This was the third session at the Advocacy Sector Conversations forum held at Queen Victoria Women’s Centre on 14 November 2019.
Di McCarthy, Children and Young People with Disability Australia (CYDA)
AidAn McCarthy, Lawyer at knowmore
The National Redress Scheme is available to anyone who might have been a victim or survivor of child sexual abuse whilst experiencing institutional care. Children and Young People with Disability Australia (CYDA) is a support service ensuring that children and young people with disability, the families and supporters are assisted in an inclusive trauma-informed framework to understand their choices relating to redress, and receive not only information but warm referral support to their closest National Redress Support Service. Di McCarthy steps us through the process for accessing the scheme. Then AidAn McCarthy, a Lawyer at knowmore, gives an overview of some legal issues arising from the National Redress Scheme, particularly in relation to institutions joining the scheme and a little bit about know more.
Links to resources mentioned in this presentation can be found at the bottom of this post.
Transcript & Audio
MELISSA HALE, DARU COORDINATOR:
I hope you’ve enjoyed lunch and now we’re into our afternoon session of the day on the National Redress Scheme for Child Sexual Abuse. I will quickly introduce our speakers. Again, two presentations in two different parts. One from Di McCarthy from Children and Young People with Disability Australia and from Aidan McCarthy from Lawyer knowmore.
DI MCCARTHY, CHILDREN AND YOUNG PEOPLE WITH DISABILITY AUSTRALIA (CYDA):
Thanks very much Melissa. I’d like to acknowledge the traditional owners of the land the Wurundjeri people and pay my respects to any elders past present and emerging and any who may be here today.
Just an overview of the presentation; I will talk about our association, a bit of background about the Royal Commission, the National Redress Scheme including some information from Blue Knot and our Children and Young People with Disability’s role in the Redress Scheme. Then Aidan will continue with the legal service and describe knowmore and how they fit into the scheme.
Children and Young People with Disability Australia is a peak disability organisation and it represents children and young people from the age of 0 to 25. We work to ensure that direct experience of children and young people is included into policy and practice. We’re a disability organisation with over 5,000 members and one of our key activities is systemic advocacy, that’s our focus.
When the Royal Commission for institutionalised responses into child sexual abuse was first announced we became an active participant in that three-year Commission and produced a number of issues, papers one of which I have out the front and it’s Enabling and Protecting and you may wish to read that also.
I just want to before I proceed say that some information may be distressing. It is very factual information I’m presenting however, I wish to acknowledge any survivors who may be in the room and or acknowledge that it can be hard to hear about or read about sexual abuse. If it brings up any difficult feelings or memories, you are absolutely not obligated to stay in the room and there is assistance available to you.
A few statistics; The Royal Commission went over 2013 to I think its final report in 2017. There were 6,875 survivors who made submissions. There’s a lot of statistics up there you can see and of those there were 293 people with disability. 86% of whom had experienced multiple sexual abuse, 62% said the abuse lasted over one year and 34% said it was pre 1990 in institutional care and also that 32.4% said the abuse had happened in a school.
What the Commission was hearing and the Commission did provide individual and private hearings for the people, it’s yet to be seen whether the Disability Royal Commission will be doing that. It’s something we will be advocating for but we would hope that people who are presented to the Disability Royal Commission will have that opportunity to have private sessions.
Barriers to Help Seeking and it wouldn’t be unfamiliar to yourselves that people with disability express their concern about having their care needs reduced or impacted. Isolation and segregation was a barrier and off course type of disability and the ability for the person to express what happened to them was also a barrier to disclosure.
There was a lack of trauma informed workforce in the disability sector and signs of abuse were not acknowledged. There were also institutional barriers in relation to the lack of transparent independent complaints mechanisms and heightened risks for students in schools. This is part of the disability summary of the Royal Commission, which is available online as well.
What is the National Redress Scheme: it’s the Governments response, or one of the responses to the recommendations of the Royal Commission and it’s to support people who have experienced institutionalised sexual abuse. It acknowledges that many children were sexually abused in institutions, it recognises the suffering they endured and it holds institutions accountable for that abuse.
