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

Second Reading

I thank all those members who have contributed to the debate on this bill and in particular those members who attended briefings offered by my office and the Attorney-General's Department in relation to the bill and the National Redress Scheme more generally. Those briefings gave rise to a number of questions from members in relation to the operation of the National Redress Scheme which have already been responded to.

I acknowledge in particular the contributions from the members for King and Adelaide and I thank them for their leadership and compassion on this issue. I also thank the opposition for their support on this bill and for South Australia's participation in the National Redress Scheme. The member for Badcoe as the lead speaker for the opposition, and I think the only speaker, raised a number of further questions during debate which I now take the opportunity to address.

My understanding is that a number of these issues were raised either by her or other members of parliament during the briefings that had already been provided but, nevertheless, if she needs some further clarification, I am happy to provide it. It is important obviously in the briefings, if there are any areas of concern, that we do try to address them, but it is a bit disappointing to have to keep repeating them. If any members, including the member for Badcoe, do not understand it, then please let's get it clarified without having to repeat this over and over again.

Let's look at those we are now about to repeat and the matters that have been raised. Firstly, she raised matters governed by the commonwealth act, the National Redress Scheme for Institutional Child Abuse Act 2018. The commonwealth act may only be altered by the federal parliament, consistent with the arrangements in the intergovernmental agreement supporting the scheme for joint consideration of proposed changes by participating jurisdictions.

I now turn to the other concerns raised by the member, many of which stem from the differences between the National Redress Scheme as established by the commonwealth act and the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. I can understand the member's and others' interest as to why the scheme may not in every way fully reflect the recommendations of the royal commission, so I will repeat matters that I had raised in the initial presentation of this bill.

It is important to recognise that the National Redress Scheme was developed in response to the recommendations of the royal commission and following significant consultation over the last year between federal, state and territory governments for an independent advisory panel comprising survivor representatives and non-government institutions. Although our government was not involved in the relevant negotiations, I am advised that any departure from the royal commission's recommendations were considered necessary in order to secure the greatest possible participation by institutions in the scheme and, therefore, that the greatest number of survivors would have access to the redress offered under the scheme.

This applies in particular in relation to the member's concern that the upper limit of a redress payment under the scheme is $150,000, rather than $200,000 as recommended by the royal commission, and also in relation to the six-month period within which an applicant is required to indicate whether they accept an offer of redress, rather than 12 months as recommended by the royal commission. In relation to the latter issue, I note that section 40 of the commonwealth act requires the acceptance period to be at least six months and further allows for that period to be extended where appropriate.

The member next raised concerns as to the practical operation of the funder of last resort provisions and that too many applicants may be left without access to redress, as the particular institution within which they were abused is no longer in existence. I take this opportunity to therefore clarify the proposed arrangements in relation to when the state will act as the funder of last resort. The commonwealth act provides for defunct non-government institutions to participate in the scheme via a representative organisation. It is anticipated that many of the institutions which may have been responsible for the abuse of children in the past and which are no longer in existence would have had an affiliation with a larger organisation, such as a church or other national body, which will assume representative responsibility for the defunct institution under the scheme.

In the absence of such representative responsibility, the commonwealth act provides for government funder-of-last-resort responsibility, in that participating government institutions may agree to be the funder of last resort for a non-government institution that no longer exists where the government institution is equally responsible for the abuse.

I note that the federal government has estimated that, based on existing commitments of intended participation by both government and non-government institutions, over 90 per cent of eligible survivors are likely to be covered by the scheme once it is fully operational. I further understand that the scheme operator has research capability to attempt to link defunct institutions to still-existing umbrella organisations or to seek agreement from a relevant jurisdiction to assume funder-of-last-resort responsibilities as and when defunct institutions are identified in application to the scheme. It is hoped that all of these mechanisms will in practice operate to ensure as many applicants as possible are able to access redress under the scheme irrespective or whether the institution responsible for that abuse remains in existence.

