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National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2021

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2019-2020-2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT BILL 2021

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for Families and Social Services, Senator the Hon Anne Ruston)



NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT BILL 2021

 

 

OUTLINE

 

The National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2021 ( the Bill ) amends the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 ( the Act ). The Bill modifies various aspects of the National Redress Scheme for Institutional Child Sexual Abuse ( the Scheme ) to provide better outcomes for survivors of institutional child sexual abuse, as a preliminary response to the second-year review of the Scheme that was conducted in accordance with section 192 of the Act.

 

The Final Report, Second Year Review of the National Redress Scheme (the Review), prepared by independent reviewer Ms Robyn Kruk AO, was publicly released on

23 June 2021.  The Australian Government has released an interim response to the Review which outlines that the Government is prioritising initial action on 25 of the 38 Review recommendations in full or in part. 

 

This Bill reflects the legislative changes needed to implement initial measures in response to the Review.  In summary these measures are:

 

Advance payments

This Bill introduces advance payments of $10,000 in certain circumstances. The advance payment can be made to elderly applicants aged 70 years and over, or 55 years and over for Aboriginal and Torres Strait Islander applicants, terminally ill applicants, or where there are other exceptional circumstances for particularly vulnerable people.  This ensures these vulnerable applicants are paid an initial amount as a priority, while their application continues to be progressed.

 

Indexation of relevant prior payments

The Bill provides that relevant prior payments (which are taken into account in determining a person’s redress payment) must be indexed according to the number of whole years since the relevant prior payment was made as at the date of the person’s application for redress, rather than as at the date of the determination.  This amendment will ensure survivors are not disadvantaged by the time taken to process an application.

 

Extending review and acceptance periods

The Bill addresses unintended consequences of the initial drafting by allowing flexibility to extend the acceptance period of a redress offer after it has expired and for the period within which to seek a review to be aligned with any extensions to the acceptance period.  This will address current timing anomalies in the legislation and better support access to redress and reviews.

 

Remove statutory declaration requirement for applications

The Bill removes the requirement for an application to include a statutory declaration in order to be valid. This removes unnecessary barriers that may stop some applicants from applying to the Scheme and accessing redress. It will remain an offence under the Act to submit a false or misleading application.

 

Payment by instalments

The Bill provides for redress payments to be made in instalments rather than as a lump sum, where requested by an applicant.  This gives applicants choice and control as to how they receive their redress payments.

 

The remaining Review recommendations, many of which constitute major changes to the Scheme, require further development work and consultation with stakeholders.  The Government is continuing to progress consideration of these issues.

 

Financial impact statement

 

MEASURE

FINANCIAL IMPACT OVER THE FORWARD ESTIMATES

All measures

More than $80 million committed over four years in the 2021-22 Budget to support implementation of recommendations of the Review, inclusive of the measures in this Bill.

 

 

REGULATION IMPACT STATEMENT

 

A regulation impact statement was not required as the measures in the Bill do not alter how businesses interact with the Scheme and do not have more than minor regulatory impacts for individuals.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The Bill is compatible with human rights because it promotes the protection of human rights and does not introduce any limitations on human rights. A Statement of Compatibility with Human Rights is at the end of this document.  



NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT BILL 2021

 

 

 

NOTES ON CLAUSES

 

Abbreviations used in this explanatory memorandum

 

  • Act means National Redress Scheme for Institutional Child Sexual Abuse Act 2018 ;

 

  • Operator means National Redress Scheme Operator, as defined in section 6 of the Act;

 

  • Rules means the National Redress Scheme Rules, made under section 179 of the Act;

 

  • Scheme means the National Redress Scheme for Institutional Child Sexual Abuse established by the Act.

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2021 .

 

Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedules to, the new Act.  It provides that Schedule 3 commences on the day after the Act receives Royal Assent. Schedules 1, 2, 4 and 5 commence on a day to be fixed by Proclamation.  However, if any of the provisions of Schedules 1, 2, 4 and 5 do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period.

 

Clause 3 provides that legislation that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Act has effect according to its terms.

 

 



Amendments

 

 

Summary

 

The National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2021 ( the Bill ) amends the Act to modify various aspects of the Scheme to provide better outcomes for survivors of institutional child sexual abuse, as a preliminary response to the second year review of the National Redress Scheme that was conducted in accordance with section 192 of the Act.

 

This Bill reflects the legislative changes needed to implement initial measures in response to the Review.

