BILLS DIGEST NO. 120, 2017–18
PDF version [775KB]
Owen Griffiths
Law and Bills Digest Section
18
June 2018
Contents
The Bills Digest at a glance
Purpose of
the Bills
Structure of
the Bills
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Amendments
Bill
Date introduced: 10
May 2018
House: House of
Representatives
Portfolio: Social
Services
Commencement: If
Royal Assent is before 1 July 2018, the Acts will commence on 1 July 2018. If Royal
Assent is on or after 1 July 2018, the Acts will commence on the earlier of a
day fixed by Proclamation or six months after Royal Assent.
Links: The links to the Bills, their
Explanatory Memoranda and second reading speeches can be found on the Bills’
home pages for 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, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
June 2018.
The Bills Digest at a glance
What the Bills do
The National Redress Scheme for Institutional Child Sexual
Abuse Bill 2018 will establish a National Redress Scheme for Survivors of
Institutional Child Sexual Abuse (the scheme). The scheme responds to
recommendations made by the Royal Commission into Institutional Responses to
Child Sexual Abuse. The Bill builds on earlier proposed legislation for a Commonwealth
Redress Scheme and reflects that most state governments have now agreed to
participate in the scheme and pass referral legislation.
The related National Redress Scheme for Child Sexual Abuse
(Consequential Amendments) Bill 2018 includes changes to make redress
payments exempt from certain income tests and bankruptcy recovery and exempts
decisions under the scheme from review under the Administrative Decisions
(Judicial Review) Act 1977. Amendments will also be made to allow the scheme
to access social security information and protect the privacy of applicants and
institutions. The scheme will also be exempt from age discrimination law to
allow the scheme to prevent children from applying.
Key features of the scheme
The scheme is intended to operate for ten years and will
provide redress to eligible survivors of institutional child sexual abuse,
comprising three components:
- a
monetary payment of up to $150,000
- access
to counselling and psychological services under the scheme or a payment to access
counselling and psychological services of up to $5,000 (depending on location) and
- a
direct personal response from the responsible institution(s) (if requested by
the survivor).
To be eligible for redress, applicants will need to meet a
number of criteria. The Operator of the scheme (the Secretary of the Department
of Social Services) must determine there was a reasonable likelihood the
applicant was the victim of sexual abuse and one or more participating
institutions are responsible for the abuse. The applicant must have been a
child at the time of the sexual abuse, an Australian citizen or resident, and
the abuse must have occurred prior to the scheme start date (expected to be 1
July 2018). Applicants can only make one application and must waive their
rights to take civil action against responsible institutions and officials (but
not the abuser) in order to receive redress.
The scheme is intended to operate on the principle that
responsible entities will pay for redress payments. However, in some
circumstances where a government institution is determined to be equally
responsible for abuse with a defunct institution, it may be a funder of last
resort.
Key issues
A number of issues have been raised by stakeholders in
relation to the scheme, particularly where the scheme differs from the
recommendations made by the Royal Commission. These include:
- the
amount of redress (the Royal Commission recommended payments up to $200,000)
- access
to counselling and psychological support and other assistance services
- restrictions
on eligibility (including restrictions relating to citizenship, serious
criminal convictions, non-sexual abuse and children)
- ambiguity
regarding the operation of the scheme and a reliance on the rules and
- the
procedures for survivors to claim redress (such as a single application
restriction).
Purpose of
the Bills
The National Redress Scheme
for Institutional Child Sexual Abuse Bill 2018 (the Bill) implements the
Commonwealth’s response to the recommendations of the Royal Commission into
Institutional Responses to Child Sexual Abuse. This will be achieved by
establishing a National Redress Scheme for Institutional Child Sexual Abuse.
The main objects of the Bill, listed in subclause 3(1),
are to:
- recognise
and alleviate the impact of past institutional child sexual abuse and related
abuse and
- provide
justice for the survivors of that abuse.
The related National Redress
Scheme for Child Sexual Abuse (Consequential Amendments) Bill 2018 (Amendments
Bill) will amend a number of pieces of legislation to facilitate aspects of the
scheme.
Structure
of the Bills
The Bill consists of seven chapters which set out the scheme:
- Chapter
1—Introduction
- Chapter
2—The National Redress Scheme for Institutional Child Sexual Abuse
- Chapter
3—Special rules to deal with exceptional cases
- Chapter
4—Administrative matters
- Chapter
5—Participating institutions, participating groups and participating jurisdictions
- Chapter
6—Financial matters and
- Chapter
7—Other matters.
The Amendments Bill consists of five schedules which
contain consequential amendments in relation to the establishment of the scheme:
- Schedule
1—National redress scheme payments exempt from income tests
- Schedule
2—National redress scheme payments non-divisible property in bankruptcy
- Schedule
3—National redress scheme decisions exempt from judicial review
- Schedule
4—Disclosure and protection of information under the national redress scheme
and
- Schedule
5—Only adults can apply under the national redress scheme
Background
On 11 January 2013, the then Prime Minister, Julia Gillard,
announced the appointment of a Royal Commission into institutional responses to
allegations and incidents of child sexual abuse and related matters (Royal
Commission). [1] The terms of
reference of the Royal Commission included inquiring into:
... what institutions and governments should do to address, or
alleviate the impact of, past and future child sexual abuse and related matters
in institutional contexts, including, in particular, in ensuring justice for
victims through the provision of redress by institutions, processes for
referral for investigation and prosecution and support services.[2]
In September 2015, the Royal Commission released its Redress and civil litigation report, which
responded to this term of reference. A key recommendation of the Royal
Commission was that ‘[i]n order to provide redress under the most effective
structure for ensuring justice for survivors, the Australian Government should
establish a single national redress scheme’.[3]
However, the Commissioners also recognised that a ‘single national redress
scheme is likely to require significant national negotiations and that these
negotiations are likely to take some time’.[4]
The Royal Commission considered the appropriate level of
monetary payments for redress should be:
- a
minimum payment of $10,000
- a
maximum payment of $200,000 for the most severe cases and
- an
average payment of $65,000.[5]
On 4 November 2016, the then Attorney-General, George
Brandis, and the then Minister for Social Services, Christian Porter, announced
a Commonwealth Redress Scheme for survivors of institutional child sexual
abuse. The joint media release noted:
The Government will establish a best practice Commonwealth
Redress Scheme and invite other governments and institutions to ‘opt-in’ to the
Commonwealth scheme on the ‘responsible entity pays’ basis recommended by the
Royal Commission. The Government acknowledges that survivors across the country
need and deserve equal access and treatment. That is why the Government is
taking the lead and setting up a Commonwealth scheme to provide redress for
survivors of child sexual abuse in Commonwealth institutions, and inviting
states, territories and other non-government institutions to join.
While the Commonwealth is unable to force participation in a
national scheme, the Government will be working closely with states,
territories and other non-government institutions to work towards maximising
national consistency. A truly national scheme requires the support of the
states and territories.[6]
The Ministers also announced the establishment of an
Independent Advisory Council ‘bringing together a broad group of specialists,
including survivor groups, legal and psychological experts, to provide advice
on the implementation of the scheme’.[7]
The Budget 2017–18 included $33.4 million to establish the
scheme. The Budget papers noted:
The Scheme has been designed in close consultation with the
Independent Advisory Council on Redress appointed by the Prime Minister in
December 2016. The Scheme will commence in March 2018 and start receiving
applications from 1 July 2018 from people who were sexually abused as children
in Commonwealth institutions. The Commonwealth will continue to engage with
States, Territories and non-government institutions to encourage them to join
the Scheme to promote a nationally consistent approach to redress. Redress
payments will be exempt from income tax.[8]
On 9 May 2017, Attorney-General Brandis and Minister Porter
announced that from March 2018, ‘a dedicated telephone helpline and website
will be available to provide information to survivors and their families about
the Scheme’ and that from July 2018 ‘applications for redress will be open to
survivors of abuse in Commonwealth institutions’.[9] The Department of Social Services
(DSS) National Redress Scheme webpage is available here.[10]
The National Redress Information Line is 1800 146 713.
The Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 was introduced
into the House of Representatives on 26 October 2017 together with a related
Amendments Bill (the Commonwealth Redress Scheme Bills).[11]
These Bills would have established a Commonwealth Redress Scheme which covered
Commonwealth institutions, participating territory institutions and participating
non-government institutions of a territory. The Commonwealth Redress Scheme
Bills were referred to the Senate Community Affairs Legislation Committee for
inquiry and report (discussed below).
On 15 December 2017, the Royal Commission delivered its final report. The final report consisted of
17 volumes which contained a broad range of recommendations concerning:
- nature
and cause
- making
institutions safe for children
- improving
institutional responding and reporting
- recordkeeping
and information sharing
- advocacy,
support and therapeutic treatment services
- children
with harmful sexual behaviours
- contemporary
out-of-home care
- schools
- sport,
recreation, arts, culture, community and hobby groups
- contemporary
detention environments
- religious
institutions and
- beyond
the Royal Commission.[12]
On 8 February 2018, the Prime Minister, Malcolm Turnbull,
announced that he would deliver a national apology to survivors of
institutional child sexual abuse ‘before the end of the year’. In relation to
the proposed scheme, he stated:
Firstly, it is about unequivocally accepting that the events
occurred. The significance of those three words—'I believe you'—cannot be
overstated. Secondly, the scheme recognises the suffering that survivors have
endured as a result. Thirdly, the scheme is designed to ensure that
institutions take responsibility for the abuse that occurred on their watch,
perpetrated by their people, people entrusted with caring for our children, and
some of the most vulnerable children.
But the scheme will fulfil its promise of justice only if we
have maximum participation across all jurisdictions. For this to occur, the
states must take urgent action and refer the appropriate power to the
Commonwealth in order for them to participate from 1 July. We have been working
closely with each jurisdiction to encourage their participation in the scheme.
Unless the states agree to participate, institutions within their jurisdictions
will not be able to join. Survivors deserve much better and I urge the premiers
in all the jurisdictions to prioritise this work and join the redress scheme
without further delay. I also urge the non-government institutions to commit
now to joining the scheme.[13]
On the same day, Attorney-General Christian Porter stated:
Excuses for failing to join the scheme must end. Lingering
reasons for delay are now starting to look to any independent observer as if
minor details are being manifestly and deliberately used as excuses for
needless delay. Excuses are what created this problem, and they should not
prevent the churches, the charities, the states and the territories from
joining the redress scheme.[14]
At the Council of Australian Governments (COAG) meeting on
9 February 2018, ‘First Ministers committed to responding to the
recommendations of the Royal Commission’s final report in June 2018’.[15]
On 9 March 2018, Prime Minister Turnbull announced that
the first states, New South Wales (NSW) and Victoria, had opted in to the scheme.
He urged the ‘other state and territory governments to follow the lead of New
South Wales and Victoria’. The joint media release noted:
About 9,000 people who were abused in New South Wales
Government institutions, 5,000 people who were abused in Victorian Government
institutions and 1,000 people abused in institutions under the Commonwealth’s
responsibility will now be covered as a result of today’s announcement.
Today’s announcement also makes it possible for churches,
charities and other non-government institutions in NSW and Victoria to join the
scheme. If those non-government institutions opt-in, an estimated 11,000 people
in NSW and 10,000 in Victoria will be able to access redress.[16]
In relation to the announcement, it was reported that the
legislative design of the National Redress Scheme would be restructured:
The legislation for the national scheme is to be drafted in
NSW and Victoria and presented to their state parliaments, with “mirror”
legislation being passed in Canberra and other jurisdictions that sign up. This
is likely to supersede the bill currently before the Federal Parliament. While
states such as NSW and Victoria will refer some powers to Canberra to ensure
the scheme is set up, this will not go so far as allowing the Senate to amend the
scheme and impose the changes on the states.[17]
On 4 May 2018, COAG published the Intergovernmental
Agreement on the National Redress Scheme for Institutional Child Sexual Abuse
(Agreement). The Agreement ‘provides the foundation for Commonwealth, State and
Territory governments to work together to implement the National Redress
Scheme’. The published document now contains the signatures of ministers
representing the Commonwealth, NSW, Victoria, Tasmania and the ACT.[18]
The NSW Government introduced legislation
to refer matters relating to the Scheme to the Commonwealth Parliament for the
purposes of section 51(xxxvii) of the Commonwealth Constitution.[19]
This legislation was passed 16 May 2018 and received Royal Assent on 23 May 2018.[20]
The Victorian Government introduced similar referral legislation on
8 May 2018 and passed this legislation on 7 June 2018.[21]
The Budget 2018–19 included funding for a Royal Commission
implementation taskforce and the national apology for institutional child
sexual abuse.[22]
It also set out $8.8 million for legal support services for survivors engaging
the scheme in 2018–19. This was expected to rise to $16.4 million in 2019–20
before falling to $12.7 million in 2020–21 and $9.7 million in 2021–22.[23]
This followed the announcement on 19 February 2018 that survivors of
institutional child sexual abuse will have access to legal support services to
help them access redress:
The funding will be provided to 'knowmore', the legal advice
service that supported the Royal Commission into Institutional Responses to
Child Sexual Abuse, to ensure survivors of abuse seeking to access redress are
provided with quality, trauma informed advice on their legal options. Knowmore
will help survivors by providing information and advice about the options available
to them, including claims under the redress scheme, access to compensation
through other schemes or common law rights and claims. Advice will also be
provided on key steps in the redress process.[24]
On 10 May 2018, the Bill and the Amendments Bill were
introduced into the House of Representatives. In his second reading speech, the
Minister for Social Services, Dan Tehan, noted that the ‘aim of the redress
scheme is to provide an avenue for survivors of child sexual abuse who have not
been able to pursue, or have not been successful in pursuing, their common-law
rights in order to obtain compensation for the damage and loss they have
suffered’.[25]
In relation to the components of redress under the scheme, he stated:
The maximum amount of redress payment available under the
scheme will be $150,000. The expected average payment will be around
$76,000—$11,000 higher than that estimated by the royal commission. The
payment will not reduce the income support payments of survivors, will not be
divisible property for bankruptcy and will be exempt from Commonwealth debt
recovery. A legislative instrument that details the different tiers of payments
and how they work together will be publicly available and declared as an
instrument to the legislation
Eligible survivors will be provided with access to
counselling or psychological services in addition to the assistance already
provided by the Commonwealth through Medicare.
Depending on the residence of a survivor, they will receive
either a lump sum payment to access counselling and psychological services
privately, or will be given access to state or territory based services. States
and territories will elect for survivors residing in their jurisdiction to
either receive the lump sum payment or whether they will deliver counselling
and psychological services to those survivors. Survivors residing outside
Australia will receive the lump sum payment ...
Survivors will also have the opportunity to receive a direct
personal response from the participating institution or institutions
responsible for the abuse. A direct personal response is a statement of
acknowledgement, regret or apology and will be delivered to survivors by the
relevant participating institution after the survivor has accepted the offer of
redress.[26]
A consolidated Commonwealth Government Department
submission was made to the Senate inquiry into the Bills by the Department
of Social Services (DSS submission). This indicated that, ‘[s]ubject to the
passage of the legislation’, it was ‘confident that the implementation of
service delivery elements are on track to implement the Scheme on
1 July 2018’.[27]
DSS noted that the scheme rules, which will govern a
number of key aspects of the scheme, could not be tabled until the Bill
received Royal Assent. However, it noted that it had developed ‘a fact sheet
explaining how the rule making powers in the National Bill are intended to be
exercised’ (discussed below).[28]
The scheme will also use an assessment framework to assess the monetary payment
amounts that each survivor will receive. DSS noted that ‘the assessment
framework will be publicly available as a legislative instrument, which will be
tabled after the passage of the Bill’.[29]
On 13 June 2018, the Government released its response to
the Royal Commission’s recommendations. Prime Minister Malcolm Turnbull’s media
release noted:
The establishment of a National Redress Scheme for survivors
of institutional child sexual abuse is scheduled to commence from 1 July 2018.
We are on track to deliver this with all states and territories (except WA)
having announced their intent to opt into the scheme and the Western Australian
Premier having given a firm commitment to join the national scheme in the next
few weeks. Key non-government institutions having also opted in—the Catholic
Church, Anglican Church, Uniting Church, Salvation Army, YMCA and Scouts.[30]
Committee
consideration
Senate
Community Affairs Legislation Committee
Inquiry into the Commonwealth
Redress Scheme Bills
Previously, the Committee considered the provisions of the
earlier proposed legislation to establish a Commonwealth Redress Scheme and
tabled its report
on 28 March 2018.[31]
The Committee agreed with the ‘universal view’ put forward by participants in
the inquiry that a redress scheme was ‘a vital step in addressing cases of
historical child sexual abuse’.[32]
Accordingly, its final recommendation was that the Commonwealth Redress Scheme Bills
be passed.[33]
However, the Committee also made ten recommendations to improve the
implementation of the proposed scheme. These recommendations were:
- reducing
the two-year deadline for institutions to opt in to the scheme (to minimise
uncertainty for survivors)
- the
Department should ensure that planned consultations on the rules of the redress
scheme include survivors' representative groups, and ensure information on
rules is communicated as it becomes available
- in
relation to the amount of redress payment, the Department should actively
engage with survivors' representative groups to provide clear communications
and where necessary ‘communication should reference the average payment amount
rather than focussing on the maximum redress payment’
- in
further developing the operational assessment elements of the redress scheme,
the Department take into consideration the long-term impact of non-sexual abuse
on survivors, including the needs of Aboriginal and Torres Strait Islander
survivors
- the
Government consider mechanisms to ensure ongoing counselling is available to
survivors, should they need it
- the
Redress Support Service incorporate referral of affected family members, in
cases where it is necessary to meet the critical needs of the survivor, to
existing counselling services
- in
developing the minimum timeframes in the redress scheme, for the provision of
documents or answers to an offer of redress, the Department should consider the
special circumstances of survivors in remote communities, those with functional
communication barriers and survivors experiencing trauma or mental health
episodes linked to their abuse
- the
Government consider changing the period of acceptance for redress from three
months to six months, including provision for survivors to request an extension
to this acceptance period where circumstances warrant
- in
finalising the position on the exclusion of serious criminal offenders from the
redress scheme, the Australian, state and territory governments should consider
the value of the redress scheme as a tool for the rehabilitation of offenders,
and that excluding criminal offenders can have the unintended consequence of
institutions responsible for child sexual abuse not being held liable and
- the
annual report to Parliament on the operation of the redress scheme should
include detailed data to understand the experiences of people going through the
redress scheme and to provide a basis of any necessary refinements to the scheme,
including details of the number of applications received, average processing
times and average payments offered.[34]
Additional comments were made by Labor Party senators on
the Committee which included recommendations to maintain parts of the proposed
scheme in accordance with the recommendation of the Royal Commission.[35]
Senator Rachel Siewert from the Australian Greens made a dissenting report
which recommended the Bills not be passed in their current form.[36]
Government response
On 29 May 2018, the Government
response to the report was released. The Government agreed or partially agreed
to all of the recommendations in the majority report.[37]
It also agreed or partially agreed with most of the recommendations made in the
additional comments of Labor senators. It did not agree in relation to three of
these recommendations (outlined below).
The Labor senators recommended that the Commonwealth
Redress Scheme Bill be amended to restore the maximum cap for monetary payment
to $200,000 as recommended by the Royal Commission.[38]
The Government response stated:
A maximum redress payment of $150,000 will be available under
the National Redress Scheme, a position which is supported by states and
territories. This amount balances the need to provide a payment that provides a
tangible means of recognising the wrongs suffered by survivors, while
encouraging institutions to opt in to the Scheme. In addition, the average
payment under the National Scheme is expected to be around $11,000 higher than
under that proposed by the Royal Commission.[39]
Labor Party senators also recommended the Commonwealth
Redress Scheme Bill be amended to reflect the funder of last resort provisions
that were recommended by the Royal Commission.[40]
The Government response stated:
The policy contained in the National Bill is that a
government institution will be funder of last resort where they are:
-
equally responsible with a defunct institution (meaning it no longer
exists); and
-
the government institution has agreed to pick up the other equal share
of redress.
