Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 3.
National Disability Insurance Scheme (Incident Management and Reportable
Incidents) Rules 2018 [F2018L00633]
National Disability Insurance Scheme (Complaints Management and Resolution)
Rules 2018 [F2018L00634]
Purpose |
[F2018L00633]: prescribes
the requirements for NDIS providers to implement and maintain incident
management systems to record reportable incidents, and for inquiries by the
NDIS Quality and Safeguards Commissioner in relation to reportable incidents.
[F2018L00634]: prescribes
the requirements for the resolution of complaints relating to NDIS providers,
complaints to and inquiries by the NDIS Quality and Safeguards Commissioner |
Portfolio |
Social Services |
Authorising legislation |
National Disability
Insurance Scheme Act 2013 |
Last day to disallow |
15 sitting days after
tabling (tabled Senate 18 June 2018) |
Rights |
Privacy; fair hearing;
rights of persons with disabilities (see Appendix 2) |
Previous report |
7 of 2018 |
Status |
Concluded examination |
Background
2.3
The committee first reported on the rules in its Report 7 of 2018,
and requested a response from the Minister for Social Services by 29 August
2018.[1]
2.4
The minister's response to the committee's inquiries was received on 28
August 2018. The response is discussed below and is reproduced in full at Appendix 3.
Disclosure of information relating to complaints
2.5
The National Disability Insurance Scheme (Complaints Management and
Resolution) Rules 2018 (the Complaints Management Rules) set out the rules
governing the resolution of complaints about NDIS providers that have been made
to the Commissioner.
2.6
Section 25 of the Complaints Management Rules provides that the
Commissioner may give information, including about any action taken in relation
to an issue raised in a complaint, to any person or body that the Commissioner
considers has a sufficient interest in the matter.
Compatibility of the measure with
the right to privacy
2.7
Article 22 of the Convention on the Rights of Persons with Disabilities
(CRPD) guarantees that no person with disabilities shall be subjected to
arbitrary or unlawful interference with their privacy.[2] The right to privacy includes respect for private and confidential information,
particularly the storing, use and sharing of such information, and the right to
control the dissemination of information about one's private life.
2.8
The statement of compatibility addresses the right to privacy in
relation to a different aspect of the Complaints Management Rules,[3] but does not specifically address whether section 25 engages and limits the
right to privacy. However, as stated in the initial human rights analysis, it
would appear that the provision of 'information' could include personal
information, including information about complainants or persons the subject of
a complaint. If this is the case, then the provision would engage and limit the
right to privacy.
2.9
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, the measure must pursue a legitimate objective and be rationally
connected and proportionate to achieving that objective.
2.10
The statement of compatibility describes the overall objective of the
Complaints Management Rules as being to 'ensure providers are responsive to the
needs of people with disability and focussed on the timely resolution of issues
and that, when things go wrong, something is done about it'.[4] While this is capable of being a legitimate objective for the purposes of
international human rights law, no information is provided as to the importance
of this objective in the
context of the particular measure. The initial analysis stated that
further information as to the purpose of the particular measure (that is, the
purpose of allowing the Commissioner to give information to 'any person or body
that the Commissioner considers has a sufficient interest in the matter') would
assist in determining whether the measure pursues a legitimate objective.
2.11
As to proportionality, the statement of compatibility explains that any
personal information collected by the Commissioner in the performance of their
functions is 'protected Commission information' under the National
Disability Insurance Scheme Act 2013 (the NDIS Act). It states that
therefore:
[protected Commission information] will be handled in
accordance with the limitations placed on the use and disclosure of protected
Commission information under the Act, the National Disability Insurance
Scheme (Protection and Disclosure of Information – Commissioner) Rules 2018, the Privacy Act 1988, and any other applicable Commonwealth, State or
Territory legislation. Information will only be dealt with where reasonably
necessary for the fulfilment of the Commissioner's lawful and legitimate
functions.[5]
2.12
However, this general description of the safeguards does not assist in
determining whether the measure is a proportionate limitation on the right to
privacy. In order to be proportionate, limitations on the right to privacy must
be no more extensive than what is strictly necessary to achieve the legitimate
objective of the measure, and be accompanied by adequate safeguards to protect
the right to privacy. Further information as to the specific safeguards in the
NDIS Act, the National Disability Insurance Scheme (Protection and Disclosure
of Information – Commissioner) Rules 2018 and the Privacy Act 1988 that would protect personal and confidential information which may disclosed
pursuant to section 25 of the Complaints Management Rules would assist in
determining whether the measure is proportionate.
2.13
It was also not clear from the information provided what is meant by a
person having a 'sufficient interest' in the information. The explanatory
statement states that a person may have 'sufficient interest' in the matter 'if
the Commissioner is satisfied that, in relation to the purpose of disclosure,
the proposed recipient has a genuine and legitimate interest in the
information'.[6] The explanatory statement further states:
Other persons or bodies that may have a sufficient interest
in the matter may include:
- with the consent of the person with disability affected by an
issue raised in a complaint, independent advocates or representatives;
- with the consent of a person with disability affected by an issue
raised in a complaint, their family members, carers or other significant
people.
In providing information, the Commissioner must comply with
his or her obligations under the Privacy Act 1988, and should consider
whether providing the information is appropriate or necessary for the proper
handling of the complaint.[7]
2.14
However, beyond the reference to these safeguards in the explanatory
statement, it was not clear from the information provided whether these
safeguards and limitations on the meaning of 'sufficient interest' (such as the
requirement to provide information with the consent of the person with
disability, or the requirement that the Commissioner should consider whether
providing information is appropriate or necessary for the proper handling of
the complaint) are required as matters of law, or whether they are matters of
discretion for the Commissioner.
2.15
The committee therefore sought the advice of the minister as to:
- whether the measure is aimed at
pursuing a legitimate objective for the purposes of international human rights
law;
- how the measure is effective to
achieve (that is, rationally connected to) its stated objective; and
- whether the limitation is a
reasonable and proportionate measure to achieve the stated objective (including
information as to the specific safeguards in the NDIS Act, the National
Disability Insurance Scheme (Protection and Disclosure of Information –
Commissioner) Rules 2018 and the Privacy Act 1988 that protect
personal and confidential information when the Commissioner exercises their
power under section 25 of the rules).
Minister's response
2.16
The minister's response states that the purpose of section 25 is, in
effect, to facilitate the closure of a complaint. The response emphasises that
section 25 is situated within the subdivision of the Complaints Management
Rules that relate to the outcome of the resolution process. The response repeats
the information provided in the explanatory statement as to the requirement for
the commissioner to comply with their obligations under the Privacy Act and
also reiterates the information about examples of the types of persons who may
have a sufficient interest in the matter, including:
- persons or bodies who have the
consent of a person with disability affected by an issue raised in a complaint,
independent advocates or representatives;
- persons or bodies who have the
consent of a person with disability affected by an issue raised in a complaint,
their family members, carers or other significant people.
2.17
While not identified in the minister's response, the requirement that
the person's consent be sought before disclosing information to the persons
identified in the minister's response is contained in section 67E(1)(b)(ii) of
the NDIS Act, which allows the Commissioner to disclose information to a person
who has the express or implied consent of the person to whom the information
relates.
2.18
The minister's response does not respond to the committee's inquiries as
to whether the measure pursues a legitimate objective or is rationally
connected to the objective. Nevertheless, the context of the measure means that
sharing information about complaints to those with a sufficient interest may be
capable of pursuing a legitimate objective and be rationally connected to that
objective. It would have been useful if this had been explicitly addressed by
the minister.
2.19
As to proportionality, the minister explains that the commissioner is
required under section 19 of the Complaints Rules to ensure that a request by a
complainant for confidentiality is complied with unless the Commissioner
considers that doing so will, or is likely to, place the safety, health or well-being
of the complainant, a person with disability affected by an issue raised in a
complaint or any other person. The response also explains that, pursuant to
section 19 of the complaints rules, before deciding not to keep information
confidential, the Commissioner must take all reasonable steps to notify the
complainant. This indicates that, where a complainant requests confidentiality,
that request must be respected subject to the exceptions identified in the
rules.
2.20
However, the information provided by the minister does not address the
committee's inquiries as to the specific safeguards in the NDIS Act and the National
Disability Insurance Scheme (Protection and Disclosure of Information -
Commissioner) Rules 2018 (Commissioner Protection and Disclosure Rules) that
protect personal and confidential information which may be disclosed pursuant
to section 25. Instead, the minister's response repeats the information in the
explanatory statement that in general terms section 25 is subject to the
protections in the NDIS Act and the Commissioner Protection and Disclosure
Rules.
2.21
In the absence of specific guidance from the minister as to what
safeguards are provided in the NDIS Act, it appears that the minister may be
referring to section 67E(1)(b) of the NDIS Act. This section relevantly
provides when the commissioner may disclose information:
- to the Secretary of a Department of State of the
Commonwealth, or to the head of an authority of the Commonwealth, for the
purposes of that Department or authority; or
- to a person who has the express or implied consent
of the person to whom the information relates to collect it; or
- to a Department of State of a State or Territory,
or to an authority of a State or Territory, that has responsibility for matters
relating to people with disability, including the provision of supports or
services to people with disability; or
- to the chief executive (however described) of a
Department of State of a State or Territory, or to the head of an authority of
a State or Territory, for the purposes of that Department or authority.
2.22
The Commissioner Protection and Disclosure Rules outline further
safeguards when disclosing information under section 67E(1)(b)(i), (iii) and
(iv).[8]
In broad terms, those rules require that the Commissioner, so far as reasonably
practicable, de-identify any personal information,[9] consult with the affected individual,[10] notify the recipient that they are receiving NDIS information (including
limitations on how they can use that information),[11] and maintain records of that disclosure. The NDIS Act also includes a number of
offence provisions for unauthorised disclosure of protected commission
information.[12]
2.23
To the extent that these safeguards in the NDIS Act and Commissioner
Protection and Disclosure Rules apply, there would appear to be sufficient
safeguards in place to ensure that the measure is compatible with the right to
privacy. However, it would have been useful if more specific information had
been provided in the statement of compatibility and the minister's response to
assist the committee with its analysis.
Committee response
2.24
The committee thanks the minister for his response and has
concluded its examination of the issue.
2.25
The preceding analysis indicates the measure may be compatible
with the right to privacy.
2.26
The committee draws the minister's attention to its Guidance
Note 1 which sets out the committee's expectations in relation to drafting
statements of compatibility.
Record keeping and incident and complaint management requirements
2.27
Section 10(2) of the Complaints Management Rules states that appropriate
records of complaints received by the NDIS provider must be kept and include
information about complaints, any action taken to resolve complaints, and the
outcome of any action taken. Those records must be kept for 7 years from the
day the record is made.[13] The complaints management system must also provide for the collection of
statistical and other information relating to complaints made to the provider
to review issues raised in complaints, identify and address systemic issues
raised through the complaints management and resolution process, and report
information relating to complaints to the Commissioner if requested to do so.[14]
2.28
Similarly, section 12 of the National Disability Insurance Scheme
(Incident Management and Reportable Incidents) Rules 2018 (Reportable Incidents
Rules) sets out the documentation, record keeping and statistics requirements
in relation to the incident management systems. An NDIS provider must provide
specified information in the record of each incident that occurs, including a
description of the incident, the names and contact details of the persons
involved in the incident, the names and contact details of any witnesses to the
incident, the name and contact details of the person making the record of the
incident, and the details and outcomes of any investigations into the incident.[15] These records must also be kept for 7 years from the day the record is made and
the incident management system must also provide for the collection of
statistical and other information relating to incidents.[16]
Compatibility of the measure with
the right to privacy
2.29
As the provisions in the Complaints Management Rules and Reportable
Incidents Rules relate to the storing, use and sharing of information
(including personal information), the provisions engage and limit the right to
privacy.
