Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2018
NATIONAL Redress Scheme for institutional child sexual abuse (consequential
amendments) bill 2018
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Hon Dan Tehan MP)
CONTENTS
OUTLINE 3
National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 3
NOTES ON CLAUSES 6
Overview of the National Redress Scheme 7
Chapter 1 - Introduction 10
Chapter 2 - The National Redress Scheme for Institutional Child Sexual
Abuse 18
Chapter 3 - Special rules to deal with exceptional cases 51
Chapter 4 - Administrative matters 57
Chapter 5 - Participating institutions, participating groups and
participating jurisdictions 70
Chapter 6 - Financial matters 88
Chapter 7 - Other matters 99
National Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2018 109
Background 109
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS 113
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2018
NATIONAL Redress Scheme for institutional child sexual abuse (consequential
amendments) bill 2018
OUTLINE
National Redress Scheme for Institutional Child Sexual Abuse Bill 2018
The Bill establishes the National Redress Scheme for Survivors of
Institutional Child Sexual Abuse (the Scheme). The Scheme will commence in
accordance with clause 2 of the Bill and will operate for a period of 10
years.
The Scheme will recognise and alleviate the impact of past child sexual
abuse that occurred in an institutional context by providing three elements
of redress to eligible survivors. Redress under the Scheme consists of a
monetary payment of up to $150,000 as a tangible means of recognising the
wrong survivors have suffered, access to counselling and psychological
services (either through a lump sum payment or through state or territory
based services) and the option to receive a direct personal response from a
responsible institution(s).
The Bill sets out the objects and principles under which the Scheme will
operate, including the requirements for a participating government
institution (that is, Commonwealth institutions, State institutions, and
Territory institutions) and any participating non-government institution
that agrees to participate in the Scheme.
A person will be eligible for redress under the Scheme if the person was
sexually abused as a child prior to 1 July 2018, the abuse occurred inside
a participating state, inside a territory, or outside Australia, one or
more participating institutions are responsible for the abuse, and the
person is an Australian citizen or a permanent resident at the time of
their application.
If the Scheme establishes that a person suffered sexual abuse, any related
non-sexual abuse will also be taken into consideration for the purpose of
determining the amount of the redress payment that the person is entitled
to receive.
Applicants can only make one claim under the Scheme. A person who accepts
an offer of redress will be required to release a responsible participating
institution(s) from liability for sexual abuse and related non-sexual abuse
that is within scope of the Scheme. A person will also be required to
release associates of the responsible institution(s) and institutional
officials (other than an abuser of the person).
The Scheme administration cost (Scheme administration component) will be
based on a proportionate share of the total amount of redress paid to each
person, and is payable by participating institutions.
A review of the operation of the Scheme will commence as soon as possible
after the second and eighth anniversaries of the start of the Scheme.
National Redress Scheme for Institutional Child Sexual Abuse (Consequential
Amendments) Bill 2018
This Bill provides for consequential amendments to be made to Commonwealth
legislation for the purpose of the new Scheme.
Amendments to the Social Security Act 1991 and the Veterans' Entitlements
Act 1986 will ensure the payments are not income tested, and so will not
reduce the income support payments of survivors as a consequence of
receiving a payment under the Scheme.
In addition, amendments are to be made to the Bankruptcy Act 1966 to ensure
payments are quarantined from the divisible property of a bankrupt person.
These amendments have been included to ensure a survivor will receive the
full benefit of their redress payment, and to ensure that the receipt of
the redress payment does not adversely affect a survivor.
This Bill will also exempt decisions made under the Scheme from judicial
review under the Administrative Decisions (Judicial Review) Act 1977. This
amendment will ensure the Scheme remains survivor focused and trauma
informed by maintaining the principles that the Scheme be a low threshold
and non-legalistic process for survivors who have already suffered so much.
These amendments are essential to implement the Scheme's policies and to
ensure timely and appropriate decision making.
The Bill will also include an amendment to the Freedom of Information Act
1982. This amendment will ensure that 'protected information' would not be
required to be disclosed under that Act. This exemption supports the
trauma informed approach of the Scheme, ensuring that survivors'
information is adequately protected. It also protects institutions'
information to protect against fraudulent applications being made to the
Scheme. The exemption protects the integrity of the operation of the
National Redress Scheme, removes any uncertainty about the operation of the
information publication scheme in relation to the assessment framework
policy guidelines, and makes it transparent that protected information
under the National Redress Scheme is exempt under the Freedom of
Information Act 1982.
The Bill will amend Schedule 1 of the Age Discrimination Act 2004 to allow
the exclusion of children applying to the Scheme if they will not turn 18
throughout the life of the Scheme. Applying an age limit to the Scheme
addresses the risk of children signing away their future civil rights when
they may have limited capacity to understand the implications, and when the
impact of the abuse may not fully be realised.
Financial impact statement
The Australian Government committed $33.4 million in the 2017-18 Budget to
establish the Scheme. The ongoing costs of the Scheme were accounted for in
the 2017-18 Mid-Year Economic and Fiscal Outlook. $54.7 million was
reported over the forward estimates, including funding for Redress Support
Services. The remaining funding was not for publication due to legal
sensitivities. The Scheme's funding arrangements will be made available
after commencement through normal reporting mechanisms.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2018
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE (CONSEQUENTIAL
AMENDMENTS) BILL 2018
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
. Administrative Decisions Judicial Review Act means the Administrative
Decisions (Judicial Review) Act 1977.
. Bankruptcy Act means the Bankruptcy Act 1966.
. Criminal Code means the Criminal Code Act 1995.
. Public Governance, Performance and Accountability Act means the Public
Governance, Performance and Accountability Act 2013.
. Regulatory Powers Standard Provisions Act means the Regulatory Powers
(Standard Provisions) Act 2014.
. Royal Commission means the Royal Commission into Institutional
Responses to Child Sexual Abuse established under the Commonwealth
Letters Patent issued on 11 January 2013.
. Scheme means the National Redress Scheme for Institutional Child
Sexual Abuse as established by the National Redress Scheme for
Institutional Child Sexual Abuse Bill 2018.
. Social Security Act means the Social Security Act 1991.
. Veterans' Entitlements Act means the Veterans' Entitlements Act 1986
National Redress Scheme for Institutional Child Sexual Abuse Bill 2018
Background
Overview of the National Redress Scheme
The Bill establishes a National Redress Scheme for survivors of
institutional child sexual abuse that is intended to operate for a 10 year
period from 1 July 2018.
The purpose of the Bill is to implement the joint response of the
Commonwealth Government, the government of each participating State and the
government of each Territory, and each participating non-government
institution's response to the recommendations of the Royal Commission into
Institutional Responses to Child Sexual Abuse's Redress and Civil
Litigation Report. The objective is to recognise and alleviate the impact
of past institutional child sexual abuse, and related non-sexual abuse, and
to provide justice for the survivors of that abuse.
The Scheme provides three elements of redress in the form of a redress
payment, a counselling and psychological services component (which,
depending on where a survivor lives, consists of access to counselling and
psychological services or a monetary payment), and a direct personal
response. Survivors will also have access to legal advice services that
will be provided as part of the Scheme.
The Scheme will cover sexual abuse, and any related non-sexual abuse, that
occurred when the person was a child and where an institution participating
in the Scheme is primarily or equally responsible for the abuse. For abuse
to be within the scope of the Scheme it must have occurred before the
Scheme start day.
The Royal Commission
On 11 January 2013, Letters Patent were issued for a Royal Commission into
Institutional Responses to Child Sexual Abuse. The Royal Commission
inquired into how allegations and incidents of child sexual abuse and
related matters that occurred in an institutional context were managed by
the responsible institutions.
In 2015, the Royal Commission released its Redress and Civil Litigation
Report which recommended, among other initiatives, the establishment of a
national redress scheme for survivors of institutional child sexual abuse.
This Bill introduces a National Redress Scheme for Survivors of
Institutional Child Sexual Abuse.
Commencement
The Scheme will start the day the Act commences.
Entitlement to Redress
Survivors of child sexual abuse are able to apply to the Scheme, provided
they are an Australian citizen or an Australian permanent resident.
The rules may provide for persons with other citizenship status to apply.
This, for example, could include former child migrants who are no longer
residing in Australia, or children abused in Australian institutional
settings outside Australia who are not citizens or permanent residents.
The sexual abuse suffered by the survivor must have occurred when the
person was a child (that is, under the age of 18) and prior to commencement
of the Bill. Sexual abuse includes any act which exposes the person, who is
a child, to, or involves the person in, sexual processes beyond the
person's understanding or capacity to provide consent, or contrary to
accepted community standards. The survivor may also have suffered non-
sexual abuse in connection with the child sexual abuse, which could include
physical abuse, psychological abuse and neglect. Non-sexual abuse will be
taken into consideration as an aggravating factor that contributed to the
severity of the sexual abuse suffered. The sexual abuse, and related non-
sexual abuse, must have occurred inside a participating State, inside a
Territory, or outside Australia, and a participating institution must be
responsible for the abuse.
A person will not be able to apply to the Scheme if: they have already made
an application for redress under the Scheme, a security notice is in force
in relation to the person, they are a child who will not turn 18 before the
Scheme sunset day, they are in gaol, or the application is being made in
the period of 12 months before the Scheme sunset day. If there are
circumstances justifying an application being made from gaol, or in the
period of 12 months before the Scheme sunset day, the Scheme Operator may
allow the application to be made.
Eligibility for redress will be assessed on whether there is a reasonable
likelihood the person suffered sexual abuse as a child in an institutional
setting. A claim can be made at any time from commencement of the Scheme
until 12 months before the closing date of the Scheme, which is 30 June
2028. Applications for redress under the Scheme are limited to one
application per survivor, whether or not that person suffered sexual abuse
in more than one institution. Survivors will be able to include multiple
episodes of sexual abuse and related non-sexual abuse suffered in multiple
institutions in the one application.
Redress consists of three components: a redress payment of up to $150,000,
a counselling and psychological services component, which, depending on
where the person lives, consists of access to counselling and psychological
services or a payment of up to $5,000 and a direct personal response.
Survivors will be able to choose whether to accept one, two or all three of
the components of redress.
The amount of the redress payment will depend on the level of sexual abuse,
and related non-sexual abuse, that a survivor suffered and will be an
amount up to a maximum of $150,000. The intention of this payment is to
recognise the wrong the person has suffered. A survivor who has accessed
redress under another Scheme, is not excluded from applying for redress
under the Scheme. However, any prior payments made by a participating
institution in relation to the abuse suffered by a survivor that is within
the scope of this Scheme, will be deducted from the amount payable by that
participating institution.
Access to counselling or psychological services is intended to enable
survivors to access trauma-informed and culturally appropriate counselling
or psychological services to assist with the impacts of the sexual abuse
they experienced as a child. If a survivor lives in a jurisdiction that is
not a declared provider of counselling and psychological services under the
Scheme, they will be entitled to a counselling and psychological services
payment of up to $5,000. If the survivor lives in a jurisdiction that is a
declared provider of counselling and psychological services under the
Scheme, then they will be entitled to access those services.
The redress payment or counselling and psychological services payment will
be inalienable and cannot be used to recover debts due to the Commonwealth.
The payment will also not be subject to income tax.
Survivors will also have the opportunity, if they wish, to receive a direct
personal response from the participating institution responsible for the
sexual abuse. The survivor will have the chance to have their abuse
acknowledged, tell their personal story of the abuse they suffered and the
impact of the sexual abuse on them. The format of the direct personal
response may include an apology, an acknowledgement of the impact of the
abuse on the person, an opportunity to meet with an appropriately senior
person from the relevant institution and an assurance as to the steps the
institution takes to protect children in their care against abuse.
Survivors will also be given the opportunity to receive legal assistance
provided by the Scheme, if they wish, before making a decision as to
whether to accept the offer of redress. If an offer of redress is
accepted, the survivor will be required to release the relevant
participating institutions the Operator determines are responsible for the
abuse, from any liability for the sexual abuse and any related non-sexual
abuse, they suffered that is within scope of the Scheme. The survivor will
also be required to release any institutions that are associates of the
responsible institution, and officials of those institutions (other than an
official that was an abuser of the survivor).
In the event that an offer of redress is made to a survivor, but the
survivor dies before accepting the offer, the redress payment will be paid
to the estate of the survivor. However, the other two components of
redress (the counselling and psychological services component and direct
personal response) will not be available to the survivor's estate.
Funding
The Scheme funding arrangements are based on the principle of the
responsible entity pays. The Consolidated Revenue Fund will be
appropriated for the purposes of paying the redress payment and the
counselling and psychological services component of redress under the
Scheme.
Non-Commonwealth entities (participating state and territory institutions
and non-government institutions) will be invoiced quarterly in arrears with
their funding contributions credited to the Consolidated Revenue Fund.
Internal review
Reviews of decisions made under the Scheme are limited to internal review.
This follows the recommendation of the Independent Advisory Council on
redress, appointed by the Prime Minister, which included survivors of
institutional abuse, representatives from support organisations, legal and
psychological experts, Indigenous and disability experts, institutional
interest groups and those with a background in government. The Independent
Advisory Council considered that providing survivors with external review
would be overly legalistic, time consuming, expensive and would risk
further harm to survivors.
The internal review processes will enable applicants to seek review of
determinations on applications for redress. The person conducting the
review must have had no involvement in the original decision and may
affirm, vary or substitute the original decision.
Merits review in the Administrative Appeals Tribunal or judicial review in
the Federal Circuit Court or Federal Court under the Administrative
Decisions Judicial Review Act will not be available to survivors or
participating institutions.
This is considered appropriate as redress is not intended to replicate
civil litigation standards or processes. The Scheme is intended to be an
alternative to civil litigation that avoids the risk of further harm to
survivors. The lower evidentiary thresholds under the Scheme and the broad
discretion of the independent decision-makers mean that merits review and
judicial review under the Administrative Decisions Judicial Review Act are
not appropriate for decisions under the Scheme. The Scheme is to be
supportive, survivor-focussed and non-legalistic and decisions will be made
expeditiously.
Participating institutions will also not have the right to seek a merits or
judicial review under the Administrative Decisions Judicial Review Act of
any decisions made under the Scheme. This is because institutions
participate in the Scheme voluntarily and agree to participate in the
Scheme with the understanding that certain matters will be decided by the
Operator (or delegate).
Chapter 1 - Introduction
Part 1-1 - Introduction
Division 1 - Preliminary
Clause 1 sets out the short title of the Bill as the National Redress
Scheme for Institutional Child Sexual Abuse Act 2018 once it is passed and
commences in accordance with clause 2.
Clause 2 provides that the Bill will commence as follows:
a) if the Bill receives Royal Assent before 1 July 2018 - 1 July 2018; or
b) if the Bill receives Royal Assent on or after 1 July 2018 - on a
single day that is to be specified in a Proclamation instrument.
The clause also provides for a default commencement of the legislation. If
paragraph (a) or (b) do not occur, the whole of the Act will commence the
first day after a six month period that commences on the day the Bill
receives Royal Assent.
Division 2 - Objects of this Bill
Clause 3 sets out the objects of the Bill.
Subclause 3(1) provides that the main objects of the Bill are to recognise
and alleviate the impact of past institutional child sexual abuse and
related abuse and to provide justice for the survivors of that abuse.
Subclause 3(2) states that for the purpose of achieving the objects
mentioned in subclause 3(1) of the Bill, the objects of the Bill are also
to: establish a National Redress Scheme for Institutional Child Sexual
Abuse; provide redress under the Scheme; enable institutions responsible
for abuse of survivors to participate in the Scheme to provide that redress
to those survivors; and implement the joint response of the Commonwealth
Government, and the government of each participating State and Territory to
the recommendations of the Royal Commission in relation to redress.
Subclause 3(2) further specifies that redress consists of: a monetary
payment to survivors as a tangible means of recognising the wrong they have
suffered; access for the survivor to counselling and psychological services
or a monetary payment depending on where the survivor lives; and a direct
personal response to survivors from the participating institutions
responsible.
Division 3 - Simplified outline of this Bill
Clause 4 provides a simplified outline of the Bill.
Part 1-2 - Definitions
Division 1- Simplified outline of this Part
Clause 5 provides a simplified outline of Part 1-2.
Division 2 - The Dictionary
Clause 6 provides a Dictionary that defines various technical words and
phrases used in this Bill. The Dictionary also provides cross references
to specific definitions throughout the Bill.
abuse means sexual abuse or non-sexual abuse.
abuser: a person is defined to be the abuser of another person if the
person has abused the other person.
acceptance document is defined by a cross reference to subclause 42(2).
acceptance period is defined by a cross reference to clause 40.
adoption Act is defined by a cross reference to subclause 144(9).
amendment reference is defined by a cross reference to subclause 144(3).
approved form is defined to mean a form approved under clause 188.
assessment framework is defined by a cross reference to subclause 32(2).
assessment framework policy guidelines is defined by a cross reference
to subclause 33(3).
assistance nominee is defined to mean a person who is appointed as an
assistance nominee under paragraph 81(1)(a).
associate: when a participating institution is an associate of another
participating institution, is defined by a cross reference to subclauses
133(3) and 135(5).
child is defined to mean a person under the age of 18.
civil penalty provision has the same meaning as in the Regulatory Powers
(Standard Provisions) Act 2014.
Commonwealth institution is defined by a cross reference to clause 109.
component of redress means any of the three components of redress
referred to in subclause 16(1).
counselling and psychological component of redress is defined to mean:
a) the counselling and psychological services payment; or
b) access to counselling and psychological services under the Scheme.
counselling and psychological services contribution is defined by a
cross reference to clause 160.
counselling and psychological services payment is defined to mean a
payment payable under subclause 51(3).
declared provider of is defined by a cross reference to clause 146(2).
defunct: an institution is defunct if it is no longer in existence.
direct personal response is defined by a cross reference to subclause
54(2).
direct personal response framework is defined by a cross reference to
subclause 55(2).
eligible is defined by a cross reference to clause 13.
entitled is defined by a cross reference to subclauses 12(2), (3) and
(4).
equally responsible: when a participating institution is equally
responsible for abuse of a person, is defined by a cross reference to
subclauses 15(3), (5) and (6).
express amendment is defined by a cross reference to subclause 144(9).
financial institution is defined to mean a body corporate that is an
authorised deposit-taking institution for the purposes of the Banking
Act 1959.
Foreign Affairs Minister is defined to mean the Minister administering
the Australian Passports Act 2005.
funder of last resort: when a participating government institution is
the funder of last resort for a defunct institution, is defined by a
cross reference to clause 163.
funding contribution is defined by a cross reference to clause 150.
government institution is defined to mean a Commonwealth institution,
State institution or Territory institution.
Home Affairs Minister is defined to mean the Minister administering the
Australian Security Intelligence Organisation Act 1979.
Human Services Department is defined to mean the Department administered
by the Minister administering the Human Services (Centrelink) Act 1997.
incorporated lone institution is defined by a cross reference to
paragraph 124(3)(b).
independent decision-maker is defined by a cross reference to
subclause 185(3).
initial referred provisions is defined by a cross reference to subclause
144(9).
institution is defined to mean: any body, entity, group of persons or
organisation (whether or not incorporated), but does not include family
or an individual.
legal nominee is defined to mean a person who is appointed as a legal
nominee under paragraph 81(1)(b).
listed: when a defunct institution is listed for a participating
jurisdiction, is defined by a cross reference to subclause 164(1).
lone institution is defined by a cross reference to subclause 124(2).
maximum amount is defined by a cross reference to step 1 of the method
statement in subclause 30(2).
National Redress Scheme Agreement is defined to mean the
Intergovernmental Agreement on the National Redress Scheme for
Institutional Child Sexual Abuse, as in force from time to time.
National Redress Scheme Operator is defined by a cross reference to the
definition of Operator.
National Service Standards is defined to mean the National Service
Standards set out in the National Redress Scheme Agreement.
nominee is defined to mean an assistance nominee or a legal nominee.
non-government institution is defined by a cross reference to
subclauses 114(2) and (3).
non-participating State is defined to mean a State that is not a
participating State.
non-sexual abuse includes physical abuse, psychological abuse and
neglect.
officer of the scheme is defined to mean
a) a person in the Department or the Human Services Department
performing duties, or exercising powers or functions, under or in
relation to this Bill (including the Operator); or
b) an independent decision-maker; or
c) a person prescribed by the rules.
official of an institution is defined to mean a person who is or has
been an officer, employee, volunteer or agent of the institution.
Operator (short for National Redress Scheme Operator) is defined to mean
the person who is the Secretary of the Department in the person's
capacity as Operator of the Scheme (as referred to in clause 9).
original determination is defined by a cross reference to paragraph
73(1)(b).
original version of this Act is defined by a cross reference to
subclause 144(9).
participating defunct institution is defined by a cross reference to
clause 117.
participating government institution is defined to mean:
a) a Commonwealth institution; or
b) a participating State institution; or
c) a participating Territory institution.
participating group is defined by a cross reference to clause 133(2).
participating incorporated lone institution is defined by a cross
reference to subclause 124(5).
participating institution is defined by a cross reference to subclauses
108(2) and 116(7).
participating jurisdiction is defined by a cross reference to subclause
143.
participating lone institution is defined by a cross reference to
subclause 124(1).
participating non-government institution is defined by a cross reference
to subclause 114(1).
participating State is defined by a cross reference to clause 144.
participating State institution: is defined by a cross reference to
clause 110.
participating Territory is defined to mean the Australian Capital
Territory or the Northern Territory.
participating Territory institution is defined by a cross reference to
clause 112.
participating unincorporated lone institution is defined by a cross
reference to subclause 124(4).
Permitted purpose is defined by a cross reference to paragraph 97(1)(e).
primarily responsible: when a participating institution is primarily
responsible for abuse of a person is defined by a cross reference to
subclauses 15(2),(5) and (6).
production period is defined by a cross reference to paragraphs 24(3)(c)
and 25(4)(c).
protected information is defined by a cross reference to subclause
92(2).
quarter is defined by a cross reference to subclause 149(2).
reasonable likelihood in relation to a person being eligible for redress
is defined to mean the chance of the person being eligible is real, is
not fanciful or remote and is more than merely plausible.
redress is defined by a cross reference to subclause 16(1).
redress element is defined by a cross reference to clause 151.
redress payment is defined to mean a payment payable under clause 48 or
60.
referral Act is defined by a cross reference to subclause 144(9).
referred national redress scheme matters is defined by a cross reference
to subclauses 145(1) and (2).
Regulatory Powers Act is defined to mean the Regulatory Powers (Standard
Provisions) Act 2014.
related: non-sexual abuse, is defined to mean non-sexual abuse that is
related to the sexual abuse of a person if a participating institution
is responsible for both the sexual abuse and the non-sexual abuse of the
person.
released institution or official is defined by a cross reference to
paragraph 42(2)(c).
relevant prior payment is defined by a cross reference to step 3 of the
method statement in subclause 30(2).
relevant version of this Act is defined by a cross reference to
subclause 144(9).
representative for:
a) a participating defunct institution is defined by a cross reference
to subclauses 118(2), (3), (4) and (5) and 120(4); or
b) a participating lone institution is defined by a cross reference to
subclauses 125(2) and (3) and 128(4); or
c) a participating group is defined by a cross reference to subclauses
136(2), (3), (4) and (5) and 138(4).
responsible: when a participating institution is responsible for abuse
of a person is defined by a cross reference to subclauses 15(1), (5) and
(6).
responsible institution means an institution is a responsible
institution in relation to abuse of a person if the Operator has
determined under paragraph 29(2)(b) that the institution is responsible
for that abuse.
review determination is defined by a cross reference to paragraph
75(2)(b).
rules is defined to mean the rules made by the Minister under clause
179.
saved amount is defined by a cross reference to subclause 50(2) for a
redress payment or subclause 53(2) for a counselling and psychological
services payment.
scheme is defined to mean the National Redress Scheme for Institutional
Child Sexual Abuse established under clause 8.
scheme administration element is defined by a cross reference to
subclause 152(1).
scheme start day is defined to mean the day this Act commences.
scheme sunset day is defined by a cross reference to subclause 193(1).
security notice is defined by a cross reference to subclause 65(1).
sexual abuse of a person who is a child is defined to include any act
which exposes the person to, or involves the person in, sexual processes
beyond the person's understanding or contrary to accepted community
standards.
State institution is defined by a cross reference to clause 111.
State redress mechanism is defined by a cross reference to subclause
145(4).
survivor is defined to mean a person who has suffered sexual abuse that
is within the scope of the Scheme.
Territory is defined to mean a Territory referred to in clause 122 of
the Constitution. The note clarifies that a participating Territory is
a type of Territory, but there are other Territories that are covered by
this definition (for example, the Jervis Bay Territory).
Territory institution is defined by a cross reference to clause 113.
text reference is defined by a cross reference to clause 144(2).
this Act is defined to include the rules and any other instrument made
under this Act.
unincorporated lone institution is defined by a cross reference to
paragraph 124(3)(a).
wholly-owned Commonwealth company is defined as having the same meaning
as in the Public Governance, Performance and Accountability Act 2013.
within the scope: when abuse is within the scope of the Scheme is
defined by a cross reference to clause 14.
Chapter 2 - The National Redress Scheme for Institutional Child Sexual
Abuse
Part 2-1 - Establishment of the Scheme
Division 1 - Simplified outline of this Part
Clause 7 provides a simplified outline of Part 2-1.
Division 2 - Establishment of the Scheme
Clause 8 establishes the National Redress Scheme for Institutional Child
Sexual Abuse.
Clause 9 provides that the National Redress Scheme Operator (the Operator)
is responsible for operating the Scheme. The Operator is the Secretary of
the Department. The Operator may arrange for support and assistance
(including legal assistance) to be provided to a person (including a person
who is an applicant, or prospective applicant, for redress) under the
Scheme and enter into a contract, agreement, deed or understanding on
behalf of the Commonwealth in relation to the Scheme. The Operator may
also vary and administer that contract, agreement, deed or understanding.
The note at the end of subclause 9(3) provides an example of the kind of
assistance the Operator may provide.
Clause 10 provides a set of overarching general principles to guide the
actions of officers under the Scheme.
Subclause 10(1) provides that principles in clause 10 must be taken into
account by the Operator and other officers of the Scheme when taking action
under, or for the purposes of, the Scheme.
Subclause 10(2) provides that redress under the Scheme should be survivor-
focussed. This subclause links to the key objects of the Scheme (clause 3)
which 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.
Subclause 10(3) provides additional principles that the Operator and other
officers taking action under the Scheme have appropriate regard to when
redress is assessed, offered and provided. These principles include:
a) what is known about the nature and impact of child sexual abuse, and
institutional child sexual abuse in particular; and
b) the cultural needs of survivors; and
c) the needs of particularly vulnerable survivors.
Subclause 10(4) provides that redress should be assessed, offered and
provided to avoid, as far as possible, further harm or trauma to the
survivor. Subclause 10(5) provides that redress should be assessed, offered
and provided in a way that protects the integrity of the Scheme.
Part 2-2 - Entitlement to redress under the Scheme
Division 1 - Simplified outline of this Part
Clause 11 provides a simplified outline of Part 2-2.
Division 2 - Entitlement to redress under the Scheme
Clause 12 sets out when a person is entitled to be provided with redress.
Subclause 12(1) provides that a person can only be provided with redress
under the Scheme if the person is entitled to redress.
Subclause 12(2) specifies the requirements that must be satisfied for a
person to be entitled to redress under the Scheme. These are:
a) the person applies for redress under clause 19; and
b) the Operator considers that there is a reasonable likelihood that the
person is eligible for redress under the Scheme (see clause 13 for
eligibility); and
c) the Operator approves the application under clause 29; and
d) the Operator makes an offer for redress to the person under clause 39;
and
e) the person accepts the offer in accordance with clause 42.
Reasonable likelihood is defined in clause 6 to mean that the chance of the
person being eligible for redress is real and not fanciful or remote.
Example: Person A makes an application for redress in the approved form
and verifies the information provided in the application by statutory
declaration. The Operator, after reviewing the application and the
statutory declaration, considers that there is a reasonable likelihood that
the person is eligible, approves their application and makes an offer of
redress. Person A accepts the offer by signing the acceptance document and
is therefore entitled to redress.
Subclause 12(3) provides that a person is entitled to redress, or a
component of redress, under the Scheme if this Bill or the rules prescribe
that the person is entitled to it. The note cross references Part 3-1
which provides for special cases where this Bill prescribes that a person
is entitled to redress, or a component of it (for example, where a person
dies before accepting their offer of redress, the Bill allows for the
redress payment to be made to other persons in certain circumstances).
Subclause 12(4) provides that if this Bill or the rules prescribe that a
person is not entitled to redress, or a component of redress, under the
Scheme then the person is not entitled to it, despite subclauses (2) and
(3). The note cross references Part 3-2 which provides for cases where
this Bill prescribes that a person is not entitled to redress, or a
component of it (for, example, where a person has a security notice in
force against them, they will not be entitled to redress).
Clause 13 sets out when a person is eligible for redress.
Subclause 13(1) provides that a person is eligible for redress under the
Scheme if the person was sexually abused, the sexual abuse is within the
scope of the Scheme, the sexual abuse that could be payable to the person
when worked out under the assessment framework would be more than nil, one
or more participating institutions are responsible for the abuse and the
person is an Australian citizen or a permanent resident (within the meaning
of the Australian Citizenship Act 2007) at the time the person applies for
redress. This eligibility requirement is included to mitigate the risk of
fraudulent claims and to maintain the integrity of the Scheme. It would be
very difficult to verify the identity of those who are not citizens,
permanent residents or within the other classes who may be specified in the
rules. Removing citizenship requirements would likely result in a large
volume of fraudulent claims that would impact application timeliness and
provision of redress to survivors.
Note 1 to subclause 13(1) clarifies that to be eligible for redress, a
person must have been sexually abused. It clarifies that redress is for
the sexual abuse (which must be present) and any related non-sexual abuse,
of the person that is within the scope of the Scheme.
Note 2 to subclause 13(2) cross references subclause 108(2) that sets out
which institutions are participating institutions.
Examples of eligibility for subclause 13(1) of the Scheme:
1. Person B is an Australian permanent resident who suffered sexual abuse
as a child while in a Commonwealth institution before the Scheme start
day. Person B is eligible for redress.
