsible for their abuse.
6.95
In its First Interim Report, the Committee found that survivor uptake of direct personal responses by applicants was extremely low. The Second Year Review received data from the NRS which showed this continues to be the case. According to the Second Year Review:
Between 1 July 2018 and 31 June 2020, 2,259 (80.5%) of the 2,807 applicants that accepted an offer of redress also accepted the offer of a direct personal response. Of these, only 178 (or 6.3% of) survivors had requested a direct personal response from the relevant institution, and just over half of these (96 out of 178 applicants) had received a direct personal response (or 3.4% of all accepted offers of redress.
6.96
In its consultations, the Second Year Review found that this low rate of uptake was influenced by a range of factors, including a lack of understanding of its purpose and benefits, the possibility of further significant trauma, survivor exhaustion and re-traumatisation from the application process, the need to contact the institution, a lack of trust in institutions, and the COVID-19 pandemic.
6.97
According to all three surveys commissioned by the Second Year Review, the direct personal response emerged as the ‘most problematic redress element’. Survey data from survivors who received a direct personal response shed light on this perception:
26% indicated they were not provided with institution contact details
41% did not consider the delivery of the response was in an acceptable form
34% disagreed that they were able to influence the form of the response
31% disagreed with the statement, ‘The direct personal response was extended to me with the courtesy, genuineness and respect intended by the Royal Commission’.
6.98
The Second Year Review concluded that ‘major revitalisation and process improvements’ are needed to maximise the potential offered by the direct personal response as an element of redress. Major stakeholders consulted by the Review identified the factors where change is necessary:
more effective communication to survivors, institutions and scheme staff
arrangements that better support survivors to request and receive a direct personal response
coordinated and ongoing training of institutional representatives
effective oversight of direct personal response delivery and outcomes.
6.99
To increase both the uptake and quality of direct personal responses, the Second Year Review recommended that governments work with survivors, advocates, support services, institutions and restorative engagement experts to design an improved process and action plan by 30 November 2021.
Access to Review, Funder of Last Resort, Civil Litigation
Reviews of decisions and revocation of determinations
6.100
Applicants for redress are able to have decisions about their eligibility and application outcomes reviewed internally if they are found ineligible or are not satisfied with the redress determination. Institutions do not have this right.
6.101
The Second Year Review accessed NRS data which showed that approximately 80 per cent of reviews affirmed the original decision, with a small percentage resulting in an increased award, and a small number resulting in a decrease in the redress payment offered to the applicant.
6.102
During its consultation, the Second Year Review found that there was ‘a high level of hesitation to apply for a review’, as the current approach leaves applicants open to having their redress payment reduced. The Review saw value in addressing this hesitance through legislative changes to ‘provide that all review applications will be on a without prejudice basis’.
6.103
The Second Year Review noted that requesting a review ‘without having the detailed information about the basis for the decision is a severe handicap for the applicant’. While this information is provided on request by the applicant:
…the statement of reasons, as it is currently structured, does not provide sufficient information to communicate the reasons for determinations to survivors. The statement of reasons requires development to ensure survivors are better informed about their decision and the grounds on which they can request a review.
6.104
This in turn requires changes in the way that IDMs develop and present their statements of reasons for decisions. At present, IDMs use an internal policy document which the Second Year Review found contained some terminology that is ‘unhelpful’, and populate a template with standard phrases to prepare a statement of reasons. The Review found that allowing more flexibility for IDMs in preparing their statements of reasons would provide applicants with a better understanding of the basic aspects of the decision including ‘how their outcome was arrived at, what was taken into account, what was not considered and why’.
6.105
Currently, when applicants request a review, they are prohibited ‘from providing additional information’, which means ‘the review decision may not be made on all relevant and available information at the time of the review’.
6.106
There are separate revocation processes for occasions when ‘the Scheme Operator receives new information that, had the IDM had the information at the time of making the original decision, would have resulted in a different determination’.
6.107
Less than 80 revocations had been requested in the first two years of NRS operation with limited data being available on many key aspects. The Second Year Review found that better data collection is necessary ‘to inform and contribute to quality assurance in relation to assessment decisions and determinations’.
6.108
The lack of comprehensive data was attributed to ‘ICT systems not having the functionality to report on review or revocation determinations’, which led the Second Year Review to recommend that functionality be developed to produce data on who initiated requests, the basis for the request, the basis for new decisions, and the period of time taken to process revocations.
