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Community Affairs Legislation Committee

CROLE, Mrs Melinda, Chief Executive Officer, YMCA Australia

SULLIVAN, Mr Francis John, Chief Executive Officer, Truth, Justice and Healing Council

WHITWELL, Ms Jacki, Executive Manager Social Policy, YMCA Australia

CHAIR: I welcome representatives from the Catholic Church's Truth, Justice and Healing Council and also from the YMCA. Could you please confirm that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you.

Mr Sullivan : Yes.

CHAIR: The committee has your submissions so I now invite you to make a short opening statement and we will then ask some questions.

Mr Sullivan : I don't wish to make a statement.

Mrs Crole : We welcome the opportunity to give evidence before the committee today and provide our views on this incredibly important piece of legislation. As result of the royal commission, we now have before us irrefutable evidence of what is required for institutions to be child safe and what is required to provide an equitable, just and fair response to survivors. YMCA Australia supports a national redress scheme as recommended by the royal commission, and we view the provision of redress as an integral part of our child safety strategy moving forward.

In 2015, the royal commission recommended that institutions implement interim redress arrangements until such time as the national or state based schemes came into effect. We addressed the challenges faced by our federated structure to design and implement a national approach to redress for survivors of child sexual abuse in the YMCA. We didn't wait to be investigated; we had a look at what we could do at that time. This, of course, was required to be approved by YMCA member associations of our federated operating model and this did occur at our 2015 AGM.

It is our experience in providing redress and in responding to survivors which informs our submission today. We have four major concerns in relation to the current bill and we agree with much of what has been said today by others as well. Firstly, we are concerned about the absence of any special provisions or considerations of the particular circumstance in which minors might apply for redress.

For children and young people applying for redress under the scheme, the application of the assessment matrix may be highly problematic for the following reasons. While an assessment may be able to be made as to the severity of the abuse suffered, an assessment as to the impact of the abuse may not be possible at this time because they are minors. The impact of the abuse may not be known yet. Given that this is likely to form a significant part of any redress offer, children and young people may be significantly disadvantaged. It also follows that they will be significantly disadvantaged by the requirement to sign a deed of release. Redress can offer a proactive support mechanism for minors who may not yet be experiencing the full impact of the abuse due to their age and sexual maturity. Yet the current way the scheme is proposed may result in minors not being appropriately compensated for the impact of the abuse through redress or civil litigation.

Secondly, we completely agree that the direct personal response is at the choice of the survivor, but we are concerned about the highly administrative nature of the proposed scheme, whereby survivors will only be able to access a personal direct response from the institution at the very end of the process. That might not be what they want. Survivors have told us that, by offering a direct personal response at the early stage of redress, they feel more empowered and in control, they have a greater understanding of the process and what to expect, and they feel their overall engagement with the process to be positive and restorative. It is up to them to say when they would like the personal response. The personal, trauma informed response from the organisation can be very supportive of the process moving forward. Knowing that applying for redress and receiving an offer is likely to be traumatising for many survivors, the opportunity to have the support of a direct personal response at the early stage is essential. Those providing the direct personal response must be trained in trauma informed approaches—which I'll elaborate on in a minute.

Thirdly, we're concerned about the lack of alignment between being able to opt in to the scheme and ongoing child safety requirements. We know from survivors—and it is essential in changing the culture of organisations into the future—that one of the most important aspects of a direct personal response is the reassurance provided by organisations that children are safe today and what happened to them is mitigated against today in that organisation. Given the critical work undertaken by the royal commission in identifying elements of child safe organisations, those opting in to the Commonwealth scheme must be able to demonstrate and provide evidence that they meet child safe standards. It is untenable to think that an organisation would provide a direct personal response to survivors of past abuse if they cannot demonstrate that they are committed to and implementing child safe standards today. Yesterday I got to work with the Commonwealth on the child safe principles. It is so important that all organisations are meeting those standards. For them to opt in to the scheme they should be committed to the child safe standards that are being addressed.