It helps people who have experienced institutionalised sexual abuse to gain redress and that is through either one of three methods. It’s either a payment, through counselling or through a direct personal response and that is to hold the institution to have a conversation or an apology or what the person wants to hear from the institution and how they want that personal response to be shaped.
The scheme it’s very important to note that and I know there will be national disability funded organisations here and there will also be advocacy agencies here who would not be NDAT funded. I think it’s really important to note that people with disability may approach you in relation to the National Redress Scheme and you do need to know that you can only have one application. How you assist, that person is quite vital because it has an impact on any other decisions that would be made.
Interestingly enough the scheme is run by the Department of Social Services. The easy English version of the document that they put out explaining the scheme did not have that fact in the document. At CYDA, we’ve approached them and asked that to be changed. It’s been an opportunity for the whole document to be reviewed. That’s an example of how we’ve been interacting with the scheme because other information for victims and survivors clearly states that fact but the easy version did not.
Who can apply for the scheme: You have to have experienced institutionalised sexual abuse and you need to be aged 18 before or turn 18 before the scheme ends in June 2028, six months before the scheme ends you need to be able to put the application in – check some facts 12 months. You have to be an Australian citizen or a permanent resident and also apply about an institution that has joined the National Redress Scheme.
Some of the technicalities will be explained by Aidan from the Legal Service. Institutions that were named in the Royal Commission are being tracked to ensure that they do join the National Redress Scheme and there’s an opportunity on the website of the National Redress Scheme to see institutions who have joined, institutions who are intending to join and institutions who have yet to make a commitment to join.
Just to note that children under 18, if the abuse happened before the scheme started when the child was young and under the age of 18, they can progress an application but an outcome won’t be made until the child turns 18. You have to be 18 years or older to accept an offer.
There are a number of agencies in Victoria who are redress support services and I won’t go through the list because it’s too difficult. There’s the address up there that you’ll be able to access. It’s important to note that the people who have first point of contact with any person who’s a potential participant has received trauma informed counselling that’s their practice model. They come from that method of operating.
There’s no expectation that a person would sit down and be able to articulate the whole of what they’ve experienced in one session. What we need to know as advocates and certainly as Children and Young People with Disability and People with Disability Australia and other disability advocates involved in the scheme, what are the current barriers to accessing the services.
If a person has particular communication needs and they’re not addressed and not supported, we need to know. If the website is totally inaccessible to a person with a disability, we need to know. We will advocate for change and we are doing that ourselves but we need to have that information also if you’ve experienced it.
I’d like to talk about also the fact that rural and remote communities have just been responded to for their need to have better access to National Redress Services and an agency called the Blue Not Foundation has been allocated to offer that support. You will note or you may know already that Blue Knot is also the national agency that will be supporting people with disability through the Disability Royal Commission as well. With some good active listening people will be directed appropriately to support in relation to the National Redress Scheme as well as assisted with their Disability Royal Commission application.
A little about Blue Knot – They’ve got a national helpline, the operational hours are behind me. There is a national counselling and referral service. There’s also training available to advocates and they offer organisational consultancy as well. If you have any issues or difficulties they will speak to yourselves, they can come to conferences and symposiums. I guess more importantly they’re available to discuss referrals. They also have a range of videos and fact sheets on their website.
The new support that was available that was just announced in July this year I think. The capacity for Blue Knot to offer telephone or video conferencing support to survivors directly. I’m not saying it’s the best outcome but it’s a better outcome than having no real involvement. What it does acknowledge is that people can be victims and survivors anywhere. It’s important that there is an active response to supporting survivors.
They also provide support in mentoring any of your staff with capacity building and to enable you to be able to talk to potential participants and assist them through the application process.
Is there a charge for the training is the question.
I’m sorry I don’t have the answer to that. I know that Blue Knot offer a range of training and recently through DARU there was vicarious trauma training offered and that was at a cost. Some is at a cost. I would think that if you had a number of staff that required particular training in relation to this work that that could be negotiated.
They did talk about information sharing, mentoring and coaching that wouldn’t be at a cost. Psycho education and increasing the workforce knowledge about complex trauma and strategies for managing autonomic dysregulation hypo and hyper arousal and increasing the competency and competence of working through particular phases of trauma work.
