National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill

Second Reading

The government is pleased to introduce the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018. This bill reflects the commitment made by the South Australian government in May this year to participate in the National Redress Scheme for Survivors of Institutional Child Sexual Abuse. Its passage will enable and support the full implementation of the National Redress Scheme in South Australia, and the consistent operation of that scheme around the country.

Before I deal with details of the bill, it is important for me to remind the house of the work of the Royal Commission into Institutional Responses to Child Sexual Abuse (hereinafter referred to as 'the commission'). The commission heard from thousands of survivors across Australia. Their stories opened our eyes to the prevalence of institutional child sexual abuse, the failure of institutions to respond and the lifelong impact it brings to bear.

The findings and recommendations of the commission are powerful and far-reaching. The South Australian government has recently responded formally to the recommendations in the commission's final report. Joining the National Redress Scheme is one of a number of significant steps our government is already taking to protect children from institutional sexual abuse, to hold perpetrators to account and to provide support and justice for survivors.

In the course of its inquiry, the commission found that for many survivors existing civil litigation systems and past and current redress processes have not provided justice. It heard that the very nature and impact of institutional child sexual abuse can work against survivors' ability to seek damages under existing avenues. The long-term impacts of child sexual abuse make it difficult for survivors to hold institutions to account through the legal system, and many are at risk of being retraumatised when they attempt to do so.

Another issue that arose in the private sessions before the commission was the time it can take for survivors to disclose child sexual abuse. On average, the commission found that it took survivors 23.9 years to disclose the abuse they suffered. This government's recent reforms to the Limitation of Actions Act to remove the existing limitation periods for initiating claims for child sexual abuse will assist those who disclose their abuse many years after it occurred. However, the commission also found that civil litigation is not an effective means for all survivors to obtain adequate redress for the abuse they have suffered.

Society's failure to protect children across a number of generations created a clear need to establish ways survivors could access appropriate redress for past abuse. To this end, one of the commission's key recommendations was that the commonwealth government establish a single national redress scheme for survivors of institutional child sexual abuse. The South Australian government has been working closely with the commonwealth and other state and territory governments to develop a scheme as recommended by the commission.

The National Redress Scheme will operate for 10 years. The purpose of the scheme is to recognise and alleviate the impact of past institutional child sexual abuse and related abuse. The scheme will be operated by the commonwealth government. All other states and territories have indicated their commitment to join the scheme, as have the majority of the large faith-based institutions along with other large non-government institutions involved in providing services for children such as the Scouts and the YMCA. It is estimated that over 90 per cent of the survivors of institutional child sexual abuse will be covered by the scheme.

Redress under the scheme includes three core elements, as recommended by the commission. The first element is a monetary payment, which will be up to $150,000. A monetary payment is a tangible means of recognising the wrongs that survivors have suffered. The second element is access to counselling and psychological support. The commission heard a great deal about the long-term psychological and mental health effects of child sexual abuse. There was no doubt that many survivors will need counselling and psychological care from time to time throughout their lives.

The third element is a direct personal response from the participating institution or institutions responsible. Many survivors who gave evidence before the commission described the importance of receiving an apology from the institution responsible for their abuse. An apology includes acknowledgement of the abuse, its impacts and the steps taken to prevent it from happening again. Of course, some survivors may not want further contact or engagement with the institution.

For this reason, the principles guiding the provision of direct personal responses state that engagement between a survivor and a participating institution should occur only if the survivor wishes it. An intergovernmental agreement has been drafted to be signed by states and territories participating in the scheme, as well as by the commonwealth. I am proud to say that the South Australian Premier signed the intergovernmental agreement on 6 June 2018. I now turn to the detail of the bill.

To be clear, the bill does not establish the National Redress Scheme. That has already occurred with the enactment by the commonwealth parliament of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018. This bill provides the necessary legislative support from the South Australian parliament to secure the comprehensive application of the scheme in this state.

This is not something that the commonwealth can achieve acting alone given the limits on its legislative powers under the Commonwealth Constitution. This bill tops up those powers to the extent necessary using the mechanism provided for in section 51(xxxvii) of the Commonwealth Constitution. Clause 4 of the bill adopts the text of the commonwealth's National Redress Act and is an acknowledgment from the state parliament that it supports the application of the act. Later, I will briefly explain the content and operation of the National Redress Act.

Clause 5 of the bill also includes an amendment reference to enable the commonwealth to amend the National Redress Act, subject to some limitations. The first limitation, set out in clause 7, is to ensure that the commonwealth cannot make any amendments to the National Redress Act that would prevent or limit the establishment or operation of a state redress mechanism. The term 'state redress mechanism' includes a scheme established by a government or non-government entity for or in respect of individuals who have suffered institutional child sexual abuse.