2.30
The statement of compatibility to the Complaints Management Rules
discusses the right to privacy in general terms (discussed above), but does not
specifically address the record keeping requirements in those rules. The
statement of compatibility to the Reportable Incidents Rules does not
acknowledge that the rules may engage and limit the right to privacy.
2.31
The explanatory statement to the Reportable Incidents Rules states that
it is 'crucial that the incident management system is documented so that
compliance with the system can be monitored and enforced, including by quality
auditors and the Commissioner'.[17] Similarly, the explanatory statement to the Complaints Management Rules states
that the documentation and record keeping requirement 'is fundamental to the
proper functioning of a complaints management and resolution system as it
ensures that persons with disability and their families and carers are aware of
their rights and can advocate for their needs and safety where appropriate'.[18] The explanatory statement to each of the instruments explains that the
collection of statistics and other information is for the purpose of
identifying any systemic issues that may exist.[19] The initial analysis stated that each of these objectives appear to be
legitimate objectives for the purposes of international human rights law, and
the measures appear to be rationally connected to this objective.
2.32
As to proportionality, as noted above, limitations on the right to
privacy must be accompanied by adequate safeguards. There is limited
information in the explanatory statement or statement of compatibility as to
the safeguards that apply to the information stored pursuant to the record
keeping requirements, such as requirements for keeping records secure and
confidential, or penalties for unauthorised disclosure.
2.33
Further, in relation to the collection of statistical and 'other
information', the initial analysis noted that this appears to be very broad
and, according to the explanatory statement to the Reportable Incidents Rules,
would allow disclosure of 'who is involved in incidents (for example, whether
particular workers and/or people with disability are involved in multiple
incidents)'.[20] No information is provided in the explanatory statements or statements of
compatibility as to the safeguards that would apply to protect the right to
privacy of those persons whose information is disclosed pursuant to the statistical
collection requirements.
2.34
The committee therefore sought
the advice of the minister as to the proportionality of the limitation on the
right to privacy. In particular, the committee sought information as to the
safeguards that would apply to protect the right to privacy.
Minister's response
2.35
In response to the committee's inquiries, the minister's response
reiterates the objectives of the record keeping requirements and explains that
section 10(2) of the Complaints Management Rules and section 12 of the
Reportable Incidents Rules are also designed to ensure that a registered NDlS
provider complies with its obligation in relation to complaints and incident
management and is accountable to people with disability in working to improve
the quality and safety of services as a result of complaints and incidents. As
noted in the initial analysis, these are likely to be legitimate objectives for
the purposes of international human rights law.
2.36
In relation to safeguards, the minister's response provides the following
information:
In relation to safeguards, it is a requirement under
paragraph 6(b) of the National Disability Insurance Scheme (Code of Conduct)
Rules 2018 that an NDIS provider respect of the privacy of people with
disability. A contravention of the NDIS Code of Conduct can attract a penalty
of up to 250 penalty units. An NDIS provider is also obliged to adhere to
privacy laws and other applicable laws which protect the privacy and
confidentiality of information.
Any personal information which the Commissioner collects as
part of the performance of his or her functions is 'protected Commission
information' under the Act. As such, it will be handled in accordance with the
limitations placed on the use and disclosure of protected Commission
information under the Act, the National Disability Insurance Scheme
(Protection and Disclosure of Information - Commissioner) Rules 2018, the Privacy
Act 1988, and any other applicable Commonwealth, State or Territory
legislation. Information will only be dealt with where reasonably necessary for
the fulfilment of the Commissioner's lawful and legitimate functions.
2.37
This information, and in particular the information as to the penalties
for disclosure in breach of the NDIS Code of Conduct, assists in determining
the proportionality of the measure. Having regard to the safeguards in the NDIS
Act and the Commissioner Protection and Disclosure Rules discussed above as to
the use and disclosure of protected commission information, on balance the
measure is likely to be compatible with the right to privacy.
Committee response
2.38
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.39
The preceding analysis indicates the measure is likely to be
compatible with the right to privacy.
Inquiry powers and procedural fairness requirements relating to complaints
and incident management
2.40
Section 9 of the Complaints Management Rules provides that the
complaints management and resolution system of a registered NDIS provider must
ensure that people are afforded procedural fairness when a complaint is dealt
with by a provider. Similarly, section 11 of the Reportable Incidents Rules
provides that incident management systems of registered NDIS providers must
require that people are afforded procedural fairness when an incident is dealt
with by a provider. The Commissioner must have due regard to the rules of
procedural fairness when taking action in relation to a reportable incident,[21] and must give due regard to procedural fairness when considering any
complaints.[22] For each of these provisions, the Commissioner may make guidelines relating to
procedural fairness.[23]
2.41
The Complaints Management Rules also give the Commissioner powers to
authorise inquiries in relation to issues connected with complaints, a series
of complaints or about support or services provided by NDIS providers.[24] The Reportable Incidents Rules allow for the Commissioner to authorise
inquiries in relation to reportable incidents.[25]
Compatibility of the measure with
the right to a fair hearing
2.42
Article 14(1) of the ICCPR requires that in the determination of a
person's rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.
Australia also has obligations to ensure effective access to justice for
persons with disabilities on an equal basis with others.[26]
2.43
The concept of 'suit at
law' encompasses judicial procedures aimed at determining rights and
obligations, equivalent notions in the area of administrative law and also
extends to other procedures assessed on a case-by-case basis in light of the
nature of the right in question.[27]
2.44
It was not clear from the information provided the extent to which the
processes in relation to incident and complaints management by NDIS providers
and the Commissioner would involve the determination of rights and obligations
of persons subject to the complaints (such as persons employed or engaged by
NDIS providers) such as to constitute a 'suit at law'. However, it was noted
that some of the outcomes of resolving incidents by NDIS providers appear to
include corrective action,[28] the Commissioner may refer incidents to authorities with responsibility in
relation to incidents (such as child protection authorities),[29] or 'take any other action that the Commissioner considers reasonable in the
circumstances'.[30] In relation to complaints management, the Commissioner must undertake a
resolution process in relation to complaints which appears to include the
ability to make adverse findings against persons employed or engaged by NDIS
providers.[31] Similarly in relation to inquiries the Commissioner may 'prepare and publish a
report setting out his or her findings in relation to the inquiry'.[32]
2.45
To the extent that these processes may involve the determination of
rights and obligations, fair hearing rights may apply. This matter was not
addressed in the statement of compatibility. The instruments and the
explanatory statement refer to the development of the National Disability
Insurance Scheme (Procedural Fairness) Guidelines 2018. A copy of these
guidelines would assist in determining whether the procedural fairness
requirements afforded are consistent with fair hearing rights.
2.46
Another relevant factor in determining compatibility with fair hearing
rights is the availability of independent review of decisions. The explanatory
statement states that decisions of the Commissioner may be the subject of
complaint to the Commonwealth Ombudsman.[33] This would be a relevant safeguard. However, further information, including
information as to any external review of decisions of the Commissioner (such as
merits review), would assist in determining whether these review options are
sufficient for the purposes of the right to a fair hearing.
2.47
The committee therefore sought
the advice of the minister as to the compatibility of the measures with this
right, including:
- a copy of the National
Disability Insurance Scheme (Procedural Fairness) Guidelines 2018 (or if
a copy is not available, a detailed overview of the guidelines having regard to
the matters discussed above including any relevant safeguards); and
- safeguards to protect fair
hearing rights (including information as to any external review of decisions).
Compatibility of the measure with
the right to privacy
2.48
The ability of the Commissioner to prepare and publish reports setting
out their findings in relation to an inquiry may also engage and limit the
right to privacy, insofar as those reports may contain personal and
confidential information. The privacy implications of the inquiry process were
not specifically addressed in the statements of compatibility to either the
Reportable Incidents Rules or the Complaints Management Rules.
2.49
The explanatory statements to the Reportable Incidents Rules and the
Complaints Management Rules explain that the inquiry function is 'intended to
determine or define potential matters including any systemic issues which may
be connected with support services provided under the NDIS'. This is likely to
be a legitimate objective for the purposes of international human rights law,
and the ability to publish reports on such matters appears to be rationally
connected to this objective.
2.50
The committee therefore sought the advice of the minister as to the
compatibility of the measure with the right to privacy and, in particular,
information as to the safeguards in place to protect personal and confidential
information.
Minister's response
2.51
The minister's response attaches a final consultation draft of the National
Disability Insurance Scheme (Procedural Fairness) Guidelines 2018. These
guidelines outline detailed procedural fairness requirements that apply, and
assist in determining the proportionality of the limitation on human rights.
The response explains that:
These Guidelines have been developed in close consultation
with stakeholders including representatives of workers. Following feedback from
stakeholders, they have been drafted to apply principally to the management of
complaints by NDIS providers and the Commission. In the context of responding
to incidents, feedback indicated that it was not appropriate or necessary to
apply specific guidelines outside of the existing common law requirements for
procedural fairness. Further guidance will be developed to support the
implementation of the Guidelines which will be subject to regular review.
2.52
As to the compatibility of the measure with fair hearing rights, the
minister's response provides a detailed explanation of the extent to which the
provisions of the Complaints Management Rules and Incident Management Rules may
involve the determination of rights and obligations such as to constitute a
'suit at law' within the meaning of Article 14 of the ICCPR, by reference to
the provisions discussed in the committee's analysis above at [2.31]:
- paragraph 10(1)(g) of the Incident Management Rules — this
is part of the incident management system to be established by a registered
NDIS provider and the example provided in the Explanatory Statement is: if
system failure or worker actions contributed to an incident, the incident
management system should set out a process for addressing those issues. In this
context general employment law and associated review rights as well as ordinary
principles of procedural fairness would apply to any action taken by a provider
in respect of conduct by a worker which was found to have contributed to an
incident.
- paragraph 26(1)(a) of the Incident Management Rules - the
referral of matters to other regulatory bodies including the police or child
protection authorities would not involve a determination of rights and would be
subject to the protections afforded to personal information under the Act and
the National Disability Insurance Scheme (Protection and Disclosure of
Information - Commissioner) Rules 2018.
- paragraph 26(1)(f) of the Incident Management Rules - this
may include a decision to refer the matter to an authorised officer for the
purposes of determining whether to conduct an investigation under the Act or to
take other compliance or enforcement action under the Act in respect of which
rights of review are available (Part 6 of the [NDIS] Act).
- subsections 16(3) and (5) of the Complaints Management
Rules - in the event that the resolution of a complaint included making adverse
findings against a person, the process would be subject to that outlined in the
attached Procedural Fairness Guidelines. Any compliance or enforcement action
taken by the Commission would be subject to the review rights outlined in Part
6 of the [NDIS] Act.
- in respect of any inquiries conducted by the Commissioner
under the Complaints or Incident rules, the Commissioner must comply with
procedural fairness and the protections and limitations on the use of personal
information outlined in the Act and the National Disability Insurance Scheme
(Protection and Disclosure of Information - Commissioner) Rules 2018. The
Commissioner's inquiry power is not intended to determine the rights or
interests of parties to a complaint or incident. The Commissioner has other
investigation powers under the Act that could be used for that purpose.
As stated above, the Commissioner's inquiry power is not
intended to determine the rights or interests of parties to a complaint or
incident. The Commissioner has other investigation powers under the Act that
could be used for that purpose.
2.53
Based on this information, to the extent that some of the provisions may
involve the determination of rights and obligations, the measures are likely to
be compatible with fair hearing rights.
2.54
In addition to the information discussed above, the minister's response
also provides the following information in relation to the compatibility of the
measure with the right to privacy.