2. Person C is an Australia citizen who suffered physical abuse, but not
sexual abuse, as a child while in the care of a participating
institution, outside Australia before the Scheme start date. Person C
is ineligible for redress as they did not suffer sexual abuse. For
non-sexual abuse to be considered under the Scheme, it has to be
related to the sexual abuse suffered.
3. Person D is an Australian Citizen who suffered sexual abuse at the age
of 19 while in the care of a participating institution, inside
Australia before the Scheme start day. Person D is ineligible for
redress as the sexual abuse did not occur when Person D was a child.
Subclause 13(2) provides that a person is also eligible for redress if this
Bill or the rules prescribe that the person is eligible for redress under
the Scheme.
The findings and recommendations of the Royal Commission identified a
lengthy period over which instances of child sexual abuse in an
institutional context occurred. This means it is not possible, prior to
the Scheme commencing, to identify or quantify the range of persons who are
or should be eligible for redress. The Scheme therefore needs to have
suitable flexibility to analyse each individual application and respond
quickly to survivor needs (declare a person eligible) over the life of the
Scheme.
The need to respond quickly to survivor needs is a key feature of the
Scheme as many survivors have waited decades for recognition and justice.
The use of rules rather than regulations provides the necessary flexibility
to respond more quickly to unforeseen factual matters as they arise,
because rules can be adapted and modified more quickly than regulations or
Acts. Prescribing in the Bill or rules that a person is eligible under the
Scheme confers a benefit on a survivor to receive redress quickly rather
than having to engage in a lengthy civil litigation processes, and
additionally receive a direct personal response of acknowledgement and
apology from a responsible institution, which would not be available
through a litigation process.
Rules made under subclause 13(2) are therefore necessary to ensure that the
Scheme can be appropriately flexible. There may be classes of survivors
that the Scheme has not, or could not, envisage to include in the Bill,
whom can be accommodated via this rule making power. This ensures
participating institutions are able to provide redress to all survivors of
abuse for which the institution is responsible. Governments and entities
who elect to opt in to the Scheme do so to meet the objectives of the
Scheme to ensure survivors prescribed under subclause 13(2) receive the
same acknowledgement and redress as those eligible under subclause 13(1)
where a participating institution is responsible for the abuse and agreed
to participate in the Scheme.
Subclause 13(3) provides that despite a person meeting the eligibility
requirement in subclauses 13(1) and (2), this Bill or the rules may
prescribe that a person is not eligible for redress under the Scheme.
The capacity to prescribe a person is not eligible under the Scheme is
required, as prior to commencement of the Scheme and receipt of
applications, it is not possible to account for every category of person
that should not be eligible for redress under the Scheme. The power under
subclause 13(3) is intended to be used for exceptional cases to respond to
classes of survivors that apply for redress that the Scheme has not, or
could not, envisage would apply and that needed to be specified as not
eligible under the Scheme. This may include circumstances where allowing a
class of persons to be eligible for redress may bring the Scheme into
disrepute or adversely affect public confidence in, or support for, the
Scheme.
Learnings from past schemes have shown it will be necessary to adjust
policy settings to mitigate against unintended outcomes. It is essential
that the Scheme is flexible and adaptable to the realities of
implementation, which requires some provisions, such as eligibility
requirements, to be in the rules. Protections will be in place to balance
this flexibility, including governance arrangements, to provide oversight
of the operation of the Scheme.
The governance arrangements include a Ministerial Redress Scheme Board
(the Board), as set out in the National Redress Scheme Agreement, that will
comprise Ministers from participating States and participating Territories.
The Board must agree to any legislative or key policy changes required
over time, including proposed amendments to the rules.
Clause 14 provides that abuse of a person is within the scope of the Scheme
if the abuse occurred when the person was a child while inside a
participating State, inside a Territory, or outside Australia and the abuse
occurred before the Scheme start day (subclause 14(1)).
A child is defined in clause 6 to mean a person under 18.
Subclause 14(2) provides that this Bill or the rules under the Bill may
prescribe that abuse is within the scope of the Scheme.
Subclause 14(3) provides that, despite subclauses (1) and (2), this Bill or
the rules may prescribe abuse that is not within the scope of the Scheme.
Allowing the rules to prescribe types of abuse that is, or is not, within
the scope of the Scheme makes it clear to potential applicants the
instances of abuse that are not covered by the Scheme.
Initially, the rules will prescribe that where a person has received a
favourable court award (excluding a settlement) in respect of abuse, that
abuse is not within the scope of the Scheme insofar as the relevant
participating institution is responsible for the abuse.
Clause 15 sets out when a participating institution is responsible for
abuse.
Subclause 15(1) provides that an institution (whether or not a
participating institution) is responsible for sexual abuse or non-sexual
abuse of a person if the institution is primarily responsible or equally
responsible for the abuse.
Subclause 15(2) provides for when an institution will be primarily
responsible for sexual abuse and any non-sexual abuse of a person.
Responsibility will arise if the institution is solely or primarily
responsible for the abuser having contact with the person.
Examples:
1. Person A was abused in a church where the abuser was a priest at the
church, and there was otherwise no connection to any other
organisation. The church is likely to be considered to be primarily
responsible for the abuse.
2. Person B was abused whilst participating in activities at a local
sporting club, where the abuser was their coach. The sporting club
received Territory government funding. The sporting club is likely to
be primarily responsible for the abuse. The Territory only provided
funding to the sporting club and is unlikely to be responsible for
redress under the Scheme.
The above are illustrative examples only and the Operator of the Scheme is
responsible for determining who will be liable to pay redress under the
Scheme.
Subclause 15(3) provides for when an institution will be equally
responsible with one or more other institutions, for sexual abuse and any
non-sexual abuse of a person. Responsibility will arise if one or more
institutions are approximately equally responsible for the abuser having
contact with the person and no other institution is primarily responsible
for the abuse of the person.
Examples:
1. Person A was abused in an orphanage run by a non-government
institution, where the child was in the care of a participating State
and the government placed the child into the orphanage. The abuser
was a volunteer at the orphanage. The non-government institution and
the participating State are likely to be considered to be equally
responsible for the abuse.
2. A religious institution provided chaplaincy or religious instruction
at a State institution, which was a public school, during school
hours, and at the invitation of a school. An employee of the religious
institution abused Person B on school grounds after the religious
instruction class. The religious institution and the State are likely
to be considered to be equally responsible for the abuse.
The above are illustrative examples only and the Operator of the Scheme is
responsible for determining who will be liable to pay redress under the
Scheme.
Subclause 15(4) provides circumstances that may be relevant for determining
under subclause 15(2) or (3) whether an institution is primarily
responsible or equally responsible for the abuser having contact with the
person. The following list of circumstances is non-exhaustive and
includes:
a) whether the institution was responsible for the day-to-day care and
custody of the person when the abuse occurred;
b) whether the institution was the legal guardian of the person when the
abuse occurred;
c) whether the institution was responsible for placing the person into
the institution in which the abuse occurred;
d) whether the abuser was an official of the institution when the abuse
occurred;
e) whether the abuse occurred:
i) on the premises of the institution; or
ii) where activities of the institution took place; or
iii) in connection with activities of the institution;
f) any other circumstances prescribed by the rules.
The note at the end of subclause 15(4) clarifies that when determining the
question whether an institution is responsible for abuse of a person, the
circumstances listed in this subclause are relevant to that question, but
none of them on its own is determinative of that question.
The rule making power in paragraph 15(4)(f) is required so that the Scheme
can be responsive to survivors' and participating institutions' needs over
the 10 year operation of the Scheme. As applications are processed,
further circumstances that are relevant to determine whether an institution
is primarily or equally responsible for an abuser having contact with the
person are likely to arise. It is important that such circumstances can be
included in the rules quickly in order to process applications without
delays that an amendment to primary legislation would entail.
Examples:
1. Responsibility of an institution for abuse of a person may be
determined where:
. Person A was a student abused on school grounds, during school
hours, by a teacher of the school (the school determined to be
responsible).
. Person B was a cadet abused at a cadet program during program
hours, where the abuser was the program leader (the cadet unit
determined to be responsible).
. Person C was abused in a church, where the abuser was a priest at
the church (the church determined to be responsible).
Note: for a person to be eligible under the Scheme the abuse had to
occur at the time they were a child, defined in clause 6 to be a
person under 18.
2. Responsibility of an institution for abuse of a person may not be
determined where Person D was a child abused on school grounds, on a
weekend, by a person not connected to the school.
Subclause 15(5) provides that, despite subclauses 15(1), (2) and (3), an
institution is responsible, primarily responsible or equally responsible
for sexual or non-sexual abuse of a person if the rules prescribe
circumstances in which an institution is, or should be treated as being,
responsible for the abuse of the person.
Initially, the rules will prescribe that a participating government
institution will be equally responsible with a non-government institution
where the government institution made an arrangement with the non-
government institution to have responsibility for the day-to-day care of a
child; at the time of the abuse, the government institution had parental
responsibility for the child, or the child was a state ward; and the abuse
occurred while the child was in the care of the non-government institution
Initially, the rules will also prescribe that a Commonwealth defence
institution will be equally responsible with another institution(s) where
the abuse occurred on or after 1 January 1977; the abuse was connected with
the person's membership of a cadet unit provided for by Commonwealth
legislation; and the other institution(s) would ordinarily be primarily or
equally responsible (without the Commonwealth defence institution) for the
abuse.
Example
In 1985, a child living in the Australian Capital Territory (ACT) (prior to
self-government in the Territory) is under the parental responsibility of
the Commonwealth government. The child is placed by an agency of the
Commonwealth government in the care of an ACT based orphanage, run by a non-
government institution. At the orphanage, the child was abused by an
employee of the orphanage. In this case, whilst the non-government
institution might ordinarily be found primarily responsible for the abuse,
the application of this rule would see the Commonwealth and the non-
government institution equally responsible for the abuse.
The rule making power in subclause 15(6) will allow the rules to prescribe
circumstances in which an institution is not responsible, primarily
responsible or equally responsible for abuse, despite subclauses (1), (2)
and (3).
Initially, the rules will prescribe that a government institution is not
responsible for the abuse of a person where another institution was
responsible, and the only connection between the government institution and
the abuse is that the government institution regulated the other
institution, funded the other institution, or the other institution was
established by or under the law of the relevant government.
Example
In 2004, a child in the care of a private hospital for an illness is abused
by an employee of the hospital. The hospital complies with the regulation
of the relevant State/Territory government and the company which owns the
hospital is incorporated under the Corporations Act 2001. As the
State/Territory government and the Commonwealth government otherwise have
no connection to the abuse, the application of this rule means that they
are not responsible for the abuse.
The rule making power in subclauses 15(5) and (6) is required so that the
Scheme can be responsive to survivors' and participating institutions'
needs over its 10 year operation. The rule making power in subclause 15(6)
is intended to ensure that institutions that should be responsible,
primarily responsible or equally responsible for abuse are held to be
responsible for any abuse that occurred.
The rule making power in subclause 15(6) is intended to ensure that
institutions are not found primarily responsible or equally responsible in
circumstances where it would be unreasonable to hold the institution
responsible for abuse that occurred.
Clause 16 sets out the redress that may be provided to a person.
Subclause 16(1) provides that redress consists of the following 3 elements:
a) a redress payment (of up to $150,000); and
b) a counselling and psychological component which, depending on where
the person lives (as stated in the person's application for redress)
consists of:
i) access to counselling and psychological services provided under the
scheme; or
ii) a payment (of up to $5,000) to enable the person to access counselling
and psychological services provided outside of the scheme; and
c) a direct personal response from each of the participating institutions
that are determined by the Operator under paragraph 29(2)(b) to be
responsible for the person's abuse.
The note to subclause 16(1) cross references subclause 54(2) that specifies
what may be contained in a direct personal response from a participating
institution.
Subclause 16(2) makes it clear that a person entitled to redress under the
Scheme can choose any or all of the three elements of redress.
Subclause 16(3) provides for the giving of direct personal responses where
there are two or more participating institutions that are determined to be
responsible for the person's abuse. In this situation, if the person
chooses to be given a direct personal response, then the person may choose
to be given a response from each of those institutions, or from only some
of them or one of them.
Clause 17 provides that redress for a person is for the sexual abuse, and
related non-sexual abuse, of a person that is within the scope of the
Scheme. The note to clause 17 clarifies that while redress is for both
sexual and related non-sexual abuse of a person that is within the scope of
the Scheme, to be eligible for redress in the first place, there must have
been sexual abuse within the scope of the Scheme. The note provides a
cross reference with paragraph 13(1)(b) that provides the eligibility
criteria for access to redress.
Part 2-3 - How to obtain redress under the Scheme
Division 1 - Simplified outline of this Part
Clause 18 provides a simplified outline of Part 2-3.
Division 2 - Application for redress under the Scheme
Clause 19 sets out the requirements for an application for redress.
Subclause 19(1) provides that a person must make an application to the
Operator to obtain redress under the Scheme.
Subclause 19(2) sets out the requirements that must be complied with for an
application to be valid, including that it must be in the approved form,
specify where the person lives, include any information and be accompanied
by any documents required by the Operator and be accompanied by a statutory
declaration that verifies the information included in the application.
Subclause 19(3) provides that the Operator is not required to make a
determination on an application that is not valid.
Clause 20 provides for when an application cannot be made.
Subclause 20(1) sets out that a person cannot make an application for
redress if:
a) the person has already made an application for redress under the
Scheme; or
b) a security notice is in force in relation to the person; or
c) the person is a child who will not turn 18 before the Scheme sunset
day; or
d) the person is in gaol (within the meaning of subsection 23(5) of the
Social Security Act); or
e) the application is being made in the period of 12 months before the
Scheme sunset day.
Subclause 20(2) provides that paragraphs 20(1)(d) and (e) do not apply if
the Operator determines there are exceptional circumstances justifying the
application being made.
Paragraph 20(1)(b) is included to ensure the Scheme does not accept
applications from people who may prejudice the security of Australia or a
foreign country.
Paragraph 20(1)(c) is included as the Scheme cannot ensure adequate
protections for children considering the significant nature of the
statutory release and the potential amount of payments under the Scheme.
Child survivors, and their families, including those who are unable to make
an application to the Scheme, will be able to access the Scheme's legal
support services in order to consider the child's legal rights,
particularly if civil litigation may be a viable alternative.
Paragraph 20(1)(d) is included as it would be difficult to secure
appropriate redress support services for this environment, and there are
risks associated with the confidentiality of applicants in a closed
institutional setting.
Subclause 20(2) provides that paragraphs 20(1)(d) and (e) do not apply if
the Operator determines there are exceptional circumstances justifying the
application being made. Exceptional circumstances may include where a
person is in gaol for the last 12 months of the Scheme, or is in gaol for
the life of the Scheme (in which case clause 63 will apply to the person).
Subclause 20(3) provides that before making a determination under subclause
20(2), the Operator must comply with any requirements prescribed by the
rules.
Examples:
1. Person F experienced sexual abuse as a child in two institutions and
submits two applications to the Scheme (one for each institution).
One of the applications is valid and the other cannot be accepted as
clause 20 provides only one application can be made. In this example,
Person F should withdraw both applications and resubmit a new single
application that includes both instances of abuse.
2. Person G applies for and receives redress. Five years later, Person G
makes another application for a separate instance of institutional
child sexual abuse. This application is invalid because Person G has
already made an application to the Scheme and clause 20 provides only
one application can be made to the Scheme.
3. Person H suffered sexual abuse in two separate instances as a child.
Person H makes an application to the Scheme, although only one of the
responsible institutions is a participating institution. Person H is
advised about the one application only rule (clause 20) that he may
benefit from withdrawing his application, and re-submitting once the
second responsible institution agrees to participate in the Scheme.
Person H chooses to wait and withdraws his application. One year
later, the second responsible institution agrees to participate in the
Scheme. Person H contacts the Scheme and submits his application in
relation to the two separate instances of abuse. Person H's
application is valid as he withdrew his initial application in the
year prior. Person H receives an offer in relation to both instances
of abuse because both responsible institutions are participating in
the Scheme and determined responsible for the abuse.
4. Person J applies for redress. However, the Operator determines that
Person J is ineligible to apply for redress as the Home Affairs
Minister has issued a security notice against Person J. Two years
later, the Home Affairs Minister revokes the security notice. Person
J then applies for redress again, and has their application accepted
and progressed to assessment.
5. Person K is 4 years old. Person K applies for redress under the
Scheme, but their application is not accepted as they will not turn 18
before the Scheme sunset day. Person K, and their family, are
referred to the Scheme's legal support service to consider whether
civil litigation is a viable alternative.
6. Person L is remanded in a custodial centre. Person L applies for
redress under the Scheme, but their application is not accepted. Four
weeks later Person L is released from remand with no charge and again
applies for redress under the Scheme. Person L's application is
accepted and progressed to assessment
Clause 21 provides a special process for applications for redress by a
child.
Under subclause 21(1), if a person makes an application for redress under
the Scheme and the person is a child who will turn 18 before the Scheme
sunset day, then the Operator must deal with the application in accordance
with any requirements prescribed by the rules.
Subclause 21(2) provides that rules made for the purposes of subclause (1)
apply despite subsection 29(1) (which requires the Operator to make a
determination to approve, or not approve, the application as soon as
practicable).
The special process for children applying to the Scheme, as prescribed in
the rules, is necessary to ensure there are adequate protections in place
for this cohort. Children who will turn 18 throughout the life of the
Scheme may apply for redress; however, their application will not be
determined until they reach 18 years of age. This will allow the Scheme to
request information from the responsible institution(s) at the time of the
application to ensure the information is current, especially in the
circumstance where the responsible institution may go defunct before the
claim can be determined. Once the child reaches 18, the survivor can
choose to proceed with their application, withdraw their application and
reapply, or withdraw their application completely. Those child survivors
who are waiting for their redress application to be determined will have
access to the Scheme's support services throughout this period.
Clause 22 provides that a person may withdraw their application at any time
before the Operator makes a determination on the application under clause
29. An application that is withdrawn under subsection 21(1) is treated as
not having been made (subclause 22(2)).
Clause 23 provides for the Operator to notify participating institutions of
the withdrawal of an application. If a person withdraws an application
under subclause 22(1) and, before the withdrawal, the Operator had
requested a participating institution under clause 25 to provide
information that may be relevant to a person's application, then the
Operator must give the institution written notice that the person's
application has been withdrawn. The notice must also comply with any
requirements prescribed by the rules (subclause 23(2)).
Division 3 - Obtaining information for the purposes of determining the
application
Clause 24 gives the Operator the power to request information from
applicants.
Subclause 24(1) provides that the Operator may request a person who applies
for redress to give information if the Operator has reasonable grounds to
believe that the person has information that may be relevant to determining
the person's application. The note at the end of subclause 24(1) clarifies
that the request for information may be accompanied by information that has
been disclosed by an institution in relation to the application.
The request must be in writing (subclause 24(2)).
Subclause 24(3) sets out that the notice must specify the matters listed in
the subclause, including the period in which the person is requested to
give the information. This is referred to as the production period.
Subclause 24(3) also requires the notice to specify the nature of the
information that is requested to be given, how the person is to give the
information and that the notice is given under clause 24.
The production period must be at least 4 weeks if the Operator considers
the application is urgent, otherwise 8 weeks beginning on the date of the
notice (subclause 24(4)).
Subclause 24(5) provides that the Operator may, by written notice to the
person, extend the production period where the Operator considers it
appropriate to do so.
Subclause 24(6) makes it clear that an extension may be given on the
Operator's own initiative or following a request from the person under
subclause 24(7).
Subclause 24(7) sets out how a person can go about requesting an extension
of the production period. Any request must be made before the end of the
production period and must comply with any requirements specified in the
rules.
The consequence of a person failing to comply with a request within the
production period is that the Operator may make a decision about the
application in the absence of that information.
Clause 25 gives the Operator the power to request information from
participating institutions.
Subclause 25(1) provides that if an application for redress is made by a
person, the Operator must request a participating institution to give any
information that may be relevant to the application to the Operator. The
Operator must request the information if the application identifies a
participating institution as being involved in the abuse or the Operator
has reasonable grounds to believe that the participating institution may be
responsible for the abuse of the person.
Subclause 25(2) provides that if an application for redress is made by the
person and the Operator has reasonable grounds to believe that a
participating institution has information that may be relevant to
determining the application, then the Operator may request the institution
to give any information that may be relevant to the Operator.
The notes at the end of subclauses 25(1) and (2) clarify that the request
for information may be accompanied by information that has been disclosed
by the applicant or another institution in relation to the application.
The request under subclause 25(1) or (2) must be made in writing given to
the institution (subclause 25(3)).
Subclause 25(4) sets out that the notice must specify the matters listed in
the subclause, including the period in which the person is requested to
give the information to the Operator. This is referred to as the
production period. Subclause 25(4) also requires the notice to specify the
nature of the information that is requested to be given, how the
institution is to give the information and that the notice is given under
clause 25.
The production period must be at least 4 weeks if the Operator considers
the application is urgent, otherwise 8 weeks beginning on the date of the
notice (subclause 25(5)).
Subclause 25(6) provides that the Operator may, by written notice to the
institution, extend the production period where the Operator considers it
is appropriate to do so.
Subclause 25(7) makes it clear than an extension may be given on the
Operator's own initiative or following a request from the institution under
subclause 25(8).
Subclause 25(8) sets out how an institution can go about requesting an
extension of the production period. The request must be made before the
end of the production period and must comply with any requirements
specified in the rules.
The consequence of an institution failing to comply within the required
timeframe is that the Operator may make a decision about the application in
the absence of that information.
Clause 26 sets out consequences for the applicant or institutions failing
to comply with a request.
Subclause 26(1) provides that if, under clause 24, the Operator requests
further information from a person who has made an application for redress
and the information requested is not provided in the production period, the
Operator is not required to make a determination on the application until
the information is provided.
Subclause 26(2) provides that if, under clause 25, the Operator requests a
participating institution to provide information in relation to an
application for redress and the information is not provided in the
production period, the Operator may progress the application and make a
determination on the basis of the information that has been obtained by, or
provided to, the Operator.
Clause 27 clarifies that the obligation for a person to give the requested
information to the Operator for the purposes of the Scheme, is not
prevented by anything in a law of a State or a Territory unless that law is
prescribed by the rules.
Clause 28 provides that a person must not give information, produce a
document or make a statement to an officer of the Scheme if the person
knows, or is reckless as to whether, the information, document or statement
is false or misleading in a material particular. The note clarifies that
this is a civil penalty provision and that conduct prohibited by this
clause may also be an offence against the Criminal Code to make false or
misleading statements, give false or misleading information or produces
false or misleading documents (see sections 136.1, 127.1 and 137.2 of the
Code). The penalty is 60 penalty units.
This civil penalty is justified to ensure that Scheme is adequately
protected against the risk of fraudulent applications. Large volumes of
false claims from organised groups could overwhelm the Scheme's resources
and delay the processing of legitimate applications. The Government is
continually undertaking fraud detection activities to ensure the integrity
of payments and it is important that the Scheme's policy settings support
the integrity and appropriate targeting of payments made under the Scheme.
Should the Scheme not safeguard against potential fraud, institutions may
choose not to participate, or may seek to leave the Scheme, leaving
legitimate survivors unable to access redress from those institutions. The
level of the penalty is sufficiently high to support the principle of
deterrence, and ensure that applications made to the Scheme are legitimate
and appropriate.
Division 4 - The Operator must determine whether to approve the application
Clause 29 sets out how the Operator must make a determination to approve,
or not approve, the applications as soon as practicable (subclause 29(1)).
Under subclause 29(2), the Operator must comply with the following
requirements if the Operator considers that there is a reasonable
likelihood that the person is eligible for redress:
a) approve the application; and
b) determine each participating institution that is responsible for the
abuse and therefore liable for providing redress to the person; and
c) determine (in accordance with clause 30 (method for calculating the
amount of redress payment and sharing of costs)) the amount of the
redress payment for the person and the amount of each responsible
institution's share of the costs of the redress payment; and
d) determine (in accordance with clause 31 (working out the amount of the
counselling and psychological component and sharing of costs)) the
amount of the counselling and psychological component of redress for
the person and the amount of each responsible institution's share of
the costs of that component; and
e) determine whether the counselling and psychological component of
redress for the person consists of access to the counselling and
psychological services that are provided under the scheme or a
counselling and psychological services payment; and
f) determine that the amount of the payment equals the amount of the
counselling and psychological component of redress for the person, if
that component of redress for the person consists of a counselling and
psychological services payment; and
g) for each responsible institution that is a member of a participating
group, determine each other participating institution that is an
associate of the responsible institution at that time; and
h) for a participating institution that was identified in the application
and is not covered by a determination under paragraph (b), determine
that the participating institution is not responsible for the abuse
and therefore not liable for providing redress; and
i) determine that the participating government institution is the funder
of last resort for the defunct institution in relation to the abuse
if:
i) the Operator determines (in accordance with section 15) that a
participating government institution is equally responsible with a
defunct institution for the abuse; and
ii) the defunct institution is listed for the participating jurisdiction
that the participating government institution belongs to.
Note 1 clarifies the liability for costs if the Operator determines that
the participating government institution is the funder of last resort for
the defunct institution. In these circumstances the participating
government institution will be liable to pay the defunct institution's
(hypothetical) share of costs of providing redress to the person
(see clause 165 (special rules for funder of last resort cases)). Those
costs are in addition to the participating government institution's own
share of the costs for providing redress to the person. For the funder of
last resort provisions, see Part 6-2.
Note 2 clarifies that only defunct institutions that are both non-
government institutions and not participating institutions can be listed
for a jurisdiction (see subclause 164(1)).
If the Operator does not consider that there is a reasonable likelihood
that the person is eligible for redress, the Operator must make a
determination not to approve the application (subclause 29(3)).
Subclause 29(4) provides that the rules may require or permit the Operator
to revoke, under this subclause, a determination made under subclause 29(2)
or (3).
Subclause 29(5) provides that the Operator cannot revoke a determination
made under subclause 29(2) if the person has been given an offer of redress
and the person has accepted the offer in accordance with clause 42.
Subclause 29(6) sets out the consequences if the Operator revokes the
determination. The effect of a revocation is:
a) every determination made under subclause 29(2) or (3) is taken never
to have been made; and
b) if the person has not accepted or declined an offer that has been made
- the offer is taken to be withdrawn; and
c) if the person has applied for a review of the determination - the
review application is taken to be withdrawn; and
d) the Operator may make further requests for information relating to the
person's application under clause 24 or 25.
Under subclause 29(7), the Operator must give a written notice to the
person and each participating institution that was notified under clause 35
of the determination. The notice must state that the determination has
been revoked, that the determination is taken never to have been made, the
fact that an offer of redress has been withdrawn under paragraph 29(6)(b),
the fact that an application for review of the determination has been
withdrawn under paragraph 29(6)(c) and any other matter prescribed by the
rules.
Clause 30 deals with working out the amount of the redress payment to the
person and each responsible institution's share of the costs of that
payment. Subclause 30(1) sets out how the Operator must make a
determination under paragraph 29(2)(c) with respect to those amounts. The
note clarifies that this clause only applies if the Operator approves the
person's application for redress.
Subclause 30(2) provides the method for working out the share of costs.
The subclause provides that the Operator must first work out, for each
responsible institution, the amount of that institution's share of the
costs of the redress payment by using the following method statement:
. Step 1 - Apply the assessment framework to work out the maximum amount
of the redress payment that could be payable to the person. The
maximum amount must not be more than $150,000 regardless of the number
of responsible institutions. The amount worked out is the maximum
amount of the redress payment that could be payable to the person.
. Step 2 - Work out the amount that is the responsible institution's
share of the maximum amount (in accordance with the rules). This
amount is the gross liability amount for the responsible institution.
. Step 3 - Work out the amount of any payment (a relevant prior payment)
that was paid by the institution to the person by, or on behalf of,
the responsible institution in relation to abuse for which the
institution is responsible. Any payment that is prescribed by the
rules as not being a relevant payment is not to be included. This
will allow certain payments (for example, statutory entitlements under
veterans' legislation) to be disregarded so that they do not need to
be offset against the redress payment amount. This amount is the
original amount of the relevant prior payment.
. Step 4 - Multiply the original amount by (1.019)n where n is the
number of whole years since the relevant prior payment was paid to the
person. The resulting amount is the adjusted amount of the relevant
prior payment of the institution. The note to step 4 clarifies that
the adjustment is broadly to account for inflation.
. Step 5 - Add together the adjusted amount of each relevant prior
payment of the institution. This amount is the reduction amount for
the institution. The resulting amount should be rounded up if it is
not a whole number of cents.
. Step 6 - The amount of the institution's share of the costs of the
redress payment is the gross liability amount for the institution (in
step 2) less the reduction amount for the institution (in step 5).
The amount may be nil but not less than nil.
Subclause 30(3) provides that the Operator must then work out the amount of
the redress payment for the person by adding together the amounts of each
responsible institution's share of the costs of the redress payment. The
amount may be nil but must not exceed the maximum amount of the redress
payment (that is, $150,000).
Note 1 to subclause 30(3) clarifies that the amount of the redress payment
may be nil because the total amount of relevant prior payments that were
paid to the person by the responsible institutions exceeds the maximum
amount of the redress payment that could be payable to the person. The
note goes on to provide that while a person may not be paid any redress
payment in that case, the person will still be entitled to the other
components of redress under the Scheme, such as access to the counselling
or psychological component and a direct personal response (see clause 16).
Note 2 to subclause 30(3) alerts the reader that where a funder of last
resort is liable for the costs of redress, subclause 165(2) provides how
the amount of the redress payment and share of the costs of the payment are
worked out.
Examples:
1. Person X applies for redress on 3 September 2019. On 21 September
2019 the Operator considers that there is a reasonable likelihood that
Person X is eligible so must determine the amount of the redress
payment and the amount of each liable institution's share of the costs
of the redress payment. Person X suffered abuse in two separate
instances. Institutions H and J are equally responsible for the first
instance of abuse and Institution L is primarily responsible for the
second instance of abuse.
