Sdrinis, Angela; Longano, David; De Paoli, Danielle; Morrison, Andrew --- "National Redress Scheme" [2019] PrecedentAULA 29; (2019) 152 Precedent 4

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The Royal Commission into Institutional Child Sexual Abuse (Royal Commission) made a number of recommendations relating to both criminal and civil issues in regard to child abuse. In recognition of the difficulties faced by survivors in accessing justice, one of the major recommendations made by the Royal Commission was the establishment of a National Redress Scheme (NRS or Scheme) to compensate survivors of historical child sexual abuse.^[1]

The Scheme started on 1 July 2018 after the Commonwealth passed the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (the Act). In order for the Scheme to operate nationally, the various states of Australia have been required to pass legislation referring powers to the Commonwealth. All state and territory governments in Australia have opted in to the Scheme.^[2]

Under the Scheme, the relevant institution which was primarily or equally responsible for the ‘abuser’ having ‘contact’ with the victim must have opted in to the Scheme. All non-government institutions have until 1 July 2020 to join the Scheme.^[3]

As at 28 February 2019, more than 2,700 redress applications had been lodged by survivors, but Social Services Minister Paul Fletcher announced that nearly half of the organisations related to the applications have so far failed to sign up to the Scheme. He also named and shamed approximately 100 organisations which had yet to sign up.^[4]

It was also revealed at a Senate estimates hearing on 21 February 2019 that only 51 payouts had so far been made with fewer than 10 people receiving between $100,000 and $150,000. Only a very small proportion (admittedly from a small sample) of claimants would appear to have received the maximum payment of $150,000.

In order to be eligible to make an application to the NRS claimants must be Australian citizens or permanent residents in Australia, and have suffered child sexual abuse before 1 July 2018 within a participating state or territory.^[5]

Physical, psychological, cultural abuse or neglect are considered to be only ‘aggravating factors’ to the primary sexual abuse. This strict definition of abuse fails to acknowledge the deep and often lifelong impacts of non-sexual abuse on survivors.

Only one application can be made in the lifetime of the Scheme, whether successful or unsuccessful (see below). An application that is withdrawn before an offer is made is regarded as not having been submitted. One application for lifetime is potentially an issue for survivors who suffered abuse from an institution that is participating now in addition to another institution who might not opt in until 2020. Consequently, some survivors might need to wait until 2020 to apply or forego the full extent of their abuse being taken into account.

For a victim to be eligible for compensation under the NRS, they must have suffered sexual abuse where a participating institution was primarily or equally responsible for the ‘abuser’ having ‘contact’ with the victim.

Under s15(4) of the Act, relevant factors in determining if an institution is responsible for the abuser having contact with a person include whether:

To initiate the process, a survivor must complete a 44-page application form, which can be submitted electronically or by hard copy. The application includes a statutory declaration and allows the victim to provide any further information they deem appropriate relating to their abuse.

An applicant to the Scheme must satisfy the Operator^[8] that there is a ‘reasonable likelihood’ that the sexual abuse occurred.^[9] This is a less onerous test than the balance of probabilities.

There is no requirement to provide medical evidence regarding the injury and/or its impacts.

When the NRS team receives the application, it will notify the claimant that the application has been received. Claims officers process the claim and may ask both the survivor and the institution for any additional information and material they deem relevant.^[10]

The applicant or institution must be given at least four weeks to provide the information if the application is urgent; otherwise eight weeks (which can be extended). No decision will be made if the information from the applicant is not received but a decision can be made in the absence of the information requested from the institution.

An assessment officer determines the claim based on an assessment framework. The assessment framework provides for varying degrees of severity of abuse together with a scale of corresponding compensation amounts, counselling provisions, and a requirement that institutions provide a personal response should this be required by the survivor.^[11]

If the application for redress is approved, an offer of redress must be made and an offer letter (letter) will be sent. The letter will explain the three components of redress which are counselling, a redress payment and a direct personal response and will specify the amount of the redress payment and arrangements for counselling. The letter will also specify the participating institution(s) found responsible for providing redress, any apportionment of liability and explain how a direct personal response from the institution(s) can be arranged. The Operator will also take into account any past compensation.

