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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-09-18 Daily Xml
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 September 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:30): I rise today to indicate Labor's support for this bill and to indicate that I will be the lead speaker. This is an incredibly important issue and one that has bipartisan support. Indeed, I am quite sure that it has support right across the entire political divide. We will not be moving or trying to move any amendments to this bill. We have had extensive briefings and understand that doing so would delay it and could interfere with the operation of what is a national scheme.

In the lead-up to the 2018 election, premier Weatherill indicated that South Australia would opt into the National Redress Scheme. The Labor opposition is proud to continue to honour that commitment. That is not to say that we do not have concerns or questions about the operation of the scheme but we will be supporting the bill unamended.

This legislation has very broad political support and it will pass through this chamber without amendment. I hope it will provide a small measure of comfort to survivors of abuse. Nothing we can do or say can undo the things that have occurred but we can take steps towards making them right. This bill is a step in that process.

The National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 is state referral legislation that allows the National Redress Scheme to operate in South Australia. I mentioned earlier that, although we support this bill, we have some concerns about the operation of the scheme. My colleague, the member for Badcoe in the other place, raised a number of these concerns. They broadly fall under the following headings of concern about the operation of the national scheme:

time to accept an offer;

government as a funder of last resort;

indexation rate of earlier payments;

criminal history of abuse survivors;

limits of eligibility;

access to counselling;

counselling; and

access to legal advice.

I know that in the other place the Attorney-General complained about these matters being raised. I think that is disappointing. I think it is important that we look at and raise concerns, if there are any, about how the scheme is proposed to be operated nationally, which also applies here in South Australia. I cannot think why the Attorney-General would not want to have anything like this on the record.

During the committee stage, I foreshadow that a number of us are likely to have questions on some of those topics, in terms of how the national scheme will operate, and I foreshadow that it might be appropriate at clause 1 that many of those concerns be agitated as this is legislation to refer powers rather than legislation that establishes the operation of the scheme. With that foreshadowing about raising some concerns, particularly at clause 1, I commend the bill to the chamber.

The Hon. I. PNEVMATIKOS (16:32): Today I rise to speak in support of the establishment of a National Redress Scheme and the announcement of a national apology. I would like to start by formally acknowledging that the abuse happened. I am sorry that it occurred and I apologise for past indiscretions and digressions on this matter. I stand here today to avow that I will do what I can to ensure that there is adequate compensation for survivors, because I believe in justice.

The Redress Scheme is about establishing a culture change throughout our society, government, community and in our law enforcement and judicial systems. It is about changing the culture in how we treat our responsibilities to those who are most vulnerable in our society, and take responsibility for the failings that have occurred in the past and preventing them from occurring in the future.

It is estimated that around 20,000 survivors were subjected to sexual abuse in state and territory institutions in Australia. This has occurred in more than 4,000 institutions. Many of the injuries are severe, with long-lasting effects which will have a substantial impact on survivors for the rest of their lives. I cannot stress enough how long survivors have had to wait for a National Redress Scheme, and how much pain it has caused them to fight time and time again, telling and retelling their experiences, for the support they deserve.

It is saddening that the scheme falls short of where it should be in the sense of the ambit monetary compensation, indexation of entitlements, access to counselling and eligibility, as identified and established in the royal commission's recommendations. Many of our federal counterparts also raised their concerns and reservations. We should not resile from those reservations. It would be against good conscience to open ourselves to the possibility of creating division between survivors by denying redress in some circumstances, even though they have not been any less negatively impacted, or less victimised, by their experiences while in institutional care.

They deserve the redress as proposed by the royal commission—no deviations, no cost-saving measures. Put simply, this is not a scheme in which we can afford to cut corners for political expediency. Direct personal response, counselling, equivalent eligibility rights and monetary payments are absolutely essential elements that should be included in any appropriate scheme of redress. It should be survivor focused, with a 'no wrong door' approach to gain access to redress.

I note that a significant body of evidence shows a nexus between child sexual abuse, developmental issues and mental illness. In many cases there is a close link to criminal actions and misdemeanours. I implore the Attorney-General to take that fact very seriously when it comes to the consideration of applications for special circumstances.

It is important that it is acknowledged that abuse and trauma can impact upon the emotional and psycho-social development of an individual in an intrinsic way. We note that over 50 per cent of survivors were aged 10 to 14 when they first experienced sexual abuse, and it is widely accepted that early life trauma can affect an individual's ability to process and regulate emotion.

It can also impact on an individual's own development in terms of empathy and social interaction. Without the ability to regulate emotion, a survivor will have life-long difficulty in tolerating or regulating distress and controlling behaviours and impulses. This can lead to self-destructive behaviours, excessive risk taking, and mental health issues around alcohol and drug abuse.

With that in mind, I would like to remind the government that the royal commission recommended that survivors have access to counselling and treatment for the rest of their life for a reason. If we are truly set to take responsibility for this issue, then we must acknowledge the significant role that counselling and treatment have to play. I sincerely hope that this is the first instalment of support that the government plans to implement for survivors in our state, and that it is a matter that we continue to work on and continue to consult with non-government support agencies, such as Care Leavers Australasia Network (CLAN).

I have spoken with Leonie Sheedy, CEO of CLAN, and I sincerely thank her for her time. She has provided sound advice on how we can do better and why, how we can consult and work better and smarter with non-government organisations and how we can ensure that we strengthen our responsibilities into the future, while dealing with the repercussions of our past.

The royal commission made recommendations to ensure that accessible support services could be made available for all survivors, no matter where they live, no matter the circumstances, no matter their history. Using the words of the federal opposition leader and patron for CLAN: 'The passage of this legislation is an overdue step in the right direction, but it cannot be the end of the road.'

When reviewing the bill, I strongly encourage legislative councillors to endorse this as the commencement of the absolute minimum of the important work that needs to be undertaken. The federal legislation represents absolute minimum standards to begin addressing this matter. We should continue to strive beyond the initial benchmark established to ensure survivors receive the redress and support that they deserve in accordance with the recommendations of the royal commission.

In closing, I am in support of the introduction and passing of this bill, and I am determined to explore every option to ensure that, as a state, we continue to develop this scheme to ensure that survivors receive the support for which they have waited so long.

The Hon. M.C. PARNELL (16:39): This bill has the effect of bringing South Australia into the National Redress Scheme for victims of institutional child sexual abuse. It brings us into line with other states and territories which have already signed or are at least committed to signing up to the scheme. For victims and survivors, this day has been a long time coming and it is very welcome. It would be a rare person indeed who has not been emotionally affected by the shocking and terrible stories that came out of the royal commission. Over a period of years we would learn as a society how some of our most trusted and respected institutions completely abandoned those children who were entrusted to their care. We heard of abuse and neglect and we heard of cover-ups and denial.

Finally, society is ready to at least start the process of making amends. For many of the victims it is too late. Some have died of natural causes, but many have died by their own hands, often as a direct consequence of what happened to them in institutions that were supposed to care for them.

For those survivors, this bill provides an opportunity for redress and for support in recognition of how society and our institutions failed them as children. These institutions are responsible and they have an obligation to pay, while we, state and federal parliamentarians, have an obligation to put in place fair and just provisions for redress.

