Press conference, National Redress Scheme
I just want to start by saying that the work that preceded this announcement has been a joint project. The Prime Minister’s office and department, my office and department and that of the Attorney-General.
I might make particular note that the Attorney-General has been engaged in months and months and months of very detailed discussion, particularly with states and territories, so that we can formulate the best path forward.
Before proceeding to explain the principles that will sit behind the Commonwealth’s scheme that we are announcing today, I just wanted to first of all thank you for your forbearance – I will be giving you as much detail as possible about the scheme. This is obviously our Government’s opportunity to address survivors directly and make sure that they are as well informed as possible. So I thank you for your forbearance.
I wanted to offer one personal observations as well – I spent many long hours prosecuting in a previous career, sexual offenders and doing my best, as a prosecutor for the victims of sexual offences. I also had the experience in a state cabinet of a state-based redress scheme and, in fact, I’d say that my period as a Crown Prosecutor was the single greatest learning experience of my life. Those experiences demonstrated to me, and this is a principle, I think, that the Government has brought to this problem, that a fair, simple and generous process for redress is the most significant thing that we can do for the survivors of sexual abuse in any setting where it may have happened.
The central thing that we are trying to avoid in all of this is to re-traumatise victims who have already been through an enormous amount. On that point I would like to recognise and thank for his attendance the Member for Swan, Steve Irons. He was amongst the first people in Australia to call for a royal commission. He is the patron of CLAN. He has been the, in my observation, the single key support role for victims groups – between the victims’ groups and Government and between victims’ groups and the royal commission.
And of course, in the earliest phase of his life, Steve was a captive to the system that we are now trying to address so many decades later. It may be, at Steve’s discretion ,that he will also have a word to you after I have given you some information about the scheme.
Designing the blueprint for a Commonwealth Redress Scheme, we have exercised every available method and every endeavour to give practical and operational effect to the recommendations of the royal commission. And in those endeavours we have – and will announce today – the design of a redress scheme operated by the Commonwealth that is based on four principles.
The first principle is that the Commonwealth Redress Scheme will not just be about facilitating individual monetary redress payments. Of equal importance to that important thing, which is individualised monetary redress payments, ensuring that the scheme develops and provides emotional, mental and other supports to people who have been survivors of institutional abuse.
So, as well as monetary payments designed to provide some tangible recognition of the hurt and harm that has been suffered by so many Australians, the Commonwealth scheme will also provide for access for survivors to trauma-informed and culturally-adapted counselling over the entire life of the scheme.
It will, thirdly, also allow for something that many redress schemes have not allowed for and that is personal and direct contact, being available if sought, by survivors to responsible institutions. To put that in more detail, it will be open for any survivor – if they wish – to be able to tell directly and in person, a very senior and appropriate individual located in the appropriate organisation, their story and what occurred to them. That will be totally at their wish but that will be available to them.
So part of all of this is going to be a structured and available forum for the victims of sexual abuse to direct and give their stories in a meaningful, individualised way.
The second principle of the Commonwealth Redress Scheme will be that the Commonwealth will continue to do absolutely everything within its power to institute a Commonwealth scheme that has maximum reach to Australian victims, no matter where they suffered abuse.
So that is, we will exercise every endeavour to make the reach of our scheme as broad as possible, with the ultimate point being to try and make the system that will operate across Australia as consistent as possible for each victim, each survivor, no matter where they were located.
Now to give life to this principle and to use the direct language of the Royal Commission report, the Commonwealth will be the operator of a best-practise redress scheme which is open nationally for any state or any territory or any non-Government institution to opt-in to the scheme.
So we will be – and this is the second principle – the operator of an opt-in scheme. Any state, any territory, any church, any charity, who has responsibility in this area will be able to opt-in to the scheme we are announcing today.
Again, consistent with the Royal Commission recommendations, where an entity opts in to the scheme that we are announcing today, whether they be a state or territory or non-Government institution, they opt-in on a basis – and using again the words of the Royal Commission, they would opt-in on a basis that they fund the cost of their own eligible redress claims in accordance with the requirements of the redress scheme operator.
So the short-hand description of that second principle, of an opt to-in scheme where the opting in parties fund the cost of their own eligible redress claims, is a responsible entity-pays scheme. This is an opt-in scheme that is operated on a responsible entity-pays basis, consistent with the recommendations of the Royal Commission.