The letter will also explain how to accept or decline the offer, request an extension to the acceptance period, or seek a review of the decision (see below), and will provide the date by which an offer must be accepted.^[12]

The letter will also explain the effect of accepting an offer; that is, that all responsible participating institution(s), their officials, and any associated institutions, will be released from all civil liability. This legally binding agreement does not indemnify an individual perpetrator from any further civil action.

The claimant will also be referred to the Knowmore Legal Service (Knowmore) which was the legal service funded initially to support survivors who engaged with the Royal Commission and has now been funded to provide free legal services to survivors wanting to claim redress.

To decline an offer, a letter can be sent in response. If the offer is not accepted within six months, it is assumed that the offer has been declined. Declining an offer is final – it is not possible to reapply to the NRS in the future.

While the NRS estimates that the assessment process may take between 3 and 12 months,^[13] the figures referred to earlier indicate that the process is likely to be much longer for many claimants.

The Royal Commission recommended that the redress scheme should include three components:

The range of compensation available under the Scheme is $10,000 – $150,000 (the Royal Commission recommended a maximum of $200,000).

Pursuant to s5 of the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, the amount of a redress payment for a person is calculated using an ‘assessment framework.’^[14]

Section 4 of the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 provides for the relevant definitions used to match compensation amounts in the assessment framework.^[15] The definition of ‘extreme circumstances’ (which provides for an additional $50,000) requires penetration and ‘institutional vulnerability’. Institutional vulnerability essentially requires that the claimant lived in accommodation provided by the institution and where the institution was responsible for the day–to-day care and custody. Essentially, only claimants who suffered penetration and were abused in orphanages or as wards of the state (there is a query whether foster care is covered) and/or as boarders at private schools or hostels will be eligible for the maximum payment. And only if the institution or organisation has signed up to the Scheme.

Amount of redress payment
	Column 1 Kind of sexual abuse of the person	Column 2 Recognition of sexual abuse	Column 3 Recognition of impact of sexual abuse	Column 4 Recognition of related non-sexual abuse	Column 5 Recognition person was institutionally vulnerable	Column 6 Recognition of extreme circumstances of sexual abuse
1	Penetrative abuse	$70,000	$20,000	$5,000	$5,000	$50,000
2	Contact abuse	$30,000	$10,000	$5,000	$5,000	Nil
3	Exposure abuse	$5,000	$5,000	$5,000	$5,000	Nil

For a claimant to be entitled to the maximum payment of $150,000, s/he must have experienced penetrative abuse, ‘related non-sexual abuse’ (including physical abuse), institutional vulnerability and ‘extreme circumstances’. The minimum payment is $5,000 where there has only been ‘exposure abuse’ and no impacts.

The Operator will provide access to counselling for the survivor if they are in one of the jurisdictions which has opted into the Scheme.

It is also possible for the Operator to award an amount of up to $5,000 for counselling in addition to the monetary compensation if the claimant lives in a jurisdiction where the state government has not opted in or the victim has passed away (see below).^[16] Again, only claimants with penetrative abuse will be entitled to the maximum funding/payment of $5,000.^[17]

If an applicant dies, redress can still be payable. The Operator does not need probate or letters of administration. Given the age of many survivors, death following an application and offer of redress is not unlikely, and redress payments can be made to an estate. Family members cannot apply on behalf of someone who has died, however, nor can the counselling and direct personal response components be passed on to others.

Pursuant to s54 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), a direct personal response from a participating institution to a person can include an apology/acknowledgement/statement of regret and/or an assurance as to the steps the institution has taken or will take to prevent abuse and an opportunity to meet with a senior official of the institution.^[18]

Section 56 of the Act provides for general principles for the direct personal response which talk about how the institution should engage with the survivor, which institutional representatives should provide the direct personal response and relevant training of those people including cultural awareness and sensitivity training, etc.^[19]

Applicants can request a review of the outcome of their application within six months of receiving their letter. A different independent decision-maker will conduct the review. The applicant cannot provide additional information. If the original offer is confirmed the survivor will have two extra months to consider it, or if a new or different offer is made, the survivor will have a further six months to consider it. Institutions cannot request a review of redress decisions.