The Operator steps each institution through the method statement:
Step 1 & 2 - under the assessment framework the maximum amount payable
to Person X is $140,000. The gross liability amounts are:
Institution H - $50,000
Institution J - $50,000
Institution L - $40,000
Step 3 - Person X has not received a relevant payment from
Institution H, although Person X received a prior redress payment of
$5,000 from Institution J on 31 October 2015 and received a prior ex-
gratia payment of $700 from Institution L on 1 July 1999. Therefore
the original amounts are:
Institution H - N/A
Institution J - $5,000
Institution L - $700
Step 4 - Institution J - It has been three full years since the
original amount was received, therefore the sum is:
5,000 x (1.019)3 = 5,290.45
Therefore the adjusted amount for Institution J is $5,290.45
Institution L - It has been 19 full years since the original
amount was received, therefore the sum is:
700 x (1.019)19 = 1,000.94
Therefore the adjusted amount for Institution L is $1,000.94
Step 5 - As Institutions J and L each only made one relevant payment,
the reduction amounts are the adjusted amounts in step 4.
Step 6 - Each institution's shares are:
Institution H - $50,000
Institution J - $50,000 - $5,290.45 = $44,709.55
Institution L - $40,000 - $1,000.94 = $38,999.06
2. Person Y applies for redress on 7 July 2018. On 21 July 2018 the
Operator considers that there is a reasonable likelihood that Person Y
is eligible for redress and must determine the amount of the redress
payment and the amount of each liable institution's share of the costs
of the redress payment. Institution K is primarily responsible for the
abuse.
The Operator steps Institution K through the method statement:
Step 1 & 2 - under the assessment framework the maximum amount payable
to Person Y is $45,000. The gross liability amount from Institution K
is $45,000.
Step 3 - Person Y received two relevant payments from Institution K,
including:
a settlement payment of $25,000 on 1 June 1991; and
an ex-gratia payment of $5,000 on 1 November 2015.
Therefore the original amounts are $25,000 and $5,000.
Step 4 - It has been 27 full years since the settlement payment,
therefore the sum is:
25,000 x (1.019)27 = 41,556.88
Therefore the adjusted amount for the settlement payment is
$41,556.88
It has been two full years since the ex-gratia payment,
therefore the sum is:
5,000 x (1.019)2 = 5,191.81
Therefore the adjusted amount for the ex-gratia payment is
$5,191.81
Step 5 - the reduction amount is the sum of Institution K's adjusted
amounts:
$41,556.88 + $5,191.81 = $46,748.69 (reduction amount)
Step 6 - Subtract the reduction amount of $46,748.69 from the gross
liability amount of $45,000. As the reduction amount is greater than
Institution K's gross liability of $45,000 and subclause 29(2) Step 6
provides that the amount may be nil but not less than nil, the result
for Institution K is nil and the institution's share of the costs of
the redress payment for Person Y is nil. Institution K will still have
to pay for the costs of other elements of redress (access to
counselling or psychological services and a direct personal response)
if Person Y would like to receive them.
3. Person Q applies for redress on 5 September 2018. On 20 September
2018 the Operator considers that there is a reasonable likelihood that
Person Q is eligible to receive redress, so must determine the amount
of the redress payment and the amount of each liable institution's
share of the costs of the redress payment. Person Q suffered abuse in
two separate instances. Institution V is primarily responsible for the
first instance of abuse and Institution D is primarily responsible for
the second instance of abuse.
The Operator steps each institution through the method statement:
Step 1 & 2 - under the assessment framework the maximum amount payable
to Person Q is $120,000. The gross liability amounts are:
Institution V - $100,000
Institution D - $20,000
Step 3 - Person Q has not received a relevant payment from
institution V, although received a prior ex-gratia payment of $35,000
from Institution D on 30 June 2016. Therefore the original amounts
are:
Institution V - N/A
Institution D - $35,000
Step 4 - It has been two full years since the original amount was
received, therefore the sum is:
35,000 x (1.019)2 = 36,342.64
Therefore the adjusted amount for Institution D is $36,342.64
Step 5 - As Institution D only made one relevant payment, the
reduction amount is the adjusted amount in step 4.
Step 6 - Subtract the reduction amount of $36,342.64 from
Institution D's gross liability amount of $20,000. As the reduction
amount is greater than Institution D's gross liability of $20,000 and
subclause 33(2) Step 6 provides that the amount may be nil but not
less than nil, the result for institution is nil, therefore the
institution's share of the cost of the redress payment are:
Institution V - $100,000
Institution D - nil
Clause 31 deals with working out the amount of the counselling and
psychological component of redress and the amount of each responsible
institution's share of costs of that component. Subclause 31(1) sets out
how the Operator must make a determination under paragraph 29(2)(d) with
respect to those amounts. The note clarifies that this clause only
applies if the Operator approves the person's application for redress.
Subclause 31(2) provides that the Operator must apply the assessment
framework to work out the amount of the component, which must not be more
than $5,000, regardless of the number of responsible institutions.
Subclause 31(3) provides that the Operator must work out the amount that is
each responsible institution's share of the cost of the component in
accordance with the rules. The note cross references that for funder of
last resort cases, subclause 165(3) affects how the amount of the
counselling and psychological component and the share of costs of the
component is worked out.
Clause 32 provides for a Ministerial declaration which is referred to as
the assessment framework.
Subclause 32(1) provides that the Minister may declare, in writing, a
method, or matters to take into account, for the purposes of working out
the amount of the redress payment for a person and the amount of the
counselling and psychological component of redress for a person. The note
to subclause 32(1) notifies the reader that a declaration made under
subclause 32(1) may be varied or revoked as provided for in subsection
33(3) of the Acts Interpretation Act 1901.
Subclause 32(2) provides that the declaration is the assessment framework.
Subclause 32(3) provides that a declaration under subclause 32(1) is a
legislative instrument, but is exempt from section 42 of the Legislation
Act 2003, which provides for disallowance. It is necessary to exempt this
Ministerial declaration from disallowance so that the method or matters to
be taken into account for the purpose of working out the amount of redress
payment for a person are certain for applicants to the Scheme and decision-
makers. This declaration would ordinarily be of an administrative
character and would not be a legislative instrument without this
provision. However, in order to ensure certainty and transparency it is
appropriate to make this declaration a legislative instrument.
Clause 33 provides for the assessment framework policy guidelines. Clause
33 provides that, when applying the assessment framework for the purposes
of clauses 30 and 31, the Operator may take into account the assessment
framework policy guidelines (subclause 33(1)) which may be made by the
Minister, in writing (subclause 33(2)). The guidelines are the assessment
framework policy guidelines (subclause 33(3)).
Subclause 33(4) provides that the guidelines are not a legislative
instrument. These guidelines are of an administrative character, the
content of which will not be provided in a legislative instrument. The
reason for omitting detailed guidelines is to mitigate the risk of
fraudulent applications. Providing for detailed guidelines would enable
people to understand how payments are attributed and calculated, and risks
the possibility of fraudulent or enhanced applications designed to receive
the maximum redress payment under the Scheme being submitted. The Scheme
has a low evidentiary threshold and is based on a 'reasonable likelihood'
test. These aspects of the Scheme are important and provide recognition
and redress to survivors who may not be able or may not want to access
damages through civil litigation.
Division 5 - Notice of determination to applicant and participating
institutions
Clause 34 sets out the requirement for the Operator to notify the applicant
about a determination under clause 29. Subclause 34(1) provides that the
Operator must give a written notice to a person who has applied for
redress, if the Operator makes a determination under clause 29 about the
application. The notice must state:
a) whether or not the application has been approved; and
b) the reasons for the determination; and
c) that the person may apply for an internal review of the determination
(clause 73 deals with internal reviews).
Subclause 34(2) provides that if the application has been approved, the
notice mentioned in subclause 34(1) must include the offer of redress to
the person under clause 39 (deals with the content of the offer of
redress).
Subclause 34(3) provides that the notice must specify a day, which must be
at least 28 days but no longer than 6 months after the date of the notice,
by which the person may apply for review of the determination under
clause 73. Subclause 34(3) also provides that the notice must comply with
any matters prescribed by the rules.
Clause 35 applies if the Operator makes a determination under clause 29 in
relation to a person and a participating institution is specified in the
determination, the Operator must give the institution written notice of the
determination in accordance with subclause 35(2) (subclause 35(1)).
Subclause 35(2) provides that the Operator must give the institution
written notice of the determination stating:
a) whether or not the application has been approved; and
b) if the Operator determined under paragraph 29(2)(b) that the
institution is responsible for the abuse and therefore liable for
providing redress to the person under the Scheme:
i) that fact; and
ii) the amount of the redress payment for the person; and
iii) the amount of the institution's share of the costs of that payment;
and
iv) the amount of the counselling and psychological component of redress
for the person; and
v) the amount of the institution's share of the costs of that component;
and
c) the fact that the institution is an associate of a responsible
institution, if determined by the Operator under paragraph 29(2)(g);
and
d) the fact that the institution is not responsible for the abuse under
the scheme, if determined by the Operator under paragraph 29(2)(h);
and
e) the fact that the institution is the funder of last resort for a
defunct institution, if determined by the Operator under paragraph
29(2)(i); and
f) the reasons for the determination as they relate to the institution;
and
g) the day by which the person may apply under clause 73 for review of
the determination.
Subclause 35(3) provides that the notice must also comply with any
requirements prescribed by the rules.
Division 6 - Effect of the determination and admissibility of evidence in
civil proceedings
Clause 36 sets out the effect of a determination by the Operator. A
determination under clause 29 has effect only for the purposes of the
Scheme (subclause 36(1)). Subclause 36(2) provides that, in particular, a
determination under clause 29 that an institution is, or is not,
responsible for the abuse of, or is, or is not, liable to provide redress
to, a person is not a finding of law or fact made by a court in civil or
criminal proceedings. The note clarifies that a determination under clause
29 is an administrative decision based on whether the Operator considers
there to be a reasonable likelihood that the person is eligible for
redress. It is not a judicial decision made by a court in civil or
criminal proceedings which requires a higher standard of proof.
Subclause 36(3) provides that a determination under clause 29 that an
institution is responsible for abuse of a person and therefore liable to
provide redress may result in the imposition of a civil liability on the
institution to make payments under the Scheme in relation to that redress.
In other words, an institution's obligation to make payments under the
Scheme may be enforced through the civil courts.
Clause 37 provides for the admissibility of documents in evidence in civil
proceedings. Subclause 37(1) provides a list of documents that are not
admissible in evidence in civil proceedings in a court or tribunal. These
are a person's application for redress, a document created solely for the
purposes of accompanying a person's application or a document created
solely for the purposes of complying with a request for information made by
the Operator under clause 24 or 25 in relation to the person's application.
Subclause 37(2) provides that subclause 37(1) does not apply if the
admission of the document in evidence in civil proceedings is for the
purposes of giving effect to this Bill.
Subclause 37(3) provides that, for the purposes of subclause 37(2) (and
without limiting that subclause), if the admission of the document in
evidence is in civil proceedings for judicial review of a decision made
under this Bill, then the admission is for the purposes of giving effect to
this Bill.
Subclause 37(4) provides that subclause 37(1) does not apply if the
admission of the document in evidence is in civil proceedings under, or
arising out of, clause 28 (which is about providing false or misleading
document or information to an officer of the Scheme).
Part 2-4 - Offers and acceptance of redress
Division 1 - Simplified outline of this Part
Clause 38 provides a simplified outline of Part 2-4.
Division 2 - Offers of redress
Clause 39 sets out the matters that must be addressed in the written offer
of redress to a person, where the Operator has approved a person's
application for redress under subclause 29(2). These are to:
a) provide an explanation of the 3 components of redress (that is, the
redress payment, access to the counselling and psychological
component, and the direct personal response); and
b) specify the amount of the redress payment; and
c) specify whether the counselling and psychological component of redress
for the person consists of:
i) access to the counselling and psychological services that are provided
under the Scheme; or
ii) the counselling and psychological services payment; and
d) if the counselling and psychological component of redress for the
person consists of the counselling and psychological services payment,
specify the amount of that payment; and
e) specify the participating institutions that the Operator has
determined under paragraph 29(2)(b) to be responsible for the abuse
and therefore liable for providing redress to the person under the
Scheme. Although the Operator may determine that an institution is
responsible for a person's abuse, the institution may not be liable
for redress if the funder of last resort provisions under Part 6- 2
apply; and
f) if any of those responsible institutions is a defunct institution that
has a representative:
i) specify the person who is the representative; and
ii) explain that the representative is liable for providing redress to the
person under the Scheme; and
g) if any of those responsible institutions is a member of a
participating group, specify the participating institutions determined
by the Operator under paragraph 29(2)(g) to be associates of any of
those responsible institutions; and
h) specify the participating institutions identified by the person in
their application but determined by the Operator as not responsible
for the person's abuse (see subclause 29(2)(h)) and therefore not
liable to provide redress to the person under the Scheme; and
i) provide that where any of those responsible institutions is a
participating government institution that is determined by the
Operator under paragraph 29(2)(i) to be the funder of last resort for
a defunct institution the offer of redress specifies the defunct
institution, and explains that the participating government
institution is liable for the defunct institution's (hypothetical)
share of the costs of providing redress to the person. The offer must
also explain that a direct personal response is not available to the
person in relation to the abuse for which the defunct institution is
responsible; and
j) state the date of the offer; and
k) specify the acceptance period in which the offer may be accepted
(see clause 40); and
l) give information about the opportunity for the person to access legal
services under the Scheme for the purposes of obtaining legal advice
about whether to accept the offer; and
m) give information about other services available under the Scheme to
help the person decide whether to accept the offer; and
n) explain how to accept or decline the offer, should the person decide
to do so; and
o) inform the person that the offer expires at the end of the acceptance
period; and
p) explain the effect of releasing responsible institutions, their
officials, their associates and the officials of their associates from
civil liability (clause 43), should the person accept the offer; and
q) inform the person that the person is not obligated to accept the offer
and that by doing nothing the person is taken to decline the offer at
the end of the acceptance period; and
r) inform the person that he or she cannot make another application for
redress under the Scheme, whether or not the offer is accepted; and
s) inform the applicant they may request an extension of the acceptance
period and how to make that application; and
t) comply with any other requirements that are prescribed by the rules.
Clause 40 provides for information about the acceptance period for offers
of redress.
Subclause 40(1) provides that the acceptance period for an offer of redress
to a person is the period determined by the Operator, which must be at
least 6 months, starting on the date of the offer.
Subclause 40(2) provides the Operator with the power to extend the
acceptance period before the end of that period, by written notice to a
person, if the Operator considers there are exceptional circumstances that
justify the extension.
Subclause 40(3) specifies that the extension may be given on the Operator's
own initiative or on request of the person made under subclause 40(4).
Subclause 40(4) allows for a person to request the Operator to extend the
acceptance period. The request must comply with any requirements
prescribed by the rules.
Subclause 40(5) provides that, if the Operator extends the period, the
acceptance period is the original period as extended by the Operator.
These provisions mean that the acceptance period cannot be extended once
that period has expired, and can only be extended before the acceptance
period ends. As an extension can be given on the Operator's own initiative,
or on a request made by the person, it will usually be incumbent on the
person to request that the Operator extend the acceptance period, or to
provide the Operator with information pertaining to the exceptional
circumstances, before the end of the acceptance period. Without limiting
what an exceptional circumstance is, an example of exceptional
circumstances might be where a survivor has been hospitalised for ill
health and is unable to presently consider the offer of redress.
Example:
Person K applies for redress, is found eligible by the Operator and
receives an offer. Person K has 6 months to accept her offer. Person K
provides her acceptance in writing seven months after she received the
offer. As her acceptance period has expired, Person K was taken to have
declined her offer after the 6 month period had expired. Person K is not
entitled to redress.
Clause 41 provides for the Operator to give a notice of an offer to
participating institutions. Subclause 41(1) provides that the Operator
must give the institution or person written notice of the offer if the
Operator gives an offer of redress under clause 39 and a participating
institution or person referred to in paragraph 39(e), (f), or (g) is
specified in the offer.
Subclause 41(2) provides that the notice must state the acceptance period
for the offer and comply with any requirements prescribed by the rules.
Division 3 - Accepting or declining offers of redress
Clause 42 provides that a person may accept an offer of redress made by the
Operator by complying with this clause (subclause 42(1)).
Subclause 42(2) provides that the person must give the Operator an
acceptance document that:
a) is in the form approved by the Operator; and
b) states that the person accepts the offer; and
c) states that the person releases and forever discharges each of the
following institutions and officials (a released institution or
official) from all civil liability for sexual abuse, or related non-
sexual abuse, of the person that is within the scope of the Scheme:
i) all participating institutions that are determined by the Operator
under paragraph 29(2)(b) to be responsible for the abuse of the
person;
ii) all participating institutions that are determined by the Operator
under paragraph 29(2)(g) to be associates of those responsible
institutions;
iii) all officials of those responsible institutions (other than an
official who is an abuser of the person); and
d) states that the person forgoes any entitlement to be paid damages by a
released institution or official if the released institution or
official were joined as a party to civil proceedings brought or
continued by the person that is within the scope of the Scheme; and
e) states that the person will not, whether as an individual, a
representative party or a member of a group, bring or continue any
civil claim against a released institution or official in relation to
that abuse; and
f) states the components of the redress that the person wishes to
receive; and
g) if the person wishes to receive a direct personal response, specifies
the participating institutions that the person wishes to receive a
response from; and
h) acknowledges that the person understands the effect of accepting the
offer; and
i) is signed by the person; and
j) complies with any requirements prescribed by the rules.
The acceptance document must be given to the Operator before the end of the
acceptance period and in the manner (if any) prescribed by the rules
(subclause 42(3)).
Subclause 42(4) provides that the rules made for the purposes of paragraph
42(2)(j) must not require the person to enter into a confidentiality
agreement.
Clause 43 outlines the consequences in relation to civil liability of
accepting an offer of redress under clause 42. From the time of giving the
acceptance and by force of clause 43:
a) the person releases and forever discharges every released institution
or official from civil liability for abuse of the person that is
within the scope of the Scheme; and
b) the person cannot, whether as an individual, a representative party or
a member of a group, bring or continue civil proceedings against
participating released institution or official in relation to that
abuse;
c) the release and discharge of civil liability of a released institution
or official for that abuse does not:
i) release or discharge another institution or person from civil
liability for that abuse; and
ii) prevent the person, whether as an individual, a representative party
or a member of a group, from bringing or continuing civil proceedings
against another institution or person in relation to that abuse; and
d) if a released institution or official would, apart from this clause,
be liable to make a contribution to another institution or person in
relation to damages payable to the person in civil proceedings
brought or continued by the person, whether as an individual, a
representative party or a member of a group, against the other
institution or person in relation to that abuse, then:
i) the released institution or official is released and forever
discharged from liability to make that contribution; and
ii) the amount of damages payable to the person in those proceedings is
reduced by the amount of that contribution.
Clause 44 requires a notice to be given to participating institutions that
the offer has been accepted. Subclause 44(1) provides that where a person
accepts an offer of redress according to the requirements of clause 42, the
Operator must give each institution that was notified under clause 41 about
the offer, a written notice that specifies the following information:
a) the person's acceptance of the offer; and
b) the components of redress that the person has elected to receive
(including whether the person wishes to receive a direct personal
response from the institution); and
c) any matters prescribed by the rules.
Subclause 44(2) provides that the notice must be accompanied by a copy of
the person's acceptance document.
Clause 45 provides for a person to decline an offer of redress. Subclause
45(1) provides that where an Operator makes an offer of redress to a
person, the person may decline the offer before the end of the acceptance
period by providing the Operator with a document that:
a) is in the approved form; and
b) states the person declines the offer; and
c) acknowledges that the person understands the effect of declining the
offer (including that the person will not be able to make another
application for redress under the Scheme);
d) is signed by the person; and
e) complies with any requirements prescribed by the rules.
Subclause 45(2) provides that if the person does not accept the offer in
accordance with clause 42 within the acceptance period, the offer is deemed
to have been declined by the person. This is an automatic ending of the
claim to ensure all processes in relation to an application are able to be
completed by a direct refusal of the offer of redress or termination of the
claim through inaction.
Subclause 45(3) provides that subclause 45(2) does not apply if the person
has applied for a review of the Operator's determination on their
application for redress under clause 73 and the review has not been
completed at the end of the acceptance period.
Example:
Person L applies for redress, is found eligible by the Operator and
receives an offer. Person L decides to decline the offer of redress, and
advises the Operator of this in the form approved one month into the
acceptance period. Person L's acceptance period ends five months early.
Person L changes her mind three weeks after rejecting her offer. However,
her acceptance period has ended, so she is not entitled to redress.
Clause 46 requires a notice to be given to participating institutions that
the offer is declined. Subclause 46(1) provides that the Operator must
give each institution that was notified under clause 41 of the offer,
written notice that the person has declined the offer in accordance with
clause 45.
Subclause 45(2) provides that the notice must comply with any requirements
prescribed by the rules.
Part 2-5 - Provision of redress under the Scheme
Division 1 - Simplified outline of this Part
Clause 47 provides a simplified outline of Part 2-5.
Division 2 - The redress payment
Clause 48 specifies that the Operator must pay the redress payment.
Subclause 48(1) provides that if a person is entitled to redress (see
clause 12) and the person has stated in the acceptance document that the
person wishes to be paid the redress payment, then the Operator must pay
the payment to the person as soon as practicable.
Subclause 48(2) permits the rules to prescribe matters relating to the
making of redress payments.
Clause 49 sets out the general rules relating to the protection of the
redress payment. Subclause 49(1) provides that a redress payment is a
payment of compensation under the Scheme. However, for the purposes of the
Social Security Act, the Veterans' Entitlements Act and any other
Commonwealth, State or Territory legislation, the payment is not to be
treated as being a payment of compensation or damages. The note clarifies
that this subclause prevents a redress payment affecting other payments
that may be payable to the person under legislation (for example, when
determining whether a social security payment is payable, or the amount of
such a payment, the redress payment is not to be taken into account).
Subclause 49(2) provides that for the purposes of any law of the
Commonwealth, a State or a self-governing Territory, in relation to a
redress payment the payment and the entitlement to the payment are
absolutely inalienable, whether by way of or in consequence of, sale,
assignment, charge, execution, bankruptcy or otherwise and no amount may be
deducted from the payment.
The effect of paragraph 49(2)(a) is to specifically exclude payments under
the Scheme from the definition of 'compensation' or 'damages' for the
purposes of any Commonwealth, State or self-governing Territory law so that
benefits received under the Scheme will not be used to repay amounts paid
under other regimes or schemes. For example, redress payments will not be
compensation for the purposes of the Health and Other Services
(Compensation) Act 1995, the Social Security Act or the Veterans
Entitlements Act. The intention of the redress payment is to acknowledge
harm. It is not intended to compensate for loss or provide damages.
Paragraph 49(2)(b) makes it clear that a redress payment cannot be used to
offset any other debt to the Commonwealth.
Subclause 49(3) provides that nothing in this this Bill prevents a
liability insurance contract from treating a redress payment as being a
payment of compensation or damages. This subclause facilitates the
insurers of participating non-government institutions to treat redress
payments as compensation or damages under liability contracts. This allows
non-government institutions to be assisted by insurers to meet their
liability for redress under existing insurance contracts.
Clause 50 provides additional protection for redress payments from
garnishee orders.
Subclause 50(1) specifies that if a redress payment is going to be, or has
been, paid to the credit of an account and a court order in the nature of a
garnishee order comes into force in relation to the account, the court
order does not apply to the saved amount (if any) in the account.
Subclause 50(2) provides the following method statement to work out the
saved amount:
. Step 1 - Work out the amount of the redress payment that has been paid
to the credit of the account in the year immediately before the court
order came into force.
. Step 2 - Subtract from the amount of the redress payment the total
amount withdrawn from the account during that year. The result is the
saved amount.
Division 3 - Counselling and psychological component of redress
Clause 51 deals with providing access to the counselling and psychological
component of redress. Subclause 51(1) applies if a person is entitled to
redress under the Scheme (see clause 12) and the person stated in the
acceptance documents (under clause 42) that the person wishes to access the
counselling and psychological component of redress.
Subclause 51(2) applies to the provision of counselling and psychological
services if the person lives (as stated in their application) in a
participating jurisdiction that is a declared provider of these services
under the Scheme. In these circumstances:
a) the Operator must refer the person to the participating jurisdiction
as soon as practicable after the person becomes entitled to redress;
and
b) the participating jurisdiction must provide for the delivery of
counselling and psychological services under the Scheme in accordance
with the National Service Standards as soon as practicable after
receiving the referral.
Subclause 51(3) provides that, if subclause 51(2) does not apply, then the
Operator must pay the person a counselling and psychological services
payment as soon as practicable after the referral. Subclause 51(4)
provides that the rules may prescribe matters relating to the payment of
counselling and psychological services payments.
Clause 52 provides general rules for the protection of the counselling and
psychological services payment. Subclause 52(1) provides that a
counselling and psychological services payment is a payment of compensation
under the Scheme. However, for the purposes of the Social Security Act,
the Veterans' Entitlements Act and any other Commonwealth, State or
Territory legislation, the payment is not to be treated as being a payment
of compensation or damages. The note clarifies that this subclause
prevents a counselling and psychological services payment affecting other
payments that may be payable to the person under legislation (for example,
when determining whether a social security payment is payable, or the
amount of such a payment, a counselling and psychological services payment
is not to be taken into account).
Subclause 52(2) provides that for the purposes of any law of the
Commonwealth, a State or a Territory, a counselling and psychological
services payment:
a) the payment and the entitlement to the payment are absolutely
inalienable, whether by way of, or in consequence of, sale,
assignment, charge, execution, bankruptcy or otherwise; and
b) no amount may be deducted from a counselling and psychological
services payment.
Subclause 52(3) provides that this Bill does not prevent a counselling and
psychological services payment being treated as a payment of compensation
or damages under a liability insurance contract.
This subclause facilitates the insurers of participating non-government
institutions to treat counselling and psychological services payments as
compensation or damages under liability contracts. This allows non-
government institutions to be assisted by insurers to meet their liability
for redress under existing insurance contracts.
The effect of paragraph 52(2)(a) is to specifically exclude payments under
the Scheme from the definition of 'compensation' or 'damages' for the
purposes of any Commonwealth, State or self-governing Territory law so
that benefits received under the Scheme will not be used to repay amounts
paid under other regimes or schemes. For example, redress payments will not
be compensation for the purposes of the Health and Other Services
(Compensation) Act 1995, the Social Security Act or the Veterans
Entitlements Act. The intention of the redress payment is to acknowledge
harm. It is not intended to compensate for loss or provide damages.
Paragraph 52(2)(b) makes it clear that a counselling and psychological
services payment cannot be used to offset any other debt to the
Commonwealth.
Clause 53 provides additional protection for counselling and psychological
services payments from garnishee orders.
Subclause 53(1) specifies that if a counselling and psychological services
payment is going to be or has been paid to the credit of an account and a
court order in the nature of a garnishee order comes into force in relation
to the account, the court order does not apply to the saved amount (if any)
in the account.
Subclause 53(2) provides the following method statement to work out the
saved amount:
. Step 1 - Work out the amount of the counselling and psychological
services payment that has been paid to the credit of the account in
the year immediately before the court order came into force.
. Step 2 - Subtract from the amount of the counselling and psychological
services payment the total amount withdrawn from the account during
that year. The result is the saved amount.
Division 4 - Direct personal response
Clause 54 provides for a direct personal response to be given from
responsible institutions. Subclause 54(1) provides that a participating
institution must take reasonable steps to provide a direct personal
response to a person who has expressed a wish, when accepting the offer of
redress, to be given a direct personal response from the institution as
part of their redress. The participating institution would have received a
notice under clause 44 that indicated the components of redress the person
wished to receive, including a direct personal response
(paragraph 44(1)(b)).
Subclause 54(2) sets out what constitutes a direct personal response from a
participating institution. These are:
a) an apology or a statement of acknowledgement or regret;
b) an acknowledgement of the impact of the abuse on the person;
c) an assurance as to the steps the institution has taken, or will take,
to prevent abuse occurring again;
d) an opportunity for the person to meet with a senior official of the
institution.
Subclause 54(3) provides that the participating institution must take into
account the direct personal response framework when providing a direct
personal response.
Clause 55 provides for the direct personal response framework. Subclause
55(1) provides that the Minister may declare, in writing, guidelines about
how direct personal responses are to be provided under the Scheme. The
note clarifies that a declaration made under subclause 55(1) may be varied
or revoked as provided for in subsection 33(3) of the Acts Interpretation
Act 1901.
Subclause 55(2) provides that the declaration is the direct personal
response framework.
Subclause 55(4) provides that when making the declaration, the Minister
must have regard to the principles in clause 56.
Subclause 55(4) provides that a declaration under subclause 55(1) is a
legislative instrument, but is exempt from section 42 of the Legislation
Act 2003, which provides for disallowance. It is necessary to exempt this
Ministerial declaration from disallowance so that the method or matters to
be taken into account for the purpose of ensuring that institutions provide
a consistent approach to giving direct personal responses to survivors.
This declaration would ordinarily be of an administrative character and
would not be a legislative instrument without this provision. However, in
order to ensure certainty and transparency it is appropriate to make this
declaration a legislative instrument.
Clause 56 outlines the general principles which guide the way in which a
direct personal response is provided to a person under the Scheme.
Subclause 56(1) provides that all participating institutions should offer
and provide on request by a survivor meaningful recognition of the
institution's responsibility by way of a statement of apology,
acknowledgement or regret and an assurance as to steps taken to protect
against further abuse.
Subclause 56(2) provides that engagement between a participating
institution and a survivor (being an applicant under the Scheme) should
occur only if, and to the extent, a survivor desires it.
Subclause 56(3) requires participating institutions to be clear about what
they are willing to offer and provide by way of a direct personal response
to survivors. It also requires institutions to ensure they are able to
provide the direct personal response that they offer to the survivor.
Subclause 56(4) requires participating institutions to be responsive to
survivors' needs in offering a direct personal response.
Subclause 56(5) encourages participating institutions that already provide
a broader range of direct personal responses to survivors should consider
continuing this approach when participating in the Scheme.