The third principle on which the scheme will be based is that the Commonwealth, of course, as the operator of this scheme, will require opting in entities, whether they be churches, or charities, or state governments, or territory Governments, to abide by the process and design rules that we, the Commonwealth, will institute. And they will be absolute best practice. The opt-in scheme we are establishing today will represent the absolute best practice scheme in Australia.
Central to being the best practice scheme, I want to give you a little bit of detail about some of the essential elements, design elements of the scheme, and I can describe those generally by saying that the scheme will be a low-hurdle scheme. It will be flexible, it will be as non-legal and as informal as all circumstances will allow.
Redress payments will be exempted from any potential Commonwealth debt recoveries that may be going on, or could in future go on with respect to the individual. Payments will be exempt from any income tests that are relevant to other Government payments. So if there is an income test that’s relevant to a Government welfare payment, the redress amount will be exempt from that assessment.
The application process will be supportive, it will be simple, it will be flexible and as much will be done on the papers as is reasonably possible to avoid that process of re-traumatisation. Of course if people wish to, as people entering into the scheme, offer their stories in an individualised way on the voices, by telling their story, they will of course be able to do that -but we will try and minimise any re-traumatisation.
The scheme – and this is very important – will last for 10 years.
It will start in early 2018 and that 10-year period is not fixed. It will be subject to a review towards the end of the 10-year expected operation so that, if it is obvious at the time – 10 years hence from 2018 – that we have not been able to service all of the people we expected to, there is the possibility of it going longer than 10 years.
The assessment matrix to be designed, by which we will provide a matrix and guidelines to assess the severity of any individual case, is something that will be designed in very close consultation with an advisory committee. I will come to that advisory committee in a moment.
The maximum payment for the scheme will be $150,000. I expect that is a point at which you will have some questions so I will come back to that when we’ve closed this presentation.
Again in design consultation with an advisory committee, we will consider ways in which other payments that may have already been provided by a state or territory or an institution will be considered in determining what amount will be provided under the Commonwealth opt-in scheme.
Consistent again with the Royal Commission, and again in consultation with an advisory committee that we will establish, we will look into the issue that was recommended by the Royal Commission, which is the deeds of release would need to be required from participating individuals.
As a matter of further information to you and, of course, to survivors of institutional abuse who will be listening, no doubt intently to this, whether one state, or a territory, or the Commonwealth, or an institution, be they church or charity or a mix of those bodies is the responsible entity is something that will be determined on the facts on an individual case-by-case basis with respect to every single application.
Finally, where the Commonwealth is the responsible entity, so where there was a situation of shared responsibility between a Government and an institution, say a church or charity, and the Commonwealth was the responsible entity, if the church or charity no longer exists or has no capacity to pay, the Commonwealth will step in and become the funder of last resort with respect to the monetary payment of redress.
The fourth principle is that, as we go forward from here and get into the final and fine detail about things such as the assessment matrix and other matters of principle that I’ve mentioned, we will do that in strict consultation with an independent advisory council. That is yet to be chosen but that is one of the next steps in this process. And that advisory council will be made up of individual survivors and their supporters that we consider can offer the Government the best possible advice as to how the final and fine detail of the scheme can be developed.
So they are the four guiding principles. Before I close and go to questions, I want to do so by noting a legal matter, which is of enormous significance to this scheme that we’ve developed. The Royal Commission recommended what they described as a national scheme. That was a recommendation not just to the Commonwealth, but to all institutions, churches or charities, all state governments and all territories.
We have spent the last several months trying to negotiate to get agreement around a development of a national scheme where everyone opted in, if you like, right here and now. We haven’t been able to achieve that.
So what we have done is devised a system where there is an open system that allows for opt-in from here for any state or territory or any church or any charity, because we think that that offers the real and best opportunity to have the maximum national coverage of what will be a single best practice, consistent scheme operated by the Commonwealth.
But there must be one matter that needs to be understood and this is always a matter of maintaining the correct expectations and that is that – this was an issue not directly addressed at any point by the Royal Commission to date – the Commonwealth cannot compel a state to join this scheme.