In the course of conducting enquiries, the protections and
limitations on the use of personal information are outlined in the Act and the National
Disability Insurance Scheme (Protection and Disclosure of Information -
Commissioner) Rules 2018.
2.55
The provisions referred to in the minister's response appear to be a
reference to the provisions of the NDIS Act and the Commissioner Protection and
Disclosure rules discussed above in relation to the commissioner's disclosure
power. On balance and in light of this information the measures also appear to
be compatible with the right to privacy.
Committee response
2.56
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.57
Based on the information provided, the measures are likely to be
compatible with the right to a fair hearing and the right to privacy.
National Disability Insurance Scheme (Protection and Disclosure of
Information—Commissioner) Rules 2018 [F2018L00635]
Purpose |
Provides for the disclosure
of information in certain circumstances by the NDIS Quality and Safeguards Commissioner |
Portfolio |
Social Services |
Authorising legislation |
National Disability
Insurance Scheme Act 2013 |
Last day to disallow |
15 sitting days after
tabling (tabled Senate 18 June 2018) |
Right |
Privacy (see Appendix 2) |
Previous report |
7 of 2018 |
Status |
Concluded examination |
Background
2.58
The committee first reported on the National Disability Insurance Scheme
(Protection and Disclosure of Information—Commissioner) Rules 2018 (Disclosure
Rules) in its Report 7 of 2018, and requested a response from the
Minister for Social Services by 29 August 2018.[34]
2.59
The minister's response to the committee's inquiries was received on
28 August 2018. The response is discussed below and is reproduced in full at Appendix 3.
2.60
The National Disability Insurance Scheme (NDIS) Quality and Safeguards
Commission and Commissioner (commissioner) were established by the National
Disability Insurance Scheme Amendment (Quality and Safeguards Commission and
Other Measures) Act 2017 (the NDIS Amendment Act). The committee
considered the human rights compatibility of the NDIS Amendment Act in Report
7 of 2017.[35] In that report, the committee noted that there were questions as to the
compatibility of that Act with the right to privacy in light of the broad
disclosure power of the commissioner in section 67E(1) of the National
Disability Insurance Scheme Act 2013 (NDIS Act).
2.61
The statement of compatibility for the NDIS Amendment Act explained that
the proposed information gathering and disclosure powers were proportionate to
achieving a legitimate objective because, amongst other factors, the commissioner
would first need to satisfy the relevant NDIS rules,[36] which would 'enumerate specific bodies and purposes' for which the commissioner
could disclose information in the public interest and 'include limitations on
the further use and disclosure of such information'.[37] The committee noted that without a copy of these rules it was unclear whether
the rules would sufficiently constrain the exercise of the commissioner's
disclosure powers, such that the disclosure powers would constitute a
permissible limitation on the right to privacy. Consequently, the committee advised
that it would revisit the matters raised in its assessment when reviewing the
rules once they were made.[38]
Information sharing – disclosure powers
2.62
Part 3 of the Disclosure Rules prescribe the rules and guidance
regarding the commissioner's disclosure powers in section 67E(1) of the
NDIS Act.
2.63
Division 1 sets out the rules which the commissioner must follow in
disclosing any 'NDIS information',[39] where:
-
the commissioner is satisfied on reasonable grounds that it is in
the public interest to do so;[40] or
- the NDIS information is being disclosed to:
- the head of a Commonwealth, state or territory department or
authority for the purposes of that department or authority;[41] or
- a state or territory department or authority with responsibility
for matters relating to people with disabilities.[42]
2.64
Subject to a number of exceptions,[43] in these circumstances the commissioner must:
- de-identify personal information included in NDIS information,
where doing so would not adversely affect the purpose for which the information
is disclosed;[44]
- notify and seek the consent of the affected individual about the
proposed disclosure prior to disclosure, and provide them with a reasonable
opportunity to comment;[45]
- notify the recipient of the NDIS information about the purpose of
and limitations on the disclosure, and state that the information may only be
used in accordance with the purpose of the disclosure;[46] and
-
ensure a record of the disclosure is made, containing prescribed
information.[47]
2.65
Division 2 of part 3 of the Disclosure Rules outlines matters to which
the commissioner must have regard in determining whether there are reasonable
grounds on which to disclose NDIS information in the public interest under
section 67E(1) of the NDIS Act. Section 14 of the Disclosure Rules
requires the commissioner to have regard to:
- whether the affected individual would be likely to be in a
position to seek assistance themselves or notify the proposed recipient of the
information of their circumstances;
- the purpose for which the information was collected, including
any information provided to the affected individual at that time about how the
information would or would not be used or disclosed;
-
whether the affected individual would reasonably expect the
commissioner to disclose the information for the proposed purpose and to the
proposed recipient;
- whether the disclosure would be contrary to a request by a
complainant under section 15(3) of the National Disability Insurance
Scheme (Complaints Management and Resolution) Rules 2018;
- whether the proposed recipient has 'sufficient interest' in the
information;[48]
- whether the proposed recipient could reasonably obtain the
information from a source other than the commissioner; and
- whether sections 15 to 19 of the Disclosure Rules apply.
2.66
Sections 15 to 19 set out additional matters about which the
commissioner must be satisfied if the proposed disclosure is for one of the
following purposes:
- enforcement of laws and related circumstances;[49]
- briefing the minister;[50]
- missing or deceased persons;[51]
- assisting child welfare agencies;[52] and
-
assisting professional bodies;[53]
2.67
For example, where the proposed disclosure is to assist a 'professional
body',[54] the commissioner must be satisfied that:
- the commissioner holds information about a person employed or
otherwise engaged by an NDIS provider; and
- the disclosure is necessary to assist a professional body to
consider whether the person's conduct meets the standards required to attain or
maintain membership of the professional body.[55]
Compatibility of the measure with
the right to privacy
2.68
The right to privacy includes respect for private and confidential
information, particularly the storing, use and sharing of such information, and
the right to control the dissemination of information about one's private life.[56]
2.69
Allowing for the disclosure of NDIS information (including personal
information) under section 67E of the NDIS Act engages and limits the
right to privacy. By setting out the factors that the commissioner must
consider in determining whether to disclose NDIS information, the statement of
compatibility acknowledges that the Disclosure Rules engage this right.[57]
2.70
The right to privacy may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be rationally
connected (that is, effective to achieve) and proportionate to that objective.
2.71
In relation to whether the measure pursues a legitimate objective, the
statement of compatibility explains that the objective of permitting the
commissioner to disclose NDIS information is to enhance system-level oversight
of serious incidents involving the abuse, neglect or exploitation of people
with disabilities, by facilitating coordination with the family or carers of
people with disabilities and relevant professional bodies and government
departments and agencies.[58] Regarding the importance of this objective, the statement cites three inquiries
in 2014-2015 into abuse in the disability sector, which emphasised the need for
system-level oversight to adequately identify and address systemic issues in
the sector.[59]
2.72
As acknowledged in the committee's assessment of the primary
legislation, this is likely to constitute a legitimate objective for the
purposes of international human rights law.[60]
2.73
The statement of compatibility provides further information about the
individual measures in division 2 of part 3 (summarised at [2.65] above), which
assists in determining how each disclosure power is effective to achieve (that
is, rationally connected to) the stated objective. For example, the statement
of compatibility notes that section 16, which permits disclosures to brief
the minister, is designed 'to enable matters to be escalated and managed
appropriately' by the relevant minister.[61] The initial human rights analysis noted that, in light of the minister's
oversight role, the escalation and management of issues by the minister is
likely to be rationally connected to the legitimate objective of promoting
effective system-level oversight of, and response to, the abuse of people with
disabilities. For this reason, and having regard to the committee's previous
conclusions in relation to the primary legislation, the measures appear to be
rationally connected to this objective.
2.74
As noted by the committee in its analysis of the NDIS Amendment Act,[62] the extent to which the Disclosure Rules constrain the commissioner's exercise
of the disclosure powers in section 67E(1) of the NDIS Act is key to
determining whether the disclosure powers are a proportionate limitation on the
right to privacy.
2.75
The statement of compatibility highlights a number of provisions
in division 2 of the Disclosure Rules which are intended to 'limit the scope of
the exercise of the [commissioner's] decision making power'.[63] For example, amongst other
factors, the statement of compatibility notes that the commissioner must
consider whether the proposed recipient of the information could reasonably
obtain the information from another source,[64] and whether the person requesting the information has 'sufficient interest' in
the information.[65] Section 14(2) of the Disclosure Rules imposes an additional limitation on
this threshold by prescribing that a person has a 'sufficient interest' if they
have a 'genuine and legitimate interest in the information', or are a
Commonwealth, state or territory minister. Section 14 also requires the commissioner
to consider whether a person about whom information would be disclosed is
likely to be in a position to seek assistance themselves or give notice to the
proposed recipient of the information, where the information concerns their
life, health or safety.[66] The statement of compatibility explains that this provision is:
...intended to insure that, as far as possible, the
Commissioner takes into account the interests of the person concerned and...is a
further protection against arbitrary interference with the privacy of a person...[67]
2.76
The statement of compatibility also identifies some specific further
restrictions on the disclosure of information for the purposes defined in
sections 15 to 19 of the Disclosure Rules, summarised above at [2.66]. For
example, disclosure of information to brief the minister is limited to the
prescribed purposes of enabling the minister to consider complaints, incidents
or issues, and if necessary respond to the affected person; informing the
minister about an error or delay on the part of the Commission; or alerting the
minister to an anomalous or unusual operation of the Act, regulations or rules.[68] Such restrictions are relevant to the proportionality of the measure and assist
to ensure that disclosure is sufficiently circumscribed.
2.77
However, sections 15, 17, 18 and 19 of the Disclosure Rules
may permit the disclosure of personal information to bodies that are not
constrained by the Privacy Act 1988 (Privacy Act). The initial analysis
stated that, while compliance with the Privacy Act is not a complete answer to
concerns about the right to privacy, it may provide relevant safeguards that
assist in determining whether a limitation on the right to privacy is
proportionate. Noting this potential gap in coverage, the relevant sections do
not require the commissioner to be satisfied of how bodies that are not subject
to the Privacy Act will collect, store and disclose personal information that
is disclosed to them. The statement of compatibility does not provide any
additional information about this issue. The potential for information to be
disclosed to bodies that are not constrained by the Privacy Act raises a
question as to whether there are other, relevant safeguards in place to protect
the right to privacy.
2.78
The initial analysis
noted that there are also a number of exceptions to the safeguards in division
1, which may restrict the effectiveness of the safeguards. For example, under
section 10(3)(b),
the commissioner is not required to de-identify personal information if they
are satisfied that to do so would result in an unreasonable delay. A similar
exception applies to the consent and consultation requirements in
section 11.[69] Neither the Disclosure Rules nor the statement of compatibility explain what
constitutes an 'unreasonable delay' or how this is determined. Further
information as to how this threshold is determined would assist the committee
to assess whether the limitation on the right to privacy is proportionate to
the legitimate objective sought.
2.79
Finally, the Disclosure
Rules do not appear to make decisions made by the commissioner under part 3 of
the rules reviewable, nor does the NDIS Act make decisions under section 67E
reviewable. This raised concerns about the sufficiency of the safeguards in
place to protect the right to privacy. These matters were not fully addressed
in the statement of compatibility for the Disclosure Rules.
2.80
Accordingly, while part
3 of the Disclosure Rules significantly constrains the commissioner's
disclosure powers under section 67E(1) of the NDIS Act, some questions
remained as to the proportionality of the measures, such as whether the exceptions
to the safeguards in division 1 are the least rights restrictive approach to
achieving the legitimate objective and whether the safeguards in division 2 for
public interest disclosures are sufficient to constitute a proportionate
limitation on the right to privacy.