Subclause 56(6) provides that direct personal responses should be delivered
by people who have suitable training about the nature and impact of child
sexual abuse and the needs of survivors (including cultural awareness and
sensitivity training as required).
Subclause 56(7) provides that participating institutions should welcome
feedback from survivors about the direct personal responses the
institutions offer and provide.
Chapter 3 - Special rules to deal with exceptional cases
Part 3-1 - Special rules allowing entitlement to redress
Division 1 - Simplified outline of this Part
Clause 57 provides a simplified outline of Part 3-1.
Division 2 - Death of person before acceptance of redress offer
Clause 58 applies in circumstances where a person applies for redress under
clause 19 of the Scheme, but dies before a determination on the application
is made under clause 29 of the Scheme (subclause 58(1)).
Subclause 58(2) provides that in such circumstances the Operator must
continue to deal with the application as if the person had not died.
Subclause 58(3) provides that if the Operator approves the application
under paragraph 29(2)(a) the Operator must:
a) make a determination under paragraph 29(2)(b) about each
participating institution that is responsible for the abuse; and
b) make a determination under paragraph 29(2)(c) as to:
i) the amount of the redress payment for the person; and
ii) the amount of each responsible institution's share of the costs of the
redress payment; and
c) if paragraph 29(2)(i) applies to a participating government
institution and defunct institution (that is, that they are equally
responsible for the abuse)- determine, under that paragraph, that the
participating government institution is the funder of last resort for
the defunct institution.
Subclause 58(4) provides that the redress payment for the person under this
clause is payable in accordance with clause 60.
A rule making power is provided in subclause 58(5) to allow rules to be
made prescribing matters relating to giving notices to a person or
participating institution in relation to the operation of this clause.
Clause 59 applies in circumstances where a person applies for redress under
clause 19 and the person dies after an offer of redress is made under
clause 39 but before the offer is accepted, declined or withdrawn. In such
circumstances, the offer is deemed to be withdrawn immediately after the
person dies (subclause 59(2)).
Subclause 59(3) provides that, if, before the person died, the person had
not made an application under clause 73 for review or the review had
completed, then the redress payment for the person is payable in accordance
with clause 60.
Subclause 59(4) provides that if the person had made an application for
review under clause 73 before their death, and the review had not been
completed, then the application continues as if the person had not died. If
the review approves the person's application for redress, the redress
payment is payable in accordance with clause 60.
A rule making power is provided in subclause 59(5) to allow rules to be
made prescribing matters relating to giving notices to a person or
participating institution in relation to the operation of this clause.
Clause 60 will apply if a redress payment for a deceased person is payable
under subclause 58(4), 59(3) or paragraph 59(4)(d).
Subclause 60(2) provides that the Operator must determine who should be
paid the redress payment and pay the redress payment to that person or
those persons as soon as practicable.
Subclause 60(3) specifies the Operator may, in determining who should be
paid the redress payment, consider the people who are entitled to the
property of the deceased person under:
a) the deceased person's will; and
b) the law relating to the disposition of the property of deceased
persons.
Subclause 60(4) provides that the Operator may pay the redress payment
without requiring the production of probate of the will of the deceased
person, or letters of administration of the estate of the deceased person.
A rule making power is provided in subclause 60(5) to allow the rules to
prescribe matters relating to the payment of redress payments under
clause 60. Due to the 10 year length of the Scheme it is not possible to
identify all matters relating to the payment of redress payments under
clause 60. The rule making power provided in subclause 60(5) will ensure
that any issues that would prevent payment of the redress payment to a
person can be addressed.
Example:
Person A applies for redress under the Scheme, is determined to be eligible
and an offer of redress is made, but the person dies before they have
accepted the offer. Once the Operator of the Scheme is made aware of
Person A's death, the redress payment for the person is payable to the
person the Operator determines should be paid the redress payment. This may
include Person A's next of kin, as stipulated in Person A's will. The
redress payment is then paid to the Person A's next of kin.
Division 3 - Abuse for which a Commonwealth institution or participating
Territory institution is responsible
Clause 61 extends the eligibility for redress for abuse occurring inside a
non-participating State.
Subclause 61(1) sets out the circumstances in which a person can be
eligible for redress under the Scheme if the person does not meet the
condition in paragraph 13(1)(b) because the sexual abuse of the person
occurred inside a non-participating State. A person is eligible for
redress under the Scheme where the sexual abuse of that person occurred in
a non-participating State if a Commonwealth institution or a participating
Territory institution is primarily responsible for the abuse of the person,
and they are otherwise eligible for redress under subclause 13(1).
Subclause 61(2) provides that if a person is eligible for redress under the
Scheme because of subclause 61(1) then the abuse of the person is within
the scope of the Scheme for the purposes of subclause 14(2).
Part 3-2 - Special rules excluding entitlement to redress
Division 1 - Simplified outline of this Part
Clause 62 provides a simplified outline of Part 3-2.
Division 2 - Special assessment of applicants with serious criminal
convictions
Clause 63 allows for a determination to be made that a person with a
serious criminal conviction is entitled to redress.
Subclause 63(1) provides that clause 63 applies to a person who applies
under clause 19 for redress for abuse of the person, and who, either before
or after making the application, is sentenced to imprisonment for five
years or longer for an offence against a law of the Commonwealth, a State,
a Territory or a foreign country.
Subclause 63(2) provides that for the purposes of subclause 12(4) (persons
not entitled to redress where prescribed by the Act or rules), a person to
whom clause 63 of the Scheme applies is not entitled to redress unless a
determination that the person is not prevented from being entitled is in
force under subclause 63(5).
Paragraph 63(3)(a) requires that as soon as practicable after becoming
aware of a person's sentence, the Operator must consider whether to make a
determination under subclause 63(5) that the person is entitled to redress.
Paragraph 63(3)(b) provides that the Operator must give a notice in
accordance with subclause 63(4) to each of the following (a specified
advisor):
. the Attorney-General of the State or Territory (or a person nominated
in writing by the relevant State or Territory Attorney-General), if
the abuse of the person occurred inside a participating State or
Territory or if the person's conviction was for an offence against a
law of a participating State or Territory;
. the Commonwealth Attorney-General, if the abuse occurred outside a
participating State or Territory or if the offence was against a law
not covered by subparagraph 63(b)(iii).
Subclause 63(4) sets out the requirements for a notice that is required to
be given under subclause 63(3). A notice must request the specified
advisor to provide advice about whether the Operator should make a
determination under subclause 63(5) that the person is entitled to redress.
The notice must include sufficient information to enable the specified
advisor to provide the requested advice and must specify a period of at
least 28 days from the date of the notice within which the advice may be
provided.
Subclause 63(5) allows the Operator to determine that a person to whom
clause 63 applies is not prevented from being entitled to redress if
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.
Subclause 63(6) requires the Operator, in making a determination under
subclause 63(5), to take into account the following:
a) any advice given by the specified advisor in the period referred to in
the notice given under subclause 63(3); and
b) the nature of the offence for which the person was convicted; and
c) the length of the person's sentence of imprisonment; and
d) the length of time since the person committed the offence; and
e) any rehabilitation of the person; and
f) any other matter the Operator considered to be relevant.
Subclause 63(7) provides that when taking into account the matters set out
in subclause 63(6), the Operator must give greater weight to any advice
that is given by a specified advisor form the jurisdiction in which the
abuse of the person occurred and is given in the period referred to in the
notice, that to any other matter..
A rule making power is provided in subclause 63(8) to allow rules to be
made prescribing matters relating to the giving of notices to a person or a
participating institution in relation to a determination under subclause
63(5).
Example:
Person B applies to the Scheme, and notifies the Operator that they have a
previous criminal sentence of 5 years imprisonment. Person B provides the
Operator with context of their offending, including information showing
that their offence occurred 20 years ago, they have committed no further
offending, and provides evidence of positive rehabilitation outcomes. As
Person B's abuse and offending occurred in the Australian Capital Territory
(ACT), which is a participating Territory, the Operator provides written
notice, including Person B's contextual information, to the ACT Attorney
General asking for advice on whether Person B should be entitled to redress
under the Scheme. The ACT Attorney-General provides advice to the Operator
that Person B should receive redress. The Operator, after taking into
account the Attorney General's advice and the contextual information of
Person B's prior offending, is satisfied that providing Person B with
redress would not bring the Scheme into disrepute or adversely affect
public confidence in the Scheme. The Operator determines that Person B is
entitled to redress.
Person C applies to the Scheme and notifies the Operator that they have a
previous criminal sentence of 15 years imprisonment. Person C provides the
Operator with information about their offence, which includes information
about further offending. Person C does not provide sufficient information
demonstrating positive rehabilitation outcomes. Person C's primary offence
occurred in Victoria, however Person C's abuse occurred in New South Wales,
and both States are participating in the Scheme. The Operator provides
written notice, including Person C's contextual information, to the
Victorian and News South Wales Attorneys General asking for advice on
whether Person C should be entitled to redress under the Scheme. The News
South Wales Attorney-General does not provide advice during the specified
period.
The Victorian Attorney-General nominates the Secretary of a Department of
State of Victoria (the Secretary) to provide advice on their behalf. The
Secretary provides advice to the Operator that Person C is a person of
notoriety that could bring the Scheme into disrepute, and advises that they
should not receive redress. The Operator, after taking into account the
Secretary's advice, is satisfied that Person C could bring the Scheme into
disrepute or adversely affect public confidence in, or support for, the
Scheme. The Operator does not determine that Person C is entitled to
redress under the Scheme.
Division 3 - Security notices
Division 3 provides circumstances where a person is not entitled to redress
under the Scheme while a security notice is in force. 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.
Subdivision A- No entitlement to redress while security notice in force
Clause 64 provides that for the purposes of subclause 12(4) (persons not
entitled to redress where prescribed by the Act or rules), a person is not
entitled to redress under the Scheme while a security notice is in force in
relation to the person.
Subdivision B - Security notice
Clause 65 provides for the Home Affairs Minister to give a security notice
requiring that Division 3 apply in relation to a specified person, meaning
that person will not be entitled to redress.
Subclause 65(1) provides that the Home Affairs Minister may give the
Minister a written notice requiring that Division 3 apply to a specified
person in the following circumstances:
a) the Foreign Affairs Minister gives the Home Affairs Minister a notice
under subclause 66(1) in relation to the person; or
b) 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); or
c) 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
d) the person's visa is cancelled under section 501 of the Migration Act
1958 and there is an assessment by the Australia 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).
Subclause 65(2) requires the Home Affairs Minister to have regard, before
giving a security notice, to the extent (if any and as far as the Home
Affairs Minister is aware) that any redress payments to the person have
been or may be used for a purpose that might prejudice the security of
Australia or a foreign country.
Subclause 65(3) clarifies that subclause 65(2) does not limit the matters
to which the Home Affairs Minister may have regard before giving a security
notice.
Subclause 65(4) provides that a security notice is not a legislative
instrument. This is declaratory of the law as security notices would not
meet the definition of legislative instrument in subsection 8(4) of the
Legislation Act 2003.
Clause 66 gives the Foreign Affairs Minister the power to give the Home
Affairs Minister a written notice setting out the following matters in
relation to a person:
a) either:
i) under subsection 14(2) of the Australian Passports Act 2005, the
Foreign Affairs Minister refuses to issue a person an Australian
travel document; or
ii) under section 22 of that Act, the Foreign Affairs Minister
cancels a person's Australian travel document; and
b) the refusal or cancellation was because of a refusal/cancellation
request made in relation to the person under subsection 14(1) of that
Act; and
c) the request was made on the basis of the circumstance mentioned in
subparagraph 14(a)(i) of that Act (that the person might prejudice the
security of Australia or a foreign country).
Subclause 66(2) provides that a security notice is not a legislative
instrument. This is declaratory of the law as a written notice in this
respect would not meet the definition of legislative instrument in
subsection 8(4) of the Legislation Act 2003.
Clause 67 requires the Minister to give a copy of a security notice
received from the Home Affairs Minister to the Operator and to the
Secretary of the Human Services Department.
Clause 68 provides that a security notice comes into force on the day it is
given to the Minister, and remains in force until it is revoked.
Clause 69 requires the Home Affairs Minister to consider whether to a
revoke a security notice that is in force before the end of the following
periods: 12 months after the notice came into force, and before 12 months
after the Home Affairs Minister last considered whether to revoke the
notice.
Clause 70 allows the Home Affairs Minister to revoke a security notice by
written notice to the Minister, with effect from the day the notice is
made. The Minister must give a copy of a notice of revocation to the
Operator and to the Secretary of the Human Services Department.
Subdivision C - Other matters affected by a security notice
Clause 71 sets out the circumstances in which an application for redress is
taken to be withdrawn and an offer taken to have been revoked, because of a
security notice.
Subclause 71(1) deems a person's application for redress to have be
withdrawn under subclause 22(1) if either a determination has not been made
under clause 29 or an offer of redress has not been given to the person
under clause 39. The withdrawal takes effect at the time the security
notice comes into force.
Subclause 71(2) deems a person's offer to have been revoked by the Operator
under subclause 29(4) and the application to have been withdrawn under
subclause 22(1) if the person has made an application under clause 19 and
an offer of redress has been given under clause 39, but the offer has not
been accepted, declined or withdrawn. Revocation of the offer and
withdrawal of the application takes effect at the time the security notice
comes into force.
A rule making power is provided in subclause 71(3) to allow rules to be
made prescribing matters relating to the giving of notices to a person or a
participating institution in relation to the operation of Division 3 in
relation to the person's entitlement to redress.
Chapter 4 - Administrative matters
Part 4-1 - Review of determinations
Division 1 - Simplified outline of this Part
Clause 72 provides a simplified outline of Part 4-1.
Division 2 - Review of determinations
Clause 73 provides that a person may apply to the Operator to review a
determination made in relation to the person under clause 29. The
determination made under clause 29 is the original determination.
Subclause 73(2) provides that the application for review must be made
before the day specified in the notice of the determination given under
clause 34. Clause 34 requires the Operator to give a notice about the
determination made under clause 29. The application must also be in the
approved form.
Clause 74 provides for a person to withdraw their application for internal
review under clause 73 at any time before the review has been completed.
An application that is withdrawn is taken to have never been made. An
application may be withdrawn by giving oral or written notice to the
Operator.
Clause 75 sets out the process for review of a redress determination.
Subclause 75(1) provides that the Operator must, if an application is made
under clause 73, review the original determination or cause the original
determination to be reviewed by an independent decision-maker who has been
delegated the power to make such a determination and who was not involved
in making the original determination.
Subclause 75(2) provides that the person reviewing the original
determination must reconsider the determination and either affirm or vary
the determination or set aside the determination and substitute a new
determination.
Subclause 75(3) clarifies that when reviewing the original determination,
the person may only have regard to the information and documents that were
available to the person who made the original determination. The
limitation placed on the internal reviewer to only have regard to the
information and documents that were available to the person who made the
original determination is to balance the need for an expedited application
process for survivors with the burden of administration. Further, allowing
the internal reviewer to request further information from survivors will
create a high level of administrative burden, add to the potential re-
traumatisation of survivors having to seek additional material and increase
the operational costs for institutions to participate in the Scheme.
Clause 76 provides that a determination to vary an original determination
or to set aside an original determination and substitute a new
determination takes effect on the day specified in the review
determination. The review of the original determination as varied or
substituted is taken to be the determination made by the Operator under
clause 29 from the day the review determination takes effect.
Example:
Person A makes an application for redress and is made an offer, but
disagrees with the offer made. They then have the determination reviewed
internally, and a substituted offer is made. The review determination may
specify a date (for example, 20 March 2020) when the new determination
takes effect.
Clause 77 provides that the Operator must give the applicant written notice
of the review determination, stating the reasons for it.
Clause 78 clarifies the interaction between review and the offer of
redress. Clause 78 applies when a person is given an offer of redress
under clause 39 and the person applies for a review of the original
determination
Subclause 78(2) makes it clear that a person is taken to have withdrawn an
application for review if they accept or decline an offer within the
acceptance period but before the review is completed. In such
circumstances, the application for review is taken to have been withdrawn
immediately before the offer is accepted or declined.
Under subclause 78(3), if the original determination under subclause 29(2)
is varied or substituted, the Operator must withdraw the original offer and
notify the person in writing. If the varied or substituted determination
approves the application for redress, the Operator must give the person a
new offer in accordance with clause 39.
Under subclause 78(4), if the original determination under 29(2) is
affirmed and approves the application for redress and the person has been
given an offer of redress under clause 39, the Operator must extend the
acceptance period under clause 40(2) for an additional two months.
Clause 79 requires the Operator to notify each institution that was
notified of the determination under clause 35 if a person makes an
application for review, withdraws an application for review or if a review
determination is made. The notice must comply with any requirements
prescribed by the rules.
Part 4-2 - Nominees
Division 1 - Simplified outline of this Part
Clause 80 provides a simplified outline of Part 4-2.
Division 2 - Appointment of nominees
Clause 81 provides for the appointment of nominees.
Subclause 81(1) allows the Operator to appoint a person, in writing, to be
the assistance nominee or legal nominee of the applicant. A body corporate
may be named as a person's assistance nominee or legal nominee.
The Operator cannot appoint a person to be the assistance nominee of the
applicant unless the person and the applicant consent in writing to the
appointment (subclause 81(2)).
Subclause 81(3) provides that the Operator cannot appoint a person to be an
applicant's legal nominee unless:
a) under a law of the Commonwealth, a State or a Territory the person has
power to make decisions for the applicant in all matters that are
relevant to the duties of a legal nominee; and
b) the person gives written consent to the appointment; and
c) the Operator has taken into account any wishes of the applicant
regarding the making of such an appointment.
The note to subclause 81(3) makes it clear that a person who may be
eligible to be an applicant's legal nominee is a person who, under a
guardianship order or power of attorney, has power to make decisions for
the applicant in all relevant matters.
Under paragraph 81(3)(c), the Operator is only required to consider the
wishes of the applicant, and does not require the applicant's consent.
This is because it may not be possible for some applicants to provide
consent where a legal nominee is to be appointed (for example, where the
applicant has an existing power of attorney arrangement as a result of
their incapacity).
Subclause 81(4) provides that a copy of an appointment under clause 81 must
be given to the nominee and the applicant.
Clause 82 provides for the suspension and revocation of nominee
appointments.
Subclause 82(1) specifies that the Operator must revoke the appointment of
an assistance nominee or legal nominee if requested in writing by the
nominee. The appointment of an assistance nominee must also be revoked if
requested in writing by the applicant. Revocation must take place as soon
as practicable.
Subclause 82(2) provides for the suspension or cancellation of a nominee's
appointment. This may occur where the Operator gives the nominee a notice
under clause 87 and the nominee subsequently informs the Operator that an
event or change of circumstances has occurred, or is likely to occur, and
that event or change of circumstances is likely to have an effect referred
to in paragraph 87(1)(b) (that is, it will affect the ability of the
nominee to act as the legal or assistance nominee of the person).
Subclause 82(3) provides that the Operator may suspend or revoke a
nominee's appointment in circumstances where the Operator gives a nominee a
notice under clause 88 and the nominee does not comply with a requirement
of the notice.
While an appointment is suspended the appointment has no effect
(subclause 82(4)). The Operator may revoke the suspension of an
appointment that was suspended under subclause 82(2) or (3) at any time
(subclause 82(5)). The suspension or revocation of an appointment and the
revocation of a suspension must be in writing (subclause 82(6)) and has
effect on and from the day specified (subclause 82(7)).
Subclause 82(8) provides that the Operator must give a nominee and
applicant a copy of any suspension, revocation or revocation of a
suspension of the nominee's appointment.
Division 3 - Duties, functions and responsibilities of nominees
Clause 83 sets out the duty of an assistance nominee or legal nominee of a
person. The duty is to act in the best interests of the person at all
times. Where the nominee reasonably believes that doing an act is in the
best interests of the person, the nominee does not breach the duty by doing
that act. Likewise, where the nominee reasonably believes that refraining
from doing an act is in the best interests of the person, the nominee does
not breach the duty by refraining from doing that act.
Clause 84 sets out the effect of actions of an assistance nominee.
Subclause 84(1) allows an assistance nominee of a person to perform any act
that may be done by the person under or for the purpose of the Bill.
Subclause 84(2) provides that subclause 84(1) does not authorise a person's
assistance nominee to do any of the following on the person's behalf:
a) make an application for redress under clause 19;
b) accept an offer of redress under clause 42;
c) decline an offer of redress under clause 45;
d) do an act for the purposes of Division 2;
e) do an act prescribed by the rules.
However, subclause 84(1) does not apply if the Operator gives a notice to a
person who has an assistance nominee and the notice requires the person to
do an act (subclause 84(3)).
The limitations set out under subclause 84(1) reflect the purpose of an
assistance nominee - that is, to assist an applicant with the redress
process but not make key decisions on their behalf. This is distinct from a
legal nominee, as set out below.
Subclause 84(4) provides that an act done by a person's assistance nominee
under clause 84 has effect as if it had been done by the person.
Clause 85 sets out the effect of actions of a legal nominee.
Subclause 85(1) allows a legal nominee of a person to perform any act that
may be done by the person under or for the purpose of the Bill.
Subclause 85(2) clarifies, without limiting subclause 85(1), that a legal
nominee for a person may make an application under the Bill on behalf of
the person and the application will be taken to be made by the person.
Similarly, a legal nominee for a person may accept an offer under clause 42
or reject an offer under clause 45 on behalf of the person and the offer
will be taken to have been accepted or declined by the person.
The actions set out under subclause 85(2) are consistent with the higher
'threshold' required to appoint a legal nominee in the first instance.
That is, the person will already have the power to make decisions for the
applicant under an existing law, and as a result, they will be able to make
key decisions for the applicant in relation to redress such as accepting an
offer.
Subclause 85(3) provides that an act done by a person's legal nominee under
clause 85 has effect as if it had been done by the person.
Clause 86 provides for giving notices to an assistance nominee or legal
nominee.
Subclause 86(1) enables the Operator to give any notice the Operator is
required or authorised to give under the Bill, to a person's assistance
nominee or legal nominee in place of the person. Any such notice must in
every respect be in the same form and in the same terms as if it were being
given to the person (paragraph 86(2)).
Clause 87 sets out the requirement for a nominee to inform the Operator of
matters that affect their ability to act as a nominee.
Subclause 87(1) states that the Operator may give a nominee a notice that
requires the nominee to inform the Operator if there is an event or change
of circumstances or the nominee becomes aware that such an event or change
of circumstances is likely to happen. The event or change of circumstances
must be likely to affect the ability of the nominee to act, the ability of
the Operator to give notices to the nominee or the ability of the nominee
to comply with notices given by the Operator. An example of a relevant
change of circumstances is that the nominee has changed address.
Subclause 87(2) sets out specific requirements for the notice. The notice
must be in writing and must specify how, and the period within which the
nominee is to inform the Operator and the period within which the nominee
is to inform the Operator. A notice will not be invalid merely because it
fails to specify how the information is to be given to the Operator
(subclause 87(3)).
The period within which information must be provided to the Operator must
not end any earlier than 14 days after the day of the event or change of
circumstances or the day on which the nominee becomes aware that the event
of change or circumstances is likely to happen (subclause 87(4)). However
this does not apply to a requirement in a notice to inform the Operator
that the nominee proposes to leave Australia (subclause 87(5)).
Division 4 - Other matters relating to nominees
Clause 88 protects a person against liability for actions of the person's
nominee. This clause operates so that a person is not taken to have
committed an offence against the Bill in relation to any act or omission of
their nominee.
Clause 89 protects the nominee against criminal liability. This clause
provides that a nominee of a person is not subject to any criminal
liability under the Bill in relation to any act or omission of the person
or anything done in good faith by the nominee in his or her capacity as
nominee.
Clause 90 provides that if the Operator gives a notice to a person who has
a nominee, the Operator may inform the nominee of the fact that the notice
has been given and may inform the nominee of the terms of the notice.
Part 4-3 - Protecting information under the Scheme
Division 1 - Simplified outline of this Part
Clause 91 provides a simplified outline of Part 4-3.
Division 2 - Use and disclosure of protected information
Clause 92 sets out the purpose of Division 2 and defines protected
information. A large amount of protected information will likely be
acquired by the Operator through the operation of the Scheme, and the
protection of that information and a person's right to privacy is
considered paramount.
Subclause 92(1) provides that Division 2 deals with how protected
information may be obtained, recorded, disclosed or used for the purposes
of the Scheme.
Subclause 92(2) defines protected information broadly as information about
a person or an institution that was obtained by an officer of the Scheme
for the purposes of the Scheme and is or was held in the records of the
Department (the Department of Social Services) or the Human Services
Department (the Department of Human Services). Protected information
includes information to the effect that there is no information about a
person held in the records of the Departments referred to in paragraph
92(2)(a)(ii).
Clause 93 sets out the main authorisation for obtaining, recording,
disclosing or using protected information.
Subclause 93(1) provides that a person may obtain protected information,
make a record of protected information, disclose protected information to
another person, or use protected information, if the obtaining, recording,
disclosure or use of the information is done:
. for the purposes of the Scheme; or
. with the express or implied a consent of the person or institution to
which the information relates; or
. if the person believes on reasonable grounds that doing so is
necessary to prevent or lessen a serious threat to an individual's
life, health or safety.
Subclause 93(2) provides that a person may use protected information to
produce information in an aggregated form that does not disclose, either
directly or indirectly, information about a particular person or
institution.
Clause 94 provides that the Operator may disclose protected information
that relates to a person who has applied for redress to the person's
nominee.
Clause 95 gives the Operator the power to disclose protected information in
the public interest or for another specified purpose.
Subclause 95(1) provides that the Operator may disclose protected
information that was provided to, or obtained by, an officer of the Scheme
for the purposes of the Scheme if:
a) the Operator certifies that it is necessary in the public interest in
a particular case or class of cases (for example, if it is necessary
for the investigation of a criminal offence or to locate a missing
person) and the disclosure is to such persons and for such purposes as
determined by the Operator; or
b) the disclosure is to:
i) a person who is expressly or impliedly authorised by the person
or institution to which the information relates to obtain it; or
ii) the Chief Executive Centrelink for the purposes of a Centrelink
program (within the meaning of the Human Services (Centrelink)
Act 1997); or
iii) the Chief Executive Medicare for the purposes of a Medicare
program (within the meaning of the Human Services (Medicare) Act
1973); or
iv) the head (however described) of a government institution, for
the purposes of that institution.
Subclause 95(2) provides that a person to whom protected information is
disclosed under subclause 95(1) may obtain, make a record or, disclose or
use the information if the person does so for the purpose for which the
information was disclosed under that subclause.
Subclause 95(3) provides that, if the Operator certifies that protected
information may be disclosed in the public interest or to the head of a
government institution for the purposes of that institution, then the
Operator must act in accordance with any rules made for the purposes of
subclause 95(4).
Subclause 95(4) provides that the rules may make provision for and in
relation to the exercise of either or both of the following:
a) the Operator's power to certify for the purpose of disclosing
protected information in the public interest (paragraph 95(1)(a)); or
b) the Operator's power to disclose information to the head of a
government institution for the purposes of that institution
(subparagraph 95(1)(b)(iv)).
The rule-making power in subclause 95(4) is necessary to ensure that the
Scheme can be flexible in adapting to a range of circumstances not yet
contemplated in this Bill where it may be necessary to disclose
information. There will be scope for the use of this rule-making power to
be scrutinised via the normal operation of the Scheme, including reports
and reviews of the Scheme's implementation.
Subclause 95(5) clarifies that a certificate or determination under
paragraph 95(1)(a) is not a legislative instrument. This is declaratory of
the law as public interest certificates would not meet the definition of
legislative instrument in subsection 8(4) of the Legislation Act 2003.
Clause 96 provides for the Operator to disclose protected information for
law enforcement or child safety or wellbeing.
Subclause 96(1) provides that clause 96 applies if the Operator is
satisfied that the disclosure of protected information is reasonably
necessary for either the enforcement of the criminal law or the safety or
wellbeing of children (a relevant purpose).
Subclause 96(2) provides that protected information may be disclosed by the
Operator to a government institution that has functions that relate to the
relevant purpose.
Subclause 96(3) provides that the Operator must have regard to the impact
the disclosure might have on a person that has applied for redress before
disclosing protected information that relates to the person.
Subclause 96(4) provides that if the information is disclosed to a
government institution under subclause 96(2), then an employee or officer
of the institution (the government official) may:
a) obtain the information; or
b) make a record of the information; or
c) disclosure the information to a person; or
d) use the information;
but only if the government official does so for a relevant purpose, and
does so in their capacity as an employee or officer of the government
institution.
Subclause 96(5) provides that the Operator may, in writing, impose
conditions to be complied with in relation to protected information
disclosed under subclause 96(2). It is an offence for a person, who is
subject to a condition imposed under subclause 96(5), to engage in conduct
(within the meaning of the Criminal Code) that breaches the condition. The
penalty is two years imprisonment or 120 penalty units, or both
(subclause 96(6)). The penalty reflects the importance of handling the
sensitive information held by the Scheme appropriately and will deter a
recipient of information from breaching a condition imposed by the
Operator. This allows the Operator to continue to exercise control over
protected information after it is disclosed.
Subclause 96(7) provides that an instrument under subclause 96(5) is not a
legislative instrument.
Clause 97 provides for obtaining, recording, disclosing and using protected
information for a permitted purpose.
Subclause 97(1) provides for disclosure by a person to a government
official. If protected information is disclosed to a government
institution, then an employee or officer of the institution (the government
official) may obtain, make a record of, disclose or use the information,
if:
. the government official does so for the enforcement of the criminal
law, the safety or wellbeing of children, investigatory, disciplinary
or employment processes related to the safety or wellbeing of children
or a purpose prescribed by the rules (a permitted purpose); and
. the government official does so in their capacity as an employee or
officer of that institution; and
. a law of the Commonwealth, a State or a Territory does not prohibit
the government official from doing so.
For clarity and without limiting what protected information can be
disclosed under clause 97, this clause would allow states and territories
to comply with existing reportable conduct schemes. For example, this
clause would allow the disclosure of protected information for the purpose
of complying with Victoria's reportable conduct scheme under the Child
Wellbeing and Safety Act 2005 (Vic).