Background

 

Advance payments

 

The Act will be amended to provide for the Operator to make an advance payment of $10,000 to elderly (applicants aged 70 years and over, or 55 years and over for Aboriginal and Torres Strait Islander applicants) or terminally ill applicants, or where there are other exceptional circumstances for particularly vulnerable people. Applicants who are under the age of 18, but will turn 18 before the end of the Scheme can receive an advance payment if they meet the eligibility criteria. This measure will ensure that vulnerable applicants are paid an initial amount as a priority, while their application continues to be progressed.

 

Due to the historical nature of institutional child sexual abuse, applicants to the Scheme many be elderly or terminally ill when they apply. The advance payment would ensure these applicants receive an early payment as a portion of their redress payment, which would be deducted from the applicant’s final payment.  The advance payment would not impact the assessment of a person’s application; this would continue to be assessed as per existing Scheme processes.   

 

For the Operator to make an advance payment, the Operator must be satisfied that there is sufficient evidence the person meets the criteria and it is appropriate to make the payment, taking into account where it may be known, or suspected, that the person will not be eligible or entitled to redress. 

 

Provision of an advance payment would not be subject to merit review. This is a preliminary step early in the application process to provide vulnerable applicants who meet eligibility for an advance payment with immediate acknowledgement, while their application is assessed and progressed. A person’s eligibility for redress and the decision on their redress application follows, which will be undertaken by an Independent Decision Maker.  A person may seek a review of their redress determination.   

 

The current delegation provisions for the Operator to delegate to officers within the Scheme will apply for advance payments. The Operator will determine the appropriate level for delegation commensurate to the function, taking into account the officers functions in the Scheme.

 

There is no change for institutions.  Institutions would remain liable for their total share of a person’s redress payment, with the Australian Government funding the advance payment and redress payment upfront. Institutions will continue to be invoiced for the redress payment as per current arrangements. 

 

The Scheme would recover the advance payment should the applicant provide false information in their application, withdraw their application prior to determination, or decline their offer. The recovery of funds in these circumstances acknowledges that withdrawing an application prior to determination, or declining an application is a choice made by the applicant. Applicants will have the choice to receive the advance payment and will be provided information on the debt provisions before accepting the payment. Where an applicant submitted and progressed with their application in good faith, but was later deemed ineligible or not entitled, the advance payment would not be recouped and will be paid by the Commonwealth. The Scheme has existing provisions to deal with false or misleading applications.

 

Indexation of relevant prior payments

 

The Act will be amended to change the date at which indexation of prior payments is indexed. Relevant prior payments that an applicant has received from an institution are taken into account in determining a person’s redress payment. Indexation is applied and the indexed amount is deducted from the final redress payment. The relevant prior payments will be indexed according to the number of whole years since the relevant prior payment was made until the date the person submits their application for redress, rather than as at the date of the determination.

 

This will ensure that the time taken to process an application does not affect the amount of the final redress payment. The measure will not impact the liability for institutions, with the Commonwealth funding the increase to the redress payment as a result of the measure.

 

The change to the date of indexation will apply to all applications made to the Scheme, including applications that have been finalised before the commencement of the measure.

 

Extending review and acceptance periods

 

The Act will be amended to introduce flexibility to extend the period an applicant has to consider and accept an offer of redress and the period to seek a review of a redress offer.  

 

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.

 

The Bill also aligns the review and acceptance periods to address a current anomaly in the drafting.  This means that where an applicant has their six month acceptance period extended, the review period will also be extended. At present, the Act does not allow for the review period to be extended, which can result in applicants who have had their acceptance period extended being unable to seek a review in this extended period. 

 

Remove statutory declaration requirement for applications

 

The Act is amended so that an application for redress is no longer required to be verified by statutory declaration in order to be a valid application.

 

The requirement to provide a statutory declaration has proven not to be trauma informed and risks deterring survivors from accessing the Scheme. Survivors can feel it is questioning the integrity of their story and the requirement can be problematic and burdensome for survivors to obtain, particularly those remotely located, isolated or vulnerable.  Applications to date have been accompanied by incorrect or incomplete statutory declarations, creating more trauma for the survivor. The removal of the requirement will streamline the application process and remove the burden on survivors.

 

Removing the requirement will not lessen the requirement for applicants to be honest when applying for redress.

 

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 Act 1995 also contains provisions to address fraudulent applications and false or misleading information or documents provided to the Scheme. This is consistent with other social security payments, which do not require applicants to complete a statutory declaration but still have serious consequences for people who provide false or misleading information.

 

Payment by instalments

 

The Act is amended to provide for redress payments to be made in instalments, should that be requested an applicant.  This will give applicants choice and control as to how they receive their redress payments, with the specific payment arrangement to be agreed with the Scheme.

