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Thursday, 26 August 2021
Page: 4


Mr TUDGE (AstonMinister for Education and Youth) (09:49): I move:

That this bill be now read a second time.

The National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2021 will amend the primary legislation for the National Redress Scheme for institutional child sexual abuse (the scheme). The amendments form part of the government's initial response to recommendations from the Final report: second year review of the National Redress Scheme (the review) undertaken by Ms Robyn Kruk AO.

The amendments build on and support the purpose and operation of this important scheme.

The scheme was established in response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the royal commission) in its 2015 Redress and civil litigationreport.

The scheme was established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the act), and will run for 10 years until June 2028.

The implementation of the scheme was an acknowledgement by the Australian government and state and territory governments that sexual abuse suffered by children in institutional settings was wrong, a betrayal of trust, and should never have happened.

The scheme recognises the suffering survivors have experienced and accepts that these events occurred and that institutions must take responsibility for this abuse.

The scheme is an important step towards healing and provides a monetary payment as a tangible means of recognising the wrong survivors have suffered; access to counselling or psychological services; and a direct personal response from the institutions responsible where a survivor wants that to occur.

Over the past three years, the scheme has secured the participation of all states and territories, and as of 13 August 2021, 508 non-government institutions are participating in the scheme. This means the scheme now covers approximately 66,400 sites across Australia. In addition, over 6,100 payments totalling approximately $519 million have been paid to survivors to date.

The government remains committed to encouraging all institutions named in applications to fulfil their moral obligation to join the scheme. Institutions are able to join the scheme throughout the life of the scheme, maximising access to redress for survivors.

However, for those institutions that choose not to join the scheme, the government has introduced financial consequences, in order to encourage those institutions to join. This includes institutions being restricted from accessing future Commonwealth grant funding and possible loss of their charitable status and associated tax concessions.

The Australian government also remains committed to the continuous improvement of the scheme. A range of administrative improvements have been made since the scheme's inception. Earlier this year the parliament passed legislation to address minor and technical issues with the operation of the act and addressed unintended consequences or oversights in the initial drafting of the primary legislation underpinning the scheme.

These changes did not change how survivors or institutions deal with the scheme. The intention was that substantial changes to the scheme would be best pursued following the second anniversary review of the scheme. This would ensure that any major changes to the scheme would reflect survivor and other key stakeholder voices.

It is essential that the needs of survivors are being met; that the scheme is operating effectively; and that the unique and evolving challenges in administering such a measure are being addressed.

The scheme's legislation requires that a review of the operation of the scheme be undertaken following the second and eighth anniversaries of the scheme. The Final report:second year review of the National Redress Scheme, presented byMs Robyn Kruk AO, makes 38 recommendations to increase access to redress and improve the scheme's operation, making it more trauma informed, efficient and ultimately more survivor focused.

In undertaking the review, survivor voices were front and centre and Ms Kruk consulted extensively with survivors, advocacy groups, support services, institutions and Commonwealth and state and territory governments.

I want to thank Ms Kruk, on behalf of the government, for the significant work that went into the preparation of the review report. The government also thanks the survivors and other stakeholders who contributed their experiences and feedback to inform the review.

The Australian government recognises the views of survivors and other key stakeholders, and has listened to the concerns raised and recommendations for improvement. This is why we are prioritising initial action on 25 of the 38 review recommendations in full or in part and investing over $80 million over four years in the 2021-22 budget to support implementation of these recommendations.

The government released its interim response to the review in June 2021 and we plan to provide a final response to all of the review's recommendations in early 2022.

This bill makes the first tranche of legislative changes giving effect to a number of review recommendations. The measures in this bill are relatively straightforward, however will make genuine improvements to the operation of the scheme, will ensure the scheme is more survivor focused and enable fairer outcomes for survivors.

In line with the scheme's governance arrangements, all state and territory governments have agreed to the amendments in the bill.

This bill will achieve its intended outcomes and improvements to the scheme through progressing the following amendments to the act.

Advance payments

The bill introduces an advance payment of $10,000 for priority redress applicants while they are waiting for their redress outcome.

The advance payments will be available for elderly applicants, who are aged 70 years and over, or 55 years and over for Indigenous and Torres Strait Islander applicants, or applicants who are terminally ill.