Subclause 97(2) provides that if:
a) a person is satisfied that the disclosure of protected information
is reasonable necessary for a permitted purpose; and
b) a law of the Commonwealth, State or Territory requires or permits
the person to disclose the information to a government institution
that has functions that relate to that purpose;
then the person may disclose the information to that institution for that
purpose.
Subclause 97(3) provides that subclause 97(2) does not apply if the person
is:
a) an officer of the Scheme; or
b) an employee or the officer of a government institution.
Subclause 97(4) provides that the rules may prescribe that specified
persons are officers of a government institution for the purposes of
subclause 97(1) or paragraph 97(3)(b).
Clause 98 provides additional authorisation to persons engaged by
participating institutions to obtain, make record of, disclose and
otherwise use protected information for a specified purpose. Clause 98
will allow participating institutions to undertake certain activities
related to their participation in the Scheme such as making claims against
their insurance to cover the cost of redress payment. It will also allow
participating institutions to use Scheme information to conduct internal
investigations and disciplinary proceedings where, for example, an alleged
perpetrator is still employed by, or associated with, the institution.
Subclause 98(1) provides that a person engaged by a participating
institution, as an employee or otherwise, may obtain, make a record of,
disclose or use protected information if the person believes on reasonable
grounds that it is reasonably necessary for one of the following purposes
specified in subclause 98(2):
a) complying with a request under clause 25 to provide information; or
b) providing a direct personal response to a person under clause 54;
c) facilitating a claim under an insurance policy; or
d) undertaking internal investigation and disciplinary procedures.
Subclause 98(3) provides that the person must have regard to the impact the
disclosure might have on a person that has applied for redress before
disclosing protected information that relates to the person.
Clause 99 creates an offence if a person obtains, records, discloses or
uses protected information and is not authorised or required by or under
the Bill to obtain, make a recording of, disclose or use the protected
information. The penalty is imprisonment for 2 years, 120 penalty units or
both. This penalty is considered to be an appropriate deterrent against
unauthorised recording, disclosure or use of protected information and
recognises the sensitivity of information held by the Scheme. Subclause
99(2) provides that a person won't have committed an offence if the person
did not obtain the information under, for the purposes of, or in connection
with the Scheme, or the person had already obtained the information before
they obtained the information in connection with the Scheme.
For clarity, information that is obtained by a person independently of the
Scheme is not protected information for the purposes of this Part, even if
that same information was also provided to an officer for the purposes of
the Scheme and is protected.
For example, if an official of a government institution is provided with
information through a complaints process set up under legislation, and that
information was also provided to an officer for the purposes of the Scheme,
the information that was provided to an official for the complaints process
would not be protected information. However, the information that was
provided to an officer for the purposes of the Scheme would be protected
information (even if both the protected and non-protected information is
identical). This means that this Part does not impose requirements or
conditions on the usage of the non-protected information.
Clause 100 creates an offence if a person solicits the disclosure of
information from an officer of the Scheme or another person, the disclosure
would contravene Division 2 of Part 4-3 of Chapter 4 and the information is
protected information. The penalty is imprisonment for 2 years, 120
penalty units or both. This penalty is considered to be an appropriate
deterrent against soliciting the disclosure of protected information and
recognises the sensitivity of information held by the Scheme. A person may
commit an offence under subclause 100(1) even if no protected information
is actually disclosed (see subclause 100(2)).
Clause 101 creates offences relating to an offer to disclose protected
information.
Subclause 101(1) provides that a person commits an offence if the person
offers to disclose information about another person (whether to a
particular person or otherwise); the disclosure would be in contravention
of this Division; and the information is protected information. The
penalty is imprisonment for 2 years, 120 penalty units or both. This
penalty is considered to be an appropriate deterrent against offering to
disclose protected information about another person and recognises the
sensitivity of information held by the Scheme.
Subclause 101(2) provides that a person commits an offence if the person
holds himself or herself out as being able to disclose information about
another person (whether to a particular person or otherwise); the
disclosure would be in contravention of this Division; and the information
is protected information. The penalty is imprisonment for 2 years, 120
penalty units or both. This penalty is considered to be an appropriate
deterrent against a person holding themselves out as being able to supply
protected information about another person and recognises the sensitivity
of information held by the Scheme.
Division 3 - Use and disclosure of the assessment framework policy
guidelines
Clause 102 provides that the main authorisation for an officer of the
Scheme to obtain, record, disclose (to another officer of the Scheme) or
otherwise use information contained in the assessment framework policy
guidelines, is where it is done so for the purposes of the Scheme.
Clause 103 provides additional authorisations to disclose and use
information contained in the assessment framework policy guidelines.
Subclause 103(1) provides that the Minister or the Operator may disclose
information contained in the assessment framework policy guidelines to a
person where it is done so in accordance with the requirements set out in
the National Redress Scheme Agreement.
Subclause 103(2) provides that a person who receives information under
subclause 103(1) may obtain, make a record of, disclose to another person
or use that information in accordance with the requirements set out in the
National Redress Scheme Agreement.
Clause 104 provides that a person commits an offence if the person obtains,
makes a record of, discloses or uses information that is contained in the
assessment framework policy guidelines and the person is not authorised or
required to do so under this Bill. The penalty is imprisonment for 2
years, 120 penalty units or both. This penalty is considered to be an
appropriate deterrent against unauthorised access to protected information
and recognises the sensitivity of information held by the Scheme.
This Division is necessary to ensure that the assessment framework policy
guidelines are appropriately protected from unauthorised use and
disclosure, as the guidelines provide additional matters that the Operator
may take into account when applying the assessment framework (clauses 32
and 33), which may contain graphic and triggering descriptions of abuse.
Further, protecting the assessment framework policy guidelines from
unauthorised use and disclosure will assist with mitigating the risk of
fraudulent and enhanced applications, as unauthorised disclosure of the
guidelines could enable people to understand how payments are attributed
and calculated.
Division 4 - Other matters
Clause 105 provides for disclosures of protected information or information
contained in the assessment framework policy guidelines to a court or a
tribunal.
Subclause 105 (1) provides that provides that a person must not be required
to disclose protected information or information contained in the
assessment framework policy guidelines to a court or a tribunal in any
civil proceedings.
However, subclause 105(2) creates an exception and provides that subclause
105(1) does not apply if the disclosure of the information is for the
purposes of giving effect to the Bill. Subclause 105(3) provides that for
the purposes of subclause 105(2), (without limiting subclause 105(2)), if
the disclosure of the information is in civil proceedings for judicial
review of a decision made under this Bill, then the disclosure is for the
purposes of giving effect to this Bill.
Subclause 105(4) provides that subsection 105(1) does not apply if the
disclosure of the information is in civil proceedings under, or arising out
of clause 28 (which is about giving false or misleading information,
documents, or statements to an officer of the Scheme).
Subclause 105(5) provides that subsection 105(1) does not apply if the
person did not obtain the information under, for the purposes of, or in
connection with the Scheme, or the person had already obtained the
information before they obtained the information in connection with the
Scheme.
Subclause 105(6) provides that the protected information and information
contained in the assessment framework policy guidelines is not to be
published by any person, court or tribunal.
The objects of the Scheme are to provide an avenue for a payment that
acknowledges a wrong that might otherwise be pursued through civil
litigation. The Scheme would be undermined if it were able to be used as a
form of discovery in court proceedings. It would also overload the
administrative arm of the Scheme which would result in delays to the
process of assessing applications under the Scheme.
Clause 106 provides for disclosures of information in good faith.
Subclause 106(1) provides that clause 106 applies if a person discloses
information for the purposes of the Scheme in good faith.
Subclause 106(2) provides that if a person makes such a disclosure in good
faith, they will not be liable to any civil or criminal proceedings, or any
disciplinary action for disclosing the information. Further, subclause
106(3) provides that the person cannot be held to have breached any code of
professional etiquette or ethics or departed from any accepted standards of
professional conduct.
Chapter 5 - Participating institutions, participating groups and
participating jurisdictions
Part 5-1 - Participating institutions
Division 1 - Simplified outline of this Part
Clause 107 provides a simplified outline of Part 5-1.
Division 2 - Institutions participating in the scheme
Subdivision A - Participating institutions
Clause 108 sets out what is a participating institution.
Subclause 108(1) provides that for a person to be eligible for redress for
sexual abuse or non-sexual abuse, a participating institution must be
responsible for the abuse.
Subclause 108(2) provides that a Commonwealth institution, a participating
State institution, a participating Territory institution or a participating
non-government institution is a participating institution for the purposes
of the scheme.
Subdivision B - Commonwealth institutions
Clause 109 sets out what is a Commonwealth institution. Subclause 109(1)
provides that an institution is a Commonwealth institution if it:
a) is or was part of the Commonwealth; or
b) is or was a Commonwealth entity (within the meaning of the Public
Governance, Performance and Accountability Act 2013); or
c) is or was a wholly-owned Commonwealth company; or
d) is or was a body (whether or not incorporated) established by or under
a law of the Commonwealth; or
e) it is an institution that is prescribed by the rules as being a
Commonwealth institution.
The rule making power in paragraph 109(1)(e) is intended to provide a
safety net so that where there is any uncertainty as to whether an
institution is covered by paragraphs (a) to (d); the institution may be
prescribed as being a Commonwealth institution. This will ensure that the
scheme is able to provide redress to as many survivors of abuse as
possible.
Subclause 109(2) provides that an institution is not a Commonwealth
institution if that institution:
a) is a body politic that is a participating Territory, or is or was part
of a body politic that is a participating Territory; or
b) is or was body corporate (other than a wholly-owned Commonwealth
company) that is or was registered under the Corporations Act 2001
(including a body corporate taken to be registered under that Act
because of the operation of Chapter 10 of that Act (which is about
transitional provisions)); or
c) is an institution that is prescribed by the rules as not being a
Commonwealth institution.
The rule making power in paragraph 109(2)(c) is intended to be used to
exclude an institution where it is more appropriate for that institution to
pay redress for a person (rather than the Commonwealth).
Subclause 109(3) provides that rules made for the purposes of paragraph
109(1)(e) or 109(2)(c) may prescribe that an institution is, or is not, a
Commonwealth institution in relation to a period specified by the rules.
This would, for example, allow an institution to be prescribed as not being
a Commonwealth institution for a specific period that it was not under
Commonwealth control.
Subdivision C - Participating State institutions
Clause 110 provides that an institution is a participating State
institution if it is a State institution and a declaration by the Minister,
under subclause 115(2) that the institution is a participating institution
is in force. Subclause 115(2) allows the Minister to make declarations
about participating institutions.
Clause 111 sets out what is a State institution. Subclause 111(1) provides
that an institution is a State institution if it:
a) is or was part of a State; or
b) is or was a body (whether or not incorporated) established by or under
a law of the participating State; or
c) is an institution that is prescribed by the rules as being a State
institution.
Subclause 111(2) provides that an institution is not a State institution if
the rules prescribe that the institution is not a State institution. This
rule making power is intended to be used to exclude an institution where it
is more appropriate for that institution to pay redress for a person
(rather than the State).
Subclause 111(3) provides that rules made for the purposes of
paragraph 111(1)(c) or subsection 111(2) may provide that an institution
is, or is not, a State institution in relation to a period specified by the
rules. This would allow, for example, the rules to prescribe an
institution is not a State institution for a specific period that it was
not under control of the State government.
Subdivision D - Participating Territory institution
Clause 112 provides that an institution is a participating Territory
institution if it is a Territory institution and a declaration by the
Minister, under subclause 115(2) that the institution is a participating
institution is in force. Subclause 115(2) allows the Minister to make
declarations about participating institutions.
Clause 113 sets out what is a Territory institution. Paragraphs 113(1)(a)
to (c) provide that an institution is a Territory institution if it:
a) is or was part of a participating Territory; or
b) is or was a body (whether or not incorporated) established for a
public purpose by or under a law of a participating Territory; or
c) is an institution that is prescribed by the rules as being a Territory
institution.
The rule making power in paragraph 113(1)(c) is intended to provide a
safety net so that where there is any uncertainty as to whether an
institution is covered by paragraph113(1)(a) or 113(1)(b) the institution
may be prescribed as being a Territory institution. This will ensure that
the Scheme is able to provide redress to as many survivors of abuse as
possible.
Subclause 113(2) provides that an institution is not a Territory
institution if the rules prescribe, that the institution is not a Territory
institution. The rule making power may be used to exclude an institution
in circumstances where it is more appropriate for that institution to pay
redress for a person (rather than the Territory).
Subclause 113(3) provides that rules made for the purposes of paragraph
113(1)(c) or 113(2)(b) may provide that an institution is, or is not, a
Territory institution in relation to a period specified in the rules. This
would allow, for example, the rules to prescribe an institution is not a
Territory institution for a specific period that it was not under control
of the Territory government.
Subdivision E - Participating non-government institution
Clause 114 sets out what is a participating non-government institution.
Subclause 114(1) provides that an institution is a participating non-
government institution if the institution is or was a non-government
institution and a declaration is in force under subclause 115(2) that
allows the Minister to make declarations about participating institutions.
Subclause 114(2) provides that a non-government institution is an
institution that is not a Commonwealth institution, State institution or a
Territory institution.
Subclause 114(3) provides that an institution is not a non-government
institution if the rules prescribe that the institution is not a non-
government institution. This subclause covers the case where an
institution was established, but not at the time the abuse occurred (for
example, if the institution was established in the ACT, but was then
incorporated in NSW at the time of the abuse).
Subclause 114(4) provides that rules made for the purposes of subsection
114(3) may provide that an institution is not a non-government institution
in relation to a period specified by the rules. This would for example,
allow an institution to be prescribed as not being a non-government
institution of a State or Territory for a specific period that it was
incorporated in another jurisdiction.
Division 3 - Ministerial declarations about participating institutions
Clause 115 provides for the Minister to make declarations about
participating institutions. Subclause 115(1) provides that an institution
becomes a participating institution of the Minister makes a declaration
under subclause 115(2) in relation to the institution.
Subclause 115(2) provides that the Minister may, by notifiable instrument,
declare that an institution is a participating institution.
This declaration will be done by notifiable instrument, rather than by
legislative instrument, to allow for greater expediency when adding to or
removing the institutions contained in the instrument. This is to allow for
the timely processing of applications in the scheme and to ensure survivors
have timely, up-to-date information about institutional participation in
the scheme.
Note 1 to subclause 115(2) clarifies that an institution may be identified
by name, by inclusion in a particular class, or in any other way. This
means that, for example, the Minister could declare "all public schools in
the state of New South Wales" rather than necessarily listing each
individual public school by name.
Note 2 to subclause 115(2) provides that the Minister need not make a
declaration under subclause 115(2) for a Commonwealth institution because
all Commonwealth institutions are participating institutions automatically.
This note also directs the reader to clause 108, which provides that a
Commonwealth institution is a participating institution.
Subclause 115(3) provides that the Minister must not make a declaration
under subclause 115(2) unless the Minister is satisfied of the following:
a) for a State institution - the participating State has agreed, in a
way provided for in the State's referral Act or adoption Act, to the
institution participating in the Scheme; and
b) for a Territory institution - the participating Territory has agreed
to the institution participating in the Scheme; and
c) for a non-government institution (other than a defunct institution or
an unincorporated lone institution) - the institution has agreed to
participate in the Scheme; and
d) for a non-government institution that is a defunct institution - a
person has agreed:
i) to the defunct institution participating in the Scheme; and
ii) to be the representative for the defunct institution; and
e) for a non-government institution that is an unincorporated lone
institution:
i) the institution has agreed to participate in the Scheme; and
ii) the institution has agreed to a person being the representative for
the institution; and
iii) the person has agreed to being the representative for the institution;
and
f) in all cases - any requirements prescribed by the rules are satisfied.
A defunct institution is one that no longer exists, which is why there is
no requirement for a defunct institution to agree to its own participation
in the Scheme.
Note 1 to subclause 115(3) directs the reader to clause 186, which
provides for how the agreement of a participating Territory, an institution
or a person is given.
Note 2 to subclause 115(3) directs the reader to Divisions 4 and 5, which
deal with representatives for defunct institutions and lone institutions.
Subclause 115(4) provides that the Minister must not make a declaration
under subclause 115(2) in relation to an institution after the second
anniversary of the commencement of the Scheme, or a later day prescribed by
the rules, unless the institution is a defunct institution. This might
allow, for example, the Minister to prescribe a later day if a number of
institutions indicate their willingness to participate in the scheme after
the second anniversary of the commencement of the Scheme.
Subclause 115(5) provides that if a State or Territory has agreed to a
State or Territory institution participating in the Scheme and the
institution is a body corporate, then the institution is taken to have also
agreed to participate in the Scheme.
Clause 116 provides for when an institution ceases to be a participating
institution. Subclause 116(1) provides that an institution ceases to be a
participating institution if the declaration made under subclause 115(2) is
revoked under subclause 116(2), (3), (4) or (5).
Subclause 116(2) provides that the Minister may revoke a declaration made
under subclause 115(2) in relation to an institution.
The note to subclause 116(2) clarifies that if the declaration is revoked,
the institution will cease to be a participating institution, however it
will remain a participating institution in relation to an application for
redress that is made before the revocation (see subclause 118(7)).
Subclause 116(3) provides that where a participating State, participating
Territory or participating non-government institution (other than a defunct
institution) requests, in writing, that the Minister revoke a declaration
made under subclause 115(2), the Minister must do so as soon as
practicable.
Subclause 116(4) provides that if a defunct participating non-government
institution ceases to have a representative the Minister must revoke the
declaration made under subclause 115(2) as soon as practicable.
As defunct institutions are required to have a representative in order to
participate in the Scheme, it is appropriate that should the defunct
institution not have a representative, then its own participation in the
Scheme is revoked. Should the defunct institution obtain another
representative, the declaration of the defunct institution's participation
can be re-made.
A defunct institution is one that no longer exists, which is why there is
no requirement for a defunct institution to request that a declaration be
revoked.
Subclause 116(5) provides that if a participating unincorporated lone
institution ceases to have a representative, the Minister must revoke the
declaration made under subclause 115(2) as soon as practicable.
As unincorporated lone institutions are required to have a representative
in order to participate in the Scheme, it is appropriate that should the
unincorporated lone institution not have a representative, then its own
participation in the Scheme is revoked. Should the unincorporated lone
institution obtain another representative, the declaration of the
unincorporated lone institution's participation can be re-made.
Subclause 116(6) provides that despite subclauses 116(2), (3), (4) and (5),
the Minister must not revoke a declaration made under subclause 115(2) in
relation to an institution unless any requirements prescribed by the rules
in relation to the revocation are satisfied.
Subclause 116(7) provides that if the Minister revokes a declaration made
under 115(2), then, despite the revocation, the institution continues to be
a participating institution in relation to a person who made an application
for redress before the revocation, as if the declaration were still in
force. This is to ensure that institutions cannot avoid obligations under
the Scheme in relation to applications that are ongoing at the time that
their participation is revoked.
Example
If the Operator determines that the institution is responsible for the
abuse of the person, the institution will still be required to provide a
direct personal response to the person (if the person chooses that
component of redress) and pay funding contribution in relation to the
person.
Division 4 - Participating defunct institutions
Subdivision A - Participating defunct institutions
Clause 117 sets out that a participating defunct institution is a
participating institution (either a government or non-government
institution) that is defunct. The note clarifies that the institution may
be a government or non-government institution.
Subdivision B - Representatives for participating defunct institutions
Clause 118 provides for representatives for participating defunct
institutions. Subclause 118(1) provides that a participating defunct
institution must have a representative for the institution.
The note to subclause 118(1) clarifies that the Bill applies to the
representative as if it were the defunct institution. The note references
clauses 121, 122 and 123, which provide for the actions of representatives,
giving notices to representatives and the obligations to be discharged by
representatives for participating defunct institutions.
Subclauses 118(2), (3) and (4) provide that the representatives for a
defunct Commonwealth institution, a defunct participating State institution
and a defunct participating Territory institution is the Commonwealth, the
participating State and the participating Territory, respectively.
Subclause 118(5) provides that the representative for a defunct
participating non-government institution is the person in relation to whom
a declaration is in force under clause 119.
Subclause 118(6) provides that a defunct institution may have only one
representative. However, subclause 118(7) provides that a person may be the
representative for more than one participating defunct institution.
Clause 119 provides for when a person becomes a representative for a
defunct non-government institution. Clause 119 sets out that if a defunct
non-government institution is declared a participating institution under
subclause 115(2), then the Minister must, by notifiable instrument, make a
declaration that the person who agreed to be the representative for the
institution (as referred to in paragraph 115(3)(d)), is the representative
for the institution.
Example
An orphanage closed down in 1980, and an institution wishes to be the
representative for that orphanage to enable it to participate in the
Scheme. The Minister makes a declaration that the institution is the
representative for the orphanage.
Clause 120 provides for when a person ceases to be the representative for a
defunct non-government institution.
Subclause 120(1) provides that the Minister may vary or revoke a
declaration made under clause 119 in relation to a representative for a
defunct non-government institution.
Subclause 120(2) provides that if the representative for a defunct
institution requests the Minister in writing to revoke a declaration made
under clause 119 the Minster must revoke that declaration as soon as
practicable. Any requirements prescribed by the rules in relation to the
person ceasing to be the representative must be satisfied prior to the
revocation under subclause 120(2).
The note to subclause 120(2) clarifies that if a participating defunct
institution does not have a representative, then the Minister must revoke
the declaration made under subclause 115(2) that the defunct participating
institution is a participating institution. The note references subclause
116(4) which sets out that if a participating defunct non-government
institution ceases to have a representative, the Minister must revoke the
declaration made under subclause 115(2) as soon as practicable.
Subclause 120(3) provides that despite subclauses 120(1) and (2), the
Minister must not vary or revoke a declaration made under clause 119 in
relation to an institution unless any requirements prescribed by the rules
in relation to the variation or revocation are satisfied.
Subclause 120(4) provides that if:
a) the Minister revokes a declaration made under subclause 115(2) in
relation to a defunct institution; but
b) because of subclause 116(7), the institution continues to be a
participating institution in relation to a person who made an
application for redress before the revocation;
then the representative for the institution continues to be the
representative for the institution in relation to the person (even if the
declaration made under clause 119 for the representative have been revoked
under this clause).
Clause 121 provides for actions of the representative for a defunct
institution.
Subclause 121(1) sets out that any act that may be done by a participating
defunct institution under, or for the purposes of, this Bill must be done
by the representative for the institution on behalf of the institution.
This might include, for example, providing a direct personal response or
providing information to the scheme, or paying a funding contribution.
Subclause 121(2) makes it clear that where an act is done by the
representative for a participating defunct institution on behalf of the
institution, it is taken to have been done by the defunct institution.
Clause 122 states that any notice that the Operator is required or
authorised by the Bill to give to a participating defunct institution must
be given by the Operator to the representative for the institution.
Clause 123 states that any obligation or liability imposed by the Bill on a
participating defunct institution is taken to be imposed instead on the
representative for the institution.
Note 1 to clause 123 provides an example of an obligation that may be
imposed on the defunct institution, which is the obligation under clause 54
to provide a direct personal response to a person. That obligation will be
imposed on the representative.
Note 2 to clause 123 provides an example of a liability that may be imposed
on the defunct institution, which is the liability under clause 149 to pay
funding contribution. That liability will be imposed on the representative.
Division 5 - Participating lone institutions
Clause 124 sets out what is a participating lone institution.
Subclause 124(1) provides that a participating lone institution is a
participating institution that is a lone institution. Subclause 124 (2)
provides that an institution is a lone institution if it is a non-
government institution and is not a member of a participating group and is
not defunct.
Subclause 124(3) provides that there are two types of lone institutions:
a) a lone institution that is not a legal person (which is an
unincorporated lone institution); and
b) a lone institution that is a legal person (which is an incorporated
lone institution).
Subclause 124(4) provides that a participating unincorporated lone
institution is a participating institution that is an unincorporated lone
institution.
Subclause 124(5) provides that a participating incorporated lone
institution is a participating institution that is an incorporated lone
institution.
Subdivision B - Representatives for participating lone institutions
Clause 125 provides for representatives for participating lone
institutions. Subclause 125(1) provides that a participating incorporated
lone institution may have a representative for the institution; however a
participating unincorporated lone institution must have a representative.
The requirement for an unincorporated lone institution to have a
representative (which is a legal person) provides the Scheme with a
safeguard in the event that the unincorporated institution (which is not a
legal person) cannot meet any of its obligations under the Scheme. Without
this requirement, it would be difficult for the Scheme to allow the
participation of unincorporated institutions. This does not apply to
incorporated lone institutions.
Subclause 125(2) provides that the representative for a participating
unincorporated lone institution is the person in relation to whom a
declaration is in force under clause 126, which provides for when a person
becomes a representative for an unincorporated lone institution.
Subclause 125(3) provides that the representative for a participating
incorporated lone institution is the person in relation to whom a
declaration is in force under subclause 127(1), which provides for when a
person becomes a representative for the institution.
Subclause 125(4) provides that a participating lone institution may only
have one representative for the institution. However, subclause 125(5)
provides that a person may be the representative for more than one
participating lone institution.
Clause 126 provides for when a person becomes a representative for an
unincorporated lone institution. Clause 126 sets out that if an
unincorporated lone institution is declared a participating institution
under subclause 115(2), then the Minister must, by notifiable instrument,
make a declaration that the person that agreed to be the representative for
the institution (as referred to in paragraph 115(3)(e)), is the
representative for the institution.
Clause 127 provides for when a person becomes the representative for an
incorporated lone institution. Subclause 127(1) provides that the Minister
may make a declaration that a person is the representative for a
participating incorporated lone institution.
Subclause 127(2) provides that the Minister must not make a declaration
under subclause 127(1) unless the Minister is satisfied that:
a) the institution has agreed to the person being the representative for
the institution; and
b) the person has agreed to being the representative for the institution.
The clause reflects the intent that institutions (where incorporated and
not in a participating group) may not want a representative and they may
instead prefer to engage with the Scheme directly.
The note to subclause 127(23) directs the reader to clause 186, which
provides for how the agreement of the institution or the person is given.
Clause 128 provides for when a person ceases to be the representative for a
lone institution.
Subclause 128(1) provides that the Minister may vary or revoke a
declaration made under clause 126 or 127 in relation to a representative
for a lone institution.
Subclause 128(2) provides that if the institution or the representative
requests the Minister in writing to revoke a declaration made under clause
126 or 127 the Minster must revoke that declaration as soon as practicable.
Any requirements prescribed by the rules in relation to the person ceasing
to be the representative must be satisfied prior to the revocation under
subclause 128(2).
The note to subclause 128(2) clarifies that if a participating
unincorporated lone institution does not have a representative then the
Minister must revoke the declaration made under subclause 115(2) that the
lone institution is a participating institution. The note references
subclause 116(5) which sets out that if a participating lone institution
ceases to have a representative, the Minister must revoke the declaration
made under subclause 115(2) as soon as practicable.
Subclause 128(3) provides that despite subclauses 128(1) and (2), the
Minister must not vary or revoke a declaration made under clause 126 or 127
in relation to an institution unless any requirements prescribed by the
rules in relation to the variation or revocation are satisfied.
Subclause 128(4) provides that if:
a) the Minister revokes a declaration made under subclause 115(2) in
relation to an unincorporated lone institution; but
b) because of subclause 116(7), the institution continues to be a
participating institution in relation to a person who made an
application for redress before the revocation;
then the representative for the institution continues to be the
representative for the institution in relation to the person (even if the
declaration made under clause 126 for the representative have been revoked
under this clause).
Clause 129 provides for actions of the representative for a lone
institution.
Subclause 129(1) sets out that the representative for the lone institution
may do any act that may be done by a participating lone institution under,
or for the purposes of, this Bill. This might include, for example,
providing a direct personal response, providing information to the scheme,
or paying a funding contribution.
Subclause 129(2) makes it clear that where an act is done by the
representative for a participating lone institution on behalf of the
institution it is taken to have been done by the institution.
Clause 130 states that any notice that the Operator is required or
authorised by the Act to give to a participating lone institution must be
given by the Operator to the representative for the institution (subclause
130(1)). Subclause 130(2) provides that a notice given under subclause
30(1) must, in every respect, be in the same form and in the same terms, as
if it were being given to the institution.
Clause 131 provides that if a participating unincorporated lone institution
is liable to pay funding contribution for a quarter, then the institution
and the representative for the institution are jointly and severally liable
to pay the funding contribution. This requirement provides the Scheme with
a safeguard, in the event that the participating unincorporated lone
institution is not be able to pay a funding contribution.
Part 5-2 - Groups of institutions participating in the Scheme
Division 1 - Simplified outline of this Part
Clause 132 provides a simplified outline of Part 5-2.
Division 2 - Participating groups
Clause 133 provides for how participating groups are formed. Subclause
133(1) provides that two or more participating institutions may form a
participating group for the purposes of the Scheme.
Subclause 133(2) provides that a participating group is a group of
participating institutions for which a declaration is in force under
subclause 134(1). Subclause 133(3) provides that a participating
institution that is a member of a participating group is an associate of
each other member of the group.
The note to subclause 133(3) clarifies that particular provisions of this
Bill apply in a special way for associates, and refers the reader to
clauses 42 and 43, which are about releasing institutions and officials
from civil liability for abuse.
Clause 134 provides for how institutions become members of a participating
group.
Subclause 134(1) provides for the declaration that two or more
participating institutions form a participating group by the Minister, in
the form of a notifiable instrument.
Subclause 134(2) provides that the Minister must not make a declaration
under subclause 134(1) unless the Minister is satisfied of the following:
a) for a group of Commonwealth institutions - the Commonwealth has agreed
to each Commonwealth institution being a member of the group; and
b) for a group of State institutions - the participating State has
agreed, in a way provided for in the State's referral Act or adoption
Act, to each State institution being a member of the group; and
c) for a group of Territory institutions - the participating Territory
has agreed to each Territory institution being a member of the group;
and
d) for a group of non-government institutions:
i) each institution has agreed to be a member of the group and to each
other institution being a member of the group; and
ii) there is sufficient connection between each institution in the group;
and
e) in all cases:
i) each institution is not a member of another participating group; and
ii) there is a representative for the group (as provided for in
subclause 136(1)); and
iii) any other requirements prescribed by the rules are satisfied.