Too often, victims do not get fair access to redress. In some cases, the institution has disappeared. In some cases, it does not have sufficient resources, and in others, the institutions have tried every legal trick in the book over many years to avoid their responsibility. For a brave few, the legal system provided some justice, but the extreme cost, delay and anxiety of traditional civil legal proceedings has meant that many victims cannot get access to justice. We need a fair statutory scheme that will not expose victims to the uncertainty and cost of civil litigation. Some survivors may choose litigation, but this bill provides an alternative and the Greens are pleased to support it.

However, that is not to say that the National Redress Scheme is without its own problems. Some of the harshest critics have been the lawyers who have represented victims in legal proceedings. A couple of weeks ago, lawyer Dr Judy Courtin described the scheme as 'one that retraumatises many victims and is a shamefully adulterated version of what was recommended by our royal commission.'

She points out, firstly, the royal commission recommended a cap of $200,000 compensation. However, this bill only delivers $150,000. Secondly, the scheme also fails to deal with situations where a person was abused in multiple different institutions, which effectively lets some institutions have to pay only a fraction of the compensation that they would if they were the sole cause of the abuse, regardless of its severity or impact. Thirdly, the so-called matrix, which will be used to determine compensation, also varies from the principles recommended by the royal commission and will result in many victims being ineligible for the maximum compensation, despite being able to show horrendous abuse often over many years. Dr Judy Courtin concludes by saying:

The national redress scheme in its current form is unjust and damaging. To once again favour the assets of wealthy institutions over and above the welfare of victims of child sex crimes, is regressive and profoundly troubling.

When this legislation passed through the New South Wales parliament earlier this year, my Greens colleague barrister David Shoebridge raised a number of other issues of concern that should be addressed. He referred to a number of exemptions that have been included in the scheme which will deny certain claimants from being able to access compensation. For example, victims of child sexual abuse who go on to commit other crimes themselves can be ineligible. He told the New South Wales parliament:

It’s a tragic fact that almost a quarter of the victims and survivors of abuse who approached the royal commission had come into contact with the criminal justice system due to the impact of their abuse.

The reason this exemption is unfair and harsh is that what too often happens in the life cycle of a victim of child sexual abuse is that their lives spiral out of control. That can mean addiction and serious mental health problems. They can be caught up in the criminal justice system and do serious time in gaol. A serious drug offence or a violent offence due to their mental health or addiction issues could lead them to receiving a sentence significantly greater than five years. These victims are expressly excluded from the scheme. I would submit that such automatic exclusion, regardless of individual circumstances, is unfair.

As I said at the outset, this bill and the Redress Scheme that it puts in place is long overdue. The Greens will be supporting the bill, and I would urge the Attorney-General and the government to seek further reforms over coming months and years to make it fairer for all victims and survivors of institutional child sexual abuse.

The Hon. C. BONAROS (16:44): I rise to speak in support of the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018. A significant milestone was achieved for thousands of admirable Australians on 19 June 2018 when the federal parliament passed the National Redress Scheme bill. Two days later, it was enshrined in law. The bill before us, as we have heard, provides the necessary legislative support from the South Australian parliament to enable the state to formally join the National Redress Scheme.

Due to the limits of the legislative powers under the Commonwealth Constitution, the passing of this bill is necessary in order for the relevant commonwealth legislation to be adopted and for the scheme to become operational in South Australia. New South Wales and Victoria have already passed their versions of referral legislation some time ago. Indeed, 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 its legislation on 8 May, which passed the Victorian parliament on 6 June.

On 28 May, the South Australian Attorney-General, the Hon. Vickie Chapman, announced that the South Australian government would sign up to the National Redress Scheme. SA-Best openly welcomed the decision at the time and looked forward to the introduction of the bill before us in a timely fashion. My colleague the Hon. Frank Pangallo wrote to the Attorney on 4 July, urging the introduction of the bill before us as a matter of urgency so that it could pass both houses prior to the winter recess. Regrettably, that did not occur.

We saw with the passage of the Sentencing (Release on Licence) Amendment Bill just how quickly legislation can be drafted and introduced when the need arises. In our view, the survivors of sexual abuse in an institutionalised setting in South Australia should not have to contend with unnecessary delays. We know those delays only serve to prolong the suffering of abuse survivors, who have already suffered enough, which will impact their wellbeing. The delay in the introduction of the bill is not the only delay affecting abuse survivors, which I will turn to shortly.

My colleague the Hon. Frank Pangallo and I have now spoken on several occasions in this chamber on various aspects of the Royal Commission into Institutional Responses to Child Sexual Abuse's findings and, indeed, the scheme itself. We have met with many survivors of sexual and physical abuse in institutions, and we will continue to advocate strongly for them into the future. I mention again CLAN and the work of Leonie in all that she does in advocating for sexual abuse victims and in the very thorough advice that she has provided to us over recent months in relation to this issue.

The sexual abuse of children is the most heinous of crimes. It is the greatest of sins yet, in many institutions, whether they be our orphanages, children's homes, churches, children's recreational groups or foster care, systematic sexual and physical abuse of children that spanned decades was allowed to continue in silence and was covered up by those who sought to hide their unspeakable crimes. I know I have said that in this place several times, but I think that, given the nature of that offending, it is worth repeating so that we do not forget what has happened in the past and what has led us to this point today.

We are indebted to the commissioners of the royal commission—the Hon. Justice Peter McClellan AM, the chair; the Hon. Justice Jennifer Coate; commissioner Bob Atkinson AO APM; commissioner Robert Fitzgerald AM; commissioner Helen Milroy; and commissioner Andrew Murray—for their diligence, their humility, their dignity and their commitment in undertaking the arduous, far-reaching, heart-wrenching work of the royal commission.

Most of all, we are indebted to the thousands of abuse survivors who were unflinching in sharing deeply personal accounts of sexual abuse. The royal commission listened to thousands of hours of private and public testimonies as survivors mapped the horror of sexual abuse, something that I am sure I would never have been able to do. The commissioners understood the searing trauma caused by the abuse, and survivors felt supported, comforted and believed in sharing their stories.

They have all left us with an incredibly powerful legacy. It is then incumbent upon us to honour that legacy. The National Redress Scheme is an attempt to do that by providing survivors with three elements of redress, comprising a monetary payment of up to $150,000, access to counselling and psychological services, and a personal response from the responsible institutions, where appropriate.

There are a number of concerns with the scheme. My colleague, the Hon. Frank Pangallo, referred to some of them when he spoke to his motion urging the government to work with the commonwealth and other states to strengthen the scheme. Other honourable members have mentioned some of those today, and I just wish to elaborate on a few of them now.

We know the scheme will operate for a period of 10 years, and while the Catholic Church, the Anglican Church, Scouts Australia, the Salvation Army and the YMCA all agreed in May this year to opt into the scheme, only the YMCA has so far been declared a non-government institution for the purposes of the scheme. It is unclear why the other named institutions are yet to be declared non-government institutions despite their announcement to opt in almost four months ago, and I will raise some questions about this during the committee stage of the bill in time to come.

