2nd Reading Speech

16 May 2018

The Hon. ADAM SEARLE ( 15:58 ): I lead for the Labor Opposition in the debate on the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018. The Opposition does not oppose the bill. The object of the bill is to refer various matters to the Commonwealth Parliament to enable that Parliament to legislate on matters concerning them. Specifically, it will allow the Commonwealth Parliament to legislate for the National Redress Scheme for Institutional Child Sexual Abuse. The Commonwealth Constitution does not permit the Commonwealth Parliament to validly legislate for these matters without a referral by the State Parliament under placitum xxxvii of section 51 of the Australian Constitution.

The bill refers two things in particular. First, it refers a text reference annexed as schedule 1 to the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018, which is proposed to be the Commonwealth Act. The second item is an amendment reference that provides for the enactment of amendments to the scheme. The bill is a response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. Whilst the scheme and the Commonwealth bill are broadly consistent with the royal commission recommendations, there are significant differences, some of which were canvassed briefly in this place yesterday.

This is the first referral bill of its kind to be introduced into a State or Territory legislature. According to public announcements, the scheme is proposed to commence by 1 July. To date, Victoria has agreed to participate, followed by the Australian Capital Territory, the Northern Territory and Queensland—according to public reports, at least. Without referral bills such as this, the National Redress Scheme will not be able to operate. The scheme is proposed to operate for 10 years, and its constitution is set out in the Commonwealth bill annexed to schedule 1. A convenient summary of the scheme is set out in clause 4 of the Commonwealth bill. Redress is provided for abuse that occurred when a person was a child and consists of these components: a redress payment of up to $150,000, a counselling and psychological component, and a direct personal response from the institution.

For an entitlement to redress, a person had to be sexually abused, the abuse must be within the scheme and a participating institution must be responsible for that abuse. At the time of application, the applicant must be an Australian citizen or permanent resident. The responsibility of an institution is based upon whether the institution is primarily or equally responsible for the abuser having contact with the applicant. If the scheme operator considers there is a reasonable likelihood that the person is eligible for redress, the operator must approve the application and make a redress offer to that person. That offer may be accepted or declined. If the offer is accepted, then the person must release the institution and officials from liability, although the abuser is not released from liability. Participating institutions that the operator determines responsible for the abuse are liable for the costs of providing redress. They are also liable to contribute to the costs of the scheme. The bill mandates that redress under the scheme should be survivor focused. The scheme’s operator is the secretary of the Commonwealth department. The operator must be satisfied there is a reasonable likelihood that the person is entitled to redress. This, of course, is not the traditional burden of proof in civil proceedings.

Clause 15 of the Commonwealth bill sets out relevant circumstances for determining responsibility of institutions. The operator must make a determination on an application as soon as practicable. A person can only make one application for redress under the scheme. A person cannot make an application while they are in jail, although this can be waived in exceptional circumstances. Clause 63 provides that a person is not entitled to redress if they have been sentenced to a period of imprisonment of five years or more unless the operator is satisfied that providing redress will not bring the scheme into disrepute or adversely affect public confidence or support for the scheme. This seems extraordinarily uncertain in its effect and therefore wrong in principle, particularly given the nature of the subject matter with which we are grappling. It seems as though redress is available only when the nebulous concept of public opinion, as mediated by a public servant, is interpreted in a particular way. Likewise, a person is not entitled to redress while a security notice is in force.

In his second reading speech in the other place, the Attorney General did not touch on some of the controversial aspects of the national scheme, including the one I just mentioned. Certainly the establishment of a national scheme is to be welcomed. It is common ground amongst almost everyone who has turned their mind to these issues that the existing common law system has not served all survivors well. The example of Mr Ellis, as noted by the Hon. Natalie Ward, is a particularly powerful example. The establishment of a comparatively simple scheme—certainly simpler than common law proceedings—is to be welcomed, especially in a non‑confrontational structure. That was the recommendation of the royal commission.

There are, however, unwarranted and unexplained divergences from the royal commission recommendations in the scheme in this legislation. The most obvious relates to the quantum of redress payments. The royal commission “Redress and Civil Litigation Report” recommended monetary payments to provide tangible recognition of the seriousness of the hurt and injury suffered by a survivor. Recommendation 19 of that report provided that the maximum payment be $200,000. This was one of the figures canvassed in the consultation papers of the commission. The royal commission noted that that amount and the other amounts in its papers did not exceed common law damages for non-economic loss, referenced at page 247 of the report.

There were differing views in response to the consultation. The Truth, Justice and Healing Council, for example, had argued for a maximum payment of $150,000. The Uniting Church, on the other hand, supported a maximum payment of $200,000. At page 252, the royal commission concluded:

We are satisfied that the appropriate level of monetary payments under redress is a maximum payment of $200,000 and an average payment of $65,000. We consider that the higher maximum payment is appropriate to allow recognition of the most severe cases, taking account of both the severity of the abuse and the severity of the impact of the abuse.

The conclusion and recommendation was reached after considerable thought by the royal commission and after significant consultation. In the view of the Labor Opposition, there is a substantial onus on those who reach a different conclusion. Those advocating for this bill in its present terms have not, we think, discharged that onus. I remind members of the reference made by the Hon. Natalie Ward to the difference between legal outcomes and moral outcomes. This is an aspect that could well have been done better.