The note to subclause 134(2) directs the reader to clause 186, which
provides for how the agreement of the Commonwealth, a participating
territory, an institution or a person is given.
Because of the implications of clauses 42 and 43, which is that all
associates of a group are released from civil liability where one associate
is liable, it is appropriate, particularly in relation to non-government
institutions, that there is a sufficient connection between each
institution in the group, and that each institution is only a member of one
participating group.
Subclause 134(3) provides that if a State or Territory has agreed to a
State or Territory institution being a member of a participating group, and
that institution is a body corporate, then the institution is taken to have
also agreed to be a member of the participating group.
Clause 135 provides for when institutions cease to be members of a
participating group.
Subclause 135(1) provides that the Minister may vary or revoke a
declaration made under subclause 134(1).
Subclause 135(2) provides that if:
a) a State requests the Minister in writing to vary or revoke a
declaration made under subclause 134(1) in relation to a group of
State institutions so that the group ceases to be a participating
group; or a State institution ceases to be a member of the group; or
b) a participating Territory requests the Minister in writing to vary or
revoke a declaration made under subclause 134(1) in relation to a
group of Territory institutions so that the group ceases to be a
participating group; or a Territory institution ceases to be a member
of the group; or
c) all of the non-government institutions that are members of a
participating group request the Minister in writing to revoke a
declaration made under subclause 134(1) in relation to the group so
that it ceases to be a participating group; or
d) a participating non-government institution that is a member of a
participating group request the Minister in writing to vary a
declaration made under subclause 134(1) in relation to the institution
so that it ceases to be a member of the group;
then the Minster must, by notifiable instrument, vary or revoke the
declaration as requested as soon as practicable.
Subclause 135(3) provides that if a participating group of non-government
institutions ceases to have a representative, then the Minister must revoke
the declaration made under subclause 134(1) as soon as practicable.
As participating groups are required to have a representative in order to
exist in the Scheme, it is appropriate that should the group not have a
representative, then the declaration that the institutions form a
participating group is revoked. For clarity, this does not have the effect
of revoking each institution's participation in the Scheme. Should the
institutions appoint another representative, the declaration that the
institutions are a participating group can be re-made.
Subclause 135(4) provides that despite subclauses 135(1), (2) and (3), the
Minister must not vary or revoke a declaration made under clause 134(1) in
relation to a participating group unless any requirements prescribed by the
rules in relation to the variation or revocation are satisfied.
Subclause 135(5) provides that if:
a) the Minister revokes a declaration made under subclause 115(2) in
relation to a participating institution that is a member of a
participating group immediately before the revocation; but
b) because of subclause 116(7), the institution continues to be a
participating institution in relation to a person who made an
application for redress before the revocation;
then each of the associates of the institution continues to be an associate
of the institution in relation to the person, as if the institution was
still a member of the group.
Division 3 - Representatives for participating groups
Clause 136 provides for representatives for participating groups. Subclause
135(1) provides that a participating group must have a representative for
the group.
Subclauses 136(2), (3) and (4) provide that the representative for a
participating group of Commonwealth, State and Territory institutions is
the Commonwealth, participating State or participating Territory
respectively.
Subclause 136(5) provides that the representative for a participating group
of non-government institutions is the person in relation to whom a
declaration is in force under subclause 137(1)
Subclause 136(6) provides that a participating group may only have one
representative for the group. However, subclause 136(7) provides that a
person may be the representative for more than one participating group.
Clause 137 provides for a person becoming the representative for a
participating group of non-government institutions. Subclause 137(1)
provides that the Minister may, by notifiable instrument, declare that a
person is the representative for a participating group of non-government
institutions.
Subclause 137(2) provides that the Minister must not make a declaration
under subclause 137(1) unless the Minister is satisfied of the following:
a) the person has agreed to be the representative for the group; and
b) each participating institution that is a member of the group has
agreed to the person being the representative for the group; and
c) there is not a declaration in force under subclause 137 (1) declaring
another person to be the representative for the group; and
d) any other requirements prescribed by the rules are satisfied.
The note to subclause 137(2) directs the reader to clause 186, which
provides for how the agreement of an institution or a person is given.
Clause 138 provides for when a representative ceases to be the
representative for a participating group of non-government institutions.
Subclause 138(1) provides that the Minister may revoke a declaration made
under clause 137(1) in relation to a representative for a participating
group.
Subclause 138(2) provides that if the representative or each of the members
of the group (other than the representative, where the representative is a
member) requests the Minister in writing to revoke a declaration made under
subclause 137(1), the Minster must revoke that declaration.
The note to subclause 138(2) clarifies that if a participating group of non-
government institutions does not have a representative then the Minister
must revoke the declaration made under subclause 134(1) that the group is a
participating group. The note references subclause 135(3) which sets out
that if a participating group ceases to have a representative, the Minister
must revoke the declaration made under subclause 134(1) as soon as
practicable.
Subclause 138(3) provides that despite subclauses 138(1) and (2) the
Minister must not revoke a declaration made under subclause 137(1) unless
any requirements prescribed by the rules in relation to the revocation are
satisfied.
Subclause 138(4) provides that if:
a) the Minister revokes a declaration made under subclause 115(2) in
relation to a participating institution that is a member of a
participating group immediately before the revocation; but
b) because of subclause 116(7), the institution continues to be a
participating institution in relation to a person who made an
application for redress before the revocation;
then the representative for the participating group continues to be the
representative for the group in relation to that person, as if the
institution was still a member of the group.
Clause 139 provides for the actions of the representatives for
participating groups.
Subclause 139(1) provides that any act that a participating institution
that is a member of a participating group may do under, or for the purposes
of, this Bill may be done by the representative on behalf of that
institution. This might include, for example, providing a direct personal
response, providing information to the scheme, or paying a funding
contribution.
Subclause 139(2) makes it clear that where an act is done by a
representative for a participating group on behalf of participating
institution that is a member of the group it is taken to have been done by
that institution.
Clause 140 provides for giving notices to representatives for participating
groups.
Subclause 140(1) states that the Operator must give a representative for a
participating group a notice that the Operator is required or authorised to
give to a participating institution that is member of the group.
Subclause 140(2) states that the notice given under subclause 140 (1) must,
in every respect, be in the same form, and in the same terms, as if it were
being given to the participating institution concerned.
Clause 141 provides that if a participating institution is liable to pay
funding contribution for a quarter, and the institution is a member of a
participating group, then that institution and the representative are
jointly and severally liable to pay the funding contribution for the
quarter.
Part 5-3 - Jurisdictions participating in the Scheme
Division 1 - Simplified outline of this Part
Clause 142 provides a simplified outline of Part 5-3.
Division 2 - Participating jurisdictions
Clause 143 provides that a jurisdiction is a participating jurisdiction if
it is the Commonwealth, a participating State, or a participating
Territory.
Clause 144 provides for when a State is a participating State for the
purposes of the Scheme.
Subclause 144(1) provides a State is a participating State if the
Parliament of a State has, for the purposes of paragraph 51(xxxvii) of the
Constitution, either:
a) by a referral Act, referred to the Commonwealth Parliament the text
reference and amendment reference, specified in subclause 144(2) and
144(3) respectively, before the commencement of this Bill; or
b) by an adoption Act, adopted the relevant version of this Bill and
referred to the Commonwealth Parliament the amendment reference,
specified in subclause 144(3), after the enactment of this Bill.
Subclause 144(2) provides that text reference means the matters to which
the initial referred provisions relate, to the extent of making laws with
respect to those matters, by including the initial referred provisions in
the original version of this Bill, once enacted.
Subclause 144(3) provides that amendment reference means the referred
national redress scheme matters, as defined in clause 145, to the extent of
making laws with respect to those matters by making express amendments to
this Bill, once enacted.
Subclause 144(4) sets out matters that do not affect a State's status as a
participating State for the purposes of the Scheme. These include
provisions in a State's referral Act or adoption Act:
a) allowing the text reference or the amendment reference to terminate in
particular circumstances; or
b)
c) allowing the adoption of the relevant version of the legislation to
terminate in particular circumstances; or
d) providing that the reference to the Commonwealth Parliament of the
text reference or the amendment reference only has effect if the
matter is not included in the legislative powers of the Commonwealth
Parliament, or if and to the extent the matter is included in the
legislative powers of the Parliament of the State.
Subclause 144(5) provides that a State is not a participating State if it
has not become a participating State before the second anniversary of the
Scheme start day or a later day prescribed by the rules. The subclause has
been included to ensure each State elects to opt in to the scheme early in
the 10-year duration of the Scheme, to enable redress be provided to
survivors in a timely manner.
Subclause 144(6) provides that a State ceases to be participating State if,
in the case where the State has referred the text reference, that reference
terminates; or, in the case where the State has adopted the relevant
version of the legislation, that adoption terminates.
Subclause 144(7) provides that a State ceases to be a participating State
if the State's amendment reference terminates, subject to subclause 144(8).
Subclause 144(8) creates an exception to subclause 144(7) that allows
States to continue as participating States despite the termination of their
amendment references, if all States agree to do so on the same day and give
more than 6 months' notice of that termination. In those circumstances,
the Scheme will continue as in force on the date of the termination of the
amendment references, and the States will continue to be participating
States.
If the amendment references are terminated as envisaged by this subclause,
the Commonwealth would not be able to amend the Act relying on the
amendment references from the States. State referral or adoption Acts may
contain complementary provisions making it clear that if the amendment
reference terminates but the text reference or adoption do not terminate,
then that termination does not affect the continuing operation of the
Commonwealth Act, including provisions previously enacted in reliance on
the amendment reference.
These mechanisms allow the future of the Scheme to be determined by the
participating States and the Commonwealth in an orderly manner, without
undue detriment to survivors, by permitting the Scheme to continue despite
the termination of the amendment references.
Subclause 144(9) provides for definitions relevant to clause 144 that are
contained in the Dictionary (clause 6).
Clause 145 provides for the referred national redress scheme matters.
Subclause 145(1) provides that referred national redress matters are the
matters relating to a redress scheme for institutional child sexual abuse.
Subclause 145(2) provides for matters that are not referred national
redress matters. These matters include:
a) the making of a law to the extent that that law would operate to
prevent or limit the operation of, any State redress mechanism,
whether or not the mechanism deals with the same or similar subject
matters as those dealt with in any aspect of the Scheme;
b) the making of a law to the extent that that law would substantively
remove or override a provision of this Bill once enacted that requires
the agreement of the State.
Subclause 145(3) provides that paragraph 145(2)(a) does not cover certain
matters, if they would otherwise be covered by subclause 145(1). These
matters include:
a) any matter to which the initial referred provisions relate;
b) the matters of the release or discharge, in connection with the
operation of the scheme, of relevant civil liability of institutions
or officials;
c) the matter of the disclosure or use of evidence or other information
provided or obtained in connection with the operation of the Scheme;
d) the matter of making, enforcement or protection (for example,
protection against the operation of orders in the nature of garnishee
orders) of payments in connection with the operation of the Scheme.
Subclause 145(4) provides that a State redress mechanism is the following:
a) a scheme, program or arrangement (temporary or otherwise) established
(before or after the commencement of the State's referral Act or
adoption Act) by:
i) the Parliament or government of the State; or
ii) an institution (whether governmental or non-governmental) or other
entity;
for or in respect of persons who have suffered institutional child
sexual abuse in the State (whether applying only to any such persons
or applying to any class of victims of crime) and any associated
matters; or
b) the jurisdiction of a court or tribunal to grant compensation or
support for or in respect of victims of crime (including crime
relating to institutional child sexual abuse) and any associated
matters.
Division 3 - Participating jurisdictions providing counselling and
psychological services under the Scheme
Clause 146 provides for participating jurisdictions to request, by
notifying the Minister in writing, to become a declared provider of
counselling and psychological services under the Scheme, where there are
arrangements in place in that jurisdiction to deliver those services in
accordance with the National Service Standards set out in the National
Redress Scheme Agreement. Subclause 146(2) provides that a participating
jurisdiction is a declared provider of counselling and psychological
services if a declaration to that effect is in force under
subclause 147(1).
Clause 147 provides for Ministerial declarations about declared providers.
Subclause 147(1) provides that if the Minister receives a notice under
subclause 146(1) from a participating jurisdiction, the Minister must, by
notifiable instrument, declare that the jurisdiction is a declared provider
of counselling and psychological services under the Scheme. Subclause
147(2) provides that the Minister must, as soon as practicable, revoke the
declaration made under subclause 147(1) if a participating jurisdiction
request the Minister to do so.
Chapter 6 - Financial matters
Part 6-1 - Liability for funding
Division 1 - Simplified outline of this Part
Clause 148 provides a simplified outline of Part 6-1.
Division 2 - Liability of participating institutions for funding
contribution
The Scheme is intended to operate on a responsible entity pays basis as
recommended by the Royal Commission. Division 2 sets out how funding
contribution under the Scheme will be determined and collected by the
Operator in order to achieve that objective. As the Commonwealth will be
expending money that will be recovered from participating institutions in
arrears, Division 2 also sets out late payment penalties and recovery
mechanisms. It will be possible for the Operator to waive a funding
contribution and late payment penalty in exceptional circumstances, which
might arise where, for example, recovery would cause a participating
institution that is a charitable organisation to cease operating. Where a
participating institution applies for the waiver of funding contribution
and late payment penalty and the Operator does not waive the amount owing,
the affected institution may apply to have that decision reviewed
internally.
Clause 149 sets out liability for funding contribution under the Scheme.
Subclause 149(1) provides that if in a quarter a person becomes entitled to
redress for abuse that person suffered, each participating institution that
is determined by the Operator under paragraph 29(2)(b) to be responsible
for the abuse is liable to pay funding contribution for that quarter.
Note 1 clarifies that if the responsible institution is a defunct
institution, its representative will be liable pay the funding contribution
(see clause 123).
Note 2 clarifies that if the responsible institution is a defunct
institution, its representative instead will be jointly and severally
liable with the institution to pay the funding contribution (see clause
131).
Note 3 clarifies that if the responsible institution is a member of a
participating group, the representative for the group will be jointly and
severally liable with the institution to pay the funding contribution (see
clause 141).
Subclause 149(2) defines a quarter as a period of 3 months beginning on 1
July, 1 October, 1 January or 1 April in any year.
Subclause 149(3) provides that subclause 149(1) does not apply to a
Commonwealth institution.
Subclause 149(4) states that the rules may provide for the application of
Part 6-1 to a Commonwealth institution. This will enable the rules to set
out arrangements for the Commonwealth to allocate funding contributions if
that becomes necessary.
Clause 150 defines funding contribution for a participating institution for
a quarter. The funding contribution consists of the redress element for
the institution for a quarter and the Scheme administration element for the
institution for a quarter.
The note to this clause directs the reader to paragraph 29(2)(i) which
provides that if the Operator determines that a participating government
institution is the funder of last resort for defunct institution in
relation to abuse of a person, the government institution will be liable
for the defunct institution's (hypothetical) share of the costs of
providing redress to the person. The note to this clause directs the
reader to clause 165. Clause 165 outlines how the redress payment,
counselling and psychological component, and Scheme administration costs
are to be calculated when the Operator has determined under paragraph
29(2)(i) that a participating government institution is the funder of last
resort for a defunct institution.
Clause 151 defines the redress element of funding contribution for a
participating institution for a quarter. Clause 151 specifies that the
redress element is the amount equal to the sum of the amount of the
institution's share of the costs of the redress payment and the amount of
the institution's share of the costs of the counselling and psychological
component of redress for the quarter, for each person who is entitled to
redress.
The note to this clause directs the reader to paragraphs 29(2)(c) and
29(2)(d). Paragraph 29(2)(c) provides for the Operator to determine the
amount of the redress payment and the amount of each responsible
institution's share of the cost of a redress payment. Paragraph 29(2)(d)
provides for the Operator to determine the amount of the counselling and
psychological component of redress and the amount of each responsible
institution's share of the costs of that component.
Internal review is not available for this decision. By agreeing to
participate in the Scheme a participating institution accepts that the
Operator will make determinations in relation to the redress payment and
the counselling and psychological component they are required to pay. Each
participating institution is aware from when they agree to participate in
the Scheme that the maximum redress payment is capped at $150,000 and the
counselling and psychological component of redress may consist of either
access to counselling and psychological services or a payment, depending on
the participating State where the applicant lives at the time of their
application.
Clause 152 defines the scheme administration element of funding
contribution for a participating institution for a quarter.
Subclause 152(1) specifies that the Scheme administration element is the
amount equal to the participating institution's share of the administration
of the Scheme for the quarter.
Subclause 152(2) provides that for subclause 152(1), the Operator must
determine an institution's contribution to the costs of the administration
of the Scheme for a quarter, in accordance with any requirements prescribed
by rules.
Internal review is not available for this decision. By agreeing to
participate in the Scheme a participating institution accepts that the
Operator will make determinations in relation to the administration costs
they are required to contribute. The Scheme administration cost of
providing redress for the abuse of each person for which an institution is
responsible will be determined as a proportionate share of the total amount
of redress paid to each person.
Clause 153 sets out when funding contribution is due for payment. Funding
contribution payable by a participating institution is due and payable on a
business day specified in a notice that the Operator gives to the
participating institution. The business day specified in the notice must
be 30 or more days after the date of the notice.
Clause 154 outlines when a late payment penalty will be due in respect of
any funding contribution payable by a participating institution.
Subclause 154(1) provides that where funding contribution payable by a
participating institution remains unpaid at the start of a calendar month
after it became due for payment, the institution is liable to pay the
Commonwealth a penalty for that calendar month. The penalty is worked out
by multiplying the amount of the unpaid funding contribution (as at the
start of the calendar month) by 0.1 divided by 12.
Subclause 154(2) provides that a late payment penalty for a calendar month
is due and payable at the end of the calendar month.
Subclause 154(3) allows the Operator to defer the payment of a late payment
penalty. In order to defer the payment of a late payment penalty the
Operator must give a written notice to the participating institution that
specifies a later day for the late payment penalty to be paid. Such a
notice may be issued before, on or after the day on which the late payment
penalty was originally due and payable and is taken to have effect, and
have always had effect, according to its terms.
Example:
A participating non-government institution of a Territory was required to
pay funding contribution in May, and the amount remained unpaid in June. As
a result, a late payment penalty would apply. If the amount due to be paid
was $50,000, that amount would be multiplied by 0.1, and divided by 12.
Therefore, the late payment penalty would be $416.66, and would be due by
the end of June, unless the Operator of the Scheme specified a later day
that the penalty could be paid.
Clause 155 provides that funding contributions and late payment penalties
are payable to the Operator on behalf of the Commonwealth.
Clause 156 enables funding contributions and late payment penalties to be
waived in exceptional circumstances.
Subclause 156(1) provides that the Operator may waive the payment of the
whole or part of funding contribution or a late payment penalty that is
owed by a participating institution. The Operator must be satisfied that
there are exceptional circumstances justifying the waiver.
Subclause 156(2) makes it clear that the Operator may grant a waiver on his
or her own initiative or following a written application by a person (made
on behalf of the participating institution). The application must be in the
approved form.
Clause 157 provides for the review of decisions under clause 156 relating
to the waiver of funding contribution (in whole or part) or late payment
penalties.
Subclause 157(1) allows a participating institution that is affected by,
and dissatisfied with a decision of the Operator under clause 156 (about a
request to waive the payment of funding contribution (in whole or a part)
or late payment penalty), to request the Operator reconsider the decision.
An internal review is a quick and inexpensive means of re-examining
decisions. Clause 156 only provides for the waiver of the payment of
funding contribution or late payment penalty in exceptional circumstances.
The internal review permitted under clause 156 relates only to redress
components and scheme administration components participating institutions
were aware they would be liable for before agreeing to participate in the
Scheme.
A waiver of funding contribution would result in the Commonwealth paying
the redress component for the participating institution. This would
undermine the policy that the responsible institution should pay the cost
of providing redress to a person. The requirement for exceptional
circumstances demonstrates that in most circumstances funding contributions
and late payment penalties must be paid.
Subclause 157(2) provides that a request for reconsideration must be made
by notice to the Operator in the approved form. The request must be made
within 21 days after the day of the notice of the decision or within a
further period as allowed by the Operator. The request must set out the
reasons for making the request.
Subclause 157(3) requires the Operator to review the decision after
receiving the request. The Operator can also cause the decision to be
reviewed by another person that has been delegated power under subclause
157(3). That person must not have been involved in making the original
decision.
Subclause 157(4) defines the review period as a period of 30 business days
after receiving the request, or such longer period as is determined by the
Operator in writing. Within the review period the Operator, or other
person reviewing the decision, must reconsider the decision and either
confirm, revoke or vary the decision.
Subclause 157(5) outlines what occurs in circumstances where the Operator
or person reviewing the decision does not confirm, revoke or vary the
decision within the review period. In such circumstances, the original
decision will be taken to be confirmed immediately after the review period
ends.
Subclause 157(6) provides that the person reviewing the decision must give
written notice of the outcome of the review decision to the participating
institution that made the request under subclause 157(1). The written
notice must set out the results of the reconsideration and the reasons for
the decision.
It was considered appropriate to make decisions on waiving funding
contributions and late payment fees reviewable because these are decisions
that directly affect a participating institution and their ability to
effectively participate in the Scheme.
Example:
Institution A is given a notice from the Operator on 10 October 2018, which
states that the institution's funding contribution for the quarter that
commenced on 1 July 2018 comprises:
. a redress component of $200,000; and
. a Scheme administration component of $20,000.
The notice states that funding contribution is due and payable on
12 November 2018. Institution A pays $20,000 on 12 November 2018 and
$200,000 remains unpaid on 1 December 2018. Institution A is liable to pay
a penalty of $1666.66 for December 2018, which is due and payable on 31
December 2018.
Institution A made an application for a waiver of the late payment penalty
in the approved form. Institution A stated that they were late to pay
their redress component for the quarter because the staff member assigned
with the duty of paying the contribution was on holiday. The Operator was
not satisfied that this was exceptional circumstances and notified
Institution A that their application was unsuccessful.
Institution A subsequently made a request for reconsideration to the
Operator. A delegate of the Operator reviewed the decision13 days after
receiving the request (within the 30 business day period under subclause
157(4)) and provided a notice in writing to Institution A that the decision
was confirmed, along with reasons for that decision.
Clause 158 provides for the liability of corporate State or Territory
institutions for funding contribution. If a State institution or a
Territory institution is a body corporate that is taken to have agreed to
participate in the Scheme (see subclause 115(5)) and the imposition of
liability on the institution to pay funding contribution would
impermissibly impose taxation on the institution or acquire property of the
institution otherwise than on just terms then the liability is taken to be
imposed on the relevant State or Territory.
Division 3 - Liability of the Commonwealth for counselling and
psychological services contribution
Clause 159 provides that the Commonwealth is liable to pay counselling and
psychological services contribution to a participating jurisdiction, for a
quarter, where the jurisdiction is a declared provider of counselling and
psychological services under the Scheme and it is required under paragraph
51(2)(b) to provide counselling and psychological services to a person.
Clause 160 defines counselling and psychological services contribution.
The counselling and psychological services contribution, for a
participating jurisdiction for a quarter, is the amount equal to the sum of
the amounts of the counselling and psychological components of redress for
each person that the jurisdiction becomes required to provide counselling
and psychological services to under paragraph 51(2)(b) in the quarter.
Division 4 - Appropriation
Clause 161 provides that the Consolidated Revenue Fund is appropriated to
the extent necessary for the purposes of the payment or discharge of the
costs incurred by the Commonwealth in making the following payments, that
is, redress payments, counselling and psychological services payments and
counselling and psychological services contribution.
Part 6-2 - Funders of last resort
Division 1 - Simplified outline of this Part
Clause 162 provides a simplified outline of Part 6-2.
Division 2 - Funders of last resort
Division 2 sets out how funders of last resort will operate under the
Scheme. In some circumstances there may be no responsible participating
institution for a particular instance of abuse because the relevant
institution no longer exists. Where there is an appropriate level of
shared responsibility, it will be open to a participating government
institution to step in to meet the cost of providing redress for survivors
of that abuse. Division 2 provides the mechanism for the Operator to
determine that a government institution is the funder of last resort for a
defunct institution in relation to abuse of a person. The determination
will be made under paragraph 29(2)(i).
A defunct institution for the purposes of this Division is not a
participating defunct institution (which is set out in clause 117). While
a participating defunct institution has a representative and is
'participating' in the Scheme, a defunct institution in this Division can
only have a determination made in relation to it if it is listed for a
participating jurisdiction (that is, a jurisdiction agrees to being the
funder of last resort for the defunct institution's share of redress, where
applicable).
Example:
A now-defunct orphanage does not have a representative and is not declared
a participating institution. However, it is listed for a participating
jurisdiction. This means that funder of last resort obligations will arise
in relation to that jurisdiction, where a government institution from that
jurisdiction is equally responsible with the orphanage for abuse within the
scope of the Scheme.
Clause 163 provides that a participating government institution will be the
funder of last resort for a defunct institution in relation to the abuse of
a person if a determination of the Operator to that effect is in force
under paragraph 29(2)(i).
The note to this clause provides that the Operator can only make that
determination if the participating government institution and defunct
institution are equally responsible for the abuse and the defunct
institution is listed for the jurisdiction which the government institution
belongs to.
Example:
A participating government institution may be a funder of last resort in a
case where: Person A was abused at a sporting club by a club employee, when
they were taken to that facility as part of an Australian Defence Force
cadets program. In this case, the participating government institution and
the sporting club may be equally responsible entities, but the sporting
club is defunct and unable to pay redress. Therefore, the Operator may
make a determination that the participating government institution is a
funder of last resort, making the participating government institution
liable for what would have been the defunct institution's share of the
costs of providing redress to the person in relation to the abuse. The
determination may only be made if the participating government institution
and defunct institution are equally responsible and the participating
government institution has agreed to be the funder of last resort for the
defunct intuition.
Clause 164 sets out how a defunct institution is listed.
Subclause 164(1) provides that a defunct institution is listed for a
participating jurisdiction if the defunct institution is a non-government
institution that is not a participating institution and a declaration that
the defunct institution is listed for the jurisdiction is in force under
subclause 164(2).
Subclause 164(2) provides for the declaration that a defunct institution is
listed for one or more participating jurisdictions by the Minister, in the
form of a notifiable instrument.
The note to this subclause provides that a defunct institution may be
identified by name, by inclusion in a particular class, or in any other
way.
The declaration to provide that a defunct institution is listed for one or
more participating jurisdictions will ensure that each participating
jurisdiction to the Scheme will have a list of defunct institutions that
operated in the relevant jurisdiction. The Operator will be better able to
identify if the person (the applicant to the Scheme) was placed in a
defunct institution in more than one participating jurisdiction. This will
make it easier for the Operator to identify instances where equal
responsibility of a participating jurisdiction with a defunct institution
has occurred. This will facilitate each participating jurisdiction to
determine whether it should be the funder of last resort for the defunct
institution (paragraph 29(2)(i)) or should be taken to be the funder of
last resort (clause 163).
Subclause 164(3) provides that the Minister must not make a declaration
under subclause 164(2) unless the Minister is satisfied that the relevant
jurisdiction (the Commonwealth or a participating Territory) has agreed to
the defunct institution being listed for the jurisdiction, in the way (if
any) prescribed by the rules.
Subclause 164(4) provides that the Minister must not make a declaration
under subclause 164(2) unless the Minister is satisfied that a
participating State has agreed to the defunct institution being listed for
the State, in the way provided for in the State's referral Act or adoption
Act.
Subclause 164(5) allows the Minister to vary or revoke a declaration made
under subclause 164(2) by notifiable instrument.
Subclause 164(6) specifies that if a declaration is made under subclause
164(2) that a defunct institution is listed for the Commonwealth or a
participating Territory and the jurisdiction withdraws its agreement, in
the way (if any) prescribed by the rules, to the defunct institution being
listed for the jurisdiction, then as soon as practicable, the Minster must
vary or revoke the declaration by notifiable instrument so that the defunct
institution is no longer listed for the jurisdiction.
Subclause 164(7) specifies that if a declaration is made under subclause
164(2) that a defunct institution is listed for a participating State and
the State withdraws its agreement, in a way provided for in the State's
referral Act or adoption Act, to the defunct institution being listed for
the State, then as soon as practicable, the Minster must vary or revoke the
declaration by notifiable instrument so that the defunct institution is no
longer listed for the State.
Division 3 - Special rules for funder of last resort cases
Clause 165 sets out the special rules for funder of last resort cases.
Subclause 165(1) provides that if a determination made by the Operator
under paragraph 29(2)(i) that a participating government institution is
equally responsible with a defunct institution for abuse and the government
institution is the funder of last resort for the defunct institution in
relation to the abuse, then the government institution is liable (in
accordance with clause 165) for what the defunct institution would have
been liable to pay in relation to providing redress to the person had the
defunct institution been a participating institution.
Subclause 165(2) sets out what the Operator must do when determining the
amount of the redress payment for the person and the amount of the
government institution's share of the costs of that payment under paragraph
29(2)(c).
Paragraph 165(2)(a) requires the Operator to apply subclause 30(2) as if
the defunct institution were also a liable institution in relation to the
abuse.
Paragraph 165(2)(b) requires the Operator to add the amount worked out
under subclause 30(2) (as applying because of paragraph 30(2)(a)) as the
amount of the defunct institution's share of the costs of the redress
payment to the amount that, apart from this section, would have otherwise
been the government institution's share of the costs of the redress
payment.
Subclause 165(3) sets out what the Operator must do when determining, under
paragraph 29(2)(d), the amount of the government institution's share of the
costs of providing the counselling and psychological component of redress
for the person.
Paragraph 165(3)(a) requires the Operator to determine, in accordance with
clause 31, the proportion of the defunct institution's share of the cost,
as if the defunct institution were also a responsible institution.
Paragraph 165(3)(b) requires the Operator to add the proportion from
paragraph 165(3)(a) to the proportion that, apart from this section, would
have otherwise been the proportion of the government institution's share of
that cost.