 

The current delegation provisions for the Operator to officers within the Scheme will apply. The Operator will determine the delegated position for this function within the Department of Social Services.

 

Schedule 3 commences on the day after the Act receives Royal Assent. Schedules 1, 2, 4 and 5 commence on a day to be fixed by Proclamation.  However, if any of the provisions of Schedules 1, 2, 4 and 5 do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period.

 

 

 

Explanation of the changes

 

Schedule 1 - Advance payments

 

Part 1 - Main amendments

 

Item 1 amends the simplified outline in section 4 as a consequence of the new Part added by item 10, to set out that the Operator may make an advance payment to a person, or to the administrator if another person is the administrator of the person, in certain circumstances.

 

Item 2 adds a definition of advance payment to section 6 (the dictionary) for the purposes of amendments to Chapter 2 and the addition of a new Part 2-6 of the Redress Act made by item 10.

 

Item 3 amends the definition of saved amount in section 6 (the dictionary) for the purposes of amendments to Chapter 2 and the addition of a new Part 2-6 of the Redress Act made by item 10, to refer to the definition of advance payment set out in subsection 56D(2) added by item 10.

 

Item 4 amends subsection 22(2) to provide that the debt provisions relating to an advance payment, added as a consequence of the new subsection added by item 10, will apply despite the person withdrawing their application under subsection 22(1).  This will ensure that the Commonwealth can recover debts owed where the person is not eligible for redress because they have withdrawn their application.

 

Item 5 adds a sentence to the end of step 1 to the method statement in subsection 30(2) to clarify that in applying the assessment framework to work out the maximum amount, any advance payment or relevant prior payment is to be disregarded This is as a consequence of the new Part added by item 10 and the amendments  made as a consequence of item 5 of Schedule 2

 

Item 6 repeals and substitutes subsection 30(3) with new subsections 30(3) and (4), to amend the method of calculating the amount of redress payment as a consequence of the new Part added by item 10.

 

Item 7 adds a new paragraph 35(2)(b)(iiib) as a consequence of the new Part added by item 10, to require that the notice of determination must state the amount of the advance payment if one has been made.

 

Item 8 adds a new paragraph 39(ba) as a consequence of the new Part added by item 10, to require that the written offer of redress to a person specifies the amount of the advance payment if one has been made.

 

Item 9 adds a new paragraph 39(ra) as a consequence of the new Part added by item 10, to require that the written offer of redress informs a person that, if the offer is declined, the amount of the advance payment, if one has been made, will become a debt due to the Commonwealth.

 

Item 10 adds new Part 2-6 to Chapter 2 (Advance payments).  There is currently no provision for an advance payment to be made for a person who makes an application for redress.  The new Part will allow an advance payment of $10,000 to be made in limited circumstances.  The advance payment will be included in any calculation of an offer of redress should an application be approved, and will become a debt to the Commonwealth if the person withdraws the application or the person declines an offer of redress made by the Operator.

 

New section 56A provides a simplified outline for the part, setting out that in certain circumstances, the Operator may make an advance payment of $10,000.

 

New section 56B sets out the circumstances which apply to the Operator’s consideration of whether an advance payment should be made. Subsection 56B(1) sets out the eligibility criteria for the making of an advance payment.  An advance payment may only be made where an application has been made; the application includes a statement from the person about whether the person suffered institutional child sexual abuse inside a participating State, inside a Territory or outside Australia; the person was not prevented from making an application under section 20; the Operator has not made a determination to approve or not to approve the application; the person is aged 70 or over, or 55 or over if they are an Aboriginal or Torres Strait Islander person, or terminally ill, or there are exceptional circumstances, or other circumstances which may be prescribed by the rules. To be eligible for an advance payment, the person must not have died, the Operator must consider it appropriate to make the payment, and any requirements prescribed by the rules must be satisfied.  Subsection 56B(2) sets the amount of the advance payment at $10,000.  Subsection 56B(3) provides that the advance payment may be made to the person, or to their administrator if the Operator considers it appropriate.  Subsection 56B(4) requires that the Operator gives written notice of the advance payment.  Subsection 56B(5) provides that the rules may prescribe matters relating to the payment of advance payments.

 

Section 56C sets out the general rules relating to the protection of the advance payment.  Subsection 56C(1) provides that a redress payment is a payment of compensation under the Scheme.  However, for the purposes of the Social Security Act 1991 , the Veterans’ Entitlements Act 1986 and any other Commonwealth, State or Territory legislation, the advance payment is not to be treated as being a payment of compensation or damages.  The legislative note at subsection 56C(1) clarifies that this new subsection prevents an advance payment affecting other payments that may be payable to the person under legislation (for example, when determining whether a social security payment is payable, or the amount of such a payment, the advance payment is not to be taken into account).

