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Monday, 18 June 2018
Page: 3031


Senator SIEWERT (Western AustraliaAustralian Greens Whip) (12:52): I rise today to speak on the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018. The first of these bills, which I'll refer to as the national bill, will establish legislation for the National Redress Scheme for survivors of institutional child sexual abuse—a process that has been far too long in coming. The passage of this legislation and the establishment of the scheme is rightful acknowledgement of the wrongs that were committed by institutions responsible for protecting and caring for young members of our communities.

The acts of sexual abuse committed in institutions around the country are a disgrace to our nation. It is time for the survivors of this abuse to have their abuse and its ongoing toll throughout their lives acknowledged by federal, state and territory governments around the country and the institutions who were responsible for the care of these young people, many of whom were sent to our shores as child migrants only to end up condemned in these institutions to this form of abuse. Thousands and thousands of acts of abuse occurred throughout this country, and the institutions responsible need to be held accountable. We must also ensure that safeguards are put in place to protect against such abuse occurring into the future. I'd like to take this opportunity to acknowledge the people and organisations who have fought so hard for so long to get the royal commission established and who have fought for redress. I particularly acknowledge the survivors who have so long been ignored, called liars, not believed and told to 'get over it', many of whom are suffering lifelong consequences. I know these redress bills will not make up for that abuse, but at very least we can make sure you are supported through your lives, to make them just that little bit better.

The Australian Greens strongly support the establishment of the National Redress Scheme for survivors of institutional child sexual abuse as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse. We want it to be based on fairness, equity and justice, and to be survivor focused, trauma informed and culturally informed. Bearing in mind that the scheme is due to start on 1 July this year, in a couple of weeks, the Greens do not intend to hold up the passage of the bills before us today. We understand that the establishment of the scheme is a significant step in the progress towards addressing the wrongs committed and providing survivors with a just response; however, we remain concerned with elements of the proposed scheme and some of the provisions in the bills before us. Many of the concerns I will mention today are also held by survivors, survivor groups and other stakeholders, many of whom made submissions to the two Senate inquiries.

Just today I've received a letter—and I know many of us have—from some survivors who are saying they have concerns. I will articulate those concerns and our concerns in a minute. We are faced with a Hobson's choice: if we amend the national bills, they have to go through all the state and territory parliaments again, and there would be no Commonwealth bills, so either we support these imperfect bills—and they are imperfect—or we hold them up and have nothing, because there is nothing to replace it. Many survivors have said to me, 'Please support the bills; don't hold up redress any longer.' We have come down on the side of supporting these imperfect bills and committing to improve them. We are committed to improving these imperfect pieces of legislation, but we think we need to get this started. Survivors have waited for far too long.

While the government has made some progress on some of the issues raised during the first Senate inquiry into the Commonwealth bills, including extending the period for accepting an offer of redress and the period for providing additional information, many of the issues the Australian Greens and many others raised with the committee, which we canvassed through our additional comments in the committee's report, still remain unresolved. The proposed scheme will provide three elements of redress to survivors, specifically: a redress payment—as opposed to a compensation payment; it's important to remember that—access to counselling and psychological services, and a direct personal response from the responsible institution or institutions, where that is the will of the survivor.

With regard to the redress payment, the maximum amount has been set at $150,000. This does not align with the recommendation of the royal commission that the maximum redress payment be $200,000 for the most severe cases. The Australian Greens support the recommendations of the royal commission and know that this is an issue survivors are very passionate about, as are we. We will continue to advocate for the government to increase the maximum redress payment to $200,000. We are concerned that there is no minimum redress payment amount in the scheme. The royal commission recommended a minimum redress payment of $10,000. We want a minimum redress payment to be introduced to ensure that survivors don't find themselves in a situation where their redress payment is nil. The inclusion of a minimum redress payment is particularly important in light of the provisions in the national bills that will see prior relevant payments indexed and then subtracted from the redress payment. The Tuart Place submission to the Senate inquiry into the national bills goes into some detail on how the absence of a minimum payment and the proposed indexation of a prior relevant payment create a perfect storm for potential retraumatisation of applicants. Specifically, as there is no minimum redress payment amount for the scheme, and, where an individual has received a previous relevant payment, that is indexed under the scheme, Tuart Place is concerned that applicants would receive inappropriately low offers: either nil, for example, or a couple of dollars. Such a situation is unacceptable in our eyes.