These institutions bring coverage of the scheme to around 80 per cent of survivors, yet the delays in declaring the Salvation Army, Scouts Australia, the Catholic Church and the Anglican Church as participating institutions mean that survivors of sexual abuse in these institutions cannot have their claims progressed until that declaration occurs. On 4 June this year, the Uniting Church announced it would also opt into the National Redress Scheme, but that body has also yet to be a declared institution. SA-Best urges the yet to be declared institutions to work proactively and expeditiously with the federal government so that the survivors' claims can be progressed and they can achieve closure and continue their journey of healing.

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 payment that were recommended by the royal commission. The $150,000 cap is supported in the states and territories. A 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 SA Attorney-General, in her summing up, explained that she is 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

It is regrettable that the recommendation of the royal commission for a $200,000 cap and $10,000 minimum was disregarded to appease the very institutions responsible for the abuse. The effectiveness of the scheme relies on adequate redress to acknowledge the significance of the abuse from the perspective of survivors. In addition to the lower cap, the assessment framework to determine the amount of redress makes it difficult for survivors to receive the maximum amount possible.

If a survivor was exposed to sexual abuse, the most they could receive under the scheme is $20,000, spread evenly across four subcategories. If a survivor was sexually touched but not penetrated, the most they could receive under the scheme is $50,000 divided as follows: $30,000 for recognition of sexual abuse; $10,000 for recognition of the impact of sexual abuse; $5,000 for related non-sexual abuse; and $5,000 for recognition that the survivor was institutionally vulnerable, for example, in an orphanage. A survivor would need to tick all these categories to obtain the full amount for this category of specific abuse they suffered.

If a survivor was sexually penetrated, the most they could receive under the scheme is $150,000, divided as follows: $70,000 for the recognition of sexual abuse; $20,000 for recognition of the impact of sexual abuse; $5,000 for related non-sexual abuse; $5,000 for recognition that the survivor was institutionally vulnerable; and $50,000 in recognition of extreme circumstances of sexual abuse. Extreme circumstances of sexual abuse are defined as involving penetrative abuse and taking into account whether the survivor was institutionally vulnerable, and whether there was also related non-sexual abuse of the survivor.

In my view, the threshold is too high and too narrowly construed for many abuse survivors in this category to obtain the full amount possible. It is also worth noting that a survivor can only make one application for redress, regardless of how many times they were sexually abused in the one institution. I also note that once the National Redress Scheme is fully operational, the Mullighan ex gratia payment scheme will cease, and 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 is 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 again having to relive the trauma before the courts, and also risks undermining the purpose of the scheme. Inadequate redress is likely to place survivors in a difficult position after receiving legal advice that their claim could be worth more, of still accepting an offer of redress to spare themselves the pain and torment of having to relive their trauma once again through the courts.

On the issue of legal advice, knowmore, the free legal advice scheme that operated alongside the duration of the royal commission, will continue to provide legal advice to survivors about their claims throughout the life of the scheme. Each institution will be required to make a $1,000 contribution in relation to every eligible application which contributes to the cost of the funding grant to knowmore, with the federal government funding the balance. Knowmore has offices in Sydney and Melbourne only, while legal advice for South Australian abuse survivors is provided by phone in the majority of cases.

Given the vulnerability of survivors and the significant relationship that exists between a lawyer and their client, I cannot stress enough the importance of face-to-face communication with survivors. SA-Best understands that there will be approximately 3,000 applications in South Australia, split evenly between state and non-government institutions. That is 3,000 applications that are not going to be considered on a face-to-face basis, but rather, at least in the interim, by phone—substantial and damning figures in anyone's language, those 3,000 applications.

On this point, the Attorney has said that knowmore has advised that, if a clearer picture of client demand emerges over the next year, it will consider establishing an office in South Australia or, at the very least, a visited office in the 2019-20 financial year. SA-Best will continue to monitor the situation closely as more about the demand is learnt over the coming months. We would all agree that counselling is of paramount importance for survivors, many of whom have kept 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. Make no mistake, the trauma is lifelong. I have spoken to many courageous survivors; you just do not get over this sort of abuse. It is then disappointing that the counselling provided as part of the National Redress Scheme is limited, and not what was recommended by the royal commission.

If a survivor was exposed to sexual abuse, they are entitled to $1,250 of counselling and psychological services. A survivor who was sexually touched will receive $2,500, and a survivor who was sexually penetrated will receive $5,000 in counselling and psychological services. On this point, the Attorney-General has said that the scope of counselling available under the scheme represents the position arrived at by all jurisdictions to again ensure maximum participation by institutions into the scheme. Sadly, that position does not acknowledge the mental anguish and the trauma that survivors must endure as they attempt to deal with sexual abuse they suffered in childhood.

Trauma is experienced by people differently and abuse has lifelong consequences. We know that. It strikes me that the $5,000 ceiling for the most heinous cases of sexual abuse will almost certainly be inadequate to cover necessary counselling over a prolonged period. The Attorney-General has suggested that survivors can access low-cost or free mental health service via the Medicare Better Access programs. I am sure that many survivors who will require counselling would prefer to continue a relationship with a counsellor or psychologist with whom they feel secure.

The way previous payments of redress via other schemes are indexed is also very important to survivors applying for redress under the National Redress Scheme. 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.

Care Leavers Australasia Network (CLAN), a national independent body that represents, supports and advocates for people who were raised in Australian and New Zealand orphanages, children's homes and foster care, has campaigned tirelessly, as I have said before, for indexation to be taken out of the Redress Scheme, because past payments were usually small and consumed by legal fees. We, SA-Best, strongly believe that previous payments should not be indexed.

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 that has long since closed its doors. This includes places such as Colebrook Home, a horrific South Australian mission that 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, there were about 350 children who passed through Colebrook home, which 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 have no direct involvement with the survivor claiming redress or the defunct institution. Failure to do so only creates a class of survivor who misses out on redress, merely because the abuse occurred in an independent institution that is now relegated to history. Survivors caught up by this provision should not miss out.

During the course of the debate, I will be asking the Treasurer questions about how many defunct institutions there are in South Australia where there was no government involvement, and therefore will be exempt from the scheme due to this provision. The scheme also treats survivors with a criminal history, as the Hon. Mark Parnell has pointed out, differently from others. We know from the royal commission's 2015 report on redress and civil litigation that its primary recommendations were that any process for redress must, and I quote:

…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 the 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 commission, 19 per cent of the nearly 9,000 clients it assisted were in prison or other places of detention. We accept that this is an exceptionally difficult area, and it is comforting to know that the Attorney-General has said that she will give consideration to exceptional circumstances.

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 certainly not in line with the view of the royal commission; providing a blanket exclusion for children who fall within the provision is contrary to the requirement to ensure the best interests of the child, especially in relation to vulnerable children. That will mean some of the child victims of Shannon McCoole, one of the worst and most sickening predators imaginable, will be unable to apply for redress under the scheme we are accepting here today.

