National Redress: Survivor engagement and conflict of interest

Introduction

After some equivocation, on 4 November 2016, Australia’s Attorney-General, George Brandis, and Minister for Social Services, Christian Porter,[1] announced there would be a Commonwealth Redress Scheme.[2] On the same day, Porter revealed that “We have spent the last several months trying to negotiate to get agreement around a development of a national scheme where everyone opted in … right here and now. We haven’t been able to achieve that.”[3]

Despite being unable constitutionally to force state governments and institutions to participate in a national scheme, the government committed to continue to invite them to ‘opt-in’ on a ‘responsible-entity-pays’ basis.[4] Those became the indestructible twin pillars of the National Redress Scheme. Set like concrete.

The Early Joiners

Redress schemes are not always entirely altruistic, instituted simply because of a resolve to remedy injustice. It is no coincidence that the first states to join were NSW and Victoria–in a very public display on 9 March 2018. And the first non-government institution to declare its intention to join was the Catholic Church a few weeks later.[5]

 It was politically expedient for these two states which had promised—but had not delivered—broad-based state redress schemes for Care leavers to bring them into line with redress schemes completed by Tasmania, Queensland and Western Australia. Both NSW and Victoria were on the record in 2015 as intending to introduce their own redress schemes.[6] The proposal for a national redress scheme gave them an opportune excuse to shelve those plans.

 At this time, Prime Minister Turnbull was in negotiations with the Catholic Church—the institution responsible over decades for the greatest number of cases of child sexual abuse in Australia. And with its own redress schemes in disrepute. Turnbull remarked: “Many bishops have told me that they have lost all credibility.”[7]

The National Redress Scheme became a convenient apparatus through which governments and other large institutions sought to regain moral authority and restore faith in the community at large that they are doing something to put things right after what Ronald Niezen calls the ‘ultimate collective shame’.[8]

More pragmatically, redress may also be interpreted as a calculated response of government and institutions to the costs—monetary and reputational—of civil litigation, embarrassing inquiries and other public agitation.[9]

The battle was all over once NSW, Victoria and the Catholic Church decided to collaborate in March 2018.[10] By mid-June the then Social Services Minister, Dan Tehan, was able to say that all States and Territories had signed up—with the Anglican and Uniting churches joining the Catholics.

On Tehan’s reckoning, at that point 93 per cent of all survivors were covered by these early signatories.[11] It took months, though, before all the States and other major institutions were formally registered for the Scheme, and applicants from the laggard jurisdictions and institutions were put on hold.[12]

Nevertheless, the Government continues to this day to wage an energy-sapping battle to get more institutions to opt in—and stay in.[13]

Back in May 2017, the Turnbull Government announced that the redress scheme would start on 1 July 2018.[14] As a strategy to move things along, on 26 October 2017, Christian Porter introduced Commonwealth redress legislation into the Parliament. Two months later Porter moved out of the Social Services portfolio to become Attorney-General.[15]  Since then four other Social Services Ministers have held the portfolio.[16] This rapid turnover of Ministers explains, in small part, the lack of success in resolving some of the design and operational problems of the Scheme.

Why the Rush?

Despite the Senate Standing Committee for the Scrutiny of Bills advising the government to delay the redress legislation to allow policy matters to be more carefully considered,[17] the legislation was rushed through the parliament by the new Minister Dan Tehan. Without amendment,[18] enabling the redress scheme to commence in NSW, Victoria, and the ACT on the due date 1 July 2018.[19] The Scheme received its first application on that very day, a Sunday. When the phones began to run hot that week, the staff were completely ill-prepared.[20]

Three grounds were offered to explain the rush to pass the legislation:

• the promised deadline, 1 July 2018, was looming: ‘a minute to midnight’ in the words of Senator Rachel Siewert;[21]
• survivors had waited too long already – a rhetorical flourish;
• anyway, the states and territories had approved it; it was ‘take it or leave it’: changes can be made later, if need be.[22]

 When they were voting on the NRS legislation, Members of Parliament had asked to see the Assessment Framework, which crucially included the matrix for monetary payments and the extent of counselling to be offered to survivors. The government refused all requests. Finally, on 13 August 2018—long after the NRS Bills were passed and the Scheme had been operating six weeks—the Minister tabled in Parliament separate instruments that were integral to the operation of the Scheme, including the hitherto unsighted Assessment Framework.

Why so Secretive?