Finally, there is an absence in the bill of any mechanism to ensure the delivery of direct personal responses is consistent in quality, that they meet leading practice standards and are delivered by personnel who have received specific trauma informed training. Given the importance of the direct personal response to the integrity of the scheme, there must be far greater focus on ensuring that organisations are providing a direct personal response that meets leading practice standards and that organisations undertake regular and independent evaluations of this process.

CHAIR: Thank you very much. Before we get started I advise that I will have to leave the hearing partway through this session—so apologies to you all. In my absence, Senator Siewert will take over as chair. Senator Siewert, do you want to start things off?

Senator SIEWERT: Yes, I do; thank you. I want to start with the Truth, Justice and Healing Council. You make a number of comments about the scheme. I am aware that you have been here for part of the hearing today. I don’t know how long you have been here for, but I know that you will have read the submissions and heard the commentary this afternoon around the cap of $150,000. Virtually every other submitter said either that there should be no cap or that it should be at least $200,000. Could you expand on your support for the cap at $150,000, and could you also outline what discussions you've had with the government around that $150,000 level?

Mr Sullivan : The concept of a cap and the $150,000 payment probably started in nearly the first year of the royal commission in the public debate. Our council firstly started with the idea of no cap, and then, when the internal roundtable conversations were occurring by way of the royal commission, it became patently clear that no government was interested in entering a redress scheme without a cap. So we thought, 'Oh, well, there's going to have to be a cap.' And then the conversation came around to what the nominal figure would be that would buy in the greatest amount of institutional participation. Numbers were thrown around the place in those private sessions. Our council came up with $150,000 for the Catholic Church, and we submitted that formally to the royal commission and argued the case. The royal commission came out with $200,000. The various church leaders who were in the royal commission from the Catholic Church said that they supported the royal commission's concept of a national redress scheme, so, by implication, they would support the $200,000, even though we went in with $150,000. I've got no idea how the government of the day made its mind up about $150,000. We weren't part of any of those conversations. It was a government policy.

Senator SIEWERT: You weren't involved in any discussions with the government about lowering it from $200,000 to $150,000.

Mr Sullivan : Not at all.

Senator SIEWERT: I want to go to the operation of the council. In your submission you talk about—and we've heard it said many times—the parishes and individual organisations being responsible. Yet the council has been the body that has been responsible for involvement with the commission, responding at all times. With all due respect, sometimes it seems like the council is representing the whole of the Catholic Church, and then, when it comes to redress, it goes back to the institutions. When does responsibility for redress go back to the individual parishes and institutions, and where do the council's responsibilities begin and end?

Mr Sullivan : The Truth, Justice and Healing Council was created for the purposes of the royal commission. Because there are so many church authorities, legal entities, that make up the Catholic Church, there's no central agency, so there needed to be a coordinating group. That's the council. It was a coordinating group on policy and on representation and on public relations generally. So when we spoke, and when we spoke as if we are the Catholic Church, it is an agreed policy position of the church leaders that I work to. But, when it comes to matters of payments over liabilities to do with this area of sex abuse, that automatically falls to the relevant church authority, whether it's a parish, a school or whatever of a church, because they are then liable. The council has no role there. The point we were trying to make clear for you in the submission is that, when there is a national redress scheme, effectively, each of these church authorities will need to sign on so that their liability and their potential participation is direct.

Senator SIEWERT: There are comments—I will acknowledge that I have only seen these comments in the media—that the church might not be able to afford compensation, and it may lead to social programs being cut. Is that a reflection of what was actually said, or is it an interpretation along the way?

Mr Sullivan : It is clearly someone's interpretation. From the word go, the official position of the church leaders through our council has been that there needs to be a national redress scheme, in which the church would participate and pay its way. The redress needs to be determined by an independent umpire and then the church would pay its way. There has never been a question of the church not paying its way. There has never been a question that it would have to shut down schools or welfare services in order to pay.