A person who has accessed redress under another scheme or has previously received compensation may still apply for redress under the Scheme. However, any prior payments made by a participating institution in relation to abuse within the scope of the Scheme will be deducted from the amount payable by that institution. Prior settlements will be indexed for inflation under the Scheme through the application of a complex formula under the Act. Some applicants may end up with no offer of monetary compensation, but may still be entitled to counselling and an apology/direct personal response. It appears that legal costs and/or medical expenses will not be taken into account in any prior payment.^[20]

Some other payments will also not be taken into account, including payments under various Commonwealth compensation schemes.^[21]

Section 4 of the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 provides the definition of ‘penetrative abuse’. The definition states:

‘relevant sexual abuse of a person is penetrative abuse if any of that abuse involved penetration of the person (even if the rest of that abuse did not)’.^[22]

The definition in its current form requires clarification. For example, the definition does not establish whether digital and oral penetration is inclusive in this definition, or whether abuse will be classified as penetrative only when vaginal or anal intercourse has occurred.

Institutions are notified of offers before claimants. The notification of offers should be provided to the claimant first or at least to the claimant and the institution at the same time. For survivors to have trust in the NRS, it is important that institutions do not appear to be given preferential or different treatment under the Scheme.

Clarification is required as to whether claimants will be required to sign a release to receive counselling and/or a direct personal response even where no monetary compensation for the abuse itself is received.

it would be reasonable to conclude that the sexual abuse was so egregious, long-term or disabling to the person as to be particularly severe.’

Clarification is required as to whether applicants must fulfil both the criteria necessary for ‘institutional vulnerability’ and ‘related non-sexual abuse’ to be eligible for ‘extreme circumstances’ or whether these are just contributing factors to an assessment of ‘extreme circumstances’.

Under the current provisions of the NRS, claimants are unable to nominate lawyers as their legal nominees except in very restrictive circumstances for the purpose of a redress application. Lawyers can only be nominated as ‘assistant nominees’, which comes with a number of limitations that do not allow for proper legal representation.

A significant factor in victims electing to pursue their NRS claims through a lawyer is the desire to have no direct interaction with the Scheme itself due to fears of re-traumatisation.

As assistant nominees, lawyers will not be the first point of contact for the NRS and whether legal representatives are contacted at all will be up to the discretion of the NRS. This includes with respect to any offer that the NRS might make which will be forwarded directly to the claimant and not via the legal representative’s office. This places claimants in a difficult and uncomfortable position and may be a barrier preventing/inhibiting victims from applying to the Scheme.

A claimant will be required to provide identification by way of certified copies of a birth certificate or passport (one of the two) and a driver’s licence and Medicare card which must be witnessed, copied and signed by a Centrelink officer. Requiring documentation to be witnessed only by Centrelink officers is an added burden for claimants. There are longstanding arrangements in Australia regarding the class of people who can witness documents^[23] and there would appear to be no valid reason why the NRS should impose different, more onerous requirements, particularly given that the Scheme professes to be ‘victim-focused’.

There are particular concerns with regard to the piecemeal structure of churches that has meant that every single entity within a church, rather than a single representative body, is required to voluntarily sign up to the Scheme. This is a tedious process that has caused a frustrating and inconsistent opt-in process.

The multi-tiered approach by organisations such as the Catholic Church in Australia is causing confusion and re-traumatisation as to whether applicants are currently eligible for compensation under the NRS or whether they need to wait for the relevant institution to opt in to the Scheme.

To reiterate: accessing redress through the NRS extinguishes a survivor’s common law rights.

As referred to above, when claimants receive an offer, they will be referred to Knowmore for advice as to their options. Knowmore is able to advise on the consequences of accepting an offer under the NRS and the finalisation of a claimant’s common law rights. However, advice on the viability of a common law action will require a detailed investigation into the prospects of success of a common law claim and whether the claimant will receive more by way of a common law claim than is available under the redress offer. If a client has submitted an application to the Scheme but has yet to receive an offer and decides to explore their common law options, they must withdraw their application before an offer is made.

To properly advise a claimant, it may be necessary to obtain documentation, locate witnesses and obtain witness statements and all of the other work involved in properly investigating a potential common law claim. Knowmore has not been funded to undertake this work and no doubt the burden of advising claimants will fall on ALA members and expert abuse lawyers generally.

