Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) and (2) on sheet 2250 together:

(1) Schedule 1, Part 2, page 7 (line 1) to page 9 (line 10), to be opposed.

(2) Schedule 1, item 20, page 18 (lines 17 to 30), omit subsections 210(5) and (6).

The reason the opposition is moving these amendments is to give the government the opportunity to have a rethink about a particularly extraordinary decision that they have made in relation to allowing people who have been charged with serious crimes to get expedited access to this scheme.

It's quite extraordinary that the government would seek to classify various serious offences into different categories. Basically, the government is saying that some crimes that are serious are not worthy of consideration, whereas other crimes are. That means, as we're standing here today, the government is saying to Australia that those who have committed crimes that would be eligible for this expedited process to access the Redress Scheme without having to go through the current special assessment process are crimes like extortion, distribution of child abuse material, possession and accessing of child abuse material, kidnapping, robbery, burglary, home invasion, car-jacking and the aggravation of those above crimes. The National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023 shows Labor is soft on crime. It shows their leniency on crime, benefiting individuals who have got serious criminal offences and convictions by offering them a fast-tracked approach to this scheme.

Under the government's legislation that's before us today, those who have received a custodial sentence of five years or more would be eligible to apply for redress without having to go through the current special assessment process—a process that was put in place when the scheme was established in the first place with very good reason. Under Labor's scheme, only those people who are sentenced to five years imprisonment or more for offences such as unlawful killing, sexual offences or terrorism would actually be required to go through the special assessment process. So the government's bill also allows those in jail to apply for redress without having to go through this particular provision. The coalition believes that the current process, which requires a special assessment process, is absolutely appropriate, and these current arrangements actually maintain the integrity and the public confidence in this scheme.

I think it is quite galling that there are people who will be serving custodial sentences for crimes on the list that I just read out a minute ago who will necessarily be given preferential treatment over others on a first-in basis. I'm quite shocked that the minister and the government don't agree that crimes such as unlawful killings, sexual offences, and terrorism are somehow not as equally serious in terms of things like distributing child abuse material, extortion, kidnap or robbery. We're talking about a group of very, very serious crimes. To be jailed for five years or more for one of these offences—we're talking about some pretty egregious conduct. These are evil, evil crimes, and we've got the Labor Party here saying, 'Let's open up the scheme to these people unfettered,' and, in the process, slow down the application for everybody else.

When you consider that one of the key criticisms of survivors is timely access to justice, we are putting in place with this legislation a sort of slowdown provision to enable people who have been convicted of some pretty serious crimes—I don't think anybody in this place or, I certainly hope, the government wouldn't think that some of the crimes that I have outlined are not very, very serious crimes—to get an expedited process. When some of the most serious criticisms of the scheme to date have been timely access to justice, compensation and restorative measures, it seems quite extraordinary that the government is continuing to go down this path.

The amendment that has been put forward by the opposition gives the government the opportunity to reconsider this, because we believe that it would reflect the integrity and the public confidence in the scheme and, at the same time, actually address one of the key criticisms of survivors. So I move the amendment in the opposition's name.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

It might be helpful for people listening to this debate to indicate at the outset that the government won't support any amendments in Committee of the Whole. I just want to outline the rationale for that position and then deal with the amendments moved by Senator Ruston.

The redress scheme is, of course, a partnership between the Australian government and the governments of each of the states and territories. The measures in the bill have been agreed to by all of those scheme partners. New measures outside of that agreement would need to be agreed by all of the jurisdictions, which would hold up the passage of the existing measures and delay the benefit of the changes for survivors, many of whom are elderly. In addition, any changes without proper consideration and consultation would risk the ability or willingness of the institutions who have joined the scheme to stay in the scheme, or of additional institutions to join the scheme. The scheme is premised on institutions voluntarily joining and, in doing so, committing to pay for redress where they are found responsible for abuse. State and territory governments and the Australian government use all available levers to encourage institutions to join, but there is little we could do should institutions choose to walk away. Without the participation of the institutions, there would be no access to redress for many survivors.

In terms of the amendments moved by Senator Ruston, I might focus on the matter that relates to serious criminal convictions. As I understand it, the Liberal Party tried to move this amendment in the House, in addition. The special assessment process for people who have a serious criminal conviction was implemented to protect the integrity of the scheme. Now that the scheme is past the halfway mark, the experience to date has been that the vast majority, some 91 per cent, of people who go through this process are not prevented from accessing redress. This does suggest that the policy settings can be improved so as to not unnecessarily delay survivor outcomes. The bill does not remove the special assessment process; it simply refines the process based on the years of practical experience to date. The bill streamlines the process to only require people with the most serious of offences to undergo the special assessment process, as committed to in the Australian government's final response the second-year review of the National Redress Scheme.

