Update on the Australian National Redress Scheme – will its effectiveness be impacted by recent significant awards of damages CSA claims in Australia?

As of April 2022, the Australian National Redress Scheme (NRS):-

  • Had received 15,280 applications.
  • Made 9,417 decisions – including 8,087 payments, totalling over AUS$700.1 million, with an average award of redress of AUS$86,566.
  • Had made 9,167 offers for redress. (Readers of this Blog will be aware that Applicants to the NRS have six months to consider their offer of redress).
  • 5,638 applications are currently being progressed.
  • 710 are on hold or paused, including 113 applications due to institution not participating (representing 1.8% of applications on hand).

The total number of applications finalised and redress payments from establishment to date are 8,476 applications with redress of AUS$700.1 million having been paid out to date.

There still remains a number of institutions that were either named in the Royal Commission and/or in an application made to the NRS that have failed to join the NRS and they are:-

CYMS Basketball Association, VIC

Devonport Community Church, TAS

Forrest Tennis Club, ACT

Kenja Communication, NSW

Woodlands Golf Club, VIC

As previously advised these institutions will have financial sanctions applied and may lose their charitable status until such times as they join the NRS.

However, the ongoing effectiveness of the NRS (where the average award of redress is AUS$86,566) in finally determining claims relating to CSA must surely be impacted by very significant damages that claimant’s are recovering in the Courts in Australia.

In our Blog on New South Wales Supreme Court, we commented on a recent judgement handed down by the Supreme Court in New South Wales where damages totalling AUS$1,353,850 including AUS$400,000 for general damages and AUS$40,00 for aggravated damages were awarded to a defendant who was sexually assaulted when he was aged between 14 and 16 years old.

This has been recently followed with an award of AUS$1.9 million to a former altar boy who brought a civil claim against Melbourne’s archbishop, Peter Comensoli, claiming the Catholic Archdiocese of Melbourne was vicariously liable for him being sexually abused by Victorian priest Desmond Gannon.

It is likely that this is one of the contributing factors to the sluggish rate at which applications for redress are being received by the NRS.

Written by Sharon Moohan, Large Loss Casualty Partner (Sharon.Moohan@blmlaw.com)

Vicarious Liability in Australia – A brief look at the current position and how it accords with Vicarious Liability in England and Wales

The ongoing developments regarding vicarious liability in England and Wales have been covered previously by my colleagues in the BLM Abuse and Neglect News Blog; especially in light of the recent cases of Blackpool FC v DSN [2021] EWCA Civ 1352 and TVZ v Manchester City Football Club [2022] EWHC 7 (QB) in which the basis for a vicarious liability finding was considered in detail.

Some recent blogs on vicarious liability include:

In Australia, similar to England and Wales, there have been some recent cases dealing with the issue of vicarious liability which provide further guidance as to how these types of cases are being dealt with.

PCB v The Geelong College

The case of PCB v The Geelong College [2021] VSC 633 was hailed as a landmark case not only for the level of damages awarded as a result of a finding of liability on the grounds of negligence but also for reframing the way a Defendant ought to approach vicarious liability in proceedings concerning historic sexual abuse.

The Claimant brought proceedings against the College which established, owned and operated a building known as the House of Guilds which was a space for students to pursue hobbies and crafts. The Claimant alleged that a community member, who had no formal relationship with the College but was sometimes left to supervise the House of Guilds and occasionally had access to keys, groomed and sexually assaulted him on more than 50 occasions, including at the House of Guilds, in the community member’s car as well as the Claimant’s home.

The College submitted that it should not be held liable for various reasons including:
• It provided a full-time warden and had a system of rostering and supervision within the House of Guilds;
• Prior to the enactment of the Working with Children Act 2005, when the alleged conduct took place, was a “different time”;
• It was not in a position to exercise control over what happened on premises other than its own; and
• the abuse occurred as a result of contact between the Claimant and the community member that was arranged with the knowledge and permission of the Claimant’s parents.

As to the allegation that the College was vicariously liable for the abuse perpetrated by the community member on the basis that he was in an employment-like relationship with the College, the Judge dismissed it and affirmed that vicarious liability requires:

• the presence of a relationship of employer and employee; and
• a special role that the employer has assigned to the employee.