This measure reflects recommendation 4.2 of the review. Given the nature of institutional child sexual abuse, the government is aware that survivors may not come forward to seek redress for some time and may be elderly or ill when they apply to the scheme. There is a risk that survivors may pass away before receiving their redress outcome and any acknowledgement of the abuse they experienced as children.

The purpose of the advance payment is to provide these applicants with a form of recognition for their abuse early on in the redress application process.

To assist survivors, they will not need to apply for the payment. Rather, the scheme will identify eligible applicants for the payment after receiving a valid redress application, or at any time during the application process, and will then offer the advance payment to the survivor.

The amount of the advance payment will be deducted from the survivor's final redress payment amount. Whilst the Commonwealth will initially fund the advance payment when it is paid to the survivor, the amount will be recouped from the institution or institutions found responsible for the abuse of the survivor. There is no net change to institutions, and no changes to current processes for institutions.

While a person's application will not be assessed by an independent decision-maker at this point, the scheme will look at general scheme eligibility factors. Where it is later determined that a survivor who received the advance payment was not in fact entitled to redress (for example, where the institution named by the survivor in their application as responsible for the abuse does not join the scheme), the Commonwealth will not seek to recover the payment from the survivor.

In these cases, survivors will be permitted to keep the advance payments and it will be funded by the Commonwealth. This acknowledges that a person may have applied in good faith, is elderly or terminally ill, and there could be additional trauma placed on the survivor in recouping the payment.

However, where an applicant receives the advance payment as a result of providing false or misleading information to the scheme, funding would be recouped and there are existing provisions to enable this to occur. Similarly, if a person later chooses to withdraw their application or decline their final redress offer, they will be required to repay the amount of the advance payment. The advance payment is a component of a final redress payment, and is not in addition to, or a separate part of redress. This expectation will be made clear to applicants before they accept an advance payment.

Indexation of relevant prior payments

This bill amends the date used for the calculation of indexation for prior payments from the date the determination on an application is made, to the date the application is submitted to the scheme.

In line with recommendations of the royal commission, relevant prior payments an applicant has previously received from a responsible institution are taken into account in determining the final redress payment. The payment is indexed to account for inflation, with the indexed prior payment amount deducted from the applicant's final redress payment.

Currently, a person can be disadvantaged due to the time it takes to process their application, including where an institution has not yet joined the scheme.

By changing the date at which indexation is calculated to be the date an application is submitted, it will ensure that the time taken to process an application does not negatively affect the amount of their final redress payment. This change reflects recommendation 4.5 of the review, which suggested removing indexation or, if that was not supported, applying it at the date of application.

Importantly, these changes will not impact the liability for institutions, with the Commonwealth funding the increase to the redress payment.

The change to the calculation date for indexation will apply to all applications made to the scheme. This includes all applications that have been finalised before the commencement of this measure.

Extending review and acceptance periods

The bill introduces flexibility to extend the period a survivor has to consider and accept an offer of redress and the period to seek a review of a redress offer. This measure makes technical amendments to the act and addresses known anomalies in the initial drafting.

Currently, if an applicant has not accepted an offer of redress or requested an extension within the six-month acceptance period, the offer is taken to be declined. This restriction results in survivors being unable to access redress, given that they can only apply once for redress. The bill introduces the ability for the scheme operator to extend the acceptance period after their six-month acceptance period has expired, where needed to ensure the scheme is survivor focused.

Further, there is currently no ability to extend the period a person has to seek a review of their offer of redress. A review must be requested within six months of receiving their redress offer. This is problematic, particularly where a survivor has requested their acceptance period be extended prior to it expiring. In these circumstances, whilst the survivor has additional time to consider and accept their offer, they are unable to seek a review of the offer in this period. This is not trauma informed or fair for survivors.

Aligning the review and acceptance period will provide administrative flexibility to ensure no applicant inadvertently loses the ability to access redress or to procedural fairness due to the unintended restricted drafting of current provisions. It will apply to all future and past applications.

Remove statutory declaration requirement for applications

The bill will remove the current requirement for redress applications to include a statutory declaration. Removing the requirement aligns with recommendation 3.6(c) of the review and will make the scheme more trauma informed and efficient and may mean more survivors access redress.

Currently, redress applications are required to be accompanied by a signed and witnessed statutory declaration in order to be considered valid. This requirement has proven to be onerous for survivors, particularly vulnerable survivors. Many survivors consider the requirement questions the integrity of their application and they have concerns for their confidentiality. The requirement risks survivors not coming forward to access the redress they deserve.

