Resumed from 13 September.
[Speeches and comments from various members]
HON ALISON XAMON (North Metropolitan) [3.50 pm]: At the outset I indicate that the Greens will support the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018. However, like the speaker before me, I think a number of areas of this legislation require significant teasing out.
This legislation has been a long time coming. In late 2012, Julia Gillard, the then Prime Minister, announced the Royal Commission into Institutional Responses to Child Sexual Abuse. By that point, there had been increasing calls, particularly from survivors, for such a royal commission to be undertaken. The Greens had always been very strong supporters of the need to undertake a royal commission and advocated for that to occur. It was an enormous task and produced an incredible body of work to address past and future abuse. A critical part of the work of the commission was to put in place a framework to prevent future child sexual abuse. The final report, which was released in December 2017, made 409 recommendations and reflected a significant body of important work that still has to be undertaken to address past abuse and to prevent future child sexual abuse. An important recommendation made by the royal commission in its “Redress and Civil Litigation Report”, which was released on 14 September 2015, was the establishment of a national redress scheme. According to the commission, a national redress scheme would have the effect of providing people who had experienced institutional child sexual abuse with three forms of redress: monetary payments, access to counselling and psychological care, and a direct personal response from the responsible institution if the survivor requested that.
On 4 November 2016, the Australian government announced a commonwealth redress scheme for commonwealth and territory institutions, with other states and non-government institutions able to opt in on the basis that those opting in would fund their own eligible redress claims. Given that under our Constitution the commonwealth government lacks power to legislate a national redress scheme, opting in by the states is legally achieved by each of them referring power to the commonwealth. Referral of power enables the commonwealth to extend its commonwealth laws to that state under section 51 of the Constitution. In anticipation of referral by the states, a commonwealth bill was prepared to be introduced after at least one state had referred its powers. On 10 May 2018, after New South Wales introduced its bill, the commonwealth bill was introduced. It was passed on 19 June this year and established the National Redress Scheme, which commenced on 20 July 2018 and will expire after 10 years.
The bill we are discussing today sets out the relationship between commonwealth law and Western Australian state law relating to the National Redress Scheme for institutional child sexual abuse. The Australian Parliament has power to legislate for Western Australia in this area only if the Western Australian Parliament either refers its own legislative powers on institutional child sexual abuse or passes its own law that adopts the commonwealth act after it has passed. This bill, via a combination of adoption and referral, will make the National Redress Scheme for Institutional Child Sexual Abuse Act 2018, as it stands at adoption and as it may be amended in the future, apply as law in Western Australia, subject to a number of provisos. Those provisos are that Western Australia retains its power to legislate astate-based redress scheme, compensation or damages process; that the commonwealth does not have the power to remove or override any provision of the National Redress Scheme that requires Western Australia’s agreement; and that the intergovernmental agreement on the National Redress Scheme for institutional child sex abuse sets out the voting rights of participating jurisdictions, including Western Australia, on amendments to the National Redress Scheme. The bill will also provide a process for both the referral and adoption to be terminated. If the adoption is not terminated, this version of the commonwealth law, including any amendments that have already been passed but are not yet operative, any future amendments that the Australian Parliament makes within its usual constitutional powers—in other words, without the need for referral—and any instruments made or issued under that version of the commonwealth act, will continue as law in Western Australia.
The bill will commence immediately upon royal assent and provides a head of power for regulations to be made about the process for state agreement to be given or withdrawn for the purposes of the scheme. The bill provides for disclosure of information from state agencies to the secretary of the commonwealth Department of Social Services for the purposes of the scheme as the scheme operator. It also sets up the relationship between criminal injuries compensation under Western Australian law and the National Redress Scheme for the same abuse. As has already been said, concerns have been raised about the nature of this interaction, and I anticipate that this will be the subject of further teasing out during the course of this debate. The bill does not itself address the relationship between redress and court-ordered damages. However, the National Redress Scheme will require those who accept a redress payment to release the relevant institution from civil liability, so future court actions will not be able to be brought for that abuse. I note that action can be brought for other abuse that a survivor may have experienced. The Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017, which was passed earlier this year, provided that a court awarding damages in a child sexual abuse action must—I note that there is no discretion—deduct any compensation, redress or ex gratia payments that have already been made for that child sexual abuse. If a successful court action has already been brought, redress cannot be claimed for that abuse. Survivors’ choice of which mechanism to use—whether it be the National Redress Scheme, court proceedings or criminal injuries compensation—is an important and, potentially, quite complex one for people to navigate. Each individual will have to make a series of determinations about the correct path for them.