This is a necessary departure from the Royal Commission's
recommendations, for if governments were to be funder in all circumstances, it
would create a serious disincentive for financially viable institutions to opt
in to the Scheme, or for those institutions taking responsibility for their
historical institutions.
The Commonwealth, state and territory governments have agreed
that the 'funder of last resort' arrangements should only apply where the
respective government had some very real responsibility for the abuser having
contact with the child. The Australian Government does not have power to act as
'funder of last resort' for non-government institutions where there is no level
of responsibility or link to a constitutional limb.[41]
Finally, Labor Party senators recommended the rule which
restricts survivors to one application for redress be reconsidered.[42]
However, the Government response stated:
Applications for redress under the Scheme are limited to one
application per survivor, whether or not that person suffered sexual abuse in
more than one institution. This will ensure that survivors will only need to
complete one form to cover all instances of child sexual abuse experienced in
institutional contexts during their childhood.
As a survivor will only need to disclose their experiences of
child abuse in one application, it will provide the opportunity for the survivor
to receive closure after a potentially traumatic, but singular, application
process ...[43]
Inquiry into the Bill and
Amendments Bill
The provisions of the Bills were referred to the Senate
Community Affairs Legislation Committee (Committee) on 10 May 2018 for inquiry
and report by 15 June 2018.[44]
On 15 June 2018, the Committee’s report recommended that
both Bills be passed.[45]
The Committee indicated it was ‘strongly supportive of the objects of the
National Redress Scheme to recognise and alleviate the impact of past
institutional child sexual abuse’ and recognised ‘any changes made to the
National Redress Bill would require renegotiation with each of the
participating states, jeopardising the Scheme's start date of 1 July 2018’.[46]
Additional comments were made by Labor senators who were
‘disappointed’ that some of the recommendations made in relation to the
Commonwealth Redress Scheme Bills ‘have not been addressed in the National
Redress Scheme for Survivors of Institutional Child Sexual Abuse Bill 2018’.
They held ‘a number of serious concerns regarding this legislation, including
the arbitrary lowering of the maximum payment, the adequacy of counselling and
the equality of all Survivors of child sexual abuse before the Scheme’.[47]
However, Labor senators also noted ‘the high likelihood
that any attempt to amend the legislation in the Commonwealth Parliament would
jeopardise the scheduled Scheme start date of 1 July 2018’. They
indicated that ‘for this reason alone’ they would not recommend any amendments
to the Bill.[48]
Instead, Labor senators recommended that ‘current and future Governments
continue to negotiate with States and Territories in good faith to continue to
strengthen the Redress Scheme’.[49]
Additional comments were also made by the Australian
Greens. These additional comments stated that ‘[w]hile a small number of the
issues canvassed during the previous inquiry have been addressed, many of those
issues still remain’. Additionally, it noted that ‘other new issues have arisen
in the National Bill and its related bill’.[50]
These included:
- counselling
and psychological services
- when
applications cannot be made
- criminal
histories
- security
notices
- prior
payments and indexation and
- the
funder of last resort model.[51]
The Australian Greens additional comments concluded:
The Greens want to see the Scheme operating from the
nominated date of 1 July 2018, at the same time we are very concerned that the
Scheme will not be the best it can be given the issues that remain unresolved.
Following commencement of the Scheme, we will continue to advocate and work for
subsequent reforms to make the Scheme the best it can be.[52]
Further details are available on the Committee’s inquiry webpage.[53]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny Committee) has not yet published its report regarding the Bills, but
raised a number of issues when it considered the earlier proposed legislation
to establish a Commonwealth Redress Scheme.[54]
For some of these issues, the Scrutiny Committee decided
to make no further comment following the receipt of further advice from the
Minister. However, in its December 2017 report, it requested amendments to the proposed
legislation and the Explanatory Memorandum as well as drawing scrutiny concerns
to the attention of the Senate regarding several matters.[55]
Joint
Select Committee on the Royal Commission into Institutional Responses to Child
Sexual Abuse – oversight of redress related recommendations
On 20 June 2017, the House of Representatives agreed to a
Senate resolution
that a joint select committee on oversight of the implementation of redress related
recommendations of the Royal Commission into Institutional Responses to Child
Sexual Abuse be established following the tabling of the final report of the
Royal Commission.[56]
The Joint Select Committee met for the first time in February 2018 and is not
yet receiving submissions. Further information is available on the Joint Select
Committee’s webpage.[57]
Policy
position of non-government parties/independents
Australian
Labor Party
Before the last election, the Labor Party pledged to
establish a national redress scheme for survivors of institutional child sexual
abuse.[58]
Labor welcomed the initial budget allocation made for the proposed Scheme, but
Shadow Minister for Families and Social Services, Jenny Macklin, had expressed
concern at the lack of progress in securing an agreement on a national redress
scheme with states, territories and institutions.[59]
On 8 February 2018, Opposition Leader Bill Shorten stated that the
Opposition ‘will work with the government’ and agreed with the position that
there should be ‘no more excuses, no more delays’ in relation to agreement on a
national redress scheme.[60]
In her speech to the House of Representatives on the Bill
on 24 May 2018, Ms Macklin indicated that as ‘a gesture of good faith in our
ongoing discussions with the Government to resolve Labor’s concerns, Labor will
support this Bill in the House today’.[61]
However, she highlighted a number of concerns with the Bill:
First, we do want to make sure that there are enough support
services for all survivors of child sexual abuse and that they're accessible no
matter where the survivor lives. Second, we want to make sure that survivors
have sufficient time to decide whether or not to accept an offer of redress.
The bill gives applicants at least six months to make this decision, while the
royal commission recommended a year ...
The next concern we have is the compensation amount. The bill
places an upper limit of $150,000 on the amount of redress that would be
payable to any one survivor. The royal commission recommended that the maximum
payment be $200,000. Accepting an offer will also mean signing away any rights
that any survivor may have to pursue their claim for compensation through
litigation. That's why it's so important that the amount of redress available
under the scheme is adequate.[62]
Jenny Macklin indicated that other areas of concern in the
Bill included:
- that
the scheme may leave some persons without an avenue to seek redress
- the
indexation of past payments
- the
exclusion of former child migrants and immigration detainees
- access
to counselling and psychological services and
- restrictions
on survivors who have a serious criminal history accessing the scheme.[63]
Australian
Greens
Before the 2016 election, the Australian Greens also
pledged to ‘establish a national redress scheme for survivors of child abuse in
institutional settings’ as well as ‘a national redress advisory council to
advise on the establishment and operation of the scheme’.[64]
Australian Greens Senator Rachel Siewert welcomed the earlier proposed
legislation but highlighted the need for careful scrutiny.[65]
Senator Siewert made a dissenting report for the Australian Greens to the
Senate Community Affairs Committee inquiry into the Commonwealth Redress Scheme
Bills.[66]
Centre
Alliance
The Centre Alliance does not appear to have expressed a
position on the Bills.
On 15 September 2016, Labor moved a motion in the Senate
which called on ‘the Federal Government to establish a national redress scheme
for survivors of institutional sexual abuse’.[67]
Then sitting Nick Xenophon Team senators (Xenophon, Kakoschke-Moore and Griff) supported this motion.
Pauline Hanson's One Nation (PHON) Party
The sitting PHON senators (Hanson, Burston and Roberts) voted
with Government senators against the motion in 2016 to establish a national
redress scheme.[68]
PHON senators have not indicated if they support the scheme proposed in the
Bills.
Derryn Hinch Justice Party
Senator Derryn Hinch supported the 15 September 2016
motion to create a national redress scheme. He is the Chair
of the Joint Select Committee concerned with oversight of the redress related
recommendations of the Royal Commission and also participated in the Senate
Community Affairs Legislation Committee inquiry. During the earlier Senate Community
Affairs Committee inquiry into the Commonwealth Redress Scheme Bills, Senator Hinch
indicated he would advocate for the maximum redress payment under the scheme to
be increased to the level recommended by the Royal Commission.[69]
Liberal Democratic Party
Senator David Leyonhjelm does not appear to have expressed
a position on the Bills. Senator Leyonhjelm voted with Government senators
against the motion in 2016 to establish a national redress scheme.[70]
Position of
major interest groups
State and
territory governments
The Commonwealth Government has placed pressure on state
and territory governments to opt in to the national redress scheme and
indicated it was willing to use its constitutional powers to compel the territories
to join.[71]
Both the Australian Capital Territory and the Northern Territory have agreed to
opt in to the scheme.[72]
New South
Wales and Victoria
As noted above, both NSW and Victoria have agreed to opt
into the scheme and their respective parliaments have passed legislation referring
matters (for purposes of section 51(xxxvii) of the Constitution) to the
Commonwealth to facilitate the operation of the scheme.[73]
Queensland, Tasmania and South
Australia
On 30 April 2018, the Queensland Government announced it
would also opt in to the scheme and would set aside $500 million for payments.
Around 10,000 Queenslanders were expected to be eligible: 5,000 abused in
government institutions and another 5,000 in non-government institutions. Survivors
who were compensated after the Forde
Inquiry into the abuse of children in Queensland institutions could potentially
be further compensated under the national redress scheme.[74]
On 22 May 2018, Tasmania also announced it would join the
scheme.[75]
The Tasmanian Attorney-General, Elise Archer, was reported as stating:
Our decision to opt in to the National Redress Scheme builds
on Tasmania’s proud record of supporting victims, including through our $54
million Abuse in State Care compensation scheme that operated between 2003 and
2013, that assisted more than 1800 survivors who were the subject of sexual,
physical or emotional abuse while in state care as children. With an estimated
cost of around $70 million over the life of the scheme, Tasmania’s
participation will be provided for in the upcoming State Budget.[76]
The position of South Australia was complicated by its earlier
compensation payments to survivors of institutional abuse which followed the Mulligan
inquiry. However, on 1 May 2018, the Attorney-General Vickie Chapman was
reported as saying that South Australia ‘had given in-principle support to the
scheme but was still working through the practicalities of joining’.[77]
On 28 May 2018, the South Australian Government announced it would be
joining the scheme.[78]
Western
Australia (WA)
The Western Australian Government has been reported as raising
concerns in relation to the scheme including a lack of information and
‘critical problems and disincentives’.[79]
On 14 March 2018, the WA Attorney General John Quigley told the
Legislative Assembly that ‘[u]ntil a set of rules is published that clearly
sets out the Commonwealth’s liability in this matter, we are very reluctant to
agree to anything the Commonwealth says’.[80]
However, on 8 June 2018, Minister Tehan was reported as stating
that the Commonwealth and Western Australian governments had ‘agreed on all
remaining issues’ and that the WA Attorney General was ‘now seeking approval to
join the scheme through their cabinet processes’.[81]
Responsible institutions
The Royal Commission showed that the sexual abuse of
children has occurred in a large number of non-government institutions across
Australia, often operated by religious organisations.[82]
There has been pressure placed on responsible institutions by the Commonwealth
Government and others to opt in to the scheme. On 31 May 2018, the Catholic
Church was the first major non-government organisation to announce that it was
joining the scheme.[83]
It was followed on 1 June 2018 by the Anglican Church, Salvation
Army, the Scouts and YMCA.[84]
On 4 June 2018, the Uniting Church opted into the scheme.[85]
While a number of submissions were made by, or on behalf
of, responsible institutions to the Senate inquiry into the Commonwealth Redress
Scheme Bills, fewer responsible institution submissions were made to the Senate
inquiry into the current Bills. A joint submission was received from the
Salvation Army and the Uniting Church in Australia regarding the assessment
framework. This will be a legislative instrument declared by the Minister to
set out a method, or matters to take into account, in working out redress
payments in the scheme. It argued that the assessment framework should align
with the recommendations of the Royal Commission. The Royal Commission
recommended that an ‘assessment matrix’ for monetary payments in the redress
scheme should contain three factors:
- the
severity of the abuse (on a scale of 1 – 40);
- the
severity of the impact of the abuse (on a scale of 1 – 40) and
- additional
elements (on a scale of 1 – 20).[86]
Survivor organisations
Organisations which represent the interests of survivors
of institutional child abuse have generally supported the establishment of a
national redress scheme. However, these groups have also expressed concerns in
relation to the scheme, particularly where it differs from the recommendations
of the Royal Commission.
For example, the Alliance for Forgotten Australians (AFA)
submission to the Senate inquiry into the Bills emphasised that ‘the reduction
in the maximum payment from $200,000 recommended by the Royal Commission to
$150,000 ... has not been explained’.[87]
The AFA also raised:
- the
apparent lack of future indexation for redress payments under the scheme
- a
lack of clarity regarding who will ‘actually fund a successful redress claim in
relation to a defunct institution’
- that
the $5,000 counselling component will be inadequate to support some survivors
and
- on-going
concerns that the scheme is limited to those who experienced sexual abuse.[88]
The Care Leavers Australasia Network (CLAN) has argued
that the scheme ‘will not deliver justice ... if previous compensation payments
are indexed before being factored into the payment process’.[89]
The Chief Executive Officer, Leonie Sheedy, noted that care leavers in Western
Australia, Queensland and Tasmania may have already received some payments from
state-based redress scheme in those jurisdictions. She highlighted the impact
of legal fees on previous payments to survivors noting the proposed scheme
would index past payments on the gross amount received, not the net amount. Ms
Sheedy made the point that survivors ‘didn't get that money — the lawyers got
the money’.[90]
Legal organisations
Law firms and legal organisations expressed mixed views on
the proposed scheme. While many have welcomed the establishment of the scheme,
concerns have also been expressed that the eligibility requirements will limit
access to redress, the fairness of the acceptance of offer processes and
highlighted the lack of an external review process for determinations.
For example, the Law Council of Australia’s submission to
the Senate inquiry made a range of recommendations regarding the Bill. These
included:
- survivors
should not be excluded from accessing the scheme on the basis of a past
criminal conviction or alternatively, the default position should be that
survivors with criminal convictions are eligible unless it is determined
otherwise
- the
citizenship and residency requirement for eligibility to redress ‘should be
extended, at least, to those currently living in Australia, those who were
child migrant, and those who were formally Australian citizens or permanent
residents’
- eligibility
criteria for the scheme should be established in the Bill and not be subject to
amendment by way of the rules
- the
Bill should be amended to extend the period for acceptance of an offer of
redress from six months to one year
- the
scheme should allow for an independent review mechanism that is external to the
scheme and
- the
Bill should clarify that the counselling and psychological services offered
under the scheme are to be available for the applicant’s lifetime and subject
to no fixed limits.[91]
Australian Human Rights Commission
While the Australian Human Rights Commission (AHRC)
commended many aspects of the scheme, its submission to the Senate inquiry on
the Bill outlined its concerns that ‘some aspects of the Scheme do not
adequately implement the Royal Commission’s findings and otherwise limit the
human rights of survivors of child sexual abuse’. The AHRC’s submission outlined
a number of recommended changes to the Bill, noting that its ‘major concern’
was that the Bill ‘excludes many survivors from accessing redress’.[92]
Its recommendations included that the Bill be amended to:
- remove
the requirement for a person be an Australian citizen or a permanent resident
at the time of application to be eligible for redress
- remove
the exclusion of survivors based on criminal histories
- remove
the exclusion of incarcerated survivors from applying for redress and
- remove
the exclusion on children who will not turn 18 before the Scheme sunset date
from applying for redress.[93]
Financial
implications
As noted above, the Australian Government committed $33.4 million
in the 2017–18 Budget to establish the scheme.[94]
The Mid-Year Economic and Fiscal Outlook 2017–18 included additional funding
for the operation of the scheme:
The Government will provide $54.7 million over four years
from 1 January 2018 to support the operation of the Commonwealth Redress Scheme
for Survivors of Institutional Child Sexual Abuse, including funding for
Redress Support Services to assist applicants to the Scheme.[95]
The bulk of this additional funding appears to be directed
to the Department of Social Services—$20.3 million in 2018-19, $16.9 million in
2019-20 and $17.4 million in 2020–21.[96]
However, the scheme is intended to operate until 30 June 2028. Funding required
for the operation of the scheme will extend beyond the forward estimates. The
Explanatory Memorandum states that ‘[t]he Scheme’s funding arrangements will be
made available after commencement through normal reporting mechanisms’.[97]
Clause 161 of the Bill provides that the
Consolidated Revenue Fund is appropriated to ‘the extent necessary for the
purposes of the payment or discharge of the costs incurred by the Commonwealth
in making the following payments’:
- redress
payments
- counselling
and psychological services payments and
- counselling
and psychological services contribution.
The liability of the Commonwealth under the scheme and through
‘funder of last resort’ arrangements will have financial implications. However,
there is little clarity on the extent of these liabilities at this stage. The
Royal Commission’s report on redress stated:
The estimated total cost of funding redress is $4.01 billion.
If governments—both the Australian Government and state and territory
governments—agree to be funders of last resort then, under the modelling, the
estimated cost of last resort funding is $613 million or some 15.3 per cent of
the total cost of funding redress.[98]
However, the Commonwealth will only be responsible for a
part of that liability. The Intergovernmental Agreement lists estimated
liability for each jurisdiction based on a report completed in 2017. This indicates
the Commonwealth will be responsible for 955 survivors or 3.68 per cent of
the total liability.[99]
Table 1. Estimated liability of
each jurisdiction in the Intergovernmental Agreement[100]
Jurisdiction |
No. of survivors |
Percentage of liability |
NSW |
8,950 |
34.45% |
VIC |
5,290 |
20.36% |
QLD |
5,030 |
19.36% |
WA |
2,395 |
9.22% |
SA |
1,690 |
6.51% |
TAS |
1,115 |
4.29% |
Cwlth |
955 |
3.68% |
NT |
330 |
1.27% |
ACT |
225 |
0.87% |
Total |
25,890 |
100% |
Source: COAG, Intergovernmental Agreement on the National Redress
Scheme for Institutional Child Sexual Abuse, 4 May 2018, p. 18.
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[101]
The compatibility statement includes some responses to the previous
consideration by the Parliamentary Joint Committee on Human Rights of similar
provisions in the proposed legislation for a Commonwealth redress scheme (see
below).
Parliamentary Joint Committee on
Human Rights
The report of the Parliamentary Joint Committee on Human
Rights (PJCHR) into the Bills is not yet available. However, the PJCHR raised a
number of issues with the Commonwealth Redress Scheme Bills which are likely to
be reflected in consideration of the Bills. Provisions which engaged the rights
to an effective remedy, privacy, equality and non-discrimination were highlighted
by the PJCHR.[102]
The PJCHR sought and received advice from the Minister on several of these matters.
For some of these issues, the PJCHR observed that further details regarding the
scheme will be contained in the rules and would be considered for human rights
compatibility when they were received.[103]
Key issues
and provisions
Chapter 1—Introduction
Commencement
While the commencement date under the earlier legislation
was 1 July 2018, clause 2 of the Bill includes different commencement
arrangement. If Royal Assent is before 1 July 2018, then
commencement is on 1 July 2018. If Royal Assent is after 1 July
2018 then commencement is on a day fixed by Proclamation or six months from
Royal Assent, whichever occurs first. This is significant as the scheme will only
provide redress for sexual abuse which occurred before the commencement date.
Objects
As noted above, the main objects of the Bill, listed in subclause
3(1)), are to:
- recognise
and alleviate the impact of past institutional child sexual abuse and related
abuse and
- provide
justice for the survivors of that abuse.
Subclause 3(2) expands on these objectives by stating
the objects of the Bill are also to establish the scheme and to provide the
three components of redress. It differs from the earlier proposed legislation
by outlining that the objects of the Bill are also to:
- enable
institutions responsible for abuse of survivors to participate in the scheme to
provide that redress to those survivors and
- implement
the joint response of the Commonwealth Government, participating state and territory
governments to the recommendations of the Royal Commission.