We will continue to encourage all states and territories to opt into the scheme as we will with churches and charities, and those discussions and negotiations, I think you could call them, have been ongoing and they have been fruitful. But Commonwealth powers are such that states could not join this scheme, based on the legal advice we have seen, without a referral of power from the individual joining states and we cannot compel that referral of power.
So the unequivocal legal advice is that it is very, very unlikely that we have the power to establish a single scheme by compulsion. That is, it can only be achieved by the cooperative legal action through referral of powers by any individual state. This is the important point I want to make to you, is that it is, pursuant to the advice that we have received, highly likely that we do have power that exists in relation to the Northern Territory and the Australian Capital Territory.
The Commonwealth position is that we will do everything within our power from this point to encourage, on a voluntary basis, the cooperation in an opt-in basis, the joining by states and territories and all other institutions, but in the event that the Northern Territory or the ACT, after proper consultation ultimately declined to opt into this scheme, the Commonwealth is reserving its right to legislate to compel that joining of the scheme.
Now, I just want to note openly and early to you, that as has been previously the case where the Commonwealth has exercised powers over the two territories, that is not a matter that will be without controversy in some quarters, but I want to offer it all to you as clear evidence of how serious the Commonwealth is in engaging in the absolute best efforts to do everything within its power to ensure that the scheme that we have developed, which we consider will be absolute best practise, will be joined by as many states, as many territories and as many non-Government institutions as possible.
So I thank you all for your attention during that, and I’m sorry there was a bit of detail in there, but that is very important, I think, for the sanctity of mind of people who have been waiting for a very long time for an announcement such as this.
Very happy to go to questions now.
You mentioned the Commonwealth can’t compel states or territories to be part of the scheme, have you been notified of any states or territories that don’t want to be part of the scheme?
South Australia has said, from my understanding, that they do not wish to be part of the scheme. There have been a couple of statements from Western Australia which have been one way or the other, so that is unclear. New South Wales and Victoria have yet to announce whether they will have their own schemes or whether they might opt-in to this. And given that those two very large jurisdictions are yet to announce, the consultations and negotiations with them will be intense because our preferred position would obviously be for those larger jurisdictions to come into this scheme and we will be continuing those negotiations.
I can say that these negotiations have been fundamentally conducted by the Attorney-General, George Brandis, but they have also included churches and charitable institutions. And the basic principles of design that I put to you today have been met with very favourable responses from those churches and charitable institutions in terms of the level of enthusiasm that they have got to opt-in to this scheme.
Have any churches or charitable institutions said they won’t be part of the scheme?
I can’t answer that perfectly because those negotiations have been conducted by the Attorney General. But the information I received from the Attorney-General is about from the large churches and charities who have shown enthusiasm, and there are several, and they are large.
Is the Catholic Church on board?
When you say ‘on board’, they are an organisation amongst others who have said that these design principles are conducive to their opting in to the scheme.
So it’s likely?
I can’t say that, because I don’t want to lift expectations to a point before they’re final. But we have taken every effort and care to design these principles to maximise our ability to have an organisation like the Catholic Church opt-in to the scheme.
Obviously we’ll be directing enormous effort into making sure that that happens.
Are you expecting the Catholic Church and other organisations to contribute to the scheme aren’t you though?
Well, this is what the Royal Commission said – is that this responsible entities-pays basis means that, if there’s a single operator to a scheme that covers all or a lot of victims in Australia, than that was always recommended by the Royal Commission to be operated on a basis where the responsible entity takes the essential responsibility for funding the redress payments.
So yes, if a church or an organisation like the Salvation Army opted-in, then on a case by case basis – and this would sometimes be quite complex – we would work through who’s the responsible entity and they would be responsible for the redress payment for the individual where they were the responsible entity.
Where there was mixed responsibility, you might have more than one organisation being responsible for funding the redress payment.
Equally, opting-in bodies would be required to take a proportionate of the share of the administration cost, and the counselling costs and so forth. So that’s quite consistent with the Royal Commission’s recommendations, and again, that’s been discussed at length with the types of bodies that we very much want to encourage into the scheme, and it’s been greeted with enthusiasm.
Do you have an estimate of how much the scheme may cost? Obviously there would be an overall cost – the claims cost, and then what the Commonwealth…
It is very difficult, and this is a preliminary estimate. But we estimate that there is a range of costs to the Commonwealth – so this is for the Commonwealth as a responsible entity to what we estimate might be about 3000 victims in our institutional settings, and that cost could range from $570 million to $770 million over ten years.