I sought some advice while listening to Senator Ruston's speech on the amendment. I can inform the Senate that, at least for one of the offences she has outlined, you must reasonably infer that, for example—and only for example, not to the exclusion of the other offences—that the offence of distributing child sexual abuse material would require a person to go through the special assessment process. So it is not the case and it should not be claimed that serious offences of that nature are not dealt with appropriately by the bill.

Applicants who have been prevented from accessing the Redress Scheme to date under the existing provisions will still be prevented from doing so. Critically, the bill also includes the ability for the operator to require a person to undergo the special assessment process where there are exceptional circumstances outside of those listed offences, if the operator believes providing redress may affect the integrity of the scheme. That is an important safeguard. It means that, where there is a criminal conviction of five years or more, the operator can require the person to undergo the special assessment process, even if the person's offence is not on the prescribed list.

The current special assessment process will not change. The operator will still need to determine whether providing redress to a person with a serious criminal conviction for a single offence would negatively affect public confidence in the scheme. This process involves the operator asking for written advice from the attorneys-general or the specified adviser of the jurisdiction where the abuse occurred and where the person was sentenced. This change will see people who have committed the most serious offences continue to be prevented from accessing redress where the reputation of the scheme is at risk but not delay access to the scheme for most others, as they will no longer be required to undergo the special assessment process. These changes will not provide swifter access compared to other survivors. They will mean less delay for people who are not and should not be required to go through the special assessment process. This is in no way detrimental to access for all survivors. There has not been and there will not be as a consequence of these changes preferential or priority status afforded as a result of the passage of this bill.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

These amendments from the coalition are shameful, utterly shameful. It's as though they have learnt nothing from the royal commission, which said that this parliament and governments across the country should be survivor focused, not protect the institutions that have abused survivors. Let's be clear about what the coalition is trying to do here. The coalition is trying to shield the Catholic Church, the Anglican Church and state and territory governments who ran state-run institutions from legitimate claims from survivors of child sexual abuse, running again the case for privileged institutions over survivors of child sexual abuse and, in doing so, ignoring all the evidence from the royal commission and the learnings we have had about ensuring that what we do is survivor and victim focused.

The Redress Scheme, as initially drafted, said that if anyone was in jail or if they'd had a sentence of five years or more they were excluded from the Redress Scheme unless they could show exceptional circumstances, in the latter case. As all of the evidence from the royal commission shows and as all of the evidence from survivors has shown, during the royal commission and in the years since, overwhelmingly, victims of child sexual abuse have seen their lives turned absolutely upside down. Yes, some survivors managed to get their life back on track and, despite the abuse, managed to succeed in careers and hold their families together. And that is an incredible testament to those survivors who kept their life on track and succeeded in this traditional measures. But for far too many survivors of sexual abuse that is not what happened to their lives. The abuse led to an ongoing response to that trauma. Many of them found themselves going into the juvenile justice system, then graduated from the juvenile justice system to the adult prison system, and have spent decades in jail. At the core of that was the abuse they suffered in the institution—sometimes repeated horrific abuse in an institution. When you look at the cohorts in our prison systems around the country, far too many of them have this history of childhood trauma and abuse.

What the coalition is trying to do with these amendments is punish them twice—punish these survivors of abuse whose life has been thrown into a downward spiral because of that sexual abuse from an institution. Whether it's the Catholic Church, the Anglican Church, the Scouts, a sporting organisation or a state or territory government, the abuse has thrown their life into a downward spiral and they've found themselves suffering the consequences of that and often decades of imprisonment. Nobody is saying that there should be a complete get-out-of-jail-free card for people's lives if they've been abused. They've been punished and held to account in the criminal justice system for their actions. What the coalition is trying to do is punish them twice and take away any right they have for even a modest amount of compensation for the abuse they suffered as a child in an institution which absolutely knew better and let that abuse happen.

When the coalition comes in here and moves this amendment and tries to make it a law-and-order attack on the government, which is finally doing something decent in this space, let's be clear who the coalition are speaking for. They're speaking for the institutions that abused these children, so they don't have to pay compensation. They're speaking for the Catholic Church that abused these kids and let these kids be abused, so the Catholic Church can keep their money and not see it go to survivors of abuse. They're speaking on behalf of the Anglican Church, Scouts, Girl Guides and sporting organisations that let these children be abused when they knew better. They covered it up, they buried the evidence and they hid the abuse, and who's backing those institutions in? The coalition. The coalition have learnt nothing from the royal commission. They still put powerful institutions before victims of child sexual abuse. They're still backing in the bishops and the cardinals and the CEOs and the abusers. That's what they're doing with the amendments.

The coalition should be shamed for what they're doing. Their backbench should look at what their minister is proposing in this and have a revolt and be ashamed of what the coalition is doing here. We had a royal commission into this, and the royal commission said, 'Put survivors before the institutions.' This is part of this rhetoric that the coalition now have to turn everything into a lowest-common-denominator law-and-order fight, that somehow the Labor government is being soft on law and order because they're allowing victims of historical child sexual abuse to get a small modicum of compensation. That's somehow Labor being soft on law and order. We're going to call that out. This is actually the government listening to the royal commission, looking at the evidence in the Redress Scheme and not sinking to this lowest-common-denominator grubby politics coming from the coalition, when nothing is too low for them. They will even weaponise compensation to victims of child sexual abuse in their law-and-order attack. They should be ashamed, and they should withdraw this amendment.