6.109
Additionally, the Second Year Review recommended that the NRS ‘publish and make easily accessible an approved mandatory template for review requests’.
Funder of last resort
6.110
In the Committee’s First Interim Report, the expansion of funder of last resort provisions was a key consideration, with the Committee both recommending an expansion, and recommending that the Second Year Review consider the matter.
6.111
The Second Year Review noted that there are currently limited circumstances where a jurisdiction can act as the funder of last resort. Institutions must be defunct, a participating government must be equally responsible for the abuse and agree to act as funder of last resort, and the Minister must make a declaration.
6.112
The NRS supplied the Second Year Review with data indicating that there had been 117 cases where jurisdictions had agreed to be funder of last resort between July 2018 and December 2020. Additionally, 443 applications were on hold as there was no participating institution and no funder of last resort arrangement.
6.113
This situation left survivors feeling ‘excluded and let down’, and the Second Year Review noted that survivor advocates and redress support services were unanimous in calling for ‘one or more governments [to] act as funder of last resort’. State and territory governments expressed ‘some support for a review of the funder of last resort policy’, but also noted the need for comprehensive information on the number of institutions and survivors that are affected, and the estimated costs of expanding funder of last resort provisions.
6.114
The Second Year Review noted the efforts made by the Australian Government to ensure that all institutions named in applications joined the NRS, and supported these measures. These measures are discussed in chapter 5.
6.115
While reform is helpful for many survivors, there remains institutions that are unable to join the NRS because they are either defunct, or because they have been assessed as not possessing the financial means to join despite being willing to do so. In these circumstances, the Second Year Review recommended that:
The Australian Government and state and territory governments consider a decide how to meet funder of last resort obligations in order to ensure that survivors receive their redress and are not subject to ongoing delays and uncertainty.
6.116
As discussed in Chapter 5, the recently introduced National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) 2021 seeks to achieve this.
Civil litigation
6.117
The Committee’s First Interim Report identified that survivors can choose whether to seek redress for abuse through the NRS, or to seek compensation through civil proceedings. As noted in chapter 5, it is thought that greater numbers of survivors are now choosing to pursue civil options.
6.118
The Second Year Review received feedback from a range of stakeholders on this issue which was consistent with evidence received by the Committee. There are many divergent views. For example, survivors told the Review that the additional stress and trauma involved in civil proceedings made them unattractive, while others highlighted that ‘a civil claim would result in a better outcome’.
6.119
Redress support services told the Second Year Review that changes in state and territory laws ‘have created significant uncertainty for survivors about the most appropriate avenue for redress’, and that while civil proceedings may result in ‘more appropriate compensation’, there ‘was a lack of support services’ for survivors engaging in this process.
6.120
The requirement for applicants to waive future rights to take legal action against institutions when accepting an offer of redress was described as ‘manifestly unfair’ by some submitters to the Second Year Review, whereas institutions argued for the retention of this requirement.
6.121
The Second Year Review ultimately did not make recommendations on this matter. In its conclusions, it noted that little information is available on trends in civil cases outside Victoria, and that collecting information on these trends ‘would be desirable’. The Second Year Review noted that the Supreme Court of Victoria Institutional Liability List offers one possible model.
National Redress Scheme Management
National Redress Scheme staffing
6.122
The Second Year Review identified serious issues in relation to the staffing of the NRS.
6.123
In recognising the work undertaken by DSS in assessing the risks to NRS staff, the Second Year Review noted that it received feedback indicating that ‘the Scheme has yet to address identified staffing and work health and safety issues to the extent necessary’.
6.124
Further, the Second Year Review found that ‘measures taken by the Scheme to date have not addressed the issues of staff health and wellbeing’, and that some staff felt unsupported by ‘the lack of a unified approach to the delivery of health and wellbeing measures’.
6.125
Feedback suggested that high levels of staff turnover led to feedback from participants that raised numerous issues with the administration of the NRS. The feedback indicated that the high turnover had:
caused skills retention problems, leading to confusion, inconsistencies and trauma for both survivors and nominees;
negatively impacted survivors who had to repeat their story and contributed to some not continuing with the applications; and
created an unsustainable situation that lacks a trauma informed approach, and does not provide a single point of contact for applicants.
