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

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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Impact of the Abolition and Amendment of the Law of Limitation in relation to non-recent child abuse – comparative experiences

Western Australia is the latest state to introduce laws which will enhance the prospects of success for claimants’ bringing claims for damages arising out of non-recent sexual abuse. Following the lead of all other states, apart from South Australia, legislation has just been enacted that will abolish the 6 year limitation period.   The recently concluded Royal Commission found that on average an individual waited 22 years to disclose their abusive experiences   The changes being introduced also provide a legal basis for suing institutions in the name of their current office holders and include provisions designed to overcome difficulties survivors may face in identifying a correct defendant.  Continue reading

Institutional Responses to Child Sex Abuse in Schools

The Royal Commission into Institutional Responses to Childhood Sexual Abuse has published its final report.  Chapter 13 specifically considers Childhood sexual abuse in schools and makes a number of recommendations to prevent abuse from happening, and where it does to ensure an effective response.

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Support Services for survivors

As reported last week the Royal Commission has published its final and lengthy report. It covers many subjects, themes and organisations and in the next few weeks there will be further commentary on this blog about some of those topics and crucially the recommendations made.

One theme which has run through the work of the Royal Commission has been that of redress. Two years ago a redress scheme was recommended and it has now, in an amended version, been approved in principle to take effect from 1 July 2018. Redress means many different things to different people. As Lambeth Borough Council sought yesterday, amid some confrontation, to approve a scheme which seeks to make the path to redress simpler, it is clear that it is by no means straightforward to achieve. Shirley Oaks Survivors Association (SOSA) retweeted a range of negative comments about the scheme which had taken over a year to draft and had had significant input into it from SOSA itself and its legal team. Yet it still remained the subject of damning criticism from some.

One issue which will always be a challenge is how to assess a monetary value in compensation for the abuse and its consequences. The Royal Commission recommended a scheme with maximum payments of A$200,000 (£114,760); the Australian Government Scheme implementing the Royal Commission recommendations will award up to a maximum of A$150,000 (£86,070); the Lambeth Scheme has a maximum payment of £125,000; the Northern Ireland recommendations which have made no progress since being published in January 2017 were for payments of up to £100,000. These are maximum payments for the most severe abuse. These may or may not be life changing sums of money, for some whatever the sum it is the recognition of the harm done which is what the money represents and for others no sum however big or small will compensate for what happened and what the consequences of the abuse have been. No matter what approach an organisation takes in assessing a monetary value for redress it is likely it will not be considered right by all victims and survivors. Making that assessment can be very difficult for all involved and a clear and easy formula for making a fair assessment which could be understood and applied by all is needed and remains elusive.

The Royal Commission’s 2015 report concluded that redress should include not just monetary payments but also a direct personal response as well as counselling and psychological care. The final report has expanded the response to victims and survivors to include the provision of a much wider, integrated and cohesive range of support services. Those recommendations include that there be a dedicated system of community-based support services which provides advocacy and support, including counselling and case management. The creation of a national service to assist victims and survivors understand the legal options and navigate the legal system is proposed, along with a national telephone helpline and website to provide information and assistance. The national service should, the Royal Commission concludes, be funded by the Australian Government and provide advice including about accessing, amending and annotating records and options for initiating police, civil litigation or redress processes. It will be interesting to see which of these recommendations are effected and which will be similarly recommended by the inquiries in England and Wales and Scotland when they in due course report on redress and support for survivors.


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Written by Paula Jefferson, partner and head of abuse and neglect at BLM.

Inquiries update

The four active national abuse inquiries are all at the moment running smoothly, a positive step for the inquiries in Scotland and England and Wales in particular. Recent progress and up-coming developments are summarised below.

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Inquiries update: progress and developments

The various inquiries connected with sexual abuse of children have now had a period of making progress. Recent and expected developments are summarised below.

Independent Jersey Care Inquiry

The final report from the Jersey inquiry was due to be available within the first quarter of 2017. However, it has recently been announced that publication will be delayed for a short period.  This is due to some new information being made available to the panel in relation to Phase 3 of the enquiry dealing with recommendations for the future of childrens’ care in Jersey. A revised publication date has yet to be confirmed.

IICSA

The first hearings in the Children Overseas – Child Migration investigation have been held. A number of child migrant witnesses gave oral evidence along with the Inquiry appointed experts. The organisations involved in child migration will give their evidence at a hearing starting on 10 July. A further preliminary hearing will be held on 9 May.

The Victims & Survivors Consultative Panel (VSCP) has published revised Terms of Reference. The Panel has seven members who will advise the Inquiry on its engagement with victims and survivors; its communication with the public; share their expertise and knowledge in developing the work of the Inquiry; and advice on the formulation of recommendations. The VSCP has published a report on its work to date.

A second preliminary hearing in the Accountability & Reparations Investigation will be held on 28 March. There are five case studies within that investigation and a timetable is anticipated for evidence and hearings in those five case studies.

The Department of Sociology at Lancaster University has been commissioned by the Research Project to prepare a rapid evidence assessment of what is known about the characteristics and vulnerabilities of victims of online-facilitated child sexual abuse and exploitation. Anyone wishing to contribute material to this research is requested to provide materials by 28 April 2017.