2.81
The committee therefore sought the advice of the minister as to whether
the Disclosure Rules ensure that the limitation on the right to privacy in
section 67E(1) of the NDIS Act is proportionate to achieve the relevant
objective, in particular:
- whether information may be
disclosed to organisations that are not covered by the Privacy Act and, if so,
the sufficiency of other relevant safeguards to protect the right to privacy;
- whether the exceptions to the
safeguards on the commissioner's disclosure powers in division 1 are the least
rights restrictive approach to pursue the legitimate objective; and
- whether decisions made by the
commissioner in part 3 of the Disclosure Rules are reviewable.
Minister's response
2.82
The minister's response contains the following information about the
sufficiency of safeguards to protect the right to privacy in circumstances in
which sections 15, 17, 18 and 19 permit the disclosure of personal
information to organisations that are not covered by the Privacy Act:
In the event that sections 15, 17, 18 and 19 of the
Information Rules do enable disclosure to organisations that are not covered by
the Privacy Act or other applicable laws protecting the privacy and
confidentiality of information, they remain subject to the protections and
offences outlined in Part 2 of Chapter 4 of the Act in respect [to] the use of
protected or personal information. In addition, the disclosure notice that must
be completed by the Commissioner pursuant to section 12 of the Information
Rules can stipulate limitations on how the organisation can use, record or
disclose information.
2.83
This is a relevant safeguard and assists with determining the
proportionality of the limitation on the right to privacy.
2.84
The minister's response also refers to additional safeguards in Division
2 of part 2 of chapter 4 of the NDIS Act. These provisions contain the
following offences regarding protected information held by the commission:
- unauthorised use or disclosure of protected commission
information;[70]
-
soliciting disclosure of protected commission information;[71] and
- offering to supply protected commission information.[72]
2.85
The offences apply to any person, and the penalty for each offence is
imprisonment for 2 years or 120 penalty units, or both.[73] These offences constitute significant safeguards to protect against
unauthorised disclosure of personal information.
2.86
The minister's response also provides further information about how the
threshold of 'unreasonable delay' will be determined in the exceptions to the safeguards
on the disclosure of protected information in sections 10 and 11 of the
NDIS rules:
The assessment and determination of whether adhering to the
de-identification or consultation requirements in Division 1 of the Information
Rules would result in an unreasonable delay would need to be determined on a
case by case basis. Generally speaking, it is unlikely that the
de-identification of information would result in an unreasonable delay. In
relation to the consultation requirements, an unreasonable delay will generally
be determined in circumstances where an affected person has been given a
reasonable opportunity to comment on a proposed disclosure and has not
responded.
2.87
The advice that de-identification is unlikely to result in unreasonable
delay under section 10(3)(b) of the NDIS Rules, combined with the
clarification that the exception in section 11(7)(b) will generally only
apply in situations in which 'an affected person has been given a reasonable
opportunity to comment on a proposed disclosure and has not responded', further
indicates that the limitation on the right to privacy imposed by the exceptions
to the safeguards on the commissioner's disclosure powers is likely to be
proportionate.
2.88
Finally, in response to the committee's inquiries about the availability
of review, the minister's response explains that decisions made under Part 3 of
the Rules will not be reviewable, because:
The rules attempt to strike a balance between, on the one
hand, protecting the privacy of individuals and, on the other hand, enabling
the Commission to be a responsive regulator and work effectively with other
bodies to prevent harm to people with disability arising from unsafe or poor
quality NDIS supports or services.
2.89
In light of the further information contained in the minister's
response, despite the absence of merits review, there would appear to be
sufficient safeguards in place to ensure that the rules and guidance in the
NDIS rules regarding the commissioner's disclosure powers in
section 67E(1) of the NDIS Act are compatible with the right to privacy.
Committee response
2.90
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.91
Based on the information provided, the measure is likely to be
compatible with the right to privacy.
National Redress Scheme for Institutional Child Sexual Abuse Bill 2018
National Redress Scheme for Institutional Child Sexual Abuse (Consequential
Amendments) Bill 2018
National Redress Scheme for Institutional Child Sexual Abuse Rules 2018
[F2018L00975]
National Redress Scheme for Institutional Child Sexual Abuse Assessment
Framework 2018 [F2018L00969]
National Redress Scheme for Institutional Child Sexual Abuse Direct
Personal Response Framework 2018 [F2018L00970]
Purpose |
Seeks to establish a
national redress scheme for survivors of institutional child sexual abuse |
Portfolio |
Social Services |
Bills introduced |
House of Representatives,
10 May 2018 |
Instruments made under legislation |
Last day to disallow for
F2018L00975: 15 sitting days after tabling (tabled Senate 13 August 2018)
F2018L00970, F2018L00969: non-disallowable |
Rights |
Equality and
non-discrimination; privacy; effective remedy; fair hearing (see Appendix
2) |
Previous report |
5 of 2018 |
Status |
Concluded examination |
Background
2.92
The committee first reported on the bills in its Report 5 of 2018,
and requested a response from the Minister for Social Services by 4 July 2018.[74] The minister's response to the committee's inquiries was received on 9 July
2018. The response is discussed below and is reproduced in full at Appendix 3.
2.93
The National Redress Scheme for Institutional Child Sexual Abuse Bill
2018 (the 2018 Bill) and the National Redress Scheme for Institutional Child
Sexual Abuse (Consequential Amendments) Bill 2018 (the 2018 Consequential
Amendments Bill) passed both Houses of Parliament on 19 June 2018 and received
Royal Assent and became Acts on 21 June 2018 (2018 Act and the 2018
Consequential Amendment Act).
2.94
The committee has previously considered the Commonwealth Redress Scheme
for Institutional Child Sexual Abuse Bill 2017 (the 2017 Bill) and the
Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential
Amendments) Bill 2017 (the 2017 Consequential Amendments Bill) in its Report
13 of 2017 and Report 2 of 2018.[75] Those bills sought to establish a Commonwealth redress scheme for survivors
of institutional child sexual abuse absent a referral power from states to
establish a national redress scheme.
2.95
Following referral of powers by states,[76] the 2018 Acts establish a national redress scheme (the scheme) for survivors of
institutional child sexual abuse.
2.96
Following the committee's initial analysis, the National Redress Scheme
for Institutional Child Sexual Abuse Rules 2018 (redress scheme rules), the
National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework
2018 and the National Redress Scheme for Institutional Child Sexual Abuse
Direct Personal Response Framework 2018 were tabled in the House of
Representatives and the Senate on 13 August 2018. The redress scheme rules,
which were foreshadowed in the previous analysis, are relevant to the human
rights compatibility of the 2018 Acts and are addressed in this analysis where
relevant.[77]
Previous analysis of the proposed Commonwealth Redress Scheme
2.97
In Report 2 of 2018, the committee noted that the minister had
foreshadowed the introduction of the 2018 Bill, and that the minister had also
indicated that a number of the human rights issues raised by the committee in
relation to the 2017 Bill would be considered when developing the 2018 Bill.[78]
2.98
A number of aspects of the 2017 Bill are replicated in the 2018 Bill. As
such, in Report 5 of 2018, the human rights analysis noted that where
there is overlap and no substantive change to the provision, the committee's
previous human rights analysis of the measures in the 2017 Bill applies equally
to the 2018 Bill (now 2018 Act). In particular:
- Eligibility to receive redress under the scheme for
non-citizens and non-permanent residents: The human rights analysis of the
2017 Bill noted that the restriction on non-citizens' and non-permanent
residents' eligibility for redress engaged and limited the right to equality
and non-discrimination on the basis of nationality or national origin.[79] Following correspondence from the minister, the committee concluded that while
the measure pursues a legitimate objective, there were concerns that the breadth
of the restriction on the eligibility of all non-citizens and non-permanent
residents may not be proportionate.[80]
However, the committee further stated that allowing for rules to prescribe
further classes of persons who may be eligible, including those who would
otherwise be excluded due to not being citizens or permanent residents, may be
capable of addressing these concerns.[81] This same eligibility criterion is also present in the 2018 Bill (now 2018
Act).[82]
- Power to determine entitlement, eligibility and ineligibility
by rules: The previous human rights analysis stated that the proposed power
in the 2017 Bill to prescribe eligibility and ineligibility by way of rules
raised concerns as to compatibility with the right to an effective remedy.[83] This was because, in the absence of sufficient safeguards, the broad scope of
the power to determine eligibility or ineligibility could be exercised in such
a way as to be incompatible with this right.[84] The committee noted, however, that the proposed discretion of the scheme
operator to determine eligibility of survivors if they are otherwise ineligible
may be capable of addressing some of these concerns.[85] The power to determine eligibility and ineligibility by way of rules is also
present in the 2018 Bill (now 2018 Act), as well as a broad power to determine
entitlement to redress by way of rules.[86] To that extent the concerns expressed in the previous human rights analysis
apply equally here. However, there are also additional issues relating to
entitlement, eligibility and ineligibility under the scheme that are discussed
in further detail below.
- Power to determine by rules whether an institution is
responsible for abuse: The 2017 Bill contained a provision that allowed for
rules to be made prescribing circumstances in which a participating institution
is not responsible for sexual or non-sexual abuse.[87] The committee noted the broad scope of this power may give rise to human rights
concerns as to its operation. This was because its scope was such that it could
be used in ways that may risk being incompatible with the right to an effective
remedy.[88]
The 2018 Bill (now 2018 Act) also includes a provision that allows for rules to
be made to prescribe whether an institution is responsible, primarily
responsible or equally responsible for abuse.[89] The concern as to the potential operation of this rule-making power in a manner
incompatible with the right to an effective remedy also applies to the 2018
Bill (now 2018 Act).[90]
- Bar on future civil liability of participating institutions
and associates: The 2017 Bill provided that where an eligible person
receives an offer of redress and chooses to accept the offer, the person
releases and forever discharges all institutions participating in the scheme
from civil liability for abuse, and the eligible person cannot bring or
continue any claim against those institutions in relation to that abuse.[91] The committee considered that this bar on future civil liability of
participating institutions may engage and limit the right to an effective
remedy.[92] However, the committee noted that the proposed rules governing the provision of
legal services under the redress scheme may operate as a sufficient safeguard
so as to support the human rights compatibility of the measure.[93] The 2018 Bill (now 2018 Act) also requires survivors who accept redress to
forever release from civil liability all institutions providing them with
redress, and additionally extends this release to 'officials of those responsible
institutions and associates (other than an official who is an abuser of the
person)'.[94] The 2018 Bill (now 2018 Act) also provides further detail as to the effect of
accepting the release on civil liability.[95] The concern as to compatibility of the bar on future civil liability with the
right to an effective remedy also applies to the 2018 Bill (now 2018 Act).[96]
- Absence of external merits review and removal of judicial
review: The 2017 Bill provided for a system of internal review of
determinations made under the scheme.[97] The 2017 Consequential Amendments Bill also exempted decisions made under the
scheme from judicial review under the Administrative Decisions (Judicial
Review) Act 1977 (ADJR Act).[98] The committee considered that these measures raised concerns as to
compatibility of the review scheme with the right to a fair hearing.[99] However, having regard to the information provided by the minister and the
particular context in which the review scheme operated, the committee
considered that the internal review mechanism may be capable of ensuring that
survivors have adequate opportunities to have their rights and obligations
determined in a manner compatible with the right to a fair hearing. The
committee 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.[100] The 2018 Bill (now 2018 Act) also establishes an internal review mechanism,[101] and the 2018 Consequential Amendments Bill (now Act) excludes the scheme from
judicial review under the ADJR Act.[102] Therefore, the conclusions relating to the right to a fair hearing in the 2017
Bill apply equally to the 2018 Bill. As to review of the internal review
mechanism, it is noted that the statement of compatibility to the 2018
Bill further advises that:
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.[103]
2.99
The matters discussed in the remainder of this human rights analysis
relate to matters in the 2018 Bill (now 2018 Act) and National Redress
Consequential Amendments Bill (now 2018 Consequential Amendments Act) that
raise additional or new issues to the 2017 Bill that required further advice
from the minister.