Subclause 165(4) sets out what the Operator must do when determining the
government institution's contribution to the costs of the administration of
the Scheme for a quarter, under subclause 152(2).
Paragraph 165(4)(a) requires the Operator to determine the amount of the
defunct institution's contribution to those costs, as if the defunct
institution were a participating institution.
Paragraph 165(4)(b) requires the Operator to add that amount to what, apart
from this clause, would have otherwise been the government institution's
contribution to those costs.
Part 6-3 - Debt recovery
Division 1 - Simplified outline of this Part
Clause 166 provides a simplified outline of Part 6-3.
Division 2 - Debt recovery
Clause 167 sets out the recovery of amounts, other than funding
contribution and late payment penalty. Subclause 167(1) provides that, if
an amount has been paid to a person or an institution (the recipient) under
this Bill, the amount is a debt due to the Commonwealth only to the extent
that clause 167 expressly provides that it is.
Subclause 167(2) provides that if an amount paid to the recipient, should
not have been paid in the circumstances set out in this subclause, then the
amount paid, or the amount of the excess, is a debt due to the Commonwealth
by the recipient. The circumstances are:
a) the amount was paid to the wrong person; or
b) the amount exceeds the amount payable to the recipient.
Example:
Person A accidently provides incorrect bank details in their application
form, and Person B (who has not applied for redress) is accidently paid the
redress payment intended to be paid to Person A. The Commonwealth can
raise a debt from Person B, equal to the sum of the redress payment that
was intended to be paid to Person A.
Subclause 167(3) provides that if an amount paid to the recipient was paid
wholly or partly because of a false or misleading statement, or a
misrepresentation, by the recipient or another person, then an amount equal
to so much of the amount paid that is attributable to the false or
misleading statement, or the misrepresentation, is a debt due to the
Commonwealth by the recipient.
Example:
Person A applies for redress and is made an offer of redress, which is
accepted and paid. However, one month later, information is made available
to the Scheme that contradicts the information made in Person A's
application, and that information confirms that the person is not in fact
eligible for redress. The Commonwealth can raise a debt from Person A,
equal to the sum of the redress payment that was paid to them.
Subclause 167(4) provides that a debt due to the Commonwealth will arise
where the recipient was required to notify the Operator about a matter
under clause 181, the recipient failed to comply and the amount that was
paid to the recipient would not have been payable had the Operator been
notified as required. The debt due to the Commonwealth will be an amount
equal to so much of the amount paid as is attributable to the failure to
comply with clause 181.
Subclause 167(5) provides that the debt due by the recipient arises at the
time the amount was paid to the recipient.
Clause 168 provides that funding contribution or late payment penalty that
is due and payable by the institution or a person may be recovered by the
Commonwealth as debts due to the Commonwealth.
The note to this clause directs the reader to clauses 123, 131 and 141 for
cases where a person may be liable to pay funding contribution.
Clause 169 provides that a debt due to the Commonwealth under this Part is
recoverable by the Commonwealth in a court of competent jurisdiction. This
will enable legal proceedings to be commenced in the most appropriate
jurisdiction and allow the matter to be heard at the lowest level
necessary.
Clause 170 provides for the Operator to enter into an arrangement for the
payment of a debt.
Subclause 170(1) enables the Operator to enter into an arrangement with a
person or institution under which the person or institution is to pay a
debt owed to the Commonwealth under this Part, or the outstanding amount of
such a debt in a way set out in the arrangement, for example by means of
instalments.
Subclause 170(2) provides that the arrangement entered into under
subclause 170(1) has effect, or is taken to have effect, on and after the
day specified in the arrangement as the day the arrangement commences
(whether that day is the day the arrangement is entered into or earlier or
later day). If the arrangement does not specify a day (as mentioned in
subclause 170(2)), it has effect on and after the day the arrangement is
entered into (subclause 170(3)).
Subclause 170(4) provides that the Operator may terminate or alter an
arrangement made under subclause 170(1) at the request of the person or
institution, after giving 28 days' notice to the person or institution of
the proposed termination or alteration, or without notice where the
Operator is satisfied that the person or institution has failed to disclose
material information about the person's or institution's true capacity to
repay the debt.
Clause 171 provides for the recovery of amounts directly from financial
institutions where a payment was made in error. Subclause 171(1) applies
if an amount is paid under this Bill to a financial institution for the
credit of an account kept with that institution and the Operator is
satisfied that the amount has been paid to the account of a person who was
not intended to obtain the payment.
Subclause 171(2) provides that the Operator may, by written notice, setting
out the relevant matters referred to in paragraphs 171(1)(a) and (b)
require the financial institution to pay the amount of the payment to the
Commonwealth, within a reasonable period the lesser of the amount of the
payment stated in the notice or the amount standing to the credit of the
account when the notice is given to the financial institution.
Subclause 171(3) makes it an offence if a financial institution fails to
comply with the notice. The penalty is 300 penalty units. The penalty is
considered to be appropriate for a financial institution so as to deter the
institution from failing to comply with a notice.
Subclause 171(4) provides a defence to prosecution if the financial
institution proves that it was incapable of complying with the notice given
under subclause 171(2). The note to subclause 171(4) provides that the
burden of proving whether a person has a reasonable excuse is on the
defendant and directs the reader to section 13.4 of the Criminal Code.
This provision in the Criminal Code provides that a defendant who wishes to
rely on any exception, exemption, excuse, qualification or justification
provided by the law creating an offence bears an evidential burden in
relation to that matter.
Subclause 171(5) provides that any amount that has been paid by a financial
institution to the Commonwealth pursuant to this clause reduces the amount
of any debt referred to in subclause 167(1) (as it relates to
paragraph 167(2)(a)).
Clause 172 provides that if the Commonwealth recovers an amount under this
Part (other than paragraph 167(2)(a)) and all or part of the amount relates
to either a redress payment or a counselling and psychological services
payment, or both; and a participating institution has paid funding
contribution in relation to the payment, the Commonwealth must repay the
institution so much of that funding contribution as the Operator considers
relates to the amount recovered.
The note to this clause directs the reader to section 77 of the Public
Governance, Performance and Accountability Act in relation to appropriation
for the refund.
Chapter 7 - Other matters
Part 7-1 - Application of this Act
Division 1 - Simplified outline of this Part
Clause 173 provides a simplified outline of Part 7-1.
Division 2 - Application of this Act
Clause 174 provides the constitutional basis of the Bill.
Specifically, subclause 174(2) provides that where the abuse occurred
inside a participating State, the Bill applies based on the legislative
powers of the Commonwealth Parliament (other than under paragraph
51(xxxvii) of the Constitution) and the legislative powers that have been
given to the Commonwealth Parliament as a result of a reference or adoption
by the Parliaments of participating States for the purposes of paragraph
51(xxxvii).
Subclause 174(3) provides that where the abuse occurred in a non-
participating State, the application of the Bill is based on sections 51
(other than paragraph 51(xxxvii)) and 122 of the Constitution, and the
other legislative powers that the Commonwealth Parliament has under the
Constitution.
In respect of abuse that occurred within an internal or external Territory,
subclause 174(4) provides that the Bill applies on the basis of section 122
of the Constitution which provides for the Commonwealth to make laws for
the government of a Territory, and other legislative powers that the
Commonwealth Parliament has under the Constitution.
Where the abuse occurred outside Australia, subclause 174(5) provides that
the Bill applies on the basis of paragraph 51(xxix), section 122 and the
other legislative powers that the Commonwealth Parliament has under the
Constitution.
Clause 175 provides that the Bill does not exclude or limit the operation
of a law of a State and Territory where the laws can operate concurrently.
This seeks to provide for potential conflicts of law where section 109 of
the Constitution may apply.
Subclause 175(2) provides that this extends to the concurrent operation of
the Bill with a law of a State or Territory that also provides for redress
(however described) to be provided to a person for abuse suffered by the
person.
Clause 176 sets out that the Bill applies inside and outside Australia and
extends to every external Territory, such as Ashmore and Cartier Islands.
Clause 177 provides that the Bill binds the Crown in each of its
capacities.
Part 7-2 - The National Redress Scheme Rules
Division 1 - Simplified outline of this Part
Clause 178 provides a simplified outline of Part 7-2.
Division 2 - The National Redress Scheme Rules
Clause 179 provides for the making of rules by the Minister for the
purposes of the Scheme.
Subclause 179(1) provides the Minister with the power to make rules, by
legislative instrument prescribing matters:
a) required or permitted by the Bill to be prescribed by the rules; or
b) necessary or convenient to be prescribed for the carrying out or
giving effect to the Bill.
The 'necessary and convenient' power provided in this subclause ensures
that the Commonwealth is able to incorporate additional matters that arise
over the 10 year course of the Scheme. However, this power cannot be used
to extend the scope or general operation of the Bill. The power can be
used to fill out the purposes of the Bill and support its effective
operation, but it cannot be used to widen the Bill's scope.
Subclause 179(2) further provides that the rules may provide for matters
relating to:
a) an institution ceasing to be a participating institution;
b) a participating group ceasing to be a participating group;
c) a participating State ceasing to be a participating State;
d) a person becoming, being or ceasing to be a representative for a
defunct institution, a lone institution or a participating group;
e) overriding, for the purposes of the Scheme, any provisions of
settlement agreements or deeds that relate to confidentiality or would
inhibit access to, or the operation of, the Scheme.
Subclause 179(3) provides that the rules may apply, adopt or incorporate
any matter contained in the assessment framework as in force from time to
time. This is despite section 14 of the Legislation Act 2003. For
example, the inclusion of this clause in the Bill relates to references
about the methodology to be applied in calculating the maximum amount of
the redress payment that may be payable to the person. Although the
assessment framework is not subject to disallowance, it will be made
available on the Federal Register of Legislation once registered.
It is essential that the Scheme is flexible and adaptable to the realities
of implementation, which requires some provisions to be in delegated
legislation, such as rules. The scale of this Scheme is different to other
state-based schemes or overseas experiences, with greater coverage, scale
and participating institutions than these other schemes (for example, the
Irish Redress Scheme only included one institution). This is the reason
the Scheme will need to be flexible to account for any unforeseen numbers
of survivors, institutional contexts and other circumstances. Accordingly,
it will be necessary to adjust policy settings to mitigate against
unintended outcomes for survivors. This flexibility allows the Scheme to
meet its objective of a survivor-focussed and expedient process, with a
lower evidentiary threshold, to ensure a survivor experience less traumatic
than civil justice proceedings. Protections will be in place to balance
this flexibility, including governance arrangements to provide oversight of
the operation of the Scheme.
Subclause 179(4) provides that the provisions of the Bill that provide for
rules to deal with matters do not operate to limit each other.
Subclause 179(5) sets out what the rules may not provide for. This
includes the following:
a) create an offence or civil penalty;
b) provide powers of:
i) arrest or detention; or
ii) entry, search or seizure;
c) impose a tax;
d) set an amount to be appropriated from the Consolidated Revenue Fund
under an appropriation in the Bill;
e) directly amend the text of the Bill.
Using rules rather than regulations, or incorporating all elements of the
Scheme in the Bill, provides appropriate flexibility and enables the Scheme
to respond to factual matters as they arise. It is uncertain how many
applications for redress the Scheme receive at the commencement of the
Scheme, and whether there will be unforeseen issues requiring prompt
responses. It is therefore appropriate that aspects of the Scheme are
covered by rules that can be adapted and modified in a timely manner. The
need to respond quickly to survivor needs is also a key feature of the
Scheme.
Part 7-3 - Other matters
Division 1 - Simplified outline of this Part
Clause 180 provides a simplified outline of Part 7-3.
Division 2 - Giving notices for the purposes of the scheme
Clause 181 sets a requirement to notify the Operator of certain
circumstances.
Subclause 181(1) requires a redress applicant to notify the Operator if
they are 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 after making a redress application. The person must notify to
Operator of that fact in accordance with any requirements prescribed by the
rules. The rules may prescribe circumstances for when a person or a
participating institution must or may notify the Operator of a matter and
requirements relating to the giving of the notice (subclause 181(2)).
Clause 182 deals with the Operator giving notices to persons or
institutions.
Subclause 182(1) provides that the rules may require or permit the Operator
to give a notice to a person or an institution about a matter relating to
the operation of this Bill.
Subclause 182(2) provides that if this Bill requires or permits the
Operator to give a notice to a person or institution, the Operator may give
the notice in any way that the Operator considers appropriate.
Division 3 - Delegation
Clause 183 enables the Minister to delegate his or her powers of functions
under the Bill.
Subclause 183(1) provides that the Minister may, in writing, delegate all
or any of his or her powers or functions under the Bill to the Operator or
to a person who holds or performs the duties of an SES Band 3 position (or
equivalent) in the Department. The Minister's powers and functions
relating to exemptions for criminal convictions and making rules for the
purpose of the Scheme or engaging independent decision makers, as set out
in clause 179 or 185 respectively, cannot be delegated.
Subclause 183(2) provides that a delegate, exercising a power or function
delegated by the Minister under subsection 183(1), must comply with any
directions of the Minister.
Clause 184 enables the Operator to delegate any or all of his or her powers
or functions to an officer of the Scheme. An officer of the Scheme is
defined in clause 6 to mean a person in the Department or the Human
Services Department performing duties, or exercising powers or functions,
under or in relation to the Bill. A broad delegation of the Scheme
Operator's powers is necessary to enable the Department of Human Services
and the Department of Social Services to administer the Scheme in an
efficient manner, which is responsive and flexible to address matters as
they arise. The Operator will delegate functions for the ordinary
administration of the Scheme and will determine the appropriate level of
delegation commensurate with the administrative function being undertaken.
Subclause 184(1) requires that any delegation is to be made in writing and
clarifies that powers and functions under clauses 29, 75 and 190 cannot be
delegated.
The capacity for the Operator to delegate all or any of his or her powers
or functions (other than those excluded) is due to the nature of the
survivor cohort, such that timeliness in processing Scheme applications is
critical. Over half of the survivors anticipated to apply to the Scheme
are over 50 years of age, and so significant delays to the processing of
applications may result in survivors passing away before they have the
opportunity to receive redress. It is also widely recognised survivors of
child sexual abuse also experience poorer health and social outcomes,
amplifying the need for timely decision-making and for promoting the rights
of survivors. Timeliness in the processing of applications is also
critical to providing closure to survivors, and prolonging the processing
of applications is likely to re-traumatise those survivors. These issues
were highlighted by the Royal Commission.
Subclause 184(2) provides that a delegate must comply with any directions
of the Operator when exercising delegated powers and functions.
Subclause 184(3) states that the Operator may, in writing, delegate his or
her powers and functions under clauses 29 or 75 only to an independent
decision-maker. These powers and functions are limited to being delegated
only to an independent decision maker as they relate to making
determinations on applications and internal review of redress decisions.
An independent decision-maker can be engaged under paragraph 185(1).
Subclause 182(4) makes it clear that an independent decision-maker does not
need to comply with any directions of the Operator when making a
determination on an application (clause 29) or reviewing a redress decision
(clause 75). This ensures that independent decision-makers are able to act
with genuine independence in making decisions when exercising a power or
performing a function under those clauses.
Division 4 - Independent decision-makers
Clause 185 deals with engaging persons to be independent decision-makers.
Subclause 185(1) provides for the Operator to engage a person, under
written agreement, to assist in the performance of his or her functions in
relation to making a determination under clause 29 on an application for
redress or clause 75 relating to internal review. The Operator may engage
such a person on behalf of the Commonwealth only with the approval of the
Minister.
Subclause 185(2) requires the Minister to consult with appropriate
Ministers from the participating States and participating Territories in
accordance with the National Redress Scheme Agreement before approving the
engagement of a person as an independent decision-maker under subclause
185(1). The consultation process will include participating States and
participating Territories nominating prospective decision-makers that are
independent from responsible institutions to ensure fairness, transparency,
and public trust in the Scheme. The selection of prospective independent
decision-makers will include a probity and vetting process undertaken by
the Department to identify suitable candidates. The engagement of suitable
candidates will then be subject to agreement from participating States and
Territories. This consultative process provides appropriate legislative
guidance to engage appropriate independent decision-makers, whilst
retaining flexibility to respond to cohorts of survivors coming through the
Scheme as they present.
Subclause 185(3) provides that a person engaged under subclause 185(1) is
an independent decision-maker.
Subclause 185(4) makes it clear that Subdivision A of Division 3 of Part 2-
2 of the Public Governance, Performance and Accountability Act, that deals
with general duties of officials and any rules made under that Act for the
purposes of that Subdivision, applies to an independent decision-maker in
the same way as it applies to an official (as defined in section 13 of the
Public Governance, Performance and Accountability Act).
The note to subclause 185(4) indicates that the duties of officials under
the Public Governance, Performance and Accountability Act include the duty
of care and diligence, the duty to act honestly, in good faith and for a
proper purpose, the duties relating to the use of information and position,
and the duty to disclose interests.
Division 5 - Miscellaneous
Clause 186 deals with giving agreement. It provides that a reference in
the Bill to the Commonwealth, a participating Territory, an institution or
a person agreeing to a matter is a reference to the body or person giving
agreement in the way (if any) prescribed by the rules.
A note to clause 186 provides an example of where an agreement is required
and directs the reader to paragraph 115(3)(b) that provides that the
Minister must not make a declaration that a non-government institution is a
participating institution unless the institution has agreed to participate
in the Scheme. Under clause 186, the way the institution gives its
agreement must be the way prescribed by the rules (if the rules prescribe a
way).
Clause 187 sets out the requirements for annual reporting on the operation
of the Scheme.
Subclause 187(1) requires the Operator to prepare and give an annual report
on the operation of the Scheme during the year to the Minister for
presentation in Parliament. This must be done as soon as practicable after
the end of each financial year.
Subclause 187(2) specifies that the annual report must include any
information about any matter prescribed by the rules and comply with any
requirements prescribed by the rules.
Clause 188 states that the Operator may, in writing, approve one or more
forms for the purposes of a provision of the Bill that provides for
something to be done in an approved form.
Clause 189 provides that a determination by the Operator under the Bill
must be made in writing, but is not a legislative instrument.
Clause 190 provides for the enforcement of civil penalty provisions.
Subclause 190(1) provides that each civil penalty provision of this Bill is
enforceable under Part 4 of the Regulatory Powers Standard Provisions Act.
The note to subclause 190(1) alerts the reader that Part 4 of the
Regulatory Powers Standard Provisions Act allows a civil penalty provision
to be enforced by obtaining an order for a person to pay a pecuniary
penalty for the contravention of the provision.
Subclause 190(2) provides that the Operator, an SES employee, or an acting
SES employee, in the Department or the Human Services Department is an
authorised applicant in relation to the civil penalty provisions of this
Bill for the purposes of Part 4 of the Regulatory Powers Standard
Provisions Act.
Subclause 190(3) provides that the Federal Court of Australia or the
Federal Circuit Court of Australia is a relevant court in relation to the
civil penalty provisions of this Bill for the purposes of Part 4 of the
Regulatory Powers Standard Provisions Act.
Subclause 190(4) provides that Part 4 of the Regulatory Powers Act, as it
applies in relation to the civil penalty provisions of this Bill, extends
to every external Territory.
Subclause 190(5) provides that Part 4 of the Regulatory Powers Act, as that
Part applies in relation to the civil penalty provisions of this Bill, does
not make the Crown in right of the Commonwealth, a State or a Territory
liable to a pecuniary penalty.
Clause 191 provides for compensation for acquisition of property, in
circumstances where this could occur.
Subclause 191(1) sets out a requirement for reasonable compensation to be
paid to a person where the operation of the Bill would result in an
acquisition of property (within the meaning of paragraph 51(xxxi) of the
Constitution).
Subclause 191(2) provides that where compensation is payable, and the
Commonwealth and a person do not agree on the amount of compensation, the
person may commence proceedings in the Federal Court of Australia or the
Supreme Court of a State or participating Territory.
Clause 192 provides for mandated reviews of the Scheme, at two years after
the commencement of the Scheme and another at eight years after the
commencement of the Scheme.
Subclause 192(1) requires the Minister to cause a review of the operation
of the Scheme to be commenced as soon as possible after the second
anniversary of the Scheme start day or at a date specified in the rules,
where this is done before the second anniversary and specifies a date after
the second anniversary. The Scheme start day is defined in clause 6 as
being the day the Bill commences.
Subclause 192(2) specifies that the second anniversary review must include
consideration of the:
a) extent to which the States, participating Territories and non-
government institutions have opted into the Scheme, including key
facilitators and barriers to opting in;
b) extent to which survivors who are eligible for redress have applied
for redress;
c) extent to which redress has been provided to survivors who are
entitled to redress under the Scheme;
d) application, assessment and decision-making process, including user
experiences of the process;
e) redress payments;
f) access to counselling and psychological services under the Scheme;
g) extent to which survivors access direct personal responses under the
Scheme, including factors influencing the uptake and experiences with
the direct personal response process;
h) availability and access to support services under the Scheme;
i) implications of the Scheme's design for survivors including Indigenous
and child migrant survivors as well as those who are still children or
who have a criminal conviction;
j) operation of the funding arrangements, including the Scheme
administration element of funding contribution;
k) the operation of the funder of last resort provisions;
l) the extent to which the Scheme has been implemented as proposed by the
National Redress Scheme Agreement;
m) views of key stakeholders on the Scheme, including representatives
from survivor groups, non-government institutions, advocacy groups,
support services provider groups, the Independent Advisory Council,
the Commonwealth, the States and the Territories;
n) the impact and effectiveness of clause 37 (which is about the
admissibility of certain documents in evidence in civil proceedings);
o) the question of whether an institution (the first institution) should
be responsible for abuse that occurs in connection with another
institution merely because the first institution regulates or funds
the other institution or its activities;
p) the administration of the Bill and the Scheme;
q) any other matter relevant to the general operation of the Bill or the
Scheme.
Subclause 192(3) provides for a review of the operation of the Scheme to be
initiated by the Minister as soon as possible after the eighth anniversary
of the Scheme start day or, if before the eighth anniversary and the rules
prescribe a day that is after the eighth anniversary, then the review
should be initiated that day.
Subclause 192(4) provides matters that the eighth anniversary review much
consider, which include:
a) the matters referred to in subsection 192(2);
b) the results of any other review or evaluation conducted in relation to
the operator of the Scheme.
Clause 193 provides the sunset provisions for the Scheme
Subclause 193(1) provides that the Scheme will cease to have effect at the
end of the day that is the tenth anniversary of the Scheme start date or,
if before the tenth anniversary, the rules prescribe a date that is after
the tenth anniversary then the Scheme will cease to operate at the end of
the date specified (the Scheme sunset day).
The note clarifies that the fact that the Bill ceases to have effect does
not affect the operation of clause 43 in releasing and discharging an
institution or official from civil liability (see section 7 of the Acts
Interpretation Act 1901).
The capacity to extend the sunset day of the legislation is to ensure that
all elements of redress (redress payment, counselling or psychological
services and a direct personal response) under the Scheme have been
delivered. It will also ensure that all funding contributions, redress
components, Scheme administration elements and late payment penalty amounts
have been paid by each participating institution.
Subclause 193(2) provides that despite subclause 193(1), prior to the first
anniversary of the Scheme sunset day rules may be made for the Scheme
(under clause 179) for the purposes of subclauses 193(3) and 193(4).
Subclauses 193(3) and 193(4) permit the rules to prescribe matters of a
transitional nature (including prescribing any saving or application
provisions) in relation to when the Bill will cease to have effect under
subclause 193(1), and may (without limiting subclause 193(3)) provide that
certain provisions of the Bill continue to apply after the sunset day for
the purposes set out in the rules. The rules may also specify that certain
provisions continue to apply after the sunset day in a modified way for the
purposes set out in the rules.
Subclause 193(5) provides that subsection 12(2) (retrospective application
of legislative instruments) of the Legislation Act 2003 does not apply in
relation to rules made for the purposes of this clause.
Subclause 193(6) provides that all legislative instruments made under this
Bill (including the rules) are repealed immediately before the first
anniversary of the Scheme sunset day.
National Redress Scheme for Institutional Child Sexual Abuse (Consequential
Amendments) Bill 2018
Background
The National Redress Scheme for Institutional Child Sexual Abuse
(Consequential Amendments) Bill 2018 makes consequential amendments to
Commonwealth legislation for the purposes of the Scheme established under
the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018.
This Bill makes the following consequential amendments:
. Payments made under the Scheme will be exempt from the income test
under the Social Security Act and the Veterans' Entitlements Act and
will not reduce income support payments to a person who receives
redress. This is because any payment under the Scheme will not meet
the requirements for being ordinary or statutory income. Any payment
of redress is also not taxable because the payment is not included in
the person's assessable income.
. Payments under the Scheme will not be capable of being divided among
creditors for the purpose of recovering money under bankruptcy
proceedings, regardless of whether the person receiving the payment
was bankrupt before or after the payment was made.
. Decisions under the Scheme will not be subject to judicial review
under the Administrative Decisions Judicial Review Act as the Scheme
is not intended to be legalistic in nature and is intended as an
alternative to civil litigation with a low evidentiary burden.
Providing survivors with judicial review mechanisms would be overly
legalistic, time consuming, expensive and would risk further harm to
survivors.
. Protected information under the Scheme will not be required to be
disclosed under the Freedom of Information Act. The amendment will
also ensure that the assessment framework policy guidelines are not
required to be published as part of the information publication scheme
under Part II of the Freedom of Information Act.
. Amendments to the Social Security (Administration) Act 1999 will be
made so that a person may obtain, record, disclose and otherwise use
protected information in relation to social security recipients, if it
is done so for the purposes of the Scheme.
. Only adults will be permitted to apply to the Scheme. An amendment to
the Age Discrimination Act 2004 will allow for the exclusion of
children applying to the Scheme if they will not turn 18 throughout
the life of the Scheme to be exempted from unlawful age
discrimination. Applying an age limit to the Scheme addresses the
risk of children signing away their future civil rights when they may
have limited capacity to understand the implications, and when the
impact of the abuse may not fully be realised. An age limit will also
address the risk of the misuse of monetary payments made to minors.
Clause 1 provides that the short title of the Act is the National Redress
Scheme for Institutional Child Sexual Abuse (Consequential
Amendments) Act 2018.
Clause 2 provides that the whole Act will commence at the same time as the
National Redress Scheme for Institutional Child Sexual Abuse Act 2018
commences, that is:
a) if the National Redress Scheme for Institutional Child Sexual Abuse
Act 2018 receives Royal Assent before 1 July 2018 - 1 July 2018; or
b) if the National Redress Scheme for Institutional Child Sexual Abuse
Act 2018 receives Royal Assent on or after 1 July 2018 - on a single
day that is to be specified in a Proclamation instrument.
However if paragraph (a) or (b) do not occur the whole of the Act will
commence the first day after a six month period that commences on the day
the National Redress Scheme for Institutional Child Sexual Abuse Act 2018
receives Royal Assent.
Clause 3 provides that legislation that is specified in a Schedule is
amended or repealed as set out in that Schedule.
Schedule 1 - National redress Scheme payments exempt from income tests
Social Security Act 1991
Item 1 inserts a new paragraph (jc) into subsection 8(8) of the Social
Security Act. This means that payments made to a person under the Scheme
will not be included in the definition of income for the purposes of the
Social Security Act and other legislation that relies on the definition of
income in the Social Security Act.
Veterans' Entitlements Act 1986
Item 2 insert a new paragraph (mb) into subsection 5H(8) of the Veterans'
Entitlements Act. This means that payments made to a person under the
Scheme will not be included in the definition of income for the purposes of
that Act.
Schedule 2 - National redress Scheme payments non-divisible property in
bankruptcy
Bankruptcy Act 1966
Item 1 inserts a new paragraph (ga) into subsection 116(2) of the
Bankruptcy Act. This paragraph provides that a payment under the Scheme is
not able to be divided among creditors for the purpose of recovering money
under bankruptcy proceedings, regardless of whether the person receiving
the payment was bankrupt before or after the payment was made.
The provision further provides that a payment under the Scheme is exempt
from being able to be divided among creditors regardless of whether the
payment was made to the person who suffered the sexual abuse to which the
payment relates.
There may be instances where a payment due under the Scheme will be made to
a person other than the person who suffered the sexual abuse to which the
payment relates. This may occur where the eligible person dies prior to a
decision being made on the application or dies before accepting or
declining the offer (clauses 58 and 59 respectively of the National Redress
Scheme for Institutional Child Sexual Abuse Bill 2018).
Schedule 3 - National redress Scheme decisions exempt from judicial review
Administrative Decisions (Judicial Review) Act 1977
Item 1 inserts a new paragraph (zg) into Schedule 1 to the Administrative
Decisions Judicial Review Act. This amendment means that decisions under
the Scheme will not be subject to judicial review under the Administrative
Decisions Judicial Review Act.
Exempting a decision made under the Scheme from the Administrative
Decisions Judicial Review Act promotes the objects of the Scheme by
ensuring a timely response to eligible survivors of institutional child
sexual abuse. The Scheme has been developed with a trauma-informed
approach so that judicial review processes will not be required. Judicial
review may cause undue administrative delays under the Scheme.
The threshold of 'reasonable likelihood' means that it is more likely that
a person who has experienced institutional child sexual abuse will have
access to redress under the Scheme. Accordingly, the protections provided
by the Administrative Decisions Judicial Review Act are unlikely to be
required.
Further, where an applicant is dissatisfied with a decision in relation to
their eligibility under the Scheme or the redress that is available to
them, the applicant is able to apply for an internal review of the decision
(clause 73 of the National Redress Scheme for Institutional Child Sexual
Abuse Bill 2018). Clause 75 provides that the internal review of a
decision is to be undertaken by the Operator or independent decision-maker
delegated with that power. To ensure full independence, neither the
Operator nor independent decision-maker is permitted to have been involved
in the making of the decision under review.
This alternate review mechanism ensures that an independent and unbiased
review of a decision is available at no cost to the applicant. The
internal review process is intended to prevent re-traumatising the
applicant through having to re-tell their story of past institutional child
sexual abuse in an action under the Administrative Decisions Judicial
Review Act. Re-traumatisation of an applicant is counter to the objects of
the Scheme which seeks to recognise and alleviate the impact of past
institutional child sexual abuse.
