Labor Senators on this Committee note the recommendation of the majority
report, and wish to make the following additional comments.
The advent of a National Redress Scheme is due to the courage of
Survivors who told their stories to the Royal Commission, and those who
advocated for justice for so long.
Labor Senators on this Committee note that the Government has responded
to some of the recommendations made by the Committee in the Final Report of its
Inquiry in to the Commonwealth Redress Scheme for Survivors of Institutional
Child Sexual Abuse Bill 2017.
However, Labor Senators remain disappointed that a number of
recommendations have not been addressed in the National Redress Scheme for
Survivors of Institutional Child Sexual Abuse Bill 2018.
Details of these recommendations are outlined in this report.
Labor has been committed to establishing a National Redress Scheme for
Survivors of Institutional Child Sexual Abuse since 2015. Many Survivors are
ageing and have been waiting most of their life to receive justice.
Labor Senators on the Committee note the Royal Commission's
recommendation that a National Redress Scheme be in operation from 1 July 2017 and are of the view that the Redress Scheme must not be delayed any longer.
Further, Labor Senators on the Committee note the advice of Australian
Government Departments that:
Any changes made to the National Bill would mean the National
Bill would not align with the Schedule included in state referral Acts. This
would render the referral ineffective and means that the National Bill could
not operate in States which had passed their referral Bills before the changes
were made to the National Bill. Any amendments to the National Bill in the
Commonwealth Parliament would require the negotiation, reintroduction and
passage of a State referral Bill through any State Parliament that has passed
its legislation, thereby delaying the 1 July 2018 Scheme start date.
Labor Senators on the Committee still hold a number of serious concerns
regarding this legislation, including the arbitrary lowering of the maximum
payment, the adequacy of counselling and the equality of all Survivors of child
sexual abuse before the Scheme.
Notwithstanding these very important issues, Labor Senators note that
for many Survivors time is of the essence.
Labor Senators also note the high likelihood that any attempt to amend
the legislation in the Commonwealth Parliament would jeopardise the scheduled
Scheme start date of 1 July 2018.
Therefore, for this reason alone, Labor Senators on the Committee do not
recommend any amendments to the Bill.
Labor Senators on the Committee wish to draw attention to the cap on
payments made under the Scheme of $150 000.
This is significantly less than the $200 000 maximum payment that was
recommended by the Royal Commission.
Labor Senators on the Committee note widespread support between
submitters and witnesses to increase the cap to $200 000.
The Alliance for Forgotten Australians has indicated that lowering the
cap without explanation threatens the credibility of the entire Scheme:
...this reduction is assumed to be the result of pressure
brought to bear by the Catholic Church. Most seriously, such decisions
undermine faith in the design of the scheme. Where design decisions appear
arbitrary, or unexplained, people lose confidence in the totality of the
Care Leavers Australasia Network (CLAN) was also of the view that 'the
Federal Government should respect the Royal Commission recommendations'.
The Committee also received a large number of submissions from the legal
profession, which advocated for an increase to the maximum payment.
The Australian Human Rights Commission wrote:
...the efficacy of the Scheme depends on the availability of
adequate redress to recognise the significance of the abuse from the
perspective of the survivor. Inadequate redress may cause more survivors to
pursue civil litigation, which undermines the efficacy of the Scheme and may
not be in the best interests of the survivor.
The Australian Lawyers Alliance also considered the reduced cap to
challenge the effectiveness of the proposed Scheme:
It is important that the amount of redress paid adequately
reflects the seriousness of the survivor's experiences and the impact of the
abuse on their lives. Particularly in the most serious cases, some survivors
might not feel that what they are offered adequately reflects the impact of the
abuse on their lives if the maximum redress payment is restricted to $150,000.
Shine Lawyers also highlighted:
...the monetary payment for redress is substantially lower than
the Royal Commission's recommendation. It is unreasonable not to follow the
Royal Commission's recommendation in this respect and no adequate explanation
has been offered for the reduced amount or divergence from the considered view
of the Royal Commission.
Others also called for the maximum payment to 'be adjusted to reflect
the recommendations of the Royal Commission'.
These include Maurice Blackburn, as well as Victorian Aboriginal Legal
Services, who wrote:
...given that the scheme is designed to redress both sexual
abuse and related physical abuse, a maximum cap of $200,000 is not unreasonable.
And also the Law Council of Australia which stated:
...the maximum amount for a redress payment should be raised to
$200,000, in accordance with the Royal Commission's recommendation.
