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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Bills

National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 September 2018.)

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:04): I thank all those members who have contributed to the debate on this bill and in particular those members who attended briefings offered by my office and the Attorney-General's Department in relation to the bill and the National Redress Scheme more generally. Those briefings gave rise to a number of questions from members in relation to the operation of the National Redress Scheme which have already been responded to.

I acknowledge in particular the contributions from the members for King and Adelaide and I thank them for their leadership and compassion on this issue. I also thank the opposition for their support on this bill and for South Australia's participation in the National Redress Scheme. The member for Badcoe as the lead speaker for the opposition, and I think the only speaker, raised a number of further questions during debate which I now take the opportunity to address.

My understanding is that a number of these issues were raised either by her or other members of parliament during the briefings that had already been provided but, nevertheless, if she needs some further clarification, I am happy to provide it. It is important obviously in the briefings, if there are any areas of concern, that we do try to address them, but it is a bit disappointing to have to keep repeating them. If any members, including the member for Badcoe, do not understand it, then please let's get it clarified without having to repeat this over and over again.

Let's look at those we are now about to repeat and the matters that have been raised. Firstly, she raised matters governed by the commonwealth act, the National Redress Scheme for Institutional Child Abuse Act 2018. The commonwealth act may only be altered by the federal parliament, consistent with the arrangements in the intergovernmental agreement supporting the scheme for joint consideration of proposed changes by participating jurisdictions.

I now turn to the other concerns raised by the member, many of which stem from the differences between the National Redress Scheme as established by the commonwealth act and the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. I can understand the member's and others' interest as to why the scheme may not in every way fully reflect the recommendations of the royal commission, so I will repeat matters that I had raised in the initial presentation of this bill.

It is important to recognise that the National Redress Scheme was developed in response to the recommendations of the royal commission and following significant consultation over the last year between federal, state and territory governments for an independent advisory panel comprising survivor representatives and non-government institutions. Although our government was not involved in the relevant negotiations, I am advised that any departure from the royal commission's recommendations were considered necessary in order to secure the greatest possible participation by institutions in the scheme and, therefore, that the greatest number of survivors would have access to the redress offered under the scheme.

This applies in particular in relation to the member's concern that the upper limit of a redress payment under the scheme is $150,000, rather than $200,000 as recommended by the royal commission, and also in relation to the six-month period within which an applicant is required to indicate whether they accept an offer of redress, rather than 12 months as recommended by the royal commission. In relation to the latter issue, I note that section 40 of the commonwealth act requires the acceptance period to be at least six months and further allows for that period to be extended where appropriate.

The member next raised concerns as to the practical operation of the funder of last resort provisions and that too many applicants may be left without access to redress, as the particular institution within which they were abused is no longer in existence. I take this opportunity to therefore clarify the proposed arrangements in relation to when the state will act as the funder of last resort. The commonwealth act provides for defunct non-government institutions to participate in the scheme via a representative organisation. It is anticipated that many of the institutions which may have been responsible for the abuse of children in the past and which are no longer in existence would have had an affiliation with a larger organisation, such as a church or other national body, which will assume representative responsibility for the defunct institution under the scheme.

In the absence of such representative responsibility, the commonwealth act provides for government funder-of-last-resort responsibility, in that participating government institutions may agree to be the funder of last resort for a non-government institution that no longer exists where the government institution is equally responsible for the abuse.

I note that the federal government has estimated that, based on existing commitments of intended participation by both government and non-government institutions, over 90 per cent of eligible survivors are likely to be covered by the scheme once it is fully operational. I further understand that the scheme operator has research capability to attempt to link defunct institutions to still-existing umbrella organisations or to seek agreement from a relevant jurisdiction to assume funder-of-last-resort responsibilities as and when defunct institutions are identified in application to the scheme. It is hoped that all of these mechanisms will in practice operate to ensure as many applicants as possible are able to access redress under the scheme irrespective or whether the institution responsible for that abuse remains in existence.

The member expressed concern at the indexation of relevant prior payments for the purposes of the deduction of those prior payments from a redress payment under the National Redress Scheme. As noted by the member, the indexation of prior payments at roughly the rate of inflation is required under section 30 of the commonwealth act. The indexation of prior payments to bring them up to present value is the fairest way of accounting for those prior payments across all eligible applicants, irrespective of when those payments were received.

The member next raised concerns as to the operation of the eligibility requirements for applicants who have been sentenced to a term of imprisonment of five years or more. Section 63 of the commonwealth act provides for applications for such persons to go through a special assessment process, where the scheme operator considers whether providing redress to the person would bring the scheme into disrepute or adversely affect public confidence in the scheme.