The purpose of this limitation is to ensure that state mechanisms, such as the South Australian victims of crime scheme, are not inadvertently affected by any changes made to the National Redress Act. 'State redress mechanism' also includes the jurisdiction of a court to grant compensation or support to victims of crime, including crime relating to institutional child sexual abuse. This limitation prevents any changes to the National Redress Act that would impinge on the jurisdiction of the courts in this regard.

Clause 7(3) of the bill identifies certain matters where the limitation does not apply. This is to protect the provisions of the National Redress Act that address court proceedings that relate to the scheme. This includes the release of civil liability of institutions or officials in connection with the operation of the scheme, the disclosure or use of evidence or other information provided or obtained in connection with the scheme, and the making, enforcement or protection of payments in connection with the operation of the scheme.

The second limitation, in clause 8 of the bill, is to prevent the commonwealth from making any amendments to the Redress Scheme that would remove or override a provision that requires the agreement of the state. This includes the requirement that a state agree to a state institution being declared by the commonwealth minister to be a participating institution in the National Redress Scheme. States must also agree to assuming responsibility for a defunct institution or to two or more state institutions forming a participating group for the purpose of the scheme.

Clause 11 of the bill provides that either regulations or ministerial directions may determine how the agreement of the state is to be given, withdrawn or evidenced. In addition to the limitations applied to the amendments reference, the intergovernmental agreement includes important safeguards to ensure that participating states and territories are consulted on and have voting powers to approve or oppose proposed changes to the National Redress Scheme. The ability to terminate the text and/or the amendment referred to is provided in clause 9 of the bill. A reference can be terminated on a day fixed by the Governor by proclamation.

Returning to the commonwealth legislation adopted by this bill, the National Redress Act provides the legislative basis for entitlement, participation, offers and acceptance, provision of redress, funding liability, funder of last resort and other administrative matters. The commonwealth government has undertaken significant consultation and negotiation with stakeholders to develop the National Redress Scheme, and it is reflected in this legislation. The National Redress Act was explained in detail when it was introduced in the commonwealth parliament, and it has been the subject of scrutiny and report by two Senate committee processes. I will therefore be somewhat brief in my account of the key elements.

The National Redress Act provides that abuse within the scope of the scheme is sexual and related non-sexual abuse that occurred before the start of the scheme when the person was a child and in a participating state or territory. A person is eligible for redress if they have been sexually abused as a child within the scope of the scheme; the abuse is of a kind for which the redress payment, worked out, would be more than nil; one or more participating institutions is responsible for the abuse; and, at the time of the application, the person is an Australian citizen or a permanent resident.

For the purposes of the scheme, a participating institution is deemed to be responsible for the abuse of the child if the abuse occurred in circumstances where the participating institution is primarily or equally responsible for the abuser having contact with the child. Various circumstances are relevant to determining that question—for example, whether the institution was responsible for the day-to-day care of the child when the abuse occurred or whether the abuser was an official of the institution when the abuse occurred.

Participating institutions that are determined to be responsible for the abuse are liable for the costs of providing redress. Those institutions are also liable for contributing to the administration of the scheme. If an application for redress identifies a participating institution as being involved in the abuse, or if the scheme operator has reasonable grounds to believe that a participating institution may be responsible, they must request that the institution provide any information that may be relevant. If the operator considers there is a reasonable likelihood, as defined in the National Redress Act, that the person is eligible for redress, they must approve the application.

After approving an application, the scheme operator must determine the amount of the redress amount and the share of costs attributable to each liable institution. The process for working out the amounts, including the application of an assessment framework, is prescribed. This includes deducting any relevant prior payments, for example, one that may have been received through the South Australian ex gratia scheme established following our children in state care inquiry, which of course has been the subject of discussion this morning. A determination made by the Redress Scheme is an administrative decision, not a finding of law or fact.

A person who has applied for redress may apply for internal review of a determination. The original determination must be reviewed in those circumstances by an independent decision-maker. If a person is entitled to redress and wishes to access the counselling and psychological component, they will be referred to the participating jurisdiction where they live. In South Australia, counselling and psychological services will be enabled by the provision of an additional payment to the applicant to support their access to services of their choosing.