We know that Shannon McCoole, the scum-of-the-earth paedophile that he is, was sentenced in 2015 to 35 years in gaol with a 28-year non-parole period for his devious and brutal sexual abuse of seven 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 are enough to sicken all of us, I think.

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 were systematically hushed up. His heinous crimes sparked our own royal commission into the state's child protection system, the final report of which makes a harrowing reading. We have put the question to the Minister for Child Protection about what process for redress will be in place for McCoole's victims, and we wait for her reply.

While the legislation passed in federal parliament is most welcome it is imperfect, and it is important to put on the record the outstanding issues with the National Redress Scheme. Over the course of the royal commission some 57 public hearings were held 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 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 would be eligible to apply for redress.

The enormity and scale of the abuse is absolutely crushing. 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 of our society, from priests to scout leaders to 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, and 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 national apology to the survivors of institutionalised sexual abuse on 22 October, which will now be delivered by Prime Minister Morrison, to acknowledge the crimes 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. Many institutions are still grappling with how this will be achieved. All have said they are deeply sorry, but repentance is one thing and change is another. With those words, I support the second reading of the bill.

The Hon. J.A. DARLEY (17:08): I rise in support of this bill. Last year the royal commission into institutional child sexual abuse handed down its final report following a five year inquiry. The commission recommended that redress be made to victims of child sexual abuse, and the commonwealth government established the National Redress Scheme in response. I commend the Marshall government for signing up to the National Redress Scheme, as I understand the former government was unwilling to do so.

A person who has suffered sexual abuse at the hands of participating organisations will be able to make a claim through the National Redress Scheme. Their claim is then independently assessed for monetary compensation, access to counselling and psychological services and a response from the offending organisation, if a response is requested by the victim.

It was recognised that the civil process for victims of child sex abuse to receive compensation was arduous and often revictimising. It is hoped that by having the National Redress Scheme it will provide a better mechanism for victims to not only receive monetary compensation but also to receive access to counselling services and receive a response from the offending institution about the abuse. It can often take a long time for people to disclose their childhood abuse and often people do not feel that they can take on big institutions such as the church or the government. As a result, they simply do not try. It is hoped that the National Redress Scheme will assist with this.

I understand there is no scope to amend any of the details of the scheme as it is a national scheme established by the federal government. However, I would like to put on the record that I am concerned that the scheme will only run for 10 years. Whilst awareness of abuse has increased, it is still occurring in the community. It was only three years ago that Shannon McCoole was sentenced to 35 years in gaol for sexually abusing babies and young children in state care. If his victims take the average 20 years to disclose, they will miss out on the scheme. I understand that the government may be making other arrangements for those specific victims, but it seems short-sighted to close off the scheme for other victims.

Similarly, I am concerned that there is a monetary cap on access to psychological services. Given the long-term effect this sort of abuse has on a person, it also seems very short-sighted to put a cap on psychological and counselling services. Ideally this would be expanded so that victims can receive the support they need without having to fear that the clock is ticking and the money will dry up. Whilst I acknowledge that there is nothing that can be done to take back the hurt and harm caused to children who were abused when they should have been kept safe, I hope the National Redress Scheme will go a little way towards assisting in the healing.

My heart truly goes out to all victims, and I pay tribute to those brave individuals who have had the courage to fight and speak up about the abuse they suffered. I know there are probably many more who have been unable to have the same strength and I truly hope that the National Redress Scheme will help in some way for the pain and suffering victims have experienced.

The Hon. R.I. LUCAS (Treasurer) (17:12): I thank the honourable members on behalf of the government in this place for their contributions on this important piece of legislation. I also thank the Attorney-General's office and department for the extensive work they have done on providing briefings to the other members in this place and answers to an array of questions. 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, 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 was 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 government is incredibly pleased to be able to deliver this option for compensation to survivors of abuse in institutional settings. This carries on the work of the government in broadening the Limitation of Actions Act.

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. This is a huge achievement and shows the support of not only government institutions but non-government, too, and their important role in redress.

This bill, as drafted, is legally mechanistic in its intent and effect. The bill does not establish or describe the National Redress Scheme; that has all been done by the commonwealth parliament via federal legislation. Some may prefer that the National Redress Scheme, as established by the commonwealth, operated differently. However, that will only be achieved by convincing the commonwealth and the other states and territories to agree to amend the commonwealth act.

This bill provides the necessary legislative support from the South Australian parliament to secure the comprehensive application to the scheme in this 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. The Attorney-General has made a commitment that she would raise issues brought up in parliament to the next ministers' meeting on the scheme to ensure that these are flagged with other states. I am sure that she will continue to update those members interested about this process as it continues.

In conclusion, I will add one other comment. In the budget that has just been announced, this government is incredibly proud of the fact that one of its key commitments was to quarantine and lock away $146 million in the estimated compensation liability for this National Redress Scheme. As Treasurer, one of the early questions I asked of Treasury officers was, 'How much money had the former government quarantined or locked away in terms of the forward estimates for compensation under the National Redress Scheme?' I was disappointed to receive the response that there had been no allocation at all made for compensation payments in the scheme.

On behalf of the government, I am proud of the fact that one of the key decisions in this budget is to lock away, to quarantine, so that no government is going to be able to get at it for purposes other than for which it is designed, $146 million in terms of the estimated liabilities under the scheme. It is quarantined within SAicorp, within SAFA, within Treasury and it will be available for the compensation payments over the coming period. With that, I thank all honourable members for their contribution to the bill and for their support of the second reading.

Bill read a second time.

Committee Stage

Clause 1.

The CHAIR: As I understand it from the second reading, there are honourable members who wish to make contributions at clause 1. Am I correct?

The Hon. K.J. MAHER: I have some questions, and I think a few of us will have a number of questions about the operation of the scheme at clause 1. There may be some questions, maybe the first one in particular, that have to be taken on notice. My first question is in regard to consultation on this bill. I know it is a national scheme but in South Australia who was consulted with about the scheme and its operation in South Australia? Do you have copies of those submissions, and is it possible to table those submissions or provide an overview of what those submissions were?

The Hon. R.I. LUCAS: I am advised—and the leader may well have greater knowledge than I, because a lot of this work was being done by the former government—that the original federal legislation, which was October 2017-ish, was drafted by the federal government, and the consultation process that they undertook I guess is their responsibility. In relation to the state-based referral legislation, the first of the states to undertake that was New South Wales in around about May-ish, and around about that time the commonwealth government then further amended its legislation in the federal parliament.

My advice is that the referral legislation of the type that we have here, and in the other states, was essentially drafted by a committee of parliamentary counsel (whatever a gaggle of parliamentary counsel are called), and they worked together and did not undertake, to our knowledge, any formal consultation period. The federal legislation went through the two stages that we talked about, and state parliamentary counsel, I guess working from that template, worked together collaboratively to develop this type of legislation for each of the states to adopt.

I am further advised that the federal legislation went through two Senate committee processes. The member would be aware of the process for Senate committees: they would have taken submissions, I would assume—I have no direct knowledge. I am advised yes. There were two Senate committee processes; they took submissions at the national level in relation to the October 2017 first version and then the May 2018 second version.