6.126
In trying to examine staffing data, the Second Year Review noted that ‘it was very difficult to obtain good quality and timely Scheme staffing data and analytics in response to numerous requests’. According to the Review, the NRS was unable to provide data on key staffing metrics for specific periods, such as permanent and contract staff turnover prior to the machinery of government changes, and the reasons for staff separations between February 2020 and January 2021.
6.127
As a result, the Second Year Review was unable to report on or analyse staffing turnover for the life of the NRS’s operation.
6.128
This lack of data notwithstanding, the Second Year Review did note that the ‘dependency on short-term contract staff is a significant risk to the Scheme’. Survivors and support services ‘found high staff turnover both traumatising and distressing’, and all key stakeholders – including NRS staff - expressed ‘a very high level of frustration and disappointment regarding the lack of a sufficient, trauma informed, permanent and stable staff workforce’.
6.129
While the Second Year Review was unable to provide a detailed analysis regarding contract staff due to a lack of information provided by the NRS, it did note that the information that was provided indicated that a very high proportion – up to 83 per cent – of the Service Delivery staff were on short-term contracts, and that turnover was perhaps as high as 49 per cent over approximately seven months in some areas.
6.130
The Second Year Review found significant shortcomings in terms of both the application of trauma informed principles, and the broader training provided to staff. Specifically, while the Review noted that staff ‘are often well intentioned’, the approach taken is ‘not trauma informed and has been ill-informed, not understood, haphazard in delivery and communicated poorly to staff’.
6.131
The Second Year Review found that significant changes were required to ‘eliminate or minimise harm to staff and survivors’. Specifically it noted:
The Scheme should mandate, implement and monitor the provision of clinically designed and delivered training for all redress staff; embed trauma informed principles across the Redress Group; and realign and redefine operational instructions using the experience of clinicians to provide a better experience for redress applicants and survivors.
6.132
The Second Year Review’s recommendations on NRS staffing provide a comprehensive pathway to improvement focusing on embedding trauma informed practice, and included:
formalising the development and implementation of a trauma informed framework;
analysis of the efficacy of current staff health and wellbeing measures against the trauma informed guidelines;
finalisation and regular review of the annual Workforce Plan, Risk Management Plan, Mental Health and Wellbeing Plan and Business Plan;
co-development and implementation of clinically designed selection and recruitment processes;
mandatory and regular auditing and reporting on the participation of staff in training programs;
implementation of reflective practices training for all supervisors; and
significant increases to the cap on staffing levels based on both workforce planning and NRS projections that includes an appropriate skilled surge capacity.
National Redress Scheme management and the redress ICT system
6.133
The Second Year Review’s examination of the ICT system used by the NRS also identified significant concerns.
6.134
Specifically, the Second Year Review found that the system ‘is not fit for purpose’, and ‘relies on manual workarounds for key operational data’. The Review noted that the current system does not include an end-to-end case management system; allow for online case progression to determinations; minimise the need to rework; or create a single view of applicants. Further, it does not allow for real-time auditable reporting or offer full transparency on workloads.
6.135
Survivors, redress support services and institutions all reported a range of errors caused by the ICT system that are exacerbated by the case management system and human error. These included:
incorrect advice and recording of survivors’ information;
phone calls often not being returned;
anxiety and frustration caused by high staff turnover;
unsatisfactory resolution of queries relating to applications;
a lack of trauma informed principles and cultural sensitivity in processing applications and staff training;
breaches of protected information including sharing of survivors’ personal stories and information being sent to the incorrect institution; and
insufficient explanation for the basis of a determination.
6.136
According to the Second Year Review, ‘greater financial investment is required to develop a redress ICT system’ with both the capacity and capability to ‘deliver an end-to-end case management trauma informed service’ that includes the provision of transparency and accountability’.
6.137
The Second Year Review made recommendations for an independent review of the ICT system that would allow:
end-to-end business processes with supportable audit function;
automated workflows which allow concurrent processing and prevent errors passing through sections;
provide a single point where applications are stored, accessible on a ‘need to know’ basis;
enable reporting on key performance indicators such as processing times, productivity, workloads and costs; and
greater transparency, accountability, and guidance for users.
Complaints
6.138
The Second Year Review noted that the NRS received 829 complaints and 308 enquiries in the 15 months to September 2020, placing it in the top three areas of complaints to DSS.
