Published: 12 November 2020
Author: Penny Savidis
Scheme's integrity at stake in National Redress Senate Bill
We are pleased that RCT Law’s submission to a recent Senate Committee Report into the National Redress Scheme has been extensively quoted. The firm also made a submission to another and different review of the Scheme now underway.
In this blog, I reiterate two of the issues addressed directly by those submissions because they go to the heart of the integrity of the Scheme. They are the role of Independent Decision Makers and the protection of the Scheme from abuse by law firms.
Confusingly, there have been a couple of reviews of the National Redress Scheme underway.
Two Year Redress Scheme Review
Firstly, as previously reported, a statutorily mandated review of the National Redress Scheme’s operation is currently being undertaken by Robyn Kruk AO. This review has a broad focus, looking at the operation of the Scheme two years in. Submissions have now been received and feedback studies conducted, involving survivors, their advocates, family members, carers and other supports. RCT Law’s submission into the two-year review is available here: National Redress Scheme: We pinpoint the failures.
Redress Scheme Amendment Bill
Secondly, and in the meantime, a Bill has been introduced into federal parliament to make some technical amendments to the National Redress Scheme. The National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Bill 2020 was introduced into the House of Representatives on 8 October 2020 and proposes a number of technical amendments to improve the operation of the Scheme. The Senate then referred the Bill to the Senate Community Affairs Legislation Committee for inquiry and report.
The Senate Committee’s report is now available at: National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Bill 2020 [Provisions]: Chapter 1 – Report
RCT Law was invited to provide a written submission addressing issues that may be of relevance to us in relation to the Bill. RCT Law’s submission was quoted extensively in the Committee’s report. Our submission can be downloaded here: RCT National Redress Senate Bill 2020 Submission.
The Committee has recommended that the Bill be passed. Although the proposed amendments are characterised as technical, there are some important issues dealt with in the Bill which could have far-reaching consequences.
Independent Decision Makers
For example, currently, decisions to grant redress to abuse survivors under the Scheme are made by Independent Decision Makers (IDMs), and each IDM must be approved by the Minister for Families and Social Services. The Bill proposes to remove the need for ministerial consent and allow the Scheme Operator to appoint IDMs. In our submission, the proposed devolving of responsibility for engaging IDMs to the Operator, together with the proposed devolving of consultation to Senior Executive Service employees, does not provide sufficient scrutiny, notwithstanding the duties of officials under the Public Governance, Performance and Accountability Act 2013. It is imperative to ensure that IDMs who are appointed are appropriately qualified in administering the Scheme and that there is confidence in the independence and accountability of the Scheme from abuse survivors and the general public.
Protected names and symbols
Our submission also welcomed the proposed introduction of protections for the names and symbols used in connection with the National Redress Scheme against unauthorised use.
The media has reported of “a circling pack of law firms” seeking to profit from applications to the Scheme by charging abuse survivors for work for which they’re entitled to receive for free via Knowmore Community Legal Centre.
At RCT Law, when abuse survivors approach us for advice, we consider and discuss all legal options available with them, including the Scheme, civil litigation and out of court settlements. Where we recommend the Scheme as their best option, we strongly encourage survivors to approach Knowmore Legal Service.
RCT Law wholeheartedly endorses the valuable work performed by Knowmore, both during the life of the Royal Commission into Institutional Responses to Child Sexual Abuse, and in representing survivors to help them navigate the Scheme. In all but the most exceptional circumstances, we do not assist survivors applications to the Scheme. We have assisted a very small number of clients with claims at their insistence due to exceptional circumstances, despite having first advised them of the free Knowmore alternative, and have also assisted a survivor with issues arising from a finalised application to the Scheme on a pro bono basis on referral from Knowmore.
RCT Law is proud to be part of a panel of trauma-informed specialist law firms to whom Knowmore refers abuse survivors for legal advice regarding their civil options to consider as an alternative to pursuing an application to the Scheme. RCT Law is opposed in principle to the use of protected names and symbols associated with the Scheme without prior consent in relation to a business, trade, profession or occupation or application as a trademark to goods where use of such a name or symbol is likely to lead to confusion. In particular, we are opposed to the use of protected names and symbols associated with the Scheme being used by private law firms to confuse abuse survivors and seek to profiteer from work abuse survivors are entitled to receive for free through Knowmore Legal Service.
As stated in our submission, it is, however, still important for law firms to be able to refer to the existence and operation of the Scheme in communications with prospective clients, including on firm websites and in social media. For example, it is important to let abuse survivors know that redress is available under the Scheme when advising of alternative civil litigation pathways. However, communications from any businesses, trades, professions or occupations that refer to the Scheme should make it clear that they are not providing services under, or in connection with, the Scheme so as to avoid any confusion or mistake.
Other matters dealt with in our submission
Our submission also referred to the other technical amendments proposed by the Bill, including:
- support for clarification of how participating institutions that are associates of a responsible institution are to be determined and specified;
- support for clarification around the amount for which a funder of last resort is liable in relation to a responsible defunct institution;
- support for permitting redress payments and payment of counselling and psychological services to be made to a person who has been appointed by a court, tribunal or board as an administrator to manage the financial affairs of a person entitled to redress under the Scheme;
- support for permitting the Scheme Operator to extend the timeframe for payment of a funding contribution by an institution, provided it is stipulated that this does not affect the timing of any redress payments or payments for counselling and psychological services to survivors; and
- support for measures to encourage non-participating institutions to join the Scheme prior to 31 December 2020.
RCT Law’s submissions were also quoted and endorsed in part in Additional Comments to the Bill from the Australian Greens, who shared our concerns about the change from ministerial to departmental approval for engaging IDMs and referred to our alternative suggested ways information could be provided to survivors regarding associates of participating institutions.
RCT Law appreciates the opportunity to have been invited to comment on the technical amendments Bill and to participate in the two-year anniversary review of the National Redress Scheme. We await the outcome of the latter review for hopefully more substantive reforms to the National Redress Scheme.