Administration and operation
Chapters two and three discuss the concerns raised by submitters and
witnesses with the provisions of 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).
This chapter will highlight the key concerns raised in evidence to this
inquiry relating to the administrative elements and application process of the Commonwealth
Redress Scheme for Survivors of Institutional Child Sexual Abuse (Redress Scheme).
A detailed discussion of concerns raised relating to the three elements of
redress being offered to institutional child sexual abuse survivors (survivors)
is contained in chapter three.
An opt-in Redress Scheme
As outlined in chapter one, the two bills enact a Redress Scheme for
Commonwealth or territory institutions and participating non-government
institutions (NGIs) established in a territory—i.e. institutions located in the
Australian Capital Territory and the Northern Territory. The bills currently
under review establish the Redress Scheme as a voluntary opt-in scheme, whereby
institutions will not be compelled to join.
A significant number of submissions have expressed reservations about the
opt-in nature of the Redress Scheme. The majority of comments in relation to
NGIs opting in to the Redress Scheme are relevant to both a commonwealth and a
national scheme, assuming the opt-in nature would remain the same in a national
scheme. These concerns are outlined further below.
A number of submissions have also specifically raised concerns with the
opt‑in nature of the Redress Scheme in relation to state government
participation in a national Redress Scheme. There are concerns that without all
states participating, the Redress Scheme will not be sufficiently inclusive.
The Australian Childhood Foundation submitted that the failure of some
states to opt in would 'reflect an entrenched resistance to nationally
consistent legislation needed to properly protect our children'.
Bravehearts put forward a similar view, telling the Community Affairs
Legislation Committee (committee) that the inequity between the amounts of
redress paid through state-based redress schemes was 'horrendous' for
Submitters and witnesses have recommended that the Australian Government
make a strong effort to encourage participation from both state governments and
As of Friday 9 March 2018, the New South Wales and Victorian Governments
have announced they will participate in a national Redress Scheme. The
legislative process to establish a national Redress Scheme is not yet clear.
The Centre Against Sexual Violence Inc. raised concerns that the two
year period in which an institution can wait before opting in would have
serious impacts on survivors because survivors are limited to a single
application for redress, as discussed later in this chapter. A survivor who was
sexually abused in more than one institution could be forced to make a choice
between abandoning the opportunity for redress for some of the sexual abuse
they suffered, or waiting two years to see if the other institution(s) would
opt in to the Redress Scheme. Miss Miranda Clarke from the Centre Against
Sexual Violence Inc. told the committee:
I think that puts survivors in an absolutely awful position.
A lot of these survivors are dying. They have serious financial issues and
ailing health. They have family members and family pressures. I don't think
that's a situation we should be putting them in. I think a lot of survivors
will be forced into making the choice not to be able to access everything that
they're entitled to because they need that money and they needed that money
The Australian Childhood Foundation stated that redress responses are
already fragmented, with many key organisations currently operating redress
schemes with no consistent guiding principles, and submitted that:
The engagement of as many stakeholders [as] possible in the
Scheme will not only ensure that responses to the needs of survivors of child
sexual abuse receive a consistently fair treatment but will also signal the
adoption of a cooperative approach that is required to address the multitude of
cross-jurisdictional responses need to protect children.
Mr Matt Jones, a survivor, submitted that an opt-in Redress Scheme could
result in only some survivors having access to redress and create an
inconsistent Redress Scheme. Mr Jones recommended that NGIs should be required
to participate in the Redress Scheme.
Barriers to institutional
Potential participating NGIs, such as churches and sport groups, have
raised a number of concerns which they argue act as barriers to opting in to
the Redress Scheme.
A key barrier cited is the organisational structure of many churches in
Australia, which are a conglomeration of smaller entities, who would each need
to autonomously sign up to a redress program.
The Department of Social Services (Department) told the committee the
preferred option would be for each of the churches to establish a single entity
which would act as a national representative to the Redress Scheme for their
relevant jurisdictions or service delivery organisations.
The Anglican Church told the committee that it was seeking to set up
such an administrative body to streamline communications about redress
applications, but the legal obligation would still lie with the legal entity
that has been held responsible for the abuse.
The joint submission from the Anglican Church, Uniting Church and
Salvation Army recommended the definition of 'Representative Organisation'
within the Redress Bill be amended to accommodate the structure proposed above.
Scouts Australia argued the Redress Scheme should allow for institutions
to opt out at any time, particularly where institutions felt operator decisions
were being made outside the original intended scope of the Redress Scheme.
Additionally, Scouts Australia said it would not opt in prior to seeing
the finalised policies, Rules and definitions of the Redress Scheme. The churches
appearing at the same hearing—the Anglican Church, Salvation Army and Uniting Church—did
not propose a similar requirement.
NGI submitters and witnesses raised a number of concerns with the
Redress Scheme which they stated acted as barriers to them opting in. These
issues are addressed through out chapter two and three of this report, but in
- The deed of release does not include subsidiary or third party
- The 'reasonable likelihood' test for assessing sexual abuse would
limit NGIs from recouping payments from insurers.
- The definition of an officer of an institution is too broad.
- The definition of sexual abuse is too broad.
- Many details governing the operation of the Redress Scheme will
be contained in as yet unpublished rules, meaning details were not available to
assist in deciding whether to opt in.
However, the Attorney-General, the Hon. Christian Porter, MP, criticised
excuses such as these from organisations:
...the horrific circumstances that we are now dealing with came
to be because of excuses—excusing the monstrous conduct of individuals and
excusing the failures and outrageous wilful blindness of the institutions. What
we cannot do now, at the critical point of creating a national redress scheme,
is accept any more excuses. Excuses for failing to join the scheme must end.
Lingering reasons for delay are now starting to look to any independent observer
as if minor details are being manifestly and deliberately used as excuses for
needless delay. Excuses are what created this problem, and they should not
prevent the churches, the charities, the states and the territories from
joining the redress scheme.
Tuart Place submitted that the unknown nature of which institutions
would ultimately opt in to the Redress Scheme had the potential to 'cause
secondary harm to a vulnerable population of survivors' and recommended the
Australian Government stipulate a deadline for opting in to the Redress Scheme.
Mr Frank Golding made a similar recommendation in his submission,
It is unconscionable to allow offending bodies to determine
whether they will be held responsible for the damage they have done to children
in the past. Many Care Leavers wonder why churches in particular continue to be
blessed with taxation exemptions and taxpayer funded grants and other benefits,
especially when they treat crimes against children as mere sins to be absolved
by internal church rituals, as if the laws of the land do not apply to them. Where
abuse occurred in closed institutions, where children were compelled by law or
public policy to reside, the relevant organisations should have no choice in
the matter of participation.
The bills currently before the committee are limited to creating a
Redress Scheme for Commonwealth and territory government institutions, as well
as NGIs located in the Australian Capital Territory or Northern Territory. On a
strict reading of the bills, participation in the Redress Scheme by state
governments and state-located NGIs is not a relevant issue for these bills.
However, the current bills are an indication of provisions that could be
expected in any legislation to establish a national Redress Scheme. Submitters
and witnesses have provided evidence in that light and the committee will make
comment reflecting that view. Additionally, the Department has already
indicated there are amendments planned to change certain provisions within
these bills, or a future national scheme bill, some of which reflect
recommendations being made by submitters and witnesses during the course of
While the committee has great sympathy for the frustration in the
community at the delay by state governments and NGIs to formally agree to opt in,
it is important to remember the overall goal is to establish a Redress Scheme
that is survivor focused and trauma-informed. It is appropriate that NGIs are
voluntary and supportive participants to ensure the redress element of a direct
personal response from those NGIs is of maximum positive benefit to survivors
and does not re-traumatise.
While the bills before the committee do not include a specific deadline
for opting in, it is clear from evidence received that submitters and witnesses
believe more could be done, via negotiations, to encourage institutions to opt in
early. A range of options could be considered by the Australian Government.
The option for the Redress Scheme to include funding for legal advice
for civil litigation options for survivors where the responsible institution
has not elected to participate in the Redress Scheme is discussed in chapter
three. It would be an incentive for NGIs to participate in the Redress Scheme as
an alternative to such civil litigation.
Another consideration for the Australian and state governments is the
appropriateness of government funding, contracts or financial concessions being
provided to NGIs that are delivering child-related services, but are not
participants in the Redress Scheme. It may be appropriate to consider
participation in the Redress Scheme as part of any decision-making matrix of
whether an organisation is a child-safe organisation, particularly for those
with historical child sexual abuse allegations.
The committee agrees with the opt-in nature of the Redress Scheme as the
most appropriate way of ensuring government and NGI participation is a voluntarily
acknowledgement of their responsibilities to provide redress to survivors.
The Redress Bill provides a definition of what constitutes
responsibility for child sexual abuse, particularly when more than one entity
was involved in the care or service delivery to the child.
Scouts Australia raised concerns that the Redress Bill clause 21 definition
of when a participating institution is responsible for the abuse was too broad.
Scouts Australia argued this may have unintended consequences, such as
institutions being found responsible where abuse occurred in a totally
different setting, for which the institution could not be responsible, or where
the institution took all reasonable care through its policies, procedures and
practices to ensure that abuse did not take place. Scouts Australia recommended
a change to the definition be made to tighten the scope of responsibility.