They should look at the evidence in the review report. The review report said:

The restriction against prisoners applying was in part a response to concerns that confidentiality and access by support services would be difficult. However, given the Royal Commission report stated the evidence that people in jail are more likely than the general population to have been victims of child sexual abuse, the restriction on prisoners applying to the Scheme is perceived as unjust.

That is very much an understatement of the situation. The review report, when it was looking at these restrictions, said they:

… constitute a significant bar discouraging applicants and deterring other potentially eligible applicants from applying.

Yet the plan from the coalition is to actually put more hurdles in the way of survivors—perhaps the most vulnerable cohort of survivors—who have seen their life spin out of control and who haven't had the career and the jobs and the stability that we would hope that all kids would have. Why not? Because, at the core, they were abused by an institution that society trusted. We were wrong to trust those institutions, and we were wrong to prioritise those institutions over survivors. I thought we'd learnt that—but not this mob.

Anne Ruston (SA, Liberal Party, Shadow Minister for Health and Aged Care) Share this | Link to this | Hansard source

Firstly can I say that I find the contribution that we just heard from Senator Shoebridge to be absolutely offensive. As the former minister with responsibility for the National Redress Scheme, I find what you say to be absolutely offensive. I absolutely acknowledge that, in my time as the minister, there was nothing more important than addressing the concerns of survivors and putting survivors at the absolute forefront of everything that we did and everything that I did as minister. To have Senator Shoebridge come in here and suggest that in any way, shape or form we would be seeking to protect institutions from paying their dues for the crimes that were committed against these people is extraordinarily offensive.

As I said, I was the minister at the time. I was the minister who named institutions that refused to sign up. I was the one who shamed those institutions, and I would do it again and again and again because I have always been on the side of survivors. So I think, Senator Shoebridge, that you should probably reflect on some of the things you said. Perhaps you should do a little bit more considering about what has transpired before now. I think that your response coming in here today is a reflection of your lack of understanding of what has actually gone on before.

As I said, I was the minister who was responsible.

It doesn't matter how much yelling comes from the other end of the chamber. I was the minister responsible, and I was absolutely proud that, every single day, every single decision that I made when it came to the National Redress Scheme was one that put survivors at the very centre. It was never the institutions. It never has been the institutions. I find the previous comments made by Senator Shoebridge to be tremendously offensive and directly targeted towards me. I think it reflects very badly on you, Senator Shoebridge, that you do not have the common decency to even acknowledge what I did as the minister, the entire time I was the minister, to put victims at the centre of this scheme as the primary priority. I'm sorry; this reflects badly on you.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I hate to disabuse the senator, but this isn't about the senator. These issues in the scheme have been known for years and years, including when the senator was minister. What did the coalition government do? Absolutely nothing. I'm not going to be lectured on standing up for victims of child sexual abuse by a minister who sat for years in this portfolio and saw this injustice playing out and did nothing about it. And now that finally the Labor government, to their credit, are removing this injustice after years and years of the former coalition government just accepting it as the price of doing business to protect these institutions, I'm not going to stand here and be lectured to by a minister who did nothing on this issue.

I'll tell you who I credit for this parliament and the former government finally acting. I credit the brave survivors and the victims who came and told their truth to the royal commission. I credit the royal commission, which had a trauma-informed response, allowed that truth to be told to the nation and gave those institutions every skerrick of natural justice, and in doing that exposed them for what they were: bullies, deniers—institutions that were putting their assets and their wealth before the interests of victims and survivors. I credit the victims and survivors who finally got us to this point, not politicians in this place.

When we are debating this, it's not about what Minister X said or Minister Y said; it's about the truth on the ground to victims and survivors. And the truth on the ground to victims and survivors right now is that hundreds and thousands of victims and survivors—the most vulnerable cohort whose life has spun out of control and who find themselves in the criminal justice system—are being denied access to even a modest amount of compensation because of actions like the coalition's where they continue to put institutions ahead of those survivors. So, I'm not going to be lectured by some minister who did nothing on this for years. I'm going to listen to survivors and victims, and the Greens are going to listen to survivors and victims.

I'll say this: the government listened to survivors and victims, the review and the family, and they're responding with decency. What's not decent is the Dutton-esque attack using law-and-order politics against the government because they're actually being decent. That's what's offensive in this debate.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that part 2 of schedule 1 stand as printed.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I note that the proposed amendment (2) from the opposition has not been moved. In that case, I move amendment (1) on sheet 2258:

(1) Schedule 1, page 15 (after line 17), after Part 4, insert:

Part 4A — Civil proceedings after accepting offer of redress

National Redress Scheme for Institutional Child Sexual Abuse Act 2018

19A Section 43

Before "If", insert "(1)".