6.139
Redress support services told the Second Year Review that survivors ‘interpret delays as a deliberate strategy by government’ to reduce expenses by ‘waiting for them to die’. According to redress support services, ‘survivors need to know how their application is progressing’, and responses like ‘you do not need to do anything else’ need to be improved.
6.140
Similarly, DSS reviews of the complaint handling process identified a number of issues. It found that the process which involves up to 11 sections of DSS is fragmented, and that data is poor quality. Further, complaints made often failed to result in a satisfactory response, and the approach taken was considered to lack empathy.
6.141
The Second Year Review noted that a number of improvement processes are in place as a result, and recommended that:
The Australian Government commit to continue improvements in complaint management and reflect these in the Survivors’ Service Improvement Charter. Improvements should include shortening institutional reporting obligation time frames on survivor feedback and complaints received from 12 to six months to allow greater opportunities to identify and address areas of concern in a timely manner.
Institutional responsibility
6.142
Noting the voluntary nature of participation in the NRS by institutions, the Second Year Review examined the capacity of institutions to effectively participate.
6.143
The Second Year Review recognised that ‘there are a myriad of factors, financial and non-financial, influencing non-government institutions’ decisions to join the Scheme’, and highlighted a series of key factors and impediments.
6.144
The financial capacity and liability risk to institutions present a challenge to institutions that are willing to join, but whose ‘financial circumstances mean that they are not eligible to do so’. Specifically:
Submissions from some institutions made the point that, unlike large educational and religious institutions, many of the smaller organisations do not have assets available to underwrite current and/or future applications. They were concerned about the impact of increased civil actions on their overall sustainability.
6.145
The Second Year Review stated that the liability estimator tool, designed to assist institutions in determining their total redress liability over the life of the NRS, may have overestimated these liabilities and prevented some institutions from joining.
6.146
In addition, the administrative distinction between lone institutions and participating groups led to concerns about the time and complexity of joining the NRS. Institutions may join the NRS as a lone institution where it is a non-government institution that joins the NRS as a single entity, while participating groups are established by ministerial declaration and involve two or more participating institutions.
6.147
The Second Year Review concluded that consideration of the factors perceived as causing difficulties for institutions joining the NRS is necessary, and stated its strong support for continuing engagement with key stakeholders to investigate financial arrangements that facilitate participatory smaller institutions. The Review also saw a need for further modelling to understand the impact of increases in applicant numbers after the addition of participating institutions, and a refinement of the on-boarding process and liability estimator tool.
Financial Arrangements
Funding the National Redress Scheme
6.148
Of significant concern is the fact that a specialist consultant told the Second Year Review that the quality of the financial data provided by Services Australia was low. Further, despite making multiple requests over a 10 week period, the consultancy was not provided with a range of key cost data for the first two years of operation of the NRS.
6.149
The Second Year Review noted that the estimates made by the consultancy on the total departmental costs were ‘not based on data which the Review would have preferred to rely on’.
6.150
The Second Year Review was unable to make recommendations on the appropriateness of institutions’ contribution to the administration of the NRS ‘as it was not provided with actual detailed expenditure data across the life of the Scheme to date’.
Funding and evaluation of redress support services
6.151
Encouragingly, the Second Year Review stated that feedback received on survivors’ experience with redress support services is generally positive. However, according to the Review:
…there is little data about the efficacy of the various services and no completed Scheme data on survivor satisfaction. The findings of the survey of survivors commissioned by the Review are not generalizable given the small sample size and are not a substitute for more systematic analysis.
6.152
The Second Year Review was unable to comment on ‘the efficacy or relative value of the various [redress] support services’, and identified:
…an urgent need to embed survivor experience of all the components of the Scheme into the governance and reporting structures and to undertake rigorous analysis to inform the service mix and distribution of support and specialist services.
6.153
Picking up on the Committee’s identification of ineffective communication with First Nations survivors, the Second Year Review conducted an examination of ‘the extent to which the Scheme may unfairly exclude Aboriginal and Torres Strait Islanders from redress’.
6.154
The Second Year Review found that the recommendations of the Royal Commission on accessibility to the NRS for First Nations peoples had yet to be implemented, and that eligibility for redress ‘of children living in missions and institutions post 1967 warrants immediate clarification by the Scheme’.