The matters to be considered include: the likely amount of any final payment; the time the process will take, and I note that a national redress claim is expected to take around six months; the standard of proof, because they all have quite differing standards of proof; and the nature of the process—for example, we know that court proceedings ordinarily require the parties to submit to cross-examination. The adversarial nature of the court proceedings can be particularly traumatic for people, as well as being time-consuming and expensive. Redress can provide for many people a more streamlined and supportive alternative. It can also ensure appropriate access to financial counselling as well as specialised legal support services. The National Redress Scheme process includes getting applicants independent legal advice from specialists—the service is known as knowmore—to assist them to decide which path suits them best. This advice can be sought before the decision is made to apply for redress or about which avenue to pursue. It can also be sought once an offer of redress payment has been made. I understand that knowmore has not yet established an office in Western Australia and that it will not do so until we have signed up to the national scheme. That is despite applications already being accepted from Western Australians, although these have not been processed. I have received advice from the Attorney General’s office that, at this point, knowmore is set to establish an office here in 2019–20. I would appreciate receiving advice on whether this is the case. I have also been advised that the Attorney General is considering writing to knowmore to ask whether it is in a position to set up earlier. I would appreciate receiving advice on the status of that process. We do know, however, that people can receive advice on the phone from knowmore officers in other jurisdictions, even though they do not have a presence in Western Australia at this point.
The National Redress Scheme also grants successful applicants the further choice of either or both—or neither—of two very important non-monetary forms of redress. As I mentioned, they are an apology from the relevant institution, if it is wished, and up to $5 000, depending on the severity of the abuse, for counselling and psychological services from the survivor’s choice of provider. I will say more about that in a moment, but it could be a GP, a psychologist or a counsellor, depending on whatever is considered to be an appropriate therapeutic relationship.
A number of issues need to be canvassed around this legislation. The National Redress Scheme is commonwealth law not Western Australian law and the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 is an opportunity to opt in so that the commonwealth law will apply within Western Australia. However, because it is commonwealth law, there is a limit to how much say Western Australia has about its content. Our colleagues in the Australian Parliament are going to have much more say than us. It is always a concern that perhaps colleagues in the eastern states have far more to say than potentially is helpful, so I always retain concern about valuable Western Australian voices being drowned out— but that is an aside. The main choice this house faces is to either opt in or opt out of the National Redress Scheme, subject to two important safeguards in the bill, which I have already mentioned. They are that Western Australia will retain its powers in relation to other mechanisms for redress, such as the criminal injuries compensation scheme and civil court proceedings, and that the commonwealth cannot remove or override the provisions in the National Redress Scheme that give the WA executive a formal say and voting rights over important matters. We are therefore creating a scheme in which the WA executive has a greater say than the WA Parliament on the content of the National Redress Scheme. As noted, these safeguards for Western Australia include voting rights on important matters. Of course, at the end of the day, the National Redress Scheme offers those who have survived institutional child sexual abuse a further alternative for redress for their suffering. It is not the only mechanism available to them and existing mechanisms are expressly preserved under the provisions in the bill.
