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

First Interim Report of the Joint Select Committee on Implementation of the National Redress Scheme in Australia

Readers of the BLOG will be aware that the Joint Select Committee (JSC) was established in September 2019 to inquire into and report on:

  • the Australian Government policy, program and legal response to the redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, including the establishment and operation of the National Redress Scheme( NRS) and ongoing support of survivors
  • any matter in relation to the Royal Commission’s redress related recommendations referred to the committee by a resolution of either House of the Parliament.

The JSC has now issued its first Interim Report on the Implementation of the NRS which was released on the 3rd May, 2020.

With the Second Anniversary Review of the NRS set to commence prior to 1 July 2020, the JSC thought that it was important to produce an Interim Report to highlight priority issues and inform the direction of this review.

The report includes 14 recommendations concerning the implementation of the Scheme.

  1. The JSC recommended that the NRS make a more concerted effort to engage with survivors and survivor groups.
  2. When establishing the second anniversary review mechanism it is recommended that the Minister for Social Services, ensure that the reviewer should be a reputable person familiar with the operation of other redress schemes in the Australian and/or international context and the review should include survivors or their representatives as members of the review panel.
  3. In order to improve transparency for survivors the JSC said that each applicant should be provided with an individualised application flowchart which maps out next steps and approximate timeframes, to keep survivors and their nominees better informed about the progress of their application, the Assessment Framework Policy Guidelines should be published and the NRS should establish a direct complaint avenue for survivors, their nominees, and advocates.
  4. The JSC recommended the removal of the requirement for a Statutory Declaration to accompany each application for redress, as is currently required under section 19, 2 (d) of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.
  5. An amendment to the indexation of prior payments was also suggested, so that indexation is applied up until the date an application is submitted, rather than the date of payment offer.
  6. The  JSC said that the second anniversary review should examine the following areas for reform as a high priority:-
    • The provision of additional information in the final determination and offer provided to a survivor;
    • The appropriateness of the requirement for survivors to sign a deed of release when accepting redress payments, restricting any future compensation claim through civil courts;
    • The appropriateness of indexing prior payments; and
    • Finally the appropriateness of the current cap and matrix for calculating redress payments.
  1. The JSC goes on to say that the second anniversary review should examine the following areas for reform as a high priority:-
    • Increasing access to counselling and psychological care services, including specialist financial counselling, for survivors who intend to apply for the scheme, and throughout the application process;
    • Expanding the provision of out-of-hours support and counselling services;
    • Expanding the provision of culturally sensitive services;
    • Removing any caps or limits on counselling and psychological care services for survivors.
  1. The JSC recommended that the second anniversary review examine options to facilitate and better support survivors to seek a direct personal response as a high priority.
  2. It also recommended that the second anniversary review of the NRS should examine the reasons for the relatively low rate of applications for redress.
  3. In advance of 30 June 2020 which is the deadline for institutions to join the NRS the JSC advised that the NRS obtain a written statement from each institution which has not yet joined the NRS, but has been named in applications, detailing their intention and timeline for joining the National Redress Scheme.
  4. The JSC say that the Minister for Social Services convene the Ministers’ Redress Scheme Governance Board by 30 June 2020 to review decisions given by institutions declining to join the NRS and to determine and advise what initiatives will be undertaken by the relevant Commonwealth, state, and territory governments to remove their charitable status and/or other concessions or sources of public funding.
  5. The JSC also recommended that the Redress Scheme Governance Board expand the circumstances in which the funder of last resort provision applies so that the relevant participating jurisdiction/s act as the funder of last resort where:
    • the institution responsible for the abuse is now a defunct institution; and
    • the defunct institution would not have fallen under the operations of an existing institution.
  1. The JSC advised that the NRS closely monitor its operations during the COVID-19 pandemic to ensure that the NRS is as responsive as possible to the increased levels of anxiety, and the more limited access to counselling and psychological care services that is available to survivors.
  2. The JSC recommended that the second anniversary review investigate the appropriateness of the use of advance payments for survivors who are especially vulnerable as a high priority.

The JSC says that “Every effort must now be placed on meeting the expectations set by the Royal Commission into Institutional Responses to Child Sexual Abuse and then by the official Apology, so that more timely justice can be delivered for survivors and their families.”

The Australian Government has responded to the report saying that is it considering the recommendations.


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Written by Sharon Moohan at BLM

sharon.moohan@blmlaw.com

Supreme Court in Victoria launches new Institutional Liability List

On the 10 February, 2020 the Supreme Court of Victoria embarked on a specialised Institutional Liability List to deal only with civil claims related to institutional abuse.

