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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-07-04 Daily Xml
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National Redress Scheme

The Hon. F. PANGALLO (16:39): I move:

That this council—

1. Welcomes the establishment of a national redress scheme and the announcement of a national apology;

2. Appreciates that survivors have been waiting a long time for a national redress scheme and that the implementation of such a scheme is urgent and overdue;

3. Acknowledges the concerns that the scheme does not fulfil all the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse regarding the Redress Scheme;

4. Notes that critical issues, such as the adequacy of the maximum payments and the counselling available to survivors under the scheme, remain of concern to survivors and their representatives;

5. Recognises that relevant prior payments should not be indexed under the scheme; and

6. Encourages the state government to work with the federal government and other states to strengthen the scheme.

A significant milestone was achieved for thousands of worthy Australians on 19 June, when federal parliament passed the National Redress Scheme bill. Two days later, it was enshrined in law. This means that, since last Sunday, survivors of institutional sexual abuse across Australia have been able to make applications for redress. Sadly, this may take up to a year for a determination—a long time to wait in anyone's language.

However, the situation is even worse in South Australia because the survivors who make applications here, those who suffered sexual abuse within South Australian public institutions, will have to wait until this parliament passes its referral legislation, which is yet to be introduced. This is despite Attorney-General, the Hon. Vickie Chapman, announcing on 28 May, over five weeks ago, that the South Australian government would sign up to the National Redress Scheme. I welcomed that decision at the time, as it ended years of uncertainty for survivors of abuse who remain traumatised by what happened to them in institutionalised care. However, the government has since gone silent on the proposed legislation, which will be similar in terms to legislation already passed in New South Wales and Victoria. I do not understand the delay.

New South Wales introduced its referral legislation on 1 May, which then passed the New South Wales parliament two weeks later on 16 May. Victoria introduced legislation on 8 May, which passed the Victorian parliament on 6 June. I understand the South Australian bill is currently being drafted, yet it would essentially mirror the New South Wales and Victorian referral legislation. These bills were identical except for stylistic variations.

We have seen, with the recent passage of the Sentencing (Release on Licence) Amendment Bill 2018, the legislation to keep notorious South Australian paedophile Colin Humphrys behind bars, how quickly legislation can be generated and passed when the need arises. I would argue that the required South Australian referral legislation for the National Redress Scheme bill is needed as a matter of urgency. Time is running out for some applicants. Prue Gregory, the principal solicitor for the legal service knowmore, which supported survivors during the royal commission and will continue to do so throughout the life of the Redress Scheme, has publicly stated that there are abuse survivors who are seriously ill and not expected to live beyond August this year.

In response to questions from my office about the referral bill's introduction, the Attorney-General's office has advised that the proposed legislation is expected to be introduced 'hopefully' by the end of July, just before the winter recess. This is simply not good enough. Survivors do not need hope, they need urgent action. The impact of the unreasonable and unnecessary delay is that South Australian abuse survivors will be forced to wait unnecessarily. Surely, they have had to wait long enough already. While survivors can make applications now, they will not be assessed until the South Australian referral legislation passes, which is at least two months away. This will only serve to prolong the suffering of abuse survivors who have already suffered enough and, without doubt, will impact on their wellbeing.

This issue is about priorities. We should have been dealing with the referral legislation long before the winter recess looms. All other bills introduced so far in this place do not come close to the urgency of this proposed bill. I urge the government to move more quickly and let the parliament deal with the bill before it rises for the winter break. As noted at the outset of this speech, the legislation which creates the framework of the National Redress Scheme is now law. I want to especially acknowledge the work of individuals and organisations that have pushed to make the scheme a reality. Survivor advocate groups like Care Leavers Australasia Network, otherwise known as CLAN, have fought for decades for redress.

While the legislation that passed in the federal parliament is most welcome, it is imperfect, and it is important to put on record the outstanding issues with the legislation and why it could not be strengthened. The bill presented to the federal parliament could not be amended because any changes to the national bill would have meant that it would not have aligned with the schedule included in the aforementioned state referral acts, which in turn would have rendered the referral ineffective and meant the national bill could not operate in the states which had already passed their referral bills. Consequently, the Senate did not move amendments to the bill and it passed without amendment. It rendered the Senate to effectively rubberstamping the legislation.