The member expressed concern at the indexation of relevant prior payments for the purposes of the deduction of those prior payments from a redress payment under the National Redress Scheme. As noted by the member, the indexation of prior payments at roughly the rate of inflation is required under section 30 of the commonwealth act. The indexation of prior payments to bring them up to present value is the fairest way of accounting for those prior payments across all eligible applicants, irrespective of when those payments were received.

The member next raised concerns as to the operation of the eligibility requirements for applicants who have been sentenced to a term of imprisonment of five years or more. Section 63 of the commonwealth act provides for applications for such persons to go through a special assessment process, where the scheme operator considers whether providing redress to the person would bring the scheme into disrepute or adversely affect public confidence in the scheme.

The assessment will take into account views of relevant attorneys-general, the details of the offending, the length of sentence, the time passed since offending and rehabilitation outcomes. I understand this provision was the subject of detailed consideration and discussion amongst jurisdictions in finalising the scheme. All jurisdictions acknowledged the competing objectives of: recognising and providing justice for all survivors of institutional child sexual abuse, acknowledging that victims of such abuse are more likely to commit criminal offences as adults and maintaining public confidence in the Redress Scheme, acknowledging that large payments of, in particular, public money to serious or violent offenders risks a loss in public support.

The current position represents the agreement of all jurisdictions as to the most appropriate way to balance these competing priorities, in that it allows for individual cases to be assessed on their merits in accordance with all relevant factors. The member also raised concern with respect to the eligibility of applicants who are presently incarcerated. Such persons are unable to apply for redress unless the scheme operator is satisfied that exceptional circumstances apply. I understand it is complex to provide access to redress in its three forms and the necessary support services to applicants engaging with the scheme while they are in prison. However, the fact that the scheme operator can allow for applications for prisoners in exceptional circumstances again represents an appropriate mechanism to ensure that individual cases are considered on their merits.

Similar considerations apply in the case of foreign residents. While the scheme does not allow for applications from non-Australian citizens or permanent residents, it can be appreciated that there would be difficultly in providing the appropriate level of support to persons seeking to apply to the scheme and the counselling and direct personal response aspects of redress as contemplated by the scheme if they live outside of Australia.

The member next raised a concern as to the adequacy of the counselling aspect of redress as contemplated by the scheme, which in South Australia will amount to an additional payment of up to $5,000 to an eligible applicant to source therapeutic services of their choice. I acknowledge that the royal commission recommended that unlimited lifelong counselling be made available to persons who suffered institutional child sexual abuse. Again, the scope of counselling available under the scheme represents the position arrived at by all jurisdictions following significant consultation and with the aim of securing the greatest possible participation by institutions in the scheme.

I note that an applicant's receipt of redress under the National Redress Scheme does not affect their eligibility for low-cost or free mental health services via Medicare Better Access programs, which includes up to 10 visits per year. The member concluded her questions by asking for clarification as to the availability of legal support services for South Australian applicants to the National Redress Scheme. Free legal support can be accessed by applicants via knowmore, a community legal service which is grant funded by the federal government for this purpose and served a similar role throughout the life of the royal commission.

The $1,000 payment that institutions are required to pay in relation to every eligible application contributes to the cost of this grant, with the federal government funding the balance. Legal support provided by knowmore can be accessed by applicants at any stage of the application process and is uncapped. Knowmore describes their services as multidisciplinary and client centred, with social workers, counsellors and Aboriginal engagement advisers available to assist clients in engaging effectively with their service.

They do not have an office in South Australia at present. Services are currently being provided through the 1800 call centre, and face-to-face services will be provided as needed through regular outreach around the state. Knowmore have advised that, as a clearer picture of client demand emerges over the next year, consideration will be given to establishing an office in South Australia or a visited office in the 2019-20 financial year. In the meantime, and as during the royal commission, knowmore intends to undertake regular community engagement and client-focused outreach around the state.

Knowmore has advised that all major regional centres were visited regularly during the royal commission and that they often worked in partnership with local redress support services; Relationships Australia; as mentioned by the member for Badcoe, Victim Support Service; and other legal services, that is, community legal centres and other services, including services supporting Aboriginal people, the Nunkuwarrin Yunti, for example, to reach and support those clients.