Information sharing provisions
Compatibility of the measures with
the right to privacy
Public interest disclosure power of the scheme operator
2.100
The 2017 Bill set out the circumstances in which the scheme operator may
disclose protected information in the public interest.[104] Following the further information provided by the minister, the committee
considered that disclosure in such circumstances may be sufficiently
circumscribed such that the measure would be a proportionate limitation on the
right to privacy.
2.101
The 2018 Bill (now 2018 Act) also provides under section 95 that the
National Redress Scheme Operator (operator)[105] may disclose protected information[106] in the public interest if certain circumstances are satisfied, including where
the operator certifies that disclosure is necessary in the public interest.[107] As with the 2017 Bill, this measure engages and limits the right to privacy.[108] The provision in the 2018 Bill (now 2018 Act) is substantively identical to the
provision in the 2017 Bill, and to that extent the committee's comments on the
2017 Bill apply equally.
2.102
However, it was noted that the statement of compatibility for the 2018
Bill provided the following information:
The Committee also noted that the (former) Minister has indicated
he will consider including a positive requirement that the Operator must have
regard to the impact the disclosure may have on a person to whom the
information relates in any future legislation developed for a National Redress
Scheme. This has now been reflected in the Bill.[109]
2.103
Yet, there is no requirement in section 95 of the 2018 Bill (which
relates to public interest disclosure) that requires the operator to have
regard to the impact the disclosure may have on a person to whom the
information relates.
2.104
The committee therefore sought clarification from the minister, having
regard to the statement on page 125 of the statement of compatibility, as to
whether the public interest disclosure power in section 95 of the 2018 Bill
could be amended so as to include a positive requirement that the scheme
operator must have regard to the impact the disclosure may have on a person to
whom the information relates.
Disclosure by employees and
officials of government institutions
2.105
Section 97 provides an additional authorisation for employees or
officers of government institutions to whom protected information is disclosed
to obtain, record, disclose or use the information for certain permitted
purposes including the enforcement of criminal law; the safety or wellbeing of
children; investigatory, disciplinary or employment processes related to the
safety or wellbeing of children; or for a purpose prescribed by the rules. As
this provision involves the disclosure of protected information (including
personal information), this provision also engages and limits the right to
privacy.
2.106
The previous human rights analysis of the 2018 Bill noted that, like the
scheme operator's public interest disclosure power, this provision does not
require the employee or officer of the institution to consider the impact the
disclosure may have on the person to whom the information relates. This raised
concerns as to whether, with respect to the proportionality of the measure, the
measure is the least rights restrictive approach. The statement of
compatibility does not address this specific new provision and its
compatibility with the right to privacy.
2.107
It was also noted that the provision allows for rules to introduce new
purposes for which employees or officers of government institutions may
disclose information. This also raised concerns as to proportionality. This is
because international human rights law jurisprudence states that laws
conferring discretion or rule-making powers on the executive must indicate with
sufficient clarity the scope of any such power or discretion conferred on
competent authorities and the manner of its exercise.[110] Without sufficient safeguards, broad powers may be exercised in such a way as
to be incompatible with human rights. Further information from the minister
would therefore assist in determining whether this additional disclosure power
is a proportionate limitation on the right to privacy.
2.108
The committee therefore sought the advice of the minister as to the
compatibility of additional disclosure authorisations for employees or officers
of government institutions in section 97 with the right to privacy.
Minister's response
Public interest disclosure power of the scheme operator
2.109
In relation to the public interest disclosure power in section 95 of the
bill, the minister states:
Section 95 of the National Act provides that the Scheme
Operator may disclose protected information if the Scheme Operator certifies
that the disclosure is necessary in the public interest. In certifying the
disclosure in the public interest, the Scheme Operator must also act in
accordance with the Rules, which set out detailed requirements for this
certification. In particular, rule 42 expressly requires the Scheme Operator to
have regard to the impact that the disclosure might have on the person to whom
the information relates.
2.110
The further information provided by the minister - that the redress
scheme rules contain an explicit requirement in section 42 that the operator
must have regard to the impact disclosure might have on the person to whom the
information relates - assists in determining the proportionality with the right
to privacy.
2.111
The redress scheme rules also set out the various circumstances in which
a public interest certificate may be given by the operator for the purposes of
disclosure under section 95 of the 2018 Act. Purposes for which a public
interest disclosure certificate can be given include disclosure necessary for:
protecting public revenue;[111] protecting the Commonwealth, States and Territories;[112] proceeds of crime orders;[113] extradition;[114] international assistance in criminal matters;[115] correcting a mistake of fact;[116] ministerial briefings;[117] locating missing persons;[118] locating a relative or beneficiary of deceased persons;[119] research, statistical analysis and policy development;[120] and contacting persons about possible entitlement to compensation.[121] Noting the offence provisions for unauthorised disclosure under the 2018 Bill,[122] and the requirement discussed above that the scheme operator must have regard
to the impact of disclosure on the person to whom the information relates, on
balance and in the context of this particular measure, the measure may be a
proportionate limitation on the right to privacy. However, given the broad
scope of some of the purposes for which a public interest disclosure
certificate can be given, much may depend on how the rules are applied in
practice, and in particular how the potential impact of disclosure on the
person is assessed and applied (for example, whether consideration of the
impact of the disclosure on the person means that personal information is
redacted in appropriate cases).
Disclosure by employees and
officials of government institutions
2.112
In relation to the additional disclosure authorisations for employees or
officers of government institutions in section 97 of the bill, the minister
states:
These disclosure arrangements were included after significant
consultation with the states and territories and key non-government
institutions, who strongly advocated that such disclosure provisions were
essential to enable them to comply with existing state or territory mandatory
reporting laws or reportable conduct scheme requirements, and necessary to support
states to opt in to the Scheme.
Using the Rules to prescribe other permitted purposes rather
than incorporating all elements of the Scheme in the National Act provides
appropriate flexibility and enables the Scheme to respond to matters as they
arise in a timely manner through adapting and modifying the Rules. The Rules do
not currently prescribe any additional permitted purposes and any adaptations
or modifications to the Rules will be agreed by participating states and
territories.
2.113
The minister's response suggests that the purpose of section 97 is to
ensure compliance with existing state or territory mandatory reporting laws. In
the context of this particular measure, and in light of the broader purposes of
disclosure identified in section 97 (enforcement of criminal law and safety and
well-being of children), the measure is likely to pursue a legitimate objective
for the purposes of international human rights law. Enabling disclosure by
employees of the applicable institution also appears to be rationally connected
to these objectives.
2.114
As to proportionality, the minister's response explains that the broad
rule-making power is necessary so as to be able to respond to matters as they
arise and clarifies that any new rules would be required to be agreed by
participating states and territories. These matters suggest that the power to
introduce further purposes of disclosure by way of rules may be capable of
operating in a manner which is necessary and proportionate in this particular
case. However, it is recommended that the disclosure power be monitored to
ensure that any limitation on the right to privacy be no more extensive than
what is strictly necessary.
2.115
Further, the minister's response does not specifically address the
committee's inquiry as to whether section 97 could be amended to include a
positive requirement that the operator must have regard to the impact the
disclosure may have on a person to whom the information relates. However,
having regard to the stated purposes for which disclosure may be permitted and
the accompanying offence provisions for unauthorised disclosure,[123] on balance and in the context of this particular measure the limitation on the
right to privacy appears to be sufficiently circumscribed.
Committee response
2.116
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.117
The committee notes the further information from the minister
that rule 42 of the National Redress Scheme for Institutional Child Sexual
Abuse Rules 2018 requires the scheme operator to have regard to the impact
disclosure might have on the person to whom the information relates when
determining whether disclosure is necessary in the public interest.
2.118
In light of the further information from the minister and having
regard to the committee's conclusion at [2.174] of Report 2 of 2018 and
the redress scheme rules, the committee considers that, on balance, the
public interest disclosure power in section 95 of the 2018 Bill may be a
proportionate limitation on the right to privacy.
2.119
In light of the further information from the minister, the
committee considers section 97 of the 2018 Bill may be a proportionate
limitation on the right to privacy.
2.120
The committee recommends that the operator's disclosure powers be
monitored by government to ensure that any limitation on the right to privacy is
no more extensive than what is strictly necessary.
Entitlement to receive redress under the national redress scheme: special
rules for persons with serious criminal convictions
2.121
Section 63 of the 2018 Bill introduces a special assessment procedure
for persons with 'serious criminal convictions', which applies when a person
has been 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.[124] Section 63(2) provides that a person is not entitled to redress under the
scheme unless there is a determination by the scheme operator that the person
is not prevented from being entitled to redress. Section 63(5) provides:
(5) The
Operator may determine that the person is not prevented from being entitled to
redress under the scheme if the Operator is satisfied that providing redress to
the person under the scheme would not:
- bring the scheme into disrepute; or
- adversely
affect public confidence in, or support for, the scheme.
2.122
As soon as practicable after becoming aware of the person's sentence,
the scheme operator is required to consider whether to make a determination and
give a written notice to the relevant 'specified advisor'[125] from the Commonwealth or participating State or Territory, requesting that the
specified advisor provide advice about whether a determination should be made
and setting a timeframe within which to provide that advice.[126]
2.123
Section 63(6) additionally provides that, when making a determination,
the Operator must take into account:
- any
advice given by a specified advisor in the period referred to in the notice;
and
- the nature of the offence; and
- the length of the sentence of imprisonment; and
- the length of time since the person committed the
offence; and
- any rehabilitation of the person; and
- any other matter that the Operator considers is
relevant.
2.124
Section 63(7) provides that, when taking into account the matters
referred to above, the operator must give greater weight to any advice that is
given by a specified advisor from the jurisdiction in which the abuse occurred,
in the period referred to in the notice, than to any other matter.
Compatibility of the measure with
the right to equality and non-discrimination
2.125
The right to equality and non-discrimination in the International
Covenant on Civil and Political Rights (ICCPR) provides that everyone is entitled
to enjoy their rights without discrimination of any kind, and that all people are
equal before the law and entitled without discrimination to the equal and non-discriminatory
protection of the law.[127] Articles 1, 2, 4 and 5 of the International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD) further describe the content of this
right and the specific elements that state parties are required to take into
account to ensure the elimination of discrimination on the basis of race,
colour, descent, or national or ethnic origin.
Racial discrimination
2.126
'Racial discrimination' is defined in article 1(1) of ICERD to mean:
any distinction, exclusion, restriction or preference based
on race, colour, descent, or national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise, on an
equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.
2.127
Thus, racial discrimination can be direct (that is, have a discriminatory
purpose) or indirect (that is, have a discriminatory effect on the enjoyment of
rights).[128] Accordingly, treatment which disproportionately affects members of a particular
racial group will amount to differential treatment based on race for the
purpose of international human rights law.
2.128
As acknowledged in the statement of compatibility, Aboriginal and Torres
Strait Islander peoples are over-represented in the criminal justice system and
are sentenced to custody at a higher rate than non-Indigenous defendants.[129] The measure may therefore indirectly discriminate on the basis of race due
to the disproportionate negative impact of the measure on Aboriginal and Torres
Strait Islander peoples.[130]
Criminal record
2.129
The United Nations
Human Rights Committee has not considered whether having a criminal
record is a relevant personal attribute for the purposes of the prohibition on
discrimination in Article 26 of the ICCPR.