Senator SIEWERT: Can survivors take it that each Catholic institution is prepared to pay its way?

Mr Sullivan : In theory. The point I would like to stress is that we are talking about a national redress scheme. We do not have that in front of us today. Today we have a Commonwealth administered redress scheme. It is not a national redress scheme. Until there is a national redress scheme, we are dealing with theory. But let's assume for the sake of the questions that there is a national redress scheme on the table. The bishops have said they will be in. If they are in, they have to pay.

Senator MOORE: Every bishop?

Mr Sullivan : That's our argument, yes.

Senator MOORE: Every bishop has said they are in?

Mr Sullivan : The way it has worked to date, my council—it seems like a long time but for the last five and a quarter years—

Senator MOORE: It is a long time.

Mr Sullivan : has been working once a month with what is called the church leadership. What is the church leadership? It is the permanent committee of the bishops, which means basically the archbishops, and the senior leaders of the religious orders. They combined and formed themselves into a cute-named 'supervisory group'. That group has endorsed our policies. Way back at the beginning, the first policy was—I think you may have heard me say—'the days of the church investigating itself are over and there needs to be a redress scheme'.

Senator MOORE: Yes.

Mr Sullivan : Since then of course, in the final hearing of the royal commission, many of those archbishops and senior bishops were asked directly by the commission: 'Do you support a national redress scheme?', and to a person they said yes.

Senator MOORE: And what about the leaders of the religious—

Mr Sullivan : Those that were there said yes. Those that were there of course are the significant male religious orders—where, unfortunately, the history is.

Senator MOORE: Sorry, Rachel, I just can't help myself.

Senator SIEWERT: That's all right. We all jump in. So, Mr Sullivan, every bishop, everywhere?

Mr Sullivan : That's where I'm at, yes.

Senator MOORE: Mr Sullivan, you said they formed themselves into the supervisory group, and we already know that the administrative and financial responsibility of the church is diverse.

Mr Sullivan : Yes.

Senator MOORE: Is every element of the Catholic Church in Australia covered by the supervisory committee?

Mr Sullivan : To the degree—this sounds—

Senator MOORE: I know. I understand it's complex, but I just want to get it on record.

Mr Sullivan : To the degree that, if you are a bishop in Australia you are part of the bishops' conference. And the bishops' conference have a permanent committee of bishops overseeing them, and that committee has endorsed this policy.

Senator MOORE: And they had the authority then to enforce—

Mr Sullivan : Yes. And this has been through that conference—

Senator MOORE: A number of times.

Mr Sullivan : We have been talking about four years of this.

Senator MOORE: Okay. Thank you.

Senator SIEWERT: I wanted to go to the fact that the church is, shall I say, not happy or doesn't support the proposed standard of proof of 'reasonable likelihood'.

Mr Sullivan : Yes.

Senator SIEWERT: Could you just expand on that, please? And can you go to the issue of what you think should be used instead.

Mr Sullivan : Yes. This is the only area of the royal commission's final position that we took issue with from the word go. Even in the initial roundtable consults that the royal commission did we raised this problem. Generally speaking, insurance companies pay out in their policies on the 'balance of probabilities' level of proof. This is sort of standard practice for insurance companies. We raised that with the royal commission at the time and said: 'You really need to pursue this. Have a look at it.' It's up to them, of course. Clearly they came out with something far less than that, which means in practical terms that many of the institutions that would contemplate going into the redress scheme may baulk because their insurance companies may not pay out on the low level of proof that the redress scheme is asking for. At the same time, the balance is quite obvious. We've said all along that a redress scheme should be less onerous, less complicated administratively, far less adversarial legally for survivors. In other words, the framework of it needs to be simple and easy to access and not expensive to run, as opposed to going down the litigation pathway. That was always the thinking here. I understand the juggle, but we needed to reflect back to either the commission or the government what some of the practicalities for institutions are when it comes to having insurance as a backup for payment. It may be less so for Catholic institutions as it will be for other community based institutions and non-government institutions.