This Framework was never open for prior public consultation. The Law Council of Australia asserts that such consultation should have been conducted to ensure the Scheme met its own legislated objectives to be survivor-focused.[23]

Robyn Kruk, appointed to review the Scheme, commented

“… generally, for schemes of this type … the Assessment Framework and policy guidelines are in the public domain. This is to ensure the public is aware of how payments are determined and to improve public accountability and applicant and staff understanding.”[24]

Back in December 2017, the Scrutiny of Bills Committee had made the same point.[25] The Committee was particularly concerned that the matrix for working out the amount of redress payment would be put in place separately by the Minister and therefore would be exempt from the usual parliamentary processes.

Minister Porter replied to the Scrutiny Committee Dec 2017 in the most remarkable terms: “Placing the assessment guidelines in the primary legislation would enable people to understand how payments are attributed and calculated, and possibly submit a fraudulent or enhanced application designed to receive the maximum redress payment under the Scheme … To balance the risk of fraudulent applications with ensuring a transparent and certain process, it was considered necessary to make these declarations legislative instruments.”[26]

In other words, no applicant could know the rules of the game because some might lie. This position is not backed up by empirical evidence about fraud from other redress schemes anywhere in the world.[27] Moreover, existing law provided penalties for this type of offence.[28]

In my opinion, the secrecy was less to do with potential fraud and more to do with getting the States and institutions on board though negotiating a deal with them without the clamour of survivors and their advocates wanting more than the institutions would offer.

The Matrix Won’t Change

While the Assessment Framework was never available to survivors and the general public for comment, Minister Tehan made no secret of the fact that consultation—indeed negotiations on the Framework—had taken place over a period of 12 months with Commonwealth Departments, officials from all states and territories and members of key non-government institutions in order to encourage them to participate in the Scheme.[29]

The government had already guaranteed the redress cap of $150,000 would not be increased.[30] The Catholic church lifted the ceiling of their redress schemes to $150,000, exactly matching the National Redress Scheme while disingenuously denying they knew the reason why the Royal Commission’s recommended cap of $200,000 had been cut to $150,000. Despite their loud protests, survivors now live with the fact that the Scheme is more than half-way through its tenure, and the monetary amounts and the way they are calculated will not change unless all of those who signed up to it experience a divine conversion.[31]

Survivors are now more concerned that the detailed guidelines used by the Independent Decision Makers to interpret the assessment framework remain a secret. Section 104 of the Redress Act makes it an offence to disclose the Assessment Guidelines.[32] So, for survivors who apply, it’s a guessing game as to how you put forward your best case.

The Scheme was designed to be controlled by governments and the powerful institutions—and to protect their interests. The decision-making process makes it almost impossible to alter the foundations of the Scheme, no matter how damaging to survivors or how wide the gap between the avowed purpose of the Scheme and its operation.

Absolute control of the scheme in their own interests

The Ministers’ Redress Scheme Governance Board is made up of the Ministers from each state and territory and chaired by the Commonwealth Minister.[33] Any proposed amendments to primary legislation, rules, policy guidelines, any major design decisions, and any changes that would increase costs to participating states and territories must be approved by the Board by a unanimous vote. That certainly rules out, for example, changing the matrix that makes survivors eligible for that portion of the payment for extreme circumstances only if they suffered sexual penetration. It rules out raising the payment cap. It rules out indexing payments for inflation.

On the last point, the commonwealth government is on record as privileging the right thing for institutions over the right thing for survivors: “Increasing redress payments to align with inflation over the life of the Scheme would have significant cost implications and may risk the ability or willingness for institutions to participate in the Scheme.”[34]

Is it any wonder that the independent reviewer, Robyn Kruk, reported that “Most jurisdictions indicate that the governance arrangements are satisfactory.”?[35] Perhaps unconscious of her own banality, she also concluded that, “the Survivor Roundtable is not accorded the same status as institutions in the governance structure.”[36]

Strong opposition to change in the face of consistent evidence that the Scheme needs to change

After meeting face-to-face with a large number of vested interest stakeholders,[37] Kruk reported “strong opposition to changes” and framed that opposition in terms of changes that potentially

• required wholesale reassessment;
• threatened the viability and ongoing engagement of all jurisdictions in the opt-in Scheme; and
• risked traumatisation of survivors.[38]

It’s not clear how Kruk concluded that survivors might be retraumatized by having their payment outcomes raised. That ever-present claim about concern for survivors in the discourse rings hollow. It parallels the deceptive claim that the Scheme and the legislation “were strongly informed by the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse’.[39] As Kathy Daly and Juliet Davis demonstrate, “… over 80% of the scheme’s elements were altered in ways that departed from the spirit of the Royal Commission’s recommendations”.[40]  And invariably favoured the institutions.

