BILLS – National Redress Scheme for Institutional Child Sexual Abuse Bill 2018, National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018 – Second Reading

Senator BILYK (Tasmania) (13:12): I rise today to contribute to the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018. The sexual abuse of a child is one of the most horrific and despicable crimes a person can commit. For many survivors the effects of this crime can be devastating and will usually last for a lifetime. These effects can include feelings of guilt, shame and self-blame, even though it is the perpetrator who should be held accountable. Child sexual abuse can also affect an adult survivor’s ability to be intimate with others and can lead to difficulty forming close relationships. Some survivors will experience flashbacks and painful memories during their lives and even during sexual activity, even if it’s consensual and on their own terms. Survivors can also struggle with self-esteem, which in turn impacts on other aspects of life, such as their relationships, career and health. A 2013 study by the Australian Institute of Family Studies found that the other effects of child sexual abuse include adverse mental and physical health consequences, substance abuse and risky behaviour. Even though some survivors, with support and treatment, go on to lead happy and fulfilling lives, they may still bear the psychological and emotional scars of the abuse they have suffered.

When I was first elected to this place, I brought with me a strong passion for and commitment to protecting children from harm. This was born in my days as an early educator, where I often worked with abused children. This is why I also helped to re-establish the parliamentary friendship group Parliamentarians Against Child Abuse and Neglect, PACAN. I would like to thank my current co-convenor, Mr Ken Wyatt, for his hard work and advocacy in this area. PACAN has done a lot of excellent work over the years with various organisations, bringing issues about preventing child abuse and neglect to the attention of members and senators.

In 2010, through PACAN, I organised an exhibition in a public area of parliament of artwork authored by survivors of childhood trauma. This artwork was part of the Cunningham Dax Collection, named after psychiatrist Dr Eric Cunningham Dax, who was a pioneer in the treatment of people with mental illness. I just have to declare that my very first full-time job was actually working with Dr Dax as a research assistant, and I learned a great deal from him. One of his innovations was the use of art as a therapeutic device, and the collection features artwork from his patients as well as other patients with mental health issues.

The exhibition we held here, entitled Healing Childhood Trauma, featured the work of adults who had experienced childhood trauma, many of whom are survivors of sexual abuse. Anyone who visited the exhibition would agree—and, even though the artworks were very confronting, I must tell people that they weren’t actually the most confronting we had to choose from to use—that they revealed the hurt and suffering of survivors and also the feelings of helplessness and vulnerability, detachment and isolation. Some survivors expressed themselves through words as well as images. One artwork featured the words: ‘Black hole inside me. Go inside. Don’t want to see. Don’t want to feel.’ Another featured the words: ‘Broken. Separate. Alone.’ The images are pretty hard to describe.

While exhibitions like this can offer some insight into the traumatic experience of survivors of childhood trauma, it’s still difficult for most people to comprehend. One of the reasons why the Royal Commission into Institutional Responses to Child Sexual Abuse was necessary is that it has given survivors a chance to tell their stories. It has given them a chance to explain how the crimes and, in so many cases, not even being believed or the mishandling of the reporting of those crimes have affected them. I would like to thank everybody who gave evidence to the commission. I would like to thank them for being so, so brave, because I know that quite often people were not believed.

Another key reason why the royal commission has been necessary is that, over many decades, not only have people in authority not believed sometimes when a child has reported this, or even when an adult has reported that these things happened to them as a child, but people in authority have failed—absolutely failed—in their responsibility to protect children. They’ve failed to protect them at the time in their lives when they are most vulnerable and most in need of protection. They’ve failed often to acknowledge and uncover the wrongdoing. They’ve failed to deal with perpetrators, and they’ve failed to support the survivors. These failures are widespread across a range of institutions: residential care facilities, youth development organisations, churches, schools and many others. Not only have these institutions failed our children but, sadly, I have to admit, so have governments, state, territory and federal, across Australia, by failing to put in place the legislative measures to ensure that abuse is prevented or, where it happens, is uncovered, investigated and acted upon.

Our laws are now catching up with best practice, but there still remains so much room for improvement. This has been a systemic failure over the course of decades throughout Australia, and children have suffered immensely because of it. It’s bad enough that some institutions failed even to act on reports of child sexual abuse, but even worse are the people in positions of authority within some of those institutions who actively sought to cover it up. Let me remind you of what former Prime Minister Julia Gillard said at the press conference when she announced the formation of the royal commission—and can I personally thank former Prime Minister Gillard for being brave enough to form the royal commission. I did speak to her a number of times about the formation of the commission, and she was always very happy to listen to me and to take issues on board. This is a quote from former Prime Minister Julia Gillard:

The allegations that have come to light recently about child sexual abuse have been heartbreaking. These are insidious, evil acts to which no child should be subject.