 

Subsection 56C(2) provides that for the purposes of any law of the Commonwealth, a State or a self-governing Territory, in relation to an advance payment the payment and the entitlement to the payment are absolutely inalienable, whether by way of or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise and no amount may be deducted from the payment.  The effect of paragraph 56C(2)(a) is to specifically exclude advance payments under the Scheme from the definition of ‘compensation’ or ‘damages’ for the purposes of any Commonwealth, State or self-governing Territory law so that benefits received under the Scheme will not be used to repay amounts paid under other regimes or schemes.  For example, advance payments will not be compensation for the purposes of the Health and Other Services (Compensation) Act 1995 , the Social Security Act or the Veterans Entitlements Act.  The intention of the advance payment is to acknowledge harm. It is not intended to compensate for loss or provide damages.  Paragraph 56C(2)(b) makes it clear that an advance payment cannot be used to offset any other debt to the Commonwealth.  Subsection 56C(3) provides that the protections under new section 56C in relation to the advance payment are subject to the ability to make payment to a person or a person who is an administrator as provided for in subsection 56B(3).  Subsection 56C(4) provides that nothing in the Act prevents a liability insurance contract from treating an advance payment as being a payment of compensation or damages.  This new subsection facilitates the insurers of participating non-government institutions to treat advance payments as compensation or damages under liability contracts.  This allows non-government institutions to be assisted by insurers to meet their liability for redress under existing insurance contracts.

 

Section 56D provides additional protection for advance payments from garnishee orders.  Subsection 56D(1) specifies that if an advance  payment is going to be, or has been, paid to the credit of an account and a court order in the nature of a garnishee order comes into force in relation to the account, the court order does not apply to the saved amount (if any) in the account.   Subsection 56D(2) provides the method statement to work out the saved amount as follows:

 

·          Step 1 - Work out the amount of the advance payment that has been paid to the credit of the account in the year immediately before the court order came into force.

·          Step 2 - Subtract from the amount of the advance payment the total amount withdrawn from the account during that year. The result is the saved amount.

 

Sections 56C and 56D mirror the protections under the Act that apply to the redress monetary payment and counselling and psychological care monetary payment.

 

Item 11 amends section 161 to provide that the Consolidated Revenue Fund is appropriated to the extent necessary for the purposes of the payment or discharge of the costs incurred by the Commonwealth in making advance payments, as a consequence of the new Part added by item 10.

 

Item 12 adds a new subsection 167(4A) as a consequence of the new Part added by item 10, to provide that an advance payment is a debt due to the Commonwealth if an advance payment was made after the person made an application for redress and either the person withdraws the application, or the person declines the offer of redress after receiving an offer under section 39.

 

Part 2 - Application and transitional provisions

 

Item 13 inserts, in the appropriate position in Part 8-3, new section 201 to clarify that the amendments made by Part 1 of Schedule 1 will apply in relation to applications made on or after the commencement of the amending section, and will only apply to applications made before the commencement of the amending Act if the application was not withdrawn, and the Operator did not make a determination under section 29 before the commencement of the amending Act.

 

Schedule 2 - Indexation of relevant prior payments

 

Part 1 - Main amendments

 

The current method statement for calculating the amount of redress payable to a person factors in payments already made by an institution to an applicant for the abuse (these payments are known as relevant prior payments). Relevant prior payments are indexed according to the number of whole years since the payment was made to the person up to the date the calculation of the redress payment is done. This negatively impacts applicants whose applications take longer to process - for instance, because the responsible institution is not yet participating in the Scheme.

 

The amendments will index a relevant prior payment according to the number of whole years between the person receiving the payment and the person making an application for redress. This ensures that applicants are not penalised by delays in processing their applications.

The amendments are intended to apply retrospectively to all applications, whether determined or not.

 

Item 1 adds a definition of “institutions’ total share” to section 6 (the dictionary) for the purpose of the new provisions inserted by item 160 below.

 

Item 2 adds subparagraph 29(2)(c)(iii) to require that the Operator determine the amount of the Commonwealth’s share of the costs of the redress payment in accordance section 30 of the Act as amended.

 

Item 3 adds paragraph 30(1)(c) to set out how the Operator must determine the amount of the Commonwealth’s share of the costs of the redress payment when making a determination under paragraph 29(2)(c).