I will not say too much more on this because the Standing Committee on Uniform Legislation and Statutes Review has produced an excellent report that explains very carefully and in great detail how the National Redress Scheme works now, how it can be amended in the future, and the safeguards in place to protect Western Australia and the Western Australians who are going to be affected by this scheme. I would like to thank and acknowledge the committee members for their work. Having carefully considered this report, the Greens will vote to opt in to the National Redress Scheme. However, one matter in the bill causes the Greens some concern, which is the issue of information sharing. Under clause 12 of the bill, state agencies, unless they are otherwise prescribed, may provide information to the secretary of the commonwealth Department of Social Services in response to a request from it relating to an application under the National Redress Scheme or another state agency for the purpose of assisting it to comply with such a request. That is notwithstanding any other state law, unless that law is prescribed under this bill. Obviously, information sharing is needed to facilitate the administration of the National Redress Scheme and the Greens obviously support that. However, as was explained on page 15 of the uniform legislation committee’s report, section 97(1) of the commonwealth act allows protected information to be used for certain purposes. Protected information is, in other words, information about a person or institution that was provided or obtained for the purposes of the National Redress Scheme, or is or was held by the commonwealth Department of Social Services or the commonwealth Department of Human Services. These purposes are: the enforcement of criminal law; the safety or wellbeing of children; investigatory, disciplinary or employment processes related to the safety or wellbeing of children; or a purpose prescribed in the rules.
It is that last point that concerned the committee and it also concerns the Greens. The committee explains at page 19 of its report that those rules are subject to disallowance by either house of the Australian Parliament but, as has already been said, not by the Western Australian Parliament. The current rules were negotiated and endorsed by all Attorneys General, including our own Western Australian Attorney General, and the intergovernmental agreement that sets out governance for the National Redress Scheme gives the Ministers’ Redress Scheme Governance Board, which includes our minister who is responsible for redress, voting rights on any changes proposed to the rules. I know that I have a job ahead of me to make sure that I alert my Australian Greens colleagues of the issue so that a disallowance can be brought to the Australian Parliament if needed for any purpose prescribed by the rules about access to people’s incredibly private information. However, it is concerning that we need to keep a very close eye on this. In the meantime, I ask the minister with carriage of the bill in this place to bring this issue to the attention of the minister who will be responsible for redress in the hope that they will do everything that can be done to protect the survivors to whom this bill applies from exploitation of their information, because it is really important that the National Redress Scheme not do anything that will further add to their pain and suffering.
Having dealt with the provisions in the bill before us, I will make some remarks about the commonwealth act that establishes the National Redress Scheme. The report of the Standing Committee on Uniform Legislation and Statutes Review states the significant provisions of the commonwealth act establishing the National Redress Scheme, including that to be eligible the person must be an Australian citizen or permanent resident at the time of the application and who, as a child, was sexually abused before 1 July 2018 within a participating state or territory or outside Australia, and one or more participating institutions are responsible for that abuse. A person is not eligible if they have already applied; there is a security notice in force against them, for example, if their Australian travel document has been refused or cancelled, or their visa has been cancelled; will not turn 18 years before 1 July 2028, which is the sunset day; is in jail; or applies within 12 months before the sunset day. However, for the last two— that a person is in jail or applies within 12 months before the sunset day—the national scheme operator, the secretary of the Department of Social Services, has discretion to allow the application to be made. I note that the standard of proof is a reasonable likelihood that the person is eligible; that is a fairly low standard of proof. Redress consists of three components: payment of up to $150 000, noting that if the person has received redress under any other scheme, that amount will be deducted—the policy reason is to ensure that there is no double dipping; counselling and psychological services up to $5 000; and a direct personal response from each responsible participating institution, such as an apology or an acknowledgement of regret or an acknowledgement of the impact on the person; and, a really important one, assurance from the institution about how they will prevent a recurrence in the future. It also provides for the opportunity to meet with a senior official. Again, the person can get legal assistance to help them decide whether to accept the offer of redress. Upon acceptance, the person must release responsible participating institutions from any future civil liability for abuse within the national scheme scope. Claims can be made from the commencement of the scheme until 12 months before the sunset day. This means that Western Australian people can apply now but their applications cannot be processed unless or until the bill is passed. If the applicant dies after an application has been submitted, providing enough information has been contained within the application, a redress payment can be made to that person’s estate. As an aside to that last provision, I would love to see an amendment to the Criminal Injuries Compensation Act 2003 be contemplated at some point in the future to allow a similar provision. It is an inherently sensible and fair provision to include. The responsible entity pays, with the commonwealth issuing quarterly invoices in arrears, and payments made to the consolidated revenue fund, and with mirroring of the provisions of the agreement about how to become a participating scheme.