She said that Australians know that too many children have suffered child abuse but have also seen other adults let them down. She went on to say:

Not only have they had their trust betrayed by the abuser, but other adults who could have acted to assist them have failed to do so.

…   …   …

There have been too many revelations of adults who have averted their eyes from this evil.

As I said, I commend Prime Minister Gillard for the leadership she showed in calling the royal commission.

The royal commission has been a very important process to bring light to abuse and the extent to which it was covered up, to figure out how best to prevent it happening in the future and to consider how best to compensate survivors. I use the word ‘compensate’ quite broadly, because obviously some issues, some hurts and some psychological damages cannot ever be compensated enough. The royal commission has played another vital role, which is to send a message to the survivors—and this is a really important message—that we acknowledge that their abuse occurred and that we are committed to doing something about it. Of course, without the participation of survivors it would have been far more difficult for the royal commission to expose the systemic failures and the cover-ups and to come up with effective recommendations.

As I said, the decisions of thousands of survivors to participate in this process took incredible courage—courage that I don’t think the rest of us can really fathom. For the five years that the royal commission has been running, it’s been a very extensive inquiry. The commission held 57 public hearings over 445 days and heard evidence from more than 1,300 witnesses. In addition to this, commissioners heard the personal accounts of almost 8,000 survivors through private sessions. One of the key recommendations of the royal commission was the implementation of a National Redress Scheme, delivering financial compensation to survivors and an apology on behalf of the institutions.

As I said, we’ve got to acknowledge that no amount of money can compensate for the pain and the hurt that’s been caused by this abuse or the failure of the institutions to respond appropriately. No amount of money can make up for the abuse or undo the damage that it has caused, but financial compensation does serve several important purposes. First of all, it makes a statement on the part of the government or institution that it failed in its duty of care and accepts responsibility for the consequences. It also serves as an acknowledgment of the hurt and pain the survivor went through. And it recognises that, while consequences of abuse cannot be undone, financial compensation can assist in ways such as with medical expenses or treatment for psychological or mental health conditions and for loss of earnings.

However, redress is about more than just compensating survivors financially. That’s why the third element of this scheme—an apology from the representatives of the institution—is so very, very important. Redress is an admission of responsibility on the part of the organisation, an acknowledgment that the hurt of the survivor was caused in large part by its failure to protect them. For survivors, this acknowledgment is an important part of the healing process. These bills establish a redress scheme, which will be managed by the Secretary of the Department of Social Services. To be eligible to receive redress, applicants must have suffered sexual abuse as a child that is within the scope of the scheme before the scheme’s start date. Applicants to the scheme will be able to select from some or all of three elements of redress under the scheme. These elements are a monetary payment, access to counselling and psychological services, and the opportunity to receive an apology from a representative of the institution responsible for the abuse. Applicants who accept an offer will be required to sign a deed of release that waives their civil rights against the responsible institution. Throughout the process, applicants will be provided with access to support and legal services as well as financial advice.

The redress scheme was recommended by the royal commission to be in operation from 1 July 2017, and I think it’s a terrible shame that its establishment has been delayed by a year. While Labor committed to the scheme in 2015, after it was recommended by the royal commission, the government didn’t commit until 2016, so the delay in the government’s decision to commit to the scheme certainly hasn’t helped to get the scheme delivered in a timely manner. It’s led to the scheme being seriously overdue, adding to the frustration for survivors of child sexual abuse, who have been holding out hope that they might receive some reasonable compensation for their suffering. And, of course, some survivors are unfortunately no longer with us to see the implementation of the scheme.

We now have the bills before us in the Senate, and a number of concerns that Labor held when the government announced the design of its proposed redress scheme remain with the bills as they are currently drafted. Some of the elements of the scheme are not in accordance with the recommendations of the royal commission. The scheme gives survivors six months to make a decision whether or not to accept an offer of redress, whereas the royal commission recommended a year. The process will be a very, very difficult one for many survivors and I believe it’s unreasonable to rush them. The scheme also places a cap of $150,000 on the amount of redress payable to any one survivor. The royal commission recommended that the maximum payment be $200,000, that the minimum payment be $10,000 and that the average payment be $65,000. The reason for both the maximum payment and the time allowed for accepting an offer requiring such important consideration is that, by accepting an offer of redress, a survivor will have to waive any rights they have to compensation through litigation.