The capacity to advise claimants on the viability of any potential common law claim will also be impacted by the period of time that an offer remains open, which is currently six months. An extension can be applied for if a claimant can show ‘exceptional circumstances’.^[24] However, pursuant to s45(2) of the Act, if an offer lapses before it is accepted, the claimant cannot make another claim under the NRS.

In addition, the framework allows for an additional payment of $5,000 for related non-sexual abuse. This includes physical abuse. If the application includes allegations of physical abuse, the claimant will only receive $5,000 for this abuse.^[25] In circumstances where there might be a viable common law claim for physical abuse, separate to the sexual abuse component, this may be worth considerably more than the $5,000 payment available under the Scheme and therefore worth pursuing separately.

In other words, advising a claimant on whether or not to accept a redress offer involves complex issues which may require considerable investigation and analysis. In the absence of getting meaningful advice, claimants may be signing away their common law rights for a very modest amount of compensation, as compared with judgments we are seeing in historical abuse cases in the $1.5 million range.^[26]

A Joint Select Committee headed by Senator Derryn Hinch recently reviewed the NRS and made a total of 29 recommendations.

Its key recommendations include that the maximum payment of $150,000 should be raised to $200,000; that the assessment matrix should be amended to be more consistent with that recommended by the Royal Commission; that the funder of last resort where institutions are defunct should be the relevant jurisdiction where the abuse occurred; that the indexing of prior payments should be reviewed; eligibility should be extended to non-citizens and non-permanent residents provided these claimants meet all other eligibility criteria; that public guidelines should be issued as to extending eligibility to people who are currently in gaol or have served a sentence of five years or more; greater clarity should be provided by the Scheme as to the way in which claims are determined; and that lifelong access to counselling should be available for survivors as recommended by the Royal Commission.

The NRS is much less than survivors and their advocates had hoped it would be but much more than we expected in the bad old pre-Royal Commission days. Essentially, the NRS provides another option to survivors of child sexual assault and an option some survivors may have no choice but to accept if they have a previously settled claim, and for some a preferable option when compared with engaging directly with the responsible institution in drawn-out, complex litigation.

Having said that, the best option for survivors is to have unfettered access to the common law and most importantly for legislation to be passed throughout Australia (as has occurred in Queensland and Western Australia) to allow survivors to apply for highly unfair deeds of release to be set aside where ‘it is just and reasonable to do so’.^[28]

Angela Sdrinis is a personal injuries accredited specialist and director of Angela Sdrinis Legal, Melbourne. PHONE (03) 9686 6610 EMAIL angela@asl.com.au.

David Longano is a solicitor with Angela Sdrinis Legal. EMAIL davidl@asl.com.au.

Danielle De Paoli is a personal injuries accredited specialist at Maurice Blackburn, Sydney. PHONE (02) 9806 7204 EMAIL Ddepaoli@mauriceblackburn.com.au.

In addition to the deficiencies and injustices of the Scheme for those entitled to claim, there are further injustices for those who are disentitled.

Firstly, the Scheme is open only to those who are Australian citizens or permanent residents. Therefore, children who were sexually abused while in immigration detention are wholly excluded. Such claims would, of course, be against the Commonwealth as the body placing children in detention and responsible for providing a safe environment. The Commonwealth has excluded its own liability under the Scheme in a way which seems manifestly unfair. If the result is to cause more civil litigation, then the taxpayer may ultimately pay for the Commonwealth’s decision.

The other area of possible exclusion concerns those who have committed serious criminal offences. Originally, they were to be wholly excluded but after protests (including from churches and other major institutions), the Commonwealth contemplated leaving the decision on exclusion to State and Commonwealth Attorneys-General. However, it is understood that at this stage the original exclusion for those sentenced to a term of five years or longer remains a total bar to a claim.

Given that those abused as children were frequently denied an education, led into a life of crime on the streets or were reduced to crime through alcohol or substance abuse, many – perhaps most – of those convicted of serious criminal offences can reasonably claim that their abuse was a cause of their misconduct. In any event, the individuals have already been punished by the criminal law for their criminal conduct by way of sentencing. It is manifestly unjust to punish an individual twice for the one offence and is unjust to leave open wide differences in approach between State and Territory Attorneys-General. This is an area where all individuals should be treated equally. The subsequent criminal conduct should not have the potential to disqualify an individual for the extremely modest compensation available under the Scheme in respect of their sexual abuse as a child.

