1. 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

2. 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

3. WHY REDRESS?
Joan’s story

4. How we got to the NRS

6. 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

7. 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

8. 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)

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

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

25. Determinations The Assessment Framework
Amount of counselling component

26. 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 ↓

27. Redress payments & access to financial help

28. 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

29. knowmore & the NRS so far

30. knowmore – 1 July to 23 August 2018

31. DSS update – July 2018
Over 500 applications received

32. DSS update – July 2018

33. 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

34. Contacts www.knowmore.org.au 1800 605 762 Contacts
Prue Gregory, Principal Lawyer
Warren Strange, Executive Officer