Definitions
Clause 6 contains the Dictionary. While most listed
definitions cross-reference relevant clauses in the Bill, there are some key
terms explained. These include:
abuse means sexual abuse or non-sexual abuse.
abuser: a person is the abuser of another
person if the person has abused the other person.
institution means any body, entity, group of
persons or organisation (whether or not incorporated), but does not include a
family or an individual.
non-sexual abuse includes physical abuse,
psychological abuse and neglect.
official of an institution means a person who
is or has been an officer, employee, volunteer or agent of the institution.
reasonable likelihood, in relation to a person
being eligible for redress, means the chance of the person being eligible is
real, is not fanciful or remote and is more than merely plausible.
related: non-sexual abuse of a person is related
to sexual abuse of the person if a participating institution is responsible for
both the sexual abuse and the non-sexual abuse of the person.
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.
survivor means a person who has suffered sexual
abuse that is within the scope of the scheme.
Chapter 2—The National Redress
Scheme for Institutional Child Sexual Abuse
Establishment of the scheme
Clause 9 provides that the Secretary of the
Department of Social Services is the National Redress Scheme Operator
(Operator) and authorises the Operator to arrange support and assistance for
applicants as well as to make and vary contracts, agreements, deeds or
understandings for this purpose.
Clause 10 sets out general principles that must be
taken into account by the Operator and officers taking action under, or for the
purposes, of the scheme:
- redress
under the scheme should be survivor-focused
- redress
should be assessed, offered and provided with appropriate regard to:
- what
is known about the nature and impact of child sexual abuse, and institutional
child sexual abuse in particular
- the
cultural needs of survivors and
- the
needs of particularly vulnerable survivors
- redress
should be assessed, offered and provided so as to avoid, as far as possible,
further harming or traumatising the survivor.
The final guiding principle (subclause 10(5)) was not
included in the earlier legislation. It provides that ‘[r]edress should be
assessed, offered and provided in a way that protects the integrity of the
scheme’.
Entitlement to redress under the
scheme
Part 2-2 of the Bill deals with entitlement to redress under
the scheme. Division 2 of Part 2-2 explores entitlement through a series of
rhetorical questions.
Clause 12—When is a person entitled to be provided with
redress?
Subclause 12(1) provides that a person can only be
provided with redress under the scheme if the person is entitled to it. Subclause
12(2) provides that a person is entitled to redress if:
- the
person applies for redress
- the
Operator considers that there is a reasonable likelihood that the person is
eligible for redress under the scheme
- the
Operator approves the application
- the
Operator makes an offer of redress to the person and
- the
person accepts the offer in accordance with the requirements of the Bill.
Subclause 12(3) provides that a person is also entitled
to redress, or a component of redress, if the legislation or the rules
prescribe that the person is entitled to it. Similarly, subclause 12(4)
notes that despite subclause 12(2) and (3), a person not entitled to redress if
the legislation or the rules prescribe that the person is not entitled to it. The
Explanatory Memorandum notes that this may occur where a person has a security
notice in force against them and will not be entitled to redress.[104]
Clause 13—When is a person eligible for redress?
Under subclause 13(1) a person will be eligible for
redress if:
- the
person was sexually abused
- the
sexual abuse is within the scope of the scheme
- the
sexual abuse is of a kind for which the maximum amount of redress payment that
could be payable to the person (as worked out under the assessment framework)
would be more than nil
- one
or more participating institutions are responsible for the abuse and
- the
person is an Australian citizen or a permanent resident (within the meaning of
the Australian Citizenship Act 2007) at the time the person applies for
redress.
A note to subclause 13(1) clarifies that while a
person must have been sexually abused to be eligible, redress is for both
sexual abuse and related non-sexual abuse of the person that is within the
scope of the scheme.
Similar to the approach in clause 12, subclauses 13(2)
and (3) clarify that persons are eligible or not eligible if the legislation
or the rules prescribe.[105]
Non-sexual abuse
A number of submitters to the Senate inquiry argued that
limiting eligibility to persons who suffered childhood sexual abuse in
institutions would unfairly exclude those who suffered only non-sexual abuse in
institutions.[106]
Tuart Place (a resource service for adults who experienced out-of-home care
during childhood) expressed concern that the ‘inability of the national scheme
to adequately address the abuse and neglect of the Stolen Generations,
Forgotten Australians and former child migrants who were not sexually abused
has already, inadvertently, caused harm among a very disadvantaged population
group’.[107]
The Chair of the Alliance for Forgotten Australians (AFA) Ms Caroline Carroll
has stated:
I would like to reiterate our concern that the scheme should
cover all forms of abuse, not just sexual abuse ... AFA recognises that the
scheme is limited to those who experienced sexual abuse. We will never accept
this eligibility criterion. What may be defined as sexual in an intellectual,
legal and eligibility context needs to acknowledge, with the support of
overwhelming evidence, that all forms of abuse in an institutional context are
connected.[108]
Citizenship and residency
The Government response to the Senate Committee’s earlier
report on the Commonwealth Redress Scheme Bills stated:
[O]nly people who are Australian citizens or permanent
residents will be able to apply for redress. This is in line with other
government entitlements. Non-citizens and non-permanent residents will be
ineligible to ensure the integrity of the Scheme. Verification of identity
documents for non-citizens and non-permanent residents would be very difficult
and could result in organised overseas groups lodging large numbers of false
claims in attempts to defraud the Scheme.[109]
However, the requirement was questioned in submissions on
the Bill. The Law Council of Australia noted that the Royal Commission saw ‘no
need for any citizenship, residency or other requirements, whether at the time
of abuse or at the time of the application for redress’. It argued that ‘the
only relevant nexus for eligibility should be whether a person was sexually
abused as a child, and that abuse is the responsibility of a participating
institution’ and as a minimum ‘the Bill should extend the scheme to cover child
migrants and those that were formerly Australian citizens or permanent
residents’.[110]
Similarly, the Australian Association of Social Workers objected ‘to the fact
this will rule ineligible people who have been sexually abused in immigration
detention’ and recommended this group ‘be eligible for redress under the
Scheme’.[111]
Clause 14
When is abuse within the scope of the scheme?
Subclause 14(1) provides that abuse is within the
scope of the scheme if:
- it
occurred when the person was a child
- it
occurred
- inside
a participating State or
- inside
a Territory or
- outside
Australia and
- it
occurred before the scheme start day.[112]
Similar to the approach taken in clauses 12 and 13, subclauses
14(2) and (3) clarify that abuse of a person is within the scope of the
scheme if the legislation or the rules prescribe.
Clause 15—When is an institution responsible for abuse?
Subclause 15(1) provides that an institution (whether
or not a participating institution) is responsible for abuse of a person if the
institution is primarily responsible or equally responsible for the abuse.
An institution is primarily responsible for abuse of
a person if the institution is solely or primarily responsible for the abuser
having contact with the person (subclause 15(2)).
An institution is equally responsible for abuse of a
person if:
- the
institution and one or more other institutions are approximately equally
responsible for the abuser having contact with the person and
- no
institution is primarily responsible for the abuse of the person (subclause
15(3)).
Subclause 15(4) outlines a non-exhaustive list of
circumstances relevant to determining whether an institution is primarily
responsible or equally responsible for the abuser having contact with the person.
These circumstances are:
- whether
the institution was responsible for the day-to-day care or custody of the
person when the abuse occurred
- whether
the institution was the legal guardian of the person when the abuse occurred
- whether
the institution was responsible for placing the person into the institution in
which the abuse occurred
- whether
the abuser was an official of the institution when the abuse occurred
- whether
the abuse occurred:
- on
the premises of the institution or
- where
activities of the institution took place or
- in
connection with the activities of the institution
- any
other circumstances that are prescribed by the rules.
The first three of these listed relevant circumstances were
not part of the earlier proposed legislation. The DSS submission to the Senate
committee inquiry clarified that ‘[w]hereas one of the factors was previously
that ‘the institution was responsible for the care of the child when the abuse
occurred’, this has been split out into three distinct factors in order to
provide further clarity to decision makers’.[113]
Potentially, the inclusion of these ‘relevant circumstances’
in the Bill may increase the likelihood that institutions which had a direct
caring or legal relationship with a person who suffered institutional child
sexual abuse will be assessed as primarily or equally responsible.
Subclauses 15(5) and (6) provide that, despite the above,
institutions can be (or not be) ‘responsible, primarily responsible or equally
responsible for the abuse of a person in the circumstances (if any) prescribed
by the rules’. The DSS submission to the Senate inquiry states:
The rule-making power in clause 15(5) of the Bill has also
been utilised to give effect to a number of instances where institutions will
automatically be equally responsible.
It is proposed that the Rules will set out that governments
will be equally responsible, along with the relevant non-government
institution, for other circumstances where they had parental responsibility for
a child and placed them in an institution where they were abused. This rule was
developed at the request of and in close consultation with the states and territories.
The Rules will also set out that Commonwealth Defence
institutions will be equally responsible, along with the relevant non-Defence
institution(s), for abuse on or after 1 January 1977 that is linked to an
externally run Cadet program.[114]
Clause 16—What redress is provided to a person?
Subclause 16(1) outlines the three components of
redress available under the scheme:
- a
redress payment (of up to $150,000)
- a
counselling and psychological component which, depending on where the person
lives (as stated in the person’s application for redress), consists of:
- access
to counselling and psychological services provided under the scheme or
- a
payment (of up to $5,000) to enable the person to access counselling and
psychological services provided outside of the scheme and
- a
direct personal response from each of the participating institutions that are
determined by the Operator to be responsible for the abuse of the person.
Subclause 16(2) clarifies that a person entitled to
redress can choose any or all of those components.
Subclause 16(3) outlines that in situations where two
or more participating institution are determined to be responsible for abuse,
the person may choose to be given a direct personal response from each of those
institutions, or from only some or one of them.
Redress payment
The DSS submission states:
The average monetary payment under the Scheme is expected to
be around $76,000 (before prior payments are taken into account). The maximum
payment available under the Scheme is $150,000. This payment will recognise the
most extreme cases. This average monetary payment is $11,000 higher than that
recommended by the Royal Commission.[115]
As noted above, a number of stakeholders have raised objections
to the maximum redress payment of $150,000 when the Royal Commission had
recommended a maximum payment of $200,000. For example, the Australian Human
Right Commission observed that the amount had been set by the Royal Commission
to ‘allow recognition of the most severe cases, taking account of both the severity
of the abuse and the severity of the impact of the abuse’. The Commission
considered:
... the efficacy of the Scheme depends on the availability of
adequate redress to recognise the significance of the abuse from the
perspective of the survivor. Inadequate redress may cause more survivors to
pursue civil litigation, which undermines the efficacy of the Scheme and may
not be in the best interests of the survivor.[116]
Others concerns raised regarding the redress payment have
included the lack of provision for the redress payment to be increased or
indexed for inflation and the lack of a set minimum redress payment.[117]
Counselling and psychological
services
Some submissions to the Senate inquiry considered that
there was a lack of clarity in the Bill regarding the counselling and
psychological services available under the scheme. Relationships Australia
commented that ‘it is not clear from the face of the Bill whether those
survivors who will have access to a declared provider will also be subject to a
cap of $5000 in the value of services which they can receive under the Scheme’.[118]
During Budget estimates, DSS officers provided further
detail on how the counselling and psychological services component would be allocated:
With the state jurisdictions, while that hasn't been
confirmed with every jurisdiction, most of them themselves, through their
public health networks or equivalent, provide support [to survivors of
institutional child sexual abuse]. Some of these provide it through victims'
support units. So already they're providing the support to survivors. So up to
$5,000 will go into those existing structures those states have—at the end of
the journey as we finalise the arrangements with them and they sign on. It's
not as if there is a cap on the $5,000. It's being fed out to contribute to the
systems.[119]
Other submissions questioned the payment amount of this
component of redress. For example, the Australian Psychological Society stated
that ‘[i]f a survivor lives in a jurisdiction that is not a declared provider
of counselling and psychological services under the Scheme, access to
counselling and psychological [services] will be capped at $5,000’. It noted
that ‘this provision falls short of the Commission’s recommendation that
survivors should have access to counselling and psychological services across
their lifetime’.[120]
Clause 17—What is redress for?
This clause clarifies that redress is for the sexual abuse,
and related non-sexual abuse, of the person that is within the scope of the
scheme.
How to obtain redress under the
scheme
Clause 19 provides that a person must make an
application to obtain redress under the scheme. To be valid, the application
must meet certain requirements including specifying where the person lives (presumably
for the purpose of determining access to counselling and psychological component
under the scheme).
Clause 20 outlines when a person cannot make an application
for redress. These are:
- the
person has already made an application for redress under the scheme
- a
security notice is in force in relation to the person [issued by the Home
Affairs Minister under clause 65]
- the
person is a child who will not turn before the scheme sunset day
- the
person is in gaol (within the meaning of subsection 23(5) of the Social
Security Act 1991[121])
or
- the
application is being made in the period of 12 months before the scheme sunset
day.
For persons who are in goal or who have made an application
in the period 12 months before the scheme sunset day, the Operator can
determine there are exceptional circumstances justifying the application being
made (subclause 20(2)).
One application
The restriction in paragraph 20(1)(a) against
subsequent applications for redress means that survivors will be limited to one
application. In submissions to the Senate inquiry several organisations
objected to the single application rule. Tuart Place argued:
The rule that applicants can submit only one application to
the NRS is unnecessarily restrictive and is neither survivor-focussed nor
trauma-informed. It can also be expected to cause great distress to survivors,
particularly in cases where one of the institutions deemed responsible for
providing redress is not a participating institution.[122]
Children
Paragraph 20(1)(c) restricts children from making
an application for redress if they will not turn 18 years of age during
the operation of the scheme. The Australian Human Rights Commission outlined
Australia’s international human rights obligations in relation to children in
its Senate Committee inquiry submission, including that the ‘best interests of
the child’ must be a primary consideration.[123]
It noted that paragraph 20(1)(c) ‘means that children who are currently
under eight years old will be excluded from applying for redress’.[124]
The Australian Human Rights Commission expressed the view that ‘the blanket
exclusion of children is contrary to [the] requirement to ensure the best
interests of the child, especially in relation to vulnerable children’.[125]
The DSS submission explained that during consultations
with jurisdictions a number of concerns were raised regarding child applicants
to the scheme:
The final policy reflected in the National Bill is that
children may apply for redress, however their application will not be
determined and they will not sign a statutory release until they reach 18 years
of age. Children who will not turn 18 before the Scheme sunset date will not be
able to apply for redress. Applying an age limit to the Scheme addresses the
risk of children signing away their future civil rights when they may have limited
capacity to understand the implications, and when the impact of the abuse may
not fully be realised. An age limit will also address the risk of the misuse of
monetary payments made to minors.
By allowing children aged eight or above to apply, the Scheme
will be able to request information from the responsible institution(s) at the
time of the application to ensure the information is current and prevent
possible issues in sourcing information later. Once the child turns 18, they
can choose to proceed with their application and provide any further relevant
information if they wish, or withdraw their application.[126]
In gaol
Paragraph 20(1)(d) restricts persons in gaol from
making an application for redress. The Explanatory Memorandum states this was ‘included
as it would be difficult to secure appropriate redress support services for
this environment, and there are risks associated with the confidentiality of
applicants in a closed institutional setting’.[127]
In a Senate inquiry submission, the Blue Knot Foundation, an organisation
focused on childhood trauma, considered this provision was ‘punitive and
inequitable’. It argued ‘[w]hether a person is in gaol or not is irrelevant to
whether they were sexually abused as a child within an institution’.[128]
Sexual Assault Support Services acknowledged that the delivery of services to
incarcerated survivors was complex but made the point that it was possible. It
stated ‘we have been successfully providing advocacy and counselling services
to incarcerated survivors of institutional child sexual abuse for some time ...
and can also be extremely beneficial for survivors’.[129]
Clause 21 requires the Operator to deal with
applications for redress made by children who will turn 18 before the scheme
sunset date ‘in accordance with any requirements prescribed by the rules’.
However, as the scheme rules are not available, it is unclear what these
requirements will be. It clarifies that rules made for this purpose will apply
despite the obligation on the Operator to determine applications ‘as soon as
practicable’ in clause 29.
The Explanatory Memorandum notes that the ‘special process
for children’ to be prescribed in the scheme rules is necessary to ensure there
are adequate protections:
Children who will turn 18 throughout the life of the Scheme
may apply for redress; however, their application will not be determined until
they reach 18 years of age. This will allow the Scheme to request information
from the responsible institution(s) at the time of the application to ensure
the information is current, especially in the circumstance where the
responsible institution may go defunct before the claim can be determined. Once
the child reaches 18, the survivor can choose to proceed with their
application, withdraw their application and reapply, or withdraw their
application completely. Those child survivors who are waiting for their redress
application to be determined will have access to the Scheme’s support services
throughout this period.[130]
Clause 22 provides for persons to withdraw applications
at any time before determination. Where an application is withdrawn, for the
purpose of the legislation ‘it is treated as not having been made’. Under clause
23, if a person withdraws their application and the Operator has requested
a participating institution provide information, the Operator must give the
institution written notification (complying with any requirements set in the
rules).
Obtaining information for the
purposes of determining the application
Division 3 of Part 2-3 of the Bill includes clauses which
give the Operator the power to request information from the applicant (clause
24) and from participating institutions (clause 25). Under subclause
24(1) if the Operator has reasonable grounds to believe that an applicant
has information that may be relevant to determining the application, then the
Operator may request the person to give the information to the Operator.
However, under subclause 25(1) the Operator must request an institution
give any information that may be relevant to the application where:
- the
application identifies a particular participating institution as being involved
in the abuse of the person or
- the
Operator has reasonable grounds to believe that a participating institution may
be responsible for the abuse of the person.
Subclause 25(2) also provides the Operator with a
broad discretionary power to request information from institutions where there
are reasonable grounds to believe the participating institution has information
relevant to determining an application.
The consequences for failing to comply with a request for
information also differ. If an applicant fails to comply with a request, the
Operator is not required to make a determination on their application until the
information is provided (subclause 26(1)). If a participating
institution fails to comply with a request the Operator may still progress the
application and make a determination (subclause 26(2)). State and territory
law do not prevent a person from complying with a request (clause 27).
Clause 28 also provides that ‘[a] person must not
give information, produce a document or make a statement to an officer of the
scheme if the person knows, or is reckless as to whether, the information,
document or statement is false or misleading in a material particular’. The
maximum civil penalty for a breach of this provision is 60 penalty units
($12,600).[131]
The Operator must determine whether
to approve the application
Subclause 29(1) provides that if a person makes an
application for redress the Operator must make a determination to approve, or
not approve, the application ‘as soon as practicable’.
Subclause 29(2) lists the things the Operator must do
if there is a reasonable likelihood the person is eligible for redress. These
include:
- approve
the application
- determine
each participating institution that is responsible for abuse
- determine
the amount of redress payment and each liable institution’s share of the cost
of the redress payment
- determine:
- the
amount of counselling and psychological component of redress
- each
responsible institution’s share of the cost of that component
- determine
whether the counselling and psychological component consists of:
- access
to the counselling and psychological services provided under the scheme or
- a
counselling and psychological services payment
- if
a counselling and psychological services payment, determine that the amount of
the payment equals the amount of the counselling and psychological component of
redress
- for
each responsible institution that is a member of a participating group,
determine each other participating institution that is an associate of the
responsible institution at that time
- for
a participating institution that was identified in the application and is not
covered by a determination, determine that the participating institution is not
responsible for the abuse and therefore not liable for providing redress
- determine
that a participating government institution is the funder of last resort for
the defunct institution in relation to abuse if
- the
participating government institution is equally responsible with a defunct
institution for the abuse and
- the
defunct institution is listed for the participating jurisdiction that the
participating government institution belongs.
Working out the amount of redress
and sharing of costs
Clause 30 provides the process for the Operator to
determine the amount of redress payment and each responsible institution’s
share of the costs of the redress payment.