The new list will include claims for damages which have arisen from or following the Royal Commission into Institutional Responses to Child Sexual Abuse and/or the State Inquiry into the Handling of Child Abuse by Religious and Other Organisations.

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Redress in Australia – slower than anticipated – changes to be made

On 29 November 2019, the Australian Minister for Families and Social Services, Senator the Hon Anne Ruston, hosted the Ministers Redress Scheme Governance Board, which is a meeting of the relevant Ministers with responsibility for the National Redress Scheme (NRS) in their state or territory.

Those in attendance noted that while redress has been paid to several hundred survivors to date (975 as of 03/01/2020) the administration of the NRS is not providing the fast, simple and trauma-informed response survivors deserve.

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Queensland’s State Parliament passes new legislation to support victims of abuse in pursuing compensation claims

On 30 October 2019 the State Parliament of Queensland passed the Civil Liability and Other Legislation Amendment Act 2019 which has made it easier for victims of abuse in that state to successfully pursue claims. The legislation widens the definition of abuse to include serious physical and psychological abuse, thereby allowing more victims in Queensland to access compensation under Australia’s National Redress Scheme.

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Australian National Redress Scheme has received over 5000 Applications

The Australian National Redress Scheme (NRS) published an update yesterday (28/10/2019).

Award processing

In that update it advised that as of the 4 October 2019 the NRS had:

  • Received over 5,040 applications
  • Made around 750 decisions
  • Of those 750 decisions the NRS has made 638 payments, totalling over AUS$51.3 million
  • The NRS had also made over 100 offers of redress, and applicants have six months to consider their offer of redress
  • The NRS is currently processing over 3,300 applications, with 618 applications on hold because one or more institution named in the application had not yet joined and about 300 applications requiring additional information from the applicant.

As of 4 October, the average payment under the NRS was AUS$80,019.

From 1 July 2019 to 4 October 2019, 405 applications were finalised, resulting in 399 payments.

This shows that the NRS have improved the rate at which it is making decisions as they have finished more applications since July this year than they did for the first twelve months of its existence.

Institutions update
As of 4 October, there were 61 non-government institutions participating in the NRS, covering over 41,300 individual sites, such as churches, schools and clubs.

In September, a number of new institutions, organisations and religious orders completed the necessary steps to join the Scheme.

The following institutions have completed the steps to join the Scheme:

  • Ballarat and Queen’s Anglican Grammar School
  • The Carmelite Fathers Incorporated (Vic)
  • Legacy Australia Incorporated (this does not include all the Legacy Clubs in Australia, the primary purpose of Legacy Australia Incorporated is the care of dependants of those who served their country; namely, veterans who gave their lives or health on operational service or subsequently, and Australian Defence Force members who die in service or as a result of their service)
  • Parkerville Children and Youth Care Inc
  • The Trustees of the Passionist Fathers

The additions to the Anglican Church of Australia participating group are:

  • All Saints’ College Inc
  • Arden Anglican School
  • Barker Barang
  • Blue Mountains Grammar School Limited
  • Campbelltown Anglican Schools Council
  • The Corporate Trustees of the Diocese of Armidale
  • The Corporate Trustees of the Diocese of Grafton
  • Governors of Hale School
  • Launceston Church Grammar School
  • The Society of the Sacred Advent Schools Pty Ltd as trustee for The Society of the Sacred Advent – St Aidan’s Trust (St Aidan’s Anglican Girls School)
  • The Society of the Sacred Advent Schools Pty Ltd as trustee for The Society of the Sacred Advent – St Margaret’s Trust (St Margaret’s Anglican Girls School)
  • The Synod of the Diocese of The Murray of the Anglican Church of Australia Incorporated
  • Trinity College Gawler Inc

The addition to the Baptist Churches of Victoria participating group is:

  • Warracknabeal Baptist Church.

The addition to the Salesian Society (Vic) participating group is:

  • Boys’ Town Engadine.

The additions to the Uniting Church in Australia participating group are:

  • Aitken College Limited (Vic)
  • Billanook College Limited (Vic)
  • Blackheath Home, Oxley (Qld)
  • Fahan School (Tas)
  • The Geelong College (Vic)
  • Haileybury (Vic)
  • Kingswood College Limited (Vic)
  • Methodist Ladies’ College (Vic)
  • Penleigh and Essendon Grammar School (Vic)
  • Pilgrim School Inc (SA)
  • Prince Alfred College (SA)
  • Scotch College (Vic)
  • The Scots School Albury (Vic)
  • UnitingCare Wesley Bowden (SA)
  • Uniting Communities Incorporated (SA)
  • Uniting Country SA Ltd.


moohan_sharonv2 Written by Sharon Moohan, partner at BLM