19B Section 43

Omit "this section" (wherever occurring), substitute "this subsection".

19C At the end of section 43

Add:

Civil proceedings after accepting offer of redress

(2) Paragraph (1)(b), as it relates to a person who has accepted an offer of redress, ceases to have effect by force of this subsection for the period of 12 months starting on the day this subsection commences if:

(a) the person accepted the offer of redress in the period starting on 1 June 2022 and ending on 1 November 2023; and

(b) at the time the person accepted the offer of redress:

(i) an order (however described) made by a court was in force to permanently stay civil proceedings brought or continued against a released institution or official for abuse of the person that is within the scope of the scheme; or

(ii) there was a reasonable possibility that, if the person were to bring or continue such proceedings, a court would make such an order or an application for such an order would be made in relation to the proceedings.

(3) The following have effect by force of this subsection if, within the 12-month period mentioned in subsection (2), the person brings or continues civil proceedings (the post-acceptance proceedings) against a released institution or official for abuse of the person that is within the scope of the scheme:

(a) the release and discharge mentioned in paragraph (1)(a), as it relates to the person and the post-acceptance proceedings (including any appeals), is taken not to have been made;

(b) the 12-month period during which paragraph (1)(b) ceases to have effect in relation to the person is extended in relation to the post-acceptance proceedings until the end of the day on which those proceedings (including any appeals) are finally determined.

(4) An order made by a court, in relation to the post-acceptance proceedings, for the payment of compensation or damages for abuse of the person does not affect the person's entitlement to redress under the scheme, whether the order is made before or after one or more components of redress are provided to the person.

(5) A court may, in exercising its discretion in making an order for the payment of compensation or damages for abuse of the person in relation to the post-acceptance proceeding, have regard to any redress payment for the person under the scheme if doing so is just and reasonable in the circumstances.

This amendment seeks to provide a window of opportunity for survivors and victims of institutional abuse who, following a particularly noxious decision of the Supreme Court in the matter of GLJ, agreed to a much smaller redress payment under the statutory scheme and, by doing so, created a bar for themselves for receiving common law damages.

On 1 June 2022, in a decision of the New South Wales Supreme Court in the matter of GLJ against just one of the many, in this case, Catholic institutions that had abused them, the Supreme Court ordered what was called a permanent stay against the survivor and did so on the basis that somehow, because the institution had destroyed its records and the abuser had died, which is a common thread in abuse claims, the institution can't have a fair trial. The court ordered what is called a permanent stay against the survivor and said to the survivor, 'You can never bring these proceedings, because the institution allegedly can't get a fair shake,' and it then actually ordered the survivor to pay the institution's costs. This was in circumstances where the abusive priest was notorious for abusing other kids. There is a raft of evidence about the abuse, and multiple claims had been made against the institution before. But the Supreme Court latched onto a comment that was made by the royal commission.

The royal commission was recommending removing time limits for victims of historic child sexual abuse and the bar to proceedings from time limits for victims of child sexual abuse, a recommendation which was inherently just, because we know that victims of child sexual abuse often take two or more decades before they can finally speak about the abuse that happened to them and, by that stage, the usual three-year time limit has well and truly expired. Prior to the royal commission, those extension-of-time applications had been used in a toxic matter by institutions and the legal system to deny justice to victims of historical child sexual abuse. The royal commission said that should not continue and recommended that all the states and territories and the Commonwealth change their laws and remove the bar to bringing proceedings against institutions for child sexual abuse based on the effluxion of time. They basically said, 'We know that there are decades of delay and the law is operating unfairly.'

But when the royal commission recommended that, they said: 'But, look: there's a reserve power in the courts to protect their jurisdictions in the most extreme case. If it's dreadfully unfair to an institution, they can issue what's called a permanent stay.' It was intended to be only breaking glass in case of fire—the most extreme case. What GLJ did with the decision of Supreme Court Justice Garling was not only breaking the glass but inviting institutions to come in and seek permanent stays against survivors. Once that decision was made in GLJ, institutions all across the country that had previously been dealing in good faith with survivors suddenly said: 'We're going to apply for a permanent stay. You can't win this case. Look at what Justice Garling said in GLJ.' Then a series of other permanent stays were made by the Supreme Court in New South Wales, and then it spread around the country. Around the country the GLJ decision was being used against survivors of abuse.

As it happened, I spoke to many of the survivors and victims and their lawyers and representatives in the months and year or so that followed. They were telling my office and anyone who listened that, whenever they went in with a claim seeking fair compensation for historic child sexual abuse, pretty much every institution said: 'We're going to apply for a permanent stay. You can't win this case. Look at what happened in GLJ. We're going to seek costs against you.' What victims and survivors did then, often on the basis of the legal advice they got, is they either signed up to a really small settlement, which in no way reflected fair damages, or withdrew their civil proceedings and instead went to the redress scheme and agreed to a much, much smaller payment—often 10 per cent or less than they would have got in a civil claim—and they agreed to a settlement and got a settlement and a payment under the redress scheme. They accepted a payment under the redress scheme.