The Operator must ‘work out’ each responsible institution’s
share of the costs of the redress payment by following a method statement. The
method statement requires:
- applying
the assessment framework (see clause 32) to work out the maximum amount
of redress which could be made to the person (the maximum amount must not be
more than $150,000)
- working
out each responsible institution’s share of the maximum amount (this is the
gross liability amount for each responsible institution)
- determining
relevant prior payments to the person by each responsible institution
- adjusting
the relevant prior payments for inflation (multiplying the original amount by
(1.019)n where ‘n’ is the number of years since the relevant payment
was made to the person)
- adding
together the adjusted prior payments to find the reduction amount for each
institution
- an
institution’s share of the cost of redress payment is gross liability amount
less the reduction amount.
The Operator must then ‘work out’ the amount of redress
payment for the person by adding together each responsible institution’s share
of the costs of the redress payment.
A note to the clause confirms that the amount of redress
payment may be nil (because of the total amount of adjusted prior payments
exceeds the redress payment) but that the person will still be entitled to the
other components of redress.[132]
Relevant prior payments
A key part of this process is taking into account ‘relevant
prior payments’ paid to the person ‘by, or on behalf of, the responsible
institution in relation to abuse’. The method statement sets out that a
relevant prior payment is ‘any payment ... by, or on behalf of, the responsible
institution in relation to abuse for which the institution is responsible (but
do not include any payment to the extent that it is prescribed by the rules as
not being a relevant prior payment)’.
This wording leaves ambiguity as to which payments from,
or on behalf of, a responsible institution to an applicant may be determined to
be a ‘relevant prior payment’. The DSS submission to the Senate Committee
inquiry describes ‘relevant prior payments’ as ‘payments made by or on behalf
of a responsible institution in recognition of the harm caused by abuse for
which the institution is responsible, or in recognition of such abuse itself’.[133]
It states:
The Scheme will not deduct payments provided to support
access to counselling and psychological services, or routine payments of
treatment, or other expenses like medical or dental bills. The Scheme will not
take into account one-off payments for specific purposes that are not in
recognition of harm, even where the specific purpose for which the payment was
made was requested by the survivor (for example, for consumer items or covering
rent). In cases of shared responsibility, the Scheme will only deduct prior
payments from the liability for redress of the institution that made the
payment.[134]
Notably, the Royal Commission recommended that ‘any
uncertainty as to whether a payment already received related to the same abuse
for which the survivor seeks a monetary payment through redress should be
resolved in the survivor’s favour’.[135]
This preference towards survivors in assessing prior payments does not appear to
be incorporated into the method statement.
Indexation of relevant prior
payments
As noted above, survivor groups and others have raised
concerns regarding the impact of indexation of prior payments to applicants in
reducing redress payments under the scheme. For example, Tuart Place, a resource
service for adults who experienced out-of-home care during childhood commented:
The primary problem with indexing redress payments however,
is that these payments are not ‘proper compensation’, and upscaling is
inappropriate when dealing with amounts that bear no direct relationship to the
‘true value’ of the damage, as is the case in civil claims. It is accepted that
redress payments are significantly lower than common law damages, which makes
upscaling particularly unfair.
Further, institutional liability for payment of damages is
triggered at the time the abuse occurs, in some cases more than half a century
ago. Much of the sexual abuse to be redressed under the [scheme] is decades
old, but there is no counterbalance or provision for payment of interest
backdated to the time of the abuse. Applicants will be required to accept the
payment in lieu of claiming damages which would likely carry interest
calculated at a significant sum.[136]
Further, Tuart Place observed that ‘the process of
monetising someone’s childhood abuse is inherently fraught’:
One of the problems with applying the [scheme’s] proposed
formula of (1.019)n is that it will generate ‘oddly precise’ amounts
of redress, and while such a high level of specificity may be normal and
considered reasonable in a taxation or Centrelink assessment, it has no place
in a redress scheme.[137]
The DSS submission to the Senate inquiry states that ‘in
line with the recommendations of the Royal Commission, relevant prior payments
will be adjusted for inflation to account for changes in the value of money
over time’:
The Scheme will be using a flat inflation rate of 1.9 per
cent per annum when adjusting prior payments for inflation. This represents the
average rate of inflation over the lifetime of the Royal Commission. Adjusting
relevant payments by CPI would generally result in a higher indexation rate in
most cases, thereby lowering the payment available to survivors.[138]
DSS considered that ‘it is likely that a number of key
institutions would choose not to participate in the Scheme if relevant payments
were not adjusted to account for inflation’.[139]
Working out the amount of the counselling
and psychological component and sharing of costs
Clause 31 sets out how the Operator must determine the
amount of the counselling and psychological component and each responsible
institution’s share of the costs of that component.
Subclause 31(2) provides the Operator must apply
the assessment framework to work out the component. The amount must not be more
than $5,000, regardless of the number of responsible institutions. The Operator
must work out, in accordance with the rules, the amount that is each
responsible institution’s share of the costs of the component.
This raises an issue of ambiguity concerning the delivery
of this component of redress. Under the Bill a person can receive counselling
and psychological services provided under the scheme or a counselling
and psychological services payment (up to $5,000). It is not clear how the
calculation of the value of this component of redress will translate to the
services provided under the scheme.
The assessment framework and policy
guidelines
Clause 32 of the Bill provides that the Minister
may declare in writing an assessment framework for ‘working out’ amounts of
redress under the scheme. This will be a legislative instrument, but not
disallowable under section 42 of the Legislation Act
2003.
The DSS submission states ‘the assessment framework will
be publicly available as a legislative instrument, which will be tabled after
the passage of the Bill’:
The Scheme will use an assessment framework to assess the
monetary payment amount that each survivor will receive. The assessment
framework design is based on the approach recommended by the Royal Commission,
and on consultation with the Independent Advisory Council, jurisdictions and
key non-government institutions. It will include components that recognise the
severity of sexual abuse suffered, the impact on the survivor, related
non-sexual abuse, institutional vulnerability (for residential institutions)
and extreme circumstances.
The average monetary payment under the Scheme is expected to
be around $76,000 (before prior payments are taken into account). The maximum
payment available under the Scheme is $150,000. This payment will recognise the
most extreme cases. This average monetary payment is $11,000 higher than that
recommended by the Royal Commission.[140]
Clause 33 provides for the Minister to make
guidelines for the purposes of the applying the assessment framework. These
guidelines will not be a legislative instrument and the Operator ‘may’
take them into account when applying the assessment framework.
Transparency of assessment process
Access to the assessment framework policy guidelines
appears to be restricted in later clauses (see clauses 102-104 below). The
restricted access to the assessment framework policy guidelines is likely to
limit transparency concerning the calculation of redress payments under the
scheme. The Explanatory Memorandum provides a policy rationale for this
restriction:
This Division is necessary to ensure that the assessment
framework policy guidelines are appropriately protected from unauthorised use
and disclosure, as the guidelines provide additional matters that the Operator
may take into account when applying the assessment framework (clauses 32 and
33), which may contain graphic and triggering descriptions of abuse. Further,
protecting the assessment framework policy guidelines from unauthorised use and
disclosure will assist with mitigating the risk of fraudulent and enhanced applications,
as unauthorised disclosure of the guidelines could enable people to understand
how payments are attributed and calculated.[141]
However, Maurice Blackburn was ‘bewildered that, far from
moving toward a more transparent approach to the calculation of redress, the
current draft legislation actually makes the assessment framework more
secretive’. It submitted that ‘in the interests of transparency and survivor
confidence, the draft legislation be remodelled allowing for the contents of
the assessment framework, and the processes for its use to be made public, and
made subject to parliamentary oversight’.[142]
Notice of determination
Clause 34 provides that, after making a
determination, the Operator to must give an applicant a notice of determination
stating whether the application has been approved, the reasons for the
determination and that the person may apply for a review of the determination.
The notice must also specify the date by which the person
may apply for review of the determination (at least 28 days, but no longer than
six months after the date of notice) and it must comply with the any matter
prescribed by the rules.
Additionally, clause 35 of the Bill requires the
Operator give a notice of determination to participating institutions specified
in the determination. Subclause 35(2) contains a detailed list of
information the notice to the participating institution should contain include
the reasons for the determination. Further, the notice must comply with any requirements
prescribed by the rules.
Effect of determination and
admissibility of evidence in civil proceedings
Clauses 36 and 37 of the Bill deal with the legal
effect of determinations. Clause 36 provides that a determination only
has effect for the purposes of the scheme and ‘is not a finding of law or fact
made by a court in civil or criminal proceedings’. A note to the clause
observes that a different standard of proof ‘reasonable likelihood’ is applied
under the scheme. Clause 37 makes applications for redress, associated
documents and documents created to comply with requests for information by the
Operator inadmissible in civil proceedings.
Offers and acceptance of redress
Clause 39 details what must be contained in a written
offer of redress when a person’s application for redress is approved. Offers of
redress must contain a range of information including:
- the
amount of the redress payment
- whether
the counselling and psychological component of redress for the person consists
of:
- access
to the counselling and psychological services that are provided under the
scheme or
- the
counselling and psychological services payment and
- the
participating institutions determined to be responsible for the abuse and
therefore liable for providing redress to the person under the scheme.
In particular, the offer of redress must explain the
effect of clause 43 ‘(which is about the release from civil liability of the
responsible institutions, their officials, their associates and the officials
of their associates) should the person accept the offer’.
Clause 40 provides that the acceptance period of an
offer of redress must be at least six months. The acceptance period can also be
extended by the Operator or at the request of the applicant if there are
exceptional circumstances. Under the previous legislation the acceptance period
was at least 90 days. Some submissions to the Senate inquiry, such as the Law
Council of Australia have argued for ‘one year to be an appropriate timeframe’.[143]
Clause 41 requires that where the Operator makes an
offer of redress, he or she must provide a notice of the offer to relevant participating
institutions or people.
Accepting and declining offers of
redress
Clause 42 provides for persons to accept an offer
of redress by giving the Operator an acceptance document before the end of the
acceptance period. The key component of the acceptance document requires the person
to release all institutions, associates and officials determined to be
responsible for the abuse of the person of all civil liability (other than the
abuser of the person).
It also must state that the person forgoes any entitlement
to be paid damages by a released institution or official if the released
institution or official were joined as a party to civil proceedings brought or
continued by the person against another party in relation to abuse of the
person that is within the scope of the scheme.
The acceptance document must also state that the person
will not, whether as an individual, a representative party or a member of a
group, bring or continue any civil claim against a released institution or
official in relation to abuse of the person that is within the scope of the
scheme.
While the acceptance document must comply with any
requirements in the rules, subclause 42(4) provides that the rules ‘must
not require the person to enter into a confidentiality agreement’.
Clause 43 of the Bill deals with the effect of
acceptance of an offer of redress on civil liability. When a person accepts an
offer of redress:
- the
person releases and forever discharges every released institution or official
from civil liability for abuse of the person that is within the scope of the
scheme and
- the
person cannot (whether as an individual, a representative party or a member of
a group) bring or continue civil proceedings against a released institution or
official in relation to that abuse.
However, the release and discharge of civil liability of a
released institution or official for abuse does not release or discharge
another institution or person from civil liability for that abuse or prevent
the person from bringing or continuing civil proceedings against another institution
or person in relation to that abuse (paragraph 43(c)).
The DSS submission also noted that ‘[t]he changes to the
release provisions clarify that a released institution or official cannot be
made liable to pay damages if later joined as a third party to a common law
claim or being subject to contribution proceedings’.[144]
In this respect, paragraph 43(d) clarifies that if a released
institution or official ‘is liable to make a contribution to another
institution or person in relation to damages payable to the person in civil
proceedings brought or continued by the person against the other institution or
person in relation to that abuse’:
- the
released institution or official is released and forever discharged from
liability to make that contribution and
- the
amount of damages payable to the person in those proceedings is reduced by the
amount of that contribution.
Statutory release
Under the previous proposed legislation the required release
from civil liability only applied to participating institutions. The Bill
extends the release from civil liability when an offer of redress is accepted
to institutions and officials (other than an official who is an abuser
of the person). The DSS submission stated:
To ensure increased participation of institutions, it was
also crucial to ensure officials of institutions were released from civil
liability. These arrangements do not apply if the official of an institution
was also the abuser of the applicant, and the release does not apply to
criminal liability.[145]
Counselling and psychological
component of redress
The previous proposed legislation provided that the
Operator must enable eligible persons to access counselling and psychological services
as soon as possible after the person has accepted an offer of redress.[146]
It also included ‘general principles guiding counselling and psychological
services’ including that ‘[c]ounselling and psychological services provided
through redress should supplement, and not compete with, existing services’.[147]
Clause 51 reflects a changed approach to this
component of redress in the Bill.
If the person lives in a participating jurisdiction that
is a declared provider of counselling and psychological services under the
scheme, the Operator must refer the person to the participating jurisdiction.
The participating jurisdiction must, as soon as practicable after receiving the
referral, provide for the delivery of counselling and psychological services
under the scheme in accordance with the National Service Standards. [148]
If the person does not live in a participating
jurisdiction that is a declared provider of counselling and psychological
services the Operator must pay the counselling and psychological services
payment to the person (in accordance with any rules).
The DSS submission to the Senate inquiry contains details
regarding the ‘tiered’ structure of this component of redress under the scheme:
Survivors will access [counselling and psychological care]
under the Scheme in one of two ways:
-
where a jurisdiction has elected
to provide a lump sum payment, the survivor will receive a tiered lump sum
payment of $1,250, $2,500, or $5,000 (based on the severity of the sexual abuse
they have experienced), or
-
where a jurisdiction has elected
to provide state based counselling services, survivors will be referred through
a state or territory government to appropriate counselling services.
Jurisdictions will be provided with the tiered counselling payment directly
($1,250, $2,500, or $5,000 based on the severity of the sexual abuse the person
has experienced). The inclusion of the option came at the request from a number
of the jurisdictions.[149]
Clause 52 extends the protections for the redress
payment from affecting social security or veterans’ entitlements or from
bankruptcy etc to the counselling and psychological services payment.
Similarly, clause 53 provides additional protection to the counselling
and psychological services payment from court garnishee orders.
Direct personal responses
Clause 54 provides for direct personal responses
from responsible institutions. A direct personal response can be ‘any one or
more’ of the following:
- an
apology or a statement of acknowledgement or regret
- an
acknowledgement of the impact of the abuse on the person
- an
assurance as to the steps the institution has taken, or will take, to prevent
abuse occurring again
- an
opportunity for the person to meet with a senior official of the institution.
When providing a direct personal response, participating
institutions must take into account the direct personal response framework set
out in clause 55. This clause provides that the Minister may declare, in
writing, guidelines about how direct personal responses are to be provided
under the scheme.
Chapter 3—Special rules to deal
with exceptional cases
The previous proposed legislation dealt with ‘exceptional
cases’ (such as the death of applicant or death before offer of redress is
accepted), but the Bill also establishes new processes concerning applicants
with serious criminal convictions and the issuing of security notices.
Death of person before acceptance
of redress
A number of potential applicants to the scheme are elderly
or are in poor health. The clauses below deal with situations where the
applicant dies during the determination and offer and acceptance process.
Clause 58 provides that if a person has made a
valid application but dies before a determination is made, the Operator must
continue to deal with the application as if the person had not died. The
redress payment is payable in accordance with clause 60 below.
Clause 59 provides that if an offer of redress has
been made and the applicant dies before the offer is accepted, declined or
withdrawn then the offer is taken to be withdrawn.
However, if before the person died, they had not applied
for review or applied for review and the review had been completed then the
redress payment is payable according to clause 60. Similarly, if the applicant
has applied for review and the review is still on-going, the review will
continue as if the person has not died.
Clause 60 provides that if a redress payment is
payable after the person has died the Operator must determine who should be
paid and make the redress payment to that person(s) as soon as possible. The
Operator can consider the deceased person’s will and the law relating to the
disposition of deceased persons in making this determination.
Abuse occurring inside a
non-participating State
Clause 61 provides that a person will be eligible
and abuse will be within the scope of the scheme if the sexual abuse occurred
inside a non-participating state where a Commonwealth institution or a
participating territory institution is primarily responsible.
Special assessment of applicants
with serious criminal convictions
Clause 63 provides that if a person is sentenced to
imprisonment for five years or longer for an offence against a law of the
Commonwealth, a state, a territory or a foreign country, the person will not be
entitled to redress unless a determination by the Operator is made.
In particular, subclause 63(3) states that the
Operator must make this determination ‘soon as practicable after becoming aware
of a person’s sentence’. In making the determination, the Operator must request
advice and ‘sufficient information’ from specified advisors. These specified
advisors are the relevant Attorneys-General from the participating
jurisdictions where the person’s abuse occurred and where the offence occurred
(paragraph 63(3)(b)).
Under subclause 63(5) the Operator may determine that
the person is not prevented from being entitled to redress under the scheme if
satisfied providing redress would not:
- bring
the scheme into disrepute or
- adversely
affect public confidence in, or support for, the scheme.
In making this determination, the Operator must take into
account:
- any
advice given by a specified advisor
- the
nature of the offence
- the
length of the sentence of imprisonment
- the
length of time since the person committed the offence
- any
rehabilitation of the person and
- any
other matter that the Operator considers is relevant.
However, the Operator must give ‘greater weight’ to any
advice given by a specified advisor from the jurisdiction in which the abuse of
the person occurred.
Persons with serious criminal
convictions
The earlier proposed legislation did not exclude people
with serious criminal convictions from applying from the proposed scheme.
However, in December 2017, then Minister for Social Services, Christian Porter,
announced there would be ‘some limitation ... placed around the ability of
someone with a fairly significant criminal record of offending and sexual
offending to themselves be able to apply’. He observed this decision had
followed consultation, particularly with the state and territory governments
and the independent advisory committee and was intended to ‘maintain public
confidence in the scheme’.[150]
The DSS submission to the Senate inquiry into the Bill stated:
This means that the Scheme will still accept applications
from people with criminal convictions. However, people who have a serious
criminal conviction, where they have been sentenced to imprisonment for five
years or longer for any offence, will have their application assessed on a case-by-case
basis. This policy was negotiated with jurisdictions and non-government
institutions. This decision balances the need for the Scheme to recognise the
impact that childhood abuse can have on a person’s life, including increasing
the risk of offending behaviour, with the need to ensure that the Scheme is not
brought into disrepute by providing redress to a person who has themselves
committed heinous crimes.[151]
The potential exclusion of persons with serious criminal
convictions from the scheme has been controversial. A large number of submissions
to the Senate inquiry into the previous proposed legislation argued that an exclusion
for persons with criminal convictions would punish persons who were driven into
criminal activities as a consequence of their experiences of abuse when they
were children. Several of these concerns were repeated in the Senate inquiry
into the Bill. For example, the law firm Ryan Carlisle Thomas considered that excluding
those who had suffered childhood abuse but who had served more than five years
in prison was ‘manifestly unjust’ and that ‘applications for an exemption will
rarely, if ever, be allowed’.[152]
It attached its submission on the earlier proposed legislation which pointed
out that that ‘[i]t is well documented that one of the effects of child sexual
abuse can include imprisonment’.[153]
Shine Lawyers also argued there was a lack of certainty in
the process outlined in clause 63:
The Bills do not define what constitutes public confidence
or support or identify how these concepts will be measured. It is
unclear exactly how the public’s confidence or support in the scheme will
influence a person’s eligibility for redress. The redress scheme must be
transparent and predictable. It is unclear how perceptions of public confidence
and support will be applied equitably to survivors across the scheme. Placing
survivors of child sexual abuse in a situation where they do not know whether
they are eligible based on subjective interpretations of concepts of public
confidence in the scheme, exposes survivors to further distress and trauma.[154]
It also highlighted that the factor to be given the most
weight in the process is ‘the opinion of the relevant Attorney(s) General’:
We remain concerned that the opinion of the Attorney General
about the ill-defined concepts of public confidence and support and apparently
an individual’s ‘notoriety’ will be given any weight at all given the scheme
has no external appeal mechanism for a survivor to dispute assumptions about
public confidence and notoriety. If the opinion of an Attorney General is to be
included at all, it should be given no greater weight than any other factor in
clause 65(5).[155]
The Royal Australian and New Zealand College of
Psychiatrists (RANZCP) considered that ‘[d]enying criminal offenders
counselling/psychological services and other opportunities to assist in their
recovery is in opposition to the survivor-focussed approach recommended by the
Royal Commission’. It stated:
The RANZCP notes that section 63(5) of the Bill allows the
Operator to determine that the person is not prevented from being entitled to
redress under the Scheme, with relevant considerations noted in section 63(6).