Senator MOORE: You have your own insurance?

Mr Sullivan : We, in a sense, are insured through Catholic Church Insurance, but they still have the—

Senator MOORE: I apologise for using the person pronoun. The Catholic Church has its own insurance?

Mr Sullivan : Yes. But remember that doesn't really matter. Every insurance company needs a reinsurer, and reinsurers like balance of probability.

Senator WATT: Just to be clear: does the Catholic Church have concern about the proposed threshold in terms of the response of its own insurers?

Mr Sullivan : Yes.

Senator SIEWERT: You also make a comment about procedural fairness for institutions by being involved in the process of determining redress applications. Certainly this morning we heard very strong objections to that particular concept. Can you understand why people have some deep concerns around that concept?

Mr Sullivan : Absolutely.

Senator SIEWERT: But you still think institutions should be offered that procedural fairness?

Mr Sullivan : I think we've tried to balance a few things here. I certainly understand the fact that many individuals, people probably in the community more broadly, would say groups like the Catholic Church have a bit of a hide to walk into a hearing and talk about particular rights for an institution, and given the track record it's a hard bat to bring to the game. But, in the interests of the public policy discussion—I gather that's why we're here—if we're going to run a redress scheme then procedural fairness as a principle should be part of a redress scheme, whether it's about institutions or about individuals. But there are problems in how this scheme may be administered by the operator, and you heard from the Law Council that we really don't know how that's going to happen, because a lot of this may end up in the rules. Let's think about it for a second. We—I'll talk the church 'we'—don't know whether an individual turning up for the redress scheme is somebody that we're aware of already—in other words, they're part of our statistics already. And that's fine if they turn up to a redress scheme. But say it's someone who has never informed the church of an abuse allegation. We don't know whether the actual person that they're talking about is still an active, say, priest or religious in the church. Firstly, there's the information needed about that and the transfer of the appropriate information to the institution. So maybe the person has to be taken out of ministry or whatever. Secondly, there has to be a police reporting requirement. Thirdly, there is a basic right that an individual, where an allegation has been made against them, should have the right to know that the allegation has been made against them. It falls to issues like that in the first instance. These are issues of principle that, I would suggest, as legislators you will need to grapple with to make sure you feel there is an appropriate balance there in the way the scheme is administered. It's not saying that particular institutions should get particular attention.

Senator HINCH: Mr Sullivan, I'm glad you acknowledge you are not the most popular man in the room through all of this. When you talk about having access to the information and you may have to take somebody out of the ministry, if you look at the past record you didn't take them out of the ministry; you just move them to another diocese, and that's happened many hundreds of times, as the royal commission has found. Is that a fair argument put forward equipment

Mr Sullivan : I think it's a reasonable argument put forward, given the attention that's now happened in the last 20 years about that. There's basic policies. There is no question that history is riddled with the movement of perpetrators, with the concealment of their activities, with the blatant secrecy and with that culture in the church. Who's arguing that? Not me. But, what we are talking about today is that, in a publicly administered redress scheme, it is incumbent on the scheme to make sure that, in the circumstances like I've just named, we don't have individuals active when maybe they've been named by way of allegation, and the best way to deal with that is to get the institution involved and responsible as well.

Senator HINCH: One of the problems here is that, as you just acknowledged, it was the people in the institutions who moved predators to other places, yet now you're asking that the church, because of procedural fairness, should be involved in the process of determining redress applications, like verifying claims for redress. The very institution that been accused of doing all that now wants to be part of the procedure that decides who should be an applicant.

Mr Sullivan : I know, it sounds frustrating. But I am saying to you, as public policymakers and lawmakers, when you're looking at a public redress scheme let's make sure that basic legal principles like procedural fairness are characteristic of the scheme. It's up to you to justify how you would design that scheme accordingly. I'm raising it for you; it is now over to you to decide how procedural fairness will work in the scheme.

