The challenges of Redress

The provision of financial redress for victims and survivors of abuse is never easy and there is no system which is satisfactory to all. In a series of blogs to be published this week, we consider the latest schemes and update on how they are progressing.

A rally for survivors and their supporters took place in Melbourne on Sunday the 31 March 2019, amid calls for the National Redress Scheme (the scheme) to be changed.

The scheme which has been operational since the 1 July 2018 has been facing mounting criticism in recent months.

As of the 28 February 2019 the scheme has received more than 3,000 applications, 88 redress payments have been made with a further 22 offers being made that were being considered by the applicants.

The main criticisms are that the scheme does not reflect the trauma-informed and evidence-based recommendations of the Royal Commission.

The Royal Commission recommended a minimum payment of AUS$10,000, the scheme does not prescribe a minimum payment, survivors could be awarded as little as AUS$1000.

The Royal Commission produced a detailed matrix to guide redress determinations consisting of 100 points which were allocated as follows:-

  • 40 points for the severity of the abuse,
  • 40 points for the severity of the impacts, and
  • 20 points towards circumstances.

This matrix was replaced with an assessment framework, which is based on the severity of the sexual abuse, allowing only limited redress in respect of the severity of the impact of that sexual abuse on the survivor.

Survivors have also complained that there is no transparency around how decisions are made in terms of the redress being awarded. The decision-makers provided for in the scheme to assess the level of redress payable are aided by policy guidelines, which, if used or disclosed by an unauthorised person, can attract up to two years’ imprisonment.

Others have complained that the scheme is discriminatory insofar as it excludes non-citizens and non-permanent residents and those who have been sentenced to five or more years’ imprisonment have to go through a special assessment, despite the well documented potential relationship between child sexual abuse and subsequent criminal offending.

The Royal Commission also recommended the funding of counselling as needed over a lifetime however, the scheme only allows a fixed amount of money for counselling and this is based on the nature of the sexual abuse. If there were no penetration, a survivor will be awarded AUS$1,250 for counselling, which increases to a maximum of AUS$5,000 where the survivor has experienced penetrative abuse.

There is no access to external review of decisions by the scheme, although the Royal Commission recommended redress processes that would be survivor-focused, accountable, procedurally fair and transparent.

Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into institutional responses to child sexual abuse

A bipartisan Commonwealth Joint Select Committee (JSC) on the oversight of the implementation of redress related recommendations of the Royal Commission into institutional responses to child sexual abuse has been receiving submissions and holding hearings over the last six months and the JSC reported on the 2 April, 2019.

The JSC says it is acutely aware of how difficult it is to make any significant legislative and/or policy amendments to the National Redress Scheme, even at this early stage in its operation. However, the JSC goes on to say that significant changes to the scheme are needed, cannot wait and must be made now.

The JSC Report makes 29 widespread recommendations to which the following principles must be applied:-

  • Any amendments must be survivor-focused and trauma informed,
  • Amendments to the scheme must proceed on the basis of “ do no further harm” to the survivor,
  • Amendments must be conditional on proper consultation with survivor groups, and that consultation must be incorporated into the proposed amendments.

The JSC is also critical of the fact that the scheme does not provide any mechanism to compel private institutions to join the scheme, which they say is both unfair and unacceptable as it means that survivors of abuse from institutions who refuse to join the scheme cannot access redress.

The JSC recommends that Institutions that refuse to join the scheme and to accept responsibility for their actions should be subject to clear penalties, which could include the suspension of tax concessions and the withdrawal of their charitable status.

The JSC says that fundamental to the success of the scheme and the assessment as to whether the objects of the scheme are being achieved is whether the key components of redress align with the recommendations of the Royal Commission.

The JSC has found that the scheme falls short of many of the key recommendations of the Royal Commission especially the monetary component, the counselling and psychological care component and the direct personal response component.

The JSC notes that any amendments to the scheme will require agreement from state and territory government and while such agreement will prove challenging they believe it is possible and without the proposed amendments the scheme may never be properly accepted by survivors as a fair scheme and a credible alternative to civil litigation.

The overarching message of the JSC is that for the scheme and the redress envisaged by it to be successful, it must be transparent and accountable, the processes must be clear and visible and easily understood by survivors.

Only time will tell whether the Commonwealth, state and territory governments have the political and economic appetite to respond to the recommendations of the JSC and the criticisms of the survivors and their supporters.

However, with the scheme being open for another nine and half years and potentially over 55,000 people still eligible to apply to the scheme, perhaps the real question is can they ignore the JSC recommendations if the scheme is to be a credible and viable alternative to civil litigation?

news_21734JD Written by Sharon Moohan, partner at BLM

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