In particular, the RANZCP notes that any rehabilitation of the person is
included as a relevant consideration. While the RANZCP appreciates these
provisions allow access to the Scheme for some people who would otherwise be
excluded, the RANZCP is concerned that these allowances are discretionary and
based on factors associated with the offence, rather than a person's prognosis
or chance of recovery and rehabilitation.[156]
Security notices
Clause 64 provides that a person is not entitled to
redress while a security notice is in force.
Under clause 65, the Home Affairs Minister is
granted a broad discretionary power to give a security notice to the Minister in
relation to a specified person. The Home Affairs Minister may give a security
notice if:
- the
Foreign Affairs Minister gives the Home Affairs Minister notice (under subclause
66(1) below)
- the
person’s visa is cancelled under section 116 or 128 of the Migration Act 1958
because of an assessment by the Australian Security Intelligence Organisation
(ASIO) that the person is directly or indirectly a risk to security[157]
- the
person’s visa is cancelled under section 134B of the Migration Act
(emergency cancellation on security grounds) and the cancellation has not been
revoked because of subsection 134C(3) of that Act[158]
- the
person’s visa is cancelled on character grounds under section 501 of the Migration
Act and there is an assessment by ASIO that the person is directly or
indirectly a risk to security.[159]
Before giving a security notice, the Home Affairs Minister
must have regard to the extent (if any) that any payments to the person under
the scheme have been or may be used for a purpose that might prejudice the
security of Australia or a foreign country, if the Home Affairs Minister is
aware of that extent (subclause 65(2)). However, this does not limit
‘the matters to which regard may be had’ (subclause 65(3)).
Clause 66 provides that the Foreign Minister may
give notice to the Home Affairs Minister where the Foreign Minister has refused
to issue or revoked an Australian travel document, based on a request by a
competent authority, under certain sections of the Australian
Passports Act 2005. In particular, this would be in circumstances where
‘a competent authority’ suspects on reasonable grounds that, if an Australian
travel document were issued to a person, the person would be likely to engage
in conduct that ‘might prejudice the security of Australia or a foreign
country’.[160]
Clause 67 provides that the Minister must give
copies of a security notice to the Operator and the Secretary of the Human
Services Department.
A security notice comes into force on the day it is given
to the Minister and remains in force until revoked by the Home Affairs Minister
(clause 68). It must be annually reviewed by the Home Affairs Minister (clause
69) and may be revoked by written notice to the Minister and copies given
to the Operator and the Secretary of the Human Services Department (clause
70). The procedures for the review of a security notice are not detailed.
In relation to security notices, the DSS submission to the
Senate inquiry states:
A person’s access to redress will only be impacted in
circumstances where the receipt of redress is relevant to the assessed security
risk posed by the individual and the receipt of redress would adversely impact
the requirements of security. This is to ensure that those individuals assessed
to be engaged in politically motivated violence overseas, fighting or actively
supporting extremist groups are covered. It is not intended that every person
whose passport or visa has been refused or cancelled would lose access to
redress, rather only in cases where it is appropriate or justified on security
grounds.
The arrangements align with Australia’s existing
counter-terrorism legislative framework by mirroring provisions contained in
the Paid Parental Leave Act 2010 (sections 278A to 278L), Social
Security Act 1991 (sections 38L to 38W) and A New Tax System
(Family Assistance) Act 1999 (sections 57GH to 57GS).[161]
The Australian Human Rights Commission noted that the
stated justification for excluding persons with security notices in the Bill’s
Statement of Compatibility with Human Rights ‘only refers to the use of “funds”
and is therefore confined to the redress “payment”’. It argued that ‘[g]iven
the object of the Scheme to recognise and alleviate the past injustices of
institutional child sexual abuse, the Commission considers that non-monetary
aspects of redress could still be offered to survivors the subject of security
notices’.[162]
Chapter 4—Administrative matters
Chapter 4 of the Bill deals with the review of
determinations, nominees of applicants and protecting information under the
scheme, including the assessment framework policy guidelines.
Review of determinations
If the Operator has made a determination on a person’s
application the person can apply to the Operator for a review (clause 73).
If an application for review is made the Operator must
review the original determination or cause the original determination to be
reviewed by an independent decision maker (who has been delegated the
Operator’s power under the section and was not involved in the making the
determination) (subclause 75(1)). DSS has noted that the independent
decisions makers will make the ‘final decisions on applications for redress’.[163]
The reviewer (either the Operator or independent decision
maker) must reconsider the original determination and make a review
determination to affirm, vary or set aside and substitute the original
determination (subclause 75(2)). However, in this review, the reviewer
may only have regard to the information and documents that were available to
the person who made the original determination (subclause 75(3)). The
Explanatory Memorandum states:
The limitation placed on the internal reviewer to only have
regard to the information and documents that were available to the person who
made the original determination is to balance the need for an expedited
application process for survivors with the burden of administration. Further,
allowing the internal reviewer to request further information from survivors
will create a high level of administrative burden, add to the potential
re-traumatisation of survivors having to seek additional material and increase
the operational costs for institutions to participate in the Scheme.[164]
Lack of external review
While the scheme contains an internal review process,
there is no provision for external review of decisions under the scheme.[165]
In his second reading speech, the Minister stated this was ‘in line with
feedback from institutions, survivors and the Independent Advisory Council on
Redress following the royal commission's recommendation’ and would ‘provide
survivors with access to independent and impartial internal review without
subjecting them to potential retraumatisation’.[166]
In relation to the similar internal review arrangements in
the previous proposed legislation, the Commonwealth Ombudsman expressed concern
that ‘there appears to be no recourse to external review for applicants to the
scheme’. He argued the internal review process in the scheme ‘should be
complemented by at least one avenue of external review, probably judicial
review given some of the novel administrative law concepts (such as the
standard of ‘reasonable likelihood’ that also applies to our decisions) to
guard against an incorrect decision being made’.[167]
The Law Council of Australia recommended subclause
73(5) be removed to allow new documents and information to be considered in
the review. It stated ‘such a limitation appears unjustified and may lead to
unjust outcomes’.[168]
Nominees
The previous proposed legislation provided for the
appointment of ‘payment nominees’ and ‘correspondence nominees’. This has been
changed in the Bill to reflect feedback from participating jurisdictions that
‘payment nominees’ were unnecessary.[169]
The previous arrangements for nominees have been replaced by a framework of
‘assistance nominees’ and ‘legal nominees’.
Clause 81 allows the Operator to appoint a person
as an assistance nominee or legal nominee for an applicant. An assistance
nominee can only be appointed with the consent of that person and the applicant.
However, a legal nominee can be appointed if:
- under
a law of the Commonwealth, a state or a territory the person has power to make
decisions for the applicant in all matters that are relevant to the duties of a
legal nominee
- the
nominee gives written consent to the appointment and
- the
Operator has taken into account any wishes of the applicant regarding the
making of such an appointment.[170]
DSS has indicated that ‘[t]his type of nominee arrangement
is intended for applicants with existing legal arrangements who may not be able
to provide consent to such an arrangement (for example, if the person’s mental
capacity is limited)’.[171]
Clause 83 provides that it is the duty of an
assistance nominee or a legal nominee to act in the best interests of the
person at all times. However, a nominee does not breach this duty if they
reasonably believe when acting (or refraining from acting) that it is in the
best interests of the person.
Clauses 84 and 85 outline the actions that can be
taken by assistance nominees and legal nominees respectively. In particular,
assistance nominees will be able to do any act that can be done by applicants, except
for making an application for redress, accepting and declining offers of
redress, actions related to appointing a nominee or an act prescribed by the
rules. A legal nominee will be able to do any act that can be done by the
applicant, including accepting or rejecting an offer of redress.
A key issue in relation to nominees, noted by DSS in its submission
to the Senate inquiry, is that accepting an offer of redress involves the
applicant agreeing ‘to release responsible institution(s) from civil
liability’. Accordingly, assistance nominees are ‘intended for applicants who
have the capacity to provide consent to such an arrangement, but may prefer
some assistance in engaging with the Scheme (for example, if the person is
finding it too traumatic to engage with the Scheme)’.[172]
Clause 88 protects a person from liability for an
offence against the legislation in relation to ‘any act or omission of the
person’s nominee’. Clause 89 protects the nominee of a person from
criminal liability from acts or omissions by the person or ‘anything done, in
good faith, by the nominee in his or her capacity as nominee’.
People with Disability Australia expressed ‘reservations
about how nominee provisions in legislation limit the participation of people
with disability in decision-making about their lives’. It argued the ‘nominee
provisions in this Bill emulate the outdated substitute decision-making
frameworks that persist in other forms of legislation, yet are not human rights
compliant’.[173]
The knowmore legal service characterised the changed nominee arrangements as an
improvement.[174]
Protecting information under the
scheme
Division 1 of Part 4-3 deals with how protected
information under the scheme may be obtained, recorded, disclosed or used. This
includes disclosure in the public interest or for another specified purpose. A
number of offences are also created for misconduct in relation to protected
information. The Explanatory Memorandum notes that ‘a large amount of protected
information will likely be acquired by the Operator through the operation of
the Scheme, and the protection of that information and a person’s right to
privacy is considered paramount’.[175]
Clause 92 provides that ‘protected information’
means ‘information about a person or an institution that was obtained by an
officer of the scheme for the purposes of the scheme’ and is held in the
records of DSS or the Department of Human Services. This includes information
to the effect that ‘there is no information’ held about a person or institution.
Clause 93 provides the ‘main authorisation’ for
obtaining, recording, disclosing or using protected information. A person may obtain,
make a record of, disclose or use protected information if it is done for:
- for
the purposes of the scheme
- with
the express or implied a consent of the person or institution to which the
information relates or
- if
the person believes on reasonable grounds that doing so is necessary to prevent
or lessen a serious threat to an individual’s life, health or safety.[176]
A person may also use protected information to produce
information in an aggregated form that does not disclose, either directly or
indirectly, information about a particular person or institution (subclause
93(2)).
In its submission to the Senate inquiry into the Bill, the
Law Council of Australia recommended the words ‘express or implied’ should be
removed from this clause ‘so that the consent of the person or institution to
which the information relates is required before the information is used or
disclosed in the manner outlined in the Bill’.[177]
Clause 94 outlines an additional authorisation
which provides the Operator may disclosure protected information provided by a
person applying for redress to the nominee of that person.
Clause 95 allows the Operator to disclose protected
information in the public interest or for another specified purpose.
Subclause 95(1) provides that the Operator may
disclose protected information that was provided to, or obtained by, an officer
of the scheme for the purposes of the scheme if:
- the
Operator certifies that it is necessary in the public interest in a particular
case or class of cases and the disclosure is to such persons and for such
purposes as determined by the Operator or
- the
disclosure is to:
- a
person who is expressly or impliedly authorised by the person or institution to
which the information relates to obtain it
- the
Chief Executive Centrelink for the purposes of a Centrelink program
- the
Chief Executive Medicare for the purposes of a Medicare program
- the
head (however described) of a government institution, for the purposes of that
institution.
Subclause 95(2) provides for subsequent dealing
with the disclosed protected information. A person to whom protected
information is disclosed under subclause 95(1) may obtain, make a
record, disclose or use the information ‘if the person does so for the purpose
for which the information was disclosed’ under that subclause.
The Law Council of Australia expressed concerns regarding
this clause and recommended that it be amended:
- to
require the Operator to consider the impact disclosure of protected information
might have on a person to whom that information relates
- to
specifically identify the classes of persons or entities to whom the Operator
may disclose protected information ‘in the public interest’.[178]
It also recommended that ‘if a decision to disclose
protected information under proposed section 95 is made, the consent of
the survivor should be sought prior to disclosure and, where that consent is
refused, information should only be provided where it is de-identified’.[179]
Clause 96 provides the Operator may also disclose
protected information if satisfied the disclosure is ‘reasonably necessary’ for
the ‘relevant purposes’ of:
- the
enforcement of the criminal law
- the
safety or wellbeing of children.
The Operator may disclosure the protected information to a
government institution that has functions that relate to the above purposes.
However, before disclosing protected information related to a person who has
applied for redress, the Operator ‘must have regard to the impact the
disclosure might have on the person’.
If the protected information is disclosed to a government
institution, then an employee or officer of the institution may obtain, make a
record of, disclose or use the information, but only for a ‘relevant purpose’
in their capacity as an employee or officer of the institution.
Under subclause 96(5) the Operator can impose
conditions to be complied with in relation to protected information which has
been disclosed. Subclause 96(6) makes it an offence for a person subject
to a condition to engage in conduct that breaches the condition. The maximum
penalty for this offence is imprisonment for two years or 120 penalty units ($25,200)
or both.[180]
Clause 97 provides for obtaining, recording,
disclosing and using protected information for a series of permitted purposes.
Under subclause 97(1) a government official may
obtain, make a record of, disclose or use protected information for the
purposes of:
- the
enforcement of the criminal law
- the
safety or wellbeing of children
- investigatory,
disciplinary or employment processes related to the safety or wellbeing of
children or
- a
purpose prescribed by the rules.
The Explanatory Memorandum clarifies that ‘this clause
would allow states and territories to comply with existing reportable conduct
schemes’.[181]
Subclause 97(2) provides for the disclosure of
protected information by a person to a government institution if:
- the
person is satisfied that the disclosure of protected information is reasonable
necessary for a permitted purpose and
- a
law of the Commonwealth, a state or territory requires or permits the person to
disclose the information to a government institution that has functions that
relate to that purpose.
Clause 98 provides an additional authorisation to
persons engaged by participating institutions to obtain, make record of,
disclose and otherwise use protected information for a specified purpose. The
Explanatory Memorandum notes that this clause ‘will allow participating
institutions to undertake certain activities related to their participation in
the Scheme such as making claims against their insurance to cover the cost of
redress payment’. It will also allow for the use of protected information ‘to
conduct internal investigations and disciplinary proceedings where, for
example, an alleged perpetrator is still employed by, or associated with, the
institution’.[182]
Clauses 99, 100 and 101 create offences for the
misuse of protected information. All these offences have a maximum penalty of imprisonment
for two years or 120 penalty units ($25,200) or both. [183]
Clause 99 creates an offence where a person
obtains, records, discloses or uses protected information and is not authorised
or required by or under the Act to do so. However, this offence will not apply
where the person did not obtain the information under, for the purposes of, or
in connection with the scheme or where the person had already obtained the
information before they obtained the information in connection with the scheme.[184]
Clause 100 creates an offence where a person
solicits the disclosure of protected information from an officer of the scheme
or another person and the disclosure would contravene this Division. An offence
would be committed regardless of whether or not any information is disclosed.
Clause 101 contains two offences. Subclause
101(1) creates an offence where a person offers to disclose protected
information about another person or an institution and the disclosure would
contravene this Division. Subclause 101(2) creates an offence where
person holds himself or herself out as being able to disclose (whether to a
particular person or otherwise) protected information about another person or
an institution.
Use and disclosure of the
assessment framework policy guidelines
As noted above, clause 33 allows the Minister to
issue assessment framework policy guidelines. Access to these policy guidelines
will be restricted by the provisions below.
Clause 102 provides the ‘main authorisation’ for
officers of the scheme to obtain, make a record of, disclose to another officer
of the scheme or use the assessment framework policy guidelines ‘for the
purposes of the scheme’.
Clause 103 provides an ‘additional authorisation’
for disclosure and use of the assessment framework policy guidelines in
accordance with the National Redress Scheme Agreement.
Clause 104 creates an offence where a person
obtains, makes a record of, discloses or uses information contained in the
assessment framework policy guidelines without authorisation. This offence will
have a maximum penalty of two years imprisonment or 120 penalty units ($25,200)
or both.
Other matters
With some exceptions, clause 105 provides that a
person must not be required to disclose protected information or information
contained in the assessment framework policy guidelines to a court or tribunal
in civil proceedings. It also provides that protected information and information
contained in the assessment framework policy guidelines ‘are not to be
published by any person, court or tribunal’.
In relation to this clause, the Explanatory
Memorandum states that the ‘Scheme would be undermined if it were able to
be used as a form of discovery in court proceedings’ and this would ‘also overload
the administrative arm of the Scheme which would result in delays to the
process of assessing applications’.[185]
Clause 106 provides protection for persons who disclose
information ‘acting in good faith’ for the purposes of the scheme. In these
circumstances the person is ‘not liable to any civil or criminal proceedings,
or any disciplinary action, for disclosing the information’. Further, the
person ‘cannot be held to have breached any code of professional etiquette or
ethics or departed from any accepted standards of professional conduct’.
Chapter 5—Participating
institutions, participating groups and participating jurisdictions
Participating institutions
For a person to be eligible for redress for sexual abuse or
non-sexual abuse, a participating institution must be responsible for the abuse
(subclause 108(1)).
Subclause 108(2) lists the types of participating
institutions (which are further defined in later clauses). These are:
- Commonwealth
institutions (clause 109)
- participating
State institutions (clauses 110 and 111)
- participating
Territory institutions (clauses 112 and 113) and
- participating
non-government institutions (clause 114).
Ministerial declarations about
participating institutions
Clause 115 provides that the Minister may declare,
by notifiable instrument, that an institution is a participating institution. However,
the Minister cannot make a declaration unless an institution is within a
participating jurisdiction and the institution has agreed to participate in the
scheme. Similarly, a declaration cannot be made in relation to a defunct
non-government institution or an unincorporated lone institution unless a
person agrees to be a representative for the institution. Declarations can only
be made within the first two years of the scheme (unless regarding a defunct
institution or otherwise prescribed by the rules). Clause 116 provides
circumstances for these Ministerial declarations to be revoked.
Participating defunct institutions
A defunct institution (which is a government or
non-government institution that no longer exists) can also become a
participating institution (clause 117). A defunct institution must have
a single representative (clause 118). The representative acts on the
institution’s behalf and assumes its obligations and liabilities under the
scheme (such as the obligation to provide a direct personal response to a
person and the liability to pay funding contribution).
The representative for defunct Commonwealth, participating
state and participating territory institutions is the relevant jurisdiction.
For defunct participating non-government institutions the Minister must, by
notifiable instrument, declare the person who has agreed to be the
representative for the institution (clause 119).
Clause 123 provides that the obligations and
liabilities of the legislation imposed on a participating defunct institution
are taken to be imposed on the representative for the institution.
The Royal Commission recommended that ‘[w]here the
institution in which the abuse is alleged or accepted to have occurred no
longer exists but the institution was part of a larger group of institutions or
where there is a successor to the institution, the group of institutions or the
successor institution should fund the cost of redress’.[186]
The DSS submission states that the provisions in relation to defunct
institutions in the Bill provide ‘a clear mechanism to allow existing
institutions to take responsibility for defunct institutions, therefore
maximising participation in the Scheme’.[187]
However, a successor non-government institution may agree to become a
representative for the defunct predecessor, but it is not obliged to do so.
The provisions for defunct institutions may also create disparities
in access to redress for survivors of institutional child sexual abuse where
the responsible institution is now defunct. If the responsible institution was
a government institution in a participating jurisdiction, the jurisdiction will
become the representative and the survivor will be able to apply for redress
under the scheme. However, if the survivor was sexually abused in a (now
defunct) non-government institution, another person/institution will need to
agree and be declared a representative for that defunct institution for it to
be a participating institution under the scheme.