There had been no formal directions or assignments to the community member by the College thus there was no relationship between the College and the perpetrator.

As such the claim for vicarious liability was dismissed.

DP v Bird

The case of DP v Bird [2021] VSC 850 required the Court to consider whether the Diocese of Ballarat was vicariously liable for sexual abuse allegedly perpetrated by one of its priests, Father Coffey, on two occasions in 1971. The abuse occurred at Father Coffey’s home. He was the assistant parish priest as well as a teacher at the associated primary school.

The issues considered in that case were:

  1. Was the relationship between the priest and the Diocese or Bishop such that it gave rise to vicarious liability on the part of the Diocese for the priest’s conduct? (i.e. the nature of the relationship)
  2. If there is a relationship that gives to vicarious liability, is the Diocese or the Bishop liable for the priest’s unlawful conduct, it being accepted that the assaults were unlawful and far outside the priest’s clerical role? (i.e. should the Diocese be held liable?)

The Judge considering the matter ultimately found that the answer was yes to both of these questions and found that the Diocese were vicariously liable for Father Coffey’s conduct.

The Claimant relied upon authorities in the UK and Canada that the Diocese ought to be vicariously liable irrespective of whether the priest was an actual employee. The Diocese argued that unless it can be proven Father Coffey was its employee, then it cannot be held liable for the Father Coffey’s conduct arguing that the law in Australia at this time meant that considering vicarious liability outside of an employment scenario was prevented.

The Judge raised that “whether or not a priest can be said to be an employee of his or her diocese or bishop turns on the facts of the case, in particular, the manner of the priest’s appointment and the nature or structure of the relevant religious organisation”.

His analysis of the case law was that there was not a confined theory of vicarious liability restricted solely to an employer/employee relationship as contended by the Diocese.

For present purposes, it was accepted that the priest was not an employee of the Diocese as such but otherwise found in the claimant’s favour in respect of the nature of the relationship determining that vicarious liability ought not be limited to “preconceived notions of agency or employment” and, in line with other case law, “the inquiry ought to be directed to the totality of the relationship so as to enable a determination as to whether the Diocese should be held vicariously liable for Coffey’s actions as an assistant parish priest”.

The Judge considered the appropriate inquiry was whether Father Coffey’s role as a priest placed him in a position of power and intimacy such that his apparent performance of his role as a priest gave the occasion for the wrongful acts and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course of his employment.

It was ultimately found that Father Coffey was engaged in a pastoral visit when committing the alleged abuse thus in a position of power and therefore the Diocese was vicariously liable for Father Coffey’s conduct due to:

  1. The close nature of the relationship between the Bishop, the Diocese and the Catholic community in Port Fairy (where St Patrick’s school was located),
  2. The Diocese’s general control over Father Coffey’s role and duties within St Patrick’s parish,
  3. Father Coffey’s pastoral role in the Port Fairy Catholic community; and
  4. The relationship between the Claimant, his family, Father Coffey and the Diocese, which was “one of intimacy and imported trust in the authority of Christ’s representative, personified by Coffey”.

Brief comparison with recent English case law

As above, I refer to my colleagues’ blog posts as to the specificities relating to the law of vicarious liability in England and Wales.

The general rule is that vicarious liability is considered via an established two stage test which is:

  1. Is the relevant relationship between the perpetrator and organisation one of employment or “akin to employment”? Where it is not clear then regard should be had to the following (amongst other issues as identified in the Christian Brothers case):
    • The employer is more likely to have the means to compensate the victim and can be expected to have insured against that liability
    • The act will have been committed as a result of activity being taken by the employee on behalf of the employer
    • The employee’s activity is likely to be part of the business activity of the employer
    • The employer by employing the employee to carry out on the activity will have created the risk of the act being committed by the employee.
    • The employee will to a greater or a lesser degree have been under the control of the employer
  2. If so, was the act sufficient to closely connect with that employment or quasi-employment?