 

Item 4 amends the heading for subsection 30(3) to include the word “institution’s” after “Working out”, as a consequence of the new provisions added by item 5.

 

Item 5 repeals and substitutes subsection 30(3) to add new subsections 30(3), (4) and (5). Subsection 30(3) will require the institutions’ total share of the costs of the redress payment to be worked out by adding together the amount of each responsible institution’s share of the costs of the redress payment (worked out under subsection 30(2)). Subsection 30(4) provides the method for working out the amount of the Commonwealth’s share of the costs of the redress payment by including a two step “Method statement” for working out the amount. Notes 1 and 2 provide clarification for the method statement.  Subsection 30(5) provides that the Operator must work out the amount of redress payment by adding together the institutions’ total share worked out under new subsection 30(3) and the Commonwealth’s share of the costs of the redress payment under new subsection 30(4).

 

Item 6 adds a new subparagraph 35(2)(b)(iiia) to require that the notice of determination issued under subsection 35(1) must state the amount of the Commonwealth’s share of the costs of the redress payment.

 

Item 7 adds a new subparagraph 58(3)(b)(iii) to require that, in circumstances where a person dies before a determination is made on an application,  the Operator is to determine the amount of the Commonwealth’s share of the costs of the redress payment, as a consequence of the new provisions added by item 5.

 

Item 8 omits the phrase “and the amount of a funding institution’s share of the costs of that payment”, and substitutes the words “the amount of a funding institution’s share of the costs of that payment and the amount of the Commonwealth’s share of the costs of that payment” in subsection 165(2), as a consequence of the new provisions added by item 5.

 

Item 9 omits the phrase “subsection 30(2)” in paragraph 165(2)(a) and substitutes the phrase “subsections 30(2) to (4)” for the purposes of the special rules of funder of last resort cases, as a consequence of the new provisions added by item 5.

 

Item 10 add the words “in determining the amount of a funding institution’s share” after the words “add” in paragraph 165(2)(c) for the purposes of the special rules of funder of last resort cases, as a consequence of the new provision added by item 5.

 

Part 2 - Application and transitional provisions

 

Item 11 adds section 202 in the appropriate position in Part 8-3 to specify that the amendments made under Part 1 of this Schedule 2 apply in relation to determinations made under section 29 of the Act before, on or after the commencement of this section.  Subsection 202(2) applies to offers of redress made before these amendments and specifies that sub-clauses 202(3) and 202(4) apply to an offer of redress given to a person under section 39 of the Act before the commencement of this section if the amount ( the new amount ) that the Operator was required to determine under this Act, as amended by this Part 6, is greater than the amount that the Operator would have been required to determine had the amendments not been made. Subsection 202(3) specifies that an offer of redress made before these amendments is taken to have always stated the new amount in subsection 202(2) as the amount of a redress payment for a person. Subsection 202(4) provides that if the Operator paid some of a redress payment to a person under section 48 before the commencement of these amendments, and the amount paid is less than the new amount referred to in subsection 202(2), then the Operator must, as soon as practicable, pay (subject to anything prescribed by the rules for the purposes of subsection 48(2)), the difference between the new amount and the amount the Operator has already paid.

 

Schedule 3- Extending review and acceptance periods

 

Part 1 - Review periods

 

Item 1 adds a new definition of review period to section 6 of the Act, as a consequence of the new subsections 34(4) to (10) of the Act.

 

Item 2 amends paragraph 34(1)(c) to provide that a notice of determination to an applicant must state that a person can apply for review of the determination during the review period for the determination.

 

Item 3 repeals and substitutes paragraph 34(3)(a) with new paragraphs 34(3)(a) and (aa) to provide that the written notice of a section 29 determination must specify the review period for the determination will be the same as the acceptance period if the application has been approved, or otherwise specified if the application has not been approved, as a consequence of the new provisions added by item 4.

 

Item 4 adds new subsections 34(4) to (10) to the Act, which sets out the new requirements relating to review periods.

 

Subsection 34(4) provides that if an application has been approved, the review period for the determination is the same as the acceptance period for the offer of redress included in the notice under section 34.  Subsection 34(5) provides, for the avoidance of doubt, that any extension of the acceptance period under subsection 40(2) also has the effect of extending the review period.  This fixes an anomaly in the Act whereby the review and acceptance periods are not aligned as the review period is unable to be extended.  This is problematic where a person is granted an extension of their acceptance period, however this does not apply to the review period, meaning that a person is unable to seek a review of their redress offer in the extended acceptance period. Subsection 34(6) provides that, if the application has not been approved, the review period for the determination is the period determined by the Operator, which must start on the date of the notice, and be at least 28 days, but not longer than 6 months.  Where subsection 34(6) applies, subsection 34(7) provides that the Operator may, by written notice given to the person, extend the review period if the Operator considers there are exceptional circumstances that justify the extension.  Subsection 34(8) provides that such an extension may be given on the Operator’s own initiative, or on a request by the person made under subsection 34(9).  Subsection 34(9) provides that if subsection 34(6) applies, the person may request the Operator to extend the review period, and such a request must comply with any requirements prescribed by the rules.  Subsection 34(10) provides that an extension under subsection 34(7) may be given, or a request under subsection 34(9) may be made, before, at or after the end of the review period.