And writing even when the Scheme was approaching only its third year of operation, Kruk pointed out that “… the window to effectively and meaningfully introduce change is extremely limited.”[41] And yet, as Kruk points out, the feedback from survivors and support services has been consistent about the need for change. So have the five reports tabled by parliamentary committee enquiries which have been flooded by submissions laying bare the many shortcomings of the Scheme.[42]

Kruk herself concluded that “‘redress under the scheme should be survivor-focussed’. It currently is not”

 The recommendations of these reviews and survivor agitation over a five-year period have produced only minor changes designated as ‘improvements’ within a so-called Service Charter in 2022 of engagement with survivors. Recently, the CEO of CLAN indicated to one of the many review committees that she was sick of giving the advice over and over when nothing changed; and a similar sentiment was voiced by the CEO of knowmore Legal Service.[44]

A ‘survivor-focussed’ redress scheme was never realistic because of the massive conflict of interest inherent in the design of the Scheme.

 Inconsistencies in the case-by-case decisions

Time prevents me today from examining the many operational problems of the Scheme, but let me mention just one—the problem of inconsistency. CLAN has supported numerous applicants submitting very similar cases but receiving markedly different redress outcomes.

 Most recently some female survivors have been rejected by the Scheme—while others have been accepted—with claims centred on their childhood experience of penetrative sexual abuse in the guise of virginity testing.[45] This was, as far as we can tell, a practice common only in out-of-home ‘care’. As early as 1973, when the ABC ran an expose, the practice was widely condemned as contrary to accepted community standards.[46] And is widely condemned today—by the Royal Commission, [47] the World Health Organisation, [48] and the UK government.[49]

Virginity testing perfectly fits the Scheme’s definition of sexual abuse.[50] And it’s hard to understand why the Redress Scheme in some cases determine it was not sexual abuse. As girls their private parts were violated—almost invariably by adult males. They were too young to understand what was being done to them, and why. Neither nor their parents were asked for consent. They had no choice.

In August 2023, the ABC reported one of the cases of an applicant being rejected because the IDM assessed her abuse as ‘a medical examination’. DSS commented that ‘Independent decision-makers assess all information available to them and make determinations on a case-by-case basis within the scope of the scheme’s legislation’.[51] The current Minister declines to seek a consistent ruling from the Scheme. If it happened to your daughter?

 

A brief coda: Victorian Redress

In October 2022, Victorian Premier Dan Andrews flanked by CLAN CEO Leonie Sheedy and myself, announced that his government would introduce a State redress scheme, to be co-designed by Care leavers, with a start date of early 2024. CLAN has repeatedly tried to engage with the responsible government officials throughout 2023. They simply won’t make themselves available to us. A Parliamentary apology by new Premier Jacinta Allen announced at very short notice for late November has been postponed to February next year. At the eleventh hour the government announced what they call a ‘hardship payment’ of $10,000 made to only those Care leavers who produce a medical certificate to show that they have a terminal illness with a prognosis of death within 12 months.

 We have so much to learn from history. Why don’t we?

 Endnotes

[1] Porter had taken over the Social Services portfolio for Scott Morrison who served in that portfolio from 23.12.2014 to 21.9.2015 after which he became Treasurer in the Turnbull government before replacing Turnbull as Prime Minister on 24 August 2018.

[2] On 14 September 2015, the Royal Commission on Institutional Responses to Child Sexual Abuse tabled its Final Report on Redress and Civil Litigation, recommending that a national redress scheme for victims or survivors of institutional child sexual abuse should be up and running by mid-2017 ‘at the latest’. The next day, Malcom Turnbull replaced Tony Abbott as Australia’s Prime Minister. No causal connection, but that was probably a significant event in the history of the National Redress Scheme because Abbott had already declared that he did not support a Commonwealth redress scheme, leading the spokesperson for the Catholic Church to say that “The non-negotiable ruling-out by the Commonwealth Government of support for a national redress scheme has been breathtaking.” (Francis Sullivan, CEO of Catholic Church’s Truth, Justice, and Healing Council 9 April 2015.) Trenchant criticism was also being articulated by survivor support groups: see Jessica Kidd, ABC News 25 March 2015.