However, relevantly, the European Court of Human Rights has interpreted the
prohibition on discrimination on the grounds of 'other status' to include an
obligation not to discriminate on the basis of a criminal record.[131] While this jurisprudence is not
binding on Australia, the case law from the Court is useful in considering
Australia's obligations under similar provisions in the ICCPR.[132] Limiting
the entitlement to redress for persons with a criminal record accordingly may
also engage and limit the right to equality and non-discrimination on this
basis.
Limitations on the right to
equality and non-discrimination
2.130
Differential treatment will not constitute discrimination if it can be
shown to be justifiable, that is, if it can be shown to be based on objective
and reasonable grounds such that it is rationally connected to, and
proportionate in pursuit of, a legitimate objective. The statement of
compatibility states that the restriction on eligibility of persons with
serious criminal convictions is permissible on the following basis:
restricting eligibility on the basis of criminal history is
necessary to achieve the legitimate aim of the Scheme aligning with community
expectations around who should receive redress payments from Government, with
flexibility to make relevant persons entitled to redress on a case-by-case
basis, where appropriate to do so. There is a risk the public would not support
a Scheme that paid redress to perpetrators of serious crimes. In particular,
victims of those crimes may strongly object to redress payments being made to
people who have committed crimes against them.
Furthermore, the restriction on survivors with serious
criminal convictions was developed in consultation with State and Territory
Attorneys-General, who were almost unanimous that reasonable limitations on
applications is necessary to uphold public faith and confidence in the Scheme,
and a necessary part of the framework for states to opt-in to the Scheme
(ensuring nationwide access to redress).[133]
2.131
The overall objectives of the redress scheme are to 'recognise and
alleviate the impact of past institutional child sexual abuse and related
abuse' and 'to provide justice for survivors of that abuse'.[134] The previous analysis stated that these are undoubtedly legitimate objectives
for the purposes of international human rights law. However, the objective of
limiting entitlements to persons with serious criminal convictions is narrower
and is stated to be to align this scheme with 'community expectations'.
To be a legitimate objective, the objective must be one that is pressing
and substantial and not one that simply seeks an outcome that is desirable or
convenient. On this basis, the previous analysis raised questions as to whether
'aligning the scheme with community expectations' would be a legitimate
objective for the purposes of international human rights law.
2.132
Further, noting the overall purpose of the scheme to 'recognise and
alleviate the impact of past institutional child sexual abuse' and provide
justice for survivors, the previous analysis also raised questions as to
whether limiting the entitlement of certain persons based on their subsequent
conduct was rationally connected to this objective. It was noted that the Final
Report of the Royal Commission stated the impact of child sexual abuse on a
survivor may manifest itself in 'interconnected and complex ways', including
the development of 'addictions after using alcohol or other drugs to manage the
psychological trauma of abuse, which in turn affected their physical and mental
health, sometimes leading to criminal behaviour and relationship difficulties'.[135]
2.133
There were also concerns as to whether the measure is proportionate.
Important factors in determining whether a measure is proportionate include
whether there is sufficient flexibility to treat individual cases differently
and whether there are less rights restrictive approaches reasonably available.
Section 63 contains a number of provisions that allow a person's individual
circumstances to be taken into account and to provide persons who may have a
serious criminal conviction to be entitled to redress where the operator so
determines. This is an important safeguard and allows for matters such as a
person's rehabilitation to be taken into account.
2.134
However, the starting point for persons who have serious criminal
convictions is that they are not entitled to redress unless a
determination is made by the scheme operator.[136] Even where a scheme operator is satisfied that providing redress to the person
would not bring the scheme into disrepute or adversely affect public confidence
in or support for the scheme, the 2018 Bill (now 2018 Act) provides only that
the operator may determine the person is not prevented from being
entitled.[137] Further, a person's individual circumstances (namely, the nature of the
offence, the length of the sentence of imprisonment, the length of time since
the commission of the offence, and any rehabilitation) are given lesser weight
than advice of the specified advisor.[138] The previous analysis noted that there would appear to be other, less rights
restrictive, measures available.
2.135
Another relevant factor in determining whether safeguards are sufficient
includes whether there is a possibility of monitoring and access to review.[139] It was not clear from the information provided whether determinations by the
scheme operator under section 63(5) are capable of being reviewed either
internally or externally.[140]
2.136
The committee therefore sought
the advice of the minister as to the compatibility of the measure with the
right to equality and non-discrimination, in particular:
- whether the measure is aimed at
achieving a legitimate objective for the purposes of international human rights
law;
- how the measure is effective to
achieve (that is, rationally connected to) that objective; and
- whether the limitation is a
proportionate means of achieving the stated objective (including whether there
are other, less rights restrictive, measures reasonably available, and whether
determinations by the scheme operator under section 63 are able to be
reviewed).
Minister's response
2.137
The minister's response provides the following information in this
regard:
The limitations on applications from people who have
committed serious offences have been included in the National Act [2018 Act] to
ensure integrity of and public confidence in the Scheme, and to prevent further
traumatising victims or survivors of serious or harmful crimes. These
arrangements were developed in consultation with state and territory Redress
Ministers, who agreed that reasonable limitations on such applications are
necessary to have public confidence in the Scheme, and a necessary part of the
framework for the states and territories to opt in to the Scheme. The
participation of the states, territories and non-government institutions is
integral to ensuring nationally consistent and equal access to effective remedy
for those who have experienced institutional child sexual abuse.
Before being entitled to redress, those with serious criminal
convictions will go through a special, case-by-case assessment under section 63
of the National Act. Determining eligibility by way of special assessment
(including consideration of the nature of the crime committed, the duration of
the sentence, rehabilitation outcomes of the person and broader public interest
issue factors), provides assurance that only those who have committed very
serious, heinous crimes will be prevented from being entitled to redress.
2.138
As noted in the previous analysis, differential treatment (including the
differential effect of a measure that is neutral on its face) will not
constitute unlawful discrimination if the differential treatment is based on
reasonable and objective criteria such that it serves a legitimate objective,
is rationally connected to that legitimate objective and is a proportionate
means of achieving that objective.
2.139
Ensuring that persons who have experienced institutional child sexual
abuse have access to an effective remedy is a legitimate objective for the
purposes of international human rights law. However, there remains a concern
insofar as the limitation on the right to equality and non-discrimination is
stated to be for the purpose of ensuring 'public confidence' in the scheme. As
noted in the previous analysis, international human rights jurisprudence has
held that tolerance and broadmindedness are the hallmarks of a democratic
society, and so restrictions on rights of persons purely based on what might
offend public opinion is not generally considered a legitimate objective.[141] Insofar as the minister indicates that an additional objective of the measure
is to 'prevent further traumatising victims or survivors of serious or harmful
crimes', this could be capable of constituting a legitimate objective. However,
it would have been useful if the minister's response had provided specific
evidence as to the extent to which this is a pressing and substantial concern
in the context of the specific measure.
2.140
As to proportionality, the minister's response does not address the
committee's specific inquiries as to the availability of review of
determinations of the minister made under section 63(5), and by what mechanism.
2.141
Further, while the minister's response states that 'only those who have
committed very serious, heinous crimes will be prevented from being entitled to
redress', the language of the 2018 Bill (now 2018 Act) is broader. 'Serious criminal
conviction' is broadly defined to mean a sentence of five years or longer. As
noted in the previous analysis, the starting point for persons who have serious
criminal convictions is that they are not entitled to redress unless a
determination is made by the scheme operator. The operator's decision to
determine that the applicant is not prevented from being entitled to redress is
discretionary, and the applicant's circumstances are given lesser weight than
advice of the specified advisor.[142] Noting the potential disproportionate negative impact that the measure may
have on Aboriginal and Torres Strait Islander people (discussed above at [2.128]),
there remain concerns that the measure may be insufficiently circumscribed.
2.142
Further, in order to be proportionate, the measure must be the least
rights restrictive way of achieving a legitimate objective. There would appear
to be other, less rights restrictive measures available in relation to the
measure. This includes: making it a requirement that a person with a serious
criminal conviction is entitled to redress unless a determination
is made that the person receiving redress would bring the scheme into
disrepute, or providing that the operator must determine a person with a
serious criminal conviction is entitled to redress if satisfied that providing
redress under the scheme would not bring the scheme into disrepute, or
providing that an individual's personal circumstances be given equal weight to
the submissions of the specified advisors. Therefore, while in practice the
provision for the scheme operator to determine a person with a serious criminal
conviction is nevertheless entitled to redress may address this concern for
some individuals, there remain concerns as to the proportionality of the
measure as it is drafted.
Committee response
2.143
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.144
The preceding analysis indicates that the measure may be
incompatible with the right to equality and non-discrimination. However, it is
noted that the provision for the scheme operator to determine that a person
with a serious criminal conviction is nevertheless entitled to redress may, in
practice, address this concern for a number of individuals.
2.145
Noting the potential disproportionate negative impact that the
measure may have on particular groups, the committee recommends the special
assessment process for persons with serious criminal convictions be monitored
by government to ensure that it operates in a manner compatible with the right
to equality and non-discrimination.
Compatibility of the measure with
the right to an effective remedy
2.146
Article 2(3) of the ICCPR requires states parties to ensure that persons
whose human rights under the ICCPR have been violated have access to an
effective remedy. States parties are required to establish appropriate judicial
and administrative mechanisms for addressing claims of human rights violations
under domestic law, and to make reparation to individuals whose rights have
been violated. Effective remedies can involve restitution, rehabilitation and
measures of satisfaction – such as public apologies, public memorials,
guarantees of non-repetition and changes in relevant laws and practices – as
well as bringing to justice the perpetrators of human rights violations. Such
remedies should be appropriately adapted to take account of the special
vulnerabilities of certain categories of persons, including, and particularly,
children.
2.147
The redress scheme seeks to provide remedies in response to
historical failures of the Commonwealth and other government and non-government
organisations to uphold human rights obligations, including the right of every
child to protection by society and the state,[143] and the right of every child to protection from all forms of physical and
mental violence, injury or abuse (including sexual exploitation and abuse).[144] Insofar as persons with serious criminal convictions may be precluded from
accessing redress, restrictions on the entitlement of survivors with serious
criminal convictions engages the right to an effective remedy.
2.148
The statement of compatibility does not specifically address the
entitlement of survivors with serious criminal convictions from the perspective
of the right to an effective remedy. For the same reasons as those discussed
above in relation to the right to equality and non-discrimination, the previous
analysis raised questions as to whether restricting the entitlement to redress
of survivors with serious criminal convictions is compatible with the right to
an effective remedy.
2.149
The committee therefore sought
the advice of the minister as to the compatibility of the special assessment
process for persons with serious criminal convictions with the right to an
effective remedy.
Minister's response
2.150
In response, the minister states:
These arrangements do not contravene the right to effective
remedy, as people with serious criminal convictions will still have the
opportunity to apply for redress under the Scheme. The Scheme Operator will
determine the person's application on a case-by-case basis and only prevent
entitlement to redress where the person would bring disrepute to the Scheme or
affect the public's confidence in the Scheme. This balances the need to allow
everyone to apply to the Scheme, with the need to give integrity and public
confidence to the Scheme by placing some limitations on applications from
people who themselves have committed serious and harmful offences.
2.151
While it is acknowledged that persons who are survivors of institutional
child sexual abuse will still be able to apply for redress, as noted earlier
concerns remain insofar as the default position under the bill is that such
persons will not be entitled to redress unless the operator exercises their discretion
in accordance with section 63. A person's entitlement to redress being a
matter of discretion of the operator raises concerns as to compatibility with
the right to an effective remedy. This is particularly so as the UN Human
Rights Committee has stated that while limitations may be placed in particular
circumstances on the nature of the remedy provided (judicial or otherwise),
states parties must comply with the fundamental obligation to provide a remedy
that is effective.[145] However, it is acknowledged that the provision for the scheme operator to
determine a person with a serious criminal conviction is nevertheless entitled
to redress may, in practice, address this concern for a number of individuals.