The requirement to comply with the statutory declaration requirement was temporarily removed during the height of the COVID-19 pandemic as it become particularly difficult for survivors to comply with, particularly elderly and ill survivors. However, this was time limited and did not address the wider problems with the requirement. Social distancing restrictions continue to be felt as a result of COVID.

Removing the requirement will not lessen the requirement for applicants to be honest when applying for redress. In addition, institutions will continue to have the opportunity to comment and provide information on redress applications via the request for information process.

The scheme will still be able to appropriately deal with fraudulent applications. Section 28 of the act states that civil penalties apply where a person gives false or misleading information, documents or statements to the scheme. The Criminal Code also contains provisions to address fraudulent applications and false or misleading information or documents provided to the scheme, which are punishable by imprisonment of 12 months.

Payment by instalments

This measure will enable the ability to pay the redress payment and counselling and psychological care payment in instalments, if requested by the applicant. This would not change the amount of redress a person is entitled to, it would merely provide options for an applicant to determine how they wish to receive their payment.

Currently redress is paid as a lump sum, with the average payment amount of around $85,100. The royal commission suggested that some survivors might experience difficulty receiving lump sum payments that are much larger than the amount of money they are used to handling. Recommendation 4.4 of the review also recommended that payment by instalments be considered as an option for paying redress.

Electing to receive their redress payment in instalments will provide survivors with more control over the management of their finances as the number and frequency of the instalments will be agreed between the survivor and scheme operator.

This measure will not impact institutions responsible for the abuse. Institutions will be required to pay the entire amount of the redress payment to the Commonwealth as per the existing invoicing arrangements. The Commonwealth will arrange to make the payments in accordance with the agreement reached with the individual applicant.

Summary and exclusions from t ranche 1

In summary, this bill makes legislative changes in order to implement initial action in response to the review. This reflects the Australian government's commitment for continuous improvement of the scheme and shows we have listened to survivors and other stakeholders.

The Department of Social Services is working to have administrative arrangements in place to support implementation of advance payments and payments in instalments as soon as possible.

Extending the review and acceptance period will commence on royal assent, and all other measures will commence on proclamation to ensure appropriate arrangements are in place to support their implementation, noting all measures will be treated with urgency.

In addition to the measures in the bill, some actions do not require changes to legislation. For instance, the government is working to respond to recommendation 3.9(c) of the review, which recommended that the Australian government strengthen consistency and integrity in decision-making. The government is progressing a range of action in respect of this recommendation, including simplifications to the application form and letters, provision of increased support to survivors to engage in a direct personal response, and introduction of more personalised and meaningful engagement with survivors in the early stages of application and throughout the process.

Importantly, this bill reflects initial action and does not mean other recommendations will not be considered. Rather, the remaining recommendations, many of which constitute major changes to the scheme, require further detailed development work and consultation with stakeholders. The government will continue to progress consideration and consultation on these issues over the coming months and plans to release a final response to the review in early 2022.

The review recommended expanding Funder of Last Resort arrangements. As previously announced, the government supports expanding Funder of Last Resort provisions to cover defunct institutions where there is no government responsibility for abuse and to cover existing institutions that do not have the financial capacity to join the scheme.

This change requires agreement from state and territory governments, and I'm working closely with my state and territory colleagues to progress this measure. I am aware that some stakeholders suggest that the maximum redress payment be increased from $150,000 to $200,000, consistent with the royal commission's recommendation.

The maximum payment of $150,000 was the amount supported by states and territories in the establishment of the scheme. It balances the need to recognise the wrongs suffered by survivors while encouraging institutions to participate and to continue participating in the scheme. The current average payment amount of around $85,100 is actually higher than the average payment of $65,000 that was suggested by the royal commission.

It is important to note that the independent review did not make a recommendation to increase the current maximum redress payment to $200,000. Ms Kruk concluded that increasing the maximum payment could have significant negative impacts on survivors, institutions and the scheme. This includes risks to institutions that have predicated their participation in the scheme based on the $150,000 cap leaving the scheme or refusing to join the scheme, which would be detrimental to survivors.

Rather than increasing the maximum payment, which was not a review recommendation, the government is of the view that energy and resources should instead be directed at changes to the scheme that will improve the integrity, fairness and access.

The government is pleased to outline the important measures in this bill and will continue to work hard to implement the review recommendations and improve the scheme for the benefit of survivors.

Debate adjourned.