The assessment will take into account views of relevant attorneys-general, the details of the offending, the length of sentence, the time passed since offending and rehabilitation outcomes. I understand this provision was the subject of detailed consideration and discussion amongst jurisdictions in finalising the scheme. All jurisdictions acknowledged the competing objectives of: recognising and providing justice for all survivors of institutional child sexual abuse, acknowledging that victims of such abuse are more likely to commit criminal offences as adults and maintaining public confidence in the Redress Scheme, acknowledging that large payments of, in particular, public money to serious or violent offenders risks a loss in public support.

The current position represents the agreement of all jurisdictions as to the most appropriate way to balance these competing priorities, in that it allows for individual cases to be assessed on their merits in accordance with all relevant factors. The member also raised concern with respect to the eligibility of applicants who are presently incarcerated. Such persons are unable to apply for redress unless the scheme operator is satisfied that exceptional circumstances apply. I understand it is complex to provide access to redress in its three forms and the necessary support services to applicants engaging with the scheme while they are in prison. However, the fact that the scheme operator can allow for applications for prisoners in exceptional circumstances again represents an appropriate mechanism to ensure that individual cases are considered on their merits.

Similar considerations apply in the case of foreign residents. While the scheme does not allow for applications from non-Australian citizens or permanent residents, it can be appreciated that there would be difficultly in providing the appropriate level of support to persons seeking to apply to the scheme and the counselling and direct personal response aspects of redress as contemplated by the scheme if they live outside of Australia.

The member next raised a concern as to the adequacy of the counselling aspect of redress as contemplated by the scheme, which in South Australia will amount to an additional payment of up to $5,000 to an eligible applicant to source therapeutic services of their choice. I acknowledge that the royal commission recommended that unlimited lifelong counselling be made available to persons who suffered institutional child sexual abuse. Again, the scope of counselling available under the scheme represents the position arrived at by all jurisdictions following significant consultation and with the aim of securing the greatest possible participation by institutions in the scheme.

I note that an applicant's receipt of redress under the National Redress Scheme does not affect their eligibility for low-cost or free mental health services via Medicare Better Access programs, which includes up to 10 visits per year. The member concluded her questions by asking for clarification as to the availability of legal support services for South Australian applicants to the National Redress Scheme. Free legal support can be accessed by applicants via knowmore, a community legal service which is grant funded by the federal government for this purpose and served a similar role throughout the life of the royal commission.

The $1,000 payment that institutions are required to pay in relation to every eligible application contributes to the cost of this grant, with the federal government funding the balance. Legal support provided by knowmore can be accessed by applicants at any stage of the application process and is uncapped. Knowmore describes their services as multidisciplinary and client centred, with social workers, counsellors and Aboriginal engagement advisers available to assist clients in engaging effectively with their service.

They do not have an office in South Australia at present. Services are currently being provided through the 1800 call centre, and face-to-face services will be provided as needed through regular outreach around the state. Knowmore have advised that, as a clearer picture of client demand emerges over the next year, consideration will be given to establishing an office in South Australia or a visited office in the 2019-20 financial year. In the meantime, and as during the royal commission, knowmore intends to undertake regular community engagement and client-focused outreach around the state.

Knowmore has advised that all major regional centres were visited regularly during the royal commission and that they often worked in partnership with local redress support services; Relationships Australia; as mentioned by the member for Badcoe, Victim Support Service; and other legal services, that is, community legal centres and other services, including services supporting Aboriginal people, the Nunkuwarrin Yunti, for example, to reach and support those clients.

Applicants are, of course, welcome to seek their own legal advice from local private firms, which may not be free, although I note that a number of local, private law firms are well aware of the National Redress Scheme and are no doubt considering how they might best offer appropriate services to South Australian applicants, just as many of them have for the purposes of the state Redress Scheme which has applied. It will be important for potential applicants to seek advice about their options and how the National Redress Scheme might apply to their particular circumstances, especially if they have a serious criminal history or had previously taken an institution to court for abuse they have suffered.

I would encourage any potential applicants or others seeking further information about the National Redress Scheme to access the dedicated website established by the federal government at nationalredress.gov.au or to call the dedicated hotline on 1800 737 377. Further information and assistance for South Australian applicants is also available from the Victim Support Service, who have also provided support in respect of counselling and the like; Relationships Australia; and Nunkuwarrin Yunti, all of which have received funding to provide dedicated redress support services in this state.

Can I also say that in relation to, I suppose, the conclusion of the negotiations between the relevant states, members would be aware that the new government came in in March this year. Prior to that date, the new government when in opposition had made a commitment in respect of the National Redress Scheme that we would meet the other attorneys-general at the table and that we were prepared to discuss this matter and to advance it.

The former attorney-general had made public statements, firstly, that in his view the previous redress offered under the state scheme was adequate and that he would not be advancing that position on behalf of the state government. I am delighted to hear from the member for Badcoe that the now opposition is embracing the advance of this scheme.

