NACLC National Conference Warren Strange August 2018 The National Redress Scheme for survivors of institutional child sexual abuse NACLC National Conference Warren Strange August 2018

Outline Today Why we have a National Redress Scheme An overview of the scheme and key issues in practice knowmore’s role and work to date with clients and accessing the NRS Future directions – law reform and service delivery

WHY REDRESS? Joan’s story

How we got to the NRS

knowmore’s role with the NRS NACLC has been funded to operate knowmore to provide legal support services To provide free, trauma-informed, culturally-appropriate and quality legal help to survivors to access the NRS Includes information and advice about the options available to them, including claims under the NRS and access to other compensation schemes or common law rights & claims

knowmore’s role with the NRS Includes legal advice at four key stages of the redress process Prior to application so survivors understand eligibility requirements, the application process and their legal options During completion of a survivor’s application After a survivor receives on offer or refusal and seeks an internal review On the effect of signing a deed of release, including its impact on the prospect of future litigation

Legislation establishing the NRS National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) Subordinate legislative instruments: National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 (Cth) National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 (Cth) National Redress Scheme for Institutional Child Sexual Abuse Direct Personal Response Framework 2018 (Cth) National Redress Scheme for Institutional Child Sexual Abuse Declaration 2018 (Cth)

Overview of the NRS The NRS provides access to: A monetary payment (up to $150,000) Counselling services Option of a direct personal response Redress payments are a recognition of the harm done – not compensatory in nature like civil/common law damages Responsible institution(s) must be participating in the NRS

Overview of the NRS (cont.) Not all survivors will be eligible You can only apply to the scheme once Relevant past payments are taken into account Accepting an offer of redress means relinquishing rights to further civil action against the responsible institution and its officials Life of 10 years

Monetary payments Key features Cap is $150,000 Median payment estimated to be $76,000 Earlier payments related to the abuse deducted. These are indexed – 1.9% p.a. Issues will arise about including and excluding past payments in some cases – e.g. payments for legal fees; payments under past schemes providing redress for being in an institution and/or experiencing non-sexual abuse; ex gratia type payments

Monetary payments Redress payments are: Non-taxable Exempt from Cth debt recovery and income tests relevant to Cth Government payments (but not asset tests) Exempt from creditors in bankruptcy

Counselling services Access depends on location – where you live May be connecting the survivor with local services (NSW, Vict & ACT); or Receipt of a lump sum payment of up to $5,000

Direct Personal Response At the survivor’s option, upon accepting an offer of redress Available from each participating institution, where the survivor is found to have suffered abuse in more than one institutional setting Framework sets out the arrangements under which a participating institution must engage in a DPR A DPR is one or more of: An apology or statement of acknowledgement or regret Acknowledgement of the impact of the abuse on the survivor An assurance about preventative action Opportunity to meet with a senior official

Institutions Institutions must be ‘participating’ Commonwealth has established the scheme. All State & Territory Governments have agreed to join Steps must be taken to join State laws referring powers – also then allow non-government institutions in that State to join the scheme. So far NSW & Vict. Bills in Qld, Tas & SA. WA by end of year Non-government institutions – a number of administrative steps have to be taken Institutions can join up until 30 June 2020

Institutions (cont.) Concept of ‘responsible’ institutions Determines liability to pay redress ‘Primary’ and ‘equal’ responsibility Legislation lists circumstances relevant for determining responsibility Pay administrative costs proportionate to redress Institutions that no longer exist A government institution must have been responsible for the abuse, to become a ‘funder of last resort’ May be a connected non-government institution still

Threshold questions – is redress the right option? Some issues survivors need to think about Redress v civil claim ? Not both Past redress – payments? Responsible institutions – participating? Multiple institutions? Effect of accepting an offer – waiving future civil rights Effect of declining an offer – only one application to the NRS

Eligibility issues General pre-conditions Experienced sexual abuse as a child (under 18 years) It happened before 1 July 2018 An institution is responsible Born before 30 June 2010 An Australian citizen or permanent resident

Eligibility issues (cont.) Exclusions Did not experience child sexual abuse Already received a court-ordered payment from the institution (not an out-of-court settlement) Previously applied Security notice applies Different circumstances apply if: Are under 18 years In prison (unless exceptional circumstances) Have ever been sentenced to > 5 years imprisonment Experienced abuse after 1 July 2018

Eligibility issues - 5 years imprisonment ‘Special assessment’ Not entitled to redress unless Operator makes a determination the applicant is not prevented from being entitled to redress; being satisfied providing redress would not: Bring the scheme into disrepute Adversely affect public confidence or support for the scheme

Eligibility issues - 5 years imprisonment (cont.) Factors informing the Operator’s determination Advice of the jurisdictions where the abuse occurred* and where the offence occurred Nature of the offence Length of sentence Passage of time Rehabilitation Other matter considered relevant * Must be given greater weight than other factors

Eligibility issues - some other situations Foster care Depends on circumstances – was an institution responsible for the survivor having contact with the abuser? For example – formal placements, legal guardianship Informal family placements – may be no responsible institution Survivors who have died If survivor dies after making a complete application, and an offer is made, beneficiaries can receive redress payment If survivor has died before making application, estate cannot apply on their behalf

Application process Some features Paper or on-line Verified by statutory declaration Confirmation of identity required Support services Assistance and legal nominees Personal information; experience of CSA and the impact May be asked for more information, as will institution. Information sharing. Police reporting Can withdraw up to point of determination Independent decision-makers Operator advises assessment may take between 3 and 12 months

Determinations The Assessment Framework (a legislative instrument) – supported by guidelines (confidential) Redress payments

Determinations The Assessment Framework Amount of counselling component

Offers Key features Standard of proof = ‘reasonable likelihood’ Acceptance – within 6 months (or any extension) Legal advice Declining – if not accepted, deemed refusal (and no further application) Survivors can request a review (not institutions) – internal only. No JR. Different Independent Decision Maker. Redress offer could go ↑ or ↓

Redress payments & access to financial help

Not quite the Royal Commission’s vision for a redress scheme? Some key departures For example; the cap, exclusions of classes of survivors; offer acceptance period; provision of counselling services Opportunities to advocate for reform Two Senate inquiries into the Bills; State legislative processes Current Select Committee examining the implementation of the Commission’s redress recommendations Legislative reviews under the NRS Act knowmore’s relationships and national perspective

knowmore & the NRS so far

knowmore – 1 July to 23 August 2018

DSS update – July 2018 Over 500 applications received

DSS update – July 2018

Future service delivery Working co-operatively to support survivors Information resources – processes and referrals Building capacity across the legal assistance sector Co-operative community engagement and outreach activities Possible outsourcing of services from FY 2018_19 to maximise access to the NRS and best support survivors, esp. in regional and remote locations

Contacts www.knowmore.org.au 1800 605 762 Contacts Prue Gregory, Principal Lawyer 02 8267 7400 prue.gregory@knowmore.org.au Warren Strange, Executive Officer 07 3218 4500 warren.strange@knowmore.org.au www.knowmore.org.au 1800 605 762