Thankfully, in a decision that was handed down on 1 November 2023, the High Court overturned GLJ and said, 'That's not how the law is meant to operate.' It said that, for the survivor in GLJ, the permanent stay should never have been issued, the court got it wrong, and it really is only in the most exceptional circumstances involving historic child sexual abuse that a permanent stay should ever be granted and the rationale by the court in GLJ was plain wrong, and Justice Garling had got it dead wrong. As a result of that, GLJ's case can now continue after, of course, they were put through enormous stress and delay and huge legal costs by the institution. Now GLJ's case can proceed, but the problem is that, between when GLJ got handed down on 1 June 2022 and the High Court delivered its decision on 1 November 2023, hundreds of survivors accepted redress payments because their lawyers told them that they couldn't win their case because of the permanent stay claims. They've accepted a fraction of fair compensation.

This amendment says to any of the survivors who agreed to a redress payment in that period, between when GLJ was handed down and the High Court overturned it, that they can revisit that. If one of the reasons why they entered into the redress payment was the GLJ decision, they can apply to the court and have the bar lifted, and they can actually have their civil claim reinstated. It's entirely consistent with what the royal commission recommended for child sexual abuse survivors who'd had their claims dismissed because of extension-of-time applications. It's entirely consistent with what we did to deliver fairness when states and territories and the Commonwealth overturned decades of unfairness in the extension-of-time jurisdiction, and it is just so obviously fair to those survivors.

If this amendment is not agreed to, we're basically saying to hundreds of survivors: 'Well, the law was unfair. We know it was unfair. It operated unfairly for 18 months, and because of that unfairness you've received only a fraction of fair compensation, and we're just going to leave it at that.' Surely, we can't do that. Surely, we should say that if any survivor so radically compromised their claim and accepted a redress payment in that window—it's not open-ended; it's only in the window between when GLJ was handed down and when the High Court overturned it—for the next 12 months, not forever, they have a window where they can actually reverse that election and go back and get fair compensation in the civil courts. I would urge this chamber to seriously consider this amendment. I'd urge them to accept it and, again, put survivors ahead of the institutions.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

As I indicated at the outset, the government's position is a blanket view about amendments to the bill for the reasons that I set out earlier, and that is that, principally, amendments would require the agreement of the other partners in the process—that is, the states and territories. That is the first basis for the government's opposition to amendments to the legislation.

I do want to take the chamber to some of the issues that are enlivened by the amendment and Senator Shoebridge's contribution. This scheme, of course, is survivor focused. It is designed, in response to the royal commission, as an alternative to civil litigation for survivors of institutional child sexual abuse. It does have a lower evidentiary threshold than what is required in civil or criminal legal proceedings. What that means is, consistent with the recommendations of the royal commission, that awards under the scheme do release institutions from other proceedings. That principle is important to the overall operation of the scheme and to the agreement of the states and territories on the one hand, but also to the participation of institutions in this scheme, which is also a fundamental underpinning of the practical and effective operation of the scheme.

The scheme offers free, trauma-informed, culturally appropriate, expert legal support services to survivors so that they have the opportunity to understand the effect that accepting an offer of redress has on their civil legal rights. This means that survivors are able to make an informed choice as to whether they wish to accept the offer that is made to them and, in doing so, release the institution or institutions and their associates and officials—excluding, of course, the perpetrator—from civil liability for abuse within the scope of the scheme, or seek remedy through other avenues.

Voiding a class of civil releases is likely to endanger present and future institutional participation. It would significantly change the basis upon which institutions agree to join the scheme and could deter institutions from joining the scheme in the future. Without the participation of the institutions in the scheme, the scheme cannot progress applications and survivors can't continue to access redress. It's on that basis that the government has a blanket view in relation to amendments. It's also the basis upon which I've outlined that we oppose the motion moved by Senator Shoebridge.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for that contribution. It's right in part, that the scheme is meant to be survivor focused. I agree with many of the things that Senator Thorpe said in her contribution today about some of the structural failings in the scheme. We should reflect on those because they're being identified repeatedly in the ongoing inquiry, which I'm a participant in, into the Redress Scheme. It's meant to be survivor focused, and it has provided substantial relief to many survivors. I think we should acknowledge that. But there are serious defects with how the scheme operates.

One of the serious defects is that it privileges institutions over survivors. There's an asymmetry of information in applications. The institution has all the information; the survivor gets almost none. The survivor gets an edited version of the determination, even, and doesn't really know the basis upon which the payment is made to them. That asymmetry is real, and it's not trauma informed.

