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October 5, 2020

National Redress Scheme: We pinpoint the failures

The plight of abuse survivor David Francis, as covered by ABC News, highlights the grave failures of the National Redress Scheme for survivors of sexual and related institutional child abuse (NRS).

As a boy, Mr. Francis was abused while growing up in Catholic institutions in Western Australia. He is one of only around 8,000 people who have applied for compensation under the Scheme for the abuse they suffered as children.

The number of NRS claims to date is much fewer than expected. This has prompted concern that some parts of the population, such as Aboriginal people, are unaware of the NRS , or are not comfortable enough to come forward. It may also be a sign that the redress available under the NRS is often not the best legal option for abuse survivors.

Senator Dean Smith, Chair of the Parliamentary Committee overseeing the NRS, says that whilst estimates were that around 60,000 Australians would be eligible to apply for redress under the NRS, instead: “two years into the operation of the scheme, we have a scheme that’s poorly understood and recognised in the community.”

RCT Law submission pinpoints failures of Redress Scheme

The two-year anniversary review of the Scheme, which is mandated by the legislation, is being undertaken by Robyn Kruk AO.

The NRS review is required to consider issues surrounding the implementation, operation and administration of the Scheme, as well as people’s experiences to date. Although submissions were initially due by 30 September 2020, a further feedback study (responding to pre-prepared questions) for survivors, advocates, family members, carers and other support people is underway until 23 October 2020.

The NRS commenced on 1 July 2018, and is due to run for 10 years. Following the Royal Commission into Institutional Responses to Child Sexual Abuse, there were high hopes for the Scheme, but to date the resounding feedback has been that it is falling short of expectations and failing to deliver.

In many cases, the NRS is not the best option for survivors of institutional child abuse. This is because of the narrow scope of the scheme, the rigid criteria used to assess claims, and the relatively low amounts on offer for abuse, that usually pale in comparison with what can be achieved through civil litigation or negotiated out of court settlements.

For instance, there have been a number of recent judicial decisions in both Victoria and interstate where plaintiffs have been awarded significant damages, some in excess of a million dollars, by way of compensation for institutional child abuse.

Some of the persistent problems we have identified with the Scheme include:

  • The focus on sexual abuse at the expense of other forms of abuse, such as physical abuse, which can also be debilitating;
  • The unfairness of additional hurdles for survivors of child sexual abuse with serious criminal convictions who have already “done the time” or are serving sentences;
  • Private law firms seeking to profiteer from acting for NRS applicants who are entitled to receive legal representation for free through Knowmore Legal Service;
  • The lack of transparency in both the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) and the National Redress Scheme for Institutional Child Abuse Assessment Framework 2018 surrounding when the $50,000.00 “extreme circumstances” payment will be made in claims involving penetrative abuse, ie when the maximum $150,000 payment will be made instead of $100,000;
  • The lack of indexing of the maximum NRS payment available for exposure, contact and penetrative abuse, and the low payment caps available for each category of abuse under the Scheme;
  • The indexing of prior payments made to survivors who settled claims prior to the introduction of numerous reforms to the area of institutional child abuse, resulting in larger amounts being deducted from any additional NRS payment to which they may be entitled
  • The slow and troublesome process for determining urgent/expedited claims, and general slow turnaround times for processing all applications; and
  • The 6 month deadline to accept NRS offers, which is often not enough time to make an informed decision about alternative pathways including civil litigation or out of court settlements.

RCT Law encourages those still wishing to make a submission to the NRS review to do so by 23 October 2020. We await the outcome of the review, but maintain our concerns about the systemic limitations of the NRS generally.

We urge those abuse survivors considering making an application via the NRS to consider alternative options before doing so or before accepting any offers under the Scheme. This is because, once an offer of redress is accepted under the NRS, survivors are required to fully release the offending institutions from all further action and cannot pursue another claim against the same institution(s), their associates and officials again in the future (other than the abuser(s) personally).