A number of other submitters to this Inquiry highlighted the lower
maximum cap as an issue of concern.
Labor Senators are of the view that the Redress Scheme would be enhanced
by raising the maximum payment to $200 000.
Labor Senators on this Committee support the recommendation of the Royal
Commission that access to lifelong counselling be made available to those
Survivors who accept an Offer of Redress.
Labor Senators remain concerned that the counselling arrangements
detailed in the National Bill continue to fall short of this standard.
Further, Labor Senators on the Committee note that the arrangements in
the legislation are inconsistent with the Government's Response to the
Committee's Final Report from the Inquiry in to the earlier Commonwealth Bill
which accepted the recommendation that counselling provided to Survivors as
part of Redress should be lifelong.
The Committee received evidence that adequacy of counselling continues
to be an issue.
Shine Lawyers wrote that 'It is well known that abuse has lifelong
consequences and neither option for counselling and psychological services
within the Bill meets survivors' desperate needs'.
Additionally the Law Council of Australia wrote that they question '...the
adequacy of a $5000 cap...as this amount will almost certainly be inadequate to
cover such services over a prolonged period'.
The Australian Psychological Society are also concerned that placing a
$5000 cap on counselling 'falls short of the Commission's recommendation that
survivors should have access to counselling and psychological services across
The Alliance for Forgotten Australians has indicated that whilst this
...may be sufficient for some; for others it will be inadequate
to support a survivor for whom the impact of childhood abuse has lasted a
lifetime...the scheme limits access to a key aspect of healing, appearing to make
what for many will be a token contribution for a lifetime of pain, poverty,
lost opportunities and poor health.
According to Knowmore Legal Services, specialists in assisting Survivors
of institutional child sexual abuse, limited access to counselling will:
...come at a high cost to survivors who, every day are trying
to deal with the continuing impacts of their childhood sexual abuse and who
need ongoing and appropriate counselling support to do so. Under these
arrangements, many will not be able to access sufficient or acceptable support.
Labor Senators on the Committee understand that adequate counselling is
of critical importance to Survivors, and urge the Government to clarify the
precise arrangements for counselling under the Redress Scheme as a matter of
The Committee received further evidence that Survivors who are not
Australian Citizens of permanent residency should not be barred from accessing
the Redress Scheme.
Labor Senators on the Committee support the view of the Australian Human
In the Commission's view it is the occurrence of abuse in
Australia, rather than the citizenship or residency status of the person
affected, that should determine eligibility.
This is in line with the recommendation of the Royal Commission, which
We see no need for any citizenship, residency or other
requirements, whether at the time of the abuse or at the time of application
Labor Senators on the Committee also support the recommendation of the
Australian Association of Social Workers that:
...people who were sexually abused as children while they were
in immigration detention be eligible for redress under the Scheme.
Labor Senators are seriously concerned that Survivors who were abused in
the care of an Australian institution, such as former child migrants and those
who have been in immigration detention, may not be able to access the Redress
Scheme because they no longer live in Australia.
Labor Senators call on the Government to urgently address this issue by
committing to ensuring that there will be provision in delegated legislation to
enable former child migrants and former immigration detainees to access the Redress
Criminal history exclusion
Labor Senators on the Committee are deeply disappointed by the
Government's commitment to treat Survivors with a criminal history differently
The provisions in the legislation continue to present a number of
serious concerns, including the negative impact these could have on the mental
health of Survivors, the disregard of fairness and the disproportionate effect
of these provisions on Indigenous and Torres Strait Islander Survivors.
A number of submitters have referred the Committee to strong evidence of
a link between traumatic childhood experiences and criminal offending in later
Knowmore Legal Services estimated that during the Royal Commission:
19% of the nearly 9000 clients assisted...were in prison or
other places of detention.
Shine Lawyers further explained that:
The Royal Commission conducted private sessions receiving
over 8,000 personal stories of institutional child sexual abuse. 10.4% of
survivors who were interviewed by the Royal Commission were in prison. There
may be many more. It is anticipated that approximately 60,000 survivors will
participate in the Redress Scheme. This would suggest that over 6,000 people
are potentially excluded from redress unless this element of the proposed
scheme is amended.
The Committee received an abundance of evidence that potentially
excluding some Survivors from the Redress Scheme due to historical criminal
offending either misunderstands, or denies, the impacts of childhood sexual
abuse in later life.
