Proposed new law for the National Redress Scheme

The Australian Government has proposed a new law to improve parts of the National Redress Scheme for survivors of institutional child sexual abuse. Below we explain:

• why the government has proposed this new law
• what the proposed new law will do
• when the proposed new law will come into effect.

We also share our thoughts on the proposed new law.

The information in this blog post must not be relied upon as legal advice. Seek legal advice about your own particular circumstances.

Why has the Australian Government proposed a new law for the National Redress Scheme?

On 26 March 2021, Ms Robyn Kruk AO delivered the final report of the second year review of the National Redress Scheme (NRS). The review had run for almost 9 months and involved significant consultation and research. knowmore made a submission to the second year review, highlighting some of our most pressing concerns with the NRS.

The review concluded that ‘a significant and urgent reset’ of the NRS was required and made 38 recommendations for change. The Australian Government provided an interim response to the second year review on 23 June 2021, and it published its final response on 4 May 2023.

The proposed new law makes some of the changes the Australian Government said it would make in its final response to the review.

What would the proposed new law do?

The proposed new law is the National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023 (the Bill). It would change some things about how the NRS works. The key changes are:

• allowing survivors in jail to apply for redress
• changes to the application process for survivors with serious criminal convictions
• changes to the review process for redress decisions
• changes to when protected information can be disclosed
• a new process to allow finalised applications to be re-assessed if an institution joins the NRS later.

We talk more about these changes below.

Allowing survivors in jail to apply for redress

The proposed new law would allow survivors in jail to apply for redress, as recommended by the second year review.

At present, a person in jail cannot apply for redress unless there are exceptional circumstances. The second year review noted the injustice of this, as the Royal Commission into Institutional Responses to Child Sexual Abuse found that people in jail were more likely to have experienced child sexual abuse.

Changes to the application process for survivors with serious criminal convictions

The proposed new law is likely to reduce the number of survivors with serious criminal convictions who have to undergo a special assessment process before they can be considered for redress.

At present, all survivors who have received a jail sentence of 5 years or more for a single criminal offence must undergo the special assessment process. The proposed new law would limit the special assessment process to survivors who have received a jail sentence of 5 years or more for one of the following types of offences:

• unlawful killing
• a sexual offence
• a terrorism offence.

Changes to the review process for redress decisions

When a survivor receives a redress offer, they can ask the NRS to review the offer. The proposed new law would change how the review process works. This includes by:

• allowing survivors to provide new information with their review application
• allowing the NRS to request new information as part of the review process
• providing some protection against a redress payment being reduced as a result of the review.

Changes to when protected information can be disclosed

Generally speaking, ‘protected information’ is information about a person or institution that is obtained by the NRS for the purposes of the NRS. The law strictly controls when protected information can be disclosed. The proposed new law would make some changes. These include:

• allowing the NRS to give applicants information about non-participating institutions
• allowing the broader disclosure of protected information by institutions for the purpose of investigation and disciplinary procedures.

A new process to allow some finalised applications to be re-assessed

The proposed new law would establish a re-assessment process for finalised applications. This new process would be relevant when:

• more than one institution was identified by the survivor in their redress application (or identified by the NRS while processing the survivor’s application)
• the survivor had their redress application finalised with at least one non-participating institution, and
• at least one of the non-participating institutions later joined the NRS or was later covered by a government under the NRS’s funder of last resort arrangements.

The re-assessment process may allow survivors in these circumstances to receive a higher redress payment and a direct personal response from the institution(s) that later joined the NRS.

When will the proposed new law come into effect?

The Bill has not been passed by the Australian Parliament and is not yet a law. The next meeting of the Australian Parliament will be in February 2024.

If the Bill is passed by the Australian Parliament, the proposed changes are expected to come into effect in 2024.

What does knowmore think about the proposed new law?

We welcome the proposed new law as an important step to improve survivors’ experiences of seeking redress. We support the proposals to:

• allow survivors in jail to apply for redress
• allow the NRS to give applicants information about non-participating institutions
• allow finalised applications to be re-assessed if an institution later joins the NRS.

At the same time, we have some concerns. In particular, we are concerned that:

• a redress payment can still be reduced on review in some circumstances, including as the result of new information
• there are limited safeguards in relation to the NRS requesting new information as part of the review process and in relation to the disclosure and use of survivors’ information.

The proposed new law also leaves much unfinished business from the second year review of the NRS. The Australian Government’s final response to the second year review expressed the government’s support for recommendations that have not been fully implemented and that are not addressed by the proposed new law — for example, combining the recognition of sexual abuse payment and the impact of sexual abuse payment to recognise that child sexual abuse impacts the life of every survivor.

The Australian Government has also supported recommendations where it isn’t clear if and how the recommendations have been implemented. These include recommendations to:

• improve redress for survivors who experienced sexual abuse in a medical setting
• improve the treatment of prior payments, including Stolen Generations payments
• improve counselling support
• improve direct personal responses
• improve access to survivor support services, including additional funding for services.

knowmore continues to advocate to improve the NRS so that it provides redress in a way that is survivor-focused, trauma-informed and culturally safe. Read more about how we are leading change through law reform and advocacy.