Scottish Child Abuse Inquiry

The SCAI has now published a number of administrative guides to explain how it will operate. These include protocols for the provision of witness statements and other evidence and for anonymity and other restriction orders. Factsheets explaining what the SCAI will do when it is told about abuse and disclosure of allegations have also been produced.

Royal Commission, Australia

As noted in our earlier blog the RC is producing many publications as it moves to its final report. In the last two weeks it has published the following:

  • A research report which considers the recruitment and support of carer in out-of-home care which includes foster care, kinship care and residential care settings
  • A research report which looked at the current services and facilities focused on child sexual abuse prevention. This concluded that there was a lack of co-ordination between the various organisations working in this area.

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Written by Paula Jefferson, partner and abuse claims expert at BLM

Sexual abuse and sport: the current position

Earlier this month Barry Bennell, former coach with Crewe Alexander, was charged with 12 further counts of indecent assault and serious sexual assault on boys in the years between 1980 and 1987. This brings the outstanding charges against him to 20 since Andy Woodward and other players’ allegations about him were first made in November 2016.  He has pleaded Not Guilty to all charges.

Since those initial disclosures there has been a succession of disclosures and developments within UK football and other sports.

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The Royal Commission – Australia’s Inquiry – an update

As Australia is the news through the IICSA child migrant investigation, the work being undertaken by the Royal Commission (RC) in considering issues relating to abuse across many different organisations in Australia should not be forgotten. We summarise below its most recent work, much of which is of relevance irrespective of the jurisdiction in which an organisation finds itself.

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Abuse in plain sight

The Royal Commission into Institutional Responses to Child Sexual Abuse in Australia has issued its report following the examination of allegations of child sexual abuse of a number of former students at two performing arts institutions in Sydney:-

  • the Australian Institute of Music (AIM)
  • RG Dance Pty Limited (RG Dance)

Performing arts institutions such as AIM and RG Dance are not typical of the organisations that we commonly associate with allegations of child sexual abuse. What is most striking about this report is the reaction and/or inaction of some parents and other responsible adults in the face of these allegations, when the abuse was in plain sight.

In the case of AIM, Victor Makarov a renowned Ukrainian pianist, was appointed head of the piano department in 1998 and taught there until 2004. Between mid-February and May 2004 Makarov was charged with 30 child sexual offences. He continued to teach at AIM under supervision and with restriction, despite the fact that in April 2004, the NSW Department of Education advised AIM that Makarov was considered a ‘high level of risk’. Makarov was never suspended by AIM and remained in post until he sought leave from AIM in July, 2004, which was granted.

On the 30 March 2004 the New South Wales Ombudsman served an investigation notice on AIM notifying its intention to investigate AIM’s handling of and response to the allegations of child abuse. In the course of this investigation, it was discovered that despite having been charged with 30 child sexual offences Makarov was teaching students in his home, these students’ parents had taken their children out of AIM so that they could be taught by Makarov at home. Makarov was eventually convicted for child sex offences and subsequently jailed.

Grant Davies was a dance teacher and co-founder of RG Dance. Police began investigating him after his wife found child pornography material and messages on his laptop. In 2013 he was charged with 63 child sexual offences relating to various acts of child sexual abuse committed over a period of 13 years between 2001 and 2013. His victims were aged between nine and 14. Davies pleaded guilty to a large number of child sex abuse charges and in 2015 was sentenced to a maximum term of 24 years’ imprisonment, with a non-parole period of 18 years.

Davies used his position as a dance teacher to groom students and commit child sexual abuse offences.  He talked with them online late into the night. He entered changing rooms unannounced, inappropriately touched students and made sexualised comments to them. In 2007 complaints of child sexual abuse offences were made against Davies to the police by a number of RG Dance students.  Although NSW Police investigated the allegations, the matter did not proceed to a prosecution.

Many of these acts occurred in public places within RG Dance and were witnessed by parents, teachers, administrators and students. The parents of the children had a strong wish for their child to succeed at dance and many believed Davies when he promised he would turn their daughters into stars. Davies was also able to groom the parents to comply with his wishes. The students, who wanted to succeed, felt emotionally blackmailed and intimidated by Davies. Both parents and students feared that if they did not comply with Davies’ requests that this would negatively impact their dance careers and their opportunity to be a star. As a result abuse was not reported when it should have been, thus enabling Davies to abuse children over such a long period of time, which is particularly worrying when you consider that this abuse is not historical in nature, it is very recent having taken place as late as 2013.

However, with recent revelations of similar abuse in football in the last few months, what is now clear is how vigilant we as a society must be when it comes to the steps that must be taken to protect children in the very many circumstances where they come into regular contact with adults in their daily lives.

Today in the majority of situations where adults work and/or interact with children there are established child protection/safeguarding policies or codes of conduct in place and the necessary procedures and systems required to prevent, handle and receive complaints of allegations of child sexual abuse are embedded in those organisations.

Of course for those policies and procedures to be effective, people need to be aware of their existence, trained in how to apply them and know how and when to activate the procedures so that abuse in plain sight does not go unreported.


Written by Sharon Moohan, associate