Final report of the second year review of the Australian National Redress Scheme published

On the 15 July 2020 Robyn Kruk AO who had been appointed to conduct an independent review of the Australian National Redress Scheme (“the NRS”), wrote an open letter telling people that she wanted to hear from them directly about how they felt the NRS was working. The second anniversary review of the NRS was required by law having been provided for at Section 192 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.

Due to COVID19 restrictions Robyn Kruk AO was not able to meet with people face to face to discuss their experiences and views, instead people were asked to make written submissions or submit feedback on the NRS website. She made it clear that she wanted to hear from people who had applied to the NRS and people who had not. During the course of the review, she met with 81 survivors, support services, government agencies and ministers. She received 226 submissions, which provided significant insight into the NRS, how it operated, and how to improve the survivor experience. The review had also commissioned a feedback study in which 503 survivors, support groups and institutions participated.#

The review took place between July 2020 and March 2021 and the final report was presented to the Minister at the end of March 2021 but was only published on the 23 June 2021.

Ms Kruk said that the establishment of the NRS required unprecedented co-operation between Commonwealth, state and territory government and institutions and was illustrative of the fact that those involved wanted to take responsibility for past abuse and to take the necessary steps to ensure that it didn’t happen again.

While there still is a strong commitment to the principles on which the NRS was established, Ms Kruk felt that current awareness of the NRS is limited and this appears to have resulted from some Governments in Australia having introduced changes that have made civil litigation/compensation processes more accessible in this area. Although such civil litigation/compensation processes inevitably require a higher burden of proof if successful the monetary compensation payable can be much higher than the equivalent redress on offer.

Ms Kruk says that on the one hand there is an acceptance of the need to improve victim and survivor experience; hold institutions accountable; strengthen the measures being used to facilitate non-government institutions signing on to the NRS; support the NRS integrity; increase transparency; drive ongoing improvement of the NRS operation and performance; and address unintended or negative survivor consequences identified in the NRS’s early conduct linked to legislation, policy and practice.

However, on the other hand she cautioned that in circumstances where the NRS had been operating for two years there is an equally strong recognition of the need not to undermine the existing premise and principles on which the NRS is based and/or to make any changes to the NRS that would require reassessment of the work done, possible re traumatisation of survivors or might damage the current level of engagement of the many and varied stakeholders in the NRS.

This being the case Ms Kruk was of the view that there was limited scope to effect real change of the NRS and therefore the review has focussed on what steps could be taken to improve the experience of the victims and survivors while ensuring that the NRS remains viable.

The review makes 38 recommendations to increase access to redress and improve the NRS’ operation, making it more trauma-informed, efficient and ultimately more victim/survivor-focussed.

Ms Kruk said that when established the NRS was to be survivor-focussed and it is not, she said that it needs to be fundamentally reset now if this objective is to be achieved.

The review states that the process of redress must be simpler, easier to use and flexible to achieve justice for victims and survivors. There are calls for greater consistency in the decision-making and that decision letters awarding redress should give reasons for the level of redress awarded set out in plain English.

The review calls for the need to increase awareness of the NRS that make it clear how redress differs from civil litigation. This should be done by targeted communication that takes account of the culture and language of the diverse communities who are entitled to apply for the NRS.

The review recommended end to end support for victims and survivors when making an application including counselling, legal and financial support. One of the ongoing criticisms of the NRS has been that victims and survivors cannot choose their own legal advisors to guide them through the redress process, who would in turn be paid by the NRS, this is also one of the reasons put forward by some for a lower take up of the NRS than anticipated. Victims and survivors report that they are reluctant to engage with the free legal support provided by the NRS as it requires them to tell their story all over again to someone else with whom they have no previous relationship or established trust.

The National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2019, which sets out details of the redress and counselling tariffs payable under the NRS has been highly criticised since its introduction. It came in for further criticism in the course of the review, the criticisms relate to the adequacy in assessing redress, transparency/lack of consistency in applying the framework and decisions made on foot of the framework not being supported by reasons. The review recommends that key documents relating to the operation of the framework now be made public (this has not been the case to date).

The review does not support increasing the existing payment cap from AUS$150,000 to AUS $200,000, it noted that redress payments have been larger than initially anticipated. However, it did recommend a minimum payment and advance payments of AUS$10,000 for eligible survivors born before 1944, or 1964 for applicants that identify as Aboriginal and Torres Strait Islander; and those with terminal illness. A number of recommendations were also made by the review to amend eligibility criteria for prison inmates, non-citizens and non-permanent residents who were abused in Australia.

Further clarity is required in deciding what prior payments made are relevant in assessing redress and indexation of prior payments should be removed according to the review.

The review noted the low take up in both counselling supports and direct personal apologies and recommends that these be better publicised.

Currently, the funder of last resort obligation only arise where an institution is defunct and participating state/territory governments share equal responsibility, this had lead in some instances to significant delays in applications for redress being paid, 443 applications are on hold for up to two and half years as there are issues as to who the funder of last resort should be. The review recommends that governments make early decisions to agree to share responsibility to provide funder of last resort funding to minimise the length of time victims and survivors are waiting to have redress paid.

The review makes a number of recommendations that focus on the need to have skilled and supported staff and that the NRS cannot be operated on short term contract staff. Staff must be able to communicate with victims and survivors and must also reflect the diversity of those applying to the NRS.

There was criticism of the redress ICT system which cannot provide vital information needed to track and improve the redress process and also funding models.

In conclusion Ms Kruk says that the consistent theme of the review is that change is needed though she is guarded about how real change can be delivered when the NRS is in the third year of its operation. Change will only be effective and improve the NRS if it puts the victims and survivors at the centre of the redress process.

Written by Sharon Moohan, Partner at BLM

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