The indexation of prior relevant payments is an area of deep concern for the Greens and one that we know many survivors and survivor groups and organisations care very deeply about. We do not want to see prior relevant payments indexed under the scheme. The provisions for counselling and psychological services in the national bill are also really important. Survivors will either be provided counselling and psychological services under the scheme—if they live in a jurisdiction that is declared a provider of these services—or they will receive a tiered lump payment of $1,250, $2,500 or $5,000, depending on the severity of the sexual abuse they experienced.

The national bill is not clear on the length of the entitlement of those who will receive services under the scheme. The Australian Greens are concerned that survivors will not have access to these services for the duration of their life and that survivors who receive redress late in the life of the scheme may only be able to access these services for a short period of time compared with those survivors who are granted redress early in the life of the scheme. We know how important counselling and psychological services are to survivors.

The services to be provided by the different jurisdictions are likely to vary. Survivors may be unable to choose the service they attend and may be unable to continue existing therapeutic relationships, which is in contradiction to the royal commission's recommendations. There is also no clarity about what will happen if a survivor moves from one jurisdiction that is a declared provider to a jurisdiction that is not a declared provider. There is also concern about the adequacy of the lump sum payments for counselling and psychological services for those survivors who will receive this. Five thousand dollars is an insufficient sum to enable survivors to obtain the necessary counselling and psychological supports throughout their lives. Two thousand five hundred dollars and $1,250 are even less sufficient. The Australian Greens support the recommendation of the royal commission that there should be no fixed limits in this regard.

The scheme is for survivors of institutional child sexual abuse only. Survivors of institutional non-sexual abuse will not be eligible unless they were also sexually abused. Limiting the scope of the scheme to sexual abuse is particularly problematic for care leavers who had no way to escape the abuse or their abusers while in institutional care. While the Australian Greens acknowledge that the royal commission's scope was limited to institutional child sexual abuse, we believe that those who suffered institutional non-sexual abuse should be eligible for redress under the scheme, particularly where a survivor is a care leaver. I note here that I will be moving a second reading amendment on this issue. In fact, our second reading amendment reads:

At the end of the motion, add "but the Senate:

(a) is of the opinion that relevant prior payments should not be indexed under the scheme; and

(b) calls on the Government to commence the development of a redress scheme for survivors of institutional child non-sexual abuse".

I've spoken to many care leavers who are very, very upset that their physical and mental abuse continues to go unrecognised and that they still can't seek redress for that abuse. Bear in mind that Western Australia has the highest number of child migrants. This is an issue that is deeply felt around Australia but particularly in my home state of Western Australia.

The scheme is also limited to survivors who are Australian citizens or permanent residents at the time they apply for the scheme. This is incredibly inequitable, and we want to see all survivors of institutional child sexual abuse connected to Australia eligible for the scheme. This includes former child migrants and those no longer living in Australia, whether a citizen or a permanent resident at the time of the abuse or not, and those who are still living here but are not citizens or permanent residents. It should also include survivors who experienced their abuse in detention centres established by Australia even where the survivor has not entered Australia. Under the national bill, a survivor cannot make an application where they have already made an application, a security notice is in force, the survivor is a child who will not turn 18 before the scheme sunsets, the person is in jail or the application is being made in the period of 12 months before the scheme sunsets.

Allowing survivors to make only a single application to the scheme means that they need to cover all the instances of institutional child sexual abuse in their application. One of the problems related to this is the time frame for institutions to opt into the scheme being set at two years. This means some survivors will need to wait two years to see whether an institution responsible—whether primarily responsible or equally responsible—is going to opt in. Where there is more than one institution responsible, and at least one of the institutions has opted into the scheme, they will have to make the difficult choice to either submit their application outlining only the abuse for which the participating institution is responsible, or wait until such a time as the other institution or institutions decide to opt in, or the two-year time period lapses. One of the problems with this is that there are a lot of survivors who are now elderly. Some have financial issues and ill health, and putting them in a situation where they have to make such a decision is, we believe, incredibly unfair.

