This chapter outlines the provisions of the National Redress Scheme for
Institutional Child Sexual Abuse Bill 2018 (National Redress Bill) and the National
Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments)
Bill 2018 (National Consequential Bill) in more detail, discusses concerns
raised by submitters, and presents the views of the Community Affairs
Legislation Committee (committee).
As discussed in Chapter 1, the bills under examination are significantly
similar to the preceding Commonwealth Redress Scheme bills—the Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (Commonwealth
Redress Bill) and the Commonwealth Redress Scheme for Institutional Child
Sexual Abuse (Consequential Amendments) Bill 2017 (Commonwealth
The committee notes that the changes in the National Redress Bill from
the previous Commonwealth Redress Bill can largely be categorised as follows:
- New provisions and minor updates to existing provisions reflecting the
now-national nature of the Scheme proposed, including provisions relating to
participating jurisdictions and the referral of constitutional powers from the
- New provisions and minor updates to existing provisions relating to the
psychological and counselling services available under the scheme, reflecting
the introduction of a psychological and counselling services payment as an
alternative access mechanism to these services for survivors.
- Other new provisions, or provisions otherwise significantly altered from
the Commonwealth Redress Bill, relating to:
- the eligibility of survivors for redress, including those survivors with
criminal convictions or who are subject to security notices;
- the participation of institutions in the Scheme, including groups of
institutions and defunct institutions;
- timeframes for production of documents, acceptance of offers and
requests for review;
- the role of nominees;
- funding and financial matters, including funders of last resort; and
- other administrative aspects of the Scheme, including the National
Redress Scheme Rules, annual reporting and reviews.
- Changes in chapter, part or section numbers following reordering of
existing, or inclusion of new, provisions in the bill, and minor text changes
related to this reordering.
- Other minor text changes which do not change the intent or operation of
a provision, such as restructuring a paragraph into bullet points or updating
the title of the bill.
The committee also notes that the National Consequential Bill is
identical to the previous Commonwealth Consequential Bill except for the
addition of two new schedules (schedules 4 and 5) and minor text changes to
reflect the new bill title.
The committee has focused its examination largely on those parts of the
National Redress Bill and the National Consequential Bill which are entirely
new, have been subject to a significant change or have otherwise been subject
of continued debate or concern among submitters since their introduction in the
previous Commonwealth Redress Scheme bills.
Establishing the National Redress Scheme
The National Redress Scheme will commence on 1 July 2018 and will be operated by the Department of Social Services (Department), with the
Secretary of the Department acting as the Scheme Operator (Operator).
At the committee's Budget Estimates 2018–19 (Senate Budget Estimates) hearing
on 1 June 2018, the Department told the committee that all aspects of service
delivery are in place for this commencement date, pending the Commonwealth
Parliament passing the legislation. Furthermore, the Department noted that any
changes to the bills proposed would require renegotiation with states and
territories, as well as non-government organisations, and would prevent the
Scheme commencing on 1 July 2018.
The National Redress Bill sets out several guiding principles for the
actions of the Operator and other officers of the Scheme. These include that:
- redress should be survivor-focused; and
- redress should be assessed, offered and provided:
- with appropriate regard to:
- what is known about the impact and nature of child sexual abuse,
particularly institutional child sexual abuse;
- the cultural needs of survivors; and
the needs of particularly vulnerable survivors;
in a way that avoids, as far as possible, further harm or trauma
to the survivor; and
- in a way that protects the integrity of the Scheme.
Submissions made to the committee were broadly positive and supportive
of the establishment of a National Redress Scheme and its survivor-focused
intent. While some organisations have raised concerns regarding aspects of the bills,
most have expressed views that the Scheme is an important step towards
reparation for the abuse suffered by children while in the care of
The committee notes the significant updates, discussed below, which have
been made to the bills for the National Redress Scheme in order to better meet
the Scheme's guiding principles and to enable the Scheme to commence on time.
Participating institutions, groups and jurisdictions
The role of participating states, territories, and institutions is
crucial to the provision of redress to survivors under the National Redress
Scheme and underpins much of its function.
Chapter 5 of the National Redress Bill sets out how institutions and
jurisdictions participate in the Scheme. Since the introduction of the Commonwealth
Redress Bill, the provisions of this chapter have been amended to reflect the
now-national application of the Scheme. The provisions relating to the opt-in
of states to the Scheme were discussed in Chapter 1 of this report.
For a survivor to be eligible for redress under the Scheme, a
participating institution must be responsible for their abuse. All institutions
participating in the Scheme will fall into, and will be subject to rules made
for, one of the following categories: Commonwealth institutions, participating
state institutions, participating territory institutions, and participating
non-government institutions. An institution becomes a participating institution, or ceases to be a
participating institution, by declaration by the Minister; however, all
Commonwealth institutions are participating institutions automatically.
The National Redress Bill includes new provisions setting out the
participation of defunct institutions, lone institutions (non-government institutions not participating as part of a
group), and groups of institutions.
Participating and non-participating
Submitters raised a small number of concerns about the new provisions
governing defunct institutions.
The National Redress Bill provides that a defunct institution can
participate in the Scheme, and that a nominated representative for that
institution is subject to any obligation or liability imposed on the
institution under the Scheme. However where an institution is defunct and does not have a representative, it
may instead be listed as a defunct institution for one or more jurisdictions.
If a jurisdiction's government institution is equally responsible with the
defunct institution for the abuse of a survivor, that jurisdiction is subject
to funder of last resort provisions, detailed further in this chapter.
Submitters have raised concerns about survivors whose abuse in a defunct
institution was not the equal responsibility of a jurisdiction, noting that
these survivors will not be eligible under the Scheme as written. The submission from Australian Government Departments explained that the
National Redress Bill 'provides a clear mechanism to allow existing
institutions to take responsibility for defunct institutions, therefore
maximising participation in the Scheme'. Furthermore, the Australian Government response to the committee's previous
inquiry (Government Response) noted in response to a recommendation from Australian
Labor Party Senators about defunct institutions:
The Commonwealth, state and territory governments have agreed
that the 'funder of last resort' arrangements should only apply where the
respective government had some very real responsibility for the abuser having
contact with the child. The Australian Government does not have power to act as
'funder of last resort' for non-government institutions where there is no level
of responsibility or link to a constitutional limb.
Encouraging institutions to join
At the date of reporting, six major non-government organisations had
announced their commitment to join the National Redress Scheme: the Catholic Church,
the Anglican Church, the Uniting Church, the Salvation Army, YMCA and Scouts
Several submissions recommended that non-government institutions be
given greater encouragement to join the National Redress Scheme. The Australian Lawyers Alliance recommended that the charitable status of
non-government institutions be linked to their participation in the Scheme, while the Law Council of Australia recommended that a right of review for
participating institutions may '[enhance] institutional faith in the integrity
of the Scheme'; this recommendation is discussed later in this chapter.