And there's this constant threat by institutions that, if the scheme is tweaked to deliver any more fairness toward survivors, they'll just walk away. They'll just exit the scheme. We should not accept that from the institutions. We should collectively not accept that from the institutions—this bullying, threatening attitude from institutions that, if we even do the smallest tweak for fairness, they'll just walk away from the scheme. If they do that, we should come together as a nation and, if necessary, refer the power to hold them and bind them into the scheme. We should say clearly to them, 'We're not just going to let you walk away when we want to deliver a small snippet of fairness to survivors.'

But the idea that simply opening this short window to survivors would somehow see institutions walk away or see their position prejudiced is actually not true, because all of the institutions who join the scheme would have assumed that they would be making payments based upon the law as we understood it after the royal commission recommendations were implemented. GLJ was a bolt out of nowhere. It would not have featured in any of their costings or actuarial estimates. It was literally a bolt out of the blue that suddenly gave the institutions a potential windfall, obviously at the cost of survivors. So none of the assumptions that the organisations had about the cost of the scheme would have been informed by GLJ.

What this amendment seeks to do is just put us back to where we were before GLJ happened. It restores the status quo to 1 June 2022. That isn't a case of prejudicing the institutions at all; it's just restoring that fairer situation that happened before GLJ was decided and up until it was overturned. I will ask the minister, though: has the minister responsible for the scheme commenced discussions with the states and territories about the effect of GLJ? Has there been any communication or any efforts to seek to remedy this unfairness with any of the minister's state or territory colleagues?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I'm advised that this matter has been discussed by the Commonwealth and state attorneys-general.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Is there a process in place as a result of those discussions to look at how the unfairness could be remedied, or is it something that the government has just shut the door on?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I think all governments will be considering the implication of the matter that you've referred to but indeed other matters as they arise upon the operations of the scheme.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Just to be clear, Minister, is the matter of GLJ and its overturning and this period of some 18 months of unfairness still a live matter for discussions between the state, territory and Commonwealth ministers responsible?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes. I want to be really clear: it has been discussed. These matters are always, of course, before the Commonwealth and the states and territories. I don't want to create an impression that there is a process—I'm not advised about that—but it has been the subject of discussion, and all of these matters will always be being considered.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I don't mean for this to go on forever, but has it been discussed, and has there been a decision made not to proceed to remedy the unfairness for these survivors?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

There is no decision of the kind that you've referred to, to my knowledge.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Greens amendment (1) on sheet 2258 be agreed to.

Lidia Thorpe (Victoria, Independent) Share this | Link to this | Hansard source

I move the request for amendment on sheet 2475 standing in my name:

That the House of Representatives be requested to make the following amendment:

(1) Schedule 1, page 15 (after line 17), after Part 4, insert:

Part 4B — Expanded access to redress

National Redress Scheme for Institutional Child Sexual Abuse Act 2018

19D Section 4 (paragraph (e) of the paragraph beginning "To be entitled to redress")

Omit "or a permanent resident", substitute ", a permanent resident or currently resides in Australia".

19E Section 11 (paragraph beginning "Then the person must")

Omit "or a permanent resident", substitute ", a permanent resident or currently resides in Australia".

19F Paragraph 13(1)(e)

Repeal the paragraph, substitute:

(e) the person is an Australian citizen or a permanent resident (within the meaning of the Australian Citizenship Act 2007), or a person who currently resides in Australia, at the time the person applies for redress.

2475-EM

National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023

(Request for an amendment to be moved by Senator Thorpe, in committee of the whole)

Statement pursuant to the order of.the Senate of 26 June 2000

Amendment (1)

Amendment (1) is framed as a request because it amends the bill to expand the eligibility criteria for redress payable under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018. The effect of the amendment is to extend eligibility to persons who currently reside in Australia at the time they apply for redress, even if they are not an Australian citizen or a permanent resident.

As the amendment is intended to increase the number of individuals that would be eligible to receive a redress payment, the amendment is likely to increase the expenditure under the standing appropriation in section 161 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.

Statement by the Clerk of the Senate pursuant   .to the order of the Senate of 26 June 2000

Amendment (1)

If the effect of the amendment is to increase expenditure under the standing appropriation in section 161 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 then it is in accordance with the precedents of the Senate that the amendment be moved as a request.