In relation to concerns about the National Redress Scheme, as I said, the Greens are absolutely vigorous supporters of the concept of redress. It is something I have spoken about throughout the years many times in this place. That being said, we also know too well the serious implications for people if we get this wrong. The awful experience of the Redress WA scheme is still very fresh in many applicants’ minds, and it is certainly fresh in mine, as a member of Parliament during that period, I tried to assist deeply traumatised people. We are talking about a population of people who have experienced failure by institutions and failure of the law against them time and again. Understandably, they have become wary and cynical; therefore, we want to have the best possible scheme. We want to make sure that it is fair, based on equity and justice, and, importantly, we want it to be survivor-focused and also trauma and culturally informed.
There are some real positives in the national scheme and its establishment is an important step forward; however, survivors and other stakeholders are still not without their concerns, some of which I have spoken about previously in this place. There are real concerns about the fact that the scheme ended up being limited to sexual abuse survivors, and ongoing significant concern about the scope of eligibility for this scheme, specifically that survivors of institutional non-sexual abuse will not be eligible unless they were also sexually abused. I note that the royal commission only considered cases of sexual abuse, which, as we know, excludes those people who suffered sometimes horrific physical, emotional or other forms of abuse in institutional care. That means that around 40 per cent of Redress WA recipients will be left out of the national scheme and that is causing confusion and distress. This group of people will not be eligible for the scheme because although they experienced extensive childhood abuse, that did not include sexual abuse. A really strong sense of fellowship and community has developed amongst groups of survivors in Western Australia. I am talking specifically about members of the stolen generation, forgotten Australians, and former child migrants, particularly around issues with the WA redress scheme, and it is extremely difficult to see these very positive and often therapeutic communities being impacted by unhelpful decisions and perceived hierarchies. It is not fair or just and we have to do better.
I need to acknowledge the work of the Make Redress Right campaign committee, which has been advocating for a full apology and financial compensation for loss and trauma experienced by WA survivors as a result of the unjustified reduction in payment levels of the Redress WA scheme. Ron Love, who I have worked with for a number of years and who is the chairperson of Forgotten Australians Coming Together, said —
“This is third time unlucky for a group of people who were not only abused as children, they were re-abused by a state redress scheme, and now they’re left out of the national scheme”, ...
According to Tuart Place, which does some amazing work with care leavers, some of the most serious of the care leavers’ grievances relate to other non-sexual forms of institutional abuse and neglect. Physical violence and brutality, cruelty and humiliation, solitary confinement, denial of education, lack of food, inadequate clothing, insufficient bedding, medical experimentation, excessive unpaid child labour, poor record keeping practices, and neglect in all its different forms have not been found to be less harmful to children than sexual abuse, especially when endured in combination in closed institutional settings. This is a really widespread concern. I note that the Western Australian Council of Social Service, in its “Vision 2020: State Budget Submission 2019–20”, called for the state government to support the Make Redress Right campaign.
I also want to raise some concerns about the payment amounts. The maximum redress payment has been capped at $150 000, which is contrary to the $200 000 that was originally recommended by the royal commission. This decision is concerningly reminiscent of what happened with the WA scheme, in which the government of the day decided to halve the maximum amount payable under the scheme even after people had put in their submissions. At least in the case of the national scheme, the government never indicated that it was willing to meet the payment amounts recommended by the royal commission, so that is not going to create as much damage as caused by the decision to halve the Redress WA plans. Nonetheless, the Greens would have liked the government to have followed the royal commission’s recommendations and I note that in other countries, the amount has been even higher.
