Introduction and background
Over the course of the royal commission, more than 16,000
individuals made contact with the commission and the commission has
heard more than 8,000 personal stories. More than 1,000 survivors provided a
written account...Now that those stories have been told, now that they are on the
record, we must do everything within our power to honour those stories and to
act. I am committed and my government is committed to doing everything possible
to make sure that this national tragedy is never repeated.
Purpose of the bills
The focus of this inquiry by the Community Affairs Legislation Committee
(committee) is to review the two bills currently before the Senate, which
together establish a Commonwealth Redress Scheme for Survivors of Institutional
Child Sexual Abuse (Redress Scheme).
The Redress Scheme proposed by these bills would only include
Commonwealth or territory institutions and participating non-government
institutions (NGIs) operating in a territory. The implementation of a national scheme which would include state government
institutions and NGIs located in states—as opposed to territories—is discussed
below in the 'bill as a first step' section.
The Redress Scheme will provide survivors of institutional child sexual
abuse (survivors) with three key elements of redress, comprising:
- a monetary payment of up to $150 000;
- access to counselling and psychological services; and
- a direct personal response from the responsible institution.
The two bills under review are the Commonwealth Redress Scheme for
Institutional Child Sexual Abuse Bill 2017 (Redress Bill) and the Commonwealth
Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments)
Bill 2017 (Consequential Bill).
In introducing the bills, the Minister for Social Services, the Hon.
Christian Porter, MP (Minister), stated:
Children placed in the trust of our society's institutions
were some of the most vulnerable members in our community and the fact that
must be confronted is that many children were sexually abused by the very
people charged with their care and protection. No child should ever experience
what we now know occurred. That is why it is time for all institutions and all
governments to take responsibility for what has happened.
The establishment of the scheme is an acknowledgement by the
Commonwealth government that sexual abuse suffered by children in institutional
settings; operated by a number of governments state, territory and federal and
by a number of non-government institutions was wrong, a shocking betrayal of
trust; and simply should never have happened.
Nature of proposed Redress Scheme
The Redress Scheme these bills seek to establish is not intended to
replicate a civil law process, but is intended to provide an alternative
pathway for people who are unable or do not wish to undertake a civil law
pathway for a variety of reasons, such as:
- Some survivors have been unable to seek redress because of the
nature and impact of their abuse.
- Many survivors take years, even decades,
to disclose their experience of child sexual abuse, by which time the
institution may no longer exist or the ability to pursue common law damages is
not feasible or may no longer be available.
- The evidentiary burden of civil litigation can be high.
- The emotional and psychological toll of civil litigation can be
The Redress Bill establishes General Principles for the Redress Scheme,
- Redress under the scheme should be survivor‑focussed.
- Redress should be assessed, offered and provided so as to avoid
further harming or traumatising the survivor.
In acknowledgement of the complexity and importance of the two bills
establishing the Redress Scheme, this report is broken down into four chapters:
- Chapter one is an introductory chapter, providing an overview of
the provisions in the bills, as well as background information on the
development of the Redress Scheme, the stakeholder consultations, and the
proposed governance structure which will underpin the operation of the Redress
Scheme, should the bills be passed.
- Chapter two discusses the administrative issues of the Redress
Scheme, such as the use of delegated legislation, as well as the application
process for the Redress Scheme and ongoing operational matters.
- Chapter three focuses on the three Redress Scheme elements of the
payment, counselling and the institutional apology, discussing the concerns
raised by submitters and witnesses with the nature of the redress elements.
Chapter four provides the committee's views and recommendations.
The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal
Commission) was established in January 2013 in response to allegations of the sexual
abuse of children in institutional settings, which had been emerging in
Australia for many years. The Royal Commission worked for just under five
years, heard more than 8000 personal stories in private sessions, and received
over 1000 written accounts from survivors.
The Royal Commission released its Redress and Civil Litigation Report in September 2015 which formed the basis of the recommendations made in its December 2017 Final
Report (Royal Commission Report). The Royal Commission report contained 409 recommendations, of which 84 relate
to the Redress Scheme.
In discussing the Australian Government response to the Royal Commission
Report, the Attorney-General, the Hon. Christian Porter, MP, outlined the
number and nature of the Royal Commission Report recommendations, and the
whole-of-government response being taken:
The breadth and scope of the royal commission report is
enormous. If I can just, in that spirit of bipartisanship, offer some
indication as to how we are progressing with those recommendations. There are
409 recommendations in total, with 189 new recommendations. Of those new
recommendations, 67 are directed at the Commonwealth. We've established and
provided for a task force inside my department which will coordinate the
implementation and the responses from states and territories towards a
consistent national response. It will report regularly and transparently via a
website for all Australians to track our performance in this area.
Part of that, and critical, is the redress scheme. That
itself addresses 84 of those 409 recommendations, so it is utterly critical.
The Department of Social Services (Department) informed the committee that
in drafting the bills, the Department has been mindful of the need to ensure
the provisions of the bills reflect the recommendations and principles
established by the Royal Commission:
[W]e have, to the best of our ability, stayed true to the
recommendations of the royal commission about what redress is: about it being
survivor focused, about it not being highly legalistic and about taking it on a
lower evidentiary requirement than would occur in civil proceedings.
Bills as a 'first step' to a national redress scheme
The Commonwealth does not have the constitutional power to legislate for
a national scheme. The Department has noted the two bills are intended as a 'first step' towards
the implementation of a truly national Redress Scheme, and is drafted in
anticipation of the participation of state governments and NGIs located in
states, should a referral of powers be achieved. The Department has submitted
If a state government agrees to provide a referral and
participate in the Scheme from its commencement, the Commonwealth Bill will be
replaced with a National Redress Scheme for Institutional Child Sexual Abuse
Bill (National Bill) prior to the Scheme's commencement.
The Prime Minister, the Hon. Malcolm Turnbull, MP, in making a statement
on the Royal Commission Report to Parliament, stated:
[T]he scheme will fulfil its promise of justice only if we
have maximum participation across all jurisdictions. For this to occur, the
states must take urgent action and refer the appropriate power to the
Commonwealth in order for them to participate from 1 July. We have been working
closely with each jurisdiction to encourage their participation in the scheme.
Unless the states agree to participate, institutions within their jurisdictions
will not be able to join. Survivors deserve much better and I urge the premiers
in all the jurisdictions to prioritise this work and join the redress scheme
without further delay. I also urge the non-government institutions to commit
now to joining the scheme.
The Department told the committee that negotiations with the states and
NGIs are ongoing. At the committee's public hearing on 16 February 2016, the
We have been working closely with state and territory
governments to encourage their participation in the scheme, and, while no state
has opted in, we remain hopeful they will take this step and that we'll be able
to have a national redress scheme and a national bill introduced.
The Department also acknowledged provisions within the Redress Bill may
require some amendment, to reflect the continuing discussions with stakeholders
on the nature of the Redress Scheme:
The bill before you requires some updates. The Commonwealth
bill represents a point in time while detailed discussions continued with state
and territory governments, non-government institutions and survivor groups. The
best outcome, we recognise, for survivors is for the redress scheme to be
national in its coverage, with maximum participation from all responsible
institutions in all jurisdictions.
On 9 March 2018, the New South Wales and Victorian Governments announced
they will be joining a national Redress Scheme. However the exact details of
the agreement between those states and the Commonwealth have not yet been made
public, and there is still no agreement on the 'funder of last resort'
provisions which ensure relevant governments will pay redress when the
institution responsible for redress no longer exists or is insolvent.
A more detailed discussion on progress with the states on referral of
powers, and how that may impact the details of an amended bill, is found in
Overview of bills
The Redress Bill will establish the Redress Scheme with the following
A person will be eligible for redress under the Scheme if the
person was sexually abused as a child in an institutional setting and a
Commonwealth institution is primarily or equally responsible, or where it
occurred in a Territory or outside Australia and a participating institution
was primarily or equally responsible for the abuse. The sexual abuse must also
have occurred prior to the 1 July 2018, the date of the Scheme's commencement.
Redress will include three elements: a redress payment of up to $150
000, access to counselling and psychological services, and a direct personal
Additional elements of the Redress Scheme include:
- Survivors will be able to choose whether to accept one, two or
all three of the components of redress.
- Eligibility for redress will be assessed on whether there was a
reasonable likelihood the person suffered institutional sexual abuse as a
child, and which occurred before the cut-off date of 1 July 2018.
- Non-sexual abuse in connection with the child sexual abuse will
be taken into consideration as an aggravating factor.
- The amount of the redress payment will depend on the level of
sexual abuse and related non-sexual abuse that a survivor suffered.
- Applications for redress are limited to one application per
survivor. Survivors will be able to include multiple episodes of sexual abuse
and related non-sexual abuse suffered in multiple institutions in the one
- A person who accepts an offer of redress must release the
institution from civil liability for the abuse and related non-sexual abuse.
- Applicants must be an Australian citizen or Australian permanent
resident, although the rules may provide for other persons to apply, such as
former child migrants who no longer reside in Australia or children abused in
Australian institutional settings outside Australia.
- Applicants will have access to legal advice services.
- Reviews of decisions made under the Redress Scheme are limited to
- Funding arrangements are based on the principle that the
responsible entity pays.
- Any prior payments made by a participating institution in
relation to the abuse suffered by a survivor that is within the scope of this Redress
Scheme, will be deducted from the amount payable by that participating
- The amount of the redress payment cannot be used to recover debts
due to the Commonwealth and will not be subject to income tax.
Redress Scheme Rules will set out additional requirements, and
are proposed to include a bar on eligibility for persons convicted of sex
offences, or sentenced to prison terms of five years or more for crimes such as
serious drug, homicide or fraud offences.
The Consequential Bill supports the establishment of the Redress Scheme through proposed amendments to
Commonwealth legislation relevant to the operation of the scheme.
The Consequential Bill is structured in three schedules, as follows:
- Schedule 1—proposes payments made under the redress scheme will
be exempt from income tests for social security and veterans' payments;
- Schedule 2—proposes payments made under the redress scheme will
be excluded as property divisible among creditors for a bankrupt person; and
- Schedule 3—proposes decisions made in the Redress Scheme will be
exempt from judicial review.