Senator HINCH: But you do concede that it's weird that some institution that's been accused of doing this is now asking, 'Can we get in there and decide who should be the referee?'

Mr Sullivan : No, I don't think we are saying who should be the referee. When you read what we are saying, we are simply suggesting to you, firstly, that procedural fairness needs to be a principal characteristic of the scheme. When it comes to someone making an allegation about an abuse claim that we have no idea about, I don't know what your briefing notes show you, but we've already said that 4,445 allegations of abuse are on our books, since 1950. So, if someone turns up at this redress scheme—and I'm not saying they won't—who aren't on our books, we certainly need to know about it, because there may be a perpetrator alive and active. Secondly, it is in our interest to know so that we can also inform our insurer, so that we can access the scheme in an effective, sustainable way. That's the whole point. Can I simply say—I know you're wanting to stress the point and I'm happy to hear it again and again—there's no excuse for the history of the church and there is certainly no attempt to whitewash that in this submission.

Senator HINCH: You probably heard some of the evidence given earlier that the weakness of the scheme is that it is only about sex crimes in institutions, and is not for all the other abuses that have gone on in orphanages, churches and wherever. But you are saying here, and I need some clarity, 'The link between nonsexual abuse should be sufficiently connected in order to be taken into account.' What does that mean?

Mr Sullivan : We were a bit confused here ourselves about all of this. Originally we thought the scheme was for the sexual abuse of children in institutions. About halfway through this process—the process being the consultation being run by the Commonwealth and the various groups in the states—it was quite obvious that some states wanted the inclusion of physical abuse into the scheme, which we said was outside the remit even of the royal commission. We wanted it to be more—what would you call it?—limited or determined by the royal commission's brief. So, if there was going to be other than sexual abuse—nonsexual abuse—we were led to believe it would be seen as relevant if it could be seen as directly related to the sexual abuse. Now, I don't know how you'd do that in real terms, but we were prepared to live with that compromise on the grounds that advice that came back, albeit anecdotal, was that some individuals have had experiences of sexual and nonsexual abuse as part of a whole episode in their life of abuse.

Senator HINCH: Going back to 'reasonable likelihood', you raised a point about the breakdown of your institutions. They may not sign up because 'reasonable likelihood', rather than 'proof' or whatever, would affect their insurance, so they may not join the scheme. If your insurance company baulks at it, why do you sell it some buildings?

Mr Sullivan : That's obviously going to be a question that they'll have to think about.

Senator HINCH: Take it on notice; I'm sure you would.

Senator WATT: Can I pick up on one thing there? I asked the question before about the insurers, and I think you said that this issue of the reasonable likelihood of abuse having occurred did cause some concern about the threshold that needed to be proven. What is it then that you think should be the threshold, if it's not that?

Mr Sullivan : I think the balance of probabilities.

Senator WATT: So what do you say to the great volume of evidence we've had from survivors that, due to the nature of some of these offences and the fact that people were very young at the time things occurred, it will be difficult to meet that standard and difficult to produce the evidence that would be required to meet that standard and that therefore people might miss out?

Mr Sullivan : As I said, 4,445 known allegations in the Catholic Church have all been addressed by the balance of probabilities, and something like 97 per cent of those have been paid out on that basis. Most of those cases are historical sex abuse cases. Oftentimes there are no witnesses. Oftentimes the perpetrator's dead. So I think you'll find that's a very similar scenario to that we'll see in this redress scheme. It just simply means that it's not that much of a hurdle to use the balance of probabilities, and I don't think it will be a disincentive for people being able to access the scheme. Now, that's just on our experience of running redress schemes since 1996. You don't run a redress scheme to try to keep people out of getting reparation.

Senator WATT: Those figures that you quoted were from the church's internal processes to compensate people.

Mr Sullivan : They're the data the royal commission survey delivered.