Maurice Blackburn explained:
...any such exclusion demonstrates a lack of understanding
about the role childhood abuse can play in the causality of future criminal
behaviour. We lend our voice to the many survivor groups which have expressed
profound disappointment in this apparently populist course of action.
The Australian Human Rights Commission wrote that the Bill:
...fails to recognise that a survivor's later criminal
behaviour may be directly or indirectly connected to the experience of child
sexual abuse in the first place [and] ignores that survivors have a right to an
effective remedy for human rights violations experiences through child sexual
abuse irrespective of any later criminal conduct.
The Australian Psychological Society argued:
Given that the reason for incarceration was likely related to
a person's experience of abuse, and moreover given that access to appropriate
redress, including psychological counselling, might be expected to contribute
to their rehabilitation, which is in the whole community's interest.
Additionally, the Royal Australian and New Zealand College of
Psychiatrists wrote that:
Excluding criminal offenders from the Scheme is of profound
concern considering the high rates of subsequent sexual offending in males who
have been sexually abused as older children, as well as the strong relationship
between sexual abuse and subsequent substance use, which may be associated with
Ryan Carlisle Thomas has called these provisions 'manifestly unjust' and explained that:
...a significant portion of our clients have substantial
criminal records, and this is almost always attributable to the abuse suffered
by them while in care. Preventing these clients from making a claim at all,
amounts to a double punishment, as these people have served their sentences.
Jesuit Social Services told the Committee that:
The status of victim and offender are often intertwined, and
it is only fair that all people have the right to access compensation, have
support to rehabilitate, and have an opportunity to heal.
Victorian Aboriginal Legal Services and the Law Council of Australia
argued that the exclusion will disproportionately affect Indigenous Survivors,
due to historical practices of institutionalising Indigenous children and the
overrepresentation of Indigenous people in the justice system.
Victorian Aboriginal Legal Services wrote that:
We are...strongly opposed to the provision that people who are
currently serving a custodial term are prevented from applying for the scheme,
regardless of the nature of their offence or length of sentence. As has been
well documented, the rate of Aboriginal and Torres Strait Islander people in
prison across the country far exceeds that of non-Indigenous people.
The Law Council of Australia submitted:
...access to the Scheme should not be restricted on the basis
of criminal record...Further, the proposal to exclude survivors with a criminal
record particularly affects Aboriginal and Torres Strait Islander people who
are disproportionately represented in the criminal justice system. By virtue of
being forcibly and systematically removed from their communities and placed
into institutions, Aboriginal and Torres Strait Islander children are a group
which were particularly vulnerable to the abuses identified by the Royal
Commission. Excluding these survivors from the Scheme appears to be contrary to
the intent of a redress scheme.
The Committee heard from a number of submitters that excluding some
Survivors on the basis of previous criminal offending is unfair, particularly
where the Survivor may have already served a sentence for those actions.
The Blue Knot Foundation told the Committee that:
...whether a person is in gaol or not is irrelevant to whether
they were sexually abused as a child within an institution. As a crime was
committed against them they should have equal access to redress, as any other
The Australian Lawyers Alliance told the Committee:
...those whose lives were ruined and led into crime directly or
indirectly by the abuse should not be further punished by being discriminated
The Sexual Assault Support Service argued that the treatment of
Survivors with criminal histories is particularly unfair due to the state based
nature of criminal law. They wrote:
Sentences vary from judge to judge, and from jurisdiction to
jurisdiction. This means that in a case where two people commit similar crimes,
but where one receives a sentence of less than five years, and one a sentence
of more, the former will automatically be eligible under the Redress scheme
whilst the latter will not.
The Service further noted the detrimental effect these provisions would
have on Survivors. They explained:
...a rejection of their application on the basis of their
conviction would be extremely detrimental to their mental health, and in many
cases could lead them to feel suicidal. Survivors of institutional child sexual
abuse almost always feel that they have been let down by 'the system', and this
is likely to be seen by survivors as definitive proof of this. SASS counsellors
have expressed that they would be hesitant even telling some survivors with
serious criminal convictions about the scheme if there was a risk that they
would be rejected.
Labor Senators on the Committee note advice that the inclusion of a
general prohibition against Survivors making an application to the Scheme while
incarcerated was driven by a concern for the safety and privacy of Survivors
themselves, as well as a difficulty in providing supports within closed institutional
Labor Senators on the Committee are unconvinced that these issues are
insurmountable, and refer to the submission of Sexual Assault Support Service which
...allowing incarcerated survivors to apply to the Scheme is
complex, and in particular that there are risks associated with the
confidentiality of applicants in a closed institutional setting. Regarding the
concern that it would be difficult to secure appropriate redress support
services for this environment, we note that we have been successfully providing
advocacy and counselling services to incarcerated survivors of institutional child
sexual abuse for some time.