I cannot answer as to what the former attorney-general contributed in the negotiations around the table given his stated position. He may not have taken much interest in this issue. He may have actually been active in the debate. Probably he is the only one who can tell us whether South Australia had previously put any alternate positions in respect of the number of the matters that the member has raised, or whether he just sat at the table and said, 'Well, really, this is not a matter we're signing up to, so I'm not going to participate in the debate.' You will have to ask him.

However, I know that when the new government came in and we were first invited to meet with attorneys-general and I was provided a briefing from the department on this matter, it was pretty clear that, of the other jurisdictions that were signing up, almost everything had been resolved as to what position they were going to take save and except that the question of whether someone who was convicted themselves of offences, particularly if they had significant penalties of, say, past five years' imprisonment, was really challenging some of the states.

How should this be dealt with? Should these people be declared ineligible right from the start, have no opportunity to make a claim because they had perpetrated offences on others and simply do not deserve to be in the tent to be able to access those funds?

I am pleased that, indeed, our view was accommodated, that is, that there ought to be some discretion allowed for this to enable people in this situation to actually have access to funding. Why? Quite simply because we know—and I see this almost on a daily basis in the applications for ex gratia payments that are made—that frequently the people who have been a victim of child sexual abuse, particularly over a prolonged period, have damaged relationships, poor interaction with other partners, frequently are convicted of sexual offences themselves (often against children as well but sometimes against other adults) and, sadly, end up incarcerated themselves.

To simply say, 'We are never going to let these people come in and have some compensation,' without there being any consideration of exceptional circumstance, in my view would be grossly unfair and would fly in the face of the data that makes it very clear that we would simply be adding fuel to the fire. We would be compounding the felony. We would be failing in our duty to make provision for them.

I am pleased that that final issue fell the way it did in allowing the door to be open, but bearing in mind as we do already in allowing sometimes people, again, seeking ex gratia payments under our current victims of crime law (which, again I am asked to do on a regular basis) where people have had historical periods of sexual abuse. Just three or four I have dealt with this week during the late 1960s and early 1970s—allegations of intra-family abuse over a prolonged period of a very serious nature—and in two of those cases the victim or the claimant seeking ex gratia payment had subsequently seriously offended themselves. In both cases, they were out of custody. They served their time for those offences. What cannot be ignored is the perpetration of pain, hurt and injury that they have inflicted on others.

No doubt, at some later date either I or some other subsequent attorney-general might receive more claims from those victims. We cannot shut the door completely. It is important that we recognise that it is a difficult area and that we have to find a balance. Some public outrage will come from some victims being given some kind of compensation under this Redress Scheme where they have been known to have committed offences on others, particularly children. That is a matter that we will have to consider on a case-by-case basis. I hope that covers these matters in relation to concern about the scheme.

Subsequent to the announcement of the federal passage of their bill, I heard that a victim came forward, and I cannot recall her name as it was on a radio interview. She said she was unhappy about the indexation arrangement. That is her personal view, and I respect that, but it seems very clear from all the material with which I have been provided that not only did the royal commission undertake very extensive consultation and receive submissions in this matter but so did the federal government in relation to their bill. Shortly after that I heard an interview with the federal Attorney-General confirming that victims' groups, which had been a strong voice during the course of this national royal commission, had been consulted again about the terms that were being signed up to under the national scheme.

This scheme is being established for 10 years with $146-plus million in a dedicated fund from South Australia so that we can make provision for people who elect to seek some support through this scheme. It does not close the door on the right for them, where it is available for them, to seek a financial compensation payment through the civil law processes. An application for compensation can be made and is not cut out.

That is an option that is open to them. I am sure that most members of this house who have in any way followed this national commission, or ever read any of Mr Mullighan's reports, would fully understand that the applicants we are dealing with here—the people who have given their evidence and story to Mr Mullighan and then subsequently to the royal commission, or either—are frequently people who are no longer in a position, if they ever were, to articulate and detail with sufficient precision to enable them to satisfy the standards within a civil claim.

We cannot just simply say, 'Well, if they fail there, they walk away with nothing.' That is the whole purpose of this Redress Scheme. It is not to be seen as compensatable of all issues, but as a recognition that there had been pain and suffering, that it needs to be recognised in some monetary way and that, in addition, they have some funds available immediately to either continue or undertake counselling services.

I am also aware that the member for Badcoe has met with the Victim Support Service and secured continued funding. That is a body that has already undertaken a considerable amount of this work in both assisting to refer people for legal advice for the claims under the state scheme and providing them with counselling during the course of preparing their statements and subsequently. They have already played a very active role in relation to the state Redress Scheme, and I thank them for that. They have certainly indicated to me that they are ready, willing and able to undertake that responsibility in respect of those who might need it arising out of claimants through the National Redress Scheme.