 

Item 5 is a consequential amendment to paragraph 35(2)(g), which provides that the Operator’s notice to participating institutions must state the period within which the person may apply for review under section 73 of the Act.

 

Part 2 - Acceptance periods

 

Item 6 omits the phrase “Before the end of the acceptance period, the” and adds “The” in its place, as a consequence of the provisions added by item 7.

 

Item 7 inserts new subsection 40(4A) to provide that the Operator may extend the acceptance period, or a request may be made to extend the acceptance period, either before the end of the acceptance period, or at or after the end of the acceptance period if the person has not accepted or declined the offer of redress (disregarding subsection 45(2)).  This means that if the person’s offer of redress has been taken to be declined by operation of subsection 45(2), subsection 40(4A) can still operate in order for the person to request an extension and for the Operator to extend the acceptance period.

 

Item 8 inserts new subsection 40(6) to provide that, for the avoidance of doubt, section 45(2) is taken not to have applied (where a person is taken to have declined an offer of redress if they do not accept within the acceptance period) where the Operator extends the acceptance period under subsection 40(2).

 

Part 3 - Application and transitional provisions

 

Item 9 adds sections 200 and 203 in the appropriate position in Part 8-3, which sets out the application and transitional provisions for the amendments made by Parts 1 and 2 of this Schedule 3.

 

Section 200 provides for the definition of “amending Act” and “application” in Part 8-3.

 

Subsection 203(1) provides that any amendments made by Parts 1 and 2 of this Schedule 3 apply in relation to determinations made under section 29 before the commencement of section 203, whether the date specified for the purposes of paragraph 34(3)(a) occurred before, on or after the commencement of section 203.  The amendments made by Parts 1 and 2 of this Schedule 3 also apply to any determinations made after the commencement of section 203. Subsection 203(2) provides that any notice given to a person under section 34 before the commencement of section 203, which states the application for redress was not approved, and specified a day (the specified day ) as the day by which the person may apply for review of the determination, is taken to have specified a review period that starts on the date of the notice and ends on the specified day.  Subsection 203(3) provides that the amendments made by Parts 1 and 2 of this Schedule 3 apply in relation to acceptance periods ending before, on or after the commencement of section 203.

 

These amendments are beneficial to applicants for redress and the retrospective application of some of these provisions is for the purposes of providing additional time within which to consider an offer of redress, including additional time within which to consider whether to apply for review of a determination.

 

Schedule 4 - Remove statutory declaration requirement or applications

 

Part 1 - Main amendments

 

Item 1 is a consequential amendment to the amendment made by item 2.

 

Item 2 repeals paragraph 19(2)(d) to remove the requirement for the information in an application to be verified by statutory declaration. As the current approved form for applications contains an embedded statutory declaration, the form will be modified to require information from the applicant only.

 

 

 

Part 2 - Application and transitional provisions

 

Item 3 inserts section 204 in the appropriate position in Part 8-3 to specify that the amendment will apply to any applications made on or after the commencement of subsection 204(1). Subsection   204(2) provides, in relation to applications made prior to the commencement, or in the old form after commencement, as follows:

 

a.     if the application is complete including a valid statutory declaration, it can proceed to determination;

b.     if the application does not include a valid statutory declaration, it can proceed if the applicant has signed and dated the application; and

c.     if the statutory declaration is not signed and dated by the applicant, it can be signed or remade in either the old approved form, or the new approved form.

The partial retrospective application of these provisions is beneficial to applicants as it enables applications to be progressed, whether or not they included a statutory declaration, provided they are signed and dated by the applicant.

Schedule 5 - Payment by instalments

 

Part 1 - Main amendments

 

Item 1 omits “subsection 51(3)” and substitutes “subsections 51(3) to (3D)” to the definition of counselling and psychological services payment in section 6 as a consequence of the new provision added by item 5.