Young Men's Christian Associations of Australia (YMCA) raised similar
concerns with this subclause, citing instances where some abuse may have
occurred at a YMCA facility, but the remaining abuse occurred elsewhere and in
circumstances where there was no connection with the institution. YMCA called
for greater clarity around the definition of responsible entity.
YMCA also said that the definition of official of an institution was too
broad because it includes 'member', which could be interpreted as including a
member of a sporting club.
The joint submission from the Anglican Church, Salvation Army and
Uniting Church also discussed the use of the term 'member', arguing that
attendees could be considered members and therefore 'the definition of
"official" by including members means that each church could be
liable as an institution through the conduct of members who are not authorised
to conduct activities on behalf of the church'.
The Truth Justice and Healing Council also raised similar concerns that
the definition of the responsible entity for the abuse 'introduces a
significant degree of subjectivity to the determination' and furthermore 'does
not prescribe a standard of proof for determining responsibility when there is
more than one participating institution'.
The Truth Justice and Healing Council also pointed to the complex
structure of the Catholic Church, where 'there will often be more than one
Church authority working in a particular geographic region' and 'personnel from
one Church authority might work in the school or premises of another Church
authority, with the latter having no direct responsibility for them'.
The Anglican Church, Salvation Army and Uniting Church raised similar
concerns with the definitions around when a participating institution could be
held responsible for abuse, stating the current wording of the Redress Bill 'imports
a moral judgment rather than objective criteria that can be applied by the
Operator in a consistent, reliable and fair manner'
The Truth Justice and Healing Council further claimed the framing of clause 21
'may operate to protect governments and minimise their exposure under the Redress
Scheme, both as "responsible" participating institutions and funders
of last resort' and recommended 'a more transparent process to allocate degrees
of responsibility between participating institutions should be included in the [Redress
Evidence from the Minister for Social Services (Minister) outlines that
the legislation has been left intentionally flexible to allow 'Independent
Decision Makers' to make appropriate decisions based on their 'skillset and
understanding of the survivor cohort' and who will 'make decisions on
applications with highly variable levels of detail and without strict
legislative guidance on what weight should be applied to the information they
do receive'. Furthermore there will be processes to ensure consistency of
The Department provided extensive evidence on the decision making
framework for determining individual and joint institutional responsibility,
which has been developed from the Royal Commission's recommendations. The
Department outlined that this material is still under negotiation with state
and territory governments and in consultations with NGIs.
Additionally, the Minister provided extensive comment on the drafting of
clause 21 to the Senate Scrutiny of Bills Committee (Scrutiny committee):
Subclause 21(7) is intended to operate to ensure that
institutions are not found responsible for abuse that occurred in circumstances
where it would be unreasonable to hold the institution responsible, despite
subclauses 21(2) and (3). For example, from the commencement of the Scheme, it
is intended the rules will specify an institution is not responsible for child
sexual abuse perpetrated by another child unless there is a reasonable
likelihood that the institution mismanaged or encouraged the situation...
...Until institutions opt in to the Scheme, it is not possible
to envisage every possible circumstance to include in the legislation.
The legislation provides an appropriately flexible framework for
determining the entities responsible for sexual abuse. As outlined by the
Minister, Independent Decision Makers will be recruited for their expertise
both in statutory decision making and in child abuse matters. If the
legislation is too proscriptive about matters of institutional responsibility,
it risks being inflexible and inadvertently denying redress to otherwise
The committee believes the above flexibility reflects the general
principles of the Redress Scheme to be survivor-focused and to avoid further
harming or traumatising the survivor.
The Redress Scheme funding arrangements follow the principle recommended
by the Royal Commission that the institution in which the abuse occurred should
fund the cost of redress.
To achieve this principle, Division 3 of Chapter 3 of the Redress
Bill establishes that the Commonwealth will seek funding contributions from
participating institutions, taking into account any joint responsibility
determined through the assessment process.
NGIs will be invoiced quarterly in arrears, and those funds placed into
the Consolidated Revenue Fund. The invoiced amount is for the 'funding contribution' which consists of the 'redress
component' for the institution for a quarter and the Redress Scheme administration
component for the institution for a quarter. The 'redress component' includes
the institution's share of redress payments and the amount of the institution's
share of providing access to counselling and psychological services to a survivor
in the quarter. Internal review is not available for this decision.
Funds for the purposes paying a redress payment to a person and
providing counselling or psychological services to a person will be taken from
the Consolidated Revenue Fund.
The Scrutiny committee has commented that this standing appropriation
will mean 'the expenditure [of the standing appropriation] does not require
regular parliamentary approval and therefore escapes parliamentary control'.
The Scrutiny committee noted that where this form of funding is used, the usual
practice is to provide reasoning in the Explanatory Memorandum to the bills,
which was not included in this instance.
The Minister responded to this concern and informed the Scrutiny committee
that '[a]n Addendum to the Explanatory Memorandum will clarify this'.
Debt recovery provisions
The Redress Bill includes provisions for the recovery of debts from
individuals granted a redress payment as well as debts arising from the
non-payment of invoices by participating institutions. No issues regarding this
second form of debt was raised in evidence by submitters or witnesses.
Waller Legal raised concerns regarding the inclusion of debt recovery
provisions in subclause 106(3) to recover redress payments made to an
individual as a result of a false or misleading statement or misrepresentation.
Waller Legal submitted there 'are a number of understandable circumstances
where survivors, given their psychological symptoms and the fact that they were
children when they were sexually abused, may make mistakes in the provision of
information'. Waller Legal recommended debt recovery provisions should only be
triggered where the applicant has been intentionally fraudulent.
funder of last resort
Clause 66 and clause 67 set out the provisions as to when governments
will be funders of last resort for participating NGIs. The Explanatory
Where there is an appropriate level of shared responsibility,
it will be open to the Commonwealth or a self-governing Territory to step in to
meet the cost of providing redress for survivors of that abuse. Division 2
provides the mechanism for the Minister to declare that the Commonwealth or a
self-governing Territory is the funder of last resort for a non-government
knowmore legal service (knowmore) submitted that the Royal Commission
recommendation for governments to act as a 'funder of last resort' should a
responsible entity not be able to pay redress, did not include the concept of
shared responsibility. knowmore argued this exclusion of universal last resort
funding responsibility for governments would result in some survivors not being
able to access the Redress Scheme
The way it's phrased at the moment is that the government
will only be the funder of last resort if it meets this test of shared
responsibility. So someone who might have been a ward of the state may have
been placed in the now-defunct institution because of government involvement,
but that is frequently not the case for many survivors, who were placed there
because of family circumstances, without formal intervention by the state. It's
a very difficult area, and I think that's one of the areas where survivors who
are potentially in that position will need legal assistance in order to
identify any circumstances that might found institutional responsibility or
Professor Kathleen Daly, a member of the Independent Advisory Council on
Redress, told the committee that the Royal Commission recommendations were formed
based on modelling undertaken by Finity Consulting, which 'included this notion
that the government would be funder of last resort if an institution no longer
The South Australian Commissioner for Victims Rights submitted that 'it
is incumbent on institutions (such as religious organisations) and governments
that violated, or were complicit in the violation, of a child's right to
security of his or her person, to pay restitution. If, however, restitution is
not readily available then the State—in terms of this submission, the
Government of Australia—should establish a compensation (or redress) scheme'.
The Department told the committee that in relation to discussions on
whether the Redress Scheme should include a provision on the Commonwealth being
the universal funder of last resort 'there is also a constitutional issue in
terms of the Commonwealth being able to make funder of last resort payments:
there has to be a connection to the Commonwealth'.
In relation to how the funder of last report provisions may look in a
national scheme, the Department told the committee:
The Commonwealth bill, as it stands, is only for Commonwealth
survivors and any territories that come in as part of that. I would describe
the negotiations on funder of last resort at the moment as not having been
completely finalised. I would say that in our negotiations with state and
territory governments, and certainly from the Commonwealth government position,
there is a desire to take on some responsibilities where some organisations are
defunct or insolvent. The exact nature of the situation in which state and
territory governments will take on those responsibilities and the exact
drafting of those provisions are still very much not concluded.
Many submitters raised concerns about the use of delegated legislation
to define aspects of the Redress Bill's application, particularly in relation
to rules about eligibility and operation of the Redress Scheme. These specific concerns
about the impact of individual rules are addressed in the relevant sections
later in this chapter.
The use of delegated legislation within the Redress Bill was explained
by the Department to be necessary for flexibility in the Redress Scheme:
...learnings from past schemes have shown it will be necessary
to adjust policy settings to mitigate against unintended outcomes. It is
essential that the Scheme is flexible and adaptable to the realities of
implementation, which requires some provisions to be in delegated legislation.
This flexibility allows the Scheme to meet its objective of a survivor-focused and
expedient process, with a lower evidentiary threshold, to ensure a survivor experience
less traumatic than civil justice proceedings. Protections will be in place to
balance this flexibility, including governance arrangements to provide
oversight of the operation of the Scheme.