The Hon. K.J. MAHER: I thank the minister for his answer. I have a few questions, and I might just outline the topics they are on, because I am sure other members will want either to jump in on these topics or on others. I will ask quick questions on the six months to accept any payment, the indexation of payments, whether prisoners or those convicted of an offence are being paid, counselling services, legal advice, those who are excluded, and the cap and cost of the scheme.

With regard to six months to accept, as I understand the operation of the scheme, once an applicant is made an offer, after it has been assessed, that applicant has six months to make a decision on whether or not to accept the offer. I think the Attorney-General in the other place said that that period could be extended. What is the mechanism for potentially extending the period of six months to accept an offer, and under what circumstances would such an extension be considered?

The Hon. R.I. LUCAS: My advice is that the applicant would have to make an application to the scheme operator, which is a federal physician, and there is no limitation, on my advice; that is at the complete discretion of the scheme operator in terms of the reasons for an extension.

The Hon. K.J. MAHER: In terms of indexation of payments, as I understand it previous payments that a survivor may have received will be indexed from when that previous payment occurred to today's date. Is there a mechanism to waive the indexation of that prior pavement?

The Hon. R.I. LUCAS: I am advised no.

The Hon. K.J. MAHER: In relation to applications from those who are currently incarcerated, or those who have been incarcerated for an offence for longer than five years, under what circumstances would the state consider making application to the scheme operator, as I understand the state can do, to consider special circumstances for such survivors?

The Hon. R.I. LUCAS: My advice is that in the circumstances that the honourable member outlines it would be up to the incarcerated person to make the application. The state would not lodge, and has no intention of lodging, applications on behalf of others.

The Hon. K.J. MAHER: I understand that. It was my understanding from the briefings we received that the state could provide advice or a submission on a particular applicant. It would be, as I understood it—

The Hon. R.I. LUCAS: To provide advice or to make the application?

The Hon. K.J. MAHER: No, not make the application; the survivor would make the application themselves to the scheme operator, which is the commonwealth, but the state could put in a submission in relation to that particular application. I am wondering if that is correct or not. If so, under what circumstances would the state provide that further information or support or otherwise for an applicant?

The Hon. R.I. LUCAS: My advice is—and if on subsequent checking it is anything different we can clarify it by way of written correspondence to the member—once a scheme operator has received an application from an incarcerated person in the circumstances the member has talked about, the scheme operator at their discretion could seek advice from an Attorney-General in a particular state in relation to that particular application. But as I said, if there is any further information I can provide on reflection, I will have the Attorney-General correspond with the honourable member in relation to that.

The Hon. K.J. MAHER: I have one final question in relation to this. I know I have had a bit of time, so I will hand it over to others to ask some more questions. In the case where the scheme operator uses that discretion to seek the advice or submissions from the state Attorney-General in South Australia, does the state have any notion of whether there are any particular offences which would rule someone out in the state's mind, or are they open to supporting anyone, regardless of the offence for which they have been convicted or currently serving?

The Hon. R.I. LUCAS: I am advised that when this was put to the Attorney-General she gave a very sensible response, and that was that these sorts of issues would have to be addressed on a case-by-case basis. Not that she said this, but I would imagine the thinking would be you would need to assess it on a case-by-case basis. It is very difficult at this particular stage to contemplate all the sets of circumstances that might arise in the future and lay down a set of rules against which an Attorney-General might be judged in the future in terms of commitments that have been given.

So there is flexibility there. The scheme operator might come back and seek a view. On a case-by-case basis I think the Attorney-General of the day—and let's bear in mind that it might just be this Attorney-General; it may well might be future attorneys-general—would have to consider each of those on a case-by-case basis.

The Hon. C. BONAROS: Can I just confirm for the record that survivors who choose to use their own legal representatives will not have their legal fees covered under the scheme? That is, unless they go through no more, their legal fees will not be covered by the scheme. Has the government given consideration at all to any mechanism by which this could be overcome to ensure that, particularly given that no more—

The Hon. R.I. LUCAS: Can we confirm the first one first? I think the understanding that the honourable member has put on the record is correct, and that is that there will be free legal services provided through knowmore, I am told. If an individual chooses to use their own legal advice and not use the free legal service, that would be at their cost.

In presuming the next question that the honourable member started on, I am told that our understanding is—but, ultimately, this is a decision—that there may well be private legal operators or firms who are looking at what alternatives or options might be able to be offered in the circumstances the member raises. If the member has a more specific question, I am happy to take advice on that.

The Hon. C. BONAROS: In terms of that point, is there any mechanism by which the government can give consideration to providing funding for that legal advice as opposed to having to go through knowmore?

The Hon. R.I. LUCAS: My advice is no. The arrangements are such that everything is being organised through knowmore. If someone chooses not to use that, that is essentially a decision they will have to take. If a private legal firm or group of firms, whatever it is, wanted to come to some other arrangement, that would have to be between them and the applicant who did not want to use the free legal service. There is nothing that the scheme or the state government is contemplating that would provide assistance for people who do not want to use the free legal service.

The Hon. C. BONAROS: I have some questions around the declared institutions. I mentioned earlier that YMCA is the only non-government institution for the purposes of the scheme. Do we know the expected time frame for being declared for the other non-government institutions who have agreed to sign up to the scheme?

The Hon. R.I. LUCAS: My advice is that all those other institutions are in current discussions with the federal government in relation to becoming declared. I think that the honourable member would know better than I. Evidently, there are some complicated legal issues in relation to some of these institutions, not just from their viewpoint but from the federal government's viewpoint, in terms of how they structure their arrangements. In some cases, it may necessitate the establishment of a single new legal entity.

The federal government would have a preference not to have to enter into agreements with every constituent part of some of these institutions to which the honourable member has referred. I am advised that there are some complicated legal discussions going on about trying to reach the agreement. The discussions are ongoing. We are not privy to the detail of those discussions, but we are advised that they are ongoing, and the intention is, obviously, to have them declared as soon as those discussions are concluded.

The Hon. I. PNEVMATIKOS: I just want to touch on a few issues. First of all, if I can raise the issue of counselling. Certainly, in the royal commission recommendations, there was a recommendation for lifetime counselling, basically, if there was a need for it. The provisions in terms of the commonwealth legislation fall short of that. Is the state government intending to fill that gap or address that issue in terms of the shortfall for at least victims of abuse in this state, so that they have an entitlement to ongoing, if required, lifetime counselling?

The Hon. R.I. LUCAS: My advice is that this government has made no decision in relation to anything beyond the terms of the scheme. It will be completely within the prerogative, I guess, of some alternative government or future government to give a commitment to ongoing counselling for the lifetime of victims, if an alternative government wished to do so. In terms of the current arrangements this government has entered into, the current structure and framework of the arrangements have been outlined in the federal legislation and this particular scheme, and that doesn't involve any commitment to lifetime counselling.

The Hon. I. PNEVMATIKOS: In that regard then, if we acknowledge that this legislation offers minimum standards, I suppose particularly in the case of the interests of South Australians, indexation works against those interests. Is the state government mindful to consider the anomalies created by indexation, as proposed in this commonwealth legislation, to redress that for South Australian victims, because there are a number of South Australian victims who will get nothing from this redress scheme as it is proposed?