 

Item 2 adds a new subsection 48(1B), (1C) and (1D) to provide that the Operator may pay the redress payment in instalments, at such times, as agreed by written agreement between a person or their administrator and the Operator, unless the person dies before the first instalment is paid. If the Operator has paid part of the redress payment in instalments and the person dies before the last instalment is paid, then the Operator must pay the unpaid amount in accordance with subsection 48(1) or (1A) as soon as practicable.

 

Item 3 adds the words “(including relating to payment by instalments)” to the end of subsection 48(2) as a consequence of the new provisions added by item 2.

 

Item 4 adds a new subsection 50(3) to provide clarification that, where a redress payment is being, or has been, made by instalments, the saved amount should be calculated under step 1 of the method statement in subsection 50(2) by reference only to those instalments which have been paid to the person in the year immediately before the relevant garnishee order came into force.

 

Item 5 adds a new subsection 51(3B), (3C) and (3D) to provide that the Operator may pay the counselling and psychological services payment in instalments, at such times, as agreed by written agreement between a person or their administrator and the Operator, unless the person dies before the first instalment is paid. If the Operator has paid part of the counselling and psychological services payment in instalments and the person dies before the last instalment is paid, then the Operator must pay the unpaid amount in accordance with subsection 51(3) or (3A) as soon as practicable.

 

Item 6 add the words “(including relating to payment by instalments)” to the end of subsection 51(4) as a consequence of the new provisions added by item 5.

 

Item 7 adds a new subsection 53(3) to provide clarification that, where the counselling and psychological services payment has been made by instalments, the saved amount should be calculated under step 1 of the method statement in subsection 53(2) by reference only to those instalments which have been paid to the person in the year immediately before the relevant garnishee order came into force.

 

Part  2 - Application and transitional provisions

 

Item 8 adds a new paragraph 202(4)(ba) to provide that if the Operator paid an instalment of the redress payment to a person before the commencement of these amendments, and the amount paid is less than the new amount referred to in subsection 202(2), then the Operator must, as soon as practicable, pay (subject to anything prescribed by the rules for the purposes of subsection 48(2)), the difference between the new amount and the amount the Operator has already paid.

 

Item 9 adds section 205 in the appropriate position in Part 8-3 to specify that the amendments will apply to redress to which a person becomes entitled to on or after the commencement of the amending section.

 

 

 

 

 



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT BILL 2021

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Bill

This Bill makes amendments to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 to ensure the ongoing improvement of the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme) and to enhance a survivor’s access to redress and outcomes. The amendments are in response to the Final Report of the Second Year Review of the National Redress Scheme for Institutional Child Sexual Abuse (the Review), undertaken by Ms Robyn Kruk AO.

The amendments made by the Bill will:

·          Establish advance payments for eligible priority applicants;

·          Change the date for which the indexation of prior payments is calculated;

·          Enable flexibility to adjust review and acceptance periods;

·          Remove the requirement for a statutory declaration in the application form; and

·          Introduce the ability to make redress payments in instalments

Human rights implications

The Bill does not introduce any limitations on human rights, but rather positively engages several human rights conventions.

The Bill introduces a number of changes to the Scheme, which are survivor focussed and result in improved processes.  The Review undertook consultations with survivors and other stakeholders and the recommendations reflect these discussions.

This Bill engages the following rights:

·          Convention on the Rights of the Child (CRC)

o    article 39 - state supported recovery for child victims of neglect, exploitation and abuse

·          International Covenant on Civil and Political Right (ICCPR)

o    article 2(3) - right to an effective remedy

The Scheme currently provides an effective remedy to people and supports the recovery of people who have experienced institutional child sexual abuse by enabling recognition of past abuse and providing access to redress, including a redress payment, a personal response from the responsible institution and access to counselling and psychological care services. This Bill further promotes these rights by enhancing a survivor’s access to redress and outcomes under the Scheme.

Advance payments

The Bill introduces an advance payment of $10,000 for redress applicants who are elderly (70 years and over or aged 55 years and over for Indigenous or Torres Strait Islander applicants) or terminally ill. Given the nature of institutional child sexual abuse, 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 this payment provides an acknowledgment of the abuse they experienced as children.

To assist survivors in receiving the advance payment, survivors will not need to apply separately for the payment. The Scheme will identify eligible applicants for the payment in receiving a valid application, or throughout 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. This will ensure that eligible survivors will be able to access the payment.