While submitters and witnesses acknowledged and encouraged the need for
flexibility within the Redress Scheme, many have questioned why at least some
of the rules, particularly those which had already been discussed publicly by
the Australian Government, were not released in any kind of draft consultation
form when the Redress Bill was introduced. Ms Carol Ronken of Bravehearts told the committee that the lack of visibility of
the rules had made interpretation of the Redress Bill difficult:
The rules are going to be the way that the legislation is
implemented and is going to sort of shape how it goes and how it's set out. I
know that, when we were reading through the bill, there was a bit of discussion
about, 'What does this mean? Because we haven't got the rules. We are not sure
how this is going to be implemented or how it's going to play out.' That did
make it quite difficult at times for us to get a good understanding about how
the legislation is going to be played out and rolled out.
Both the Parliamentary Joint Committee on Human Rights (Human Rights
committee) and the Scrutiny committee expressed concerns about the use of
delegated legislation for significant aspects of the Redress Bill.
The Human Rights committee noted that through the use of rules 'the Minister
has a very broad power to determine persons to be ineligible for the scheme'
under proposed clause 16 of the Redress Bill and that this may 'limit the right
of survivors of sexual abuse to an effective remedy'. The Human Rights committee also held concerns about rules made under clause 21,
relating to determining a participating institution's responsibility for abuse;
clauses 39 and 40 relating to the provision of legal advice for survivors
during the redress application process; and clause 77 relating to the sharing
of information and right to privacy. In each instance, the Human Rights
committee has expressed an intention to consider the 'human rights
compatibility of the proposed rules...when they are received'.
The Scrutiny committee questioned the used of rules particularly in
relation to clause 16, about survivors' eligibility for redress; clauses 21,
22, 23, 25 and 26, about participating institutions, their inclusion and
responsibilities; and clause 34, which gives the Minister power to decide the assessment
matrix by which payments for redress are to be decided.
The Scrutiny committee raised the appropriateness of these significant
matters being determined by legislative rules, rather than regulations:
In relation to this matter, the committee has noted that
regulations are subject to a higher level of executive scrutiny than other
instruments as regulations must be approved by the Federal Executive Council
and must also be drafted by the Office of Parliamentary Counsel (OPC).
Therefore, if significant matters are to be provided for in delegated
legislation (rather than primary legislation) the committee considers they
should at least be provided for in regulations, rather than other forms of
delegated legislation which are subject to a lower level of executive scrutiny.
The Minister addressed the use of rules rather than regulations in his
response to the Scrutiny committee, explaining that:
Using rules rather than regulations or incorporating all
elements of the Scheme in the Commonwealth Bill, provides appropriate
flexibility and enables the Scheme to respond to factual matters as they arise.
It is uncertain how many applications for redress the Scheme will receive at
the commencement of the Scheme, and whether there will be unforeseen issues
requiring prompt responses. It is therefore appropriate that aspects of the
Scheme be covered by rules that can be adapted and modified in a timely manner.
The need to respond quickly to survivor needs is also a key feature of the
Scheme as many survivors have waited decades for recognition and justice.
The Law Council of Australia (Law Council) drew upon the Scrutiny committee's
report in its submission and, while accepting 'that there is a need for a
reliance on legislative instruments to provide the flexibility for the Scheme', explained that:
...it is extremely difficult to meaningfully assess the
appropriateness of the Scheme without additional detail on important matters
such as rules regarding eligibility and institutional responsibility...the Law
Council considers it inappropriate to delegate eligibility for redress and
institutional responsibility to subordinate legislation and recommends that
such matters are dealt with in primary legislation.
Professor Kathleen Daly agreed that there is a need for flexibility
within the Redress Scheme and that the use of rules would achieve this goal.
However, she also expressed some reservations about scrutiny of the rules being
made and recommended an oversight approach:
If you trust the operator to do the right thing then it's
okay, but we don't know right now, do we? So that's the question. Perhaps there
could be some oversighting body in the early days that gave more parliamentary
oversight without all the heavy weight of parliamentary oversight....you could
expedite reviews and so forth....The question is [whether] the parliament would
be most comfortable with the exercise of that, and whether there'd be some
other route of oversight that permitted rules but some oversighting body that
could be deliberative on some of those decisions.
Uncertainty about rules is inhibiting
There is evidence that a lack of clarity around potential rules is one
of the factors currently inhibiting opt in from states and participating
The Catholic Church's Truth Justice and Healing Council explained in its
Given the significant implications of the Rules on both the
operation and conduct of the scheme, it is appropriate that the Rules are made
available to all stakeholders for consideration as soon as possible.
Following the announcement that Victoria and New South Wales were
intending to join a national scheme, Mr Francis Sullivan, Chief Executive
Officer of the Truth Justice and Healing Council, told media that it is the
Catholic Church's intention to join a national redress scheme once information
about rules and the scheme's operation is available and has been reviewed. Mr
Sullivan also stated that he believed that information about the scheme rules was
being provided to some states only and that other states, churches, charities
and NGIs had not 'been party to the information that Victoria and New South
Wales have got'.
At the hearing on 16 February 2018, representatives from potential
participant organisations also expressed their intention to join a national
redress scheme, but that various steps first needed to be taken for this to
happen. Mr Neville Tomkins of Scouts Australia went so far as to tell the
committee that if it was not able to see the proposed rules before the 1 July
2018 opt in deadline:
...then I don't believe Scouts Australia or its incorporated
bodies, its branches, will make a final decision to opt in. Putting it more
sharply, I would say Scouts Australia would not wish to make a final decision
without seeing the final legislation, the rules and the implementation
The Anglican Church of Australia indicated that while it would not
require the details of the rules before opting in to the Redress Scheme, a
memorandum of understanding with the Department setting out how the rules and
the Redress Scheme would operate would be 'the instrument by which [the
Anglican Church] would opt in'. This position was shared by the Salvation Army of Australia.
The Uniting Church of Australia expressed an interest in seeing an
updated assessment matrix (which would be prescribed by rule under clause 34 of
the Redress Bill) before opting in.
The Department provided context around the use of rules in the Redress
Scheme, citing the need for flexibility to adapt to emerging and unforeseen
circumstances, including the development of a national Redress Scheme:
If a National Bill can be achieved, the scale of this Scheme
will be larger than other state-based schemes or overseas experiences, with
greater coverage, scale and participating institutions than these other schemes
(for example, the Irish Redress Scheme only included the Catholic Church). This
is the reason many provisions of the Scheme are framed flexibly, to account for
an unconfirmed number of survivors, institutional contexts and other
circumstances that may arise.
Further, learnings from past schemes have shown it will be
necessary to adjust policy settings to mitigate against unintended outcomes. It
is essential that the Scheme is flexible and adaptable to the realities of
implementation, which requires some provisions to be in delegated legislation.
This flexibility allows the Scheme to meet its objective of a survivor-focused
and expedient process, with a lower evidentiary threshold, to ensure a survivor
experience less traumatic than civil justice proceedings.
The Department went on to refer to the governance arrangements that will
be put in place to balance flexibility with oversight. As outlined in chapter
one these include a Ministerial Redress Scheme Board of Ministers from
participating state and territory governments, which must agree to any
legislative or key policy changes required over time, and a Redress Scheme
Committee will provide the scheme operator with advice on key operational and
implementation matters of the Scheme.
In order to achieve the goals of flexibility and adaptability, a number
of aspects of the Redress Scheme will be governed by rules and other delegated
legislation. The committee notes the responses from the Minister and the
Department indicate that flexibility is being sought to ensure that the scheme
remains survivor-focused, and that highly prescriptive rules do not
inadvertently make survivors ineligible for redress.
The committee is satisfied that the use of delegated legislation in this
bill is appropriate to achieve these goals.
The committee also recognises that there is a balance to be found in
providing flexibility to improve and adapt a scheme throughout its
implementation, and in providing sufficient information for survivors,
institutions and state governments about the intentions of the bill.
Recognising the difficulty of stakeholder engagement in an ever-changing
landscape where negotiations are continuing with state governments and NGIs,
the committee is of the view that continued early and open communication from
the Department will reassure survivors, their families and their advocates.
Entitlement and eligibility criteria
Eligibility for redress under the proposed scheme is a key component of
the Redress Bill, with Part 2-2 setting out who can be provided with redress
and what this redress can include.
The committee heard evidence that survivors' eligibility for the scheme
is a major concern for many survivors and their representative organisations.
It has been noted that many survivors do not understand that they are
not eligible for the scheme in the Redress Bill, either because of the geographic
limitations of the Commonwealth scheme or due to confusion around the
definitions of eligibility proposed by the Redress Scheme. Mr Boris Kaspiev from the Alliance for Forgotten Australians told the
We believe that a lot of survivors, forgotten Australians,
don't understand the complex politics between Commonwealth and state, and
therefore people have this idea that they're going to get $150,000, that this
is going to be a wonderful year. And, as the understanding of this starts to
hit home, the despair among the people we represent is deep, traumatic and
Standard of proof
Clause 15 of the Redress Bill provides the conditions by which a person
is entitled to redress. Paragraph 15(2)(b) provides that a person is entitled
if 'the Operator considers that there is a reasonable likelihood that the
person is eligible for redress under the scheme'. Eligibility criteria are discussed further below.
The test of 'reasonable likelihood' will be the standard applied to
assess applications under the scheme. In the Explanatory Memorandum, the definition
of 'reasonable likelihood' in common law is understood as:
...the chance of an event occurring or not occurring which is
real – not fanciful or remote.
While many submitters have praised using this standard of proof in the Redress
some NGIs have recommended that the scheme use the civil standard of 'balance
of probabilities' instead.