In respect of the recent cases of Blackpool and DSN (2021) and TVZ v Manchester City Football Club (2021), the Courts found:

  1. Blackpool v DSN – in the first instance, it found Blackpool Football Club to be vicariously liable as it was accepted that the relationship between the Club and abuser was one akin to employment and that the tort committed was in circumstances closely connected with the functions or duties arising from that relationship.  The Court of Appeal reversed this decision and held that the Club was not liable. The basis for this was that it was determined there was not a relationship akin to employment as there must be at the very least some measure of control that the Defendant is able to exert over the activities of the perpetrator to make it fair, just and reasonable to impose liability for his torts and in this case, “Blackpool FC was under no relevant statutory duty to boys who wanted to play football and did not ‘place’ the boys with Mr Roper in any meaningful sense of the word. The opposite was the case: Mr Roper scouted for boys who had no previous connection with Blackpool FC at all unless and until he introduced them to Blackpool.”
  • TVZ v Manchester City Football Club – regarding the issue of vicarious liability, the judge acknowledged that this was highly fact sensitive and that its resolution was not entirely straightforward: it depended on a detailed assessment of the nature of the relationship between the perpetrator (Mr Bennell) and the defendant.  The judge determined that the claimants had failed to establish ‘the essential ingredient of their case’, namely that Mr Bennell was in a relationship with the defendant “akin to employment” as Mr Bennell’s footballing activities were voluntary and undertaken in his spare time, his activities as a football coach had a distinct existence independent of the defendant, and there was very little evidence of the Defendant exercising control over Mr Bennell’s activities amongst other things.  As such the claimants’ claims were dismissed (as well as for other reasons including limitation).

Conclusion

The issue of vicarious liability still very much remains an area that needs to be considered in minute detail and on a case-by-case basis with each claim depending on its specific facts and circumstances. The specific role/s of the accused perpetrator, the supervising entity and the complainant always needs to be closely examined, including the context in which the alleged abuse occurred.  This is notwithstanding the specific test/criteria established and utilised in order to determine whether a finding of vicarious liability should be made.

What is clear is that the same issues relating to vicarious liability arise over various jurisdictions and a general unwillingness to make a finding of vicarious liability in cases where the specifics of an abuser’s involvement/employment with an association being sued is not crystal clear.  It is also important to be aware that whilst there are some recent (comprehensive) decisions in this area those in DSN (noted above) and in BXB v Barry Congregation of Jehovah’s Witnesses (2021) are being appealed and the latter will proceed to a hearing at the Supreme Court in late 2022.

Written by Suzanne Houghton, Solicitor at BLM (Suzanne.Houghton@blmlaw.com).

Australian news – stricter record keeping requirements for schools in the State of Victoria

New Child Safe Standards are being introduced in the State of Victoria, Australia, on 1 July 2022. We will focus on the record keeping requirements that schools in Victoria will have to follow to comply with the Child Safe Standards – noting that schools in England and Wales may be subject to similar requirements in the not too distant future.

From 1 July 2022 schools in Victoria will have to:

“develop a policy or statement that details the processes the school has in place to meet Public Records Office Victoria Recordkeeping Standards [PROV].”

Victorian law will impose these recordkeeping standards on independent and religious schools – as well as on state schools.

In response to the Australian Royal Commission into Institutional Responses to Child Sexual Abuse, PROV introduced new record keeping standards. These standards require schools (and other organisations), to:

  • indefinitely retain records about the development of policy, strategy and procedure;
  • retain reporting and investigation records for 99 years; and
  • retain training and development records for 45 years.

The new law will also require:

  • school staff and volunteers to understand their obligations on information sharing and recordkeeping; and
  • that training for staff and volunteers includes guidance on the information sharing and recordkeeping obligations.

In its Interim Report, the Independent Inquiry into Child Sexual Abuse in England & Wales (IICSA) highlighted that documentation had been critical to the Inquiry’s work. For example, records relating to Knowl View School in Rochdale showed that the local authority had been aware of sexual abuse allegations but had ignored them, though this had been denied at the IICSA hearing. In other cases, poor record keeping or lack of records altogether, had hindered IICSA’s investigations. One organisation had retained hardly any records relating to its programme for migrating children to Australia, for example. The Interim Report noted that this indicated a ‘failure to have the welfare and needs of the children as priorities.’

Of general importance to schools and other organisations charged with a duty of care towards children the IICSA Interim Report specifically indicated that – “The inquiry will consider whether it can recommend changes that would particularly benefit victims and survivors of child sexual abuse.”