In his second reading speech, the Minister stated the amendments in
Consequential Bill 'are essential to implement and maintain the integrity of
the scheme' and further stated the Consequential Bill 'will ensure the scheme remains
survivor focused and trauma informed by being a non-legalistic process for
The development of the Redress Scheme and the two bills to enact it have
been the subject of extensive consultation with survivor groups, legal
representatives, advocacy organisations, counselling services, relevant
institutions and state and territory governments.
An Independent Advisory Council on Redress (Advisory Council) was
established in December 2016 to provide expert advice on the policy and
implementation considerations for the Redress Scheme. The 15 member Advisory
Council included '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'. The Advisory Council has met formally on seven occasions.
The terms of reference for the Advisory Council are to provide advice
- 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
The provisions of the two bills were also subject to 'extensive
consultations and workshops' with survivor groups, and various drafts of the bills were provided at different times to relevant
organisations to make comment.
The planned governance arrangements for the Redress Scheme ensure that
continued consultation with survivors and their relevant representative groups
is embedded in the implementation of the Redress Scheme.
Governance arrangements include a Ministerial Redress Scheme Board
comprising Ministers from participating state and territory governments, which
must agree to any legislative or key policy changes required over time. A
Redress Scheme Committee will be established, including NGIs, which will
provide the Redress Scheme operator with advice on operational and
The Department has also presented evidence that policy and practice
guidelines will be developed in consultation with stakeholders. Additionally,
Redress Scheme data will be made public to allow for public scrutiny of the
operation of the Redress Scheme.
The Australian Government has committed $33.4 million in the 2017–18
Budget to establish the Redress Scheme. The Explanatory Memorandum outlines
that expenditure beyond 2017–18 was not for publication at the time of the 2016–17
Budget due to legal sensitivities, and that the financial impact of the bills
over the forward estimates would be announced as part of 2017–18 Mid-Year
Economic and Fiscal Outlook.
The Department informed the committee that the current estimate for the
operation of the Redress Scheme was $3.8 billion, which included both Redress
Scheme payments and the administration costs. The Department has also provided evidence that the total quantum of payments to
be paid out by responsible governments and NGIs is not yet known, and will be
which states, territories and non-government institutions opt
into the Scheme
how many eligible survivors will apply for the Scheme
the final policy parameters of the Scheme.
Reports of other committees
The Redress Bill and the Consequential Bill have been considered by the
Senate Standing Committee for the Scrutiny of Bills (Scrutiny committee) and
the Parliamentary Joint Committee on Human Rights (Human Rights committee).
The key concerns of the Human Rights committee include:
- The Redress Scheme is restricted to Australian citizens and
- There is a lack of detail in the primary legislation, which is intended
to be provided for later in delegated legislation in the form of rules.
- Applicants must provide a waiver of future civil liability to
- The information sharing provisions raise privacy concerns.
- The absence of external merits review and removal of judicial
The key concerns of the Scrutiny committee include:
- There is a lack of detail in the primary legislation, which is
intended to be provided for later in delegated legislation in the form of rules.
This does not facilitate proper scrutiny of the proposed scheme, nor allow for
the usual parliamentary disallowance processes.
- The standing appropriation does not allow for parliamentary
approval and control of costs.
- Protected information disclosure powers for the Redress Scheme
operator are too broad.
- The delegation of administrative powers is too broad.
- The lack of merits review and limitations on judicial review.
- Key information provided by the Minister to the Scrutiny committee
is not included in the Explanatory Memorandum to assist with interpretation of
Detailed discussions of these concerns are contained in chapters two and
Conduct of inquiry
On 26 October 2017, the Minister introduced the bills in the House of Representatives.
Pursuant to a resolution of the Senate, the provisions of the Bill were
referred to the committee on 30 November 2017, for inquiry and report by 13
March 2018. On 13 March 2018, the Senate granted an extension of time for reporting until
28 March 2018.
Information regarding the inquiry was placed on the committee's website.
The committee wrote to relevant organisations and invited them to make a
submission to the inquiry by 2 February 2018. Submissions continued to be
accepted after this date.
The committee received 86 public submissions which were published on the
committee's website. A further 6 submissions were accepted as confidential. A
list of submissions received is at Appendix 1.
Public hearings for the inquiry were held on 16 February 2018 in
Canberra and 6 March 2018 in Melbourne.
The committee heard evidence from 32 organisations and 13 individuals
who identified as survivors. A list of witnesses is at Appendix 2.
Note on references
References to the Committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and official Hansard transcripts.
References to the Minister is to either to the Hon. Christian Porter,
MP, who was Minister for Social Services at the time of the bills being introduced
into the House of Representatives or to the Hon. Dan Tehan, MP, current
Minister for Social Services. References to the Attorney-General refer to
comments made by the Hon. Christian Porter, MP, in his current Ministerial
The committee would like to thank the organisations which made
submissions to the inquiry and provided evidence at its public hearings. In
particular, the committee would like to honour the bravery of all survivors who
made submissions or appeared as witnesses at a hearing.
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