Senator WATT: And all of those payments were made in an environment when civil litigation was extremely difficult because of limitation periods and a range of other restrictions that were imposed on people taking civil litigation. Do you think that there is any risk to institutions that, if you apply the same standard of proof as is required in legal action—that being the balance of probabilities—more people might say, 'Well, I've got to demonstrate that on the balance of probabilities this occurred through the redress scheme and I can only get a maximum of $150,000 or $200,000; but if I meet the same standard through taking civil litigation I can potentially get a lot more,' and that you might actually face more people taking civil litigation in an environment where it's becoming easier to institute litigation?

Mr Sullivan : I think the eradication of the statute of limitations is a benefit to people; that's good. As you know, our policy has been now for many years—and has started to be enacted even in this state—that there should be an entity to sue if you are an unincorporated association. That entity needs to be supported by insurance and/or assets—thus the balance of probabilities. The truth of the matter, anecdotally, is that most people find the litigation court processes extraordinarily gruelling and traumatising and, despite all the best made plans, the legal process is pretty tough. Some will say, 'Really?' One of the purposes of the redress scheme is to give people an option that's far more humane.

Senator HINCH: I will just go back to the $150,000 cap again. We heard evidence again today that the ambit claim was for $500,000. It came down to $300,000 and then to $250,000. The royal commission settled on $200,000. An independent campaigner, Anthony Foster, who you are well aware of, was assured by the royal commission that that would be acceptable to most institutions, including the Catholic Church, and that's why he agreed to the $200,000. I think you gave evidence earlier today saying that your council did agree to the $200,000 if you had to do it—is that right? So how come it suddenly goes down to $150,000? Who told you, and when, that they'd gone for your figure?

Mr Sullivan : Which question do you want me to answer for us?

Senator HINCH: The last one: who told you and when?

Mr Sullivan : It was an announcement. The government announced $150,000.

Senator HINCH: When Christian Porter announced it, was that how you heard?

Mr Sullivan : Sure.

Senator HINCH: You didn't get advance warning or anything from the government?

Mr Sullivan : I'm not on the bat phone.

Senator HINCH: Were you surprised? You saved 50 grand at a time when you've said your council agreed that $200,000 would be fair.

Mr Sullivan : I was surprised that the government didn't take the royal commission recommendation.

Senator HINCH: If it went back up to $200,000, would you accept that?

Mr Sullivan : I think it's fair; that was the royal commission recommendation.

Senator HINCH: So you are saying that the Catholic Church would accept $200,000?

Mr Sullivan : I'm on the record as saying that all of the archbishops and bishops in the royal commission said that they supported the national redress scheme as the royal commission had already announced it. That recommendation of the royal commission includes a payment up to $200,000, so you read between the lines.

Senator HINCH: Would you accept a minimum of $10,000?

Mr Sullivan : Yes. I think there should be a minimum payment. I think it's got to be appropriate.

Senator WATT: I'm conscious that we've only directed questions one way.

Mr Sullivan : So am I.

Senator WATT: There might be a reason for that, Mr Sullivan.

Senator MOORE: I have a question for you, Mrs Crole. The issue you are raising about the personal interaction is a really important element of the package. I know we've been concentrating on the monetary process, but there are the three levels of package. You've said that you would recommend that that happens at the time that the person wants it and possibly earlier. Do you know where the decision to have it at the end comes from? I can't remember seeing that in the royal commission's report. I may be wrong, because it was a big report. Are you aware where that particular recommendation comes from?

Mrs Crole : We can't find evidence as to where that arose from. From what I understand, the royal commission's report was needed to be survivor focused, and they need to be empowered to request it when they need it to be.

Senator MOORE: Absolutely—justice and survivor focused.

Mrs Crole : Our concern was that people need to be appropriately trained and informed and be the right person to deliver that response.

Senator MOORE: Absolutely.

Mrs Crole : And it should, from our perspective, come from the highest hierarchy in the organisation too, not delegated beyond that. But we're not sure where the evidence came from to change that into the process.