If a person wishes to be given a direct personal response, the participating institution must take reasonable steps to give one. Guiding principles are included in the National Redress Act, and a direct personal response framework sets out the arrangements under which institutions will provide direct personal responses. If a person accepts the offer of redress, they must release particular institutions from any civil liability for the abuse. The abuser is not released from liability. This is consistent with the royal commission's recommendations.

All commonwealth institutions are automatically participating in the National Redress Scheme. State, territory and non-government institutions must agree to participate. States and territories must also agree to state or territory institutions participating in the scheme. A state institution includes state departments and other bodies established under state law. Once this bill commences, non-government institutions in our state, including churches, charities, independent schools and other organisations, are able to participate in the National Redress Scheme. I strongly encourage these institutions to join so that survivors have access to redress.

Some institutions where child sexual abuse has occurred may no longer exist. To ensure that survivors are not deprived of access to the scheme simply for that reason, the National Redress Act provides that a 'defunct' institution can participate in the scheme if it has a representative that acts on its behalf and assumes its obligations and liabilities under the scheme. Participating government institutions may be the funder of last resort for a non-government institution that no longer exists and is not participating in the scheme. This applies only where the government institution is equally responsible for the abuse and has agreed to be the funder of last resort.

While the introduction and passage of this bill is an important step in making the National Redress Scheme available to all South Australian survivors, there is still work to be done to prepare the administrative facilities and services necessary to ensure the efficient processing of applications and facilitation of redress in all its forms for eligible applicants. We are getting on with this task and expect that the scheme will be fully operational in South Australia, in the sense of redress payments being able to be made, in early 2019.

Applicants are able to apply from now, and at any time within the 10-year life of the scheme, and will be supported in completing their applications, including with legal advice, by independent redress support services. I would encourage all potential applicants to keep an eye on the National Redress Scheme website hosted by the federal Department of Social Services to keep fully informed about the scheme as it rolls out around the country.

This is an important moment. I take this opportunity to acknowledge the survivors of institutional child sexual abuse, their families and the organisations that represent them. Whether as children or adults, the reality is that for many years survivors were not listened to, were not believed or were not acknowledged. I thank them for their resilience and their determination to ensure that we all learn from the mistakes of the past and acknowledge the harm and suffering experienced by the many thousands of children who have been sexually abused and exploited in institutions where they should have been safe. I commend the bill to members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines terms used in the measure.

Part 2—Adoption and referral

4—Adoption of the relevant version of the National Redress Act

This clause provides that the National Redress Act is adopted within the meaning of section 51(xxxvii) of the Constitution of the Commonwealth (the adoption).

5—Amendment reference

This clause refers to the Commonwealth Parliament a power to make laws with respect to a redress scheme for institutional child sexual abuse by the making of express amendments to the National Redress Act (except as provided by clauses 7 and 8) (the amendment reference).

6—Amendment of National Redress Act

This clause makes it clear that the National Redress Act may also be expressly amended, or have its operation otherwise affected, by provisions of Commonwealth Acts made pursuant to other powers of the Commonwealth or by instruments made or issued under such other Commonwealth Acts or under the National Redress Act.

7—State redress mechanisms

This clause defines a State redress mechanism and provides that the amendment reference does not include the matter of making a law to the extent that that law would operate to prevent or limit the power to establish, or to prevent or limit the operation of, any State redress mechanism.

8—Requirements for agreement of the State

The amendment reference does not include the matter of making a law to the extent that that law would substantively remove or override a provision of the National Redress Act that requires the agreement of the State.

9—Termination of adoption or amendment reference

A proclamation may fix a day on which the adoption and the amendment reference are to terminate or on which the amendment reference is to terminate or, if the amendment reference has already terminated, on which the adoption is to terminate. Such a proclamation may be revoked (before the day so fixed) by further proclamation.

10—Effect of termination of amendment reference before adoption

This provision clarifies which laws continue to have effect in a case where the amendment reference terminates before the adoption does.

Part 3—Miscellaneous

11—How agreement of the State is given, withdrawn and evidenced

The regulations, or Ministerial directions, may make provision in relation to the manner in which the agreement of the State is to be given or withdrawn and may be evidenced for the purposes of the measure and the National Redress Scheme.

12—Information sharing

This clause provides for the giving of information by a participating State institution to the Operator, or for the giving of information by a State agency to another State agency so that it can assist a participating State institution to comply with a request for information from the Operator, for the purposes of the National Redress Scheme. Information may be provided under the provision despite other laws of the State, however regulations (and the rules under the Commonwealth Act) may preserve the operation of confidentiality provisions in other laws where appropriate.

13—Regulations

This clause is a regulation making power.

Debate adjourned on motion of Mr Picton.