The other problem is traumatic memory and survivors not necessarily remembering, at the time that they apply for the scheme, all the details of what happened to them. What happens if a survivor remembers an additional and potentially critical detail after they have submitted their application? The scheme needs to meet the needs of survivors and be as flexible as possible for them. Consequently, we do not support the requirement for survivors to complete a statutory declaration to verify the information contained in their application. We also have concerns about the need for survivors to specify in their application where they live, as there will be survivors who find themselves homeless. Where a survivor does not have a fixed address, they should not be excluded from applying and should be able to nominate merely the state or territory where they live, for the purpose of receiving counselling and psychological services under the scheme.

We are also concerned that children who are currently younger than eight years old will not be able to make an application to the scheme and that there is no operator discretion with regards to this provision. This provision is not in line with the view of the royal commission and differs from the provisions in the Commonwealth bill. Having a blanket exclusion for children does not align with the requirement to ensure the best interests of the child, as there will be instances where it will be in the best interests of the child to apply for redress under the scheme. There is also concern over the requirement, which will be set out in the rules, for the operator to wait until a child who applies to the scheme while underage is 18 before making a determination to approve or not approve the application. Children in this situation should not have to wait until they are 18 years old to receive redress.

The national bill precludes survivors in jail from making an application for the scheme, unless the operator determines there are exceptional circumstances justifying the application being made. The rationale for this appears to be that the scheme will be unable to deliver redress support service to those incarcerated and that institutions may be unable to provide appropriate direct personal responses to these survivors while they are in jail. It is unclear why a direct personal response could not be provided by the relevant institution or institutions in jail, and why survivors would not be able to access the necessary services while they are in jail. In any event, survivors should not be barred from applying altogether, particularly where they will not be released prior to the scheme's sunset date. The direct personal response could be delivered once the survivor is released, if there is no other alternative. This provision will discriminate particularly against Aboriginal and Torres Strait Islander survivors, who are overrepresented in the criminal justice system. More clarity is needed around the exceptional circumstances justifying an application and what those circumstances might be.

Under the national bill, survivors who have been convicted of an offence and sentenced to imprisonment for five years or more will be excluded from the scheme unless a determination is made by the operator that the provision of redress would not bring the scheme into disrepute or adversely affect public confidence in or support for the scheme. Again, this provision will disproportionately affect Aboriginal and Torres Strait Islander survivors. The Australian Greens do not support this exclusion. We believe that redress should be available to all survivors of institutional child sexual abuse. Allowing a category of survivors to be excluded from the scheme will see their experiences go unrecognised and, arguably, will see the relevant institutions not held to account for that abuse. Excluding these survivors from the scheme particularly ignores the link between the abuse they experienced as a child and their interactions with the criminal justice system.

It was also pointed out in the course of the national bill inquiry that the special assessment model in the national scheme is more opaque than the model under the Commonwealth bill. Survivors who fall into this category will not know whether or not they are eligible, creating considerable uncertainty and causing further distress. While the operator can override the blanket exclusion for individual cases, we are concerned that the starting point is one of exclusion. We believe that where the government is adamant that there needs to be an ability to exclude some survivors who fall into this category the starting point should be one of eligibility. The operator could then determine on a case by case basis whether an individual should be excluded. Exclusion should be considered only where granting redress to a person could bring the scheme into disrepute or adversely affect public confidence in or support for the scheme.

Under the national bill there is a revised funder-of-last-resort model. In order for the government institution to be the funder of last resort for a defunct institution, the institution must be equally responsible with the defunct institution for the abuse of the survivor. This is higher test than was contained in the Commonwealth bill and many submitters raised concerns about that. It is not clear who, if anyone, will be the funder of last resort where the responsible non-government institution is now defunct and there was no government institution involved in the abuse.

The Australian Greens want to see the scheme operating from the nominated date. At the same time, we are very concerned that this is not the best it can be. This scheme is not the best it can be and that is what it should be for the survivors of institutional sexual abuse.

As you can see, we have a number of concerns. I have a number of questions I wish to put to the government. I will therefore be asking that we go into Committee of the Whole so that we can ask these questions and get some responses on the record that, for those implementing the scheme, will help guide them on the intent of how the scheme will operate. As I articulated earlier, we will not be moving amendments, even though we would dearly like to, because we want to see the scheme start on 1 July. I now move our second reading amendment:

At the end of the motion, add "but the Senate:

(a) is of the opinion that relevant prior payments should not be indexed under the scheme; and

(b) calls on the Government to commence the development of a redress scheme for survivors of institutional child non-sexual abuse".