The Catholic Church has applied the 'balance of probabilities' test to
its redress schemes Towards Healing and The Melbourne Response and noted that the 'vast majority' of applications to those schemes were able
to satisfy that test. Mr Francis Sullivan, representing the Catholic Church Truth Justice and
Healing Council, explained that insurance companies pay out in their policies
where the test of 'balance of probabilities' is applied and that some
institutions may not be willing to sign up to a redress scheme where their
insurance companies will not pay out on the lower thres
Scouts Australia also addressed this concern about 'balance of
probabilities' and insurance coverage for claims, noting that insurers will
need to be satisfied as to the veracity of an applicant's claim and that the
'reasonable likelihood' test is lower than the standard of proof required by
The Department explained in its submission that the scheme has been
designed to be survivor focused, having a 'lower evidentiary threshold...than
civil proceedings' in order to minimise survivor trauma and to expedite the
...the Scheme will not be legalistic in nature. The Scheme
offers survivors an alternative to civil litigation with a lower evidentiary
burden and a high level of beneficial discretion. The Scheme aims to have the
needs of survivors at the core and to avoid further harm or re-traumatisation
Furthermore, at the hearing on 6 March 2018, the Department assured the committee
that the Government was not considering raising the standard of proof required
in the scheme:
The primary reason is that this is supposed to be different
from a court process. Many people have reported to us difficulties that they
have in accessing records to be able to meet that kind of test, and there are
many other issues that have come through from survivors. So there is no
intention at this stage to change that.
The committee believes that the standard of proof required by the
Redress Scheme achieves the goals of survivor focus and harm minimisation. It
is intended to provide access to people who may not have the evidence available
to them at levels required for civil litigation.
These bills do not consider how individual institutions which opt in to
the Redress Scheme will fund their redress obligations. Whether or not an institution's
insurance will pay out on a claim based on the evidence provided to the Redress
Scheme—thereby limiting the financial exposure of the responsible institution—is
irrelevant to the overarching goal to provide redress to survivors of child
sexual abuse, and that the Redress Scheme should be survivor-focused.
Who is eligible under the scheme?
Clause 16, which defines when a person is eligible for redress, was
subject to significant discussion across the course of this injury.
Subclause 16(1) provides that a person is eligible for redress if:
- the person was sexually abused; and
- the sexual abuse is within the scope of the scheme (i.e. occurred when
the person was a child, inside or outside of Australia, before the start of the
scheme, a participating institution was responsible); and
- the person is an Australian citizen or a permanent resident at the time
the person applies for redress.
Subclause 16(2) provides that eligibility for redress can also be prescribed
by rules, while subclause 16(3) provides that rules can prescribe a person not eligible regardless of the provisions under subclauses (1) and (2).
As discussed earlier in this chapter, rules proposed under subclauses
and (3) have not been released to date.
However, the Explanatory Memorandum declares an intention that, on
commencement of the Redress Scheme, rules under 16(2) will prescribe
eligibility for former child migrants who are non-citizens and non-permanent
residents; non‑citizens and non-permanent residents currently living in Australia;
and former Australian citizens and permanent residents. It should be noted that some submitters have recommended these rules be
included in the primary legislation.
Furthermore, the Australian Government has signalled its intention to
exclude under 16(3) any survivors 'convicted of any sexual offence or
another serious crime, such as serious drug, homicide or fraud offences for
which they received a custodial sentence of five or more years'.
These proposed rules, as well as other concerns about eligibility
criteria, will be discussed in further detail below.
Sexual abuse and other forms of
The definition of sexual abuse, the application of this definition, and
the exclusion of other forms of child abuse has been raised in relation to
survivors' eligibility for the scheme.
Definition of sexual abuse
Submitters have raised concerns about how the interpretation of the
definition of sexual abuse in the Redress Bill could affect survivor's access
to redress. In the Redress Bill, sexual abuse of a child is defined as
...any act which exposes the person to, or involves the person
in, sexual processes beyond the person's understanding or contrary to accepted
community standards (e.g. exposing a child to pornography).
As claims of abuse will be subject to interpretation under that
definition, Shine Lawyers remarked that circumstances understood to be sexual
abuse consistent with non-legalistic decisions could be found to not meet the
requirements under the Redress Scheme and, as the Redress Scheme as proposed
does not allow for external review, a rejection of a claim for redress in such
a circumstance could cause further trauma for a survivor.
YMCA also expressed the opinion that the definition in the Redress Bill 'may
be open to varying determinations particularly when interpreting the terms
"person's understanding" and "accepted community
standards"' and recommended in its submission that the Redress Bill be
amended to include the full definition used by the Royal Commission, including
the description of sexually abusive behaviours. That definition is as follows:
Any act which exposes a child to, or involves a child in,
sexual processes beyond his or her understanding or contrary to accepted
community standards. Sexually abusive behaviours can include the fondling of
genitals, masturbation, oral sex, vaginal or anal penetration by a penis,
finger or any other object, fondling of breasts, voyeurism, exhibitionism, and
exposing the child to or involving the child in pornography. It includes child
grooming, which refers to actions deliberately undertaken with the aim of
befriending and establishing an emotional connection with a child, to lower the
child's inhibitions in preparation for sexual activity with the child.
Including survivors of other forms
of child abuse under the scheme
In the Redress Bill, a note to subclause 16(1) explains that:
To be eligible for redress, a person must have been sexually
abused. However, redress is for the sexual abuse, and related non‑sexual
abuse, of the person that is within the scope of the scheme.
The Explanatory Memorandum explains this provision further:
The survivor may also have suffered non-sexual abuse in
connection with the child sexual abuse, which could include physical abuse,
psychological abuse and neglect. Non-sexual abuse will be taken into
consideration as an aggravating factor that contributed to the severity of the
sexual abuse suffered.
Many submitters raised concerns that the scheme as proposed in the Redress
Bill only offers redress to survivors of sexual abuse, not survivors of
non-sexual forms of child abuse such as physical, psychological or cultural
abuse or neglect, and many have recommended that survivors of these other forms
of abuse be made eligible for redress under this or another scheme.
There have been a number of significant inquiries about the impact of
institutional child abuse on the lives of survivors recommending reparations or
redress schemes for this population, including Bringing them home: The
'Stolen Children' report (1997, Human Rights and Equal Opportunity
Commission), Lost Innocents: Righting the Record—Report on child migration (2001, Senate Community Affairs References Committee) and Forgotten Australians:
A report on Australians who experienced institutional or out-of-home care as
children (2004, Senate Community Affairs References Committee). Notably,
the Forgotten Australians report made a key recommendation that a national
reparation fund be founded for all survivors of institutional abuse.
The Royal Commission was bound to the terms of its Letters Patent and was
not able consider redress for:
...those who have suffered physical abuse or neglect, or
emotional or cultural abuse, if they have not also suffered child sexual abuse
in an institutional context. Also...those who were in state care, who were child
migrants or who are members of the Stolen Generations, regardless of whether
they suffered any child sexual abuse in an institutional context.
However, the Royal Commission did not preclude the idea that a national
redress scheme could be open to all survivors of institutional child abuse and
noted that 'most previous and current redress schemes cover at least sexual and
physical abuse. Some also cover emotional abuse or neglect'. Furthermore, the Royal Commission:
...[did] not discourage those who establish a redress scheme
for survivors of institutional child sexual abuse from also providing redress
for persons who have suffered other forms of institutional abuse or neglect but
not institutional child sexual abuse or for particular groups regardless of
particular experiences of abuse.
The Alliance for Forgotten Australians described how a divide between
the treatment of survivors of sexual abuse and survivors of other abuse had
been a concern before the establishment of the Royal Commission, and could have
a re‑traumatising effect:
When we advocated for a royal commission, and we did for many
years, we wanted a royal commission into institutional care. What we got was one
into institutional sexual abuse, as you know. That was a big step forward for
many of us, because many of our people were sexually abused. However, many
weren't, and the divide is huge. It makes people feel, yet again, like they
felt as children: 'you're eligible for adoption, because you're attractive;
you're not, because you're ugly.' That sort of stuff sits with people forever.
Mr Frank Golding, a member of Care Leavers Australasia Network (CLAN)
and a survivor, shared a similar view, noting that the scheme also has 'the
unintended consequence of setting up a hierarchy of suffering which in itself
has been traumatic for people who were abused in other ways'.
Dr Philippa White, Director of Tuart Place, explained how considering
other forms of institutional child abuse is particularly important in the
survivor population who had been in state care in the wake of these previous
...if it's a child in the care of the state in a closed
institutional setting, then it's dismissive of the rest of their experiences to
only recognise sexual abuse, and it will set up hierarchies within a group of
people who've been encouraged to form a collective identity through the [Forgotten
Australians] Senate inquiry and the [Lost Innocents] child migrant inquiry.
These are a group of people who have been brought together and told, 'You are
one.' They're a diverse-needs group for the purposes of aged care. They have a
collective identity. Yet now you just want do pick out sexual abuse as being
the only relevant type of abuse? What was the forgotten Australians inquiry all
about? What was that Senate inquiry for if now only sexual abuse is looked at?
It's not appropriate for people who were in care.
Many submitters and witnesses also raised concerns that cases of abuse
that are solely non-sexual are being excluded from the scheme despite the fact
that these other forms of abuse would be considered by the scheme in
conjunction with a claim of sexual abuse.