It’s important for me to bring this information to your attention because Blue Knot as I said, it’s just a new aspect to the Redress Scheme and we want to ensure that as many survivors as possible have the capacity and the ability to tell their stories and hopefully seek redress.
The National Redress Scheme it offers other supports, which Aidan will talk about including the option to take other legal action. It is only one response from a legal perspective. It doesn’t have the same obligations in relation to a civil action, if you take a civil action. Aidan is the lawyer and will talk about that.
I would like to let you know that the Scheme has taken quite a while to reach what I think is not yet its peak. That’s because the way the applications are being heard are through independent decision makers and there weren’t enough independent decision makers on board.
I’d like to say that in very little writing just an update in relation to the progress of applications. As with many application processes and schemes if there are multiple institutions involved for example, that could delay an application for redress. When a person requires ongoing counselling and support in relation to an application that they’ve made that can heighten their distress. The counselling is available right through the application process and is not part of the counselling outcome at the end of the scheme.
As of the 4th of October, they had received over 5,000 applications. This is the Department of Social Services. That had only made 750 decisions and of that, there are 638 payments. The statistics are there but I think the most important statistic is in the last three months of the scheme they’ve processed more applications in the last three months of the scheme than they did in the first one year of the scheme.
They’ve made a commitment to employing caseworkers and also more independent decision makers to help survivors through the process because it’s really imperative that survivors get action quickly once their situation or their application has been processed.
Our role with the National Redress Scheme is primarily focused on systemic advocacy. It’s to ensure that people with a disability, survivors with a disability have equitable access to the scheme, that any other systemic issues that might be occurring can be identified and brought to the operators of the scheme. That’s why we would like to hear from you about any issues that might occur in any of your practice in relation to the scheme.
We can work with other providers to ensure that some of those access issues are addressed. The application form is quite an unwieldy lengthy form. I think still requires further work for better access for people with disability.
We can provide information assistance and a warm referral to other national redress support services. It’s our absolute aim to ensure that accessibility to all aspects of the scheme occur. The contact details for the National Redress Scheme are behind me. Our contact details are also available to you here.
I just want to say in relation to the Disability Royal Commission our CEO spent quite a considerable amount of time up in Townsville in relation to the education hearings. Something I produced earlier, not me particularly, but we do have a paper towards inclusive education and a necessary process for transformation that we have submitted and I think it might be of interest that’s available on our website also.
If you have any questions we might leave it to the end of the presentation so we can address them together and then Aidan has time to present on knowmore which is the legal scheme that was appointed during the Royal Commission and that is now assisting applicants with legal issues through the Redress Scheme. Thank you.
AIDAN MCCARTHY, LAWYER, knowmore:
Hi, everyone my name is Aidan McCarthy I’m a lawyer in knowmore’s office.
Thank you for having me today. I want to start by acknowledging the traditional owners of the land on which we’re meeting the Wurundjeri people and I want to pay my respects to elders past present and emerging and to any Aboriginal or Torres Strait Islander people in the room. I would also like to join with Di in acknowledging any survivors in the room. If it’s uncomfortable, it’s totally understandable. It’s not a pub chat, come see me after and I’ll give you a card.
knowmore is a program of the National Association of Community Legal Centres and we’re funded alongside the National Redress Scheme to provide legal advice to people engaging with the Redress Scheme or considering engaging.
We were originally set up as a legal service to assist people who were engaging with the Royal Commission into institutional responses to child sexual abuse. Di sort of covered a lot of the information about the National Redress Scheme so I probably won’t repeat all of it. I might fast forward through some of the slides.
I’ll go into talking about knowmore. We work with people all across Australia and all our clients are people who experience sexual abuse as children. We have a trauma informed framework and we also have a culturally safe practice model as well. In addition to the lawyers, we have support services team and we have an Aboriginal and Torres Strait Islander engagement team as well.
There’s our team and recently we’ve had some financial counsellors come on board through a grant from the Financial Counselling Foundation who are able to assist people with their National Redress Scheme payments sort of at the end of the process as well.
We have over 5,000 clients. Not all the applicants of the National Redress Scheme are our clients and not all our clients will apply to the National Redress Scheme. There’s expected to be up to 60,000 applicants to the Redress Scheme in the life of the Scheme. It’s running for 10 years, up to 60,000 people may apply.