As Aboriginal or Torres Strait Islander people are disproportionately represented in the Australian prison population, it is also likely that this provision may operate in a discriminatory manner against those Aboriginal or Torres Strait Islander people who have been abused as children. Given the history of forced child removals of Aboriginal and Torres Strait Islander children and their subsequent institutionalisation, this additional barrier to securing redress for any sexual abuse suffered by Aboriginal and Torres Strait Islander people in institutions is manifestly unfair and effectively represents a further level of abuse.

Dr Andrew Morrison RFD SC is a Barrister at Wardell Chambers, Sydney and is the ALA’s spokesperson on institutional responses to abuse and the Royal Commission. PHONE (02) 9231 3133 EMAIL morrison@wardellchambers.com.au.

^[1] Royal Commission Into Institutional Responses to Child Sexual Abuse, Report on Redress and Civil Litigation (2015), referenced in Royal Commission Into Institutional Responses to Child Sexual Abuse; Religious Institutions: <https://www.childabuseroyalcommission.gov.au/religious-institutions>.

^[2] Australian Government, Department of Social Services, National Redress Scheme for people who have experienced institutional child sexual abuse (December 2018) <https://www.dss.gov.au/national-redress-scheme-for-people-who-have-experienced-institutional-child-sexual-abuse>. All states and territories have now finalised their legislation: <https://www.nationalredress.gov.au/institutions/joined-scheme>.

^[3] Australian Government, Department of Social Services, National Redress Scheme for people who have experienced institutional child sexual abuse (December 2018) <https://www.dss.gov.au/national-redress-scheme-for-people-who-have-experienced-institutional-child-sexual-abuse>. To date, the Catholic Church, Anglican Church, Uniting Church, YMCA, Scouts and Salvation Army have opted in, as well as some state branches of the Baptist Church (in WA and Tasmania), the Christian Brothers and the Marist Brothers.

^[4] M Cunningham, ‘Institutions named, shamed over failing to join abuse redress scheme’, Sydney Morning Herald (online), 28 February 2019, <https://www.smh.com.au/national/institutions-named-shamed-over-failing-to-join-abuse-redress-scheme-20190228-p510us.html>. About 60,000 survivors are eligible under the Scheme, which has so far received more than 3,300 applications and made 115 redress payments, according to a news report from 3 April 2019: <https://www.9news.com.au/national/call-to-overhaul-abuse-redress-scheme/799b9992-633b-42b8-a39f-a0c4db4cf691>.

^[10] National Redress Scheme, What Happens Next? <https://www.nationalredress.gov.au/applying/what-happens-next>. The legislation does not specify any timeframe within which applications should be assessed.

^[13] National Redress Scheme, The Application Process, Fact Sheet (February 2019) <https://www.nationalredress.gov.au/sites/default/files/documents/2019-02/application-process-fact-sheet-4-february-2019.pdf>.

^[14] National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, s5.

^[16] National Redress Scheme for Institutional Child Sexual Abuse Rules 2018, s33.

^[17] National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, s6.

^[20] National Redress Scheme for Institutional Child Sexual Abuse Rules 2018, s26.

^[22] National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018.

^[25] The ALA has long argued that effectively restricting access to the Scheme to victims of sexual abuse only is likely to give rise to injustice, since some institutions may be responsible for inflicting years of horrific physical and psychological abuse on children in their care.

^[26] Salveron v Trustees of the De La Salle Brothers t/as De La Salle College, Revesby [2018] NSWSC 1537.

^[27]Joint select committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sex Abuse (April 2019).

^[28] Limitation of Actions (Child Sexual Abuse) and Other Legislative Amendment Act 2016 (Qld), s48 and Limitations of Actions Act 2005 (WA), s92.

Precedent (Australian Lawyers Alliance)

Sdrinis, Angela; Longano, David; De Paoli, Danielle; Morrison, Andrew --- "National Redress Scheme" [2019] PrecedentAULA 29; (2019) 152 Precedent 4