In its Commonwealth Redress Scheme for Institutional Child Sexual
Abuse Bill 2017 [Provisions], Commonwealth Redress Scheme for Institutional
Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions] Report
(Commonwealth Redress Scheme Bills Report), the committee also recommended that:
...the Australian Government should consider reducing the
two-year deadline for institutions to opt in to the Redress Scheme, and should
consider options to encourage greater participation in the Redress Scheme...
The Australian Government responded to this recommendation with partial
agreement, noting that non-government institutions are being encouraged to
participate and that the two-year deadline for participating institutions:
...balances the need to provide survivors certainty that
institutions are participating in the Scheme, with the need to provide
non-government institutions adequate time to ensure they have the appropriate
processes in place to be able to participate in the Scheme.
The committee commends those non-government organisations which have
joined the National Redress Scheme to date, and encourages other non-government
organisations to join the Scheme.
Entitlement, eligibility and scope
Part 2-2 of the National Redress Bill makes provisions for entitlement
and eligibility for redress under the National Redress Scheme, as well as
defining when abuse is within the scope of the scheme and when institutions are
responsible for abuse. While this part of the bill is largely unchanged from
the Commonwealth Redress Bill, the following amendments have been made:
- Clarification about what abuse is in the scope of the Scheme, reflecting
its new national nature.
- Clarification of what redress is provided to a person, reflecting the
introduction of a payment for psychological and counselling services.
- The introduction of two new eligibility criteria which require that the redress
which would be payable under the Scheme's assessment framework for the kind of
abuse be more than nil; and that one or more participating institutions are responsible for the abuse. 
- The introduction of new provisions that person is entitled or not
entitled to redress, or that their abuse is within scope or not within scope of
the Scheme, if prescribed by rule. These provisions mirror existing provisions about prescription of rules
relating to eligibility and are discussed below.
- A new clause relating to the responsibility of institutions for abuse,
which has been significantly updated from the Commonwealth Redress Bill and is also discussed below.
Additionally, Chapter 3 of the National Redress Bill sets out special
rules to deal with entitlement and eligibility in exceptional cases. While
provisions relating to circumstances where an applicant dies before a determination
is made or an offer accepted are mostly unchanged from the Commonwealth Redress Bill, new clauses have been
- Make survivors whose abuse occurred in a non-participating state
eligible for redress if a Commonwealth or participating territory institution
Apply special assessment for survivors with serious criminal
- Make survivors not entitled to redress if they are subject to a security
notice currently in force from the Home Affairs or Foreign Affairs Minister.
The new provisions relating to criminal convictions and security notices
are also discussed in detail below.
Kinds of abuse and excluding
non-sexual child abuse
The exclusion of other forms of non-sexual child abuse—such as physical,
psychological, emotional and cultural abuse—from the Scheme was raised in the
previous inquiry and remained a key theme through a number of submissions to this inquiry.
In introducing the National Redress Scheme bills into the House of
Representatives, the Minister explained that:
While a person must have suffered sexual abuse to be
eligible, the scheme will also acknowledge related non-sexual abuse, for
example physical abuse. Sexual abuse rarely occurs in isolation and it is
important to deal with the whole of the survivor's experience.
The committee refers to its discussion of this issue in its Commonwealth
Redress Scheme Bills Report and wishes to reiterate its comments. 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 National Redress
The committee is strongly supportive of the establishment of the
National Redress Scheme to address historic cases of institutional child sexual
abuse and remains of the view that the impacts of non-sexual abuse, although
not addressed by the Scheme, still require thought and focus from all levels of
government and Australian society in general.
Rules to determine entitlement and
Clauses 12, 13 and 14 of the National Redress Bill each include
provisions that allow entitlement, eligibility or scope to be determined by
A number of submitters to this inquiry, as well as witnesses and
submitters to the previous inquiry, have criticised the use of rules in the
National Redress Scheme. Submitters either expressed concern that the rules are not currently available
for scrutiny, or otherwise recommended that all matters to be contained in rules should be
included in the primary legislation.
The committee made a recommendation in its Commonwealth Redress Scheme
Bills Report that:
...the Department should ensure that planned consultations on
the rules of the Redress Scheme include survivors' representative groups, and
ensure information on rules is communicated as it becomes available.
The Government agreed with this recommendation, noting in its response
that both the Government and the Department have consulted with representatives
of survivor groups in developing the National Redress Bill and rules.
The submission from Australian Government Departments explained that the
rules cannot be tabled before the National Redress Bill passes the Parliament
and receives assent. However, in response to this recommendation and noting concerns about the content
of the rules, the Department has developed a 'fact sheet' explaining how the
rule making powers in the National Redress Bill are intended to be exercised.
This fact sheet was provided in the submission from Australian Government Departments
and outlines the key policies proposed for the rules.
Additionally, the Explanatory Memorandum for the National Redress Bill (Explanatory
Memorandum) notes that the use of rules allows for flexibility and timeliness
in the operation of the Scheme:
The need to respond quickly to survivor needs is a key
feature of the Scheme as many survivors have waited decades for recognition and
justice. The use of rules rather than regulations provides the necessary
flexibility to respond more quickly to unforeseen factual matters as they
arise, because rules can be adapted and modified more quickly than regulations
or Acts. Prescribing in the Bill or rules that a person is eligible under the
Scheme confers a benefit on a survivor to receive redress quickly...There may be
classes of survivors that the Scheme has not, or could not, envisage [sic] to include
in the Bill, whom can be accommodated via this rule making power. This ensures
participating institutions are able to provide redress to all survivors of
abuse for which the institution is responsible.
Rules for non-citizens and child
One of the criteria for eligibility for the Scheme is that the survivor
is either an Australian citizen or an Australian permanent resident. Some
submitters to the inquiry were concerned that this will mean that former child
migrants, who may not be Australian citizens, or children who were abused in
Australian immigration detention centres, are excluded from the Scheme. These concerns were discussed in the Commonwealth Redress Scheme Bills Report.
The Explanatory Memorandum states that rules may be prescribed to allow
people with other citizenship status, including former child migrants who are
no longer residing in Australia, or children abused in Australian institutional
settings outside Australia who are not citizens or permanent residents, to
In response to the recommendation by Australian Labor Party Senators in
the previous inquiry that all survivors, including those who do not live in
Australia, be eligible for redress, the Government clarified that:
With regard to the eligibility of survivors who do not live
in Australia, only people who are Australian citizens or permanent residents
will be able to apply for redress. This is in line with other government
entitlements. Non-citizens and non-permanent residents will be ineligible to
ensure the integrity of the Scheme.
The committee notes submitters' concerns about the use of delegated
legislation to determine eligibility and entitlement for redress under the
National Redress Scheme. However, the committee is satisfied that the
prescription of rules is appropriate to achieve flexibility and timeliness in
When is an institution responsible
During the committee's inquiry into the Commonwealth Redress Scheme
bills, several submitters raised concerns about how institutions would be found
to be responsible for abuse under the Scheme.