I am pleased to hear that because, whilst there might be aspects of legal groups that may or may not consider extra offices in Adelaide, it is important to remember that we have some service agencies already skilled and ready to go as well as some in the private sector. Even during both of the Mullighan royal commission inquiries, considerable support was provided, especially after the Indigenous inquiry. That was a very difficult extra inquiry undertaken by Mr Mullighan, which needed a lot of support people to enable people to come forward in some of those communities.

I hope that has covered the matters raised specifically. I will conclude by saying that the bill provides the necessary legislative support from the South Australian parliament to secure the comprehensive application of the scheme in the state. It has been carefully and consistently drafted with counterpart legislation in other states in order to ensure the consistent operation of the National Redress Scheme as contemplated in the commonwealth act around the country.

Any amendments to the bill as drafted may risk the validity of the National Redress Scheme as it applies in South Australia, or may risk the consistent and comprehensive application of the scheme across Australia. Any proposed amendments would need to be considered and supported by other jurisdictions participating in the National Redress Scheme to ensure there are no unintended consequences of that nature.

I point out, as I think I did in the initial contribution to this debate, that there are some extra clauses in our bill. Those extra clauses ensure that we adequately protect the transitional arrangements covering the state scheme. Clearly, that does not apply in other states. It is not a situation where our bills are exactly the same in each state. We have that distinctive feature about making sure we protect the interest and also, obviously, we take into account payments that have been made out under that scheme.

Not all of the aspects of the Redress Scheme may be to the liking of everyone in every way. What we say, though, is that there has been comprehensive negotiation on this. This is what has been agreed at the national level. Our government supports it and we seek the continuing support of the opposition. This is not in any way a threat. It has been raised with me in the past, when I have been here in the parliament, to be careful, if we are to attempt to make some changes, to understand the consequences that may occur if we try to unravel aspects and provide unique aspects to the South Australian provision.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms STINSON: To save us all some time, I might just say that I am grateful to the Attorney for covering a lot of the things that I had intended to ask about. I have just four discrete areas that I want to ask questions about. If it is agreeable, I might do them all under clause 1 and then we could move through the rest of them quite swiftly.

The CHAIR: Do your best, member for Badcoe, to relate to a particular clause. I understand that this is your first bill, so I am willing to cut you some slack, but get close to the clauses your questions relate to.

Ms STINSON: My questions relate to the functioning of the whole scheme.

The CHAIR: As I have indicated, I understand that this is your first bill, so we will provide some indulgence, member for Badcoe. Probably the easiest way to do it is at clause 1.

Ms STINSON: Thank you very much for that indulgence; I do appreciate it. I will respect the time of the house and get through as many of these as quickly as possible. Attorney, my first question is just to clarify something. You expanded on this quite a bit in the address that you just gave but, so that I am perfectly clear, if we were talking about defunct institutions that are not aligned with a church—they have no other organisation to align themselves with—and where there is also no equal state responsibility, is it the case that the state can elect to take up victims who may make a claim against such defunct organisations?

The Hon. V.A. CHAPMAN: There are two areas that I think I need to cover off, and I hope this will cover it more comprehensively. Firstly, there is the scenario where the institution is defunct, there is no association with any state agency and there is no placement, for example, of a state ward at that particular organisation. These children are placed entirely independently of any responsibility of a state agency, for example, by their parents, and there is no association. On the face of it, those children are not in the scheme automatically, but there is a discretion for the receiving state, which would be South Australia for us, to consider those children and actually let them in.

Frankly, I think the more likely scenario is the following, which is why I have just checked this. Say an organisation was run by a particular faith and its mother company, as such, was completely dissolved as well as the institution. State wards were placed in the institution, in some kind of residential accommodation, as well as non-state wards—that is, children placed voluntarily by other parties such as parents or guardians, for example, who had no relationship with the state. Obviously, there would be an obligation to be the funder of last resort for those children who are state wards but not necessarily those who might have been living at the place who had no association with the state.

Again, particularly if South Australia considered that there were clear events of abuse and other children were receiving benefit, that may exercise their mind to allow the discretion to include those children as well. It is really two sets of situations. One concerns children who are not the responsibility of the state—they are not being educated or accommodated and they are not under the guardianship of the state in any way—who are authorised or consented to be placed in the care of a particular defunct entity, and also other children are there with no association, as I said. Separately, there are defunct entities which have no-one left to sue, basically, but which only had a child or children without any relationship with the state. In both cases, there is still a discretion to let them in.