Participating lone institutions
Clause 124 defines a ‘lone institution’ as a non-government,
non-defunct institution which is not part of a participating group. It
differentiates between ‘unincorporated lone institutions’ and ‘incorporated
lone institutions’. While a participating incorporated lone institution ‘may’
have a representative, a participating unincorporated lone institution ‘must’
have a representative (clause 125). The Explanatory Memorandum states:
The requirement for an unincorporated lone institution to
have a representative (which is a legal person) provides the Scheme with a
safeguard in the event that the unincorporated institution (which is not a
legal person) cannot meet any of its obligations under the Scheme. Without this
requirement, it would be difficult for the Scheme to allow the participation of
unincorporated institutions. This does not apply to incorporated lone
institutions.[188]
In particular, clause 131 provides that if a
participating unincorporated lone institution is liable to pay a funding
contribution under the scheme, then the institution and representative ‘are
jointly and severally liable’. The Explanatory Memorandum notes ‘[t]his
requirement provides the Scheme with a safeguard, in the event that the
participating unincorporated lone institution is not able to pay a funding
contribution’.[189]
Participating groups
Clause 133 provides that two or more participating
institutions may form a participating group for the purposes of the scheme.
Under clause 134, the Minister may declare participating groups but must
not for government institutions unless the relevant participating jurisdiction
agrees. For a group of non-government institutions the Minister must not
declare a participating group unless each institution agrees and ‘there is
sufficient connection between each institution in the group’.
The DSS submission states that under the concept of
‘participating groups’ in the Bill ‘two or more institutions (known as
‘associates’) will be able to form to support all the various institutional
structures that may wish to participate in the Scheme’:
To be able to form a participating group, the institutions
must not be members of another participating group, and (if comprised of
non-government institutions) be sufficiently connected (i.e. belong to the same
faith denomination or “brand”). There are two key features of participating
groups. The first is that, if an associate is liable to pay a funding contribution,
then the associate and the group’s representative will be jointly and severally
liable to pay that funding contribution. The second feature is that, where one
associate is responsible, all associates of the group will be released from
civil liability for abuse within the scope of the Scheme ...[190]
Participating jurisdictions
Clause 142 provides the simplified outline concerning
where jurisdictions are participating jurisdictions:
Only participating jurisdictions are part of the scheme.
While the Commonwealth and participating Territories are automatically
participating jurisdictions, a State is only a participating jurisdiction (and
therefore part of the scheme) if it makes a law that gives certain legislative
powers to the Commonwealth Parliament for the purposes of paragraph 51(xxxvii)
of the Constitution. This is known as a State reference. Section 144 deals with
this
Broadly, if a State is not a participating State, then abuse
of a person that occurred inside that State will not be within the scope of the
scheme. This means that the person will not be eligible for redress for that
abuse.
The Commonwealth’s head of power to legislate based on
matters referred by the States (the state referral power) is found in section
51(xxxvii) of the Constitution.
Clause 144 of the Bill provides that a state is a participating state
where its Parliament has legislated to refer:
- ‘the
text reference’, which is ‘the matters to which the initial referred provisions
relate, to the extent of making laws with respect to those matters by including
the initial referred provisions in the original version of this Act’ and
- ‘the
amendment reference’, which is ‘the referred national redress scheme matters [set
out in clause 145]... to the extent of making laws with respect to those
matters by making express amendments of this Act’.
Alternatively, under clause 144, a state is a
participating state where its Parliament has legislated:
- to
adopt the relevant version of the National Redress Scheme Act and
- refers
to the Commonwealth an ‘amendment reference’ (as outlined above).
Essentially, to participate in the scheme, a state must legislate
to refer both the text of the proposed legislation (or adopt it, if already
enacted) and a general ‘referred national redress scheme matters’ to the
Commonwealth (to facilitate the future amendment of the scheme).
Subclause 144(4) sets out matters that do not
affect a state’s status as a participating state for the purposes of the scheme.
These matters include if the state’s referral legislation will terminate ‘in
particular circumstances’.
Subclause 144(5) provides that a state cannot
become a participating state if it has not joined the scheme before the second
anniversary of the scheme start date or a later date prescribed by the rules.
The Explanatory Memorandum notes that this ‘has been included to ensure each
State elects to opt in to the scheme early in the 10-year duration of the
Scheme, to enable redress be provided to survivors in a timely manner’.[191]
Clause 145 clarifies the ‘referred national redress
scheme matters’ for the amendment reference from the participating states to
the Commonwealth. In particular, the matters referred to the Commonwealth do
not include the ‘making of a law to the extent that that law would operate to
prevent or limit the operation of any State redress mechanism’. A ‘State redress
mechanism’ is defined in subclause 145(4) to mean a scheme ‘for or in
respect of persons who have suffered institutional child sexual abuse in the
State’ and ‘the jurisdiction of a court or tribunal to grant compensation or
support for or in respect of victims of crime (including crime relating to
institutional child sexual abuse) and any associated matters’.
Implications for amendment of the
Bill
New South Wales and Victoria have now passed legislation
referring matters to the Commonwealth to facilitate the operation of the scheme.[192]
These included ‘text-based’ referrals to the Commonwealth under section
51(xxxvii) of the Constitution (where the relevant scheduled text is the
provisions of the Bill) for the purposes of establishing a National Redress
Scheme. Subsection 4(1) of both the NSW and Victorian legislation refers
matters to the Commonwealth, ‘but only to the extent of making laws with
respect to those matters by including the initial referred provisions in a
Commonwealth Act enacted in the terms, or substantially in the terms, set out
in the scheduled text’.
Amendments to the Bill which make a ‘substantial’ change
from the scheduled text of the referral legislation may raise questions about
the constitutional validity of the referral from the states to the
Commonwealth. The DSS submission to the Senate inquiry also made this point:
Any changes made to the National Bill would mean the National
Bill would not align with the Schedule included in state referral Acts. This would
render the referral ineffective and mean that the National Bill could not
operate in States which had passed their referral Bills before the changes were
made to the National Bill. Any amendments to the National Bill in the
Commonwealth Parliament would require the negotiation, reintroduction and
passage of a state referral Bill through any state Parliament that has passed
its legislation, thereby delaying the 1 July 2018 Scheme start date. Any such
delay would represent an adverse outcome for elderly individuals who
experienced institutional child sexual abuse.[193]
The Tasmanian Government’s submission to the Senate
inquiry outlined that its ‘agreement to participate in the Scheme is also
contingent on many of the policy parameters agreed with the Commonwealth
Government, which are now largely reflected in the National Bill’. It stated to
the Committee that ‘should any changes be made to the National Bill following
your inquiry, the Tasmanian Government's participation in the Scheme may need
to be re-negotiated’.[194]
The separate ‘amendment referral’ in the NSW and Victorian
referral legislation allows for the future amendment of the legislation (but
only after it is enacted).[195]
The Intergovernmental Agreement on the National Redress Scheme for
Institutional Child Sexual Abuse provides details regarding the agreed
process for any changes to the scheme. This includes a Ministers’ Redress
Scheme Governance Board which will ‘[d]iscuss and agree on proposed amendments
to primary legislation, rules and policy guidelines’.[196]
Under the Intergovernmental Agreement changes to the
primary legislation and other significant issues will be subject to a
‘two-stage voting process’ which requires two-thirds of parties plus
jurisdictions representing 75 per cent financial liability for the scheme to
agree. However, the intergovernmental agreement also provides that unanimity
will be required ‘for changes culminating in increased participating costs to
states and territories and any major design decisions’. These major design decisions
include ‘changes to the maximum redress payment amount’.[197]
Participating jurisdictions
providing counselling and psychological services under the scheme
Clauses 146 and 147 provide that the Minister must
declare that a participating jurisdiction is a ‘declared provider’ of counselling
and psychological services under the scheme if notified:
- arrangements
are in place in the jurisdiction for the delivery of counselling and
psychological services in accordance with the National Service Standards and
- the
jurisdiction requests to become a declared provider of counselling and
psychological services under the scheme.
Where a participating jurisdiction becomes a ‘declared
provider’ then that jurisdiction will provide for the delivery of those
services to those persons who are entitled to redress and live in that
jurisdiction. The DSS submission notes:
[i]f a jurisdiction has elected to provide state based
services, they must adhere to National Service Standards for the delivery of
counselling and psychological services for the redress cohort which are
publicly available as a schedule to the Intergovernmental Agreement on the
National Redress Scheme for Institutional Child Sexual Abuse.[198]
Chapter 6—Financial matters
Liability for funding
The Explanatory Memorandum notes that the scheme is ‘intended
to operate on a responsible entity pays basis as recommended by the Royal
Commission’.[199]
While the Commonwealth will be responsible for the initial costs of redress
payments, counselling and psychological components of redress and
administration of the scheme, the responsible participating institutions will
be liable to pay funding contributions to reimburse the Commonwealth for their
share of the costs.
Clause 149 provides that, if in a quarter, a person
becomes entitled to redress then each participating institution determined to
be responsible is liable to pay funding contribution for that quarter.
The funding contribution for a participating institution
for a quarter consists of two elements:
- the
redress element for the institution for a quarter and
- the
scheme administration element for the institution for a quarter (clause 150).
The redress element of the funding contribution is an amount
equal to the sum of the amounts for each person entitled to redress comprising:
- the
amount of the institution’s share of the costs of the redress payment and
- the
amount of the institution’s share of the costs of the counselling and
psychological component of redress for the quarter, for each person who is
entitled to redress (clause 151).
Clause 152 provides the scheme administration
element of the funding contribution for a participating institution for a
quarter is the amount equal to the institution’s contribution to the costs of
the administration of the scheme for the quarter (as determined by the Operator
in accordance with the rules).
The Explanatory
Memorandum clarifies that internal review is not available for decisions by
the Operator concerning the elements of the funding contribution. It states
that, by agreeing to participate in the scheme, participating institutions have
accepted that the Operator will make these determinations.[200]
Clause 153 provides that funding contributions are due and payable on a
business day specified in notices the Operator will give to participating
institutions and not earlier than 30 days after the date of the notice.
Clause 154 provides for a late payment penalty where
the funding contribution of a participating institution remains unpaid a
calendar month after being due. The Explanatory Memorandum outlines the formula
for calculating the late payment penalty is ‘worked out by multiplying the
amount of the unpaid funding contribution (as at the start of the calendar
month) by 0.1 divided by 12’.[201]
However, the Operator may defer the payment of a late payment penalty (subclause 154(3)).
The funding contribution and late payment penalty are
payable to the Operator on behalf of the Commonwealth (clause 155).
However, the Operator can, on behalf of the Commonwealth, waive a funding
contribution or late payment penalty if ‘satisfied that there are exceptional
circumstances justifying the waiver’ (clause 156). The Explanatory
Memorandum states the Operator could use this waiver in circumstances where ‘recovery
would cause a participating institution that is a charitable organisation to
cease operating’.[202]
If a participating institution is dissatisfied by the
Operator’s decision in relation to a waiver, it can request the Operator
‘reconsider the decision’ (clause 157). After receiving the request, the
Operator must review the decision or cause the decision to be reviewed by a
person delegated with the Operator’s power and who was not involved in the
making of the decision. However, the other requirements which apply to the
appointment and conduct of the ‘independent decision-makers’ under the scheme
do not appear to apply to the person undertaking this review (see below for
more information). The Explanatory
Memorandum states:
An internal review is a quick and inexpensive means of
re-examining decisions ... It was considered appropriate to make decisions on
waiving funding contributions and late payment fees reviewable because these
are decisions that directly affect a participating institution and their
ability to effectively participate in the Scheme.[203]
Clause 158 provides the relevant state and
territories will be liable for funding contributions where a state institution
or a territory institution is a body corporate and the imposition of liability
on the institution would impermissibly:
- impose
taxation on the institution or
- acquire
property of the institution otherwise than on just terms.
Liability of the Commonwealth for
counselling and psychological services contribution
Under the scheme, the Commonwealth will be liable to pay
counselling and psychological services contributions to participating
jurisdictions where those jurisdictions are delivering services under the
scheme.
Clauses 159 provides that the Commonwealth is
liable to pay a ‘counselling and psychological services contribution’ to a
participating jurisdiction, for a quarter, where:
- the
jurisdiction is a declared provider of counselling and psychological services
and
- the
jurisdiction is required under paragraph 51(2)(b) to provide counselling
and psychological services to a person.
Clause 160 provides that the ‘counselling and
psychological services contribution’ is an amount ‘equal to the sum of the
amounts of the counselling and psychological component of redress for each
person in relation to whom the jurisdiction becomes required under paragraph
51(2)(b) in the quarter to provide for the delivery of counselling and
psychological services’.
Appropriation
As noted in the financial implications section above, clause
161 provides that the Consolidated Revenue Fund is appropriated to the
extent necessary for the purposes of payment and discharge of the costs
incurred by the Commonwealth in making:
- redress
payments
- counselling
and psychological services payments and
- counselling
and psychological services contributions.
Funders of last resort
The Royal Commission observed that there will be cases
‘where institutions in which abuse occurred no longer exist’ and ‘cases where
institutions that still exist have no assets from which to fund redress’. It
stated:
Funding for redress for survivors of abuse in these
institutions will need to come from elsewhere. Leaving these survivors without
access to the redress that is available to others would fall short of the
requirement in our Terms of Reference of ‘ensuring justice for victims’.
The community is entitled to look to governments to meet an
identified community need from their revenue sources rather than impose the
obligations of one institution either on another institution or on individual
survivors.
We are satisfied that governments should act as funders of
last resort on the basis of their social, regulatory and guardianship
responsibilities.[204]
The Royal Commission recommended that ‘Australian
Government and state and territory governments should provide “funder of last
resort” funding for the redress scheme or schemes so that the governments will
meet any shortfall in funding for the scheme or schemes’.[205]
Under the previous proposed legislation, the Commonwealth
or a self-governing territory could be a ‘funder of last resort’ for specified
non-government institutions declared by the Minister.[206]
However, this approach is changed under the Bill.
Clause 163 provides that a participating government
institution (rather than a jurisdiction) is the funder of last resort for a
defunct institution where a determination is made by the Operator under paragraph
29(2)(i). This is a determination that the participating government
institution is ‘equally responsible’ with a defunct institution for the abuse
and that the defunct institution is listed for the participating jurisdiction.
Clause 164 provides for the listing by the Minister
of defunct institutions for a participating jurisdiction, which must be
non-government institutions not participating in the scheme. However, the
Minister must not list a defunct institution:
- for
the Commonwealth or a participating territory unless satisfied the relevant
jurisdiction has agreed, in the way prescribed by the rules, to the institution
being listed (subclause 164(3))
- for
a participating state unless satisfied the state has agreed, in a way provided
for in the state’s referral or adoption legislation, to the institution being
listed (subclause 164(4)).
Clause 165 contains special rules for funder of
last resort cases. In particular, where a participating government institution
is the ‘funder of last resort’ for the defunct institution and is equally
responsible for the abuse of a person it will be liable ‘for what the defunct
institution would have been liable to pay in relation to providing redress to
the person’.
As noted above, subclause 15(3) sets out that an
institution is equally responsible for the abuse of a person if:
(a) the
institution and one or more other institutions are approximately equally
responsible for the abuser having contact with the person; and
(b) no institution is primarily responsible for the abuse
of the person.
Scope of funder of last resort
In his second reading speech, the Minister stated:
In cases where a government is determined to be equally
responsible, they may be determined to be the funder of last resort. This will
only occur when the other equally responsible institution is a defunct
non-government institution. Where a funder-of-last-resort arrangement exists,
the government that shares responsibility will pay the full amount of redress.
The purpose of the funder-of-last-resort policy is to pick up shortfalls in
funding where an institution no longer exists. It is not intended to pick up
liability for institutions that have the capacity to opt in and choose not to.[207]
In relation to the funder of last resort arrangements the
Explanatory Memorandum states:
In some circumstances there may be no responsible
participating institution for a particular instance of abuse because the
relevant institution no longer exists. Where there is an appropriate level of
shared responsibility, it will be open to a participating government
institution to step in to meet the cost of providing redress for survivors of
that abuse.[208]
Concerns were raised by submitters to the Senate inquiry
regarding the scope of the funder of last resort arrangements. Law firm Maurice
Blackburn argued that that the Bill should be amended so that ‘a government may
be called upon to be “funder of last resort” even in cases where the government
is not equally responsible for the abuse’. Otherwise, the Bill would create ‘a
class of survivor who misses out on redress merely because the abuse occurred
in an independent institution which is now defunct’.[209]
The Centre for Excellence in Child and Family Welfare also recommended that
participating jurisdictions should be responsible for the redress of survivors
where the responsible institution is defunct. It stated:
The Bill is silent on situations where a survivor was
sexually abused in a now defunct organisation, but a government institution is
not equally responsible for the abuse. It appears that in these situations a
survivor will not be eligible for redress under the scheme. This means that the
survivor will have no recourse in respect of the abuse suffered, either through
the redress scheme or by civil litigation.[210]
It is unclear how many survivors of institutional child
sexual abuse will benefit from the funder of last resort arrangements. For
example, the knowmore legal service observed in its Senate inquiry submission
that the equally responsible requirement ‘is a higher test than that of “shared
responsibility” that was in the previous Bill’. It was concerned ‘this change
may operate to exclude some survivors where the participating Government had
some role in their placement in an institution, but seeks to establish to the
Operator that these acts did not amount to “equal responsibility” on its part
for the abuse of the person’.[211]
Debt recovery
The Bill includes provisions for the recovery of debts due
to the Commonwealth under the scheme.
Clause 167 provides that the Commonwealth can
recover amounts in a number of circumstances. These include where:
- the
amount was paid to the wrong person or institution
- the
amount exceeds the amount payable to the recipient
- the
amount paid to the recipient was paid wholly or partly because of a false or
misleading statement, or a misrepresentation, by the recipient or another
person
- the
recipient was required to notify the Operator under clause 181 that they
have been sentenced to imprisonment for five years or more and, if notified,
the amount would not have been paid.
Clause 168 provides that a funding contribution or
late payment penalty that is due and payable by the institution or a person may
be recovered as debt due to the Commonwealth.
A debt due to the Commonwealth under this Part is
recoverable by the Commonwealth in a court of competent jurisdiction (clause
169). The Explanatory
Memorandum notes ‘[t]his will enable legal proceedings to be commenced in
the most appropriate jurisdiction and allow the matter to be heard at the
lowest level necessary’.[212]
Clause 170 allows the Operator to enter into
arrangements for the payment of a debt.
Clause 171 provides for the recovery of amounts
directly from financial institutions where the Operator is satisfied that a
payment was not made to the intended person. In these circumstances the
Operator can give notice to the financial institution (subclause 171(2)).
Subclause 171(3) creates an offence if a financial institution does not
comply with the notice. The penalty is 300 penalty units ($63,000). The Explanatory
Memorandum states ‘[t]he penalty is considered to be appropriate for a
financial institution so as to deter the institution from failing to comply
with a notice’.[213]
Subclause 171(4) provides a defence to prosecution if the financial
institution can prove that it was incapable of complying with the notice.
Subclause 171(5) provides that any amount that has
been paid by a financial institution to the Commonwealth pursuant to this
clause reduces the amount of any debt in clause 167 (which creates a
debt where an amount was paid to a wrong person or institution).
Clause 172 provides that if the Commonwealth
recovers an amount where a participating institution has already paid a
contribution, the Commonwealth must repay the institution.
Chapter 7—Other matters
Application of this Act
Clause 174 sets out the constitutional basis for
the legislation which emphasises the reliance on matters referred by the states
under paragraph 51(xxxvii) of the Constitution in relation to sexual
abuse, and related non-sexual abuse which occurred in a participating State. In
non-participating states, the Commonwealth’s power to legislate for the scheme
is limited. For the territories, section 122 of the Constitution gives the
Commonwealth power to legislate for those jurisdictions. For application
outside of Australia, clause 174 highlights the Commonwealth’s external
affairs power (paragraph 51(xxix)) of the Constitution.
Clause 175 provides for the concurrent operation of
the legislation with state and territory laws and adds:
Without limiting subsection (1), this Act does not exclude or
limit the concurrent operation of a law of a State or Territory merely because
that law provides for redress (however described) to be provided to a person
for abuse suffered by the person.
Clause 176 extends application of the legislation ‘within
and outside Australia’ and ‘to every external Territory’.
Clause 177 provides that ‘[t]his Act binds the
Crown in each of its capacities’.