IICSA’s final report is expected to be published by the end of the year – perhaps as early as this Autumn. It is likely, if not certain, that recommendations will be made in the final report, that mirror some if not all of those new requirements that are shortly to be introduced in the State of Victoria. Indeed, it is possible that IICSA might event recommend wider record keeping requirements than those about to be implemented in Victoria, such as long or indefinite retention periods for holding reports of abuse made by pupils or others, and for retaining records of the investigations that took place following such allegations.

Written by James Chambers, Large Loss Casualty Associate at BLM (James.Chambers@blmlaw.com)

Update on the Australian NRS

As readers of our Abuse & Neglect Blog will be aware the NRS started on the 1st July, 2018 and will be open for 10 years, so it is now well into its fourth year of operation.

As of December, 2020 the Australian NRS had received 9,008 applications and had finalised 4,503 applications.

In its most recent update on the 1st April, 2022 the NRS advised as follows:-

Application progress

As of 25 March 2022, the NRS:-

  • Had received 14,582 applications.
  • Made 9,164 decisions — including 7,889 payments, totalling over $682.6 million (m), with an average of $86,521
  • Has made 8,679 offers for redress. Applicants have six months to consider their offer of redress.
  • 5,923 applications are currently being progressed, 702 are on hold or paused, including 112 applications due to institution not participating (representing 1.9% of applications on hand).
  • The total number of applications finalised and redress payments in Year 1 are 239 (AUS$19.8m), 2,537 (AUS$205.0m) in Year 2, 3,283 (AUS$285.0m) in Year 3 of the Scheme and 2,148 (AUS$172.8m) in Year 4 of the Scheme.
  • 43 Individual Decision Makers are currently actively making decisions.

Participating institutions update

  • All Commonwealth and State and Territory government institutions and 577 non-government institutions are now participating in the Scheme.
  • Approximately 70,200 sites across Australia are now covered by the Scheme.
  • To date, 63 institutions have been declared under the Funder of Last Resort (FOLR) arrangements. These institutions are defunct, as government is equally responsible for the abuse and the Commonwealth and/or relevant state governments are the FOLR.

Since December 2020, some 14 months ago, the NRS have finalised 3,659 applications, which allowing for the outstanding number of applications that have yet to be decided appears to be at a slower rate than would be anticipated. The rate of processing of applications by the NRS has been the subject of criticism by victims and survivors since the inception of the NRS.

Having received only 14,582 applications to date out of an expected 65,000 it appears that the real pressures of operating a national redress scheme has yet to be experienced by the NRS and questions remain whether the existing systems and processes operated by the NRS will be able to respond as and when the rate of applications inevitably increase.

Old claims

In the case of RC v The Salvation Army (Western Australia) Property Trust [2021] WADC 117. The Court in Australia considered allegations made by a claimant over 60 years after events in question.

In summary, RC alleged that between 1959 – 1960 he was placed at Nedlands Boys’ Home which was operated by the Salvation Army. Whilst there he was sexually abused by an officer at the home.

In response to the claim for damages the defendant sought an order to permanently stay the case on the basis that they had exhausted all reasonable inquiries. Given the age of the allegation it was unable to meaningfully defend the action. It argued that it would not be in the interests of justice of the case to continue.

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Interesting developments as South Australia seriously strengthen child abuse laws

Readers of this blog may wonder why we cover so many of the developments in this area of the law in Australia however, our experience is that there are definite parallels between the work of the Australian Royal Commission into Institutional Responses to Child Sexual Abuse and IICSA and it seems inevitable that there will be further parallels and similarities arising from the implementation of the recommendations made by both inquiries.

The attorney general for Southern Australia Vickie Chapman spoke earlier this year about how “The Royal Commission highlighted shocking cases of abuse and abhorrent behaviour that should never have been swept under the rug and allowed to go unpunished” she went on to say that reforms were being introduced with the aim of  better protecting “…children and punish those who turn a blind eye to these unforgiveable crimes.”