As Di said before the National Redress Scheme offers those three components. The Redress payment, which is in an amount of up to $150,000.00. I will come back to how the amounts work a little later. Counselling support, which is either – well in Victoria the counselling, is offered through services. In South Australia and WA, I believe the counselling is a lump sum payment instead. Of course, there is the direct personal response as well which is like an apology.
Di covered the initial points. The key point I wanted to get to here is that to apply to the National Redress Scheme a person has to have experienced sexual abuse as a child in an institutional context. Institution is defined really broadly and that will be one of the things I focus on, I will come back to that in a moment.
I want to pick up as well what Di said about civil litigation as another option. The Redress Scheme is to accept an offer of redress at the end of the process an applicant has to sign an acceptance document that says they can’t bring any further claim against the institution or institutions for the abuse that they experienced. What that means is that if someone goes through the Redress Scheme they have to sign away their rights to bring a civil claim, which is the way the scheme has been set up and that’s something we obviously give people advice about as well.
The eligibility issues I wanted to cover were a couple of things. Actually I will go back one slide, sorry. The other thing that was on here that I wanted to mention is you need to have experienced sexual abuse to be able to apply. Related non-sexual abuse is also part of the framework that’s used to assess the application but non-sexual abuse alone doesn’t make someone eligible to apply to the National Redress Scheme.
There are a couple of exclusions. If a person has previously received, a court ordered payment they’re not able to apply to the National Redress Scheme and that includes class actions as well. People in jail can’t generally apply to the Redress Scheme. There’s a special circumstances process that they can go through to be assessed.
The other hurdle is that people with what the Scheme calls serious criminal convictions, so people who have been sentenced to a term of imprisonment for five or more years for one offence are not automatically entitled to redress and need to go through an additional assessment process to get over that first hurdle.
The main thing I wanted to talk about is institutional responsibility. As I say, the Scheme relates to institutional abuse. The Federal Government administers the Scheme. The Commonwealth Government and different institutions, which is States, churches, the sports club around the corner, all of those different things they have to join the scheme and say that they will foot the bill for applications that are related to that institution.
All the states have joined and the big churches have the Catholics and the Anglicans. Most of the Catholics there’s some orders that aren’t in yet and other non-Governmental organisations have joined. If institutions haven’t joined, they have until the 30th of June next year to join. There is no power for the Federal Government to compel them to join. What that means is institutions really need to opt in to be a part of the Redress Scheme.
As Di said, there is a list on the website of institutions who have and also haven’t joined. Some will say they’re intending to join and others don’t. The process of joining means the institutions will be assessed to see whether they can meet any liability, they have under the scheme. That’s why some smaller institutions may just not be able to join in terms of funding.
The definition of institution is really really broad. It’s basically anything that isn’t a family or a person by themselves. It obviously involves companies and schools and boys homes is probably a fairly common example. Often people who were in boys homes were in a number of institutions.
The application as Di said, you can only make one application and that $150,000.00 limit that I spoke of before applies to the whole of the application. It doesn’t matter if you were in one institution or in twenty that’s the maximum amount that you’re able to receive.
The I suppose tricky point if you were in a number of institutions is that all of those institutions need to have joined the Redress Scheme for your application to be processed. If they don’t join, your application will be waiting until the 30th of June next year to see if they do join and then I don’t know what will happen. It hasn’t been announced what will happen yet. We’ll see.
Now the redress payment is worked out in a very strict sort of way. It’s broken into categories of the type of abuse that people experienced. You can see behind me the three levels are called exposure, contact and penetrative abuse and the framework is sort of – you add them up – it’s cumulative as you go across the columns.
The first two components are fairly self-explanatory. They are amounts for the recognition of sexual abuse and for the impact of that sexual abuse. The next one is related non-sexual abuse. Related is I’m not sure how related it has to be to be related but that would be physical abuse and neglect which is often common in the sorts of institutions that come across my desk.
Institutional vulnerability is the next thing and it’s about where people’s living arrangements meant they were more at risk of experiencing sexual abuse. Residential institutions are a relative good example because if you live there, you’re more at risk.