The ceiling for payments under the scheme is $150,000 with no minimum payment. This is significantly less than the $200,000 maximum payment and the $10,000 minimum that was recommended by the royal commission. The $150,000 cap is supported in the states and territories and the Senate inquiry report into the bill stated that it is important to recognise that most recipients of redress will not be eligible for the maximum amount and that we should focus on the average payment most survivors will receive and not the maximum amount. Lowering the cap without a credible explanation threatens the entire credibility of the scheme.

The Senate inquiry into the first iteration of proposed legislation for the scheme heard the decision to set the lower maximum cap was made by federal ministers before the Department of Social Services was asked to begin designing the scheme. That beggars belief. The effectiveness of the scheme depends on adequate redress to acknowledge the significance of the abuse from the perspective of the survivors.

We know that accepting an offer of redress means signing away any rights that a survivor may have to pursue their claim for redress through litigation, which was why the amount of redress offered under the scheme is important. Inadequate redress may cause more survivors to pursue civil litigation, further risking trauma to survivors by having to relive their trauma before the courts and risks undermining the purpose of the scheme. Inadequate redress is likely to place survivors in the difficult position of, after receiving legal advice that their claim is worth more, still accepting an offer of redress for fear of reliving their trauma through the courts.

SA-Best has other concerns with the scheme. The way previous payments of redress via other schemes are indexed is very important to survivors. The indexation of previous payments, part of which often went to pay legal fees to pursue redress in the first place, may mean that some survivors' redress payments are reduced to nothing. CLAN has campaigned for indexation to be taken out of the redress scheme because past payments were usually small and consumed by legal fees. SA-Best strongly believes that previous payments should not be indexed.

We would all agree that counselling is of maximum importance for survivors, many of whom kept their abuse hidden for decades because of fear and shame. Many survivors only shared their personal accounts of abuse for the first time before the royal commission, which recommended that recipients of redress be able to access counselling for the rest of their lives. The royal commission listened to thousands of hours of private and public testimonies as survivors mapped the horror of sexual abuse. The commissioners understood the searing trauma caused by the abuse. That trauma is lifelong. I have spoken to many courageous survivors, you do not ever get over it.

Not all survivors will want or need counselling, but for those who do, they must receive adequate counselling. While not specified in the bill, the intergovernmental agreement sets out three tiers of counselling and psychological component agreed to by participating jurisdictions: $1,250, $2,500 or $5,000, based on the severity of the sexual abuse. That money goes either directly to the survivor to access private counselling or to the participating states or territories where the survivor lives, which will then have responsibility for delivering the counselling in line with national service standards outlined in the intergovernmental agreement. This provides for a minimum of 20 hours of counselling and psychological care over the course of the survivor's lifetime. Trauma is experienced by people differently; abuse has lifelong consequences. It strikes me that a $5,000 ceiling for the most heinous sexual abuse will almost certainly be inadequate to cover necessary counselling services over a prolonged period.

Adequate counselling is critical for the survivors of sexual abuse who were robbed of their childhoods, their innocence and the opportunity to live their best lives. The scheme also limits funder of last resort provisions to apply only where the government has equal responsibility for the abuse that occurred in a now-defunct institution which has long since closed its doors. This includes places such as Colebrook Home, an horrific South Australian mission which was run by the United Aborigines Mission from 1924 until 1981, when it closed.

Colebrook was recognised in the Mullighan inquiry as an institution where the sexual abuse of Indigenous children occurred. Over 54 years, about 350 children passed through Colebrook. Colebrook Home existed at three separate locations through its lifetime: near Oodnadatta, Quorn and finally Eden Hills. The United Aborigines Mission no longer exists, and it is unclear whether there was any state government involvement.

Governments should be the funder of last resort for all institutions, even if they had no direct involvement with the survivor claiming redress or the defunct institution. Failure to do so creates a class of survivor who misses out on redress merely because the abuse occurred in an independent institution which is now relegated to history. Survivors caught up by this provision should not miss out. I have written to the Attorney-General to determine how many defunct institutions in South Australia where there was no government involvement will be exempt from the scheme due to this provision.

The scheme also treats survivors with a criminal history differently to others. The royal commission's 2015 report on redress and civil litigation had as its primary recommendation that any process for redress must:

...provide equal access and equal treatment for survivors...if it is to be regarded by survivors as being capable of delivering justice.