The new laws that were passed by the State Parliament in early December, 2021 include the following:-

  • Reversing the onus of proof so that an institution will be held liable for abuse committed by associated persons, unless the institution can prove it took reasonable steps to prevent the abuse from occurring.
  • Making an institution liable for child abuse committed by its employee, where the institution supplied the occasion for the abuse, and the employee took advantage of it (known as vicarious liability)
  • Holding institutions vicariously liable for people who are akin to employees (but not actually employed by the institution)
  • Removing the legal shield for unincorporated associations to avoid legal liability
  • Enabling survivors whose settlements were unfair as a result of certain legal barriers to apply to the court to have the settlement set aside

While some of these measures are familiar to practitioners in this area of the law in England and Wales (especially the concepts of vicarious liability and of someone being in a role akin to employment) the measures providing for the reversing of the onus of proof and the setting aside of settlements that were unfair as a result of certain legal barriers, which we discussed in a BLOG earlier last week all provide further examples of this ever evolving area of the law and a willingness by politicians and governments everywhere to take whatever measures they deem necessary to make it clear that child abuse and/or turning a blind eye to it will not be tolerated in the future.


Written by Sharon Moohan at BLM (sharon.moohan@blmlaw.com)

The National Association for People Abused in Childhood is a national charity offering support to adult survivors of all types of childhood abuse, including physical, emotional, sexual and neglect. As well as advocating on behalf of survivors in the media and elsewhere, NAPAC also trains professionals who have frequent contact with survivors of child abuse as part of their working environment. If you have been affected by the issues raised in today’s blog, or would like additional support, please use the links above.

Australian National Redress Scheme – Joint Select Committee – Second Interim Report

On the 23 November 2021 the Australian Joint Select Committee on Implementation of the National Redress Scheme (“the Committee”) tabled its Second Interim Report (“the report”).

In tabling the report the Committee was keen to acknowledge that the National Redress Scheme (“the NRS”) require constant review and at times recalibration in order to effectively meet the needs of victims and survivors and society at large.

The Committee also noted that the efficacy of the NRS is also impacted by how attractive redress is as a means of dealing with these claims when considered against the broader access to civil compensation, which has been introduced by legislative changes introduced by the State and Territories throughout Australia as discussed in our earlier BLOG Reopening settlements in abuse cases – the approach in Australia – could it happen in other jurisdictions?

The report noted that “significant momentum was lost before the Scheme formally commenced and awareness of its existence is now limited”

The Committee accepts the observations of Ms Robyn Kruk AO at the time of publishing her Second Anniversary Review of the NRS in  June 2021 that there is only a very limited timeframe for making any meaningful changes to the NRS at this stage.

The Committee says that its focus is identifying those reforms that will improve survivor participation and experience and increase awareness and access to the NRS among First Nations people.

The Committee noted that 12,305 applications have been received, 7,093 offers made and 6,703 applications finalised. The 6,448 payments to survivors total approximately AUS$551.2 million, with the average Redress payment now approximately AUS $85,481.

The Committee noted that reforms made in the last 12 months to the NRS included:-

  • encouraging institutions to join by removing tax concessions and Federal grants;
  • legislating for AUS$10,000 ‘advance payments’ to elderly and terminally ill applicants and
  • expansion of the Funder of Last Resort provisions for defunct and financially incapable institutions.

However, despite these and ongoing reforms since the NRS was launched in July, 2018 the sense of the Committee is that the NRS is still more complex to administer than originally thought and this has been constant theme of the commentary on the NRS by victims and survivors.

The Committee makes 21 recommendations:

  1. The establishment of a First Nations panel to provide specific advice to the NRS on the design and implementation of cultural safety principles and practice; and the development and implementation of an intensive education campaign across regional, rural, and remote communities to drive awareness and improve access to the NRS for First Nations people.
  2. Formal evaluation of redress support services be established to ensure that the needs of survivors and their families are being met through professional and timely engagement.
  3. The NRS engage additional redress support services in regional, rural and remote areas that offer face-to-face support
  4. The NRS consider expanding current funding arrangements to provide after hours and weekend specialist services.
  5. The NRS produce public education materials to clearly explain and demonstrate how the assessment framework is applied to applications by Independent Decision Makers.
  6. The NRS introduce annual mandatory training requirements for Independent Decision Makers and that the agreed minimum training requirements are published for survivors to understand.
  7. The NRS implement an internal moderation and review process for all application determinations prior to being finalised.
  8. The NRS Scheme amend current review processes to ensure that applications are only reviewed by senior Independent Decision Makers, and allow for survivors to provide additional materials on matters raised by Independent Decision Makers.
  9. The NRS eliminate the practice of indexing prior payments made to survivors.
  10. The NRS commence indexing awards to an inflation measure.
  11. The NRS consider amending the NRS Rules so that the total financial award limit applies to each institution found responsible for institutional child sexual abuse, instead of each application (This recommendations is being made as the Committee are looking at the NRS being amended to provide that where an applicant has been abused across multiple institutions, the cap on redress payments should apply to each institution, rather than the cap being distributed among perpetrating institutions)
  12. The NRS undertake work with survivors and redress support services to determine appropriate alternative methods for the initiation of Direct Personal Responses and best practice guidelines.
  13. The NRS undertakes consultation to amend the application form as a matter of priority. The amended form should be designed for survivors who may have low levels of literacy and allow care leavers to self-identify.
  14. The NRS commence a series of face-to-face education sessions across Australia targeting known under-represented groups and regions. All sessions should be run by senior NRS employees and make provision for a question and answer component.
  15. The NRS engage additional free legal services for survivors to access.
  16. The NRS identify and fund legal services that can provide face-to-face, culturally diverse and trauma informed legal advice across regional, rural, and remote centres.
  17. The Minister’s Redress Scheme Governance Board prioritise preventing the exploitation of survivors by private law firms and works to immediately implement the following measures: 
  18. Make it unlawful for lawyers to charge contingency fees for services delivered with respect to NRS applications;
  19. Impose a legal obligation on lawyers to advise a potential client of the availability of free services (knowmore and the Redress Support Services), and to certify such advice has been provided, before executing a costs agreement for a NRS application;
  20. Consider a cap on fees that lawyers can charge for services delivered with respect to NRS applications;
  21. Make it an offence for any person to contact a person without their consent and solicit or induce them to make a NRS application; or give or receive any money or other benefit in exchange for a referral to make a NRS application;
  22. Establish a set of expected practice standards for lawyers and survivor advocates providing services with respect to NRS applications; and
  23. Establish a specific complaints process within the NRS to deal with concerns about the conduct of lawyers and representatives from survivor advocacy businesses.
  24. The Australian Government work with all Australian states and territories to examine child safety measures in relation to institutions that refuse to join the NRS.
  25. Funders of last resort arrangements are expanded to ensure that survivors of institutions who are unable or unwilling to join the NRS are able to receive all components of redress.
  26. Funder of last resort provisions be expanded to ensure that all survivors can access the NRS if they wish to do so.
  27. Future Parliament consider the establishment of a parliamentary committee to continue the work of providing oversight on the administration and operation of the NRS.

The Committee will proceed as required by its Resolution of Appointment to prepare a Final Report which will be finalised before parliament rises in May, 2022. The Committee is now accepting submission for that Final Report.

For those of you who may wish to read more about the Second Interim Report please click here.


Written by Sharon Moohan at BLM (sharon.moohan@blmlaw.com)

Australian Redress Scheme amended to make provision for elderly and terminally ill – National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021

Legislation to amend the Australian National Redress Scheme (NRS) was passed on 2 September 2021 and came into force on the 13 of September 2021.

The National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021(the 2021 Act) implements the following recommendations of the final report of the second year review of the NRS by amending the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 as follows:-

  • provide for advance payments of AUS$10 000 to elderly or terminally ill applicants, or where there are other exceptional circumstances for particularly vulnerable people
  • change the date for which the indexation of relevant prior payments is calculated
  • extend the acceptance period of a redress offer after it has expired and provide for the period within which to seek a review to be aligned with any extension to the acceptance period
  • remove the requirement for an application to include a statutory declaration, and
  • provide for redress payments and counselling and psychological care payments to be made in instalments rather than as a lump sum, if requested by an applicant.
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Update on the Australian National Redress Scheme

Second anniversary independent review submissions due by 11 November 2020

Robyn Kruk AO was appointed to conduct an independent review of the NRS which is required by the legislation (Section 192 of the National Redress Scheme for Institutional Child Sexual Abuse Act, 2018), her review will examine the operation and administration of the NRS, the experience of applicants, the financial support provided to the NRS and the support that is provided to applicants and people thinking of applying. Ms. Kurk AO is seeking submissions from applicants, their families, support service and advocates and she will provide a report to the Australian Government. The Australian Government will respond to that report and in due course the report and the Government response will be published. Due to Covid-19 the final date for provided feedback and/or making a submission was extended from 23 October 2020 to 11 November 2020.