[3] Christian Porter, Press conference, National Redress Scheme, 4/11/2016, Perth, http://christianporter.dss.gov.au/transcripts/20161104-redress-scheme.

[4] Brandis, G and Porter, C (2016). Commonwealth Redress Scheme for survivors of institutional child sexual abuse, joint media release, 4 November 2016, pp. 1–2.

[5] On 31 May 2018.

[6] Golding, Frank (2021) Care Leavers Recovering Voice and Agency Through Counter-narratives. PhD Thesis, Federation University Australia, p. 162.

[7] Malcolm Turnbull to Chrissie Foster 2023, p. 271.

[8] Niezen, Truth and Indignation, p. 32

[9] Niezen, Ronald (2013), Truth and Indignation: Canada’s Truth and Reconciliation Commission on Indian Residentical Schools, Toronto: University of Toronto Press p. 31.

[10] See the transcript of the speeches of Turnbull, Berejiklian and Andrews at https://pmtranscripts.pmc.gov.au/release/transcript-41494

[11] Guardian 13 June 2018.

[12] Because of the need for enabling legislation in each jurisdiction, it took months to get all the States and Territories to the point of participation. Applicants could not be processed until that point had ben reached in Tasmania (1 November 2018), Northern Territory (16 November 2018), WA (1 January 2019) and South Australia (1 February 2019).

[13] This became a political benefit for the government in terms of self-congratulatory public relations but simultaneously a millstone around the neck because it distracted and deflected energy away from the core task of getting the Scheme operating efficiently and effectively.

[14] In the meantime, Turnbull had shifted the work being done by a Redress Taskforce working across the Prime Minister’s Department and the Attorney-General’s Department, to the Department of Social Services (on 1 February 2017).

[15] Brandis had resigned as Attorney-General on 19 December 2017.

[16] Malcom Turnbull set up a National Redress Taskforce in his Department of Prime Minister and Cabinet. On 1 February 2017, the Redress Taskforce was shifted to the Department of Social Services. Other Ministers involved with the establishment of the NRS were George Brandis (Attorney-General from 18 September 2013 to 20 December 2017; Christian Porter (Minister for Social Services from 21 September 2015 to 20 December 2017 and Attorney-General from that date to 30 March 2021. Since then, a succession of Ministers has held responsibility for the NRS—Dan Tehan, (Minister for Social Services from 20 December 2017 to 28 August 2018), Paul Fletcher (Minister for Families & Social Services from 28 August 2018 to 29 May 2019), Anne Ruston (Minister for Families and Social Services from 29 May 2019 to 23 May 2022), and currently Amanda Rishworth (Minister for Social Services from 1 June 2022).

[17] On 6 December 2017.

[18] Minister Dan Tehan introduced the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 on 10 May 2018. By 19 June 2018, it passed both houses of parliament without amendment. Royal Assent was received two days later. Senator Rachel Siewert, commented later that bad legislation had been passed ‘under duress’. Evidence to Joint Select Committee on Oversight of the Implementation of Redress Related Recommendations of the Royal Commission into Institutional Reponses to Child Sexual Abuse, Parliament of Australia, Canberra, 28 February 2019, 23.

[19] The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 sets out how the Scheme will operate.

[20] Just weeks into the Scheme’s operation, Scott Morrison deposed Turnbull as PM (24 August 2018).

[21] ‘A national compensation scheme for abuse victims was supposed to be up and running by now. Why isn’t it?’ Samantha Donovan, ABC 15 December 2017.

[22] These grounds are canvassed in Daly, Kathleen & Davies Juliet (2019) Unravelling Redress for Institutional Abuse of Children in Australia UNSW Law Journal 42(4) 1254 https://doi.org/10.53637/BHMB3336

[23] Law Council of Australia, Submission to Joint Select Committee on the Royal Commission into Institutional Responses to Child Sexual Abuse Oversight of redress related recommendations 23 August 2018, p. 6. Section 3 (1) of the Act declares: The main objects of this Act are: (a) to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and  (b) to provide justice for the survivors of that abuse.

[24] Kruk p. 91.

[25] Scrutiny of Bills Committee 6 December 2017“… the creation of a legislative scheme generally requires that people are able to understand and access details of how the legislative scheme operates.”