Finally, extreme circumstances of sexual abuse is only available for applications that involve penetrative abuse. It’s defined very – it’s not super clear what it means. In the legislation, it says if it’s particularly long term, egregious or disabling then it could be extreme circumstances. There’s also some policy guidelines, which are protected information under the scheme. They’re not released to the public or to our service.
The bottom level there, exposure abuse, obviously involves physical contact and one of the exclusions under the scheme is that if the abuse involved two children so the perpetrator of the abuse was another child and it didn’t involve any physical contact or penetration, which would put it in that exposure level it’s not abuse within the scope of the scheme.
To say that a bit more clearly exposure abuse between children you can’t apply. You can’t make an application about that.
These amounts if you add the top one up you get $150,000.00. That amount you’re assessed at will also take into account any prior payments that you might have received on behalf of the institution. In other states, there were some Governmental redress schemes. In Victoria there’s been plenty of civil litigation claims.
They’re indexed for inflation so if you got $20,000.00 10 years ago it would be worth a bit more now. That sort of indexed up amount is taken off whatever you’re assessed at under the Redress Scheme. The money stuff is a little dry sorry about that. It’s worth covering so that everyone knows what the Scheme is doing.
As I was saying, about the institutions, having to join there’s also a provision for State Governments and I believe the Commonwealth Government to become the funder of last resort for defunct institutions. That’s institutions that no longer exist. That’s only recently the first declaration has been made for four institutions in Queensland and three of them are Aboriginal residential care institutions and I don’t know about the fourth off the top of my head.
What that means is that the Queensland Government will foot the bill for those institutions. I think it’s important to note it’s a bit different to like a catchall funder of last resort. If there’s a local footy club or a small disability organisation that doesn’t have the money to join the Redress Scheme at this stage if they don’t join you can’t make an application in relation to them. There’s no provision for one of the State Governments to pick that up.
The next thing is just about nominees. It’s quite difficult to deal with the scheme directly for some survivors. I mean most people don’t like dealing with bureaucracy anyway. The Scheme allows for applicants to appoint a nominee that’s two types. An assistant nominee is just a touch point for the applicant to be able to have that person liaise with the scheme on their behalf.
Basically they can do anything that an applicant can do except apply, accept or reject an offer. They don’t have the same sorts of decision powers as the actual applicant but they can sort of deal with the scheme on their behalf and often knowmore acts as nominee for our clients.
The other nominees are legal nominee and that’s a substituted decision maker. If a person has, a power of attorney or some other substituted decision maker arrangement in place then that person will need to be – if it’s the State Trustee the State Trustee will need to be the legal nominee because they’ll need to make decisions in relation to the scheme on the applicant’s behalf.
The last thing I wanted to cover was the Redress Support Services, which Di has helpfully covered. There’s a bunch of money that’s been given to different organisations for them to be able to provide support to people who are going through the redress process.
In more metro areas, there’s often face-to-face services. As you, get further out there’s less services as we all know and Blue Knot has done a good job. They’re doing a lot of the rural and remote work. The redress support services can help people apply. I think it’s 35 pages it’s a big form and difficult to do for the first time. The support services can help people apply and they also offer counselling throughout that process as well.
They’re listed on the National Redress Scheme website. I won’t go through them all because we would be here all day. It means there’s more access to the scheme in different sorts of areas. knowmore can help people understand their legal options with the scheme and outside the scheme as well.
The other thing that I didn’t put a slide in about was as I said we’ve recently had counsellors come on board. One of the main things they help people to understand and work around is that the redress payment it’s not counted as income but it is counted as an asset for the purposes of Centrelink payments.
Our financial counselling team have put together this guide called helping clients receiving a National Redress Scheme payment. This is the only copy, hard copy so you can’t have it. We do have it on our website and it is more up to date. It’s written quite plainly, it’s fairly easy to understand but it helps people if you’re working with someone who is going to be in receipt of a Redress Scheme payment it helps you understand what the implications of that are.
Debts and things aren’t to be taken if say you had a Guardianship order they shouldn’t be taken off the redress payment but like I said for Centrelink purposes, it’s counted as an asset. That’s something that people need to be aware of as well.
I don’t think I have any more slides except that’s where we are. We’re right down near Spencer St station. You can visit our website and that’s got our information on there as well. There’s also the National Redress Scheme’s website there as well.