Clause 15 of the National Redress Bill sets out when an institution
participating in the Scheme is responsible for abuse. An institution is
responsible for a survivors abuse (whether participating in the Scheme or not)
if it was primarily responsible or equally responsible for an abuser having
contact with that survivor.
This clause is substantially similar to the corresponding clause in the Commonwealth
Redress Bill, but has been updated as follows:
- 'Primarily responsible' and 'equally responsible' have now been more
- The circumstances that might be relevant for determining the
institutions responsibility are more detailed in relation to responsibility for
care, custody, legal guardianship and placement of the child into the
Additionally, the Explanatory Memorandum sets out a number of
circumstances where the Operator will determine by rule that an institution is
responsible, or not responsible, from the start of the Scheme. These include
situations where a government institution had parental responsibility for the
child, or the child was a state ward, and the abuse occurred while the child
was in the care of a non-government institution; where a
survivor's abuse was connected with their membership of a defence cadet unit
provided for by Commonwealth legislation; or where the only connection between a
government institution and a survivor's abuse was that it regulated or funded
the responsible institution, or that the responsible institution was
established by or under the law of the relevant government.
The Explanatory Memorandum notes that the rule-making power in this
clause will ensure that institutions that should be responsible are held
responsible, but that institutions are not found responsible in unreasonable
Special assessment for survivors
with serious criminal convictions
During the committee's inquiry into the Commonwealth Redress Scheme
bills, the Australian Government had indicated that applicants with criminal
convictions may be excluded from the Scheme by way of rule. The committee
received a wide range of evidence from submitters and witnesses relating to
this proposed exclusion and made a detailed consideration in its report, recommending:
...in finalising the position on the exclusion of serious
criminal offenders from the Redress Scheme, the Australian, state and territory
governments should consider the value of the Redress Scheme as a tool for the
rehabilitation of offenders, and that excluding criminal offenders can have the
unintended consequence of institutions responsible for child sexual abuse not
being held liable.
The Australian Government agreed with this recommendation.
The National Redress Bill introduces a new special assessment for
applicants with serious criminal convictions. A person is not entitled to
redress if they have been sentenced to imprisonment for 5 years or longer for
an offence against a state, territory, Commonwealth or foreign law, unless the
Operator determines otherwise. The Minister described that this limitation is in order to 'maintain integrity
and public confidence in the Scheme', but noted that a special assessment of
survivors with these convictions would 'ensure the scheme retains flexibility
and is able to meet prevailing community standards'.
Where the Operator becomes aware of a survivor's sentence, they must
seek advice from a relevant Attorney-General or other nominated official about
that offence and whether providing that survivor with redress would not:
- bring the Scheme into disrepute; or
- adversely affect public confidence in, or support of, the Scheme.
The Operator may then determine that a survivor is not prevented from
being entitled to redress if they are satisfied that providing the survivor
with redress would not result in either of the above conditions. The Operator
must take into consideration the nature of the offence, length of sentence,
length of time since the offence, the survivor's rehabilitation, any other
relevant information and, with a greater weight, advice from the relevant jurisdiction.
Submissions received in this inquiry have criticised the limitations
placed on survivors with criminal convictions accessing the Scheme, with many
organisations making similar arguments to those raised in the previous inquiry
about the relationship between abuse and later criminality. However, a number of submitters have also praised the Government's approach in
these provisions, supporting assessment of individual cases by the Operator and
Independent Decision Makers.
The Department has confirmed that assessment of applicants with a
serious criminal conviction is:
...a decision of all governments and balances the need for the
scheme to recognise the impact that childhood abuse can have on a person's life
with the need to ensure the scheme is not brought into disrepute.
Survivors subject to security
The National Redress Bill also introduces restrictions on entitlement
for redress where a survivor is subject to a security notice from either the
Home Affairs Minister (where a person's visa has been cancelled on security
grounds, where a redress payment may be used to prejudice the security of
Australia or a foreign country) or the Foreign Affairs Minister (where the
minister refuses to issue, or cancels, an Australian travel document for reasons
relating to harmful conduct).
The National Redress Bill sets out some administrative provisions
relating to these security notices, including that:
- Notices should be given to the Operator and to the Secretary of the
Human Services Department, are in force until revoked, will be subject to
annual review, and may be revoked by written notice.
- Where a survivor becomes subject to a security notice:
- after making an application and before an offer has made, the application
is taken to be withdrawn;
- after an offer is made but before an offer is accepted, declined or
withdrawn, the offer is taken to be withdrawn.
The Explanatory Memorandum notes that restricting entitlement to redress
in this way ensures that people:
...assessed to be engaged in politically motivated violence
overseas, fighting or actively supporting extremist groups, or...likely to engage
in conduct that might prejudice the security of Australia or a foreign country,
would not be entitled to redress under the Scheme.
Some submitters told the committee that while they note the security
risk of providing monetary redress to certain people, these security risks do
not negate the impact of abuse, and that non-monetary aspects could still be
made available to these survivors. Relationships Australia further proposed that access to counselling and
psychological services could include countering violent extremism.
The submission from Australian Government Departments explained that
'not every person whose passport or visa has been refused or cancelled would
lose access to redress', but that the provisions would apply in cases where justified
on security grounds, and that these arrangements align with Australia's
existing counter-terrorism legislative framework, mirroring legislation
relating to social security payments.
The committee is satisfied that these provisions, as well as those
relating to survivors with criminal convictions, which have been proposed and
agreed by the state, territory and Commonwealth governments, will balance the
need for fair and equitable access to redress for all survivors while maintaining
public confidence in the Scheme.
Applying for and accepting offers of redress
The National Redress Bill sets out a number of provisions which outline
how to obtain redress under the Scheme, how redress is determined, how offers
of redress are made and accepted, the provision of redress, and reviews of
Applications for redress
The committee notes that the application process set out in the National
Redress Bill differs from the process provided in the Commonwealth Redress Bill
in a number of respects.
Clause 19 sets out the requirements that must be included in an
application for redress. These requirements are substantially similar to the
previous bill, but now also include a requirement that an application specifies
where the person lives. Some submitters have observed that the new requirement
that an application specify 'where the person lives', if requiring a residential street address, may have unintended impacts on the
ability for homeless survivors to apply to the Scheme.
Clause 20 is new to the National Redress Bill and provides that an
application cannot be made to the Scheme if the survivor has already made an
application to the Scheme, is subject to a security notice, or is a child who
will not turn 18 before the Scheme sunset date. An application also cannot be
made if the survivor is in gaol or if it is made in the 12 months before the
Scheme sunset date, but the Operator may determine in those instances that
there are exceptional circumstances justifying an application being made.
Single application to the Scheme
A number of submitters reiterated their concerns from the previous
inquiry that only allowing a single application to the Scheme could have
unintended negative consequences for survivors, particularly where a survivor
applies before all responsible institutions sign up to the Scheme, or the
survivor later recalls abuse which they did not include in their application.
The Australian Government did not agree to the recommendation by
Australian Labor Party Senators in the previous inquiry that the number of
applications survivors are permitted to submit be reconsidered. The Government
Response explained that with only a single application permitted:
...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.