Committee response
2.152
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.153
In light of the preceding analysis and noting that survivors of
institutional child sexual abuse with serious criminal convictions will not be
entitled to redress unless the operator makes a determination, there is a risk
that the measure may operate in a manner that may be incompatible with the
right to an effective remedy. However, it is acknowledged that the provision
for the scheme operator to determine that a person with a serious criminal
conviction is nevertheless entitled to redress may, in practice, address this
concern for a number of individuals.
Access to redress under the national redress scheme for persons in gaol
2.154
Section 20(1)(d) of the 2018 Bill (now 2018 Act) provides a person
cannot make an application for redress under the scheme if the person is in
gaol.[146] Sections 20(2) and (3) provide that the restriction on applying for persons in
gaol does not apply if the operator determines in accordance with requirements
prescribed by the rules that there are 'exceptional circumstances justifying
the application being made'.
2.155
Section 14 of the redress scheme rules sets out the requirements for
determining exceptional circumstances justifying an application when a person
is in gaol. The rules provide that, before making a determination that there
are exceptional circumstances justifying the making of an application, the
operator must give a notice to the relevant state or territory Attorney-General[147] requesting advice and information about whether the operator should make a
determination. The operator is required to consider any advice from the
relevant Attorneys-General and 'any other matter that the Operator considers is
relevant to the question of whether the determination should be made'.[148] The operator must give greater weight to advice of the Attorney-General of the
state or territory in which the abuse occurred than any other matter.[149] Section 14(2) of the rules provides that the requirements do not apply if the
person is so ill that it is reasonable to expect the person will not be able to
apply for redress after ceasing to be in gaol or is expected to remain in gaol
after the scheme sunset day.[150]
Compatibility of the measure with
the right to equality and non-discrimination and the right to an effective
remedy
2.156
Persons who are in prison continue to enjoy all of the rights and
freedoms guaranteed under international human rights law except for those that
are demonstrably necessitated by the fact of incarceration (such as the right to
liberty).[151] The matters discussed above in relation to the limitation on persons with
serious criminal convictions applying for redress apply equally to persons who
are incarcerated. That is, the overrepresentation of Aboriginal and Torres
Strait Islander peoples in the criminal justice system means that precluding
persons who are incarcerated from making an application is likely to
disproportionately negatively affect Aboriginal and Torres Strait Islander
survivors of sexual abuse, raising concerns as to the compatibility of the
measure with the right to equality and non-discrimination. By precluding
persons who are incarcerated from applying for redress, the measure may also
discriminate on the basis of criminal record. The UN Committee on Economic, Social
and Cultural Rights has specifically noted that the denial of a person's legal
capacity because she or he is in prison may constitute discrimination on the
basis of 'other status'.[152] The measure also engages the right to an effective remedy by limiting the
ability of persons who are incarcerated to access redress under the scheme.
2.157
The statement of compatibility emphasises that persons will be able to
make an application for redress if they are not in gaol at some point during
the 10 years of the redress scheme.[153] Section 20 therefore does not remove a person's entitlement or eligibility for
redress but rather precludes that person from making an application during
their period of incarceration, and to this extent for most incarcerated
survivors otherwise entitled and eligible for redress the measure would be a
practical limitation on the right to equality and non-discrimination and the
right to an effective remedy during their period of incarceration.
2.158
The statement of compatibility does not specifically address this aspect
of the 2018 Bill in light of the right to equality and non-discrimination and
the right to an effective remedy. However, the statement of compatibility does
provide some information as to why the restriction is necessary and
permissible:
This restriction is necessary as the Scheme will be unable to
deliver appropriate Redress Support Services to incarcerated survivors, which
may make it more difficult for those survivors to write an application, or for
those survivors to understand the implications of releasing responsible
participating institutions from liability for sexual abuse and related
non-sexual abuse within the scope of the Scheme. Additionally, institutions may
not be able to deliver an appropriate direct personal response to a survivor if
that survivor is incarcerated. As the Scheme will run for 10 years, survivors
who are incarcerated for a short period of time will be able to apply when they
are no longer incarcerated. In a closed institutional setting there will also
be greater difficulty maintaining survivor privacy and confidentiality.
Additionally, survivors who are incarcerated for longer
periods of time (i.e. five or more years) may not be entitled to redress as a
result of their custodial sentence (detailed above) in the first instance.[154]
2.159
The initial analysis acknowledged that there may be practical issues
associated with delivering appropriate support services to incarcerated
survivors. However, while the statement of compatibility identifies some of the
challenges associated with providing redress to incarcerated survivors, the
statement of compatibility does not otherwise identify how the restriction
pursues a legitimate objective for the purposes of international human rights
law.
2.160
There may also be concerns as to proportionality. In particular, while
section 20 allows the operator to override the restriction on incarcerated
persons applying, this may only occur in 'exceptional circumstances'. The
statement of compatibility provides examples of what constitutes an exceptional
circumstance for overriding this provision, including 'because they will be in
gaol during the last two years of the Scheme, or they are terminally ill'.[155] However, this was not apparent from the bill itself which refers only to
requirements prescribed by the rules.[156] The content of the rules, described above, was not available at the time of the
committee's initial consideration.
2.161
The committee therefore sought
the advice of the minister as to the compatibility of the measure with the
right to equality and non-discrimination, in particular:
- whether the measure is aimed at
achieving a legitimate objective for the purposes of international human rights
law;
- how the measure is effective to
achieve (that is, rationally connected to) that objective; and
- whether the limitation is a
proportionate means of achieving the stated objective (including whether there
are other, less rights restrictive, measures reasonably available, and whether
determinations by the scheme operator under section 20 are able to be reviewed).
2.162
The committee also sought the
advice of the minister as to the compatibility of the measure with the right to
an effective remedy.
Minister's response
2.163
In relation to the compatibility of the measure with the right to
equality and non-discrimination, the minister states:
The restriction on applications from people in gaol has been
included in the National Act as the ability to deliver appropriate Redress
Support Services to incarcerated survivors is limited. Limited access to
support services may make it more difficult for those survivors to write an
application, or for those survivors to understand the implications of releasing
responsible participating institutions from liability for sexual abuse and
related non-sexual abuse within the scope of the Scheme. Additionally,
institutions may not be able to deliver an appropriate direct personal response
to a survivor if that survivor is incarcerated. In a closed institutional
setting there will also be greater difficulty maintaining survivor privacy and
confidentiality, particularly considering the Scheme's content matter.
The Scheme includes important safeguards not to discriminate
against those in gaol. People who cannot make an application because they are
in gaol will be able to apply once they are released. As the Scheme will run
for 10 years, many people will be able to apply once they are released, with
the full support of the Redress Support Services. The Scheme Operator can also
determine that there are exceptional circumstances that justify an application
being made from a person in gaol. These exceptional circumstances may include
where a person will be in gaol beyond the Scheme sunset day, or if the person
is so ill or frail that they would not be able to make an application when they
are released.
2.164
In relation to the compatibility of the measure with the right to an
effective remedy, the minister states:
This measure does not contravene the right to effective
remedy, as people will be able to apply for redress once they are released from
gaol. For those who will not have the opportunity to apply when they are
released, either because they are so ill that they may not be able to make an
application when they are released, or if they are expected to remain in gaol
after the Scheme sunset day, the Scheme Operator can determine that exceptional
circumstances apply that justify the application from gaol being made.
2.165
The minister's response provides further information as to the purpose
of limiting a person's ability to apply for redress while in gaol, and on
balance the purpose of ensuring that survivors receive appropriate support
services during the application process is likely to be a legitimate objective
for the purposes of international human rights law. Precluding a person from
applying during their period of incarceration (but otherwise not precluding
their entitlement or eligibility to redress) also appears to be rationally
connected to this objective.
2.166
As to proportionality, the effect of section 20 is not to remove a
person's entitlement or eligibility for redress but rather to preclude that
person from making an application during their period of incarceration. As a
result, for most individuals the measure will be only a practical limitation on
the right to equality and non-discrimination and effective remedy during their
period of incarceration.
2.167
For persons who have 'exceptional circumstances', the minister's
response indicates that such persons will be able to apply for redress if the
operator makes a determination to that effect. In particular, the explanatory
statement to the redress scheme rules explains that it is the policy intent of
the rules that where one of the circumstances of subsection 14(2) of the
redress scheme rules is satisfied (that is, where the person will be too ill to
apply for redress upon release from gaol or will remain in gaol until after the
scheme sunset day), the operator will determine that exceptional circumstances
exist which would allow the person to make an application for redress. On
balance, the information provided by the minister and in the explanatory
materials indicates that the measure may be compatible with the right to
equality and non-discrimination and the right to an effective remedy. However,
noting that the operator is not required to determine that exceptional
circumstances exist where a person is too ill to apply upon release from gaol
or will remain in gaol after the scheme sunset day, the practical operation of
the measures should be monitored so as to ensure the measure is compatible with
human rights in its implementation.
Committee response
2.168
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.169
The information provided from the minister and in the explanatory
materials indicates that the measure may be compatible with the right to
equality and non-discrimination and the right to an effective remedy. However,
the practical operation of the measures should be monitored so as to ensure the
measure is compatible with human rights in its implementation.
Entitlement to receive redress under the national redress scheme: persons
subject to a security notice
2.170
The 2018 Bill also introduces special rules excluding entitlement to
redress for persons subject to security notices from the Minister for Home
Affairs. Section 64 provides that a person is not entitled to redress under the
scheme while a security notice is in force in relation to the person. Section 65(1)
provides that the Home Affairs Minister may give the minister a written notice
(a security notice) if:
- the Foreign Affairs Minister gives the Home Affairs
Minister a notice under subsection 66(1) in relation to the person;[157] or
- 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 that the person is directly or indirectly a
risk to security (within the meaning of section 4 of the Australian Security
Intelligence Organisation Act 1979);[158] or
- the person’s visa is cancelled under section 134B of the Migration Act 1958 (emergency cancellation on security grounds) and the
cancellation has not been revoked because of subsection 134C(3) of that Act; or
- the person's visa is cancelled under section 501 of the Migration
Act 1958 and there is an assessment by the Australian Security Intelligence
Organisation that the person is directly or indirectly a risk to security
(within the meaning of section 4 of the Australian Security Intelligence
Organisation Act 1979).
2.171
Before giving a security notice, the Minister for Home Affairs must have
regard to the extent (if any) that 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 Minister for Home Affairs is aware of
that extent.[159] Security notices must be reviewed annually,[160] and the home affairs minister may revoke a security notice.[161]
2.172
Section 20(b) of the 2018 Bill additionally provides that a person
cannot make an application for redress under the scheme if a security notice is
in force against the person.
Compatibility of the measure with
the right to an effective remedy
2.173
Restrictions on the entitlement of survivors who are subject to a
security notice engage the right to an effective remedy as such persons may be
precluded from obtaining redress.
2.174
The statement of compatibility does not address whether this measure is
compatible with the right to an effective remedy. However, it provides the
following information about why precluding persons subject to security notices
is necessary:
This limitation is necessary to ensure that redress funds are
not given to persons who may prejudice Australia's national security interests,
or may use funds for purposes against Australia's security interests.[162]
2.175
The explanatory memorandum further explains that:
These provisions ensure that those individuals assessed to be
engaged in politically motivated violence overseas, fighting or actively
supporting extremist groups, or that the individual would be likely to engage
in conduct that might prejudice the security of Australia or a foreign country,
would not be entitled to redress under the scheme.[163]
2.176
However, while national security may generally constitute a legitimate
objective to limit human rights, Australia is still obliged to provide an
effective remedy for breaches of the ICCPR. The committee therefore sought the
advice of the minister as to the compatibility of the restriction with the
right to an effective remedy.