I cannot think immediately of a church that has completely disappeared, for example, that may have had an organisation that operated a student accommodation, camp, trip or something of that nature. That is why there has been a lot of discussion about the opt-in arrangement of the Scouts association, a number of churches and a number of charitable organisations that have, for whatever reason, had in their charter to offer services to children where they have been in a circumstance where they can be exposed to abuse. I can think of quite a number of different groups that would have closed up, but the parent organisation still exists.

Some people have said to me, 'Why do you think these churches and other charitable groups are willing to come in and line up for this? Why would they?' The answer I think is pretty simple: they are getting out of this pretty cheaply. I was a bit surprised to hear earlier that some of them were taking a bit of time and were a bit tardy to even come to the door. Frankly, if I were advising, I would be rushing down there to sign up. Nevertheless, it is a matter they have to think about.

What we are trying to do here—and I think this has been universal around the country—is to say that we accept that in some circumstances there is simply no-one left to sue or prosecute. They are dead or disappeared or the entity does not provide any remedy. We have to accept responsibility, especially where there has been a referral of one of these children by a state agency, but even when that does not exist we should leave the door open if they clearly have a case for support.

Ms STINSON: Thank you, Attorney, that answers my question. I wanted to ask also about the ex gratia scheme, commonly known as the Mullighan scheme. I understand from briefings that your office and the Attorney-General's Department so kindly provided that that scheme will close. Could you be more specific about when it will close?

The Hon. V.A. CHAPMAN: The first thing is that it is expected the new scheme will start early next year. I am still processing applications under the state fund, and that will continue until we have the new scheme in place. All the people who have received under the state scheme, who have pending claims, or where we know there is a claim coming, have all been written to and advised that a new scheme is under consideration and that they may well have an opportunity to progress to that if they wish and/or continue their own state application.

They have received some money and may be eligible for more under the new scheme, or they have not received any state money but they have an application pending, or they are considering putting in a state claim. All three of those categories that we know of have been sent a letter advising them. The transfer will obviously occur once the federal scheme is immediately in place and all the states have to deal with these pieces of legislation.

I asked the same question myself: where are all the rest of these claims? I have a list in my office of pending claims. A number of them have legal representatives who are still putting together some of the material, or they have basically been asked to provide further and better particulars of support in consideration of their claim. Sometimes that takes some time, or their lawyers take time, whatever the situation is—I am not suggesting that is any fault of theirs. I will continue to process these until we get a date of transfer.

Ms STINSON: I will move on to the question of people who have served sentences of over five years, and I have a very particular question about that. I understand that people can, essentially, make application to be accepted into the scheme even if they have served a term of over five years, and I understand that what happens is that the scheme operator will write to the relevant state Attorney-General and seek their view about admitting a person to this scheme.

When the scheme does that, when it seeks the views of our state Attorney-General, what is the process you intend to take in order to assess those applications? For example, will you be consulting with victims of offences, victims groups, prisoners, prisoners groups? Could you shed some light on what the process will be when you are asked to comment on those cases?

The Hon. V.A. CHAPMAN: The commonwealth act makes provision as to how this is to operate, obviously protecting the right for applications to be made. That is the first thing. The process as to how it is going to be received, what evidence is sought, who I consult with as the Attorney or who any subsequent attorney consults with, and matters to be taken into account is pretty discretionary, as is currently the ex gratia payment for money that comes out of the Victims of Crime Fund for many of these complicated or historical cases.

Very often, historical allegations of abuse, particularly child sexual abuse, are ones where the claimant does not actually want to make a claim under the normal victims of crime process because that scheme requires the state to advise the offender and seek recovery from him or her. It is frequently raised, when I am considering an ex gratia payment—which still comes out of the fund but through a different process—that there is likely to be some retaliation or some difficulty by the offender being alerted to the fact that a claim has been made, that there may be repercussions for them or for members of their family.

I quite often get applications based on that, so I think it is reasonable to expect that when we have claims come in relating to historical child sexual abuse where the offender has gone to prison in relation to other offences against other victims, we will have similar complications, to the extent that there will be concerns about retaliation, especially if offenders were within a family unit. That is the first thing I would want to consider.

Obviously there are the victims of the offender, who of course is claiming to be a victim himself or herself, but there are his or her victims as to why they are in prison. I think it is reasonable to have some victim impact statement material called for if it is not already on the file, bearing in mind that a number of these people, if they are still in custody or have been convicted of an offence with more than five years' imprisonment, usually have a number of things that monitor them.

One is that the correctional facility, usually run by the Department for Correctional Services in South Australia, has a record of how they have conducted themselves in custody and their compliance with the general obligations there. If they are in any other detention arrangement, then that would be by the parole officer, for example, if they are on some kind of release program or an intensive correction order. These are the types of different options that are around. There are a number of different bodies, usually employed directly by the Parole Board, which is of course part of Corrections, or by the prison institution itself.

