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:
- 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.
- 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.
- The NRS engage additional redress support services in regional, rural and remote areas that offer face-to-face support
- The NRS consider expanding current funding arrangements to provide after hours and weekend specialist services.
- The NRS produce public education materials to clearly explain and demonstrate how the assessment framework is applied to applications by Independent Decision Makers.
- The NRS introduce annual mandatory training requirements for Independent Decision Makers and that the agreed minimum training requirements are published for survivors to understand.
- The NRS implement an internal moderation and review process for all application determinations prior to being finalised.
- 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.
- The NRS eliminate the practice of indexing prior payments made to survivors.
- The NRS commence indexing awards to an inflation measure.
- 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
- 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.
- 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.
- 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.
- The NRS engage additional free legal services for survivors to access.
- 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.
- 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:
- Make it unlawful for lawyers to charge contingency fees for services delivered with respect to NRS applications;
- 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;
- Consider a cap on fees that lawyers can charge for services delivered with respect to NRS applications;
- 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;
- Establish a set of expected practice standards for lawyers and survivor advocates providing services with respect to NRS applications; and
- Establish a specific complaints process within the NRS to deal with concerns about the conduct of lawyers and representatives from survivor advocacy businesses.
- 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.
- 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.
- Funder of last resort provisions be expanded to ensure that all survivors can access the NRS if they wish to do so.
- 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.