Ms Whitwell : Our conversations with the department to date have talked about the design aspects of the scheme and the potential implementation of the scheme. It's our understanding, while it's not in the legislation—it may be in the rules—

Senator MOORE: We're all looking forward to those rules.

Ms Whitwell : Yes, we're all looking forward to that detail—that in order for a survivor to access a direct personal response from the institution they must first go through the assessment and administration of the scheme itself and receive an offer of a monetary payment. If they accept that offer of a monetary payment and sign a deed of release, then will they be able to access the direct personal response.

Senator MOORE: We'll follow it up with the department. We were unaware of that sequence being put into the process.

Ms Whitwell : That's our understanding of how the scheme may be implemented.

Senator MOORE: Mr Sullivan, do you have any views about that?

Mr Sullivan : No.

Senator MOORE: I'm just seeing where it goes. Thank you for that—it was in your submission in detail. Your insurers: what's the go with them?

Mrs Crole : Redress to us isn't about the insurance.

Senator MOORE: But you'd have to be involved with your insurers.

Mrs Crole : Our scheme is based on reasonable likelihood, so it doesn't have an intersection with insurance.

Senator WATT: Is it possible to say what either of your organisations has provisioned for any payments towards a redress scheme? I imagine we're talking pretty large amounts of money.

Mrs Crole : We got our actuary report done by Finity a couple of years ago now, using the IP that the royal commission had used through Finity. The actuary report has been way in excess of what we have actually experienced to date. Our accruals are there but they haven't actually been seen.

Senator WATT: Are you able to put a dollar figure on what the provisioning is?

Mrs Crole : We've literally seen 10 survivors come forward so far.

Senator WATT: But your potential exposure would be much greater.

Mrs Crole : We believe so, but we also believe now, having done some more investigation into what was going on in our organisation, because we didn't provide residential care or anything like that, there seems to have been a mechanism where it was not tolerated back then to any great extent, so we're not seeing the numbers come forward.

Senator WATT: What about you, Mr Sullivan?

Mr Sullivan : Originally, when we were dealing with the royal commission, by way of its draft paper, over a 10-year period we thought the potential could be a billion dollars in payments for the Catholic Church. Unfortunately, the assumptions are somewhat loose, because it's hard to know how many new people—new by way of not being currently on the books—would come to the redress scheme. As you know, the scheme is based on a payment schedule—a spectrum of payments. Therefore, you work it on an average of, say, $65,000 or $70,000 or whatever, so there are various amounts of assumptions. Senator Hench was asking questions around, say, sexual and nonsexual and so on. If over time the scheme changes in its criteria and eligibility that will change the catchment, and that will effectively make it more expensive.

Senator HINCH: There was evidence given earlier today that Cardinal Pell said the church could afford it, whatever it is.

Mr Sullivan : Couldn't, did you say?

Senator HINCH: Could afford it, whatever it is.

Mr Sullivan : I'm sure he's right. The church has to pay its way.

Senator WATT: Have either of your organisations been consulted about the structure of the assessment matrix?

Ms Whitwell : Not in any great detail. In our early consultations with the department—I think there was some evidence earlier today—a very early draft of an assessment matrix that was loosely based on what the royal commission had recommended. What had been in the royal commission's deliberations was tabled, again, in confidence. It was very early stages and obviously an incredibly sensitive piece of work. We've not seen anything further since that period, which was last year some time, and we don't understand the detail, really, of how any assessment matrix might be applied. I think there have been lots of conversations about the maximum payment, and the Y would support a maximum payment, as per the royal commission recommendations. But we also know the really critically important piece for survivors to know, to understand and to have transparency about is what average payments might look like. Also really critically important is how that assessment matrix is going to be applied and what weighting is going to be given to certain elements.