[26] Senate Standing Committee for the Scrutiny of Bills Scrutiny Digest 15/17, p. 16.

[27] Golding reference

[28] The Criminal Code Act 1995 (Cth) a breach of which can lead to a 10-year prison sentence. The government suspended the need for a Statutory Declaration  in 2020 due to the Covid-19 pandemic and it has since been permanently removed as an indication that it was an unnecessary impediment to applicants.

[29] Hon Dan Tehan, Minister for Social Services, Explanatory Memorandum Authorised Version Explanatory Statement registered 29/06/2018 to F2018L00975

[30] PM seeks swift response to abuse report, 9 News 15 December, 2017 https://www.9news.com.au/national/turnbull-honours-grit-of-abuse-survivors/0afa4343-9ef3-4f9c-bc60-07fb693ed1ff. See also government response to the Senate Report 2019.

[31] Law Council 2018. Although one senior Anglican spokesman was reported to be ‘horrified over how redress scheme calculates payments to victims’: Airlie Ward, ‘Anglican Church horrified over how redress scheme calculates payments to victims’ Headline ABC News 16 September 2018

[32] The Assessment Guidelines are not a legislative instrument and are not publicly available. Section 104 of the principal Act makes it an offence to record, disclose or use the Assessment Guidelines for an “unauthorised purpose”.

[33] The Inter-jurisdictional Committee comprises senior officials of Commonwealth and state and territory governments, while the Redress Scheme Committee consists of senior officials of Commonwealth and state and territory governments and non-government institutions.

[34] Other changes require a complex two-stage voting process. In the second stage, you need the votes of States representing 75 per cent of the estimated financial liability. NSW has an estimated 34.45 per cent liability, so it’s impossible for the 75 per cent threshold to be met without the support of NSW which effectively means it has a veto on any matters that go to a two-stage vote. Kruk found that even where small changes are agreed by the Ministers’ Board, it takes between six and 12 months to process them. Kruk, Robyn (2021). Final Report: Second year review of the National Redress Scheme, March 2021, p. 37.

[35] Kruk p. 37.

[36] Kruk p. 35.

[37] A list of people and agencies Kruk met with during the Review is at pp. 231-232.

[38] Kruk, Robyn (2021). p. 9.

[39] May 2018, Australian Government response to the Senate Community Affairs Legislation Committee report: Inquiry into the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions]

[40] Daly, Kathleen; Davis, Juliet (1019) Unravelling Redress for Institutional Abuse of Children in Australia UNSW Law Journal 44; (2019) 42(4) UNSW Law Journal 1254 http://classic.austlii.edu.au/au/journals/UNSWLawJl/2019/44.html

[41] Kruk p. 13.

[42] Daly & Davis

[43] Daly & Davis

[44] Joint Standing Committee on Implementation of the National Redress Scheme – 07/07/2023 – Inquiry into the operation of the National Redress Scheme. Leonie Sheedy CEO, CLAN: I actually didn’t even want to talk today. I was so reluctant to speak, because I’ve been coming here to these enquiries for the last four years.” Warren Strange CEO knomore Legal Service, Official Committee Hansard Joint Standing Committee on Implementation of the National Redress Scheme Inquiry into the operation of the National Redress Scheme 12 April 2023, p. 2.

[45] Many Care leavers prefer the more truthful term ‘state-sanctioned rape’.

[46] Peter Manning, This Day Tonight ABC TV 1973. YouTube reference

[47] Royal Commission 2017. Vol. 2, p. 12, and Vol. 11, p. 12.

[48] Eliminating virginity testing: an interagency statement. Geneva: World Health Organization; 2018. Licence: CC BY- NC-SA 3.0 IGO, p.11

[49] UK Department of Health and Social Care, Virginity Testing Ban, Policy IA No: 9579 10 February 2022.

[50] The National Redress Scheme Act defines sexual abuse as follows: “Sexual abuse of a person who is a child includes any act which exposes the person to, or involves the person in, sexual processes beyond the person’s understanding or contrary to accepted community standards.”

[51] Giselle Wakatama, ‘Calls for redress scheme rethink after woman subjected to painful ‘virginity test’ as 13yo state ward denied support’, ABC News 29 August 2013.

https://www.abc.net.au/news/2023-08-29/13-yo-state-ward-virginity-test-victim-denied-national-redress/102783266