In addition to that, there are frequently psychiatric or psychological assessments that have been made for the purposes of sentencing, sometimes as to where the offender needs to be incarcerated if they have some intellectual disability and so on. Often there are myriad forms of information about these people already. The current practice, when dealing with an ex gratia payment, is to receive advice from the department who often collate it and summarise it and then provide copies of some of this material for consideration. Some of these are obviously quite extensive in relation to the material that is there.

As I have said, just recently this week I can think of two of them where they are claimants and they have actually had a subsequent history of offending against others, and they are difficult in this situation. I do not think it is appropriate, if I can put it in the reverse, that there be any public consultation about these matters. I think that is totally inappropriate. I think the relevant authorities are likely to be Corrections, police, parole, medical, and victim impact statements on file.

Obviously, if there is record of the conviction of the original offender, if I can say that, that is perhaps the historical parent or neighbour or someone who has abused the claimant who is now in custody for hurting others, so the history as to what happened there as to whether there was any police report and whether there was any prosecution or any conviction—so, a nolle prosequi was entered—these are all things that are frequently able to be collated.

I am advised that they are looking to set out some parameters where, when all this comes to me for consideration, I am to give an answer within four weeks. I can honestly say, except for exceptional cases, I turn around these things within 48 hours because I think they are important for people to have their claims heard. But largely it is because I am aided with a significant amount of consolidation of the material that can be then presented for consideration. Of course, there is a fund which those current claims are set off against.

At the moment, we will see how that progresses. Unless we get this through, then we are not going to get anywhere. But I would imagine that the only differentiating feature from what we currently have would be the victim impact statements and/or particulars of that which may already be in the medical records because they may have made that inquiry.

The CHAIR: Member for Badcoe, before you start, we have had three questions officially on clause 1, so I am going to put that clause.

Ms STINSON: Sure, let's do that.

Clause passed.

Clause 2.

The CHAIR: More questions of a general nature, I expect, member for Badcoe?

Ms STINSON: That's right. Very few.

The CHAIR: Are you comfortable with this, Attorney?

The Hon. V.A. CHAPMAN: That's fine.

The CHAIR: Yes. Member for Badcoe.

Ms STINSON: Following on from your previous answer, Attorney, I want to clarify something. The aspect that I was most interested in was what sort of consultation would be done with victims. I accept that you said that the materials that the department might collate for you might include the victim impact statement, but obviously that victim impact statement would probably be to do with the offending that person was in prison for and would not express the victim's views about an offender getting a payment under the Redress Scheme. I wonder if you would seek the updated views, if you like, of the victims in relation to a certain offender receiving a payment under the Redress Scheme, considering that the standard for the Redress Scheme is not to bring it into disrepute.

The Hon. V.A. CHAPMAN: The question of whether there should be a specific inquiry made and an opinion sought from any victims relating to the person who is in custody—the victim of the claimant—would have to be dealt with on a case-by-case basis. If I could think of just one case that I have recently looked at, the allegations were of sustained sexual abuse during the 1970s by way of an intrafamily sexual offence. The subsequent sexual activity was with the claimant's daughter, who is still a child. I cannot imagine for one moment that there would be some inquiry made to what would be a six year old as to whether dad should get compensation.

I can think of situations where it would be reasonable, but there are confidentiality issues and issues around appropriateness in relation to the offender. In relation to other matters where people are putting in claims, I have been aided by both the former and present victims of crime commissioners, although the former was not on specific cases other than one. In recent times, I have had the advice and presence of the Victims of Crime Commissioner in relation to discussion around an application for an ex gratia payment, and I found that very helpful.

The commissioner is a voice to be able to indicate whether it is appropriate to raise the matter with the victims or their guardians. It does get a bit complicated, of course, but it is hard for me to be more specific than that. These things are discretionary by their very nature, and they are not designed to be a retrauma of what they might have already gone through. The whole concept of having redress schemes is so that people are not put in the witness box or interrogated about what has happened to them. There has been an understanding and acceptance, usually via medical reports, of certain conduct, and this has perhaps been verified by corroborative statements made to police.

They are not designed to put victims through what would normally be a civil claim process or frankly, worse still, some sort of inquisitorial action by the Attorney-General or anyone in my position to do the same. In fact, it would probably be worse for them. I just make the point that I am not trying to allude to anything other than the fact that we will have to consider these matters on a case-by-case basis. Currently, the ex gratia process is sometimes flush with material and sometimes requires further inquiry with the department to obtain further information if I need it. It is not envisaged to bring in the claimant to be cross-examined by the Attorney-General.

Sitting suspended from 17:59 to 19:30.

The CHAIR: The committee is on clause 2. Member for Badcoe you have asked one question on clause 2 and I give you the call.