Also departing from the royal commission recommendation, there is no minimum payment set in the bill. I draw the attention of the House to comments from the Australian Lawyers Alliance [ALA] on the issue of quantum. The ALA said:

The ALA believes that maximum amounts in line with those recommended by the Royal Commission, indexed for CPI over the lifetime of the Scheme, are appropriate. As the Royal Commission noted, a maximum amount of $200,000 ‘is appropriate to allow recognition of the most severe cases, taking account both of the severity of the abuse and the severity of the impact of the abuse’.

It also said:

It is important that the amount of redress paid adequately reflects the seriousness of the survivor’s experiences and the impact of the abuse on their lives. Particularly in the most serious cases, some survivors might not feel that what they are offered adequately reflects the impact of the abuse on their lives if the maximum redress payment is restricted to $150,000.

The ALA also argued:

While the Scheme is not intended to offer the level of payment that might be available through civil litigation, applicants will compare what is available through each route. While many will be happy to accept a lower payment to avoid the stress of litigation, the greater the gap between the two potential amounts, the less attractive the Scheme will be to survivors.

If maximum redress payments are so significantly below what might be achievable through civil litigation, some survivors might feel forced to pursue civil litigation even though they would prefer not to. In turn, this will mean that fewer institutions will benefit from the still dramatically lower redress payments available under the Scheme, as well as accruing significant legal fees that will arise should survivors choose to pursue litigation.

The basis for the lower maximum figure of $150,000 seems, as best I can determine, to be maintaining—or rather protecting—the financial position of various institutions. This, in my view, is an entirely wrong and perverse way of looking at the issue. Redress payments are to recognise the seriousness of the pain inflicted and the seriousness of the consequences of that pain. They are not to limit the degree of pain felt by institutions providing the redress.

That is an entirely wrong way of looking at it. The maximum should not be $150,000, but $200,000 as recommended by the royal commission. The problem, of course, is even more acute when it is remembered that a significant number of institutions involved are or were government owned and run. By limiting the maximum payment to $150,000 rather than $200,000, governments are limiting how much they have to pay. They are clearly judges in their own cause on this point. It is to the Government’s benefit to limit these payments. There is an element of unfairness as well. If a redress payment is accepted, the survivor ends their common law rights. If successful in a common law action, a victim may well recover vastly more than $200,000.

If, as the royal commission suggests, this amount of $200,000 is below the non-economic common law damages then obviously a successful common law claim will result in much more than this amount. Indeed, the available evidence of cases on this point supports that argument. This seems not just wrong in principle, but could have counterproductive consequences in practice—that is, if the maximum payment is set too low it may well encourage survivors to pursue common law claims. NSW Labor welcomes the national scheme, but unequivocally feels that the royal commission recommendation of a higher maximum amount should have been adopted. I note that on this we are in agreement with the position of the Federal parliamentary Labor Party. In my view, this scheme on that point short-changes survivors.

There are other differences between the scheme and the royal commission recommendation. Page 347 of the royal commission report states:

We see no need for any citizenship, residency or other requirements, whether at the time of the abuse or at the time of application for redress.

That is not what is contained in the draft bill annexed to schedule 1 to the bill before the House. So far we have heard no credible argument in support of this variation. This also raises particular issues for asylum seekers, refugees and stateless persons who have suffered abuse in immigration centres. They are particular issues for jurisdictions other than the New South Wales Parliament, but we have a disquiet at these provisions and their implications. It seems to say if you are not a permanent resident or citizen at the time you make the application somehow the abuse you suffered did not exist, or is not worth being recognised. That cannot be the case.

The bill also has restrictions on claimants based upon imprisonment or conviction of a crime. These proposals were not contained within the royal commission report. Early media reports suggested individuals convicted of sex offences and anyone convicted of crimes for which there was a maximum sentence of five or more years in prison would be automatically barred from redress payments. That is not what happens in this scheme, as I indicated earlier.

There is a discretionary element in this bill that makes it less onerous, but, it seems to me, must dramatically increase the uncertainty surrounding this aspect of the scheme. The ALA’s submission on the original reports said:

For many, the sexual abuse that they suffered as children will have contributed to the life of crime they later embarked on, or the single criminal offence (which could be relatively minor, with no sentence imposed, if the maximum possible was five years). In relation to drug crimes, for example, the Royal Commission heard time and again evidence from survivors who explained that they were driven to drug and alcohol misuse as a means of blocking out memories of the abuse that they suffered. A blanket ban on sex offenders will also capture some people who have engaged in low-level offending.

The nonsensical outcome, of course, is that people in these categories will be forced to litigate at common law, potentially obtaining significantly greater monetary recompense than they would have under the redress scheme. While touching on perverse and perhaps unintended outcomes, I should also draw the contrast between the National Redress Scheme endorsed in this bill and what is left of State-based victims compensation scheme in New South Wales after its evisceration several years ago by the Coalition Government. The maximum lump sum payment under the State-based system is dramatically less than provided for in this bill.

The result of this Coalition Government’s changes a number of years ago—2011 or 2012—is that the amount of money survivors receive in this roulette system is determined not by the type of injury sustained or its impact on the survivor, but rather by whether or not an institution was involved. As I have said, the Labor Opposition thinks that the bill before the House should provide a higher maximum monetary payment under the national redress scheme, but the figures in the bill demonstrate just how hopelessly inadequate the current New South Wales victim’s compensation system is. With those observations and qualifications, the NSW Labor Opposition does not oppose the bill.