The Hon. R.I. LUCAS: My advice is very similar to some of the others; that is, the state government's position is in terms of the shape and structure of the scheme that we have before us. As per the member's other question in relation to whether we are going to do something beyond in terms of lifetime counselling, in relation to any alteration to indexation from the scheme, the government's policy is to sign up to the scheme as it has been agreed and structured with the commonwealth and with the state. If the member has criticisms of that, then there is nothing that the state government is committing to beyond the shape and structure of the scheme that we have before us this afternoon.

The Hon. C. BONAROS: Can I ask some questions about the modelling that has been used by the state government and the federal government. Do we know what modelling has been done in terms of survivors receiving the full $150,000 maximum available amount under the scheme?

The Hon. R.I. LUCAS: Modelling as in how many?

The Hon. C. BONAROS: Any modelling that has been done in terms of how many will receive that full amount.

The Hon. R.I. LUCAS: My advice is that there has been modelling done by the commonwealth government, but that that remains confidential. It has not been released.

The Hon. C. BONAROS: I think the advice that we have had from the former minister for social services publicly on the record is that it is expected that the average claim or payout will be around $76,000. These are public comments that have been made, so I am assuming then we do not know anything about that modelling either or how those figures have been come to?

The Hon. R.I. LUCAS: Again, our advice is that that is the commonwealth estimate and it is consistent with the modelling that evidently they have undertaken.

The Hon. I. PNEVMATIKOS: I just wanted to clarify, exactly how does this scheme protect the interests of South Australian citizens?

The Hon. R.I. LUCAS: I think it is probably self evident in the second reading explanation and the discussion. It provides a non-litigation access to compensation for victims of child sexual abuse, in the nature of the whole debate that there has been in the House of Assembly and in the second reading in this particular chamber.

As the Attorney-General has indicated, yes there have been some who are critical of the scheme not going far enough, but this has been the end result of commonwealth and state governments, Liberal and Labor, coming to an agreement in relation to providing what governments believe to be fair and reasonable compensation, that ultimately the taxpayers of South Australia and all the other states and the commonwealth will have to contribute in terms of funding the particular scheme. In our case, it was a question of finding $146 million in this budget to quarantine for the payments.

The Hon. I. PNEVMATIKOS: Have you considered how many individuals will be ineligible to claim, even though on the face of it they are victims of institutional abuse?

The Hon. R.I. LUCAS: No, I am sorry. I cannot help the honourable member in relation to an estimate in relation to her question.

The Hon. K.J. MAHER: Going back to a topic that was covered a little while ago: the provision for legal services for applicants to decide whether or not to accept an offer that is made. I think the honourable member indicated that there is no intention to allow a person to use their own legal representative and have that funded as part of this scheme or, indeed, in any other way by the government. Knowmore is the legal service that is available to survivors of abuse. My two questions are: is there a limit on the amount of legal service knowmore can provide to a particular applicant? Secondly, will knowmore establish any physical presence in South Australia?

The Hon. R.I. LUCAS: My advice in terms of the member's first question is that there is no limit. In relation to whether there will be a knowmore physical presence in South Australia, my advice is that in the first period for the first year, they will conduct an outreach service into South Australia. During that particular period they will try to make an assessment of the level of demand for their services in South Australia. Based on that assessment, if it is obviously above some level in terms of their assessment, they will look at the possibility of establishing an office in the 2019-20 financial year.

The Hon. K.J. MAHER: I have a couple of questions about the use of the Victims of Crime Fund as the mechanism for payment for this particular scheme, and it is probably more so as the Treasurer rather than representing the Attorney-General. What is the mechanism? Is money paid out of the Victims of Crime Fund—that is, it is one of its statutory purposes to pay for victims in this scheme and it comes directly out of the Victims of Crime Fund—or is it moved out of the Victims of Crime Fund into another fund and then paid?

The Hon. R.I. LUCAS: It is closer to the latter. Essentially, through the various mechanisms, funding goes into the Victims of Crime Fund, and there is funding available in the Victims of Crime Fund. Legal advice from the Crown was sought in relation to whether this was clearly a possible purpose or usage of the funding.

Clearly the advice was self evident that it was, and so the funding is going to be transferred to a separate fund within SAicorp, which is the state government's insurance arm. SAicorp is a constituent part of SAFA (South Australian Government Financing Authority), which is within Treasury, so it will sit quarantined in that account within SAicorp. SAicorp has a number of separate insurance accounts for various purposes. This will just be another quarantined, designated account available for the payment out of SAicorp.

The Hon. K.J. MAHER: So I assume for payment out of the Victims of Crime fund, whether it be for this purpose or any other purpose, there does not have to be a perpetrator or criminal who has a conviction recorded against them for a victim to be paid?

The Hon. R.I. LUCAS: I would have to take advice for the leader in relation to the mechanism. The Victims of Crime fund is answerable to the Attorney-General and there is a well-established process or procedure in terms of payments out of that fund, but I would need to take advice on that. I am happy to do so for the honourable member. In relation to this particular issue, there will be a transfer of funding from the Victims of Crime Fund, on which legal advice has provided that it is an appropriate use of those funds, into this quarantined fund.

The Hon. K.J. MAHER: Am I correct in taking it as $146 million has been either quarantined or transferred out of the Victims of Crime Fund in the last financial year; that is, the 2017-18 financial year. Is that correct?

The Hon. R.I. LUCAS: Yes, the government announced that and, I think, made it explicit in the budget papers on 4 September—I can't remember the exact date, but soon after, we established the fact that there was no funding set aside. Cabinet took the decision in relation to this overall scheme and compensation, and as Treasurer and the government we took the decision to quarantine the funding in the financial year 2017-18.

The Hon. K.J. MAHER: How much does that leave in the balance of the Victims of Crime Fund, and is the Treasurer able to indicate how much the Victims of Crime Fund raises and pays out each year?

The Hon. R.I. LUCAS: Well, I cannot put that on the record at the moment, but I am happy to take that advice. I think the Victims of Crime Fund was estimated to be growing to something like $300 million to $400 million by the end of the forward estimates period, so it was a significant sum of money. I am not sure exactly what it was at each stage, but the recent history and the forward estimates were estimating that the revenue going into the Victims of Crime Fund was significantly greater than the payments out of the Victims of Crime Fund. It has been for a number of years and that has meant that the balances have grown. The forward estimates were, I think, for a continuation of that particular situation.

The Hon. C. BONAROS: Just in relation to part 2 of the scheme, which deals with the categories of abuse and the amounts that are paid—there are three types of abuse outlined there: penetrative abuse, contact abuse and exposure abuse. Under each of those, there are several other columns as well. Do we know how those columns were actually arrived at?

The Hon. R.I. LUCAS: My advice in relation to part 2 of the document, to which the honourable member referred, is that there was consultation between officers of the commonwealth and the states. The federal government also had an independent advisory council, which did include some representation from survivor groups. So the structure seems to have been an independent advisory council with some representation from survivor groups—and, I assume, others—as well as officers at the commonwealth level and the various state levels working together in relation to the shape and structure of this part 2 of the document, the details of the scheme.