6.155
In general, the Second Year Review received submissions suggesting that ‘communication methods are not appropriate’ for First Nations survivors, that current material ‘lacks cultural sensitivity’ and that it may not be reaching these survivors through website-based communication methods. For example:
…consultants to the Review reported that Aboriginal and Torres Strait Islander applicants can struggle to explain their abuse, preferring to use nuanced language or slang. This presents a dilemma to support services, as questions seeking clarification such as ‘did it involve penetration?’ are considered leading, and the information gathered is therefore not credible.
6.156
Redress support services told the Second Year Review that in order to complete applications and understand NRS advertising, many First Nations survivors required translation, literacy services and support. The Review noted that of the nine common languages available on the Scheme webpage, none are Indigenous.
6.157
Similar to findings made by the Committee in chapter 2, the Second Year Review urged the NRS to ‘consider and implement measures to overcome these issues with the current Scheme design’, stating that:
The expectation of unprompted, specific, unfamiliar language to describe abuse raises a significant dilemma for support services dedicated to ensuring that applicants receive appropriate redress. The Scheme should alter the application form to better cater to the needs of Aboriginal and Torres Strait Islander survivors, such as simplifying the language used, reducing the length and complexity of the form, and including additional information about redress support services.
6.158
In order to achieve increased engagement and better outcomes for First Nations survivors, the Second Year Review found that:
The Scheme should also take immediate protective steps to co-develop and reset its communications strategy and products through trauma informed and culturally appropriate consultation with the Aboriginal and Torres Strait Islander community to reach Aboriginal and Torres Strait Islander survivors. This is essential to ensure that the redress journey for survivors is trauma informed and culturally appropriate and that survivors are supported through appropriately targeted and funded services in order to achieve a just determination.
6.159
Similarly, the Second Year Review noted that survivors with disability ‘are significantly disadvantaged by the Scheme application process’, and found that the ‘number of funded disability-specific redress support services’ was inadequate. According to the Second Year Review:
…some applicants with disability will not have appropriate access to the counselling and psychological care component, due to the limited availability of counsellors who are skilled in working specifically with people with a disability via the Scheme…
6.160
Many applicants with disability ‘will need support throughout the application process’, and that:
The Scheme should employ designated staff, who represent the target communities, to engage with and support applicants from these communities. Each of the three components of redress should be analysed and adapted so that the Scheme can offer each component in ways that better meet the needs of people with disability.
6.161
In regard to communication, the Second Year Review raised feedback stating, ‘information and communications technologies and systems used by the NRS were inaccessible for many people with disability’, and argued that:
…the Scheme must allow a variety of communication methods for people to record their experience of abuse. For example, the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability invites people to share their experiences through a range of media, including in writing, over the phone and in a video or audio recording. The National Disability Insurance Scheme allows participants to communicate their needs through Auslan interpreters and symbol-based communication tools such as Proloquo2Go.
6.162
Concerns about the role of ‘gatekeepers’ such as guardians were raised with the Second Year Review, particularly in terms of their role in choices about whether to apply to the NRS. Similarly, survivors in supported accommodation face a situation where ‘the institution that cares for them, may also be the place where they experience abuse’. This raises concerns, as ‘institutions may have a conflict of interest in raising awareness of the Scheme with their clients’, or survivors may hold fears about the quality of their ongoing care should they make an application. The Second Year Review concluded that:
…the Scheme should redesign its application process to accommodate the diversity of communication methods used by survivors. Furthermore, the Scheme should develop a communications plan that targets both survivors with disability, their carers and wider support services. The application process should acknowledge the need for support that many survivors require to complete and recover from the process of documenting their abusive experiences. Furthermore, the application form should include questions that allow applicants to elect the supports they will need to complete their application and to evaluate the Scheme’s trauma informed performance against those requirements.
6.163
As with First Nations survivors and survivors with disability, the Second Year Review noted that the NRS should ‘urgently co-develop a bespoke’ communication strategy directed towards culturally and linguistically diverse (CALD) survivors.
6.164
The Second Year Review found that:
The current 2020-21 communication plan identifies the CALD ‘equity of access’ issue. However, the only action highlighted by the Scheme currently to address this issue is to consider the key needs and barriers in this space, and scope possible options forward. The Review found that the Scheme has been advised previously of the key needs and barriers and that what is needed is action.
6.165
According to the reports commissioned by the Second Year Review:
…electronic and print-based communications are not mindful of access issues or culturally sensitive, Scheme support services are not culturally sensitive, and there is a lack of trauma informed training for staff. Together they found the counselling and psychological services do not account for the cultural needs of people from the CALD community, who would benefit from culturally relevant and sensitive practices and the Scheme promoting culturally sensitive and community controlled support services.
6.166
Despite this, the Second Year Review noted that ‘there is no Scheme commitment to a bespoke communications strategy, communication products or information relating to the allocation and targeting of funding’ to address this issue. Without such a commitment, the Review stated that the ‘continuation of this gap will maintain the status quo’, and the understanding of the needs of CALD communities and survivors will allow the current perceived lack of CALD applications to continue.
6.167
The Second Year Review argued that a range of amendments to NRS processes are required to better engage with the CALD community, including:
amending the application form to make it more culturally sensitive;
providing information and application forms in a wider range of languages;
creating linkages between bespoke communication products and survivors to appropriate CALD support services; and
amending data collection methods so they better capture the diversity of CALD survivors and meet their specific needs.
6.168
As a result of these findings, the Second Year Review made extensive recommendations on strategies to improve communication and engagement. These included:
targeted communication strategies to build trust and increase awareness in vulnerable cohorts;
proactive steps to communicate support service availability; and
funding for services facilitating First Nations healing approaches, which also meet the diverse disability, gender, sexuality, cultural and language needs of survivors.
6.169
In addition, the Second Year Review saw a need for expanding access to support services and interventions, recommending that funding go towards improving the scope, quality and geographic spread of support services, including financial counselling. The Review also identified a need for an external evaluation of existing support services, and funding for ‘tailored and targeted responses, including outreach, to vulnerable individuals and cohorts.
Australian Government Interim Response
6.170
The Federal Government released the interim government response (Interim Response) on the same day as the review was made public.
6.171
The Federal Government has indicated that the final response will be made public in the beginning of 2022, following further consultation with states and territories, and redress support services.
6.172
The Interim Response noted that 25 of the 38 Second Year Review recommendations are being prioritised in full or in part, and that $80 million has been invested over four years to support their implementation.
6.173
The Interim Response made the point that, where relevant, the agreement of state and territory governments will be sought to support the implementation of the accepted recommendations. The steps taken to implement the accepted recommendations are outlined below.
6.174
In regard to the remaining 13 recommendations, the Interim Report stated that ‘further detailed development work and consultation with survivors, institutions and other stakeholders’ is required, as they ‘constitute major changes to the Scheme’. A full list of responses to the Second Year Review recommendations is available in Appendix A.
6.175
Bravehearts considered it disappointing that the Federal Government is not prioritising all the recommendations and expressed concern that the decision not to review eligibility criteria, reform the matrix, or make the assessment framework public undermines the overall goal of improving survivor experience of the NRS.
6.176
CLAN also expressed frustration at the recommendations being prioritised for implementation, stating:
Basically, it supports those recommendations that are the easiest, cheapest and least disruptive to the entrenched status quo. The Australian government merely noted but did not support 10 recommendations, and we note that were they to be implemented they would be likely to address many of the most common complaints that survivors have with the National Redress Scheme.
Implementation
6.177
Both Houses of Parliament passed the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021 (the September 2021 Act) on 2 September 2021.
6.178
The following sections refer to statements made in both the House of Representatives and the Senate as the bill was debated in both chambers before being passed. Minister Ruston can only speak to the amendments in the Senate, while in the House of Representatives, Minister Tudge represented the government during most of the debate.
6.179
The September 2021 Act implements five recommendations made in the second anniversary review. It:
Introduces advance payments of $10,000;
amends the calculation process for the indexation of prior payments;
extends the redress offer acceptance period, and subsequent review timelines;
removes the need for a statutory declaration when submitting an application; and
allows redress payments to be made in instalments if requested by the survivor.
6.180
The Federal Government acknowledged that this is one step towards implementing the agreed recommendations and highlighted the voluntary nature of institutional participation:
…this is a scheme that is voluntarily contributed to and also requires the agreement of states and territories for any changes to the Act. To do otherwise would be in breach of our intergovernmental agreement with the states and territories. This bill reflects the initial action of the government. We have managed to get agreement for five amendments in order to progress five of the recommendations of the two-year review.
6.181
There is a staged timeline for commencement. Starting with the extension of the review and acceptance periods, all other measures will commence when appropriate arrangements are in place to support their implementation. Minister Tudge noted that all measures will be treated with urgency by DSS.
6.182
In accordance with recommendation 4.2, the September 2021 Act contains provisions allowing for advance payments, funded by government, to survivors ‘aged 70 years and over, or 55 years and over for Aboriginal and Torres Strait Islander applicants, or terminally ill applicants, or where there are other exceptional circumstances for particularly vulnerable people’.
6.183
The advance payments would be available to both new applicants and to survivors who have already lodged applications and are awaiting a determination, with the amount then deducted from the survivor’s final redress payment.
6.184
The September 2021 Act allows applicants to elect to receive redress payments by instalments and to provide more control of the management of their finances, as per recommendation 4.4. This measure does not impact responsible institutions financial liability.
6.185
Indexation calculation is also amended, providing for prior payments to be indexed up to the date of application, rather than the date of determination. This reflects recommendation 4.5, and ensures that the time taken to process an application does not negatively effect the amount in the final redress payment. Again, this change does not impact the financial liability for institutions, as the Commonwealth will fund the increase to redress payments. This change applies to all applications, including those made prior to the commencement of this measure.
6.186
In accordance with recommendation 3.6, the September 2021 Act removes the requirement for a statutory declaration to be submitted with applications, removing an unnecessary barrier that may stop some survivors from applying.
6.187
Subsequently, on 27 October 2021, the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Bill 2021 (the Bill) was introduced in the House of Representatives, and at the time of writing this report, the Bill was currently being debated.
6.188
This Bill contains two key measures. It implements, in part, recommendation 5.1 by extending funder of last resort arrangements to defunct institutions where jurisdictions do not share responsibility for the abuse, and where the relevant jurisdictions agree to act as funder of last resort.
6.189
The Bill also provides a legislative basis for the public naming of institutions by amending the protected information provisions. It allows for the public disclosure of the participating status of institutions named in applications, thereby providing ‘a stronger, clearer and more administratively efficient basis for the current practice of publicly naming institutions.
6.190
The Federal Government was also clear that legislation was not the only way the Department would be implementing the recommendations. Minister Tudge confirmed that work had commenced on simplifying the application form and letters, the provision of increased support to survivors to engage in a direct personal response, and the introduction of more personalised and meaningful engagement with survivors in the early stages of application and throughout the process.
First Interim Report commentary
6.191
The Committee made 14 wide ranging recommendations in the First Interim Report. All recommendations were designed to improve survivor experience, participation rates and improve NRS administration practices, either through recommendations for specific actions or through deeper examination by the Second Year Review. There was widespread support from survivors, advocates, and redress support services for the recommendations in the First Interim Report.
6.192
Catholic Religious Australia noted some concerns regarding recommendation 6, stating that it did not support the removal of a deed of release, or a change to current indexation practices.
6.193
The Federal Government indicated that it would not initially respond to the recommendations, but instead refer them for consideration as part of the Second Year Review. The Committee notes that this is not standard practice and resulted in the response being delayed for over 12 months. As clearly stipulated in the First Interim Report, many survivors do not have an additional 12 months to wait for reform of the NRS to begin. In response, one survivor stated, ‘one fails to understand why they haven't been picked up. Why do we have to wait another lengthy period of time for those fairly simple recommendations which are largely procedural.’
6.194
The Government Response was tabled in the Senate in September 2021, and supports six of the Committee’s 14 recommendations. Two recommendations are supported in part, one recommendation is supported in principle, and five recommendations were noted.
6.195
The Government Response noted that ‘many of the Committee’s key recommendations are being considered under action proposed in response to the Review’, and also highlighted the legislative amendments enacted, which are discussed earlier in this chapter.
6.196
Specifically, the expansion of funder of last resort provisions, and the removal of the requirement for statutory declarations were both the subject of equivalent recommendations by the Review and have been supported by Government, and in the case of statutory declarations, addressed through legislative amendment.
6.197
Similarly, the Committee recommended that the Second Year Review examine the appropriateness of the use of advance payments, and the Government Response stated that it supported the Review’s recommendation.
6.198
Six of the Committee’s recommendations relate to areas of focus for the Second Year Review, and the Committee notes that regardless of whether these recommendations were supported or noted in the Government Response, the Review took action to examine these issues and make recommendations accordingly.
6.199
A key recommendation of the First Interim Report concerning participation of named institutions was supported in part in the Government Response.
Committee Comment
6.200
The Committee sincerely appreciates the work of Ms Kruk, and supports the findings and recommendations of the Second Year Review.