Labor Senators on the Committee agree with the expert advice provided in
evidence to this Inquiry, and are of the view that all Survivors of childhood
sexual abuse in institutions should be eligible to apply to the Redress Scheme
on equal footing with one another.
Since the Committee tabled its Final Report for the Inquiry into the
earlier Commonwealth legislation, Labor Senators have become aware of the
serious concerns held by many Survivors regarding the indexation arrangements
recommended by the Royal Commission.
CLAN provided the Committee with a case study of how one of their
members would be impacted by these provisions.
CLAN wrote that the Care Leaver and Survivor received a $39 000 from another Redress Scheme many years ago, and that at the time, the Care Leaver and Survivor used
$12 000 of that payment to settle legal expenses incurred in obtaining the redress.
Labor Senators on the Committee understand that although a portion of
the payment was used to cover legal fees, the sole purpose of the payment made
was compensation, and as a result, the entire sum would be subject to the
indexation provisions in the National Bill.
CLAN wrote that it is 'grossly unfair to index the gross amount...indexing
is like robbing the poorest of abuse victims...the Government's children'.
Another Survivor advocacy organisation, Tuart Place, submitted to the
Committee that their members believed:
...upscaling of past payments is mean-spirited, unfair and
clearly intended to cut costs for past provider institutions.
Labor Senators on the Committee are deeply concerned that the implementation
of these provisions may reduce some Survivors' redress payments
Labor Senators on the Committee believe the Redress Scheme would be
improved by removing the provisions which relate to adjusting previous amounts
of compensation received by Survivors.
Decision time frame
Labor Senators note that the legislation currently before the Committee
extends the timeframe for a Survivor to accept an Offer of redress from ninety
days to at least six months.
Notwithstanding this improvement, Labor Senators continue to be of the
view that Survivors should have one year to be make this decision, as
recommended by the Royal Commission.
Submitters to the present Inquiry were also of the view that '12
months...is a reasonable period for acceptance'.
The Law Council of Australia explained that:
...given the legal implications of accepting an offer, it is
essential that survivors have the opportunity to seek and receive independent
legal advice as to whether they should accept an offer or pursue a civil
claim...in the Law Council's experience, it does not consider that it will always
be feasible for this to occur in six months, especially given the volume of
survivors predicted to come forward to make an application for compensation
under the Scheme.
Labor Senators maintain their view that Survivors should have one year
to respond to an Offer of Redress.
Funder of last resort
Legislation before the Committee limits Funder of Last Resort provisions
to only apply where the Government had equal responsibility for the abuse that
occurred in the defunct organisation.
Labor Senators remain concerned that some Survivors may miss out on
redress entirely as a result of this formation.
Submitters to the Inquiry also raised this issue.
Maurice Blackburn submitted that it is necessary to:
...ensure that the Commonwealth would still be the funder of
last resort even if it had no direct involvement with the claimant, or the
defunct institution at all. Failure to do so creates a class of survivor who
misses out on redress merely because the abuse occurred in an independent
institution which is now defunct.
The Centre for Excellence in Child and Family Welfare has also expressed
concern that Survivors:
... will have no recourse in respect of the abuse suffered,
either through the redress scheme or by civil litigation.
Labor Senators on the Committee maintain the view that the Funder of
Last Resort provisions should be expanded.
Inclusion of all forms of abuse
Labor Senators note submissions from a number of individuals and
organisations which advocate for eligibility for Redress to be extended to
people who were not sexually abused, but survived other forms of abuse as
children in the care of an institution.
Labor Senators have confined their comments to issues that are
explicitly raised in the legislation and the recommendations of the Royal
Labor Senators on the Committee are cognisant of the challenges that
amendments to the legislation would pose to the constitutional integrity and
timeliness of the Redress Scheme.
For that reason, and notwithstanding a range of serious concerns, Labor
Senators support the recommendation of the majority report that the Bill be
passed and make the following additional recommendation:
That current and future Governments continue to negotiate with
States and Territories in good faith to continue to strengthen the Redress
Hon Lisa Singh Senator
Navigation: Previous Page | Contents | Next Page