Additionally, at Senate Budget Estimates, the Department informed the
committee that in order to support a single application from each survivor,
applications will be accepted even if an organisation has yet to opt into the
Scheme and that the survivor will be contacted 'by a real person' to explain
the status of their application. Applicants will also be contacted and
supported at each step of the process.
Submitters to the inquiry have disagreed with introduction of a new restriction
on incarcerated survivors being able to apply Scheme. However, the Minister noted that such a restriction is necessary as it will not
be possible 'to deliver many aspects of the scheme to incarcerated survivors'.
The submission from Australian Government Departments further explained
that there are 'risks associated with the confidentiality of applicants in a
closed institutional setting such as a prison which may lead to health and
safety risks to vulnerable people'.
Operator discretion to accept an application from an incarcerated person
in exceptional circumstances, such as if the applicant is likely to remain in
gaol until after the Scheme sunset date, has been positively received by
The Commonwealth Redress Bill allowed all children to apply to the
Scheme, however during the committee's previous inquiry, as well as during
Australian Government consultation with jurisdictions, concerns were raised
that legal protections for these child applicants were not sufficient, that a
child may not fully understand their rights, and that the full impact of a
child's abuse may not be realised until much later in their life.
The National Redress Bill now provides that only those child survivors
who turn 18 before the Scheme sunset date are able to make an application to
the Scheme. It also allows the Operator to make rules about the process for
those applications. The Explanatory Memorandum explains how the application
process will operate for this cohort:
Children who will turn 18 throughout the life of the Scheme
may apply for redress; however, their application will not be determined until
they reach 18 years of age. This will allow the Scheme to request information
from the responsible institution(s) at the time of the application to ensure
the information is current, especially in the circumstance where the
responsible institution may go defunct before the claim can be determined. Once
the child reaches 18, the survivor can choose to proceed with their
application, withdraw their application and reapply, or withdraw their
application completely. Those child survivors who are waiting for their redress
application to be determined will have access to the Scheme's support services
throughout this period.
The Explanatory Memorandum notes that for child survivors who will not
turn 18 before the Scheme sunset date, those children and their families will
still be able to access the Scheme's legal support services 'in order to
consider the child's legal rights, particularly if civil litigation may be a
The committee welcomes the updates to the National Redress Scheme to
protect children who wish to apply to the Scheme. The committee also notes that
the provisions relating to child applicants, as well as applicants in gaol,
will be subject to review, as discussed later in this chapter.
Obtaining information for the
purpose of determining an application
A number of concerns were raised during the committee's previous inquiry
about the 14-day timeframe for producing information requested by the Operator
for the purpose of determining an application. The committee made a recommendation in its Commonwealth Redress Scheme Bills
Report, part of which recommended that:
...in developing the minimum timeframes in the Redress Scheme,
for the provision of documents...the Department should consider the special
circumstances of survivors in remote communities, those with functional
communication barriers and survivors experiencing trauma or mental health
episodes linked to their abuse.
Clauses 24 and 25 in the National Redress Bill provide that the
production period for documents must be at least four weeks if the Operator
considers the application urgent, or eight weeks otherwise. The person or
institution subject to the request may also request to extend this production period. This update to the timeframe for production of documents has been praised by
The Commonwealth Redress Bill contained a provision where a refusal or
failure to comply with a request for the production of documents would have
attracted a civil penalty and there had been concerns raised in the previous
inquiry this could have unintended negative consequences for survivors. The committee notes that this provision has been removed from the National
Furthermore, the National Redress Bill now makes clear that the Operator
is not required to make a determination until information is received from an
applicant, but that an application may be progressed or a determination made if
information is not provided, or not provided on time, from a participating
institution. This clarification was previously contained in the Explanatory Memorandum, but
not the provisions, of the Commonwealth Redress Bill.
The National Redress Bill also introduces a new civil penalty for
providing false or misleading documents, information or statements to the
Scheme. The Explanatory Memorandum states that:
This civil penalty is justified to ensure that Scheme is
adequately protected against the risk of fraudulent applications. Large volumes
of false claims from organised groups could overwhelm the Scheme's resources
and delay the processing of legitimate applications....Should the Scheme not
safeguard against potential fraud, institutions may choose not to participate,
or may seek to leave the Scheme, leaving legitimate survivors unable to access
redress from those institutions. The level of the penalty is sufficiently high
to support the principle of deterrence, and ensure that applications made to
the Scheme are legitimate and appropriate.
However, some submitters have raised concerns about whether this
provision, and the implication that there is going to be organised fraud in the
Scheme, could make survivors nervous about making applications and not being
believed and may not meet the Scheme's goal of being survivor focused.
The committee is satisfied that the provisions for requesting supporting
documents under the Scheme are proportionate and sensitive to the needs of
survivors, while ensuring that the Operator and Independent Decision Maker have
sufficient detail to make an informed determination.
Approving applications and making determinations
Clause 29 of the National Redress Bill provides that the Operator must
make a determination whether to approve, or not approve, an application for redress
and sets out a comprehensive list of requirements if there is a reasonable
likelihood that an applicant is eligible for redress. This clause has been
subject to a number of updates since the Commonwealth Redress Bill and now
includes the following new provisions:
- Determination of whether the psychological and counselling services
component of redress will consist of a payment or of access to services
provided under the Scheme and, if it will consist of a payment, the amount of
- Where responsible institutions are part of a participating group,
determination of the associates of the responsible institution.
- Where the institution identified in an application is defunct and a
participating government institution in the same jurisdiction is equally responsible
for the abuse, determine the participating government institution as the funder
of last resort.
- Requirements for revoking a determination.
Specific concerns raised by submitters are considered below.
Revoking an offer of redress
Clause 29 of the National Redress Bill now includes provisions allowing
for rules that may require or permit the Operator to revoke a determination. Some
submitters have raised concerns about the provisions, including:
- that the clause does not require the Operator to give a reason for
revoking a determination; and
- whether, if a determination is revoked and therefore 'taken never to be
made', a survivor would be permitted to make a new application.
The Department's 'fact sheet' on the types of rules which are proposed
for the Scheme notes that rules relating to the revocation of determinations:
... will allow a determination to be revoked where the Operator
receives new information that affects the determination, and requires a
determination to be revoked where that information was about a payment made
after the determination. The Operator will be required to make a new
determination taking into account the new information.
Length of time for making a
Submitters observed that, while determinations are to be made 'as soon
as practicable', there is no specific time limit for determinations to be made
in the National Redress Bill.
At Senate Budget Estimates, the Department explained its anticipated
timeframe for most offers of redress would be 'around 10 to 12 weeks' and that
this would be reduced if the application was 'triaged because the person is
elderly or frail'. Furthermore, the Department expected that 'even the most
complex applications would be able to [be] processed within a 12-month period'.
Contents and availability of
The National Redress Bill sets out the method for determining the amount
and sharing of costs of the redress payment and psychological and counselling
component for a person. This determination will be made in accordance with the
assessment framework, a legislative instrument to be declared by the Minister.