The review was due to be completed in early 2021, and was expected to report to the Minister for Families and Social Services by the end of February 2021 however, in light of the extended date for feedback and submission this timetable will also likely be extended.

National Redress Scheme strategic success measures report published on 26 November 2020

In April 2020, the Redress Scheme Governance Board commissioned the establishment of a set of strategic success measures for the NRS. The NRS strategic success measures provide survivors and the broader community with an indication of how the NRS is performing.

The measures focus on three priority areas within the Scheme:

  • Survivor Experience,
  • Health of the Scheme and
  • Equity of Access.

On the 26 November 2020 the NRS published its first report on strategic success measures, the publication of this report and its finding in respect of these strategic success measures provides the preliminary basis for gauging the overall performance of the NRS to date. This report covers the period 1 July 2019 to 30 June 2020 and used data up to 30 September 2020.

The report noted that the NRS is committed to delivering continual improvement in how it delivers redress, this includes aiming to ensure that at least 80% of applications that name institutions that participate in the NRS have a decision communicated to the applicant within six months of being received by the NRS. In addition the NRS says that it will continue working closely with all state and territory governments to ensure institutions named in applications for redress join the Scheme.

The report shows that substantial improvements have been made in application processing times. From 1 July 2018 to 30 June 2019, the NRS finalised a total of 239 applications, giving an average of 20 per month over the period. By comparison, from 1 July 2019 to 30 June 2020, the NRS finalised a total of 2,537 applications, giving an average of 211 per month over the period. Further improvements were seen in the period from November, 2019 to April 2020 where the NRS provided an average of around 260 outcomes to applicants per month and in May and June 2020, this increased to 590 outcomes per month.

As of the 30 September 2020, 77% of applicants have accepted the offer of redress made to them by the NRS, 54% of applicants had accepted an offer of counselling and psychological care and 45% of applicants had requested a direct personal response from an institution.

As at 30 September 2020, the Commonwealth, all state and territory governments and 272 non-government institutions are participating in the NRS, covering more than 51,000 sites. These figures increased substantially between the first and second years of the NRS. The number of non-government institutions participating increased from 47 as at 30 June 2019 to 272 as at 30 September 2020.  It was reported that a further 158 institutions in this category have committed to join the NRS by 31 December 2020. Institutions named in applications or by the Royal Commission that do not join the NRS will be publicly named and may face financial penalties. We will be doing a separate blog later in the week focussing on this specific aspect of the NRS.

The report also provides some interesting data on the applicants themselves, 15% of applicants to date are aged 70 or older, 34% of applicants identify as Aboriginal or Torres Strait Islander and 50% of applicants have a disability.

The report notes that in its second year of operation the NRS wished to prioritise the processing of the large number of applications received in the first year (prior to 1 July 2019). These older applications were prioritised over new applications received during this time and around 2,537 applications received in the first year have now been finalised. While there are a small residual number of older claims currently being actioned, the NRS expects that these timelines for application processing will continue to improve.

Similar reports will be published on a 6 monthly basis going forward.

Application progress as at 18 December 2020

As at 18 December 2020, the Scheme:

  1. had received 9,008 applications had made 5,262 decisions
  2. issued 5,113 outcomes finalised 4,503 applications, including 4,464 payments totalling approximately $371.2 million
  3. had made 563 offers of redress, which are currently with applicants to consider
  4. was processing 4,188 applications

Sharon Moohan is a Partner at BLM sharon.moohan@blmlaw.com

Latest figures and update re the Australian Redress Scheme

Since the start of the National Redress Scheme in Australia we have provided updates on its progress and yesterday we commented on the recommendations for change made in connection with its implementation. The latest statistics from the NRS are detailed below.

As of 24 April 2020, the Scheme: –

  • had received 6,716 applications
  • had made 2,093 decisions, including 1,751 payments totalling over $136.8 million
  • had made 370 offers of redress, which applicants have six months to consider
  • was processing 3,843 applications
  • had 859 applications on hold, including 526 because one or more institution named had not yet joined.

 

AAAAABUSE


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Written by Sharon Moohan at BLM

sharon.moohan@blmlaw.com