We have a toll free number. We’re really happy to talk to anyone who has questions and give some legal advice to people. I might sit down with Di and if there is any questions, we can go through them.
I was wondering how you knew how they made the decision that people in jail couldn’t apply.
I don’t know the rationale behind it but I have had it explained to me that it is very – in jails there aren’t the same sorts of services as we have in the community. This is a difficult process for any survivor. I don’t think you’d have the same support in jail as you would on the outside. The idea is that people will wait until they finish their sentence to apply.
One of the sort of special circumstances things is if someone is going to be in jail past the scheme sunset day which is the 30th June 2028 then they can sort of go through that exceptional circumstances process to be made able to apply. In theory, they wouldn’t miss out if that was successful.
I’m just wondering when you talked about the assistant nominees, I’m just wondering can advocates be assistant nominees?
Anyone can be an assistant nominee. As I said, I often will be the nominee for my clients but anyone can be. It can be a partner, be an advocate, it can be the lady down the road.
Di just mentioned something as well that is probably worth mentioning. As Di, said earlier the scheme has taken a fair bit of time to process the applications. They recently I think since may be a month ago, we weren’t sure, they went from having five independent decision makers to I think 18 relatively recently.
That said the scheme will sort of be able to prioritise applications for people who are ill. The idea is that people would get to receive an outcome before they die. If an application is made, if I made an application and then I died before it was decided the application would still be decided and then the money would go to my estate. The estate – you don’t miss out but you’re not there to I suppose receive the payment if that makes sense.
You mentioned the application form is 35 pages long. What’s the scope of information on the application that makes it so lengthy?
The form is in three parts. The first part is personal details that’s fine you can do that in 10 minutes. The second part is the details of the abuse that you experienced and it is not sufficient to say I was sexually abused by Joe Blogs. It has to be because of those categories the exposure contact penetration it needs to be clear what happened. A fair bit of detail is required.
The third part is the impact the sexual abuse has had across your life. That’s a bit easier. There is a free form box if you want to write a statement or there is some check boxes if you want to just tick them. The bulk of the application is that sort of second part.
Where it gets a little bit tricky is if as I said you can be in multiple institutions and often people were there needs to be a separate part to, so the details part of each institution that you were in. I have one application on my desk right now that’s this thick because you just have six different parts of the same thing for each institution.
I have a question about foster care and children who may be places in foster care by the Government.
We talked about that on the phone; I said I would mention it and I didn’t. Foster care is an institution. As I said, it’s defined really broadly. It can be tricky though because as I say the institutions need to have joined. If it’s foster care run by the state of Victoria, for example the Victorian Government has joined so that’s fine.
If it’s foster care run by a catholic ministry or a local organisation that’s a different circumstance and unless the institution that’s responsible for that has joined your application can’t be processed. I suppose that’s the real difficulty in saying foster care is always in. State-ward ship is a relative institution for the purpose of the Redress Scheme.
Could you tell me what would happen if a client in an institution had already been to court and the perpetrator was found not guilty on the basis that the client was non-verbal, is the client still able to apply for compensation, redress?
There’s two things there, there’s a couple of things. The first thing is a finding of not guilty in a criminal proceeding doesn’t mean that your civil rights are abrogated. You could still sue the perpetrator or the institution. It doesn’t mean that you can’t apply for redress. You can still apply for redress.
The second point is that, as everyone will probably know the criminal standard of proof is beyond reasonable doubt. No reasonable person would doubt that Joe Blogs is guilty of the offences charged. The civil standard is the balance of probability for more likely than not. The Redress Scheme used a lower standard than that even. They talk about whether or not the applicant is reasonably likely to be entitled to redress.
It’s a much lower bar to jump over. While the application needs to be filled out, if someone is non-verbal it’s obviously more difficult than with a client that doesn’t have a disability. But they’re not precluded from applying at all. Even if the person was found not guilty the criminal proceedings has no effect on the redress application.
Without opening the Act up to double check, I’m fairly certain the information can’t be shared from the Redress Scheme to the criminal courts either. The information is really all heavily protected.
Any more questions – no. Okay thank you very much Di and Aidan, very very useful and very helpful thank you.
- Date published:
- Thu 14th Nov, 2019