This requested amendment would allow noncitizens and non-permanent residents residing in Australia to have access to the scheme. The Parliamentary Joint Committee on Human Rights has noted that victims of violations of human rights within Australia's jurisdiction are entitled to a remedy irrespective of their residency or citizenship status.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I wish to indicate the Greens' support for Senator Thorpe's request for amendment. The idea that we would permit a scheme to operate where a child can be abused in an Australian institution, on shore in Australia, but, no matter how horrific or longstanding the abuse and no matter the circumstances, unless they are a citizen or permanent resident they cannot seek compensation under the Redress Scheme for that abuse is something that, surely, all of us should reflect upon and think is deeply unfair. The effect of Senator Thorpe's requested amendment, which we support, is to say that, if you're a child and you've been abused in an Australian run institution in Australia, regardless of your nationality, your citizenship or your immigration status, you should have a right to apply to the Redress Scheme for fair compensation. That's a pretty fundamental principle that the Greens support and, for those reasons, we endorse the request.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I indicate the government's position in relation to that again and add at the beginning our blanket approach. In relation to the merits of this particular proposition, the government does not support the request for amendment. The scheme's eligibility criteria include that a person is an Australian citizen or permanent resident at the time that they apply for redress. The government, in conjunction with all of the state and territory governments as partners in the scheme, considered this eligibility criterion in response to the second-year review of the scheme. As a result of that consideration, which went into quite some detail, and with the agreement of each of the state and territory governments, the government has amended the National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 to enable former child migrants who are not Australian citizens or permanent residents to apply to the scheme. So that change has been made as a result of that detailed consideration following the second-year review of the scheme.

Former child migrants are a group of survivors known to be affected by the citizenship and residency criteria, and that change enables access to redress for that group of survivors who experienced institutional child sexual abuse in Australia and helps to hold the relevant institutions to account. All of the governments have agreed to further consider other noncitizen and non-permanent-resident groups, but we're not in a position to make any expansion to the scheme's eligibility criteria in relation to this bill without further consideration and agreement from all of the jurisdictions who are partners in the scheme.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Senator Thorpe's request (1) on sheet 2475 be agreed to.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 2212 together:

(1) Clause 2, page 2 (at the end of the table), add:

(2) Page 47 (after line 10), at the end of the Bill, add:

Schedule 3 — Other amendments

National Redress Scheme for Institutional Child Sexual Abuse Act 2018

1 Section 6 (after the definition of sexual abuse )

Insert:

Note: See also section 6A.

2 After section 6

Insert:

6A Sexual abuse includes virginity testing

To avoid doubt, sexual abuse includes the examination of female genitalia, with or without consent, for the purpose (or purported purpose) of determining virginity.

These amendments address a problem that you'd hope the scheme would never have created for itself. These amendments provide that, to avoid doubt, sexual abuse includes the examination of female genitalia, with or without consent, for the purpose or purported purpose of determining virginity. I read onto the record a submission that was given to the redress committee by a woman who's now in her late 60s or early 70s who, as a ward of the state, was repeatedly virginity tested at the direction of the institution when she was a kid. She was insulted, she was abused, she was assaulted during those repeated tests, and, when she brought her redress claim for the sexual assaults that happened to her, her redress claim was denied on the basis that it was a medical procedure and not sexual assault. Because it was directed by a doctor, it was a medical procedure and not assault.

I still remember the kind of sickening feeling that I got when I first read that. This woman, after suffering that as a kid—the shame and the torment and the abuse that she'd had—finally had the courage to come and bring the claim. She brought the claim, with the assistance of CLAN—again, I want to record my ongoing gratitude to people like Leonie Sheedy and others at CLAN who support these women—and then had it denied in those circumstances. She said that it was like being abused all over again. She was retraumatised. I still remember reading it for the first time and then hearing from not just her but others who had had this happen to them, and I can't believe we would let that continue. In 2024, I can't believe we'd let that continue. This amendment says that that can't ever happen again. It says that, for the purposes of the scheme, virginity testing is abuse; it's sexual abuse. Indeed, it's nothing novel to the common law world. The UK has passed a law that says virginity testing is a crime—full stop. It's a crime in the UK because there's never a legitimate basis for virginity testing.

I recall, when it was raised in the committee, that I was then contacted by Reverend Bill Crews. If people don't know Reverend Bill Crews, he runs the Rev. Bill Crews Foundation. He's an institution of decency in Sydney, based in the inner west and now reaching out across all of Sydney. He's saved so many kids, and the institution has saved so many kids and provided so much support for homeless people. I regard him as a friend and an institution of decency in my home city. Bill contacted me and said, 'David, I was on the streets of Kings Cross when I first heard about this, and we knew it was wrong then, in the late sixties and early seventies.' So I invited Bill—and I want to credit the chair of the redress committee, who also invited Bill—to give evidence to the redress committee about what he'd heard and what he knew about this. With your indulgence, I'll read what Bill said to the inquiry:

In 1971 I was a research engineer at AWA MicroElectronics … Through a series of events, I ended up being involved in the Wayside Chapel at Kings Cross, particularly as a volunteer, and then later on becoming employed by them. One of the things that stuck out to me was the number of homeless, runaway and abandoned children at risk on the streets of Kings Cross. Later research I did showed that the two places where kids in trouble went, or headed for, were Kings Cross and the Gold Coast. The stories that I heard and that I was talking with kids about were just horrific, and it was wrong then! I couldn't believe how people would allow these things to go on.