The Explanatory Memorandum notes that this legislative instrument will not be
subject to disallowance:
... so that the method or matters to be taken into account for
the purpose of working out the amount of redress payment for a person are
certain for applicants to the Scheme and decision-makers. This declaration
would ordinarily be of an administrative character and would not be a
legislative instrument without this provision. However, in order to ensure
certainty and transparency it is appropriate to make this declaration a
Additionally, the National Redress Bill introduces a new provision that
the Operator may take into account assessment framework policy guidelines when
applying the assessment framework. Unlike the framework, these guidelines will
not be a legislative instrument. The Explanatory Memorandum sets out the reason
for this distinction:
These guidelines are of an administrative character, the
content of which will not be provided in a legislative instrument. The reason
for omitting detailed guidelines is to mitigate the risk of fraudulent
applications. Providing for detailed guidelines would enable people to
understand how payments are attributed and calculated, and risks the
possibility of fraudulent or enhanced applications designed to receive the
maximum redress payment under the Scheme being submitted. The Scheme has a low
evidentiary threshold and is based on a 'reasonable likelihood' test. These
aspects of the Scheme are important and provide recognition and redress to
survivors who may not be able or may not want to access damages through civil
While several submitters were critical that the framework is not currently
publicly available, the Department explained that it will be declared as an instrument once the
National Redress Bill passes and that it is currently being tested by communications
experts based on 'developmental research...undertaken with survivors and their
families and advocates'.
The amount of redress payment
It was discussed in detail in the Commonwealth Redress Scheme Bills
Report that the average anticipated payment to survivors is $76 000 (before
prior payments are taken into account). This proposed figure for the Scheme is
$11 000 more than the average proposed by the Royal Commission.
The National Redress Bill provides that the maximum amount of redress
payment is $150 000 in total, regardless of the number of responsible
institutions. This payment will go towards acknowledging and recognising the trauma and pain
of most extreme survivor cases. However, it is important to recognise that most recipients of redress will not
be eligible for the maximum amount. The committee notes it is important that
all official communications relating to the National Redress Scheme should
focus on the average payment amount and not the maximum amount.
The Australian Government has agreed with the committee's previous
recommendation that 'communication should reference the average payment amount
rather than focusing on the maximum redress payment'. This recommendation followed observations in the previous inquiry that focus on
the maximum payment raises expectations of survivors which may unintentionally
lead to further trauma.
Many submitters continue to advocate for a maximum payment of
$200 000 for survivors, while others reiterated an opinion that the Scheme should have a minimum or universal
The Australian Government explained, in its response to a recommendation
from Australian Labor Party Senators that $200 000 should be the maximum
payment, that a $150 000 maximum is supported by states and territories and
...balances the need to provide a payment that provides a
tangible means of recognising the wrongs suffered by survivors, while
encouraging institutions to opt in to the Scheme.
Submitters have also reiterated concerns about the indexation of prior
payments, particularly as many survivors have poor financial literacy and may not
understand why it is occurring, and because average and maximum payments are
not subject to inflation over the lifetime of the Scheme.
Although several of these submitters have recommended that indexation of
prior payments be removed from the National Redress Bill, the submission from Australian
Government Department noted:
In light of the recommendations by the Royal Commission that
the Scheme should adjust relevant payments for inflation, it is likely that a
number of key institutions would choose not to participate in the Scheme if
relevant payments were not adjusted to account for inflation.
The amount of counselling and
In the previous inquiry, many submitters raised concerns about how the counselling
and psychological component of redress would be funded and operate. The National Redress Bill now provides that the Operator must apply the
assessment framework to work out the amount of counselling and psychological
component for a survivor and that this amount must not be more than $5000.
While not specified in the National Redress Bill, the Intergovernmental
Agreement on the National Redress Scheme for Institutional Child Sexual Abuse (Intergovernmental Agreement) sets out three tiers of counselling and
psychological component agreed by participating jurisdictions: $1250, $2500 or
$5000, based on the severity of the sexual abuse. This money will either go
directly to the survivor to assist them in accessing services privately, or to
the participating state or territory where the survivor lives. That state or
territory will then have the responsibility to deliver counselling and
psychological services in accordance with National Service Standards included
in the Intergovernmental Agreement.
The delivery of counselling and psychological services by states and
territories, as well as the perceived adequacy of the counselling and
psychological payment, will be discussed later in this chapter.
Offers and acceptance of redress
A major concern raised in the previous inquiry was that the timeframe
for accepting an offer of redress, set at 'at least 90 days' in the
Commonwealth Redress Bill, was inadequate time for a survivor to properly
consider that offer, and the committee made a recommendation that the government consider changing
the period of acceptance from 90 days to six months. The National Redress Bill has increased the acceptance period to 'at least 6
months, starting on the date of the offer'.
Although some submitters have recommended that this acceptance period be
extended further to 12 months, the Government Response to the recommendation from Australian Labor Party
Senators on this matter in the previous inquiry notes that the Independent
Advisory Council on redress, jurisdictions and institutions determined that 12
months was 'too long for operational realities of the Scheme' and that
survivors will be able to request extensions in certain circumstances.
The clause which sets out what an offer of redress must contain has also
been updated to reflect changes to the counselling and psychological component of
redress and the types and responsibilities of participating institutions.
Deeds of release and liability for
institutions and officials
Under clause 42 of the National Redress Bill, a person who accepts an
offer of redress will be required to release responsible participating
institutions, and associates and officials of that institution, from liability
for the abuse for which redress is being provided. This deed of release will prevent the survivor, either as an individual or
within a group, from bringing or continuing any civil claim against those
responsible institutions relating only to that abuse.
When the bills for the Commonwealth Redress Scheme were first
introduced, the then Minister for Social Services, the Hon. Christian Porter,
MP, stated that:
The deed of release is perhaps the most important feature in
terms of encouraging those critical institutions to opt in to the scheme and
thus it is a mechanism by which we can ensure greater coverage for survivors as
without it institutions may be exposed to paying compensation through civil
litigation in addition to providing redress under the scheme and so might
decline to opt in to the scheme. The release will never preclude any criminal
liabilities of the institution or alleged perpetrator, nor provide release in
relation to any other abuse outside the scope of the scheme.
However, in the inquiry into those bills, the committee received
evidence that there was confusion about the operation of the deed of release
provisions and whether a deed of release sufficiently considers matters of
future liability, particularly in relation to individuals, and abusers,
associated with the responsible institution.
Clause 42 in the National Redress Bill contains significant updates from
the associated clauses in the Commonwealth Redress Bill and now clearly
identifies that the following institutions, associates and individuals will be
released from liability when an offer of redress is accepted:
- participating institutions determined by the Operator to be responsible
for the abuse of the person;
- participating institutions determined by the Operator to be associates
for those responsible institutions; and
- all officials of those responsible institutions and associates, but not
an officer who is an abuser of the person.