Ms STINSON: In relation to counselling services, which we were speaking about before the break, has the Attorney considered providing counselling services through already funded state services such as the Victim Support Service, which does have regional offices and may be able to cater to regional clients? The state of course already does provide base funding for VSS to provide free counselling. As you mentioned earlier, it has played a role in both the national and state-based royal commissions and investigations over the years.

The Hon. V.A. CHAPMAN: The Victim Support Service is an institution which has operated, I think, since David Tonkin's day. It has been a longstanding community-based organisation. It provides valuable resources, but it is not everywhere and I am not expecting it to be. The Family Relationship Centre, the former marriage guidance council, also provides a number of services. I know because I used to sit on their board a thousand years ago. No, I will not mislead the house, it was not quite that long ago. There are also existing agencies that are represented in some of the country regions and can provide the service, but that does not mean that it is always the service that the client is seeking.

Sometimes, for example, they are looking for a very personalised service or a private service that is only available not in a mixed group, for example, and availability of that may only be through an alternative facility. We are not really in the business in agreeing to counselling to say to somebody, 'Here is what you require, here is the organisation that will provide it and we insist on you using that service.' It simply may not be suitable. Let me give you an example: children or someone with an intellectual disability may need a specialist service, even into adulthood, to deal with the issues of prolonged child sexual abuse.

As I say, in South Australia a large proportion of the population is of course in metropolitan Adelaide. We can cater for a very significant portion of these, but we do know that, with the cohort who gave evidence in the Mullighan inquiry, including a number of our Indigenous victims in the APY Yalata area, etc., we need to recognise that they will need other services. Kangaroo Island is another classic example where they have visiting psychologists and other people who provide counselling services for all sorts of problems and addictions and so on. They just do not have an available permanent facility in some of these regional areas.

We have to recognise that. We have therefore signed up as the state to providing counselling as a voucher system in that sense of saying, 'You will have up to $5,000 to cover the expenses in relation to a counsellor of your choice.' But I would agree with the member that VSS have provided significant resources already. They have the skilled expertise, they are ready and willing to be able to continue to provide that and I am sure that they will be an avenue of referral that will be invited to participate in the national scheme.

Ms STINSON: I think that was my third question on that clause.

The CHAIR: No, we are on clause 2. You are still going okay on clause 2.

Ms STINSON: In that case, I have one more question on that topic. The royal commission recommended a particular type of counselling, that is, trauma-informed counselling. To my knowledge, and I am happy to be corrected, the Victim Support Service is the only service that provides that at this stage, so for that reason as well I wondered if the Attorney was looking at the option of providing or in some way directing or suggesting or recommending that form of counselling to claimants under the scheme.

The Hon. V.A. CHAPMAN: Trauma-directed counselling is something I have discussed with VSS. It is a model of care and counselling that they advocate. I am not an expert on counselling, but it does not appear, on first blush, to have any obvious disadvantage. It seems to be a model which is not universally accepted, I might say, but which has significant data in support of the outcomes that are available from it. I have had quite significant briefings, obviously, and presentations given by VSS in relation to it.

Again, though, royal commissioners, lawyers and politicians are not always the best people to make decisions about what the best model of care is in respect of different circumstances. I personally think it is reasonable that we move away from a victimised, victim-based type of recovery, which has been a model in other agencies and which is why I am personally impressed with VSS's adoption of that model.

However, it does not mean it is going to be available for everybody or that they are prepared to do it. We on this side of the house accept that people are entitled to have some say about that. We are not going to impose a particular model on them, but I would personally like to see people come through a period of counselling or support which makes them feel empowered to have a fulfilling life without feeling victimised. These are the sorts of objectives that are part of the approach given by VSS. So it is meritorious in the model, but we are not going to be prescriptive in that regard.

Clause passed.

Clause 3.

Ms STINSON: I had not foreshadowed any further questions to the Attorney when I spoke earlier, so I understand that she might want to take this one on notice. I want to ask why the payment of $146 million from the Victims of Crime Fund occurred in the financial year 2017-18, rather than the payments being made incrementally as the claims were settled this financial year, or indeed in the following financial year, depending on when the scheme actually gets up and operating.

The Hon. V.A. CHAPMAN: Very simply, this was a priority for our government. With the Premier agreeing to sign up, I think, in early April—or at least the agreement to do it within the weeks that that occurred—one of the things that needed to be considered in relation to the $146 million (which was the estimate to cover if everyone made a claim, basically) was to quarantine those funds. The Victims of Crime Fund is one which has a net income of about $40 million a year, I am told. I have asked questions in estimates about this in most years, and it used to be quite scandalous to me that there was an ever-accumulating fund. There is well over $200 million now in that fund.

