On the 10th May, 2018 the National Redress Scheme (the Scheme) legislation was introduced to the Parliament for Australia. This legislation replaces the Commonwealth legislation previously introduced and this allow for States and territories that join the Scheme to participate under law.
The Scheme will only provide support to people who were sexually abused as children while in the care of an institution.
The establishment of a scheme was recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Commission). Subject to the enactment of legislation, the Scheme will start on 1 July 2018, and will run for 10 years until the 30th June, 2027.
The Commonwealth Government has created the Scheme, and it has promised to provide redress to people who were abused in places that were run by the Commonwealth such as the Australian Defence Forces, cadet schools and onshore immigration detention.
So that redress can be provided to as many people as possible, other governments and organisations have been invited to join the Scheme, which is called ‘opting in’. The Commonwealth Government has requested and lobbied all state and territory governments, churches, charities and other non-government organisations to join up to ensure that a truly national Scheme is available to as many people as possible. In addition to the Commonwealth Government, so far the governments of New South Wales, Victoria, Queensland, South Australia, Tasmania, Northern Territory and Australian Capital Territory have all committed to join the Scheme. Western Australia remains the only state yet to commit to joining the Scheme but negotiations are ongoing in this regard.
It is worth noting that the Commonwealth Government cannot force state and territory governments or institutions to join the Scheme. This may be one of the perceived weaknesses of the proposed Scheme as it may well be a source of disappointment in time if not everyone who suffered child sexual abuse is able to apply for redress.
Six major non-government institutions have committed to join the Scheme. The Catholic Church, the Anglican Church, the Salvation Army, YMCA; Scouts Australia and the Uniting Church and by so doing provide redress to people sexually abused as children in their care.
When each state government or non-government institution joins up, it promises to pay for redress for people who were abused in its care. Thus the non-state institutions participating in the Scheme will still be paying for the redress which is attributable to those who were abused whilst in that organisations care. The Anglican Church in Tasmania for example has announced it will sell a significant proportion of its property to ensure it can pay victims of abuse. It anticipates AUS$5m will be paid from those property sales to the fund for victims of abuse, with any further payments due being funded by contributions from all parishes.
From the 1st July, 2018 people who experienced child sexual abuse in the any of the states, territories or institutions that have opted to join the Scheme will be able to apply for redress either through a paper form or online platform and have their application assessed.
The Redress Scheme can provide three things:
- access to psychological counselling
- a direct personal response – such as an apology from the responsible institution for people who want it
- a monetary payment.
Payments will be assessed on a case-by-case basis, reflecting the severity and impact of the abuse experienced, with a maximum payment of AUS$150,000. Interestingly the draft legislation does not provide for a minimum payment of AUS$10,000 as recommended by the Commission. This means that as the draft legislation stands there may be applicants who for whatever reason receive no monetary payment under the Scheme. This aspect of the Scheme may also draw criticism in time.
The Scheme is an alternative to victims and survivors receiving compensation through the courts. Applicants must opt for one or the other. Once an applicant receives an award of redress they can no longer make a civil claim for damages as a result of that abuse.
In order to apply an applicant must meet the following requirements:-
• be an Australian citizen or permanent resident
• have suffered sexual abuse
• an institution must be responsible for the sexual abuse
• the sexual abuse must have occurred when the person was aged under 18
• it must have happened before 1 July 2018, when the Scheme starts (subject to the enactment of legislation)
• the institution or organisation responsible for the abuse must have joined the Scheme.
Applicants to the Scheme will be supported in the application process by the provision of free legal support services and community support services.
Eligibility for and/or the amount of redress to be paid in every individual application will be decided by trained Independent Decision makers who will be fully independent of the Government and the Scheme officials. They will have guidelines to assist them in their decision making so as to provide as consistent an approach to redress as is possible while at the same time remembering that each applicant will present with their own unique and individual circumstances.
Previous payments made to an applicant from other redress schemes do not prevent a person from applying to this Scheme but earlier payments will be taken into consideration when considering the redress payment to be made under this Scheme. Payments under the Scheme will be non-taxable and will also be exempt from any income tests that are relevant to social security payments, veteran entitlements and the like.
Former Minister for Social Services, the Hon Christian Porter MP has been reported as stating that persons with “serious criminal records” may be excluded from the Scheme. However, the draft legislation provides that a person can still apply for redress if they have a criminal conviction but if that person has been sentenced to five or more years imprisonment then their application will go through a special assessment process. This proposal has proven quite controversial as submissions have been made that tens of thousands of survivors who may wish to access the Scheme will be impacted by this special assessment process given the strong established connection between experiencing child sexual abuse and offending in later life. There are also concerns that this process will impact more significantly on Aboriginal and Torres Strait Islander persons who are disproportionately represented in Australian prisons and as having experienced child sexual abuse. It will be worth watching whether this aspect of the Scheme is enacted as drafted considering the level of attention it has drawn to date.
It seems that even at this early stage some aspects of the proposed Australian Redress Scheme may like similar redress schemes that have gone before it, struggle to deliver a Scheme that will match long held expectations for survivors and stakeholders. Already only a few months after it began there have been concerns raised by survivors who have sought redress via the Lambeth Redress Scheme. Finding a way to provide redress to all is not at all a straightforward process and inevitably IICSA will be watching with interest how the Scheme fairs.
Once the Scheme is operational we will update further.
Authored by BLM Partner, Sharon Moohan