Furthermore, Clause 43 now specifies that a deed of release does not
release or discharge any other institution or person from civil liability for
the abuse and does not prevent the survivor from bringing or continuing civil
proceedings against another institution or person in relation to that abuse. Additionally, a released institution or official is also released from
liability to make a contribution to another institution or person for damages
payable after civil proceedings brought or continued by the survivor about
their abuse; in such an instance, the damages payable to the survivor are
reduced by the contribution amount for the released institution or official.
Reviews of determinations
Survivors can apply for an internal review of the determination of their
application for redress. The Explanatory Memorandum explains that:
The internal review processes will enable applicants to seek
review of determinations on applications for redress. The person conducting the
review must have had no involvement in the original decision and may affirm,
vary or substitute the original decision.
The committee examined review provisions in detail in its report into
the Commonwealth Redress Scheme bills, however there have been a number of small changes to these provisions in the
National Redress Bill, including:
- In line with the updated timeline for acceptance of a redress offer, the
time by which an applicant can apply for an internal review of a determination has
been extended to no longer than 6 months.
- Clarification that the review determination, if it varies or sets aside
the original determination, is taken to be the determination made by the
Operator, and that that if the original determination is upheld and the person had been
given an offer of redress following that determination, the acceptance period
for the original offer must then be extended by an additional 2 months.
Some submitters to this inquiry echoed concerns from the previous
inquiry about a lack of external review for the National Redress Scheme. However, the Explanatory Memorandum states that:
This follows the recommendation of the Independent Advisory
Council on redress, appointed by the Prime Minister, which included survivors
of institutional abuse, representatives from support organisations, legal and
psychological experts, Indigenous and disability experts, institutional
interest groups and those with a background in government. The Independent
Advisory Council considered that providing survivors with external review would
be overly legalistic, time consuming, expensive and would risk further harm to
New clauses for notifications to
In the previous inquiry, concerns were raised by submitters about the level
of transparency in the decision-making process for redress applications and
communication with participating institutions through that process. The National Redress Bill introduces a number of new clauses which clarify the
process of notifying participating institutions about the progress of a
survivor's application through the Scheme. These notices are now to be sent to
- an application has been withdrawn, if the Operator has requested
documents relating to that application from the institution;
- an application has been determined and the institution is
specified in that determination as either responsible or not responsible for
the abuse, or as the associate of the responsible institution, or as the funder
of last resort;
- an offer is made to a survivor and that offer refers to the
institution and if that offer is declined; and
- an application for review is made, withdrawn or determined in
relation to a determination which specified the institution.
These provisions are in addition to the existing provision which sets
out that notice will be given to an institution specified in an offer of
redress when that offer is accepted.
Submitters have also recommended that an institution also be provided
with a copy of a survivor's application when it is made. The Department explained that while 'there will be core and basic information
that needs to be confirmed' by institutions, those institutions will not be
provided with the full application, nor will those institutions be able to
reject an application.
Survivors who accept an offer of redress may elect to receive one, two
or all three components of redress which are offered. If that survivor elects
to receive a component of redress, the Operator must pay the redress payment to
the person and provide the person with access to, or a payment for, the counselling
and psychological component of redress. The responsible institutions for the
abuse must also take reasonable steps to provide the survivor with a direct
The parts of the National Redress Bill relating to the redress payment
remain mostly unchanged from the Commonwealth Redress Bill, except in relation
to insurance, while the parts relating to the counselling and psychological
component and direct personal responses have been subject to more significant
updates. These are discussed below.
Redress payments and institutions'
During the inquiry into the Commonwealth Redress Scheme bills, several
organisations raised concerns about responsible institutions, those
institutions' insurance policies and the capacity of the institutions to meet
their obligation to pay redress to survivors.
The National Redress Bill specifies that nothing in the bill prevents a
liability insurance contract from treating a redress payment as being a payment
for compensation or damages. The Explanatory Memorandum notes that:
This subclause facilitates the insurers of participating
non-government institutions to treat redress payments as compensation or
damages under liability contracts. This allows non-government institutions to
be assisted by insurers to meet their liability for redress under existing
Counselling and psychological
The counselling and psychological component of redress will be provided
to a survivor either as access to services (if the survivor lives in a
participating jurisdiction which has been declared a provider of counselling
and psychological services) or as a counselling and psychological component
payment. The National Redress Bill also introduces new provisions which protect the counselling
and psychological component payment and which mirror similar provisions
relating to the redress payment.
Participating jurisdictions may notify the Minister of their
arrangements to deliver counselling and psychological services under the Scheme
and request to become a declared provider of these services; and the Minister
may make declarations, by notifiable instrument, about a jurisdiction becoming,
or ceasing to be, a declared provider of these services. At 1 June 2018, the
Australian Capital Territory, New South Wales and Victoria had all indicated
that they would become providers under the Scheme.
Submitters have expressed concern that the introduction of a monetary
figure for the counselling and psychological component in the National Redress
Bill, discussed earlier in this chapter, may result in counselling and
psychological care provided through a participating jurisdiction being limited
or capped. At Senate Budget Estimates, the Department verified that there was no 'tally
system' that required a counselling and psychological component payment made to
a participating jurisdiction to be 'used up', and that a state will provide
services to survivors irrespective of whether they received $1250, $2500, or $5000.
Instead, this money 'will go into...existing structures those states have' such
as victim support units and public health networks. Furthermore, the National Service Standards for counselling and psychological care,
included in the Intergovernmental Agreement, provide that jurisdictions must
provide a minimum of 20 hours of counselling and psychological care over the
course of the survivor's lifetime.
The Australian Government agreed to the committee's recommendation from
the previous inquiry that consideration be given to 'mechanisms to ensure
ongoing counselling is available to survivors, should they need it'. The
Government Response details other programs funded by the Department to support
vulnerable people, such as Find and Connect, which is a targeted service for
Forgotten Australians and former child migrants, Family and Relationship
Services, and therapeutic and practical assistance to people who suffer from
psychological trauma through the Better Access to Psychiatrists, Psychologists
and General Practitioners through the Medicare Benefits Schedule.
Furthermore, the Australian Government agreed to the committee's
recommendation that affected family members are referred to existing
counselling services in cases where it is necessary to meet the critical needs
of the survivor. The Government Response reported that, while Redress Support
Services are primarily for people making an application to the Scheme, where it
is in the best interest of the survivor, support services may assist affected
family members and that this could include referral to other services.
Direct personal responses
In the previous inquiry, many submitters raised concerns about the
content, nature and delivery of direct personal responses to survivors.
The National Redress Bill provides that the Minister will declare a
direct personal response framework to guide the delivery of responses, and more clearly sets out what constitutes a direct personal response from an
A direct response from a participating institution to a
person is any one of the following:
- an apology or a statement of acknowledgement or regret;
- an acknowledgement of the impact of the abuse on the
- an assurance as to the steps the institution has taken,
or will take, to prevent abuse occurring again;
- an opportunity for the person to meet with a senior
official of the institution.