Applicants are, of course, welcome to seek their own legal advice from local private firms, which may not be free, although I note that a number of local, private law firms are well aware of the National Redress Scheme and are no doubt considering how they might best offer appropriate services to South Australian applicants, just as many of them have for the purposes of the state Redress Scheme which has applied. It will be important for potential applicants to seek advice about their options and how the National Redress Scheme might apply to their particular circumstances, especially if they have a serious criminal history or had previously taken an institution to court for abuse they have suffered.

I would encourage any potential applicants or others seeking further information about the National Redress Scheme to access the dedicated website established by the federal government at or to call the dedicated hotline on 1800 737 377. Further information and assistance for South Australian applicants is also available from the Victim Support Service, who have also provided support in respect of counselling and the like; Relationships Australia; and Nunkuwarrin Yunti, all of which have received funding to provide dedicated redress support services in this state.

Can I also say that in relation to, I suppose, the conclusion of the negotiations between the relevant states, members would be aware that the new government came in in March this year. Prior to that date, the new government when in opposition had made a commitment in respect of the National Redress Scheme that we would meet the other attorneys-general at the table and that we were prepared to discuss this matter and to advance it.

The former attorney-general had made public statements, firstly, that in his view the previous redress offered under the state scheme was adequate and that he would not be advancing that position on behalf of the state government. I am delighted to hear from the member for Badcoe that the now opposition is embracing the advance of this scheme.

I cannot answer as to what the former attorney-general contributed in the negotiations around the table given his stated position. He may not have taken much interest in this issue. He may have actually been active in the debate. Probably he is the only one who can tell us whether South Australia had previously put any alternate positions in respect of the number of the matters that the member has raised, or whether he just sat at the table and said, 'Well, really, this is not a matter we're signing up to, so I'm not going to participate in the debate.' You will have to ask him.

However, I know that when the new government came in and we were first invited to meet with attorneys-general and I was provided a briefing from the department on this matter, it was pretty clear that, of the other jurisdictions that were signing up, almost everything had been resolved as to what position they were going to take save and except that the question of whether someone who was convicted themselves of offences, particularly if they had significant penalties of, say, past five years' imprisonment, was really challenging some of the states.

How should this be dealt with? Should these people be declared ineligible right from the start, have no opportunity to make a claim because they had perpetrated offences on others and simply do not deserve to be in the tent to be able to access those funds?

I am pleased that, indeed, our view was accommodated, that is, that there ought to be some discretion allowed for this to enable people in this situation to actually have access to funding. Why? Quite simply because we know—and I see this almost on a daily basis in the applications for ex gratia payments that are made—that frequently the people who have been a victim of child sexual abuse, particularly over a prolonged period, have damaged relationships, poor interaction with other partners, frequently are convicted of sexual offences themselves (often against children as well but sometimes against other adults) and, sadly, end up incarcerated themselves.

To simply say, 'We are never going to let these people come in and have some compensation,' without there being any consideration of exceptional circumstance, in my view would be grossly unfair and would fly in the face of the data that makes it very clear that we would simply be adding fuel to the fire. We would be compounding the felony. We would be failing in our duty to make provision for them.

I am pleased that that final issue fell the way it did in allowing the door to be open, but bearing in mind as we do already in allowing sometimes people, again, seeking ex gratia payments under our current victims of crime law (which, again I am asked to do on a regular basis) where people have had historical periods of sexual abuse. Just three or four I have dealt with this week during the late 1960s and early 1970s—allegations of intra-family abuse over a prolonged period of a very serious nature—and in two of those cases the victim or the claimant seeking ex gratia payment had subsequently seriously offended themselves. In both cases, they were out of custody. They served their time for those offences. What cannot be ignored is the perpetration of pain, hurt and injury that they have inflicted on others.

No doubt, at some later date either I or some other subsequent attorney-general might receive more claims from those victims. We cannot shut the door completely. It is important that we recognise that it is a difficult area and that we have to find a balance. Some public outrage will come from some victims being given some kind of compensation under this Redress Scheme where they have been known to have committed offences on others, particularly children. That is a matter that we will have to consider on a case-by-case basis. I hope that covers these matters in relation to concern about the scheme.