The Bill provides the National Redress Scheme Operator (the Operator) with the discretion to approve advance payments to survivors who fall outside of the elderly or terminally ill criteria if there are exceptional circumstances justifying the payment being made to the person. This ensures that there is an opportunity to consider advance payments for survivors that are particularly vulnerable,

A person must meet the requirements prescribed in the legislation to be eligible to receive an advance payment. However, as eligibility for the advance payment is separate to a survivor’s overall eligibility for redress, it is possible that survivors who are not ultimately entitled to redress may receive the payment. This may occur, for example, where the institution named by the survivor in the application as responsible for the abuse, does not join the Scheme. It is also possible that a survivor’s final redress payment is less than $10,000. In these cases, to ensure the Scheme remains trauma informed, the Commonwealth will not seek to recover the advance payment from the survivor and instead, the Commonwealth will fund the payment.  Where a person chooses to withdraw their application or decline their offer or provides false information to the Scheme, the advance payment will be a debt to the Commonwealth. Applicants will be advised before accepting an advance payment that the money will be recovered in these circumstances.

Indexation of relevant prior payments

This Bill amends the date used for the calculation of indexation for prior payments to the date a person submitted their application, rather than the date the determination is made.

Currently, any payment that was paid to the person by, or on behalf of, the responsible institution in relation to abuse for which the institution is responsible is considered a relevant prior payment and is deducted from a person’s redress payment. This is in recognition of the payment the survivor has previously received from the responsible institution. These relevant prior payments are indexed at the date of determination to account for inflation.

However, some applicants are disadvantaged where the length of time for their application to be finalised is protracted, including where the relevant institution/s take a long time to join the Scheme.

Changing the date used for the calculation of indexation promotes ICCPR article 2(3) as it ensures that applicants have access to an effective remedy, and are not disadvantaged by circumstances that are outside the applicant’s control.

Extending review and acceptance periods

The Bill promotes the right to state-supported recovery and the right to an effective remedy by providing flexibility to extend the review and acceptance periods for redress offers.

This Bill introduces a discretion for the Operator to extend a period a person has to accept their offer of redress after the offer has expired. Currently, there is no flexibility to extend the period a person has to accept their offer of redress after the six month acceptance period has expired. If an applicant has not accepted an offer of redress or an extension granted within the current six month acceptance period, the offer is taken to be declined. This is problematic as survivors are only able to make one application for redress and if their offer is taken to be declined, there is no opportunity for the survivor to access redress.

A person has at least 28 days, but no longer than six months from the date of receiving their offer to apply for a review. This is problematic where a survivor’s acceptance period has been extended by the Operator due to exceptional circumstances, however the survivor is unable to seek a review of their redress offer in this extended period, increasing fairness for applicants.

The Bill makes amendments to align the acceptance and review periods, including that any extension to the acceptance period has the effect of extending the review period. This remedies an unintended anomaly in the operation of the Scheme; is trauma informed; and provides survivors in this situation the ability to seek an effective remedy. 

Remove statutory declaration requirement for applications

The Bill removes the requirement for a redress application to be verified by a statutory declaration, thus enhancing a survivor’s access to redress.

The requirement to provide a statutory declaration has proven not to be trauma informed, and risks deterring survivors from accessing the redress they deserve, Since the commencement of the Scheme, the requirement for a statutory declaration to accompany an application has proven burdensome for applicants, particularly for remotely located or isolated applicants.  In many instances, applications have been accompanied by incorrect or incomplete statutory declarations. In these situations, applicants have been required to provide a second statutory declaration which can be time consuming and onerous for applicants.   

The Scheme has heard that survivors consider the requirement for a statutory declaration questions the integrity of their application, and that they should be entitled to make an application privately without having a third party verify their application.

The requirement to comply with the statutory declaration requirement was temporarily removed during the height of the COVID-19 pandemic. Although, this was time limited and did not address the wider problems with the requirement.

Removing the statutory declaration requirement supports the recovery of people as it is more trauma informed and helps ensure that survivors feel like they are believed. It also provides an effective remedy as it overcomes the burden for survivors in applying for redress.

Payment by instalments

The Bill introduces the ability for the Scheme to make redress payments 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. Receiving their redress payment in instalments will provide applicants with more control over their financial affairs. It does not change how institutions pay for their redress liability.

The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) suggested that some survivors may experience difficulty receiving lump-sum payments that are much larger than the amount of money they are used to handling. The Royal Commission also acknowledged issues in Aboriginal and Torres Strait Islander communities where survivors may come under pressure to share or spend the payment against their wishes and intentions.

This measure engages the right to state-supported recovery by ensuring that applicants receive redress in a form that is survivor-focused and survivor-led, fostering an environment of respect for the survivor.

Conclusion

The Bill is compatible with human rights because it promotes the protection of human rights and does not introduce any limitations on human rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston]