3.1
This chapter examines the establishment of the National Redress Scheme (NRS) and the governance structure that supports its operation.
3.2
Key elements of the establishment and governance of the NRS were detailed by a previous committee. The committee was known as the Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Joint Select Committee).
3.3
The Joint Select Committee’s final report, Getting the National Redress Scheme right: An overdue step towards justice, was tabled in the 45th Parliament.
3.4
This chapter of the interim report will instead focus on key areas to inform the legislated second anniversary review of the NRS. This includes the following:
governance of and consultation components of the NRS;
Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse final report recommendations;
Government response to recommendations of the ‘Getting the National Redress Scheme right: An overdue step towards justice’ report; and
Maximising opportunities from the second anniversary review.
Governance of and consultation regarding the redress scheme
3.5
As noted by the previous Joint Select Committee, there are various governance arrangements and consultative bodies that have been established in relation to the NRS. Key arrangements and bodies are summarised below.
Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse
3.6
The Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse (the Intergovernmental Agreement) is an agreement between the Commonwealth, state and territory governments. It sets out the roles and responsibilities of each jurisdiction in relation to the NRS.
3.7
The Intergovernmental Agreement notes that the development and implementation of the Scheme is a shared responsibility of the Commonwealth and participating state and territory governments.
3.8
The shared responsibilities are as follows:
a.
work collaboratively to deliver redress from participating institutions to eligible survivors;
b.
share information and data, subject to this Agreement and privacy requirements, to promote a best practice and survivor-focused Scheme;
c.
monitor the progress of the Scheme’s implementation and outcomes;
d.
identify and seek to resolve issues in a timely manner where Scheme arrangements are having unintended impacts; and
e.
participate in the Ministers’ Redress Scheme Governance Board and the Redress Scheme Committee.
3.9
The Commonwealth’s responsibilities are as follows:
a.
introduce the National Redress Scheme Bill and support its passage through the Commonwealth Parliament;
b.
appoint independent decision makers to assess and make determinations on Scheme applications;
c.
administer the Scheme through the Commonwealth Department of Human Services;
d.
deliver direct personal responses to its survivors in accordance with the Direct Personal Response Framework;
e.
fulfil reporting obligations as set out in Part 4 – Implementation Arrangements;
f.
fulfil agreed financial obligations in accordance with Part 6 – Financial Arrangements;
g.
chair and provide secretariat support for the Ministers’ Redress Scheme Governance Board and the Redress Scheme Committee; and
h.
fund and conduct a review of the Scheme in consultation with participating state and territory governments that have declared participating government institutions, in accordance with Scheme legislation.
3.10
The state and territory responsibilities are as follows:
a.
if a state, introduce legislation to refer to the Commonwealth Parliament the text reference and the amendment reference, or adopt the relevant version of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act) once enacted and refer the amendment reference, in accordance with s 51(xxxvii) of the Constitution;
b.
deliver direct personal responses to its survivors in accordance with the Direct Personal Response Framework;
c.
fulfil reporting obligations as set out in Part 4 – Implementation Arrangements;
d.
fulfil agreed financial obligations in accordance with Part 6 – Financial Arrangements;
e.
elect one of the options set out in Part 7 – The Scheme, relating to the provision of counselling and psychological care to survivors;
f.
participate in the review of the Scheme; and
g.
participate in the Ministers’ Redress Scheme Governance Board.
3.11
The Intergovernmental Agreement and establishment of the NRS is an acknowledgment that sexual abuse suffered by children in an institutional setting was wrong and should not have happened.
3.12
Consequently, the Intergovernmental Agreement acknowledges each jurisdiction’s commitment towards achieving a “survivor-focused, best practice, and simple Scheme”.
3.13
The Intergovernmental Agreement was first released in May 2018, and has been signed by all jurisdictions in Australia. The agreement will expire on
30 June 2028, unless terminated earlier or extended by agreement of the jurisdictions.
Ministers' Redress Scheme Governance Board
3.14
The Intergovernmental Agreement provides for the establishment of the Ministers' Redress Scheme Governance Board (Ministers' Board). The purpose of the Ministers' Board is 'to assist the proper, efficient and effective performance of the [scheme] during its period of operation'.
3.15
The Ministers' Board consists of the Commonwealth, state and territory ministers responsible for redress. The Commonwealth minister is the chairperson of the Ministers’ Board. It was established on commencement of the NRS and will cease simultaneously with the scheme (unless terminated earlier or extended).
3.16
The Ministers’ Board is to meet at least bi-annually, unless it agrees to meet less frequently. It may meet on an ad hoc basis, and is convened at the request of the relevant Commonwealth minister. Deliberations of the Ministers' Board are confidential.
3.17
Some proposed changes to legislation, National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 (the Rules) and policy guidelines require the approval of the Ministers' Board. This works as follows:
Proposed changes to the NRS that would result in increased costs for states or territories, or which are major design changes, require unanimous agreement of the Ministers’ Board.
Proposed changes which are not of the above nature, but which are nonetheless significant (such as changes to primary legislation), are put to a vote of the Ministers’ Board.
Minor matters, such as technical changes to legislation, the Rules, or policy documents, do not need to be considered by the Ministers’ Board. However, the Intergovernmental Agreement states that the Commonwealth will nonetheless consult state and territory officials on some of these minor matters.
3.18
Matters requiring consideration by the Ministers’ Board require a unanimous vote or a two-stage voting process. The two-stage voting process requires two stages to be satisfied:
First stage—the proposed change must have the support of two-thirds of jurisdictions. The Commonwealth has two votes for this stage of voting.
Second stage—the proposed change must have the support of jurisdictions representing 75 per cent of the estimated financial liability for participating jurisdictions (see the table below). The Commonwealth does not have a vote for this stage of voting.
3.19
The Intergovernmental Agreement includes the following table estimating the liability of each jurisdiction, which is used as the basis for calculating the 75 per cent liability required for the second stage.
Table 3.1: The estimated liability of each jurisdiction
|
|
|
|
|
New South Wales
|
8950
|
34.45%
|
|
Victoria
|
5290
|
20.36%
|
|
Queensland
|
5030
|
19.36%
|
|
Western Australia
|
2395
|
9.22%
|
|
South Australia
|
1690
|
6.51%
|
|
Tasmania
|
1115
|
4.29%
|
|
Commonwealth
|
955
|
3.68%
|
|
Northern Territory
|
330
|
1.27%
|
|
Australian Capital Territory
|
225
|
0.87%
|
|
Total
|
25 980
|
100%
|
Source: Intergovernmental Agreement, May 2018, Schedule A.
Note: The previous Joint Select Committee noted that the table in the Intergovernmental Agreement lists the total number of survivors as 25 890, but the sum of the values is actually 25 980. This apparent typographical error is corrected in the table above.
3.20
The 75 per cent required for a vote to be carried will be calculated based on participating jurisdictions and exclude jurisdictions that have not opted-in to the scheme. When a jurisdiction abstains from voting, that jurisdiction is taken not to be a jurisdiction on the Ministers’ Board for the purposes of calculating the second stage vote.
3.21
The Committee understands that, because New South Wales has an estimated 34.45 per cent liability, it is not possible for the 75 per cent threshold to be met without the support of New South Wales. This means that New South Wales has an effective veto on any matters that go to a two-stage vote.
Inter-jurisdictional Committee
3.22
The Intergovernmental Agreement states that senior officials from participating state and territory governments will form an Inter-jurisdictional Committee, which will support the Ministers' Board by providing it with advice. The Inter-jurisdictional Committee will meet as needed to:
…specifically discuss key emerging policy, operational and communication issues and provide advice to the Board on amendments to Scheme legislation, rules and policy guidelines.
Redress Scheme Committee
3.23
The Intergovernmental Agreement provides for the establishment of the Redress Scheme Committee. Its purpose is to support the redress scheme Operator (which is the Secretary of the Department of Social Services), in:
…ensuring the integrity and ongoing viability of the [redress scheme] during its period of operation through the provision of advice about key operational and Scheme participation issues.
3.24
The Redress Scheme Committee is comprised of senior officials from all participating governments and all participating non-government institutions. It is chaired by a Commonwealth representative. The Intergovernmental Agreement states that the scheme Operator will consult the Redress Scheme Committee on decisions that significantly affect members of the Redress Scheme Committee, and will also keep it informed of scheme costs with regular reporting.
3.25
The Intergovernmental Agreements states that the Redress Scheme Committee will not consider or influence decisions on individual redress applications.
3.26
The Redress Scheme Committee will meet quarterly, although this may be reviewed. As the Intergovernmental Agreement sets out, not all members will be invited to meetings but they will be consulted:
Only participating governments, [non-government institutions] with high estimated exposure under the Scheme (likely to be faith-based institutions), and some non-faith based institutions will be invited to attend meetings to ensure there is a cross section of [non-government institutions] represented in meetings.
The secretariat will provide all other participating [non-government institutions] (with low estimated exposure) with agenda papers and a record of outcomes from the meeting. The secretariat will also obtain their views prior to and after the meeting to ensure that the [Redress Scheme Committee] and/or the Scheme Operator can consider the views of the wider networks of [non-government institutions] in making their decisions.
[A non-government institution] is able to bring forward a request to the secretariat to attend [a Redress Scheme Committee] meeting if they are not a standard invitee.
3.27
Like the Ministers' Board, the Redress Scheme Committee was established on commencement of the NRS and will cease simultaneously with the scheme (unless terminated earlier or extended).
Independent Advisory Council on Redress
3.28
In December 2016, the then Prime Minister, the Hon Malcolm Turnbull MP, appointed an Independent Advisory Council on Redress (Advisory Council) to provide independent advice to the minister on policies and processes necessary to the design and implementation of the NRS. The 15-member Advisory Council consisted of 'survivors of institutional abuse and representatives from support organisations, as well as legal and psychological experts, Indigenous and disability experts, institutional interest groups and those with a background in government'.
3.29
The terms of reference for the Advisory Council state that, in particular, the Advisory Council will provide advice on:
the governing principles that underpin the scheme;
elements of the scheme's design, that may include eligibility and the principles around the processes of application, assessment, psychological counselling and direct personal response;
how to best encourage state, territory and non-government institution participation in the scheme; and
how the Commonwealth scheme will interact with other redress schemes.
3.30
In March 2018, the Department of Social Services advised a Senate committee that survivor groups were consulted on the text of the Commonwealth bill via the Advisory Council, and that various drafts of the bills were provided at different times to relevant organisations for comment.
3.31
The Intergovernmental Agreement provides that the Commonwealth minister responsible for redress may reconvene the Advisory Council for particular advisory purposes at any time in the future.
Table 3.2: National Redress Scheme Governance Meeting Dates
|
Ministers’ Redress Scheme Governance Board
|
10 December 2018
29 November 2019
30 March 2020
|
|
National Redress Scheme Committee
|
26 November 2018
20 March 2019
27 August 2019
|
|
National Redress Scheme Inter-jurisdiction Committee
|
26 November 2018
19 March 2019
26 August 2019
1 November 2019
4 December 2019
11 December 2019
19 December 2019
22 January 2020
12 February 2020
4 March 2020
8 April 2020
|
|
National Redress Scheme Survivor Roundtable
|
30 November 2018
28 March 2019
7 November 2019
|
|
Independent Advisory Council on Redress
|
3 February 2017
3 March 2017
5 May 2017
23 June 2017
14 July 2017
2 November 2017
7 May 2018
|
Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse
3.32
On 20 June 2017 the House of Representatives agreed to a Senate resolution that a Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse be established following the tabling of the final report of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission).
3.33
The Joint Select Committee inquired into:
a.
the Australian Government policy, program and legal response to the redress related recommendations of the Royal Commission, including the establishment and operation of the Commonwealth Redress Scheme and ongoing support of survivors; and
b.
any matter in relation to the Royal Commission's redress related recommendations referred to the committee by a resolution of either House of the Parliament.
3.34
The Joint Select Committee concluded its inquiry when it tabled its report on 2 April 2019.
3.35
The Joint Select Committee’s final report, ‘Getting the National Redress Scheme right: An overdue step towards justice’, included 29 recommendations covering the NRS’s policy, legislative design, and implementation.
3.36
The recommendations reflected issues and difficulties survivors faced when engaging with the NRS, including:
lengthy processing times;
the inadequacy of support arrangements; and
redress access challenges for survivors of now defunct institutions.
Australian Government response
3.37
On 18 February 2020, the Australian Government released its response to the Joint Select Committee’s ‘Getting the National Redress Scheme right: An overdue step towards justice’ report and 29 recommendations.
3.38
The Government response stated it would work with states and territories and non-government institutions to address the issues identified by witnesses to the previous inquiry, and committed to the effective operation of the Scheme in support of people who have experienced institutional child sexual abuse.
3.39
Of the 29 recommendations, the Government ‘Agreed’ to 11, ‘Noted’ 15, and ‘Supported’ 3 in principle.
3.40
Importantly, the Government did not reject any of the 29 recommendations. In the Government’s response to the previous committee’s report, it was noted that the Government would consult with jurisdictions and further consider a range of recommendations through the legislated second anniversary review of the NRS. These include recommendations 4, 7, 8, 9, 10, 12, 15, 16, 17, 19, 26 and 27.
3.41
The Committee shares the disappointment and frustration expressed by survivors and others at the slow progress of the Ministers’ Redress Scheme Governance Board in implementing these recommendations.
3.42
The three recommendations the Government ‘supported in principle’ are as follows:
Recommendation 13, that the government publicly clarify the key terms in the Assessment Framework;
Recommendation 19, that Commonwealth, state and territory government consider mechanisms to ensure that survivors have life-long access to counselling and psychological care that is available on an episodic basis, is flexible and it trauma-informed; and
Recommendation 20, that Commonwealth, state and territory governments agree to amend an institution’s reporting obligations under section 17 of the NRS Direct Personal Response Framework 2018 to require institutions to provide to the Operator the following information:
The number of complaints made to the institution in relation to direct personal responses;
The nature of these complaints; and
How these complaints were resolved.
3.43
The Government also committed to consider any recommendations arising from the legislated second anniversary review of the NRS.
3.44
Some of these recommendations call for proposed changes to the NRS that would require unanimous agreement of the Ministers’ Redress Scheme Governance Board and/or legislative changes to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.
3.45
The two categories are:
Proposed changes to the NRS that would result in increased costs for states or territories, or which are major design changes, require unanimous agreement of the Ministers’ Board.
Proposed changes which are not of the above nature, but which are nonetheless significant (such as changes to primary legislation), are put to a vote of the Ministers’ Board.
3.46
Consequently, as set out by the Intergovernmental Agreement and detailed by the previous Joint Select Committee, recommendations requiring consideration by the Ministers’ Board would require a unanimous vote or a two-stage voting process. The two-stage voting process was detailed earlier in this interim report.
Maximising opportunities from the Second Anniversary Review
3.47
The Committee is strongly of the view that the second anniversary review of the National Redress Scheme (NRS) must provide an effective and timely recalibration of the NRS to ensure it is more responsive to the needs of survivors and their families.
3.48
Section 192 (1) of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act) states that ‘the Minister must cause a review of the operation of the scheme to be commenced as soon as possible after’ the ‘second anniversary of the scheme start day’.
3.49
This review is due to commence on or as soon as possible after 30 June 2020, and Section 192 (2) of the Act states that is must consider a range of matters.
3.50
The Committee recommends that when establishing the second anniversary review mechanism the Minister for Social Services, ensure that:
the reviewer should be a reputable person familiar with the operation of other redress schemes in the Australian and/or international context;
the review includes survivors or their representatives as members of the review panel;
the review should regularly consult with survivors and survivor advocacy groups throughout the review;
the reviewer should provide ongoing advice and recommendations to the Minister to ensure recalibration of the National Redress Scheme during the review;
the review should actively consider design elements which exist in other domestic or international redress schemes that would be of benefit to survivors, even if they are not entirely consistent with recommendations of the Royal Commission into Institutional Child Sexual Abuse; and
the reviewer should provide their final report to the Minister by
30 January 2021.