Schedule 4 - Disclosure and protection of information under the national
redress scheme
Freedom of Information Act 1982
Item 1 inserts a new item into Schedule 3 of the Freedom of Information
Act, which sets out a list of secrecy provisions from various enactments.
This amendment means that 'protected information', as provided for in
subclauses 96(6), 99(1), 100(1), 101(1), 101(2) and clause 104, would not
be required to be disclosed under the Freedom of Information Act.
This exemption supports the trauma informed approach of the Scheme,
ensuring that survivors' information is adequately protected. It also
protects institutions' information against fraudulent applications made to
the Scheme. The exemption protects the integrity of the operation of the
Scheme, removes any uncertainty about the operation of the information
publication scheme regarding the assessment policy guidelines, and makes it
transparent that protected information under the Scheme is exempt under the
Freedom of Information Act.
Social Security (Administration) Act 1999
Item 2 inserts a new paragraph (h) into subsection 202(1) of the Social
Security (Administration) Act 1999. This paragraph provides that a person
may obtain protected information if the information is obtained for the
purposes of the Scheme.
Item 3 inserts a new paragraph (de) into subsection 202(2) of the Social
Security (Administration) Act 1999. This paragraph provides that a person
may make a record of, disclosure or otherwise use such protected
information if it is done so for the purposes of the Scheme.
Schedule 5 - Only adults can apply under the national redress scheme
Age Discrimination Act 2004
Item 1 inserts new table item 32B into Schedule 1 of the Age Discrimination
Act 2004, which sets out a list of enactments and instruments to which an
exemption for unlawful age discrimination apply. This amendment allows the
exclusion of children applying to the Scheme if they will not turn 18
during the life of the Scheme to be exempted from unlawful age
discrimination.
Applying an age limit to the Scheme addresses the risk of children signing
away their future civil rights when they may have limited capacity to
understand the implications, and when the impact of the abuse may not fully
be realised, and reduces the risk of monetary payments to minors being
misused. The Scheme's support services will be available to child
survivors who must wait until they turn 18 years to receive redress under
the Scheme.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2018
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE (CONSEQUENTIAL
AMENDMENTS) BILL 2018
These Bills are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bills
In 2015, The Royal Commission into Institutional Responses to Child Sexual
Abuse (the Royal Commission) released its Redress and Civil Litigation
Report, which recommended the establishment of a national redress scheme
for survivors of institutional child sexual abuse. These Bills give effect
to the commitment of the Government by establishing the foundations for
such a scheme.
The National Redress Scheme for Institutional Child Sexual Abuse Bill 2018
(the National Bill) and the National Redress Scheme for Institutional Child
Sexual Abuse (Consequential Amendments) Bill 2018 (the Consequential
Amendments Bill) will provide redress to eligible survivors of
institutional child sexual abuse. The National Redress Scheme for
Institutional Child Sexual Abuse (the Scheme) will recognise and alleviate
the impact of past child sexual abuse that has occurred in an institutional
context by providing three components of redress, including:
. a monetary payment of up to $150,000 as a tangible means of recognising
the wrong survivors have suffered. The amount of monetary redress will
account for any prior payments that have been made by a participating
institution in relation to the abuse for which they are responsible
. access to counselling and psychological services, either through a lump
sum payment or state or territory based services, depending on the
residence of the survivor
. a direct personal response to survivors from the responsible
participating institution(s), should the survivor request one.
The Commonwealth, with the assistance of New South Wales, Victoria and the
Australian Capital Territory, is showing national leadership by
establishing the Scheme to take responsibility for providing redress to its
survivors. Other state and territory governments and non-government
institutions are invited to opt-in to the Scheme to provide redress for the
survivors that they are responsible for on the basis of the principle of
'responsible entity pays'. The Scheme will be able to provide redress on
behalf of:
. a state government's institutions where, for the purposes of paragraph
51(xxxvii) of the Constitution, the state has either referred or
adopted the Commonwealth law and the Minister declares in writing that
those institutions are participating; and
. a territory government's institutions where the Minister declares in
writing that those institutions are participating; and
. a non-government institution where they have agreed to being a part of
the Scheme and the Minister declares in writing that it has opted in.
A person is eligible for redress under the Scheme if they are 18 years of
age or older, were sexually abused, and that abuse is within the scope of
the Scheme. Sexual abuse is within scope of the Scheme if it occurred when
the person was a child, took place before the cut-off day of 1 July 2018
(the date of the Scheme's commencement), and a Commonwealth institution or
a participating institution is responsible. While redress is for both the
sexual and related non-sexual abuse of a person within the scope of the
Scheme, to be eligible for redress child sexual abuse must have occurred.
To access redress, a person must apply to the Scheme, and the Scheme
Operator (the Secretary of the Department of Social Services, or their
delegate) must consider there is a reasonable likelihood that the person is
eligible for redress. The Scheme Operator will make an offer of redress to
a person where they consider a person is eligible.
To receive redress, a person must accept their offer, and in doing so,
release the responsible participating institution(s), and its associates
and officials, from any liability for sexual abuse and related non-sexual
abuse, of the person within the scope of the Scheme.
Without limiting the circumstances that might be relevant in determining
whether a participating institution is responsible for the abuse of a
person, it is relevant:
. whether the abuse occurred on the premises of the institution, where
activities of the institution took place, or in connection with the
activities of the institution
. whether the abuser was an official of the institution when the abuse
occurred
. whether the institution was responsible for the day-to-day care or
custody of the person when the abuse occurred
. whether the institution was the legal guardian of the person when the
abuse occurred
. whether the institution was responsible for placing the person into
the institution in which the abuse occurred.
An institution will be primarily responsible for the abuse of a person if
the institution is solely or primarily responsible for the abuser having
contact with the person. An institution will be equally responsible for the
abuse of a person if the institution and one or more other institutions are
approximately equally responsible for the abuser having contact with the
person.
The Commonwealth or a participating state or territory government may be
determined as the funder of last resort (FOLR) where the government is
equally responsible with a defunct institution (therefore paying the
defunct institution's share of redress). A defunct institution is a non-
government institution that no longer exists.
The Consequential Amendments Bill will exempt payments made under the
Scheme from income tests for other Commonwealth payments, exclude payments
made under the Scheme from the divisible property of a bankrupt and exempt
Scheme decisions from judicial review under the Administrative Decisions
(Judicial Review) Act 1977. The Consequential Amendments Bill will also
allow the Scheme to access social security system information for ease of
administration, and make protected information exempt from the Freedom of
Information Act 1982. In addition, it will exempt the Bill from the Age
Discrimination Act 2004 under Schedule 1 of that Act (as a result of the
policy for child applicants, as discussed below).
The design and implementation of the Scheme has been undertaken in
collaboration with stakeholders including the Independent Advisory Council
on redress, state and territory governments, other Commonwealth
departments, and non-government institutions.
Consideration by the Parliamentary Joint Committee on Human Rights
The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill
2017 and the Commonwealth Redress Scheme for Institutional Child Sexual
Abuse (Consequential Amendments) Bill 2017 (the Commonwealth Redress
Bills), were introduced in the House of Representatives on 26 October 2017.
Those Bills supported the establishment of a Commonwealth Redress Scheme
(absent a referral of power from a state to establish a National Redress
Scheme).
Those Bills were considered by the Parliamentary Joint Committee on Human
Rights, who concluded their consideration of the Bills in their Report 2 of
2018, after requesting a response from the Minister on a number of matters
in their Report 13 of 2017 (the Minister's response was received on 20
December 2017). The Committee's responses on a number of issues are
detailed below.
Human rights implications
This Bill engages the following human rights:
. the right to state-supported recovery for child victims of abuse -
article 39 of the Convention on the Rights of the Child (the CRC)
. the right to protection from sexual abuse - article 19 and article 34
of the CRC
. the freedom from discrimination in upholding the rights of the child -
article 2 of the CRC
. the right to social security - article 9 of the International Covenant
on Economic, Social and Cultural Rights (the ICESCR)
. the right to maternity leave with adequate social security benefits -
article 10 of the ICESCR
. the right to health - article 12 of the ICESCR
. the right to effective remedy - article 3 of the International
Covenant on Civil and Political Rights (the ICCPR)
. the freedom from unlawful attack on honour and reputation - article 17
of the ICCPR
. the right to freedom of expression - article 19 of the ICCPR
. the right to protection against arbitrary or unlawful interferences
with privacy - article 17 of the ICCPR
. the right to a fair hearing - article 14 of the ICCPR.
The right to state-supported recovery for child victims of abuse
Article 39 of the CRC guarantees the right to state-supported recovery for
child victims of neglect, exploitation and abuse.
The National Bill promotes this right by establishing the Scheme. The
Scheme will support the recovery of survivors of institutional child sexual
abuse that occurred prior to the cut-off day (the date of the Scheme's
commencement) in Commonwealth institutional settings, and in other
institutions that are participating in the Scheme.
The Scheme will directly assist in survivors' recovery by providing access
to counselling or psychological services, either through a lump sum payment
or state or territory based services, depending on where the survivor
lives.
Survivors' recovery may also be aided by the recognition of harm done which
is built into several other aspects of the Scheme. A monetary payment will
be offered to eligible survivors recognising that the abuse should never
have occurred. Survivors will also be able to choose to receive a direct
personal response from the responsible institution which may include an
opportunity for the survivor to tell their story to a senior
representative, receive an apology from the institution and an explanation
of what measures have been taken to prevent child sexual abuse from
occurring in the future.
Additionally, the Commonwealth will be funding community-based Redress
Support Services to assist survivors applying for the Scheme. These
services will refocus the support available to survivors engaging with the
Royal Commission, to assist them through the process of applying and
receiving redress. They will be located in each state and Territory and
there will be dedicated services for Aboriginal and Torres Strait Islander
people.
Beyond the redress and supports that individual survivors will receive, the
establishment of the Scheme will afford a high public profile to the issue
of institutional child sexual abuse. For survivors who have felt that they
have been ignored, this recognition may be a crucial part of their
recovery.
The National Bill will not promote or limit the right to state-supported
recovery for survivors of child sexual abuse that occurred outside of
participating institutional settings, or after the cut-off day for the
Scheme. For those survivors who will not be eligible for the Scheme,
existing community supports and civil litigation processes remain
available.
The right to protection from sexual abuse
Articles 19 and 34 of the CRC guarantee the right of every child to
protection from all forms of physical or mental violence, injury or abuse,
including sexual exploitation and abuse.
The National Bill seeks to recognise and alleviate the impact of historical
failures of the Commonwealth and other government and non-government
organisations to uphold this right, by establishing the Scheme to provide
redress to survivors as described above.
The freedom from discrimination in upholding the rights of the child
Article 2 of the CRC guarantees the right of children to freedom from
discrimination in the upholding of their other rights in the Convention.
Citizenship and permanent residency status
To be eligible for redress under the Scheme, a survivor must be an
Australian citizen or permanent resident at the time they apply for
redress. However, it will be possible to deem additional classes of people
eligible for redress to recognise particular circumstances consistent with
the intent of redress.
Non-citizens and non-permanent residents will be ineligible to ensure the
integrity of the Scheme. Verification of identity documents for non-
citizens and non-permanent residents would be very difficult. Opening the
Scheme to all people overseas could result in organised overseas groups
lodging false claims in attempts to defraud the Scheme, which could
overwhelm the Scheme's resources and delay the processing of legitimate
applications. Past examples of fraud highlight this as a key concern; for
example, flood relief payments after the 2011 Queensland floods identified
a number of fraudulent applications. These restrictions on eligibility for
the Scheme are necessary to achieving the legitimate aims of ensuring the
Scheme receives public support and protecting against large scale fraud.
Whilst administrative considerations are generally insufficient for the
permissible limitation of human rights, it is relevant in the context of
this particular Scheme, as the nature of the survivor cohort is such that
timeliness in processing Scheme applications is critical. Over half of the
survivors anticipated to apply to the Scheme are over 50 years of age, and
so significant delays to the processing of applications may result in
survivors passing away before they have the opportunity to accept redress.
It is also widely recognised survivors of child sexual abuse also
experience poorer health and social outcomes, amplifying the need for
timely decision-making and for promoting the rights of survivors.
Timeliness in the processing of applications is also critical to providing
closure to survivors, and prolonging the processing of applications is
likely to re-traumatise those survivors.
Furthermore, using the aforementioned rule-making power is also necessary
to ensure that the Scheme can be appropriately flexible. There may be
classes of survivors that the Scheme has not, or could not, envisage to
include in the Bill, who could be accommodated via this rulemaking power.
The Parliamentary Joint Committee on Human Rights' report on the
Commonwealth Redress Bills concluded:
"...there are concerns that the breadth of the restriction on the
eligibility of all non-citizens and non-permanent residents may not be
proportionate. However, setting out further classes of persons who may
be eligible in the proposed redress scheme rules, including those who
would otherwise be excluded due to not being citizens or permanent
residents, may be capable of addressing these concerns."
Survivors with serious criminal convictions
Whilst the Bill has a special assessment process for applicants with
serious criminal convictions, the CRC does not explicitly exclude different
processes on the basis of criminal history.
Applicants will not be entitled to redress if they have been convicted of
an offence which received a custodial sentence of five or more years.
However, the Operator may determine that the person is entitled to redress
if providing redress to the person would not bring the Scheme into
disrepute or adversely affect public confidence in, or support for, the
Scheme. When making this determination, the Operator must take into account
any advice given by relevant Attorneys-General, the nature of the offence,
the length of the sentence of imprisonment, the length of time since the
person committed the offence, any rehabilitation of the person, and any
other matter that the Operator considers is relevant. The view of the
relevant Attorney-General where the abuse occurred is weighted more heavily
than other matters.
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. This aspect of the Bill may therefore impact on
Aboriginal and Torres Strait Islander peoples, and could be perceived as
indirectly discriminating on the basis of race.
However, 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 serious 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 the states to opt-in to the Scheme
(ensuring nationwide access to redress).
This issue has also been previously addressed in the context of the Defence
Abuse Response Taskforce (the DART). To ensure the DART remained in step
with community expectations, the rules were changed to render persons
convicted of serious crimes ineligible.
The Parliamentary Joint Committee on Human Rights' report on the
Commonwealth Redress Bills concluded:
"...there are concerns in relation to the proposed exclusion of
persons with certain criminal convictions from being eligible for the
scheme. However, the discretion of the scheme operator to determine
eligibility of survivors if they are otherwise ineligible may be
capable of addressing some of these concerns."
The Committee also noted the Minister's intention to include any limitation
on eligibility for persons with criminal convictions in the primary
legislation of the National Bill (rather than in subordinate legislation),
which is now the case.
Incarcerated survivors
Whilst the Bill sets out different operational processes for incarcerated
survivors, the CRC does not explicitly exclude different processes on the
basis of incarceration.
The Bill specifies that a person cannot make an application for redress if
the person is in gaol (within the meaning of subsection 23(5) of the Social
Security Act 1991). This includes persons who are being lawfully detained
(in prison or elsewhere) while under sentence for conviction of an offence
and not on release on parole or licence, or persons who are undergoing a
period of custody pending trial or sentencing for an offence. The person
will therefore be able to make an application for redress if they are not
in gaol at some point during the 10 years of the Scheme. This restriction
can be overridden if the Operator determines that there are circumstances
justifying their application being made, for example because they will be
in gaol during the last two years of the Scheme, or they are terminally
ill.
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.
Child applicants
Whilst the Bill sets out different operational processes for child
applicants, the CRC does not explicitly exclude different processes on the
basis of age.
The Bill specifies that a person cannot make an application for redress
under the Scheme if the person is a child who will not turn 18 years of age
before the Scheme sunset day. This will mean that children aged under eight
when the Scheme commences will not be able to receive redress, but will
still have the right to pursue civil litigation if they choose.
The Bill also sets out that if a child who will turn 18 years of age before
the Scheme sunset day makes an application for redress, the Operator must
deal with the application in accordance with any requirements prescribed by
the Rules. The Rules will set out that the Operator must not make a
determination to approve or not approve the application until the person is
18 years, and once they turn 18, the Operator will make a determination
(taking into account any new information provided by the survivor),
allowing the survivor to accept or decline an offer. If the offer is
accepted, the survivor will be provided with redress.
Notably, of the more than 8,000 survivors who attended private sessions
with the Royal Commission, only around 50 survivors were aged 0 to under 8
years (the majority were aged over 50 years). Additionally, in their
Redress and Civil Litigation Report, the Royal Commission noted that while
it was possible that some individuals will wish to seek redress while they
are still a minor, it is not expected that many minors will apply as it
will almost always be within the time limitations to commence proceedings
through civil litigation. This is because an individual would be more
likely to receive larger payment either through settlement or civil
litigation than they might through the Scheme. It is therefore assumed that
only a small number of survivors will be unable to make an application for
redress due to this age limitation.
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.
There is precedent to excluding children from redress schemes for the
reasons outlined above. Several state-based redress schemes have excluded
children from applying, including the Western Australian Scheme and South
Australia's ex-gratia scheme. In addition, under Tasmania's and
Queensland's schemes, only people who were aged 18 and over at scheme
commencement were able to apply.
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.
This policy has been developed in discussions between state and territory
redress ministers, and will be reviewed during the Scheme's review points.
The policy will also be carefully communicated to the survivor cohort.
On the basis of above, the Consequential Amendments Bill will exempt the
Bill from the Age Discrimination Act 2004 under Schedule 1 of that Act.
Survivors with a security notice in force
Whilst the Bill prohibits applications from people who have a security
notice in force, it is unlikely that the CRC was intended to cover
discrimination on this basis. In any case, this limitation is reasonable.
The Bill specifies that persons are not entitled to redress while a
security notice is in force in relation to the person. A person's security
notice must be reviewed annually, and can be revoked. Once revoked, the
person can apply for redress under the Scheme. 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 those funds for
purposes against Australia's national security interests. This restriction
is consistent with broader Commonwealth policy.
Counselling and psychological services
Whilst Bill sets out different methods of delivering counselling and
psychological depending on the residence of a survivor, the CRC does not
explicitly exclude different delivery models on the basis of a person's
residence.
The Bill specifies that depending on their current residence (not the
jurisdiction in which they were abused), survivors will receive either a
lump sum payment (to access counselling and psychological services
privately), or will be given access to state or territory based services.
States and territories, upon opting-in to the Scheme, will elect for
survivors residing in their jurisdiction to either receive the lump sum
payment (the amount of which will be linked to the severity of abuse
experienced by the survivor), or whether they will deliver counselling and
psychological services to those survivors. Survivors residing outside
Australia will receive the lump sum payment. Responsible participating
institutions will be liable for the same amount to support the delivery of
counselling and psychological survivors; this will either be paid directly
to the survivor or to the applicable jurisdiction delivering services to
survivors.
This model of delivering counselling and psychological services recognises
that not all states and territories are capable of delivering the same
services to survivors, due to a number of constraints including geography
(i.e. rural, regional and remote areas) and their existing services. This
model allows jurisdictions that are capable of delivering services directly
to survivors, and can meet National Service Standards, to do so. Where this
is not possible, or where a survivor resides outside of Australia, they
will be given a lump sum payment whereby they can access counselling and
psychological services privately. In either form of delivery, survivors
will still be accessing the benefit of counselling and psychological
services, and those services will be comparable.
The right to effective remedy
Article 3 of the ICCPR guarantees the right to effective remedy for those
whose rights outlined in the ICCPR are violated. Article 24 of the ICCPR
guarantees the right of every child to protection by society.
The Bill limits the right to remedy for survivors who accept redress under
the Scheme by requiring them to release all institutions providing them
with redress, as well as 'associates' of the institution(s), from any
liability for sexual abuse and related non-sexual abuse within the scope of
the Scheme. This would have the effect of barring the survivor from civil
litigation against the responsible participating institution(s) and their
associates and officials for all sexual and non-sexual abuse within the
scope of the Scheme.
Due to its non-legalistic nature, redress through the Scheme will be a more
accessible remedy for eligible survivors than civil litigation. Entitlement
to redress is determined based on a standard of 'reasonable likelihood',
which is lower than the standard for determining the outcome of civil
litigation, which is the balance of probabilities. The availability of
redress is dependent on the extent to which institutions opt-in to the
Scheme. Consultation has shown that institutions are not likely to opt-in
to the Scheme if they remained exposed to paying compensation through civil
litigation in addition to paying monetary redress. Attaching the release to
entitlement to all elements of redress is necessary to encourage
institutions to opt-in and to make redress available to the maximum number
of survivors.
Furthermore, organisations comprising multiple institutions are likely to
opt-in to the Scheme as one, forming a 'participating group' (institutions
are then known as 'associates' of one another). In order to form a
participating group, institutions must be sufficiently connected and
appoint a representative for the group. That representative will then be
jointly and severally liable with each associate for funding contributions.
Attaching the release to all associates of responsible participating
institution(s) for sexual abuse and related non-sexual abuse within the
scope of the Scheme is therefore reflective of their joint financial
liability, and is a necessary component of ensuring that institutions will
opt-in to the Scheme together, therefore ensuring maximum coverage for
survivors.
To acknowledge the extent that this Bill may limit this right, the Scheme
will deliver free, trauma informed, culturally appropriate and expert Legal
Support Services. These services will be available to survivors for the
lifetime of the Scheme at four key stages of the application process: prior
to application so survivors understand eligibility requirements and the
application process, during the completion of a survivor's application,
after a survivor has received an offer of redress and elects to seek an
internal review, and on the effect of accepting an offer, including its
impact on the prospect of future litigation. This means that survivors will
be able to make an informed choice as to whether they wish to accept their
offer and in doing so release the institution(s) and their associates and
officials (excluding the perpetrator) from civil liability for abuse within
the scope of the Scheme, or seek remedy through other avenues. Survivors
will be strongly encouraged to utilise this legal advice. Broader Scheme
communications (including the Scheme website) will also ensure that
survivors are well informed.
The Parliamentary Joint Committee on Human Rights' report on the
Commonwealth Redress Bills concluded:
"The bar on future civil liability of participating institutions may
engage and limit the right to an effective remedy. However, 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."
The freedom from unlawful attack on honour and reputation
Article 17 of the ICCPR guarantees the right of everyone to freedom from
unlawful attacks on their honour and reputation.
Key survivor details, including details of alleged perpetrators will be
provided, with the survivor's consent, to institutions identified in their
application. Participating institutions will be required to provide
specific relevant information to the Scheme. All information under the
Scheme will be subject to confidentiality. However, there is a risk that
unlawful disclosure of information about an abuser by a participating
institution irrevocably damages the reputation of an abuser in
circumstances where proof to a criminal or even a civil standard is not
required.
Supplying details of abusers is necessary to allow participating
institutions to provide the relevant information and records that verify
'reasonable likelihood', which underpins eligibility assessments made for
the Scheme. The risk of unlawful disclosure by participating institutions
is necessarily a part of making redress available for survivors through the
Scheme. In order to mitigate this risk there are strict limits and offence
provisions relating to access, use and disclosure of Scheme information.
Any unlawful attack on honour or reputation will be the result of
individuals breaching the provisions of the Bill, rather than resulting
from the Bill itself.
The right to protection against arbitrary or unlawful interferences with
privacy
Article 17 of the ICCPR guarantees the right of everyone to protection from
arbitrary or unlawful interference with privacy. Collection, use and
disclosure of personal information under the Scheme will engage Article 17
of the ICCPR.
To establish eligibility, survivors will be required to supply the Scheme
with personal information including highly sensitive information about the
child sexual abuse that they experienced. To progress the application to
assessment, limited survivor and alleged perpetrator details will be
provided, with the survivor's consent, to the participating institution(s)
identified in their application. Participating institution(s) will be able
to use this information in a limited way to facilitate making insurance
claims and to institute internal disciplinary procedures where an alleged
perpetrator or person with knowledge of abuse is still associated with the
institution. Participating institutions will be required to provide the
Scheme with specific information pertaining to survivors and alleged
perpetrators, including the survivor's and alleged perpetrator's
involvement with the institution, any related complaints of abuse made to
the institution and details of any prior payments made to the survivor.
This collection and exchange of information is necessary for the
eligibility assessment process and information under the Scheme will be
subject to confidentiality. Outside of Scheme representatives, only
survivors and those they nominate will have access to records relating to
their application. Strict offence provisions will be put in place to
mitigate risks of unlawful access, disclosure, recording, use, soliciting
or offering to supply Scheme information.
The Bill also includes provisions for the Operator to disclose allegations
of child sexual abuse to child protection authorities and police in certain
circumstances, and allows institutions to comply with their existing
mandatory reporting obligations under state and territory laws (imposing
offences for the misuse of protected information). This will be
communicated to survivors prior to them submitting their application. The
Scheme, in very limited circumstances, will also be required to refer some
matters to police without the survivor's consent in cases of serious risk
to life. Additionally, some non-identifying information collected by the
Scheme will be used to report on performance of the Scheme.
The information sharing provisions of the Bill are necessary to achieve the
legitimate aims of assessing eligibility under the Scheme and protecting
children from abuse, and are appropriately limited to ensure they are a
proportionate means to achieve those aims.
The Parliamentary Joint Committee on Human Rights' report on the
Commonwealth Redress Bills concluded:
"The committee notes that disclosure in such circumstances may be
sufficiently circumscribed such that the measure would be a
proportionate limitation on the right to privacy. The committee
recommends that the Scheme Operator's disclosure power be monitored by
government to ensure that any limitation on the right to privacy be no
more extensive than what is strictly necessary."
The Government intends to monitor the Operator's disclosure power,
including through broader reviews of the Scheme's implementation. General
information relevant to disclosure 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.
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.
The right to freedom of expression
Article 19 of the ICCPR requires that everyone shall have the right to
freedom of expression, which includes the freedom to seek, receive and
impart information. Article 19(3) provides that this right may be subject
to restrictions provided by law, where it is necessary for respect of the
rights of others. The Bill sets out a number of restrictions on the use and
disclosure of protection information in the Scheme.
The Scheme will utilise a number of different types of information which
will be protected. This includes information provided by applicants and
institutions, and other materials such as the assessment framework policy
guidelines. There are a number of limited authorisations for the disclosure
of this information (as described in relation to privacy), with strict
offences for unauthorised access, recording, disclosure, soliciting,
offering and use of protected information (depending on the circumstances).
These restrictions are reasonably necessary for respect of the rights of
others. These restrictions predominantly serve to protect the privacy of
persons engaging with the Scheme, including survivors (noting that the
right to protection against arbitrary or unlawful interferences with
privacy, as detailed above, would necessarily be infringed without
reasonable limitations around disclosure). This is particularly important
as survivors of institutional child sexual abuse are a vulnerable cohort,
and the release of their private information is likely to be extremely
distressing and re-traumatising.
Restrictions on the use and disclosure of protection information is also
necessary for the broader operation of the Scheme. For example,
participating institutions expect that the information they supply will be
kept secure, and to not have appropriate safeguards would jeopardise their
participation in the Scheme.
The right to social security and the right to maternity leave with adequate
social security benefits
Article 9 of the ICESCR guarantees the right of everyone to social
security. Article 10 of the ICESCR guarantees the right of mothers to
maternity leave with adequate social security benefits. The Consequential
Amendments Bill will uphold these rights by making monetary payments made
under the Scheme exempt from income tests for other government payments.
The right to health
Article 12 of the ICESCR guarantees the right of everyone to the highest
attainable standard of physical and mental health. The Bill promotes
survivors' right to health by providing access to counselling and
psychological services to survivors who seek it as one of the three
elements of redress, maximising survivors' access to health services.
Counselling and psychological services will be delivered either through a
lump sum payment or state or territory based services, depending on where
the survivor lives at the time of their application.
The right to a fair hearing
Article 14 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. 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 therefore is likely to constitute a suit at law. There
could be a perception that the Bill limits this entitlement by excluding
external merits review and review by the Federal Court under the
Administrative Decisions (Judicial Review) Act 1977 from the Scheme.
The decision to limit external merits review rights from the Scheme,
including review by the Federal Court under the Administrative Decisions
(Judicial Review) Act 1977, was made following consultation with
institutions, survivors and the Independent Advisory Council on Redress
following the Royal Commission's recommendation. This is consistent with
the non-legalistic nature of redress schemes. The Scheme provides survivors
with access to an internal review process, but no rights to external merits
review, as this would be overly legalistic, time consuming, expensive
(adding considerable costs to administration) and would risk further harm
to survivors. Furthermore, if these avenues were available, many survivors
may have unrealistic expectations of what could be achieved given the low
evidentiary barrier to entry to the Scheme. Survivors also retain the
right to pursue civil litigation until they accept an offer of redress.
The Scheme will appoint appropriately qualified, independent assessors,
known as Independent Decision Makers, who will make all decisions on
applications made to the Scheme. Independent Decision Makers will not
report or be answerable to Government. These Independent Decision Makers
will be able to provide survivors with access to independent and impartial
internal review without subjecting them to potential re-traumatisation.
Furthermore, members of the Administrative Appeals Tribunal are appointed
based on their judicial experience, not recruited for the skillset and
understanding of the survivor cohort that will be required of Independent
Decision Makers. The Administrative Appeals Tribunal must make a legally
correct or preferable decision, while Independent Decision Makers will make
decisions on applications with highly variable levels of detail and without
strict legislative guidance on what weight should be applied to the
information they do receive. Without an understanding of past decisions
under the Scheme, the Tribunal may reach decisions that are inconsistent
with past decisions made by Independent Decision Makers. Utilising the
Administrative Appeals Tribunal for merits review under the Scheme risks
inappropriately imposing a legalistic lens on a non-legalistic decision
making process.
The Parliamentary Joint Committee on Human Rights' report on the
Commonwealth Redress Bills concluded:
"Having regard to this information and the particular context in which
the review scheme operates, the internal review mechanism may be
capable of ensuring that survivors have adequate opportunities to have
their rights and obligations determined in a manner that is compatible
with the right to a fair hearing. However, the committee recommends
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."
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.
Conclusion
The Bill and Consequential Amendments Bill are compatible with human rights
because they promotes the protection of human rights and to the extent that
they may limit human rights, those limitations are reasonable, necessary
and proportionate to ensuring the Scheme's integrity and proper
functioning.
[Circulated by the authority of the Minister for Social Services,
the Hon Dan Tehan MP]