The general principles guiding provision of direct personal responses,
although reordered, have not changed in the National Redress Bill.
Redress support services
In introducing the National Redress Bill, the Minister reported that:
Redress support services will be available to all applicants,
including specialised support for Indigenous people, people with disability,
and people from culturally and linguistically diverse backgrounds.
Support services will be available nationally, and use
face-to-face, telephone, online and outreach services to ensure coverage.
The committee's Commonwealth Redress Scheme Report examined in detail
the types of support services available to survivors.
The National Redress Bill adds additional functions, not included in the
Commonwealth Redress Bill, which allow the Operator to arrange for support and
assistance services for applicants and prospective applicants to the Scheme, and to enter into, vary and administer contracts, agreements, deeds or
understandings on behalf of the Commonwealth in relation to those support or
The Intergovernmental Agreement outlines the three types of specialist
support services which will be provided under the Scheme:
- Redress support services—trauma-informed and culturally appropriate
community-based support services to provide assistance with engaging with the
Scheme. This may include assistance in making an application, referrals to
other services (such as counselling), and support during delivery of a direct
Financial supports—through existing Commonwealth-funded services with
specific information for survivors applying to the Scheme.
Legal services—to be provided through a legal service provider engaged
by the Commonwealth. Legal assistance may include advice on eligibility
requirements and participating in the scheme or on the effects of accepting an
offer and signing a civil liability release.
At Senate Budget Estimates, the Department explained that many of the
support services which were established and funded to support survivors during
the Royal Commission will transition to new funding arrangements and continue
providing supports to survivors with whom they already have connections with.
However organisations with a conflict of interest, such as those who are participating
institutions in the Scheme, will not be transitioned as Redress Support
The submission from Australian Government Departments further outlined
the service delivery framework and infrastructure which has been, or is in the
process of being, developed by the Department to support survivors, including
communications materials, plain English policy explanations, dedicated case
management and specialist redress staff, and a remote service strategy.
Other relevant provisions in the National Redress Bill
Independent Decision Makers
The National Redress Bill provides that the Operator will appoint
appropriately qualified Independent Decision Makers as assessors for the
Scheme. Some submitters have expressed doubts about the independence of these assessors
and have questioned whether current or former officials of participating
institutions may be appointed as Independent Decision Makers.
The submission from Australian Government Departments indicated that
state and territory governments have been asked to nominate candidates and confirmed
that successful Independent Decision Makers will be required to:
- be independent from participating institutions 'to ensure
fairness and transparency';
- declare any potential conflicts of interest, undertake a national
police history check, a working with children check and a social media check;
have knowledge and experience in social welfare, case management
and/or the legal sector, and an ability to develop an understanding and
knowledge of the survivor cohort and the history of the Royal Commission; and
undertake comprehensive training to ensure they are
The National Redress Bill sets out provisions for the appointment of
nominees to act on behalf of an applicant for the purposes of the Scheme.
The Commonwealth Redress Bill proposed two categories of nominees:
correspondence nominees and payment nominees. However, some submitters raised
concerns that the purpose and role of nominees in that bill were not clearly
defined and that applicants would not have the ability to request a change to
or revoke the appointment of their nominee, and the Department told the
committee that it was reviewing those provisions.
The National Redress Bill has replaced the previous nominee provisions
and now proposes two new categories of nominees:
- Assistance nominees—can do any act on behalf of an applicant in relation
to the Scheme, except for making an application, accepting or declining an
offer of redress, or any act for the purposes of the appointment, suspension or
revocation of a nominee, or any act prescribed by rule.
- Legal nominees—must have powers under a law of the Commonwealth, or a
state or territory, to make decisions of the applicant (i.e. have legal
guardianship or power of attorney) and may do any act on behalf of the person
for the purposes of the Scheme.
Other provisions relating to the role, appointment and functions of
nominees remain largely unchanged in the Redress Scheme; however an applicant
may now request to have the appointment of an assistance nominee (but not a
legal nominee) revoked. Submitters were generally supportive of the updates to nominee provisions.
Protected information under the
The National Redress Bill introduces a small number of new provisions
for the use of protected information under the Scheme.
Clause 97 provides for obtaining, recording, disclosing and using
protected information for permitted purposes, such as disclosure to by an
official to a government institution for law enforcement, for child safety and
wellbeing, or for a purpose prescribed by the rules (i.e. compliance with
current reportable conduct schemes); and disclosure by a person to a government
institution if a law requires or permits that person to do so and the
institution has functions for that purpose.
Clauses 102 to 104 introduce provisions for the use and disclosure of
assessment framework policy guidelines. The Explanatory Memorandum notes that
these are necessary:
...to ensure that the assessment framework policy guidelines
are appropriately protected from unauthorised use and disclosure, as the
guidelines provide additional matters that the Operator may take into account
when applying the assessment framework...which may contain graphic and triggering
descriptions of abuse.
The National Redress Bill also introduces a clause which protects
individuals who have disclosed protected information in good faith from civil
or criminal proceedings, disciplinary actions, and from breaches of codes of
conduct or professional ethics or standards.
Additionally, the clause which relates to the disclosure of protected
information to a court or tribunal has been updated in the National Redress
Bill to reflect that a person must also not be required to disclose the
assessment framework policy guidelines and to add a small number of exceptions
which allow disclosures for the purpose of giving effect to the Act. The Explanatory Memorandum notes the importance of this clause:
The objects of the Scheme are to provide an avenue for a
payment that acknowledges a wrong that might otherwise be pursued through civil
litigation. The Scheme would be undermined if it were able to be used as a form
of discovery in court proceedings. It would also overload the administrative
arm of the Scheme which would result in delays to the process of assessing
applications under the Scheme.
Submitters raised the following concerns in relation to the amended
protected information provisions in the National Redress Bill:
- The Law Council of Australia noted some implications of
protection information provisions on survivors, including the potential of
- The Office of the Australian Information Commission suggested
that some protected information provisions in the bill could be narrowed and
could benefit from further explanation of whether authorisations to disclose
information are reasonable, necessary and proportionate to achieving a
legitimate aim, in the context of the overall objectives of the Scheme.
The National Redress Bill includes a small number of new provisions, and
minor amendments to existing provisions, relating to financial matters such as
liability for funding and debt recovery.
The financial provisions relating to liability for funding in the
National Redress Bill are similar to those included in the Commonwealth Redress
Bill, but include several significant amendments including:
- The late payment penalty for institutions has been reduced by half from
that in the Commonwealth Redress Bill.
- A new liability provision for corporate state or territory institutions
has been introduced.