There were stories kids would tell me of being raped in institutions or of being adopted and the adoptions failing and then going back into so-called care and being abused in the care. One of the stories that really got to me was of a young girl I'd talk with a lot—I've got an apology from DoCS on the wall here. She used to run away from the institution she was in. She was a young Aboriginal girl and she used to rub her skin against the bricks, hoping it would turn white so that they wouldn't have to rape her anymore. I'd find kids who had been adopted and given back to the institution and then run away from the institution. It was just appalling. It was like, 'My God!'

Then I began to hear about these young girls. They were telling me they had to undergo these virginity tests, and I said, 'What?' They were explaining that often it was done without any gloves or anything. It was just done. I used to talk a fair bit to Bill Langshaw, who was the head of child welfare at the time, and he said 'Look, we are setting up a child welfare review committee. How about you go on it?' Oh, dear! It brings me to tears. The first meeting of the committee was run by this Roman Catholic priest. The meeting started and he said, 'I haven't been in an institution for 44 years and that makes me eminently suitable to run this thing.' I got up and I talked about the fact that these virginity tests were being done and there was no need for them. Of course, they said, 'Oh, no. We have to do that.'

Reverend Crews went on and dealt with some of what happens in detail. He then said:

There were many practices in that time around children that were wrong then and are wrong now. I think it was because I came into it with no prior background and, coming from a call it a normal home, it was just obvious that it was all wrong, and I began to make a fuss. I found that the child welfare workers or whatever—I just didn't have anything to do with them in the end. There were all these sorts of practices. I came across all these young girls …

His evidence continued, and I ask members to read it.

What I say is this: anybody who was decent knew this was wrong when it was happening. They knew it was wrong. Bill Crews came to it and saw it for the first time as a young man, and, when they told him they were doing it, he knew it was wrong. He raised it with the authorities at the time, and he was shut down by the state committee responsible for dealing with it because it was chaired by a Catholic priest who just wanted it to go on. The insults that these young girls faced—they were called some of the most appalling names. Now they're being denied redress.

For those reasons we move these amendments, and for those reasons we ask that, regardless of what the institutions say about wanting to walk away from the scheme, and regardless of what else is said about how complicated or hard it is—this is not complicated—you just fix the injustice.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The government won't be supporting this amendment, and I think it's important to carefully set out the basis upon which the government does not support the amendment. Consistent with the recommendations of the royal commission, the scheme's legislation defines sexual abuse:

sexual abuse of a person who is a child includes any act which exposes the person to, or involves the person in, sexual processes beyond the person's understanding or contrary to accepted community standards.

That is the definition for the purpose of the operation of the scheme. Of course, the course of conduct that Senator Shoebridge has outlined is—I'm not sure that there are the correct words to describe that course of conduct. It is open of course to the states and territories. Senator Shoebridge referred to the United Kingdom, in its criminal code, providing for a specific reference to this behaviour, so-called virginity testing, as having a special callout and treatment under the criminal law. That is open to the jurisdictions that deal with those kinds of offences in Australia.

But the bill in front of the chamber now is to deal with the operations of the scheme itself. Applications are assessed by independent decision-makers on a case-by-case basis, informed by the definition that I set out just a moment ago. They are considered by those independent decision-makers on a case-by-case basis once the relevant information from both the applicant and the institution is considered. The scheme cannot direct an independent decision-maker to find that an application is eligible.

Importantly, legislating that one category of abuse is automatically considered to be within the definition of sexual abuse fundamentally changes the basis upon which the whole scheme is designed, and it undermines the scheme's current administrative decision-making basis. It would effectively establish a hierarchy of survivors and send a message that one identified subgroup of survivors should receive preferential treatment or different treatment. This would set a precedent, and other survivor groups could be expected to call for similar treatment. Where a person's account of events falls within the description of sexual abuse under the redress act—I listened carefully to Senator Shoebridge's contribution—it is open to an independent decision-maker to determine the abuse as sexual abuse and, where all of the other criteria are met, make an offer of redress for that abuse.

With specific reference to intrusive internal examinations, the scheme provides guidance to independent decision-makers to support such a decision where a purported medical procedure was involved. This guidance was updated in response to a recommendation of the second-anniversary review.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for that explanation. I'll note a couple of things. This amendment by no means fundamentally changes the definition; the broad definition remains as set out. What it simply does is say, 'Within the broad definition, let's have no doubt that virginity testing amounts to abuse.' It in no way undermines or limits that broad definition; indeed, it supports it. When the minister says that there will be different treatment for this class of survivors—Minister, there already is different treatment for this class of survivors, and the different treatment they're facing is having their claims denied, and in circumstances that I think all of us would agree are fundamentally wrong. And so I ask the minister: does the government have a view as to whether or not virginity testing was then and is now in breach of accepted community standards?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

There is no question that the behaviour that you have described conducted by an institution is utterly contrary to acceptable community standards. It is utterly horrifying.

Honourable Senator:

An honourable senator interjecting—

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

At any time.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the committee is that amendments (1) and (2) on sheet 2212 as moved by Senator Shoebridge be agreed to.