The National Redress Scheme Rules
Clause 179 provides the Minister with a broad power
to, by legislative instrument, make rules prescribing matters:
- required
or permitted by the legislation to be prescribed by the rules or
- necessary
or convenient to be prescribed for carrying out or giving effect to the
legislation.
This includes rules prescribing matters for
- overriding,
for the purposes of the scheme, any provisions of settlement agreements or
deeds:
- relate
to confidentiality or
- would
inhibit access to, or the operation of, the scheme.
Despite section 14 of the Legislation Act
2003, the rules may apply, adopt or incorporate any matter contained in
the assessment framework as in force or existing from time to time.[214]
However, the rules may not:
- create
an offence or civil penalty
- provide
powers of:
- arrest
or detention or
- entry,
search or seizure
- impose
a tax
- set
an amount to be appropriated from the Consolidated Revenue Fund or
- directly
amend the text of this legislation.
National Redress Scheme for
Institutional Child Sexual Abuse Rules 2018
The DSS submission to the Senate inquiry includes a
‘factsheet’ on National Redress Scheme for Institutional Child Sexual Abuse
Rules 2018 (the Rules). It notes that the Rules are ‘currently the subject of
negotiations with jurisdictions’ and will be ‘finalised over the coming month,
with the aim for them to commence on 1 July 2018’.[215]
The factsheet contains an overview of the key policies likely to be contained in
the Rules. It provides the Rules will:
- specify
circumstances where a participating institution will be automatically deemed to
be equally responsible, which is likely to include where a state or territory
government was a legal guardian of a child that was placed in the care of
another institution, and where the abuse of the child was connected to a cadets
program associated with the Department of Defence
- specify
circumstances where an institution will be deemed not responsible including
where ‘a government agency only had a regulatory or funding role, or where an
institution has paid court ordered compensation or damages to a person for the
same abuse for which the person is claiming redress’
- exclude
from the scheme any sexual abuse perpetrated by a child, unless the abuse
involved physical contact with, or penetration of, another child
- prescribe
that the Operator will consult with relevant state and territory Attorneys-General
when considering whether an incarcerated person should be allowed to apply to
the scheme
- prescribe
that applications made by children will be determined after they turn 18 years
old and that they will be invited to provide further information to support
their application at that time
- provide
further detail for calculating redress and apportioning costs across liable
institutions including grouping abuse into “sets” for the purpose of applying
the monetary assessment framework
- specify
payments that are not to be considered relevant prior payments, and therefore
not deducted from an applicant’s redress payment, including statutory
compensation payments such as those paid by the Department of Veterans’ Affairs,
and payments made to cover medical expenses
- allow
a determination to be revoked where the Operator receives new information that
affects the determination, and requires a determination to be revoked where
that information was about a payment made after the determination
- specify
the prerequisites for making a declaration that an institution is participating
in the scheme, including that their agreement is in writing, and that they
satisfy the Minister that their financial obligations under the scheme will be
met
- prescribe
the method for working out an institution’s share of the administration costs
for the scheme per billable quarter
- prescribe
that prior agreements or deeds that would have the effect of preventing or
prohibiting a person from applying for redress are waived
- prescribe
the circumstances in which the Operator may disclose protected information in
the public interest and
- provide
a number of administrative arrangements, such as prescribing circumstances
where notices should be provided to the person, or the participating
institution, and when certain agreements or information needs to be provided in
writing.[216]
Concerns regarding the breadth of
matters in the rules
Some institutions and legal groups expressed concern that
many important aspects of the scheme were subject to changes in the scheme rules.
These aspects include key components such as entitlement, eligibility and when
institutions are responsible for abuse under the scheme.[217]
For example, the Law Council of Australia has recommended that the ‘eligibility
criteria for the Scheme should be established in the Bill and not be subject to
amendment by way of the rules’.[218]
Relationships Australia supported the use of rules to modify operation of the
scheme when this was to the benefit of survivors, but had ‘serious concerns’
about the lack of scrutiny of new arrangements that may operate to the detriment
of survivors. It commented:
As presently framed, however, the Bill presents some
significant concerns; in particular, by making actual operation of the Scheme
significantly the matter for the making of rules that will be out of reach of
ordinary means of Parliamentary scrutiny. A particular concern is presented by
subclauses 12(3) and (4), which provide that rules may both extend eligibility and
exclude eligibility. The Explanatory Memorandum rightly notes that, in a Scheme
intended to operate over the course of a decade, unforeseen circumstances
(including unforeseen groups of survivors) may come to light, and that it is
highly desirable that there be a mechanism for quickly recognising their
entitlements. However, while an absence of the scrutiny to which Bills and
regulations are ordinarily subject may be prudent and compassionate when
applying to the benefit of survivors, it should occasion disquiet where
exclusionary measures, which will operate to the detriment of individuals, are
concerned.[219]
Giving notices for the purposes of the scheme
Clause 181 requires a person, if they have made an
application, and are then subsequently sentenced to imprisonment to five years
or longer, to notify the Operator in accordance with the rules. This is related
to the special rules for applicants with serious criminal convictions above (clause 63).
Clause 182 provides the rules may require or permit
the Operator to give notices to persons or institutions about a matter relating
to the legislation. If the legislation requires the Operator to give a notice,
he or she can give the notice ‘in any way’ they ‘consider appropriate’.
Delegation
Clause 183 allows the Minister to delegate his or
her powers or functions under the legislation to the Operator or ‘a person who
holds or performs the duties of an SES Band 3 position, or an equivalent
position, in the Department’. However, the Explanatory Memorandum notes that
‘[t]he Minister’s powers and functions relating to exemptions for criminal
convictions and making rules for the purpose of the Scheme or engaging
independent decision makers, as set out in clause 179 or 185 respectively,
cannot be delegated’. Delegates must also comply with any directions of the
Minister.[220]
Clause 184 allows the Operator to delegate his or
her powers or functions under the legislation (other than functions under
sections 29 (under which the Operator must make a determination on an
application); section 75 (which requires a determination to be reviewed on
application) and section 190 (which allows the Operator to apply to a court for
the imposition of a civil penalty) to an officer of the scheme. Delegates must
comply with any directions of the Operator. The Operator can delegate his or
her functions and under clauses 29 and 75 to independent decision-makers. These
delegates are not required to comply with any directions of the Operator.
Independent decision-makers
Clause 185 provides for the engagement of independent
decision-makers to determine applications for redress and review redress determinations
made under the scheme.
The Operator, with the approval of the Minister, may
engage independent decision-makers. Before giving approval, the Minister must
consult with appropriate Ministers from the participating states and
territories in accordance with the National Redress Scheme Agreement. The Explanatory
Memorandum states:
The consultation process will include participating States
and participating Territories nominating prospective decision-makers that are
independent from responsible institutions to ensure fairness, transparency, and
public trust in the Scheme. The selection of prospective independent
decision-makers will include a probity and vetting process undertaken by the
Department to identify suitable candidates. The engagement of suitable
candidates will then be subject to agreement from participating States and
Territories. This consultative process provides appropriate legislative
guidance to engage appropriate independent decision-makers, whilst retaining
flexibility to respond to cohorts of survivors coming through the Scheme as
they present.[221]
The DSS submission contains further information regard the
intended approach to the engagement of independent decision-makers for the
scheme:
To ensure independence, the Department will conduct a probity
process for all Independent Decision Makers before appointment. This will
require all Independent Decision Makers to declare any potential conflicts of
interest, undertake a national police history check, a working with children
check and a social media check. The process will be undertaken by the
Department.
It is expected that people appointed as Independent Decision
Makers will have knowledge and experience in social welfare, case management
and/or the legal sector, and an ability to develop an understanding and
knowledge of the survivor cohort and the history of the Royal Commission into
Institutional Responses to Child Sexual Abuse. Independent Decision Makers will
also be required to undertake a comprehensive training to ensure they are
trauma-informed.[222]
Independent decision-makers will be subject to the general
duties of officials set out in the Public Governance,
Performance and Accountability Act 2013 (and any relevant rules
under that Act). A note indicates these duties include the duty of care and
diligence, the duty to act honestly, in good faith and for a proper purpose,
the duties relating to the use of information and position, and the duty to
disclose interests.
Miscellaneous
Annual report
The previous proposed legislation for the Commonwealth
Redress Scheme included a Division on reporting to Parliament which set out detailed
requirements for contents of the annual report on the operation of the scheme.[223]
These requirements included details concerning where institutions failed to
provide information to the Operator and failed to give direct personal
responses. Under the Bill, clause 187 provides for an annual report
to be presented to Parliament which will contain any matters prescribed in the
rules.
In its submission to the Senate inquiry, the law firm Maurice
Blackburn noted ‘with disappointment that the “name and shame” provisions noted
in the previous iteration of the draft Bill have been removed’. It advocated
that the reporting requirements should be broadened to inform the Parliament of
more detail about the operation of the scheme and highlighted the Royal
Commission’s recommendation on this matter.[224]
Civil penalty provisions
Clause 190 provides that the civil penalty
provisions of the Bill are enforceable under Part 4 of the Regulatory Powers (Standard
Provisions) Act 2014 and includes further details in relation to the
operation of that legislation including authorised applicants, relevant courts
and application.
Review of the scheme
The previous proposed legislation required a single review
of the operation of the scheme on the eighth anniversary of the scheme start
day or a day after the second anniversary prescribed by the rules.[225]
In comparison, clause 192 of the Bill requires two reviews of the scheme
to be conducted—one starting on the second anniversary of the scheme start day
and the other starting on the eighth anniversary of that day. The rules can
prescribe a later date to start those reviews.
Clause 192 also includes a detailed list of matters
which the reviews must consider. These matters reflect a broad range of areas
concerning the scheme’s operation. For example, one of the matters the reviews
must consider is ‘the implications of the scheme’s design for survivors
(including Indigenous and child migrant survivors, as well as survivors who are
still children or who have a criminal conviction)’. The eighth year anniversary
review must also consider ‘the results of any other review or evaluation
conducted in relation to the operation of the scheme’.
Sunset of the scheme
Clause 193 provides the sunset day of the scheme
will be the tenth anniversary of the start date, or a later day prescribed by
the rules. However, the rules may prescribe matters of a transitional nature (subclause
193(3)) and may provide that certain provisions of the legislation continue
to apply, or continue to apply in a modified way, after the scheme sunset day (subclause
193(4)). The capacity of the rules to extend the scheme appears limited to
one year. All legislative instruments (including the rules) made under the
legislation are repealed on the first anniversary of the scheme sunset day (subclause
193(6)).
Amendments
Bill
As noted above, the Amendments Bill consists of five
schedules which contain consequential amendments in relation to the
establishment of the scheme. Schedules 1 to 3 are similar to the consequential amendments
proposed for the Commonwealth Redress Scheme. Schedules 4 and 5 contain
consequential amendments which were not previously included.
Schedule 1—National redress scheme
payments exempt from income tests
Schedule 1 will amend social security and veterans’
entitlement legislation to exempt payments made under the scheme from income
tests.
Item 1 of Schedule 1 will insert proposed
paragraph 8(8)(jc) into the Social Security Act
1991 (Cth). This means a payment under the Scheme will be an ‘excluded
amount’ and will not be included as income for the purposes of that Act.
Item 2 of Schedule 1 will insert proposed
paragraph 5H(8)(mb) into the Veterans'
Entitlements Act 1986 (Cth). Similarly, this makes a payment under
the scheme an ‘excluded amount’ which will not be included as income for the
purposes of that Act.
The National Social Security Rights Network (NSSRN)
supported the proposed amendment ‘to exempt redress scheme payments from income
tests under social security law’. However, it was concerned ‘redress scheme
payments may still impact on a person’s social security entitlement’ as there
were no amendments to exempt redress scheme payments from social security asset
assessments. This could mean ‘some social security recipients may experience a
reduction or cancellation of their income support or pension payments’. The
NSSRN proposed an ‘additional amendment to [section]1118 of the Social
Security Act 1991 (Cth) to include payments under this redress scheme, and
any gifts or purchases made from these payments, as exempt assets for the
purposes of social security asset assessments’.[226]
Schedule 2—National redress scheme
payments non-divisible property in bankruptcy
Schedule 2 will insert proposed paragraph 116(2)(ga)
into the Bankruptcy
Act 1966 (Cth).
This will mean that a payment under the Scheme will not be
able to be divided among creditors for the purposes of bankruptcy. This
protection will extend whether the payment was received before or after the
person became bankrupt and whether or not the person suffered the sexual abuse
to which the payment relates (in the event another person receives the payment,
such as a nominee appointed under proposed Part 4-4 of the Bill).
Schedule 3—National redress scheme
decisions exempt from judicial review
Schedule 3 will make an amendment which will mean that
decisions under the scheme will not be subject to judicial review under the Administrative
Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The Explanatory
Memorandum states:
Exempting a decision made under the Scheme from the
Administrative Decisions Judicial Review Act promotes the objects of the Scheme
by ensuring a timely response to eligible survivors of institutional child
sexual abuse. The Scheme has been developed with a trauma-informed approach so
that judicial review processes will not be required. Judicial review may cause
undue administrative delays under the Scheme.[227]
It notes that where an applicant is dissatisfied with a decision
made under the scheme, they will be able to apply for an internal review of the
decision (undertaken by the Operator or an independent decision-maker). This
approach is ‘intended to prevent re-traumatising the applicant through having
to re-tell their story of past institutional child sexual abuse in an action
under the Administrative Decisions Judicial Review Act’.[228]
In considering the same amendment for the previous legislation,
the PJCHR raised issues regarding the compatibility of the measure with the
right to a fair hearing and questioned the absence of external merits review
and removal of judicial review.[229]
It concluded its examination of these issues but recommended ‘that the
operation of the internal review mechanism be monitored to ensure that
survivors have sufficient opportunities to have their rights and obligations
determined by an independent and impartial tribunal’.[230]
The compatibility statement for the Bills notes:
The Government intends to monitor the Scheme’s internal
review mechanism, including through broader reviews of the Scheme’s
implementation. General information relevant to internal review may also be
detailed in the Scheme’s annual report to the Minister (for presentation to the
Parliament) and also has the capacity to be scrutinised through the Scheme’s
governance arrangements.[231]
The Australian Human Rights Commission noted:
While the Consequential Amendments Bill excludes judicial
review via the ADJR Act, it does not purport to exclude Australia’s
constitutionally-protected avenue of judicial review –nor could it do so in
conformity with the Australian Constitution.[232]
In practice, this means that people wishing to challenge the legality of a
decision made under the Scheme would still be able to do so, but would have
access only to the more complex and cumbersome avenue protected by the
Constitution.
Moreover, a person could not challenge a decision under the
Scheme on the basis that they disagree on the merits. It is central to the rule
of law, as well as international human rights law, that judicial review be
readily available to ensure that the executive branch of government acts
lawfully. There is a public interest, as well as a personal interest, in there
being a clear and simple means of ensuring that the Scheme acts lawfully. By
excluding access to the ADJR Act, this would not exclude judicial review
altogether; rather, it would simply make it harder for an individual to correct
that legal error.[233]
It recommended that the Amendment Bill be amended to
permit judicial review of decisions under the scheme.[234]
Schedule 4—Disclosure and protection of information under the national
redress scheme
Item 1 of Schedule 4 to the Amendments Bill amends
Schedule 3 of the Freedom
of Information Act 1982 (Cth) which lists secrecy provisions in other
legislation. The Explanatory Memorandum notes that this amendment means that
‘protected information’ (defined in subclause 92(2) of the Bill), the subject
of the secrecy offences in proposed subclauses 96(6), 99(1), 100(1), 101(1),
101(2) and clause 104, would not be required to be disclosed under the Freedom
of Information Act. It states:
This exemption supports the trauma informed approach of the
Scheme, ensuring that survivors’ information is adequately protected. It also
protects institutions’ information to protect against fraudulent applications
being made to the Scheme. The exemption protects the integrity of the operation
of the National Redress Scheme, removes any uncertainty about the operation of
the information publication scheme in relation to the assessment framework
policy guidelines, and makes it transparent that protected information under
the National Redress Scheme is exempt under the Freedom of Information Act
1982.[235]
Items 2 and 3 of Schedule 4 amend section
202 of the Social
Security (Administration) Act 1999 (Cth) to allow the use of protected
personal information under that Act for the purposes of the Scheme. Item 2
would insert proposed paragraph 202(1)(h) to allow a person to obtain
protected information if the information is obtained for the purposed of the scheme.
Item 3 would insert proposed paragraph 202(2)(de) to allow a
person to record, disclose or otherwise use protected information for the purposes
of the Scheme. The Bills’ human rights Statement of Compatibility suggests
these amendments will allow ‘the Scheme to access social security system
information for ease of administration’.[236]
Schedule 5—Only adults can apply
under the national redress scheme
Item 1 of Schedule 5 will insert a reference to the
legislation into Schedule 1 of the Age Discrimination
Act 2004 (Cth). This Schedule sets out laws which for which an
exemption from unlawful age discrimination applies. The Explanatory Memorandum
notes that the amendment ‘will allow for the exclusion of children applying to
the Scheme if they will not turn 18 throughout the life of the Scheme to be
exempted from unlawful age discrimination’. It notes:
Applying an age limit to the Scheme addresses the risk of
children signing away their future civil rights when they may have limited
capacity to understand the implications, and when the impact of the abuse may
not fully be realised. An age limit will also address the risk of the misuse of
monetary payments made to minors.[237]
[1]. J
Gillard (Prime Minister) et al, Government
formally establishes Royal Commission, media release, 11 January 2013,
p. 1.
[2]. Ibid.,
p. 8.
[3]. Royal
Commission into Institutional Responses to Child Sexual Abuse, Redress
and civil litigation report, Royal Commission into Institutional
Responses to Child Sexual Abuse, Sydney, 2015, p. 26.
[4]. Ibid.
[5]. Ibid.,
p. 24.
[6]. G
Brandis (Attorney-General) and C Porter (Minister for Social Services), Commonwealth
Redress Scheme for survivors of institutional child sexual abuse, joint
media release, 4 November 2016, pp. 1–2.
[7]. Ibid.,
p. 2.
[8]. Australian
Government, Budget
measures: budget paper no. 2: 2017–18, p. 146.
[9]. G
Brandis (Attorney-General) and C Porter (Minister for Social Services), Commonwealth
Redress Scheme for Survivors of Institutional Child Sexual Abuse, joint
media release, 9 May 2017, p. 1.
[10]. Department
of Social Services (DSS), ‘National
Redress Scheme’, DSS website, last updated 5 June 2018.
[11]. Parliament
of Australia, ‘Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 homepage’,
Australian Parliament website; Parliament of Australia, ‘Commonwealth
Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments)
Bill 2017 homepage’, Australian Parliament website.
[12]. Royal
Commission into Institutional Responses to Child Sexual Abuse, Preface
and executive summary—final report, Royal Commission into Institutional
Responses to Child Sexual Abuse, Canberra, December 2017.
[13]. M
Turnbull (Prime Minister), ‘Statements
on Indulgence: Royal Commission into Institutional Responses to Child
Sexual Abuse’, House of Representatives, Debates, 8 February 2018, p.
703.
[14]. C
Porter (Attorney-General), ‘Questions
with Notice: Royal Commission into Institutional Responses to Child Sexual
Abuse’, House of Representatives, Debates, 8 February 2018, p. 788.
[15]. Council
of Australian Governments (COAG), Communique,
COAG Meeting, Canberra, 9 February 2018.
[16]. M
Turnbull (Prime Minister), G Berejiklian (Premier of NSW) and D Andrews
(Premier of Victoria), First
states commit to Redress Scheme, joint media release, 9 March 2017.
[17]. D
Crowe, ‘Row
over redress scheme for child sexual abuse’, The Age, 13 March 2018,
p. 4.
[18]. COAG,
Intergovernmental
Agreement on the National Redress Scheme for Institutional Child Sexual Abuse,
COAG website, 4 May 2018, p. 15.
[19]. Section
51(xxxvii) of the Constitution
allows the Federal Parliament to make laws with respect to matters referred to
it by a state parliament.