There are also concerns about the making of the applications themselves. I understand that the application process is very long and can be quite overwhelming, particularly for in-person applicants. Although I acknowledge that it makes sense to reduce the need to seek further information, it is important to note that people are already starting to feel intimidated by this, and we should be concerned about that because we need to make sure that the process is as accessible as possible. I note that help to make an application is currently available from Relationships Australia, Yorgum Aboriginal Corporation and the Kimberley Stolen Generation Aboriginal Corporation. I also understand that if survivors call the Commissioner for Victims of Crime at the Department of Justice, they will be directed to one of these groups in order to get help with their application; however, given the sensitivity of the information they are being asked to share, we can understand if a survivor maybe does not want anyone to be privy to this information.
I understand that an applicant can attach a previously made statement to their application, such as the previous Redress WA application, rather than going through the trauma of re-telling their abuse. When I asked this question in the briefing, I was told that this would be acceptable. I would appreciate if the minister could confirm whether my understanding is correct.
I understand that Tuart Place is aware of people being referred for assistance to private lawyers who are preparing applications. I am concerned about that. I simply do not think that is okay. Although I recognise the WA legislation has not been passed, given that applications are being accepted it is really important that people are informed about the availability of free advice and support. It is disappointing to see that a number of law firms are already gearing up to assist people with the process, which is intended to be accessible with minimal legal cost.
Hon Sue Ellery: Being referred by whom?
Hon ALISON XAMON: Tuart Place made me aware of that.
Hon Sue Ellery: People are being referred by whom?
Hon ALISON XAMON: I am not sure. When I spoke to people at Tuart Place, they said they were aware that people they are dealing with are being referred to private lawyers. The context in which the concern was raised with me was that, although they realised the need to wait until the legislation passes so that free legal advice can be made available as part of the overall scheme, people were not being advised to hold off before seeking that legal advice but, instead, were being advised to go to private lawyers. They did not indicate to me that that advice is coming from anyone in government.
Hon Sue Ellery: It is presumably whoever is receiving the applications.
Hon ALISON XAMON: I will check with Tuart Place about where it thinks that advice is coming from. They were emphasising how important it is for people to be able to access that free legal advice as soon as possible in order to ensure that we do not effectively create a feast for private lawyers in a process intended to be relatively easy to access and certainly have minimal legal costs attached to that.
I do note also that under the Redress WA scheme, both the Public Advocate and the Public Trustee had significant work in supporting people with decision-making disabilities to make applications. I would like to know whether they are receiving any additional funding to assist them with what is anticipated to be an additional workload. I also hope that organisations such as Tuart Place end up receiving additional funding given that the redress scheme has resulted in a huge increase in demand for its services. I was advised during the briefing that some federal money has been made available. It has gone out to tender for services to provide support. I understand we do not yet know the outcome. I hope that services like that will potentially receive additional funding.
I understand that an applicant who has filled out an application without any expert assistance and who then realises that maybe they did not put in the strongest application possible can provide further information or amend their application up until the point the application is assessed. I think that is really appropriate. That is a survivor-focused approach, which I am pleased about. I understand that the Department of Communities has received extra funding to support it in processing freedom of information applications. I am urging the government to do all that it can to support applicants. I know there have been issues with care leavers accessing their records. I suspect this is going to be an enormous task and it is important that we do it well.
I have heard that the Department of Communities has already had 500 freedom of information applications, and the legislation has not even passed yet. I cannot confirm that those figures are correct, but if that is the case it provides an indication of how large a job it is. I understand that a number of those freedom of information applications are from people who are already proceeding with civil litigation because, as I was advised in the briefing, there is of course a higher standard of proof required in those court proceedings. In that case, the need for those FOI documents becomes all the more critical.
