Senate Community Affairs Legislation Committee, , 10:53:35 to 11:00:52
Examination of the "reasonably likely" standard of proof and safeguards implemented to prevent fraudulent claims in the Redress Scheme.
Topics: Human rights, Integrity
Speakers: Speaker 68, Senator Malcolm Roberts, Unknown Speaker, Michael Lye, Ellie Whiteaker
Is that correct?
That's correct. We've taken steps since that review.
That's what I was going to ask you about. My questions are about the apparent lack of safeguards, adequate safeguards in place to ensure claimants are genuine. So what safeguards have been included since the NAO report identifies shortcomings in the scheme? What do you mean by that?
provide that information to a decision maker to be informed about. So data matching, if he says he was at a school, or she's the victim claimant says they're at a school or a religious venue or whatever, then he was in Siberia at the day at the time, then you can say that data matching rules him or her out. So exactly.
Okay. What were the other safeguards?
So that they're probably the three key safeguards, Senator. Um and again, there's further in that uh space of using information that we have available to us uh across government.
What has been done to avoid claims based on misidentification of alleged perpetrators or claimants? Pretty much what you just said.
Yes.
Plus the secret tool. Have there been examples considered under the scheme of misidentification based on earliest and/or duplication of names?
So the scheme has a reasonably likely threshold that is the basis on which a decision is made. So I'm the scheme was established to be a credible alternative to a civil claim through the courts. Uh and on that basis, the the onus of proof is different under the redress scheme than it would be through uh uh a court. Um the scheme was established on the basis that there is a range of evidence available that demonstrates that uh abuse occurred in a range of institutional settings. Um there are from time to time concerns about mischaracterisations, but because of that reasonably likely threshold, the information is considered is it reasonably likely that these things occurred to this person in this place?
Thank you. Are there any quality assurance mechanisms that have been introduced to ensure accuracy of information being placed before the scheme's independent decision makers?
So Senator, I think if if referring to the findings of the AI review, a range of steps have been taken to support quality. Uh enhanced uh process work to ensure that information is complete before it is provided to an independent decision maker and that that information is being considered in its totality, as well as uh training and um further supports to independent decision makers to consider that, including, for example, uh research around perpetrator behaviour.
Are the institutions given the opportunity to examine relevant records, identities, dates, and like information in order to provide evidence for the independent decision maker?
Yes, and so there's a mandatory information gathering process under the act.
Are the institutions given the opportunity to present evidence, including that which may contradict evidence in an application? How would the scheme deal with an institution that's unable to demonstrate holding indemnity insurance?
So, Senator Umdemnity Insurance is not a requirement for participation in the scheme. Uh an institution makes its own decisions about whether it will participate. They're liable. Correct.
Come back to your um your comment about reasonable likelihood. Why does the scheme apply a statutory standard of proof based on reasonable likelihood? Which how do you meet that test?
So, Senator, I think through the Royal Commission uh that recommended establishment of the scheme, including for um a large number of care leavers, for example, uh, who uh uh uh struggle to have complete records. The basis was in recognition of significant evidence provided through the Royal Commission process that there was sufficient evidence that these things happened to people in the care of institutions, and that in establishing a scheme that was to be an alternative to a court process, the threshold was different on the basis that out of the Royal Commission governments collectively agreed that the basis of the scheme started at it believing a survivor's account.
Okay, so I won't ask your opinion of that, because I can't. Um the civil standard of proof is based on the balance of probabilities. Uh which means that it's more likely to have happened than not have happened, which is a higher bar than reasonable likelihood.
Does the scheme make that's right, Senator Bailey? Sorry. I'm not sure that's right, but um, I don't want to debate. With you, but I'm not.
I'm not having a debate, I'm asking really. Well I'm I'm not an expert in this at all.
Yeah. I think I think we'd just like to stay with uh this is why the Royal Commission set the stand the standard that it didn't cases here.
Okay. Does the scheme make provision for correcting materials shown to be the product of mistake error or fraud on either party?
Yes, Senator, and there are a review provisions under the Act that allow for that to occur even after an independent decision maker has made a determination.
Will there be a facility? Last question, Chair. Will there be a facility to reassess or revoke a decision made through fraud or material error?
There are provisions under the Act that allow for that, yes.
Because that'll contribute to the integrity of the scheme.
Yes.
So it's an important work. We hope you've safeguards apply. Thank you, Chair.
Thank you, Senator Roberts.