The Hon. C. BONAROS: I have a couple more questions in relation to that same part of the bill. Is there a sliding scale in relation to each category? For instance, if you can demonstrate that you were a victim of extreme abuse do you get the full $50,000 or can a decision be made to give you a proportion of that $50,000?

The Hon. R.I. LUCAS: I am advised that it is not a sliding scale; it is stepped in terms of its assessment.

The Hon. C. BONAROS: In relation to that, column 6 is the one I mentioned in my second reading that deals with extreme circumstances of sexual abuse. During the briefing I think we had talked about the fact that there are minimum payments of $5,000 but they are most likely to be around $10,000 with maximum payments of $150,000. However, the payment in column 6 is only payable if you can tick off columns 1, 2, 3, 4 and 5 in relation to penetrative abuse. That means you had to have had penetration along with institutional vulnerability and related nonsexual abuse in order to meet those requirements.

It is actually a very high threshold. I suppose our modelling is confidential, but I am just trying to establish what the likelihood is of actually reaching that threshold, given you would effectively have to tick across every box to even qualify for the additional $50,000.

The Hon. R.I. LUCAS: Because the modelling is confidential we are not able to provide any specific details to some parts of the question but I am advised, as was referred to earlier, that the average payment in this scheme is the $76,000 number to which the honourable member and others have earlier referred to. That gives some sort of sense of the capacity to get to various levels in the scheme if the average payment is going to be $76,000.

The only other advice I can put on the record is that the total cost of the scheme is about $4 billion, I am told, so we are obviously talking about an average payment of $76,000 and a very considerable overall cost. However, in relation to specific numbers of people who might meet that threshold the member is referring to, I am not in a position to provide any informed response.

The Hon. C. BONAROS: I am struggling to understand how we are going to reach $76,000 as an average given that, for instance, penetrative abuse is $70,000 and it is not a sliding scale. The figures are very precise, and I am trying to understand how we have reached that average if we are not going to use sliding scales at all.

The Hon. R.I. LUCAS: I think you have exhausted the level of competence either from me, as the minister, or my adviser in relation to the precise nature of the modelling. All we can share with you is the advice we have received from the federal minister, the government and the advisers as to what the average is. That clearly is dependent on the modelling that has been done. Because that has been kept confidential, we are just not in a position to dig into the details of how they have arrived at it and how they have got to this average number to the level of detail the honourable member is seeking.

The Hon. C. BONAROS: I have a couple of questions in relation to the funder of last resort provisions. We know that will only apply where the government had equal responsibility for the abuse that occurred in the defunct institutions. Do we have any details of the following: how many defunct non-government institutions are likely to have claims arising from survivors of sexual abuse which occurred in those non-government institutions? Which of those defunct non-government organisations in SA will not be supported by the funder of last resort provisions?

The Hon. R.I. LUCAS: My apologies for the delay. That is a very complicated question. My advice at this stage is that we are aware of a small number of defunct institutions but, broadly, we do not know what we do not know. So we are not aware of what else there might be out there in terms of defunct institutions, so I am told. The small number of defunct institutions where this funder of last resort provision might be actioned will require, I am advised, further decisions of the government and the cabinet, and that has not yet been considered by the government and the cabinet in terms of both the processes and the funding.

It would appear that in those cases we would have to clarify whether or not it is covered by the $146 million estimate. At this stage our understanding is that it is possibly not covered by that, but it will then depend on how conservative the estimate of $146 million was as to whether or not in the broad it might cover the additional costs in terms of a funder of last resort provision, if it is agreed by the state governments, assuming other state governments will find themselves in similar positions in relation to funder of last resort provisions. There is obviously further work that is being done and going to have to be done by those who advise the government and then, ultimately, the government in relation to these defunct organisations.

The Hon. C. BONAROS: I think quite clearly there is going to be a bit more work that needs to be done. This might be something we have to take on notice but in terms of those defunct organisations, do we know how many share equal responsibility with the government? There are some that share equal responsibility with the government. Do we know how many of them there are?

The Hon. R.I. LUCAS: I am advised that the simple answer to the question is that we do not know the number of institutions where we have equal responsibility, in the terms of the question that the member has put.

The Hon. C. BONAROS: I am assuming that we do not know, but do we know how many survivors of abuse which occurred in non-government defunct institutions will fail to receive redress? Do we have any estimate in terms of the number that will fail?

The Hon. R.I. LUCAS: I think the honourable member is very perceptive. We do not know the number. We do not have an answer to the honourable member's question.

The Hon. C. BONAROS: I suppose my only follow-on from that is: when will we know? Are we anticipating that we are going to—

The Hon. R.I. LUCAS: My advice is, when we get applications. We will know when we receive applications, and we will then have to make judgements as to whether we have, as a state, equal responsibility. The example that I have been given—I am being guided here—is that if a former government had placed a ward of the state in a now-defunct institution, that would be an example where this equal responsibility criterion would come into play.

There may well be others where equal responsibility comes into play as well, but we do not know what we do not know, so we will have to wait for when there are applications. When there are applications, we will then have to make a judgement as to whether the particular criterion that we are talking about applies to the circumstances of the particular applications

The Hon. C. BONAROS: This is my final question: in relation to that point then, I know at the briefing in response to one of the questions that I asked, we were told that there are not going to be any hard and fast rules around the eligibility criteria regarding responsibility. I am wondering how that fits with determining responsibility basically.

The Hon. R.I. LUCAS: My advice is that there are guidelines which will assist the scheme operator. I cannot see how it would operate without some sort of guidelines. Obviously I was not at the briefing so I cannot assist the member but there may well be some flexibility, but there have to be rules and guidelines in terms of guiding whether there is equal responsibility or not. I am advised that that is the case, so I place that on the record in response to the honourable member's question.

The Hon. K.J. MAHER: To build on the previous questions, we have been talking about the scenario where an institution is defunct and there is little or, in a lot of cases, perhaps no responsibility of the state: the children are placed in, perhaps, a defunct institution at the time by their parents with the state not being involved in any way. My understanding, if the committee can confirm, as we have been discussing, is that it is unlikely that a victim in those circumstances would be eligible. If the institution still exists—that is, it is not defunct but has not signed up as a non-government institution to the scheme—is the victim also ineligible in those circumstances?

The Hon. R.I. LUCAS: I am advised that the honourable member is correct: the institution has to sign up to be part of this particular scheme.

The Hon. K.J. MAHER: I know the minister will not stand for being misrepresented, and he will tell me if I am not recalling accurately, but I think the minister said, in relation to the defunct institution scenario, that the state may consider what it will do; that is, the state could consider running, essentially, a scheme that would allow those people to come into it, whether that is allowing them into the national scheme, or would it be a parallel state scheme?