I want to make some comments about the matrix that is part of the redress scheme. For those members who may not have seen the redress payment matrix, it can be pretty confronting. We are talking about a huge and complex diversity of harm. We are talking about a person’s horror, pain and suffering. It has been neatly divided into six columns. It refers to the “kind of sexual abuse of the person”, the “recognition of sexual abuse”, the “recognition of impact of sexual abuse”, the “recognition of related non-sexual abuse”, the “recognition person was institutionally vulnerable” and the “recognition of extreme circumstances of sexual abuse”. It also refers to “penetrative abuse”, “contact abuse” and “exposure abuse”. The idea of this matrix came from the Redress WA scheme, which also created a matrix. The matrix has been criticised for seeking to oversimplify a complex issue. Although I recognise we want consistency in decision-making and some way to quantify the level of damage, it can be terribly traumatising for a person who has been on the receiving end of that abuse to see that matrix compartmentalised in that way, after the degree of trauma and damage they have experienced. We saw it within the Redress WA scheme. I need to at least acknowledge that this is already having an impact on other people now.
Other concerns about the matrix include that it does not take into account the impact of the abuse. Rather, it is pre-determining the psychological impact based on the type of abuse by focusing on specific sexual acts. Penetration is not necessarily related directly to the severity of the impact. Unless an applicant has suffered penetrative abuse and meets four further criteria in the matrix, they cannot receive the full $150 000. If a person suffered non-penetrative abuse—for example, they might have been repeatedly fondled, touched, groomed and forced to engage in all sorts of depraved acts over a period of years—they cannot be awarded any more than $50 000. That concern was raised by lawyers who have been examining this.
The conduct of the institution afterwards—for example, if the child reported the abuse but this information was not believed or acted upon—causes enormous harm, yet this is not recognised in the payment matrix. That differs from what was recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse. Although the royal commission recommended that 40 per cent of the payment be provided as recognition of the abuse, the current matrix only allows $20 000 out of $150 000 for the most serious cases of abuse. This will have particular implications in WA for survivors who received a prior redress payment of $40 000 or above for sexual abuse in the “contact” category. They are not going to qualify for payment under the national scheme because the maximum allowance for contact abuse is $50 000, and upscaling for inflation is likely to put them close to, or even over, the limit. In that case it will be incredibly important for those people to be aware of this before going through the potential trauma of making an application.
Concerns have been raised that some applicants may go through the very painful process of making an application without realising that the abuse they suffered, as terrible as it may have been, is insufficient to attract a payment under the new scheme. It is particularly important to consider this, given that the whole of a prior payment made under the Redress WA scheme is taken into account. That is what I understood from the briefing. That is even though the WA scheme took account of physical and other abuse—not just the sexual abuse. I understand also that federal politicians were not provided with the matrix until after the legislation had passed and that some concerns have been raised.
There have also been concerns raised about minimum payments and indexation. I understand that there is no specified minimum payment. The royal commission recommended that there be a minimum payment of $10 000.
I think there is a risk of further harm to survivors if they are offered a very small payment, although I acknowledge that they will still have access to a direct personal response and counselling. The indexation of past payments has also been raised as being unfair and contrary to the purpose of redress.
I want to make some comments about counselling. The amount of counselling available for survivors is again calculated using a simple table from $5 000 for penetrative abuse to $1 250 for exposure abuse. I question whether it is a valid assumption that a person needs more counselling if they have suffered penetrative abuse. I note that many people are of the opinion that trauma simply does not discriminate and that it is an artificial distinction to suggest that someone who is living with fear every night and experiencing terror, depression and anxiety and who has witnessed indecent exposure regularly for years should receive a quarter of the amount for counselling as someone who has experienced penetrative abuse. It takes into consideration only the type of abuse experienced and completely ignores the trauma that is associated with that abuse.
I understand that people in WA will receive the money and be able to spend it on a service of their choosing, and that is really appropriate. I am really glad that that decision was made because it allows survivors to maintain their current therapeutic relationships with clinicians. It is important to ensure that we have appropriate and trauma-informed services available for all survivors, acknowledging that about 40 per cent of those people live outside the metropolitan area.
Debate interrupted, pursuant to standing orders.