Subsequent to the announcement of the federal passage of their bill, I heard that a victim came forward, and I cannot recall her name as it was on a radio interview. She said she was unhappy about the indexation arrangement. That is her personal view, and I respect that, but it seems very clear from all the material with which I have been provided that not only did the royal commission undertake very extensive consultation and receive submissions in this matter but so did the federal government in relation to their bill. Shortly after that I heard an interview with the federal Attorney-General confirming that victims' groups, which had been a strong voice during the course of this national royal commission, had been consulted again about the terms that were being signed up to under the national scheme.

This scheme is being established for 10 years with $146-plus million in a dedicated fund from South Australia so that we can make provision for people who elect to seek some support through this scheme. It does not close the door on the right for them, where it is available for them, to seek a financial compensation payment through the civil law processes. An application for compensation can be made and is not cut out.

That is an option that is open to them. I am sure that most members of this house who have in any way followed this national commission, or ever read any of Mr Mullighan's reports, would fully understand that the applicants we are dealing with here—the people who have given their evidence and story to Mr Mullighan and then subsequently to the royal commission, or either—are frequently people who are no longer in a position, if they ever were, to articulate and detail with sufficient precision to enable them to satisfy the standards within a civil claim.

We cannot just simply say, 'Well, if they fail there, they walk away with nothing.' That is the whole purpose of this Redress Scheme. It is not to be seen as compensatable of all issues, but as a recognition that there had been pain and suffering, that it needs to be recognised in some monetary way and that, in addition, they have some funds available immediately to either continue or undertake counselling services.

I am also aware that the member for Badcoe has met with the Victim Support Service and secured continued funding. That is a body that has already undertaken a considerable amount of this work in both assisting to refer people for legal advice for the claims under the state scheme and providing them with counselling during the course of preparing their statements and subsequently. They have already played a very active role in relation to the state Redress Scheme, and I thank them for that. They have certainly indicated to me that they are ready, willing and able to undertake that responsibility in respect of those who might need it arising out of claimants through the National Redress Scheme.

I am pleased to hear that because, whilst there might be aspects of legal groups that may or may not consider extra offices in Adelaide, it is important to remember that we have some service agencies already skilled and ready to go as well as some in the private sector. Even during both of the Mullighan royal commission inquiries, considerable support was provided, especially after the Indigenous inquiry. That was a very difficult extra inquiry undertaken by Mr Mullighan, which needed a lot of support people to enable people to come forward in some of those communities.

I hope that has covered the matters raised specifically. I will conclude by saying that the bill provides the necessary legislative support from the South Australian parliament to secure the comprehensive application of the scheme in the state. It has been carefully and consistently drafted with counterpart legislation in other states in order to ensure the consistent operation of the National Redress Scheme as contemplated in the commonwealth act around the country.

Any amendments to the bill as drafted may risk the validity of the National Redress Scheme as it applies in South Australia, or may risk the consistent and comprehensive application of the scheme across Australia. Any proposed amendments would need to be considered and supported by other jurisdictions participating in the National Redress Scheme to ensure there are no unintended consequences of that nature.

I point out, as I think I did in the initial contribution to this debate, that there are some extra clauses in our bill. Those extra clauses ensure that we adequately protect the transitional arrangements covering the state scheme. Clearly, that does not apply in other states. It is not a situation where our bills are exactly the same in each state. We have that distinctive feature about making sure we protect the interest and also, obviously, we take into account payments that have been made out under that scheme.

Not all of the aspects of the Redress Scheme may be to the liking of everyone in every way. What we say, though, is that there has been comprehensive negotiation on this. This is what has been agreed at the national level. Our government supports it and we seek the continuing support of the opposition. This is not in any way a threat. It has been raised with me in the past, when I have been here in the parliament, to be careful, if we are to attempt to make some changes, to understand the consequences that may occur if we try to unravel aspects and provide unique aspects to the South Australian provision.

Bill read a second time.