Compatibility of the measure with
the right to a fair trial and fair hearing
2.177
Article 14(1) of the ICCPR requires that in the determination of a
person's rights and obligations in a 'suit at law', everyone shall be entitled
to a fair and public hearing
by a competent, independent and impartial tribunal established by law.
2.178
The concept of 'suit at
law' encompasses judicial procedures aimed at determining rights and
obligations, equivalent notions in the area of administrative law and also
extends to other procedures assessed on a case-by-case basis in light of the
nature of the right in question.[164]
2.179
As acknowledged in the statement of compatibility to the 2018 Bill, a
determination of a person's entitlement to redress as a result of sexual abuse,
and a finding of responsibility on the part of institutions for such abuse,
involves the determination of
rights and obligations and is likely to constitute a 'suit at law'.[165] In relation to a security notice, removing a person's entitlement to
redress while a security notice is in force in relation to the person[166] may similarly engage fair trial and fair hearing rights. For example, it is
possible that a security notice may be in force in relation to a person for the
entire duration of the scheme, removing an otherwise entitled person's
entitlement to redress entirely. The application or continuance of a security
notice may therefore similarly involve a determination of the person's rights
and obligations.
2.180
If the security notice process were to constitute a 'suit at law', there
may be fair trial and fair hearing concerns, as it is unclear whether persons
subject to the notice have the benefit of any hearing where, for example, they
may be able to make representations to the Minister for Home Affairs or the Minister
for Foreign Affairs as to whether a security notice should be given, or as part
of the annual review process, or in determining whether a security notice
should be revoked.
2.181
The committee therefore sought
the advice of the minister as to the compatibility of the security notice
procedures with fair trial and fair hearing rights under Article 14 of the
ICCPR.
Minister's response
2.182
In relation to the compatibility of the restrictions on the entitlement
of survivors who are subject to a security notice with the right to an
effective remedy, the minister states:
The National Act [2018 Act] includes provisions that restrict
a person's access to redress where it may prejudice the security of Australia
or a foreign country. 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. It is not intended that every person whose
passport or visa has been refused or cancelled would not be entitled to access
redress, rather only in cases where it is appropriate or justified on security
grounds.
These provisions provide consistent powers for the Australian
Government to deal with the threat of terrorism within Australia and that posed
by Australians who participate in terrorist activities overseas. These are also
standard arrangements that 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).
While not entitled to apply for redress, a person subject to
a security notice who has suffered sexual abuse may still be able to pursue a
civil claim to seek remedy for the abuse suffered. Should that person no longer
be subject to a security notice, that person will then be entitled to apply for
redress under the Scheme, should they satisfy other entitlement requirements.
2.183
The minister's response identifies that only a narrow category of
persons whose passport or visa has been refused or cancelled would fall within
the scope of the security notice provisions (see also [2.170] and [2.171]
above).[167] As noted in the initial analysis, while limitations may be placed in particular
circumstances on the nature of the remedy provided (judicial or otherwise),
state parties must provide a remedy that is effective where there has been a
violation of human rights under the ICCPR. In this case, precluding a person's
entitlement to redress where they are subject to a security notice applies to all
elements of the redress scheme (the monetary payment, access to counselling and
psychological services, and a direct personal response), not merely (for
example) removing a person's entitlement to monetary payments. Therefore, while
the scope of persons who may be subject to the security notice is very narrow,
there remains a small risk that a survivor of institutional child sexual abuse
who is subject to a security notice may not receive an effective remedy.
However, as noted in the minister's response, such persons may still be able to
pursue a civil claim to seek a remedy providing that the claim is not outside
the statute of limitations in the relevant jurisdiction.[168]
2.184
As to the compatibility of the security notice procedures with fair
trial and fair hearing rights, the minister provides the following information:
A person subject to a security notice seeking to apply for
redress will not be able to seek internal review of their entitlement for
redress, as they are not entitled by way of a security notice as determined and
decided by the Minister for Home Affairs. However, as section 69 of the
National Act [2018 Act] outlines, the Minister for Home Affairs is required to
review the application of a security notice every 12 months, and as outlined in
section 70 of the National Act, may revoke a security notice.
The right to judicial review of the determination of a
security notice is maintained, and is not limited by the National Act. Judicial
review under section 75(v) of the Constitution is maintained and where such a
suit is initiated, a person will be entitled to a fair and public hearing by an
independent and impartial tribunal. A person subject to a security notice will
also maintain existing judicial review rights in the Administrative Appeals
Tribunal in relation to the issuing of an adverse security assessment or the
decision to cancel a passport.
2.185
To the extent fair trial and fair hearing rights may be limited by the
bill, it appears that any such limitation is pursued on the basis of protecting
Australia's national security interests. This would be a legitimate objective
for the purposes of international human rights law. In relation to
proportionality, noting the requirement to review the security notice every 12
months, the minister's ability to revoke the notice, and the continued
availability of judicial review for the determination and for the underlying
security notice, on balance and in the context of the particular scheme, the
measure appears to be compatible with fair trial and fair hearing rights.
Committee response
2.186
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.187
In relation to the right to an effective remedy, there remains a
small risk that a survivor of institutional child sexual abuse who is subject
to a security notice may not receive an effective remedy.
2.188
Based on the further information provided by the minister, the
measure appears likely to be compatible with fair trial and fair hearing
rights.
Entitlement to receive redress under the national redress scheme: child
applicants
2.189
For children who will turn 18 years before the scheme sunset day, who
make an application for redress, there is a special process for such applicants
to be prescribed by the redress scheme rules.[169] As a result of these provisions, the 2018 Consequential Amendments Bill (now 2018
Consequential Amendments Act) exempts the 2018 Bill (now 2018 Act) from the Age
Discrimination Act 2004.[170]
Compatibility of the measure with
the right to equality and non-discrimination and the right to an effective
remedy
2.190
The relevant principles relating to the right to equality and
non-discrimination are set out at [2.125] above. While 'age' is not listed as a
prohibited ground of discrimination in Article 26 of the ICCPR, the UN Human
Rights Committee has stated that a distinction related to age which is not based
on reasonable and objective criteria may amount to discrimination based on the
ground of 'other status'.[171] Additionally, the Convention on the Rights of the Child (CRC) requires states
parties to respect and ensure rights under the CRC to each child without
discrimination.[172] This includes an obligation to ensure that children are protected against all
forms of violence and all forms of sexual abuse without discrimination.[173] The relevant principles relating to the right to an effective remedy are set
out above.
2.191
While the statement of compatibility states that the CRC 'does not
explicitly exclude different processes based on age',[174] the different application process for child applicants directly engages the
right to equality and non-discrimination. By providing for a special
application process for children who will turn 18 before the scheme sunset day,
the measure also engages the right to an effective remedy.
2.192
The statement of compatibility provides information as to why the
different application process is necessary and permissible:
The restriction on some children applying for redress, and
the special process for how children's applications are treated, is necessary
to protect those children’s interests. As a requirement of the Scheme is to
release responsible participating institutions from any liability for sexual
abuse and related non-sexual abuse within the scope of the Scheme (restricting
their right to later pursue civil litigation), it is necessary to ensure that
the effect of the release is fully understood. Survivors who are children are
unlikely to be able to fully comprehend the implications of such a decision,
especially when the impact of their abuse may not have been fully realised yet.
Furthermore, a component of the application process is for
survivors to articulate the impact that the relevant abuse has had on them. As
the impact of child abuse in a person’s early years may not be realised until
later in the person’s life, an application submitted as a child may not contain
the relevant detail. Similarly, a child survivor’s ability to articulate
their experience would likely increase with age. While children who will turn
18 years of age before the Scheme sunset day are able to make an application
for redress as a child, it is important that they are able to provide the
Operator with updated information once they are an adult, which the special
process will allow.
Whilst other avenues to include children, such as requiring
them to have a nominee arrangement were considered, numerous stakeholders
raised concerns about nominees not making decisions in the best interests of
the survivor, or not using redress payments for the benefit of the survivor.
Additionally, even if the Scheme were to require that payments go into a trust
account, the necessary interaction with the minor’s parent or guardian would
present complexities. Some minors who have been sexually abused in an
institutional setting may have fractured relationships with their parents or
guardians, and may remain in out of home care. Due to these relationships, the
minor may not trust that their parent or guardian will make choices in their
best interest.
The special process described strikes the right balance
between safeguarding the interests of children whilst allowing them to have some
indication of their likely redress entitlement. This will allow these children
to pursue a range of different options. Some survivors may wait until they turn
18 in order to access redress, whilst others (supported by their parent/ or
guardian/s) may choose to pursue civil litigation.
...
Child survivors and their families, including both those who
are unable to access redress under the Scheme and those who have to wait until
they are 18 to receive a redress determination, will be able to access the
Scheme’s community support services, as well as legal support services to
receive advice about available options outside of the Scheme.[175]
2.193
The information provided by the minister indicates that the measure has
been introduced so as to protect the best interests of the child and has been
considered appropriate in light of other, less rights restrictive, options.
This is relevant to the compatibility of the measure with the right to equality
and the right to an effective remedy.
2.194
However, there were concerns as to whether the broad power to determine
the special process for child applicants by way of rules is compatible with
these rights. This is because, as discussed earlier, in the absence of
sufficient safeguards, the broad scope of the power to determine a person's
entitlement to eligibility or ineligibility could be exercised in such a way as
to be incompatible with human rights. Further information was required as to
the proposed content of the redress scheme rules as it relates to the special
process for child applicants so as to determine whether the application process
as it applies to children is compatible with the right to an effective remedy
and the right to equality and non-discrimination.[176]
2.195
The committee sought further information as to the proposed process for
child applicants, including:
- a copy of the proposed rules
prescribing the process for child applicants (or, if no copy was available, a
detailed outline of the proposed rules); and
-
information as to safeguards in
the proposed rules to protect the right to an effective remedy and the right to
equality and non-discrimination (including whether the rules will be subject to
disallowance or other parliamentary oversight, and whether decisions by the
operator pursuant to the rules will be capable of being reviewed).
Minister's response
2.196
In response, the minister provides the following information about the redress
scheme rules made under the 2018 Act:
Section 15 of the Rules deals with applications by a child.
The process contained in this section is consistent with the right to an
effective remedy and the right to equality and non-discrimination. The
intention of this process is to allow the child, in the months prior to turning
18, to provide further detail about the abuse related to their application and
the impact of the abuse, which may not have been realised at the time they
submitted their application due to their young age. This process also allows
the Scheme Operator to make a more fully informed determination regarding the
child's eligibility for redress as soon as practicable after they turn 18.
As stated in the human rights statement of compatibility
accompanying the National Act [2018 Act], prior to turning 18 child applicants
will be given an indication of their likely redress entitlement. The purpose of
this is to provide information to the child to pursue a range of different
options, if they so choose. Some may wait until they turn 18 in order to access
redress, whilst others (supported by their parent/s or guardian/s) may choose
to pursue civil litigation. Once a determination to approve, or not approve,
the application has been made, child applicants will be able to seek a review
of the determination, consistent with all other determinations, as outlined in
Chapter 4, Part 4-1 of the National Act.
2.197
The minister's response usefully outlines the rules in place for child
applicants and clarifies that such rules do not preclude entitlement or
eligibility for redress. Based on the information provided and in light of the
content of the redress scheme rules as they relate to applications by children,
the measure is likely to be compatible with the right to an effective remedy
and the right to equality and non-discrimination.
Committee response
2.198
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.199
Based on the information provided, the special application
process for child applicants is likely to be compatible with the right to an
effective remedy and the right to equality and non-discrimination.
Mr Ian Goodenough MP
Chair
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