Take the example of those with a criminal conviction and sentenced to imprisonment of five years or more. Before they can apply to the scheme they must first satisfy the relevant Attorney-General that provision of redress would not bring the scheme into disrepute or adversely affect public confidence in or support of the scheme.

I have a number of issues with this policy position. Firstly, it ignores the profound impact that childhood sexual abuse can have on a person's life and the well-documented connection between abuse and criminal behaviour. Secondly, it will disproportionately affect Aboriginal and Torres Strait Islander people, who are already over-represented in the criminal justice system. Thirdly, whether or not a survivor has a serious criminal conviction in no way changes the fact that they suffered sexual abuse as a child in an institution. Finally, it is difficult to imagine how an application for redress by such an individual could bring the scheme into disrepute in circumstances in which their information would surely remain private.

Some 10.4 per cent of survivors interviewed by the royal commission were in prison. knowmore legal services estimated that during the royal commission 19 per cent of the nearly 9,000 clients it assisted were in prison or other places of detention.

Further, the National Redress Scheme only allows child survivors who turn 18 before the scheme's sunset date to make an application to the scheme. The consequence of this provision is that children who are currently not yet eight years old will be excluded from the scheme. This provision is not in line with the view of the royal commission, and providing a blanket exclusion of children that fall within the provision is contrary to the requirement to ensure the best interests of a child, especially in relation to vulnerable children.

That will mean that some of the victims of Shannon McCoole, one of the worst predators imaginable, will be unable to apply for redress. This scum of the earth paedophile was sentenced in 2015 to 35 years in gaol, with a 28-year non-parole period, for his devious, brutal sexual abuse of seven young children, including an 18-month-old infant, a child on the autism spectrum and a child with a disability, while he was a Families SA social worker. It was the longest sentence handed down to a paedophile in this state. The crimes he committed against defenceless and vulnerable children sicken me to the stomach.

McCoole was sentenced only three years ago. His crimes occurred in this decade, not in the dark recesses of the previous century, when abuse perpetrated by the likes of McCoole was systematically hushed up. McCoole's heinous crimes sparked our own royal commission into the state's child protection system. The final report makes for harrowing reading. I will not be in this place when McCoole is due for parole, but the Sentencing (Release on Licence) Amendment Bill 2018, which became law on 25 June, should ensure that he is never ever released, along with the likes of Bevan Spencer von Einem.

Over the course of the royal commission into institutional responses to child sexual abuse, the commission held some 57 public hearings over 444 days, receiving evidence from 1,300 witnesses. Commissioners held over 8,000 private sessions to listen to the harrowing personal accounts of sexual abuse of survivors. There were some 2,500 referrals to authorities, and the final report ran for over 100,000 pages.

The royal commission estimated that over 60,000 survivors will be eligible to apply for redress. The enormity and scale of the abuse is crushing. The commission found that there were more than 4,000 institutions where sexual abuse took place. What makes me retch are the horrific accounts of children being sexually abused in the confessional box and on church altars, places that are most sacred and meant to be places of sanctuary, yet were desecrated by those who were meant to live their lives in the image of Christ. In reality, they were the devil incarnate.

It beggars belief that these institutions nurtured a culture that fostered, systematically hid and accepted the sexual abuse of children. The evidence presented to the royal commission was deeply disturbing, exposing the worst crimes against innocent children by people who were held up as pillars in our society, from priests to Scout leaders, social workers to foster carers. The faith we held in the institutions that allowed the abuse to occur has been irrevocably shaken; it is in tatters.

In making these criticisms, I do not wish to take away from those who have laboured long and hard for the establishment of this scheme. It is not a perfect model, but it is an effective compromise. It will undoubtedly go some way to acknowledging the wrongdoings of our institutions and to compensating those individuals whose lives have been forever shaped by the unforgivable actions of those who were entrusted with their care.

We look forward to the Prime Minister's national apology on 22 October to the survivors of institutionalised sexual abuse, to acknowledge the sins committed against them as innocent children, to acknowledge their pain and suffering and to acknowledge their strength in coming forward to share their stories to contribute to everlasting change. However, the Prime Minister alone should not bear the weight of that apology. Every institution involved in the long-lasting harm caused to children, the cover-up and subsequent unravelling must address their significant failings, to ensure it never ever happens again. Repentance is one thing; change is another.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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