Now that is a very considerable cost, that cost will be further refined and interrogated as we move forward, and as the design principles translate into greater detail.
But as I say it’s a very large cost, and that’s also subject to IT costs, which is often the case are not inconsiderable. So it again demonstrates that the Commonwealth is taking an absolute leadership position on this issue. So, I think that answers your question
But then like, if the Catholic Church decided to opt-in, their bill could run into about the same amount? Presuming you know how much overall could be paid out.
We don’t have an estimate of that beyond the Royal Commission estimate.
So the Royal Commission has given an estimate of that, I won’t here and now try and recall precisely what that was, but we’ll offer that to you at the end of the press conference.
If I could perhaps describe it in context – so the Commonwealth as a responsible entity would have exposure in a range of institutional settings. They’re predominately in Defence, immigration and in particularly in the territories, and particularly before self-government in the territories.
So in Defence for instance, youth development programs are an area which has come up in the Royal Commission, instances where the Commonwealth or a Commonwealth Minister has effectively been the guardian of an individual – so these are the types of circumstances.
I think that the Royal Commission noted that the Commonwealth might be responsible for about ten per cent of all of the institutional settings across Australia. So notwithstanding being responsible for ten per cent, and we are taking the very strong leadership position of designing the best-practice scheme in a way that it allows for greatest opt-in from other responsible institutions, state governments and territories.
So what happens if an organisation does opt-in, but they say we don’t have the money to pay the victims – what happens then?
So, that is the situation that is described as funder of last resort.
Where an organisation does opt-in, there are two situations – where an organisation simply no longer exists or where it exists but does not have capacity to pay. We would obviously, as the Commonwealth interrogate their capacity to pay, and that would be something that we would look into – but where the Commonwealth is the responsible entity, and that responsibility was shared with an organisation like the Catholic church or the Salvation Army, or whatever it might be, and the entity with which we shared responsibility no longer existed or didn’t have the capacity to pay, then we would be the funder of last resort.
But where say, for instance, a state shared the responsibility with the entity that no longer existed or no longer had the capacity pay, consistent again with the Royal Commission recommendations, they would be the funder of last resort.
What about if there’s no shares responsibility with government?
If an organisation simply doesn’t exist – that’s a small range of scenarios that we will look into with the advisory committee.
But at the moment, our responsibility is to our entities and the states to theirs.
You mention there are 3000 victims. Don’t you think this scheme is overdue, given the fact that there are 3000 victims?
Well people have been waiting for a long time. There is no doubt about that.
The delay over the last six months, I might put to you, is because of the intensity of the negotiations with the states and territories. In a perfect world it would be nice to announce the simultaneous opt-in of those jurisdictions. We’ve been unable to do that, but the view that we’ve now taken is the way in which we now encourage that opt-in is to be clear and transparent about the best practice nature of this scheme that we are designing and making available to which they can opt-in.
So, to the extent that there has been delay for which period we have been responsible government – that delay has been worth trying to get a scheme that is best practice and that is absolutely most conducive to the greatest national coverage because others will opt-in to it.
Will the government be disappointed if none of the states get on board?
Well, the recommendations of the Royal Commission have been not just to the Commonwealth. They have been to all states and all territories and all institutions. And the recommendation to the Commonwealth was a national scheme with as much national reach as possible.
Now we have constitutional limitations in our power to bring that about.
So yes, I think the answer is we will do everything in our power to encourage, and there would be a level of disappointment if organisations didn’t join and states and territories didn’t join.
I say to you again, that we have made a very open and transparent, and I think it will be a somewhat controversial decision, that if we can’t encourage a territory over whom we do have some power in this respect to join, then we reserve the right to compel that joining of the scheme.
How did you arrive at the $150,000 figure, if you don’t have complete agreement from the other parties?
The fact of not having complete agreement from the other parties is the reason why we have settled on that $150,000 figure.