In both cases—the defunct institution and an institution that has not signed up—the state may decide that it did not want to create, essentially, two classes of victims: one who, through no fault of their own, would not be eligible for any redress, and another class of victim, whether it be through a defunct institution or a non-signatory for a current institution. If the state decided that it wanted those people to get redress (and you could have siblings where one falls in and one falls out), is the state considering setting up a parallel scheme that the state runs, or would there be a special way that the state could top up and pay extra for those survivors to be part of the national scheme?

The Hon. R.I. LUCAS: Putting aside the issue of the organisations that do not sign up, we have no plans, or have not said anything, in relation to setting up parallel alternative schemes in relation to that. In relation to the defunct institutions, about which we have answered a whole series of questions, my advice at this stage is that our current thinking is not establishing a parallel or different scheme, it will be in some way, with the scheme operator, having that defunct organisation, which may well qualify eventually being accepted by the scheme operator in some way into the scheme. Ultimately, whether that increases the estimated costs in an individual state will be an issue on which we will have to take further advice in terms of what that might mean.

The Hon. K.J. MAHER: The second part of that was: will the state be contemplating some way for survivors who were abused in a non-government institution that does not sign up to the scheme?

The Hon. R.I. LUCAS: There is nothing contemplated. At this stage we are saying that the only option there is in relation to civil litigation as it previously existed prior to this national scheme. This national scheme is all about organisations that are signing up to be part of the scheme, together with the states. For those that do not, the pre-existing options remain, but there is no proposal from the state government at this stage—and we are not aware of any other state government either, I assume—for parallel schemes in the circumstances to which the honourable member is referring.

The Hon. C. BONAROS: Just on that—and this might be a silly question—how do defunct organisations actually sign up to the scheme?

The Hon. R.I. LUCAS: The member is quite right: a defunct organisation could not sign up. An applicant who might have been a victim would make an application. The scheme operator would then have to work to see whether or not it was formally associated with another one of the existing participants in the scheme. Was it associated at some level with one of the churches or one of the institutions?

The scheme operator would have to try to work out, within that framework, if there was an existing agreement, whether that defunct organisation can be attached to that. There are no concluded views, as I understand it, in relation to how this difficult area of defunct organisations is going to be handled other than the broad parameters that have been outlined to the member in the briefings.

The Hon. C. BONAROS: We do know, though, from the Mullighan inquiry, all the institutions where abuse occurred were listed as part of the inquiry. So, it would not be impossible, I suppose, to work out from that list which institutions are defunct or not, would it? I know we cannot provide the detail on the modelling and so forth, but we could actually work out which institutions are defunct based even just on the Mullighan inquiry list.

The Hon. R.I. LUCAS: The member is right. My understanding is there might have been a discussion with the member at the briefings that that is a very good starting point in terms of looking at how you might establish the numbers of defunct organisations. So yes, that is useful information in terms of starting that particular process and discussion.

The Hon. K.J. MAHER: Very quickly on the Mullighan scheme, is it the case that the scheme is going to be phased out as this scheme operates? Secondly, after the 10 years of operation of this scheme, will something like the Mullighan scheme be reinstated?

The Hon. R.I. LUCAS: The answer to the first question is yes. The answer to the second question is that it will be up to the government of the day. If the honourable the leader is still around and part of a potentially future government of the day—

The Hon. K.J. MAHER: You might be.

The Hon. R.I. LUCAS: —I won't be—then the government of the day will have to make a judgement as to what might continue or replace this particular scheme.

The Hon. K.J. MAHER: I have a couple of questions that I suspect mainly will be taken on notice, so maybe if I just read them out, the Treasurer may indicate if there is any he is able to or wants to answer right now; otherwise, I will assume they will be taken on notice. One is the current status of legislation in other states. Which ones have either introduced or passed the referral system? Regarding the differences between legislation, are they all the same in terms of the referral system? I understand there are slight differences in other states, but I am happy for those to be taken on notice.

One that might be able be answered now relates to the estimated cost of, I think, $146 million. Does that include the 7.5 per cent administration fee, the costs for legal expenses and the costs for counselling?

The Hon. R.I. LUCAS: In relation to the last question, it is yes, yes and yes. In relation to the first questions, New South Wales and Victoria have passed their legislation. Queensland have introduced but not passed legislation, and that's it.

In relation to whether there are any differences, I am told that there are some very slight variations. New South Wales and Victoria, because the second lot of federal legislation had not passed, could not adopt the federal legislation. They had to have a full referral, whereas in our case, because the federal legislation in around May had passed, we are adopting. I assume that Queensland would be the same because they are also doing this after the passing of the federal legislation. So we understand that there are minor differences like that, but my advice is that there is nothing of significance.

The Hon. K.J. MAHER: I have some questions on other clauses, but I might ask a couple now to get through them. What is the process to amend the National Redress Act? Does it require the concurrence of every single state if someone wanted to amend the national act?

The Hon. R.I. LUCAS: My broad advice is that, obviously, the legislation would have to pass the federal parliament but, in terms of the intergovernmental agreement, there are evidently some broad provisions that require unanimity in terms of the state jurisdictions. In some other cases, it just requires a majority of the jurisdictions. I am not in a position to advise the member of what is in what category.

The Hon. K.J. MAHER: Can South Australia effectively leave the scheme at any time of its own volition if it so chose to?

The Hon. R.I. LUCAS: I think there is an obvious answer: the state parliament could repeal the legislation in South Australia. You would need to take legal advice on what the other mechanisms are in relation to an intergovernmental agreement if you were a member of a future government that wanted to do that, but we do not have any intention. Essentially, you would have to get legislation through the South Australian parliament to repeal the legislation.

The Hon. K.J. MAHER: Finally, in terms of information sharing between the state and the commonwealth, how will privacy of information that is shared between the state and the commonwealth be maintained?

The Hon. R.I. LUCAS: My advice is that there are strict privacy provisions in the federal legislation that govern the confidentiality of information. Obviously, that is available in the federal legislation in terms of those privacy protections.

The Hon. C. BONAROS: Just in relation to the previous question I asked, I mentioned the Mullighan inquiry. We know that some 350 institutions have been listed as either government or non-government or as homes for children with disabilities, for instance. You can take this question on notice. During my second reading contribution, I made mention of Colebrook Home, which is one of the non-government institutions. Can we confirm whether that is one that the government has a shared responsibility for?

The Hon. R.I. LUCAS: My advice is that the way the scheme operates is that you do not have an institution fully designated as a shared responsibility home, for example. It will be on an individual-by-individual case. In the example that I gave the honourable member earlier, if a state ward is placed in a particular home or institution that would clearly be a case of shared responsibility. However, if there is no state responsibility, that is, the state did not place the child within that institution, then it may well be that there is no shared responsibility in relation to that particular child. I am told that the designation of shared responsibility does not apply to the whole institution: it applies to the individual.

The CHAIR: Does any other honourable member have any questions at clause 1? Can I ask honourable members to indicate whether they have any other questions or issues they want to raise with the government throughout the remainder of the bill? I propose to proceed to put clause 1 and then put the remainder of the clauses in one question. Does any honourable member object to that course of action? No-one has indicated any objection, so I am going to proceed as I have indicated.

Clause passed.

Remaining clauses (2 to 13) and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (18:21): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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