The Catholic Church Truth Justice and Healing Council took a different
approach to many other submitters, explaining to the committee that the Catholic
Church had been seeking a redress scheme exclusively related to child sexual
abuse, as per the Royal Commission terms of reference, but that it was
'prepared to live with that compromise on the grounds that advice that came
back, albeit anecdotal, was that some individuals have had experiences of
sexual and nonsexual abuse as part of a whole episode in their life of abuse'. In relation to this point however, the committee notes that the Royal
Commission did consider that 'other unlawful or improper treatment, such as
physical abuse, neglect or emotional or cultural abuse, may have accompanied
the sexual abuse'.
The committee acknowledges the concerns of members of the Forgotten
Australians and Stolen Generations, as well as other survivors of physical,
psychological, emotional and cultural abuse in care, about their ineligibility
for redress under the proposed Redress Scheme.
The committee is aware of the deep and abiding impacts that non-sexual
abuse has had on the lives of survivors, particularly care-leavers.
While the committee is strongly supportive of the establishment of this
Redress Scheme to address historic cases of institutional child sexual abuse,
the committee is also of the view that the impacts of non-sexual abuse require
greater thought and focus from all levels of government and Australian society
Citizenship and residency status
The Redress Bill proposes to limit eligibility for the Redress Scheme to
Australian citizens or permanent residents at the time the applicant applies
for redress. The Explanatory Memorandum explains that the citizenship and
residency status requirements under proposed paragraph 16(1)(c) have been
included in the bill:
...to mitigate the risk of
fraudulent claims and to maintain the integrity of the Scheme. It would be very
difficult to verify the identity of those who are not citizens, permanent
residents or within the other classes who may be specified in the Rules.
Removing citizenship requirements would likely result in a large volume of
fraudulent claims which would impact application timeliness for survivors.
Despite this explanation and the intended rules to grant eligibility to
certain non-citizen and non-resident groups as detailed earlier in this
chapter, a number of issues with this proposed paragraph have been raised.
Many submitters shared the view that any person who was abused as a
child while in the care of any Australian government, institution or
organisation should be entitled to redress regardless of their citizenship or
residency status. Submitters argued the proposed restriction goes against the
findings of the Royal Commission, which saw no need to implement any
citizenship or residency requirement. These submitters recommended that, for this reason, proposed paragraph 16(1)(c)
should be removed from the Redress Bill.
Maurice Blackburn Lawyers commented that 'an applicant would still need
to satisfy the entitlement requirements set out in subclause 15 of the draft
legislation' and that fraudulent applications, regardless of citizenship or
residency status, would not make it past that point. Furthermore, Maurice
Blackburn Lawyers noted that:
Nowhere in Volume 15 of the Final Report, nor in the Redress
and Civil Litigation Report have the Royal Commissioners articulated that an
inability to identify abuse victims (thereby opening the scheme up to 'a large
number of fraudulent claims') may be an issue in relation to the integrity of
The Australian Human Rights Commission suggested that the integrity of
the scheme could be better protected from fraud:
...by the Minister prescribing rules that make vexatious
applications ineligible for redress, rather than prescribing rules that confer
eligibility upon multiple additional classes of people in response to a blanket
restriction on non-citizens or non-permanent residents from accessing the
The Human Rights committee also discussed this matter in its reports
about the bills, questioning whether 'the restriction on non-citizens' and
non-permanent residents' eligibility for redress under the scheme is aimed at
achieving a legitimate objective for the purposes of human rights law', the
efficacy of such a measure, and whether this measure is proportionate to the
aim of avoiding fraud. The Human Rights committee found that:
...restricting the eligibility of noncitizens and non-permanent
residents engages and limits the right to equality and non-discrimination.
While the measure pursues a legitimate objective, there are concerns that the
breadth of the restriction on the eligibility of all non-citizens and
non-permanent residents may not be proportionate. However, setting out further
classes of persons who may be eligible in the proposed redress scheme rules,
including those who would otherwise be excluded due to not being citizens or
permanent residents, may be capable of addressing these concerns.
Submitters also identified categories of non-citizens and non-permanent residents
who they believed should be eligible under the scheme, but are not currently
eligible in accordance with the proposed bill or rules.
Some survivors of institutional child sex abuse, who have later been
subject to criminal conviction, have had their permanent residency revoked on
character grounds by the Department of Home Affairs under section 501 of the Migration
Act 1958. This group of survivors could be doubly ineligible under the scheme as it
stands, both by reason of residency status and by reason of criminal history (which
is discussed later in this chapter).
Citizenship and residency requirements may also make redress unavailable
to survivors of child sexual abuse which occurred in Australian immigration detention
facilities. These facilities were identified by the Royal Commission as places where abuse
occurred and the Royal Commission Report made a number of specific
recommendations in relation to immigration detention. It appears that proposed rules for eligibility for non-citizens and
non-permanent residents are unlikely to capture this group of survivors, as the
Australian Lawyers Alliance explained:
Asylum seekers or refugees living in the Australian community
on temporary protection visas (TPVs) or bridging visas (BVs) will be directly
affected by this lack of clarity. There will be others who sought asylum from,
or were granted refugee status by, Australia who are not currently in Australia...whose
eligibility also remains in doubt....This group will of course include those who
have tried to seek asylum from Australia but have been prevented from doing so,
even though they have been detained and sexually abused in Australian-run
In relation to the issue of eligibility and temporary visas, the Department
of Home Affairs submitted that if the rules for eligibility were expanded to
include those on such visas, this would have significant financial consequences
for the Commonwealth:
If the Rules were to expand the eligibility for redress under
the Redress Scheme beyond Australian citizens and permanent residents to all
temporary visa holders or certain temporary visa holders, the Department's
financial exposure to liability under the Redress Scheme is likely to increase
significantly. This is because the institutional settings for which the
Department is likely to be responsible will generally involve unlawful
non-citizens, who may or may not have become permanent residents or Australian
citizens by the time they make their applications. Extending the Redress Scheme
to such people would possibly mean the Department (on behalf of the Commonwealth)
would be exposed to making a larger number of redress payments under the
However, as discussed in the earlier section of this chapter on
delegated legislation, the Explanatory Memorandum declares an intention that,
on commencement of the Redress Scheme, rules under 16(2) will prescribe
eligibility for former child migrants who are non-citizens and non-permanent
residents; non-citizens and non-permanent residents currently living in
Australia; and former Australian citizens and permanent residents. Many of the
cohorts of non-citizen survivors raised as a concern by submitters would be
made eligible by such a rule.
The committee recognises that, as the Redress Scheme Rules are not yet
published, there is some confusion and worry among survivors, their advocates and
community organisations about individuals' eligibility to apply for redress,
particularly in relation to citizenship and residency status.
The Australian Government has committed to opening the scheme to child migrants,
former Australian citizens and permanent residents, and non-citizens and
non-permanent residents living in Australia.
The committee recognises that the reality of people's citizenship and
residency circumstances may not always be clearly captured by the rules.
However, the flexibility offered by Redress Scheme Rules means a robust scheme
for survivors, with the ability to prescribe eligibility for those whose
eligibility is otherwise unclear.
Notwithstanding this, greater clarity from the Department on the
intended rule regarding non-citizen eligibility would assist survivors and
their advocates to understand the intended cohorts who will be eligible for
While not addressed in either the Redress Bill or Explanatory Memorandum,
there has been significant debate in relation to a proposal to prescribe a rule
excluding survivors with certain criminal convictions from the Redress Scheme.
In its submission, the Department confirmed that survivors 'convicted of
any sexual offence or another serious crime, such as serious drug, homicide
or fraud offences for which they received a custodial sentence of five or more
years' would be excluded from the Redress Scheme by means of a rule prescribed
under proposed subclause 16(3) of the bill. The Department explained that this decision had been made by government in
consultation with the state and territory ministers responsible for redress, and that:
The decision was made that in order to maximise the integrity
of and public confidence in the Scheme, there had to be some limitations on
applications from people who themselves had committed serious offences,
particularly sexual offences.
State and territory Ministers were of the strong view that
excluding some people based on serious criminal offences is necessary to ensure
the Scheme is not using taxpayer money to pay redress to those whose actions
may not meet prevailing community standards.
As this is a significant eligibility criterion for the
Scheme, a provision determining the eligibility of survivors with criminal
convictions will also be included in the National Bill.
However, evidence presented to the committee suggests that no other
Commonwealth compensation scheme or financial relief payment for other survivor
or victim cohorts (such as the Defence Abuse Reparation Scheme, Drought Relief
Assistance Scheme, the Australian Victim of Terrorism Overseas Payment or the Australian
Government Disaster Recovery Payment) holds any eligibility restriction on
access based on criminal conviction or similar character grounds.
It should also be noted the Australian Capital Territory Government has
argued against the exclusion of survivors who have spent time in jail for
Professor Kathleen Daly noted that differences in sentencing practices
would make criminal conviction exclusions difficult in practice:
In our sentencing system, if you're setting a minimum period
of imprisonment as the exclusion, you don't get the same offence for the same
conduct around Australia. There are differences in states. There are
differences, depending on when you committed the offence—the sentencing regimes
have changed over time; maximum penalties have increased. But for historical
offences, you'll receive the sentence that was in operation at the time. There
are all those sorts of problems that I think make it very, very difficult to
apply those exclusions in practice.
knowmore raised a similar concern regarding the jurisdictional
differences in the operation of spent convictions:
One area of inevitable inconsistency arises around 'spent
convictions'. Will 'a conviction for a sexual offence' include
convictions which are legally to be regarded as 'spent' under a relevant State
or Territory law? If so, there are differences as to how the various
jurisdictions approach convictions for sexual offences. Victoria does not even have a spent convictions scheme.
Unfairness will arise with survivors having similar criminal histories either
included or excluded from access merely because of the location of where they
knowmore went on to raise its concern that if criminal exclusions were
included in the Redress Scheme, state or institutional redress schemes would
likely follow suit 'thus effectively closing the door on redress as a
justice-seeking option for any offender in the abovementioned categories'.
The Department noted that exclusion from the scheme would still be
subject to the discretion of the operator. This would allow people to be deemed
eligible by rule under 16(2) even if otherwise ineligible by rule under 16(3),
and would allow the operator to take into consideration issues of
jurisdictional differences, such as mandatory minimum sentencing, in the
equitable application of the proposed rule.
The Department also explained that in 'exceptional cases' where an
applicant has a criminal conviction below the threshold proposed, and where
granting redress to a person with that conviction 'would affect the integrity
and public confidence in the Scheme', another rule could be prescribed under
16(3) to prevent their eligibility.
The Minister, in his response to the Human Rights committee report on
the Redress Bill, indicated that the limitation on eligibility for persons with
criminal convictions will be included in the primary legislation of any national
bill for the redress scheme. This was also confirmed by the Department at the hearing on 6 March 2018.
Nearly all submitters and witnesses to this inquiry recommended that
survivors not be excluded from the Redress Scheme due to criminal offending or
Shine Lawyers were also not convinced that excluding this population
would protect the integrity of the scheme, as:
...it would stand in contrast with the integrity of a redress
scheme if all affected survivors pursued civil litigation instead of seeking
The impact of childhood abuse on
The Royal Commission noted in its final report that there is a 'growing
body of research that examines a potential relationship between child sexual
abuse and subsequent criminal offending', and that while the majority of
survivors do not commit crimes, there is a higher prevalence of offending in
this group when compared with the general population. The Australian Institute of Criminology found in 2012 that survivors of sexual
abuse were five times more likely to be charged with an offence than their
peers, while research in Victoria in 2007 found that 21 per cent of children
aged 10 years or older, living in out-of-home care, had experienced police
contact in the preceding six months.
The Royal Commission found that the reasons why survivors engaged in
criminal behaviour were complex and related to 'various social, cultural,
institutional and family factors in their lives at the time of abuse and
following the abuse, including disadvantage, maltreatment and trauma'. Submitters and witnesses also described how the impact of institutional child
sexual abuse and other child abuse could be a reason for offending.
The Royal Commission held a total of 722 private sessions to allow
prison inmates to share their experiences, including 493 face-to-face sessions
in prisons. This represented just over 1 in 10 of all survivors heard in
private sessions across the Royal Commission's inquiry. 182 written accounts
from survivors in prisons were also received by the Royal Commission.
The South Australian Commissioner for Victims Rights submitted that the
exclusion of criminal offenders from the Redress Scheme may be a violation of
Witnesses and submitters were worried that this population, representing
a significant number of survivors who had been actively sought out by, and had
contributed to, the Royal Commission could now be excluded from the redress
scheme. The Royal Commission made no recommendation in its Redress and Civil Litigation
Report that survivors with criminal records be excluded from a redress scheme.
Many submitters held concerns that denying redress in any form to this
population is further punishment for their crimes. This concern was succinctly
summarised in the submission from the law firm Ryan Carlisle Thomas:
To include an exemption for abuse survivors with sentences of
5 years or more would effectively punish them again for crimes for which they
have already served the time. Further, it is arguable that many would not have "done
the time" in the first place had they not been abused. Such abuse
survivors have already been punished, first by institutions where they suffered
abuse, then by institutions of incarceration.
Submitters explained that some survivors may have committed crimes long
ago, and have since been rehabilitated and reintegrated into the community. Mr
Mark Glasson from Anglicare WA presented the committee with a case study of the
type of person who could be affected by this:
We've actually worked with one client which is a good
illustration of the problem. He's 68 years old and married with adult children.
His criminal offending ceased when he was aged 30 but it was significant and,
under the current proposals, he would be ineligible. But for the last 38 years
he's lived a law-abiding life and he's largely dealt with the issues that drove
him to his offending. To exclude that man would be totally unreasonable.
The committee also heard from a man known as 'John' at hearing on
6 March 2018, who described how the abuse he had suffered led
directly to his offending:
What I'm leading to here is the fact that I would have been
all right in life if it hadn't been for the sexual abuse committed against me
and rejections by the system. So how can Mr Turnbull judge me as not being
eligible for compensation on the grounds of criminality? I was a system-made
problem... To add to that, the last time I committed a crime was 1986. I haven't
committed a crime since, although for seven years of that I was in jail. I've
worked every day, and I'm just about to retire. I feel that I've done pretty
well for a person who went through all of that, and I just don't want people to
keep thinking that people in jail are just there [because] they're crims.
They're there because a lot of them were put there, made there.
A number of witnesses and submitters observed that such a provision will
also disproportionately disadvantage Aboriginal and Torres Strait Islander
people due to high rates of indigenous incarceration. Mr Richard Weston from the Healing Foundation told the committee that:
Sexual abuse and institutionalisation of Aboriginal and
Torres Strait Islander people have contributed to the shocking rates of incarceration
across Australia....Victims were children at the time of the abuse, and that
might be something that's lost. While people are serving time in prison, the
abuse occurred when they were children, not adults, and they should not be held
responsible for the impact of the abuse on their lives through their subsequent
behaviour. The failure to provide any quality healing services over many years,
especially for men, means that many children, young people and then adults were
not afforded the opportunity to heal. Many manifested their pain and dealt with
it through the use of substances, caught constantly in a fight or flight
Other solutions for redress in this
Should an eligibility exclusion for criminal offenders be introduced in
the rules of the scheme, witnesses and submitters made a number of
recommendations of how redress could still be provided to survivors with a
criminal history without providing a lump-sum payment. For example, Relationships
Australia recommended that, at a minimum, survivors with criminal convictions
should still be offered the counselling and direct personal response aspects of
redress under the scheme.
Submitters explained that counselling plays an important role both in
rehabilitation of former offenders and in supporting survivors of child sexual
abuse. Miss Miranda Clarke, from the Centre Against Sexual Violence Inc., explained
how counselling can assist survivors in this population:
Part of redress is access to counselling and psychological
care. We want people to be able to change their life trajectory, and we know
that the counselling and psychological care offered to survivors in the prison
system is inadequate. In Queensland, we've had one of the highest rates of
prisoner engagement through the royal commission, and the feedback we're
getting is that it's making a difference for them. Do we want that support to
stop for those people who are in the prison system or do we want to continue to
engage with them and help them to change their direction in life?
There has been a recommendation made to the committee by a number of
witnesses and submitters that redress payments could still be made to survivors
with criminal convictions, on the condition that any such payment is held in
trust. This trust fund could then be used to support the survivor's family or any
victims of that survivor's crimes, or be used for intensive rehabilitation programs or employment access assistance
to reduce their chances of reoffending.
The Minister announced in February 2018 that this issue had not yet been
fully resolved and would be discussed at an upcoming meeting with state and
territory attorneys-general, with a view to 'giving exemptions to those who
have demonstrated rehabilitation'.
The committee recognises there is great difficulty in balancing the need
for redress for survivors of institutional child sexual abuse and managing
community expectations around payments to persons who have been convicted of
serious crimes. However, the committee notes that similar redress or victims of
crime compensation schemes do not include such criminal exclusions.
The committee notes the Minister has stated the inclusion and operation
of a criminal exclusion clause has not been finally determined, and that
discretion to waive any such exclusion is still under consideration.
The committee considers it should be taken into account that an offender's
rehabilitation could be assisted by the non-payment elements of redress,
comprising counselling and a direct personal response from the institution
responsible for the sexual abuse.
Furthermore, it should be considered that the proposed criminal
offending exclusion may result in an unintended perception that institutions
are not being held to account for the sexual abuse of certain children in their
Applications for redress
Part 2-4 of the Redress Bill includes provisions setting out the
application process for redress.
Part 4-1 of the Redress Bill sets out the powers of the operator to
obtain further information to inform these applications, while Part 4-2
provides guidelines for the use and disclosure of information throughout the
Also related to the application administrative process, Part 4-4 of the Redress
Bill makes provisions about the appointment and role of nominees to act on
behalf of survivors for the purposes of the scheme.
Submitters and witnesses raised a number of points relating to these parts
of the Redress Bill.
One application per survivor
Proposed clause 30 of the bill stipulates that:
A person may only make one application for redress under the
The Explanatory Memorandum further describes that:
...applications for redress
under the Scheme are limited to one application per survivor, whether or not
that person suffered sexual abuse in more than one institution. Survivors will
be able to include multiple episodes of sexual abuse and related non-sexual
abuse suffered in multiple institutions in the one application.
The Explanatory Memorandum also provides examples of how this will be
applied in practice (largely in relation to clause 31, which permits a person
to withdraw an application at any time before a determination is made), but
does not provide any explanation of why only one application will be permitted
In its submission, the Department explained that a single application
was designed to avoid requiring separate applications for separate instances of
abuse, thereby reducing trauma for individuals:
...survivors will only need to complete one form to cover all
instances of child sexual abuse experienced in institutional contexts during
their childhood. As a survivor will only need to disclose their experiences of
child abuse in one application, it will provide the opportunity for the
survivor to receive closure after a potentially traumatic, but singular,
application process. The Royal Commission recommended that survivors should not
have to make multiple applications if they were abused in multiple institutions,
to achieve equal or fair treatment between survivors.
However, submitters have raised concerns that not permitting multiple
applications may cause unintentional consequences for certain groups of
As discussed earlier in this chapter, there is also a concern that
survivors may need to wait a long time before being able to make a full
application, as participating institutions have yet to opt in and will have an
extended period in which to do so. This would also unfairly disadvantage those
abused in more than one institution and who may be required to wait.
Dr Kezelman, President of the Blue Knot Foundation, explained that the
complex nature of traumatic memory means that survivors may not recall all
relevant information about their trauma at the time of making their
...at different times in people's lives they may not have a
narrative, and often never get to a narrative, of what happened to them and
when. So, when people come back and say they now remember that they were abused
in institution Y, they're not necessarily making that up; that's just the very
nature of trauma. If it's restricted to one application at a point in time and
then, 10 years later, the person has remembered more information, what happens
as a result of that?
The Australian Lawyers Alliance recommended that if only a single
application will be permitted, survivors should be informed if their
application will be denied and the reason for this before a final official
determination is made. The survivor should then be able to withdraw the application
and resubmit with it with further information if they choose. However, Shine Lawyers noted that if people choose to withdraw and resubmit to
get a better outcome, this is likely to increase administrative costs for the
Restricting survivors to a single application under the scheme also has
implications where a survivor fails to accept an offer within the prescribed
time limit. This is discussed later in this chapter.
A number of submitters recommended that clause 30 be changed to allow
survivors to make multiple applications to the scheme, while Relationships Australia recommended another approach could be to have a
cap on the number of applications at a scheme level, rather than an individual
The committee notes the concerns of many submitters that allowing only
one application under the scheme may have unintended consequences of delaying
some survivors' applications and excluding some survivors from the scheme.
Providing documentation and records
Concerns were raised about the provision of information and records as
part of the redress application process, including verifying that information.
Proposed subclause 29(2) of the Redress Bill sets out the requirements
for applications for redress:
(2) The application must:
- be in the form (if any) approved by the
any information, and be accompanied by any documents, required by the Operator;
- verify the information
included in the application by statutory declaration.
Submitters and witnesses have observed that a lack of records may make
applications for redress difficult for some survivors as the veracity of their
claims could be called into question.
There have been concerns raised that getting evidentiary documentation
from institutions in particular could present a hurdle for survivors. One survivor told the committee that, where institutions are unable to produce
Survivors who cannot locate information should not be
discarded from the process of redress simply because records were either poorly
kept or lost.
Submitters also noted that the experience of survivors in the Western
Australian redress scheme, Redress WA, was that some documents took up to six
months to obtain, in turn slowing down the survivor's application process. While such delays could cause similar problems with applications in the
proposed Commonwealth scheme, this has more serious implications when
considering potential requests from the operator for further documents after an
initial application is received. This matter is discussed further below.
It may also be necessary to include supports for certain survivors in
accessing and providing their documents in order to make an application. The
Victorian Aboriginal Child Care Agency explained in its submission that clients
have had difficulty in accessing records about their time in care.
The Department explained that the requirement at proposed paragraph 29(2)(c),
that information included in an application be verified by statutory
declaration, is intended to protect against fraud in the scheme due to the
related penalties for making a false declaration.
However, many submitters and witnesses questioned the need for this
requirement as it may be difficult for many survivors to arrange, particularly those living in rural and remote communities. Anglicare WA told
the committee that:
Access to independent people who can sign Statutory
Declarations in remote communities may be limited and survivors may be
reluctant to approach their closest signatory because of confidentiality
Submitters and witnesses reiterated that the scheme's evidentiary
process should be survivor-focused, non-legalistic and minimise
Operator powers to request further
Proposed clause 69 of the bill gives the operator of the scheme powers
to request further information from an applicant where there are 'reasonable
grounds to believe that the person has information...that may be relevant to
determining the application'. Proposed clause 70 also sets out a parallel provision to clause 69 for the
operator to require information from institutions or other persons that may be
relevant to determining an application.
Proposed clause 71 provides consequences for where information is not
provided by an individual or institution in accordance with clauses 69 and 70,
including civil penalty and reports of non-compliance to Parliament.
Although not specifically outlined in the Redress Bill, the Explanatory
Memorandum also clarifies that, where information is not provided when required
under clauses 69 and 70, the operator may make a decision about an application
in the absence of that information.
Clauses 69 and 70 each propose a minimum period of 14 days for the
production of documents after a request. The Explanatory Memorandum notes that
in each instance, 'it would be open to the Operator to allow a longer time
period' and that extensions may be granted before the end of the production
period in accordance with subclauses 69(7) and 70(7).
However many submitters have recommended that the production period be
longer than this minimum.
Survivor groups have made a number of comments about obtaining documents
and evidence from institutions for both redress and litigation purposes. CLAN
commended the requirement that institutions must provide documents when
requested, noting that documents are often delayed or withheld by institutions
for myriad reasons. However, there are concerns that documents will still be delayed and that this
could hold up or impact upon application processing:
I am extremely worried about the redress scheme requesting
records from the past providers, the churches and charities. The Salvation Army
are delaying sending out records by months. Already, Catholic Care in Bankstown
have told us there is a six-month delay for records. What happens in July when
all these care leavers flood the redress scheme and the redress scheme requests
files? Are care leavers going to die while past providers send these files or
look for the records when they have been destroyed?
Anglicare WA stated that 14 days to produce additional information is
'entirely insufficient' where documents need to be sourced by post from
interstate, and particularly where an applicant is based in a rural or remote
The Law Council expressed concern that the 14 day minimum period could
become the default in production orders and noted that the wording of 69(5) and
70(5) allows extensions only in 'exceptional circumstances'. The Law Council
that there are many ordinary circumstances where 14 days would be insufficient
for a survivor to produce documents and that 'exceptional circumstances' are
not defined in the Redress Bill. The Law Council recommended that the test for
extension of that time period be 'reasonable grounds' instead of 'exceptional
circumstances' and that 28 days would be a more appropriate minimum time limit.
Other submitters variously recommended that the 14 day minimum time limit
be expanded to 30 or 60 days, or at least 3 months.
Legal consequences of providing, or
not providing, documents
The Law Council raised concerns about the possibility of the provision
at subclause 71(1) being used to bring a civil penalty against a survivor who
failed to provide a document under clause 69, stating that:
As the purpose of the Scheme is to provide compensation and
other forms of redress to survivors, it seems inimical to that objective to
apply a civil penalty to a survivor for failure to complete their own
application for compensation.
Furthermore, The Law Council raised that 71(3) could potentially remove a
survivor's right to claim privilege against self-incrimination.
knowmore indicated that the provisions of the bill relating to
documentation may have some unintended legal consequences when survivors are
requested to provide further documents to support their application:
- That in needing to disclose the quantum of previous settlement payments,
providing that figure may be in breach of other deed of settlement or release
provisions, such as confidentiality clauses.
- That in providing copies of statements or transcripts of evidence, made
where a complaint was made to police about an incident of abuse, providing that
information may 'breach statutory provisions and/or court orders about identification
of complaints and accused persons in criminal matters'.
knowmore have recommended that the Redress Bill be amended to clarify
that such situations would not adversely impact on a survivor's ability to
provide full information to the operator.
Institution involvement in document
Some institutions have raised concerns about their ability to provide
documents under clause 70 and their rights under clause 71.
The Department of Home Affairs has reported that, as some incidents
occurred many years ago, it 'may no longer have the information or the
information may be difficult or impossible to find if the information supplied
by the claimant is not correct' and that this could increase the risk of fraud
The Catholic Church's Truth Justice and Healing Council has recommended
that it should be compulsory to seek information from accused institutions as
part of the application process and institutions should be granted access to
all protected information held by the operator regarding an application. As part of this, the Truth Justice and Healing Council has also recommended
that clause 70 be amended to place an obligation on the operator:
...to seek information, from the relevant institution both in
the nature of any relevant background and an opinion in relation to whether the
participating institution considers itself to be 'responsible' in the course of
considering an application for redress.
Furthermore, the Truth Justice and Healing Council have suggested that
the inclusion of penalties for noncompliance under clause 71 is 'unreasonable' and
will act as a disincentive for institutions to opt in to the scheme. The Truth
Justice and Healing Council suggested that opting in to the scheme is
sufficient proof of an institution's motivation to cooperate and comply.
Mr Luke Geary, representing the Salvation Army Australia, expressed a
view that, in order for transparency in the processes of the scheme and for reassurance
that all relevant information provided under these clauses has been used in
decision-making, an un-redacted copy of the full redress offer decision should
be provided to both the survivor and the responsible institution.
The Redress Scheme is intended to have a low evidentiary threshold in
order to achieve its goals of survivor focus and harm minimisation and to
provide access to people who may not have the evidence available to them at
levels required for civil litigation.
The committee is of the firm belief therefore, that the process for
survivors to provide supporting documents, either at the start of an
application or additionally as requested, should be as non-adversarial as
possible in order to avoid any further traumatisation.
The committee recognises concerns about the ability of some survivors,
particularly in rural and remote areas, to access a statutory declaration
process that protects their privacy. This issue should be given greater
consideration by the Department or scheme operator.
The committee also notes concerns about the minimum timeframe for the production
of additional documents and the impact of this on survivors' access to the Redress
Scheme. The committee considers that timeframes for the production of documents
should be set as appropriate in each circumstance and that it may be
appropriate to change the test for an extension of time from 'exceptional
circumstances' to 'reasonable grounds' in order to enable easier access and
improve the survivor focus of this aspect of the Redress Scheme.
The committee also notes concerns about unintended legal consequences
for survivors of providing documents to support their applications. Again, this
is an issue that requires greater consideration by the Department or scheme operator,
particularly to achieve the goal that redress should avoid harming or
traumatising the survivor.
Finally, while the committee is cognisant of those concerns posed by
institutions who may be required to provide documents or information to the
Redress Scheme, it wishes to reiterate the purpose of this Redress Scheme is to
provide an avenue for justice for those survivors who are unable to access
civil litigation for various reasons. Documentation will be sought by the scheme
operator to inform their decision-making process, not to provide an avenue for
institutions to investigate or challenge the veracity of a survivor's claim.
Disclosure of documents and privacy
Part 4-2 of the Redress Bill sets out provisions for protecting
information under the scheme and for authorised disclosures of information in a
variety of circumstances. Clause 77 permits disclosure of information by the
operator in certain circumstances, such as in cases of public interest, or to
various government authorities.
Clause 77 does not require that the operator have regard to the impact
the disclosure might have on a person who has applied for redress, making it
broader in nature than similar clauses within this part of the Redress Bill,
and this was criticised by a number of submitters.
Blue Knot Foundation stressed that disclosure in the public interest
needs to be 'balanced against a survivor's rights to confidentiality'.
The Law Council explained that clause 77 was inconsistent with clauses
78 and 79, which both contain a subclause (3) requiring 'regard to the impact' on a
person. This was also observed by the Scrutiny committee.
The Australian Human Rights Commission recommended that clause 77 be amended:
...to stipulate that, prior to disclosing information under
proposed s 77, the Operator consider the impact that disclosure may have on a
person to whom the information relates.
The Human Rights committee also raised concerns that clause 77 as
drafted limits a person's right to privacy, however the statement of
compatibility in the Explanatory Memorandum states that in relation to the
right to protection against arbitrary or unlawful interferences with privacy:
The information sharing provisions of the [Redress] Bill are
necessary to achieve the legitimate aims of assessing eligibility under the
Scheme and protecting children from abuse, and are appropriately limited to
ensure they are a proportionate means to achieve those aims.
The Minister also responded to the concerns of the Human Rights
committee, confirming that disclosure powers would only be used after careful
consideration and that clause 77 has been drafted 'to reflect similar provisions
in other legislation within the Social Services portfolio'. Furthermore, the Minister
I will consider including a positive requirement for rules in
the National Bill, including a requirement that the Scheme Operator must have
regard to the impact the disclosure may have on a person to whom the
The Department confirmed on notice that further consideration is being
given to including a provision in clause 77 similar to that in subclause 79(3).
The committee notes submitters' concerns about privacy and disclosure of
documents. The committee is satisfied by comments from the Minister and the
Department that these issues have been considered and that 'regard to the
impact' of such disclosures under clause 77 may be included in a future national
Part 4-4 of the Redress Bill sets out provisions for the appointment of
and interaction with nominees acting on behalf of an applicant.
Australian Lawyers Alliance has suggested that it would useful for the
bill to more clearly state the purpose of nominees within the scheme, to
include criteria by which the nominee is appointed, and avenues for reparation
where a nominee is appointed against an applicant's wishes.
People with Disability Australia (PWDA) also noted that the appointment
process for nominees is not clearly articulated in the Redress Bill, nor is
there a review process where a nominee has been appointed.
PWDA have informed the committee that nominee provisions in legislation
'routinely limit the participation of people with disability in decision-making
about their lives and rights'
Specifically, PWDA noted that the Redress Bill requires that nominees
act in the 'best interests' of the principal, rather than in accordance with
their will and preferences, and that this 'focuses on the substitute
decision-maker' rather than on the survivor. The organisation explained that:
It is our position that the wishes of the principal [i.e. the
person applying for redress] should always be paramount. Indeed, payment and
correspondence nominees must only be appointed if it is the direct will and
preference of the principal for this to occur. Instead, survivors should be
provided with any and all decision-making supports they may require for them to
express and implement their will and preference.
PWDA recommended that the appointment of a nominee should be a 'last
resort' option when 'every other opportunity has been given to the person to
The Department confirmed that there is no requirement for a person with
disability to establish a nominee relationship in order to access the scheme
and explained that:
The reason that the consent of the principal is not required
in the legislation is ensure that survivors who cannot provide consent are not
prohibited from accessing the Scheme.
The Department has acknowledged concerns about the appointment of
nominees and informed the committee that the department is 'carefully looking
at what might be the appropriate provisions' for people with disabilities and
other individuals who may require these kinds of supports in accessing the
The committee is satisfied that the Department is aware of concerns
about the appointment and function of nominees within the Redress Scheme and is
appropriately considering and reviewing those provisions of the Redress Bill.
Offers and acceptance of redress
Submitters and witnesses made a number of criticisms about the process
for acceptance of offers set out in Part 2-5 of the Redress Bill, specifically
in relation to timeframes for acceptance of offers.
Further issues relating to offers of redress, including the contents of
a redress offer, the legal advice provided in relation to an offer, and
requirements related to signing a deed of release, are discussed in chapter
Clause 38 sets that the acceptance period for offers of redress is
'determined by the Operator', 'must be at least 90 days, starting on the date
of the offer' and can be extended by the scheme operator either on the scheme operator's
own initiative or by request of the applicant. Subclause 37(2) states that the
'offer expires at the end of the acceptance period' and subclause 42(2) states
that an offer can also be declined 'by not accepting the offer within the
There is a widespread concern that the 90 day minimum acceptance period
is too short a time for survivors to consider and accept an offer of redress. This
was raised in particular for people with disability or complex health concerns, and rural, regional and transient populations. Miss Miranda Clarke from the Centre Against Sexual Violence Inc. told the
committee how receiving an offer could affect a survivor and described some of
the issues faced by survivors which may prevent them being able to accept an
offer in this proposed time frame:
I understand that for someone who's gone through a fairly
normal life, for someone who hasn't experienced complex trauma, three months
would be an appropriate time frame to get legal advice and counselling and to
talk with their family. For someone who's gone through complex trauma, getting
that offer is going to be highly traumatic for them. It's going to bring up
maladaptive core beliefs. It's going to be basically
placing a value on the abuse that they suffered, and that's going to be really challenging
for that person to process.
People who go through childhood sexual abuse are often
plagued by suicidal ideation and self-harm, mental health issues, financial
distress, unstable living environments and homelessness, abusive relationships
and issues with drugs and alcohol, as well as relationship issues. It's highly
like that, if you give someone three months to respond, they might not even
have got your response by then because they've moved and they've lost their
mobile phone and can't afford to replace it, and they haven't provided a
CLAN noted that not everyone will need a longer timeframe and that some
survivors will still make a decision as soon as possible after receiving an
Some people won't need the longer time. They're elderly and
they are dying. If there are three months to make a decision then they will
make the decision—as soon as possible, a lot of them. But for people who
require more time then three months is not long enough. We need to give them
12 months in which to decide whether they accept. This is about signing
away your legal rights. You can no longer go and take a civil action.
The Law Council described the decision which survivors would be required
to make, in particular the decision 'to renounce the right to a civil claim
against an institution', to be one with 'serious legal, financial and emotional
Legal groups told the committee that 90 days may be insufficient time for
survivors to seek legal advice, or for legal firms to provide such advice. Miss Michelle James, Principal at Maurice Blackburn Lawyers, told the
It's a wholly inadequate time period, taking into account the
nature of the injuries that these people are dealing with. When you add into
that that, even if they felt well enough to speak with a lawyer and get
adequate legal advice about the amount of the offer that they've been given, as
has been said by earlier witnesses, the nature of the evidence gathering, the
questioning that we need to do as lawyers to provide that advice, is impossible
to do with any certainty and with any accuracy in a 90-day time frame. We would
rely on the recommendation of the royal commission and say that a year is a
more reasonable time frame.
This proposal of one year to make a decision about an offer, recommended
by the Royal Commission, was supported by most submitters and witnesses who
were unhappy with 90 day minimum timeframe.
At the hearing on 6 March 2018, the Department told the committee that,
in relation to the 90 day minimum timeframe for accepting offers of redress:
We have taken on board the submissions that have been made to
this inquiry and the discussion that we had last time, and we are looking at
movement on that. There's not a final landing, but we are certainly looking at
lengthening the time period, based on the submissions and discussions we had
The committee acknowledges concerns that the 90 day minimum period for
accepting an offer of redress is insufficient and is satisfied that these
concerns will be resolved by the Department ahead of the commencement of the
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