On this side, we are also concerned the scheme limits eligibility for the Redress Scheme to people living in Australia or Australian citizens. This could exclude from the scheme some child migrants and children who were abused in immigration detention who have now returned to their country of birth. That these survivors aren’t Australian citizens or living in Australia doesn’t change the fact—not one iota—that they were abused in Australian institutions. Those institutions and our state, territory and federal governments have a responsibility to them.

Yet another concern we’ve got on this side is the $5,000 cap put on the payment towards counselling services. The royal commission recommended that counselling and psychological services be provided for life, and $5,000 is, in most cases, completely inadequate for this purpose.

The final concern is with the decision for survivors who have been sentenced to a prison term of five years or more to require special permission to access the scheme. This is deeply unfair. It completely ignores evidence that people who have a history of childhood abuse and trauma are more likely to be in jail later in life. It also ignores the consideration that giving survivors with criminal history access to the Redress Scheme could greatly improve their chances of rehabilitation.

These bills were referred to a Senate inquiry which delivered its report last Friday. A number of the concerns I just mentioned were reiterated by Labor senators in their additional comments in the inquiry report. The comments cited a number of submissions in relation to the reduction of the maximum payment from the royal commission’s recommendation of $200,000 to $150,000. The Alliance for Forgotten Australians referred to the decision as ‘arbitrary’ and Shine Lawyers said that ‘no adequate explanation’ had been offered for not following the royal commission’s recommendations. The Australian Human Rights Commission and Australian Lawyers Alliance said that the reduced cap undermined the effectiveness of the scheme.

In relation to the $5,000 cap on counselling and psychological services, the Law Council of Australia, the Australian Psychological Association, Shine Lawyers, the Alliance for Forgotten Australians and the knowmore legal service all said that the cap was inadequate to cover these services and fell short of the commission’s recommendation, which was accepted by the government, that these services should be available to survivors across their lifetime.

The Australian Human Rights Commissioner opposed the citizenship and residency requirements, contending that:

In the Commission’s view it is the occurrence of abuse in Australia, rather than the citizenship or residency status of the person affected, that should determine eligibility.

Many submissions that were received by the inquiry opposed the exclusion of survivors from the scheme on the basis of their criminal history. The knowmore legal service, Shine Lawyers, Maurice Blackburn, the Australian Psychological Society and the Royal Australian and New Zealand College of Psychiatrists all cited in their submissions the causal relationship between childhood abuse and future criminal behaviour. Victorian Aboriginal Legal Services and the Law Council of Australia mentioned the ‘disproportionate effect’ this exclusion has on Indigenous survivors.

The Blue Knot Foundation talked about the unfairness of the exclusion, and said:

… whether a person is in gaol or not is irrelevant to whether they were sexually abused as a child within an institution. As a crime was committed against them they should have equal access to redress, as any other survivor.

This point was also made by the Sexual Assault Support Service, who noted that there are discrepancies, also, in state laws. This means that a person convicted in one state for an offence might be treated differently to a person convicted in another state for the same or similar offences.

With regard to the time allowed for survivors to make a decision on whether or not to accept an offer of redress, the Law Council of Australia stated:

In the Law Council’s experience, it does not consider that it will always be feasible for this to occur in six months, especially given the volume of survivors predicted to come forward to make an application for compensation under the Scheme.

Labor recognises that there are some difficulties in putting forward amendments to address these concerns, given that the changes to these bills may not align with the schedules included in some state referral acts, and that this could render the referral ineffective. Notwithstanding our serious concerns with the bills, there is an absolute need for the timely implementation of this scheme and we are not going to stand in the way of that. However, a Shorten Labor government would seek to continue to negotiate with the states and territories in good faith, with a view to strengthening the Redress Scheme.

To conclude, I’d like to acknowledge and thank shadow ministers Jenny Macklin and Mark Dreyfus for the hard work they’ve put into trying to improve this scheme and bring it into line with the commission’s recommendations. I think it’s also appropriate to thank the commissioners: the chair, Justice Peter McClellan, AM; Mr Bob Atkinson, AO, APM; Justice Jennifer Coate; Mr Robert Fitzgerald, AM; Professor Helen Milroy; and Mr Andrew Murray. They were given an extraordinarily difficult task and they executed it with distinction. It should be recognised that the Redress Scheme represents just some of the more than 400 recommendations in the commission’s final report, and I do look forward to seeing those other recommendations implemented.

Most of all, as I said earlier, I would like to thank the thousands of brave survivors who participated in the royal commission and shared their stories, either publicly or privately. It was due to their participation that the commission was able to come up with recommendations that took into account their needs. While we have concerns with the scheme as it’s currently designed, I appreciate that this has been a difficult and very complex task. As such, the work of Minister Tehan and his state and territory counterparts is to be commended. I welcome the participation— (Time expired)