[20]. National
Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act
2018 (NSW).
[21]. National
Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act
2018 (Vic).
[22]. Australian
Government, Budget
measures: budget paper no. 2: 2018–19, p. 77.
[23]. Australian
Government, Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General’s
Portfolio, p. 18.
[24]. C
Porter (Attorney-General) and D Tehan (Minister for Social Services), Legal
support services to help survivors of institutional child sexual abuse access
redress, media release, 19 February 2018.
[25]. D
Tehan (Minister for Social Services), ‘Second
reading speech: National Redress Scheme for Institutional Child Sexual Abuse
Bill 2018’, House
of Representatives, Debates, 10 May 2018, p. 3639.
[26]. Ibid.,
p. 3638.
[27]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and a related
Bill, 30 May 2018, p. 4.
[28]. Ibid.
[29]. Ibid.,
p. 12.
[30]. M
Turnbull (Prime Minister) et al, Australian
government response to the royal commission into child abuse, joint
media release, 13 June 2018.
[31]. Senate
Community Affairs Legislation Committee, Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions]
and Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017 [Provisions], The Senate,
Canberra, March 2018.
[32]. Ibid.,
p. 91.
[33]. Ibid.,
p. 95.
[34]. Ibid.,
pp. 91–5.
[35]. Ibid.,
pp. 115–6.
[36]. Ibid.,
p. 141.
[37]. D
Tehan (Minister for Social Services), National
Redress Scheme moves a step closer, media release, 29 May 2018.
[38]. Senate
Community Affairs Legislation Committee, Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions]
and Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017 [Provisions], op. cit., p. 115.
[39]. Australian
Government, Australian
Government response to the Senate Community Affairs Legislation
Committee report, Inquiry into the Commonwealth Redress Scheme for
Institutional Child Sexual Abuse Bill 2017 [Provisions] and the
Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential
Amendments) Bill 2017 [Provisions], May 2018, p. 8.
[40]. Senate
Community Affairs Legislation Committee, Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions]
and Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017 [Provisions], op. cit., p. 116.
[41]. Australian
Government, Australian
Government response, op. cit., pp. 9–10.
[42]. Senate
Community Affairs Legislation Committee, Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions]
and Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017 [Provisions], op. cit., p. 116.
[43]. Australian
Government, Australian
Government response, op. cit., p. 10.
[44]. Australia,
Senate, Journals,
97, 10 May 2018, pp. 3093–5.
[45]. Senate
Community Affairs Legislation Committee, National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 [Provisions] and National
Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments)
Bill 2018 [Provisions], June 2018, p. 46.
[46]. Ibid.
[47]. Ibid.,
p. 47.
[48]. Ibid.,
p. 48.
[49]. Ibid.,
p. 57.
[50]. Ibid.,
pp. 59–60.
[51]. Ibid.,
pp. 61–8.
[52]. p.
68.
[53]. Senate
Community Affairs Legislation Committee, National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related bill,
The Senate, Canberra, 2018.
[54]. Senate
Scrutiny of Bills Committee, Scrutiny
digest, 15, 2017, The Senate, 6 December 2017, pp. 8–36.
[55]. Ibid.,
p. 32.
[56]. Australia,
House of Representatives, ‘Message
from the Senate’, Votes and proceedings, HVP 62, 20 June 2017.
[57]. Joint
Select Committee on the Royal Commission into Institutional Responses to Child
Sexual Abuse—oversight of redress related recommendations, ‘Committee homepage’, Australian Parliament
website.
[58]. Australian
Labor Party, National
Redress Scheme for survivors of institutional child sexual abuse: under Labor
it will happen, n.d., received by Parliamentary Library 13 May 2016.
[59]. J
Macklin (Shadow Minister for Families and Social Services), National
agreement on redress for survivors of child sexual abuse must be delivered,
media release, 19 May 2017. See also J Macklin (Shadow Minister for Families
and Social Services) and M Dreyfus (Shadow Attorney-General), 10
weeks until redress deadline, media release, 23 April 2018.
[60]. B
Shorten (Opposition Leader), ‘Questions
with notice: Royal Commission into Institutional Responses to Child Sexual
Abuse’, House of Representatives, Debates, 8 February 2018, p. 788.
[61]. J
Macklin, ‘Second reading: National Redress Scheme for Institutional Child
Sexual Abuse Bill 2018, National Redress Scheme for Institutional Child Sexual
Abuse (Consequential Amendments) Bill 2018’, House of Representatives, Debates,
24 May 2018, p. 23.
[62]. Ibid.,
pp. 23–4.
[63]. Ibid.,
pp. 24–5.
[64]. Australian
Greens, Caring
for survivors of institutional child abuse: one national redress scheme,
Parliamentary Library, n.d., received 9 May 2016, p. 1.
[65]. R
Siewert, Greens
welcome introduction of Redress Legislation, needs careful scrutiny,
media release, 26 October 2017, p. 1.
[66]. Senate
Community Affairs Legislation Committee, Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions]
and Commonwealth Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2017 [Provisions], op. cit., p. 141.
[67]. Australia,
Senate, Journals,
7, Notice of Motion No. 57, ‘Law and Justice—National Redress Scheme for
Survivors of Institutional Sexual Abuse’, 15 September 2016, pp. 221–2.
[68]. Ibid.
[69]. D
Hinch, Senate Community Affairs Legislation Committee, Official
committee Hansard, 6 March 2018, p. 26.
[70]. Australia,
Senate, Journals,
7, op. cit., pp. 221–2.
[71]. C
Porter (Minister for Social Services), Royal
commission into institutional responses to child sexual abuse, transcript
of press conference, 15 December 2017, p. 4.
[72]. D
Tehan (Minister for Social Services), ACT
opts in to Redress Scheme, media release, 19 March 2018; D Tehan
(Minister for Social Services), Queensland
and Northern Territory join national redress scheme, media release, 30 April
2018.
[73]. National
Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act
2018 (NSW) and National
Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act
2018 (Vic).
[74]. A
Palaszczuk (Queensland Premier) et al, $500
million for survivors of child sex abuse, joint media release, 30 April
2018.
[75]. D
Tehan (Minister for Social Services), Tasmania
commits to the National Redress Scheme, media release, 22 May 2018.
[76]. D
Killick, ‘State
joins abuse compo scheme’, The Mercury, 23 May 2018.
[77]. ‘State
defers child abuse compo plan’, The Advertiser, 1 May 2018, p. 6.
[78]. D
Tehan (Minister for Social Services), South
Australia joins National Redress Scheme, media release, 28 May 2018.
[79]. K
Emery and G Adshead, ‘Premier
yet to commit to child abuse compo plan’, The Weekend West, 16
December 2017.
[80]. J
Quigley (Attorney-General), ‘Answer
to question without notice: Commonwealth Redress Scheme’, Western
Australia, Legislative Assembly, Debates, 14 March 2018, p. 732.
[81]. M
Davey, ‘Child
sexual abuse: all states on board for redress after WA resolves doubts’, The
Guardian, 8 June 2018.
[82]. V
Badham, ‘Child
sexual abuse royal commission: recommendations and statistics at a glance‘,
The Guardian, 15 December 2017.
[83]. M
Perkins, ‘Catholic
Church to sign up to abuse redress scheme’, The Sydney Morning Herald,
31 May 2018.
[84]. AAP,
‘YMCA,
Scouts and Salvos join $3.8b redress scheme’, The Age, 1 June 2018.
[85]. R
Ferguson, ‘Uniting
Church opts into scheme’, The Australian, 5 June 2018.
[86]. Salvation
Army Australia and Uniting Church in Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
p. 1. Also see Anglican Church of Australia, General Synod, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, pp. 1–2 and Royal Commission into Institutional Responses to Child
Sexual Abuse, Redress
and civil litigation report, op. cit., p. 245.
[87]. Alliance
for Forgotten Australians, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
31 May 2018, p. 1.
[88]. Ibid.,
pp. 2–3.
[89]. Care
Leavers Australasia Network, Justice
denied if National Redress Scheme allows indexation, media
release, 27 April 2018.
[90]. S
Donovan, ‘Institutional
child sex abuse survivors might get less money under national redress scheme’,
ABC News, 27 April 2018.
[91]. Law
Council of Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, pp. 10–15.
[92]. Australian
Human Rights Commission, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 4.
[93]. Ibid.
[94]. Explanatory
Memorandum, National Redress Scheme for Institutional Child Sexual Abuse
Bill 2018, p. 4.
[95]. The
Treasury, Mid-Year
Economic and Fiscal Outlook 2017–18, Commonwealth of Australia,
Canberra, 12 December 2017, p. 177.
[96]. Ibid.,
p. 130.
[97]. Explanatory
Memorandum, op. cit., p. 5.
[98]. Royal
Commission into Institutional Responses to Child Sexual Abuse, Redress
and Civil Litigation report, op. cit., p. 34.
[99]. COAG,
Intergovernmental
Agreement on the National Redress Scheme for Institutional Child Sexual Abuse,
op. cit., p. 18.
[100]. Ibid.,
p. 18. This is listed in the Intergovernmental Agreement as being derived from
a report by Finity Consulting in September 2017.
[101]. The
Statement of Compatibility with Human Rights can be found at pages 113–27 of
the Explanatory
Memorandum to the Bill.
[102]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 2, 13 February 2018, pp. 73–96.
[103]. Ibid.,
pp. 79, 83, 85, 93.
[104]. Explanatory
Memorandum, op. cit., pp. 19–20.
[105]. Ibid.,
p. 20. The Explanatory
Memorandum provides a number of examples of eligibility for subclause 13(1)
of the scheme.
[106]. For
example, Ryan Carlisle Thomas, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
31 May 2018, pp. 1–2.
[107]. Tuart
Place, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 15.
[108]. Alliance
for Forgotten Australians, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
31 May 2018, p. 3.
[109]. Australian
Government, Australian
Government response to the Senate Community Affairs Legislation
Committee report: Inquiry into the Commonwealth Redress Scheme for
Institutional Child Sexual Abuse Bill 2017 [Provisions] and the Commonwealth
Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments)
Bill 2017 [Provisions], 29 May 2018, p. 9.
[110]. Law
Council of Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 10.
[111]. Australian
Association of Social Workers, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
May 2018, p. 3.
[112]. Clause
6 defines the scheme start date as ‘the day this Act commences’.
[113]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 7.
[114]. Ibid.
[115]. Ibid.,
p. 12.
[116]. Australian
Human Rights Commission, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 13.
[117]. For
example, Centre for Excellence in Child and Family Welfare, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 1.
[118]. Relationships
Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
31 May 2018, p. 7.
[119]. B
Bennett (Department of Social Services), Evidence
to Senate Community Affairs Legislation Committee, 1 June 2018, p. 82.
[120]. Australian
Psychological Society, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 2.
[121]. Subsection
23(5) of the Social
Security Act 1991 provides that a person is in gaol if: (a) the person
is being lawfully detained (in prison or elsewhere) while under sentence for
conviction of an offence and not on release on parole or licence; or (b) the
person is undergoing a period of custody pending trial or sentencing for an
offence.
[122]. Tuart
Place, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 3.
[123]. Australian
Human Rights Commission, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 5.
[124]. Ibid.,
p. 9.
[125]. Ibid.,
p. 10.
[126]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 8.
[127]. Explanatory
Memorandum, op. cit., p. 27. Also see the Statement of Compatibility with
Human Rights, p. 119.
[128]. Blue
Knot Foundation, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
31 May 2018, p. 2.
[129]. Sexual
Assault Support Service, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
June 2018, p. 4.
[130]. Explanatory
Memorandum, op. cit., p. 29.
[131]. Section
4AA of the Crimes
Act 1914 provides that a penalty unit is currently equal to $210.
[132]. The
Explanatory
Memorandum includes examples to illustrate the application of the method
statement, pp. 35–7.
[133]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 15.
[134]. Ibid.,
p. 16.
[135]. Royal
Commission into Institutional Responses to Child Sexual Abuse, Redress
and Civil Litigation report, op. cit., p. 25.
[136]. Tuart
Place, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, pp. 6–7.
[137]. Ibid.,
p. 6.
[138]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 16.
[139]. Ibid.
[140]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 12.
[141]. Explanatory
Memorandum, op. cit., pp. 68–9.
[142]. Maurice
Blackburn, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 7.
[143]. Law
Council of Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 6.
[144]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
p. 11.
[145]. Ibid.
[146]. Clause
47, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.
[147]. Clause
49, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.
[148]. The
National Service Standards for the provision of State/and or territory based
counselling and psychological care (CPC) in contained in Schedule C of the Intergovernmental
Agreement on the National Redress Scheme for Institutional Child Sexual Abuse.
[149]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 6.
[150]. C
Porter (Minister for Social Services), ‘Royal
Commission into Institutional Responses to Child Sexual Abuse’, transcript
of press conference, Western Australia, 15 December 2017, pp. 5–6.
[151]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 9.
[152]. Ryan
Carlisle Thomas, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
31 May 2018, p. 2
[153]. Ibid.,
Attachment 1, p. 2.
[154]. Shine
Lawyers, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
June 2018, p. 4.
[155]. Ibid.,
p. 5.
[156]. Royal
Australian and New Zealand College of Psychiatrists, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
31 May 2018, p. 2.
[157]. Section
116 of the Migration Act 1958 is the power of the Minister to cancel visas.
Section 128 of the Migration Act relates to the cancellation of visas of
people outside of Australia (without notice). The term ‘security’ is defined in
section 4 of the Australian
Security Intelligence Organisation Act 1979 as (a) the protection of,
and of the people of, the Commonwealth and the several States and Territories
from: (i) espionage; (ii) sabotage; (iii) politically motivated violence; (iv)
promotion of communal violence; (v) attacks on Australia’s defence system; or
(vi) acts of foreign interference; whether directed from, or committed within,
Australia or not; and (aa) the protection of Australia’s territorial and border
integrity from serious threats; and (b) the carrying out of Australia’s
responsibilities to any foreign country in relation to a matter mentioned in
any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph
(aa).
[158]. Section
134B of the Migration Act 1958 provides the Home Affairs Minister must cancel
a visa held by a person where: (a) there is an ASIO assessment (b) which contains
advice that ASIO suspects that the person might be, directly or indirectly, a
risk to security and (c) recommends all visas held by the person be cancelled
and (d) the person is outside of Australia. Essentially, subsection 134C(3)
provides that the Home Affairs Minister must not revoke the visa cancellation
under section 134B where ASIO’s assessment regarding (b) and (c) is
maintained.
[159]. Section
501 of the Migration Act 1958 provides that the Home Affairs Minister
may refuse or cancel a visa on ‘character grounds’. A broad ranging ‘character
test’ is set out in subsection 501(6).
[160]. Subparagraph
14(1)(a)(i) of the Australian Passports Act 2005.
[161]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 10.
[162]. Australian
Human Rights Commission, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 12.
[163]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 6.
[164]. Explanatory
Memorandum, op. cit., p. 58.
[165]. Schedule
3 of the Amendments Bill exempts decisions made under the scheme from judicial
review under the Administrative Decisions (Judicial Review) Act 1977
(Cth).
[166]. D
Tehan (Minister for Social Services), ‘Second
reading: National Redress Scheme for Institutional Child Sexual Abuse Bill 2018’,
House of Representatives, Debates, 10 May 2018, p. 3640.
[167]. Commonwealth
Ombudsman, Submission
to Senate Community Affairs Legislation Committee, Inquiry into Commonwealth
Redress Scheme for Institutional Child Sexual Abuse Bill 2017 and related Bill,
February 2018, pp. 3–4.
[168]. Law
Council of Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 14.
[169]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 12.
[170]. A
note to clause 81 provides an illustrative example: ‘A person who may be
eligible to be the legal nominee of the applicant is a person who, under a
guardianship order or power of attorney, has power to make decisions for the
applicant in all relevant matters’.
[171]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 13.
[172]. Ibid.,
p. 12.
[173]. People
with Disability Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 2.
[174]. Knowmore,
Submission
to Senate Community Affairs Legislation Committee, Inquiry into National Redress
Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31
May 2018, p. 8.
[175]. Explanatory
Memorandum, op. cit., p. 63.
[176]. Ibid.
[177]. Law
Council of Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 7.
[178]. Ibid.
[179]. Ibid.,
p. 8.
[180]. Section
4AA of the Crimes Act 1914 provides that a penalty unit is currently
equal to $210.
[181]. Explanatory
Memorandum, op. cit., p. 66.
[182]. Ibid.
[183]. Section
4AA of the Crimes Act 1914 provides that a penalty unit is currently
equal to $210.
[184]. Explanatory
Memorandum, op. cit., p. 67.
[185]. Ibid.,
p. 69.
[186]. Royal
Commission into Institutional Responses to Child Sexual Abuse, Redress
and Civil Litigation report, op. cit., p. 334.
[187]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 11. =
[188]. Explanatory
Memorandum, op. cit., p. 78.
[189]. Ibid.,
p. 80.
[190]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, pp. 10–11.
[191]. Explanatory
Memorandum, op. cit., p. 86.
[192]. National
Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act
2018 (NSW); National
Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act
2018 (Vic).
[193]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 2.
[194]. Tasmanian
Government, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
7 June 2018, p. 1.
[195]. See
subsection 4(2) of the National
Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act
2018 (NSW) and subsection 4(2) of the National
Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018
(Vic).
[196]. COAG,
Intergovernmental
Agreement on the National Redress Scheme for Institutional Child Sexual Abuse,
op. cit., p. 16.
[197]. Ibid.,
p. 18.
[198]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 6.
[199]. Explanatory
Memorandum, op. cit., p. 88.
[200]. Ibid.,
op. cit., p. 90.
[201]. Ibid.,
p. 90.
[202]. Ibid.,
p. 88.
[203]. Ibid.,
pp. 91–2.
[204]. Royal
Commission into Institutional Responses to Child Sexual Abuse, Redress
and Civil Litigation report, op. cit., p. 32.
[205]. Ibid.,
p. 34.
[206]. Clauses
66 and 67, Commonwealth Redress Scheme for Institutional Child Sexual Abuse
Bill 2017.
[207]. D
Tehan (Minister for Social Services), ‘Second
reading: National Redress Scheme for Institutional Child Sexual Abuse Bill 2018’,
House of Representatives, Debates, 10 May 2018, p. 3640.
[208]. Explanatory
Memorandum, op. cit., p. 94.
[209]. Maurice
Blackburn, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 10.
[210]. The
Centre for Excellence in Child and Family Welfare, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 2.
[211]. Knowmore,
Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
p. 8.
[212]. Explanatory
Memorandum, op. cit., p. 98.
[213]. Ibid.,
p. 99.
[214]. Section
14 of the Legislation Act imposes restrictions on the extent to which
legislative instruments can incorporate matters by reference to external
documents. This restriction can be overcome by express provision, as provided
in subclause 179(3) of the Bill.
[215]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, Appendix 1, p. 17.
[216]. Ibid.,
pp 17–18.
[217]. Law
Council of Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 11.
[218]. Ibid.
[219]. Relationships
Australia, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
31 May 2018, p. 9.
[220]. Explanatory
Memorandum, op. cit., p. 103.
[221]. Ibid.,
p. 104.
[222]. Australian
Government Departments, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
30 May 2018, p. 6.
[223]. Clause
122, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.
[224]. Maurice
Blackburn, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 12.
[225]. Clause
128, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.
[226]. National
Social Security Rights Network, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, p. 2.
[227]. Explanatory
Memorandum, op. cit. p. 111.
[228]. Ibid.
[229]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 2, 13 February 2018, pp 73–96.
[230]. Ibid.,
p. 96.
[231]. Explanatory
Memorandum, op. cit. p. 127.
[232]. See
section 75 of the Constitution.
[233]. Australian
Human Right Commission, Submission
to Senate Community Affairs Legislation Committee, Inquiry into National
Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill,
1 June 2018, pp. 14–15.
[234]. Ibid.,
p. 15.
[235]. Ibid.,
p. 4.
[236]. Ibid.,
p. 115.
[237]. Ibid.,
pp. 109–10.
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