Now the Royal Commission recommended $200,000, so one of the very few way in which the model that we have put together deviates in any substantial way is that maximum is lower. But, we have had intensive negotiations with the states and territories, and with churches and charities. And we were trying to design a monetary redress payment that offered appropriate recognition, but maximised our opportunity to get other organisations to opt-in to the scheme. And that is the figure upon which we settled which would offer both maximum recognition and maximum opportunity for us, as the Commonwealth, to encourage other institutions to come into the scheme.
But what about if those organisations don’t agree to it? So the Catholic Church comes on board but says, “no, no we don’t want to do $150,000”.
No, no. The base upon which opt-in organisations, whether they be states, territories or institutions would opt-in, would that they accept the best practice design rules that we have laid out in principle here today.
That is to say if you opt-in you accept that the maximum is $150,000, which is why we have been very careful in our negotiations to choose an amount that maximises fair recognition for harm done, and maximises the opportunity for as much national consistency as possible, and as much opt-in as possible from churches, charities and state and territory governments.
What is the thinking behind the ten year limit? As you can appreciate, sometimes it takes decades for victims to be comftoable to come forward. For example, if it takes someone another twenty years to decide that they want to talk about this, to have that conversation – why is there only that ten year limit?
There has to be some kind of finality to this process of course. And I accept, as I witnessed as a prosecutor, there were often cases where people would complain about sexual offences decades after the event. This will be a very well publicised scheme, and great effort will be going into making sure that those people who are able to apply, do apply.
But as I said, at the end of that ten year period, as we close in to the ten years, we will – in conjunction with the advisory committee – review, and if it is necessary to keep it open for a staggered period of time, we will absolutely consider that. Because what we don’t want to do is close the scheme before everyone who is properly able to apply has had that opportunity.
How far back will it go? Is there a time limit for the victims? Obviously it’d be living-in victims, not families or anything like that?
So just to confirm, if an organisation still exists, has the financial capacity to take part in the scheme, but refuses to take part in the scheme, there victims still have the sanctity of the Commonwealth, be that helping with the funding or compelling the organisation to join the scheme?
That is something to be assessed on a case by case basis. That is not a simple question as you’ve put it, respectfully.
The responsible entity basis that the Royal Commission recommended effectively means that the Commonwealth would have had to had some linkage to the person and the organisational setting of the person through law or administration or something of that nature.
So there will need to be a linkage to the Commonwealth, just as there might need to be a linkage to the state.
Now in many instances that might be a mix of responsibility, but that can only be determined on a case by case basis.
Is Care Leavers Australia happy with this? I presume you have spoken to them?
They have been part of the design process of this. But, I’ll let them speak for themselves about their views on this.
But, what you’ll appreciate is that there are a variety of views amongst people who have been the survivors of sexual abuse in a variety of institutions. For some, telling their story is very important, for others the monetary payment is very important. For most, timing is very important. It is simply impossible to design a scheme with which every person is absolutely in perfect agreement.
Yes there are compromises in what we’re presenting, but I must say that this represents a very significant national leadership position; it represents an enormous commitment of funds, quite properly. But it also represents the best possible practice. I mean the standard of evidence, if you like, in that very flexible practice will be a standard that could best be described as reasonable likelihood, which is a standard which means that the survivor of the abuse in an institutional setting is put to the absolute minimum requirements. So the generosity of flexibility of the processes here is what we very much hope the victims’ group see and agree is worth the effort.
So just to clarify, if an organisation refuses to opt-in, the victims of that organisation could potentially go without? If there’s no shared responsibility with the government…
If there was a circumstance where a survivor of institutional abuse suffered institutional abuse in a situation where the facts of the case is that a private institution, like a church, was wholly responsible, without any shared responsibility from any other organisation – and I don’t think those will be many, if any examples – then we cannot compel restitution from that private organisation. We simply can’t do that.
So child migrants for example, who came from England, they would still fall under state or Commonwealth even if…
It would always be on a case by case basis.
But what I would suggest is, a child migrant would have a pretty significant connection in terms of the institutional setting to the Commonwealth. But also, there might be state responsibility, but also there might be responsibly of a charitable organisation who was contracted by the state or the commonwealth to provide the institutional setting.
So, they’re very complicated questions, which is why we will go through in an as informal way as possible to determine in each individual basis, try and unpack that chain of responsibility.
Are there any major organisations that you feel comfortable saying are close…
I’m not going to take this opportunity to take you that far, because I don’t want to do anything that jeopardises the opt-in of those organisations.