Ms Stinson interjecting:

The Hon. V.A. CHAPMAN: Good, I am very pleased to hear that. It just seemed obscene to me that we had this money accumulating, yet we had victims who were people who had paid these levies and fines to accumulate this money to provide for victims and it just kept accumulating. I was always concerned about that.

There are a number of different groups that take money out of this. One is direct victims claims, when you apply for compensation when you have been a victim of injury from assault, for example, or a personal injury as a result of a crime being inflicted on you. You can now claim up to $100,000 under a particular formula for compensation payments.

Only a year or so ago it was increased from $50,000. That was one of the issues we had with the former government. We said, 'You have a limit at $50,000. If you are beaten up or raped multiple times, $50,000 is inadequate. We want this changed.' So it did disturb me that this was ever accumulating.

Since then, a number of other things were pulled out of this fund, and they are all worthy causes. I will not go through the list of them, as they are all in the Victims of Crime Act. I make the point that, with the change of the maximum available under the Victims of Crime Act for compensation claims for general offences, we needed to make sure that what money needed to be set aside was quarantined. The best way to do that was to remove it from the fund, place it in SAicorp—the agency that will be paying out this money—and it is then quarantined from being able to be used for any other purpose out of the Victims of Crime Fund.

We felt that this was important to do to secure that funding that could not be interfered with or drawn down and then not have the funds available. It was very important to us that, for the life of that 10 years, this redress scheme would have the money available. The provisions of the act will be that, if it only uses $125 million in that time because we did not have the number of applicants we expected, for example—and a number of Mullighan inquiry claimants, sadly, have already died—we keep that quarantined. We do not want to have that situation. If it is not used it will ultimately come back into the Victims of Crime Fund, but we want it absolutely secure in the meantime.

Ms STINSON: Was the government advised to make that transfer? Did you receive advice to make the transfer in that way in that financial year, and to SAicorp? I thought it was SAFA, but I stand corrected on that.

The Hon. V.A. CHAPMAN: It may be SAFA. Did I say SAicorp? I probably did because there are so many funds and claims coming out of that at the moment—SAFA, the South Australian Financing Authority. Did we receive advice? We received advice as to how the money would be secured and, if it was to be secure for that purpose, where it would be put? Is that what you mean?

Ms STINSON: Yes.

The Hon. V.A. CHAPMAN: Yes.

Ms STINSON: To be more specific, did you receive advice to do it in the 2017-18 year rather than in the present financial year and, if so, why?

The Hon. V.A. CHAPMAN: I cannot recall that specifically. As I say, we dealt with this matter in April. We signed up shortly after coming into government, so it was a matter of then implementing what our commitment would be: (1) prepare legislation to come into the parliament; (2) set aside the funds. So it was the logical extension that that would occur. I suppose the question would be: was there any advice received that we should delay that and therefore move into the next financial year? I cannot recall anything like that.

Ms STINSON: You were not making payments until this financial year, so I wonder why you would do it in the previous financial year.

The Hon. V.A. CHAPMAN: Some of the payments will not be made for nine or 10 years, but that money will be safe, quarantined from any other claim under victims of crime, in SAFA as a reserve fund for that purpose exclusively, so it was the protection of that base for the purpose of undertaking our responsibility under this scheme. If this bill failed and we were no longer in the scheme, the money would have to come back. If we do not use it all, the rest of the money has to come back.

I suppose, really, it is a question of timing. The matter was near resolution, as I say, except for the question of how we would deal with claimants who had been subsequently prosecuted, convicted and sentenced for penalties greater than five years' imprisonment. I know that issue was left unresolved, but largely everything else was resolved. When we met and it was agreed, and Western Australia agreed to come in at that meeting, we just got on with it.

The question then was: where do we get the money from? Obviously, the money is to come from the Victims of Crime Fund. In fact, my approval to sign up to it was on the basis that the money would come from the Victims of Crime Fund, because we made it absolutely clear that this was a matter that was a dedicated allocation, that it was there for victims and that it ought to be secure. We did not want any other people taking the money out.

The CHAIR: I am going to put that clause.

Ms STINSON: I have one final question if you want to do all of them at once.

The CHAIR: Is that it?

Ms STINSON: It is really the last, final question.

The CHAIR: Okay, I will allow that.

Ms STINSON: Can the Attorney say who provided that advice, that is, the advice regarding the transfer of the funds?

The Hon. V.A. CHAPMAN: I cannot recall specifically, but the adviser who was here with me today has been instrumental in the attendance at meetings and with the provision of documentary reports and advice throughout the matter. Probably she has had some part in it from the Attorney-General's Department but, no, I could not identify any other particular officers on it.

Ms STINSON: But from the department?

The Hon. V.A. CHAPMAN: From the department, yes.

Clause passed.

Remaining clauses (4 to 13) and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (19:46): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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