That's also our concern in relation to children and young people who potentially could be applicants to the scheme. The scheme allows for anyone to apply, provided they meet other eligibility criteria that we're yet to find out about, in relation to abuse that occurred up until the start date of the scheme. So it leaves it open to children and young people to be able to apply for the scheme. That's where we're really concerned about the application of the assessment matrix, given the issues that we've talked about around understanding what might be the lifelong impact of abuse when the person is still a child.

Senator WATT: They were good points that you made on that. Mr Sullivan, are you involved in consultation about the assessment matrix?

Mr Sullivan : No.

Senator WATT: Are you part of—I've forgotten the name of it—the advisory board or the consultative group?

Mr Sullivan : I personally am.

Senator WATT: Has the assessment matrix gone to that?

Mr Sullivan : We all signed a confidentiality agreement about our engagement with that. As for your question about whether the Catholic Church has been consulted about the assessment matrix, the answer is no.

Senator WATT: Neither of your organisations has opted into the scheme at this point, has it? No. Aside from the need for states and territories to opt in and refer powers, are there any other significant barriers that are stopping you from opting in that haven't yet been resolved?

Mrs Crole : No, other than that we haven't seen the rules and we need to see what it looks like. Our biggest barrier would be that we need all the states and jurisdictions to opt in.

Senator WATT: Leaving that aside, if they were all to opt in, you'd still want to see the rules around assessment matrices?

Mrs Crole : We support a national scheme, so that would mean it's a national scheme if it were based on the royal commission's recommendations.

Senator WATT: Mr Sullivan?

Mr Sullivan : I think you've amplified some of our issues already, like the level of proof and procedural fairness, to name two. But I can't help but stress that it needs to be a direct opt-in by the states, not a facilitation of just the non-government sector. We need to make that point strongly.

Senator WATT: In terms of the monetary cap, I understand what you're both saying. I think it's the same for the YMCA—that you support or you're comfortable with the royal commission's recommendation. There was some discussion earlier today about some of the case law that is now starting to come through with significantly higher awards of damages, including exemplary damages where institutions, for instance, were aware of someone's conduct and did nothing about it or assisted them to escape a jurisdiction et cetera. Do you think there should be any provision in a payment scheme for an additional payment above the monetary cap where an institution has been particularly negligent in its conduct around an offender?

Ms Whitwell : I think your question poses some really interesting challenges about the way that the scheme design is evolving at the moment. It seems to be trying to be two things. It's trying to be a redress scheme but also trying to engage and implement some mechanisms that are more compensatory, such as signing a deed of release and the evidentiary burden that might be required for somebody to achieve that top level of payment. I absolutely understand the argument for adding another payment. I think it goes to the question of a scheme that is also bunching together care leavers and non-care-leavers, and we've heard lots of evidence about that today. I think there's great value in thinking about a national scheme that may almost have the effect of two separate streams within that scheme, if you like. I think that perhaps the issue around exemplary damages and some of those additional factors are certainly potent arguments when it comes to those who've suffered abuse while in care.

Senator HINCH: Could I raise a point of order here. That confidentiality agreement you signed, Mr Sullivan, had nothing to do with the $150,000?

Mr Sullivan : I beg your pardon?

Senator HINCH: That confidentiality agreement you signed personally had nothing to do with any discussions about the $150,000?

Mr Sullivan : I'm not going to tell you what the discussions were about, because it's a confidentiality agreement.

ACTING CHAIR ( Senator Siewert ): Sorry, we've run out of time. I've let it go a bit over because we started late. Thank you for your time today.

Senator MOORE: Can I ask one more question? Mr Sullivan, your group, the Truth, Justice and Healing Council, was formed to coordinate the provision of fair and reasonable redress for victims and survivors of child sexual abuse, around policy. Now that the process is moving on, who will have the responsibility within the church of coordinating the way the scheme operates in the Catholic Church?

Mr Sullivan : It'll be what they call the supervisory—

Senator MOORE: The supervisory group you mentioned before. They'll have full responsibility for how the scheme is going to operate?

Mr Sullivan : That's right.

Senator MOORE: Thank you.