- New provisions relating to the Commonwealth's contribution to counselling
and psychological services for jurisdictions which are declared providers have
There are also several minor amendments relating to the introduction of
the counselling and psychological component payment and new institutions
Internal review is not available where an amount of financial liability
has been determined by the Operator. In the previous inquiry, some submitters
had raised concerns about institutions' liability for funding redress under the
Scheme and recommended that institutions have a right to request review of any
determination of responsibility and financial liability. However, the Explanatory Memorandum now clarifies that:
Internal review is not available for this decision. By
agreeing to participate in the Scheme a participating institution accepts that
the Operator will make determinations in relation to the redress payment and
the counselling and psychological component they are required to pay. Each
participating institution is aware from when they agree to participate in the
Scheme that the maximum redress payment is capped at $150,000 and the
counselling and psychological component of redress may consist of either access
to counselling and psychological services or a payment, depending on the
participating State where the applicant lives at the time of their application.
The provisions relating to debt recovery have also been subject mostly
to minor text changes since the Commonwealth Redress Bill, but include one new
clause relating to the repayment of any recovered amounts to participating
organisations where appropriate.
Funders of last resort
In the committee's Commonwealth Redress Scheme Bills Report, it was
noted that funder of last resort provisions would be updated for a National
Redress Scheme and that there was no constitutional basis for the Commonwealth
being a universal funder of last resort.
The funders of last resort provisions in the National Redress Bill now
reflect the national nature of the Scheme and clearly set out where a
participating government institution acts as a funder of last resort for a
defunct institution. This part of the National Redress Bill provides that:
- A participating government institution is a funder of last resort for a
defunct institution if it determined to be so.
- A defunct non-government institution, not participating in the Scheme,
is listed, varied or revoked for one or more participating jurisdictions, by
notifiable instrument by the Minister
- Where a participating government institution is equally responsible with
a defunct intuition for the abuse of a survivor and is the funder of last
resort for the defunct institution, that government institution is liable to
pay for all aspects of redress and administration payable by the defunct
When introducing the National Redress Bill, the Minister explained the
purpose of the funder of last resort policy as included in the bill:
...is to pick up shortfalls in funding where an institution no
longer exists. It is not intended to pick up liability for institutions that
have the capacity to opt in and choose not to.
Reporting on and reviewing the operation of the Scheme
One of the recommendations made by this committee in its report into the
Commonwealth Redress Scheme bills related to the types of information to be included
in the annual report on the operation of the Scheme. The Government Response
agreed with the committee's recommendation and noted that the requirements of
the annual report would be specified in the rules for the National Redress
The National Redress Bill reflects that the annual reporting
requirements will be prescribed by rule. In the previous inquiry, the committee had recommended that the annual report
on the operation of the Scheme include detailed data 'to understand the experiences
of people going through the Redress Scheme and to provide a basis of any
necessary refinements to the Scheme'. The Australian Government agreed with
this recommendation and noted that matters for annual report prescribed by rule
the number of people who applied for redress in the year;
the number of people who were determined to be eligible for
redress in the year; and
- details relating to redress payments that were paid in the year.
Furthermore, the provisions relating to reviews of the scheme have been
significantly amended to provide for both second anniversary and eighth
anniversary reviews. The second anniversary review must include consideration of many aspects raised
and suggested by submitters in the previous inquiry, such as the extent to
which the scheme is accessed and payments made under the Scheme. The submission from Australian Government Departments noted that there is a
specific commitment to review the child applicant policy and the processes
regarding applications from people in gaol and applicants with serious criminal
convictions, as well as the impact of the Scheme's design on Indigenous
National Consequential Bill
The National Consequential Bill contains two new schedules which were
not in the Commonwealth Consequential Bill.
Schedule 4 makes provisions relating to the disclosure and protection of
information under the National Redress Scheme. It inserts a new item into the Freedom
of Information Act 1982 which makes protected information under the Scheme
not required to be disclosed under Freedom of Information; and inserts two
paragraphs in the Social Security (Administration) Act 1999 to allow a
person to obtain, record, disclose or otherwise use protected information if it
is done for the purposes of the Scheme. The Explanatory Memorandum notes that
exempting information from Freedom of Information disclosure:
...supports the trauma informed approach of the Scheme,
ensuring that survivors' information is adequately protected. It also protects
institutions' information against fraudulent applications made to the Scheme.
The exemption protects the integrity of the operation of the Scheme, removes
any uncertainty about the operation of the information publication scheme
regarding the assessment policy guidelines, and makes it transparent that
protected information under the Scheme is exempt under the Freedom of
Schedule 5 inserts a new item into the Age Discrimination Act 2004 which will exempt the National Redress Scheme from unlawful age discrimination
and allow the Scheme to apply an age limit. The Explanatory Memorandum explains
Applying an age limit to the Scheme addresses the risk of
children signing away their future civil rights when they may have limited
capacity to understand the implications, and when the impact of the abuse may
not fully be realised, and reduces the risk of monetary payments to minors
being misused. The Scheme's support services will be available to child
survivors who must wait until they turn 18 years to receive redress under the
Other related matters
Other matters not strictly contained in the National Redress Bill but
related to the operation of the National Redress Scheme were raised by submitters.
Some submitters to the inquiry recommended that the Independent Advisory
Council on Redress be maintained, or otherwise included directly in the
National Redress Bill. The committee notes that the Intergovernmental Agreement provides that the Commonwealth
Minister responsible for redress may reconvene the council for particular
advisory purposes at any time in the future.
The Queensland Law Society proposed that the provisions relating to
liability, representatives of unincorporated institutions, and management
committees be clarified, noting:
While in practice this may be of little consequence as the
Operator could no doubt simply look to the representative (and the
representative look to the unincorporated association), it seems to be in the
interests of clarity in the law for the Bill to indicate where the liability
The National Social Security Rights Network questioned whether, despite
the provisions in the National Redress Bill and National Consequential Bill, a
redress payment could be subject to an asset test for a survivor's social
security entitlements, as 'there are no provisions...that propose payments under
the redress scheme be exempt from social security asset assessments'.
The committee firmly believes that the introduction of a National
Redress Scheme for Survivors of Institutional Child Sexual Abuse is a vital
step in addressing cases of historical child sexual abuse.
The committee is strongly supportive of the objects of the National
Redress Scheme to recognise and alleviate the impact of past institutional
child sexual abuse and to provide justice for the survivors of that abuse.
The committee is pleased to see that all states and territories have
agreed to participate in the National Redress Scheme, making the Scheme truly
national. The committee recognises that several non-government organisations
have already announced their participation and encourages non-government
organisations in all jurisdictions to join the National Redress Scheme so that
all eligible survivors are able to receive redress.
The committee recognises the significant work by territory, state and Commonwealth
governments in negotiating and developing the National Redress Scheme over the
past 18 months. It acknowledges the considerable efforts made by these
governments to address many of the concerns raised by survivors and
institutions about the implementation and operation of a Scheme, as well as
important amendments made to the Scheme since the introduction of the
Commonwealth Redress Scheme bills in 2017.
The committee also recognises that the majority of recommendations from
the committee's previous inquiry, including those in minority reports, have
been accepted in full or in part in the development of the National Redress
The committee further recognises that any changes made to the National
Redress Bill would require renegotiation with each of the participating states,
jeopardising the Scheme's start date of 1 July 2018.
The committee recommends these bills be passed.
Senator Slade Brockman
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