But I can say to you that the design that I have put to you today is the result of what we think maximises our opportunity to have big organisations opt-in to this Commonwealth scheme.
I think there is some opportunity, given the maximum we’ve chosen, given the best practice nature of the evidentiary rules, and the process and principles put to you, that we will have other, particularly large jurisdictions, give very good consideration to whether they will opt-in to our operation, the Commonwealth’s operation of redress.
You mentioned that the scheme could cost up to $770 million, if state and territories, and charity groups just don’t opt-in, surely that could blow out to billions of dollars for the government?
No. Because, as I noted, we are consistent with the Royal Commission, have adopted the recommendation that the entity responsible is the entity responsible for funding.
Are you saying the Federal Government’s going to [INAUDIBLE ] $770 million, and if the states and territories don’t opt-in, the…
That is an estimate of the potential cost to the federal budget over ten years, of the people that are, at this stage we think we are the responsible entity for.
Is there any kind of apology that the Prime Minister has passed on for you to be able to say today? To people that were victims in Commonwealth institutions?
The Attorney-General, the Prime Minister and I have been the three Ministers working on this, intensely.
I think the Prime Minister recognises that there has been an enormous amount of suffering that has gone on over decades.
His closeness to Steve has allowed him to hear first hand Steve’s story and the stories of people that Steve represents. And I must say that they’re moving stories, and I have seen the senior people who’ve heard those stories being moved.
So this has been a matter of personal care and attention from the Prime Minister, and he has invested an enormous amount of time and effort personally, beyond the operation of his department or his office, to make sure that we’ve got a scheme that maximises recognition of suffering, and maximises our ability to have a far Australian national reach.
Can I ask you about another issue – NDIS?
What’s the hold up on the bilateral agreement with WA and the NDIS?
It’s just a complicated set of circumstances, and I don’t know whether I would describe it as a ‘hold up’.
We were always aiming towards the end of October to have a very basic, in principle, resolution about how to proceed, as you know the Commonwealth Government, the national NDIS is operating a trial; parallel to that is the trial of the WA scheme.
There’s the evaluation report which I’ve seen – it is complicated, the clarity of it is not so simple that it is given over to simple decisions. I mean, if this were, I know the cricket is going today – this is one you would be sending off to the third umpire for a very good look, because it’s close.
The state doesn’t seem to agree with that though. They seem to say – they do say – that the review seems to favour the model they’re pushing, the WA based model.
That is a position, based on the report as I’ve seen it, is not without sustainability. But there also alternative ways to view the methodology of the portal, and the results it’s brought up, and of course it measure a whole range of different things, and some of them show greater differentials than others.
But ultimately, as I’ve made the point previously – the Commonwealth’s got a view about this which is that a national scheme on the basis that all the other jurisdictions have adopted a bilateral arrangement is the best outcome, but we can’t compel the outcome.
It’s a bit like the situation here with redress, is there is not a power to compel.
QUESTION: So it that the, sort of, the nub of the problem? You would like national consistency, but in WA they want to retain some of the system they have here, and not necessarily give over the control, or the bureaucracy to the national system?
That is the lay of it.
Just in regards to the emergency summit in Kalgoorlie this weekend – ahead of that, the head of the Aboriginal Legal Services called for immediate funding from the Commonwealth, state and local governments for youth centres, and has also declared a social crisis in the town. What are your thoughts on that?
I’d have to look at that very carefully.
The reality behind – towns and cities across Australia where there’s high Indigeneity, is that there’s often a great variance of programs. Some of them are doing a great good, some of them not quite as effective as we would like. And they are often offered by state, local and Commonwealth government.
I know this is something that Nigel Scullion’s been working on for some time – is to try and make sure that with the amount of money which is spent, and the proliferation of programs that we actually get the best capacity to maximise the effect of those.
So without having read that observation, I just reserve my position on it, but it is an issue that you often have a different organisations funded by different levels of government offering the same service and differing levels of success.
When can people living with disabilities expect to know what the NDIS will look like in WA?
That is in the not too distant future. That will be resolved shortly.
The state seems to be despairing a little bit. They’re not really sure where this is going to go now or how they can progress it. Are you confident you’ll be able to break through it?
I am [INAUDIBLE]. Thanks very much.