6.201
The Second Year Review provides a comprehensive, detailed and well justified pathway to fundamental reform of the NRS. The Committee is pleased that its First Interim Report has made a useful contribution to the work of the Second Year Review, and commends Ms Kruk for developing the work of both the current Committee and the Committee of the 45th Parliament, ensuring that the various oversight mechanisms examining the implementation of the NRS work effectively in tandem.
6.202
While many of the findings of the Second Year Review are cause for serious concern, the Committee notes that the Second Year Review has set out a clear path to reform. In cases where reform has not been recommended, the Second Year Review identified the issues and gaps encountered. This analysis will provide useful guidance to the NRS as it continues to review its operations.
6.203
While the Interim Response and Government Response take steps towards implementing the recommendations of both the First Interim Report and the Second Year Review, the Committee notes that a reasonably large number of recommendations have been noted and will be the subject of further consideration.
6.204
While the Committee acknowledges that many of these recommendations will require unanimous agreement from all participating jurisdictions (state and territory) or make fundamental changes to the NRS, it also recognises that this may be a source of disappointment for many survivors and survivor advocates.
6.205
However, some key measures will act to significantly improve key aspects of the survivor experience of seeking redress through the NRS. For example, legislative changes that introduce advance payments is an important reform, and one that the Committee strongly supports.
6.206
Further, the expansion of funder of last resort provisions will assist many survivors who have made applications that are currently on hold, including former residents of the five Fairbridge farms that will be covered under the provisions. The Committee urges the Government to continue working with states and territories to ensure that as many survivors as possible are covered by these provisions, and welcomes recent legislation aimed at providing a clear legal basis for this.
6.207
Another key outcome from the government response are the actions taken against institutions that decline to join the NRS. In addition to the Jehovah’s Witnesses, these actions further led to another 158 institutions committing to join the NRS. This action alone would have provided welcome relief to hundreds of survivors with applications ‘on hold’ due to having named non-participating institutions.
6.208
In this regard, the Committee welcomes recently introduced legislative amendments aimed at changing the protected information provisions applying to institutions, allowing the practice of public naming to be clarified and strengthened. The application of protected information provisions to institutions has, at times, been a source of frustration to the Committee, and it hopes that these changes will lead to greater transparency in relation to the participation status of institutions named in applications.
6.209
The successes of the Interim Report and the Second Year Review notwithstanding, the Committee has serious concerns regarding many of the findings in the Second Year Review. The inability of the NRS to provide comprehensive and accurate data in many areas, preventing the Second Year Review from being able to draw conclusions and make recommendations in some areas, raises serious questions about the administration of the NRS.
6.210
Additionally, the matters raised in the Second Year Review relating to NRS staffing details a picture of an organisation in need of internal reform. Similarly, the lack of clarity achieved by the Second Year Review around the costs of administering the NRS are of significant concern. Both aspects demonstrate the need for ongoing scrutiny to ensure that the administration of the NRS improves, and bring to light any failure to achieve meaningful improvement.
6.211
The Second Year Review also highlighted the comprehensive need for reforming the way that vulnerable groups, such as the CALD, First Nations, and disability communities, engage with the NRS. Again, in the Committee’s view, this is a matter that requires rigorous, ongoing scrutiny. Further, it is vital that this scrutiny continue to include a public component.
6.212
Now that the Second Year Review is completed, there is no legislative requirement for future a review of the operation of the Scheme until the conclusion of the eighth year of operation. The Committee believes that continued parliamentary scrutiny is required in the interim period.
6.213
Additionally, parliamentary scrutiny brings advantages that the Second Year Review was unable to realise. The Review was always designed to provide a point-in-time perspective on the administration and operation of the NRS. By its very design, the Review examined the first two years of operation of the NRS, and while valuable, does not necessarily provide the ongoing scrutiny and continuity that will be required to effectively reform the NRS and ensure that the journey of survivors to redress is as positive as it can possibly be.
6.214
In this regard, the Committee sees immense value in a future Parliament establishing a committee to continue monitoring the implementation of the recommendations of the Committee of the 45th Parliament, this Committee, and the Second Year Review.
6.215
The Committee recommends that the future Parliament consider the establishment of a parliamentary committee to continue the work of providing oversight on the administration and operation of the National Redress Scheme.
Senator Dean Smith
Chair
23 November 2021