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Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017

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2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

COMMONWEALTH REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2017

 

CommonWealth Redress scheme for institutional child sexual abuse (consequential amendments) bill 2017

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Social Services, the Hon Christian Porter MP)



COMMONWEALTH REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2017

 

Commonwealth Redress scheme for institutional child sexual abuse (consequential amendments) bill 2017

 

 

OUTLINE

 

Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017

 

The Bill establishes a Commonwealth Redress Scheme for Survivors of Institutional Child Sexual Abuse (the Scheme).  The Scheme will provide three elements of redress to eligible survivors of institutional child sexual abuse: a monetary payment of up to $150,000 may be provided as tangible recognition of the wrong survivors have suffered, survivors will receive access to counselling and psychological services and the Scheme will facilitate a direct personal response from responsible institutions at the request of a survivor.  The Scheme will commence on 1 July 2018 and will operate for a period of 10 years. 

 

The Bill sets out the objects and principles under which the Scheme will operate, including the requirements for participating institutions (that is, Commonwealth institutions as well as Territory and non-government institutions that choose to opt into the Scheme). 

 

A person will be eligible for redress under the Scheme if the person was sexually abused as a child in an institutional setting and a Commonwealth institution is primarily or equally responsible, or where it occurred in a Territory or outside Australia and a participating institution was primarily or equally responsible for the abuse.  The sexual abuse must also have occurred prior to the 1 July 2018, the date of the Scheme's commencement.  If the Scheme establishes that a person suffered sexual abuse, any non-sexual abuse related to the child sexual abuse will also be taken into consideration for the purpose of determining the amount of the monetary payment that the person is entitled to receive.  

 

The cost of providing redress for the abuse of each person for which an institution is responsible will be based on a proportionate share of the total amount of redress paid to each person. 

 

Entitlement to redress is dependent on a person making a claim under the Scheme.  However, applicants may only make one claim over the period of the Scheme. 

 

A person who accepts an offer of redress will be required to release all the participating institutions determined by the Operator to be responsible for the sexual abuse from liability for the sexual, and related non-sexual, abuse that is within scope of the Scheme. 

 

A review of the operation of the Scheme will commence as soon as possible after the eighth anniversary of the cut-off day or earlier if the rules prescribe such a review. However, the review cannot occur within the first two years of the Scheme.  

Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017

 

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 who receive payments under the Scheme. 

In addition amendments are made to Bankruptcy Act 1966 to ensure payments are quarantined from the divisible property of a bankrupt. These amendments have been included to ensure a survivor will receive the full benefit of their redress payment, and to ensure that a survivor is not adversely affected by the receipt of the redress payment.

This Bill with 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.

FINANCIAL IMPACT STATEMENT

 

The Australian Government has committed $33.4 million in the 2017-18 Budget to establish the Scheme. The expenditure beyond 2017-18 was not for publication at Budget due to legal sensitivities. The financial impact of this Bill over the forward estimates will be announced as part of 2017-18 Mid-Year Economic and Fiscal Outlook.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

 



COMMONWEALTH REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2017

 

COMMONWEALTH REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE (CONSEQUENTIAL AMENDMENTS) BILL 2017

 

 

 

NOTES ON CLAUSES

 

 

Abbreviations used in this explanatory memorandum

 

  • ADJR Act means the Administrative Decisions (Judicial Review) Act 1977.

 

  • PGPA Act means the Public Governance, Performance and Accountability Act 2013.

 

  • Bankruptcy Act means the Bankruptcy Act 1966 .

 

  • Criminal Code means the Criminal Code Act 1995 .

 

  • 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 Commonwealth Redress Scheme for Institutional Child Sexual Abuse as established by the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.

 

  • Social Security Act means the Social Security Act 1991.

 

  • Veterans’ Entitlements Act means the Veterans’ Entitlements Act 1986.

 



Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017

 

Background

 

Overview of the Commonwealth Redress Scheme

 

The Bill establishes a Commonwealth Redress Scheme for survivors of institutional child sexual abuse which is intended to operate for a 10 year period from 1 July 2018. 

 

The purpose of the Bill is to implement the Commonwealth’s, and each participating 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 the wrong 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 has three elements of redress in the form of a redress payment, access to counselling and psychological services, and a direct personal response.  Survivors will also have access to legal advice services which will be provided as part of the Scheme. 

 

The Scheme will only 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.  The Scheme is also restricted to sexual abuse that occurred in a Territory or outside Australia. For abuse to be within the scope of the Scheme it must have occurred before the cut-off date of 1 July 2018. 

 

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 have been 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 as a first step towards a national redress scheme, a Commonwealth redress Scheme for survivors of institutional child sexual abuse. 

 

Commencement

 

The Scheme commences on 1 July 2018. 

 

Entitlement to Redress

 

Survivors of child sexual abuse are eligible to apply to the Scheme regardless of their age, provided they are an Australian citizen or an Australian permanent resident The rules may provide for persons with other citizenship status to apply.  This could, for example, 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 to, or involves the person in, sexual practices beyond the person’s understanding or capacity to provide consent, or contrary to accepted community standards (for example, exposing a child to pornography).  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 must have occurred inside or outside Australia, and a participating institution must be responsible for it.

 

Eligibility for redress will be assessed on whether there was a reasonable likelihood the person suffered institutional sexual abuse as a child.  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.  However, 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 elements: a redress payment of up to $150,000, access to counselling and psychological services 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.  Survivors who have accessed redress under another scheme or received compensation through a settlement or by judgment of a court will not be 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 childhood sexual abuse they experienced.  The Scheme will allow survivors maximum flexibility to access counselling or psychological care services of their choice throughout their lives. It will empower survivors to make decisions about their needs and support them to maintain existing therapeutic relationships. 

The amount of the redress payment will be inalienable and cannot be used to recover debts due to the Commonwealth.  These payments 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 the personal story of the abuse they suffered and how the sexual abuse impacted them.  The format of the direct personal response may include an apology, an opportunity to meet with an appropriately senior person from the relevant institution and an assurance as to the steps the institution has taken to protect children in their care against further abuse. 

 

Survivors will also be given the opportunity to receive legal assistance, 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 from any liability for the sexual abuse, and any related non-sexual abuse, they suffered that is within scope of the Scheme. 

 

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 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 redress payments and providing counselling and psychological services under the Scheme.

 

Non-Commonwealth entities (participating 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 ADJR 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 decision-makers mean that merits review and judicial review under the ADJR 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 ADJR Act of any decisions made under the Scheme.  This is because institutions participate in the Scheme voluntarily and opt-in to 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 Act as the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Act 2017. 

 

Clause 2 provides that the Act will commence on 1 July 2018. 

 

Division 2 - Objects of this Act

 

Clause 3 sets out the objects of the Act.

 

Subclause 3(1) provides that the main objects of the Act 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 two main objects of the Act, the objects of the Act are also to establish a Commonwealth Redress Scheme for Institutional Child Sexual Abuse, to provide redress under the Scheme and to implement the response of the Commonwealth to the recommendations of the Royal Commission

 

Subclause 3(2) specifies that redress under the Scheme includes a monetary payment to survivors as a tangible means of recognising the wrong they have suffered, providing access to counselling and psychological services to survivors and facilitating a direct personal response to survivors from responsible participating institutions.  

 

Division 3 - Simplified outline of this Act

 

Clause 4 provides a simplified outline of the Act. 

 

 

 

 

Division 4 - Application of this Act

 

Clause 5 provides that the Act does not exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with the Act.  

 

Clause 6 provides that the Act has extra-territorial application and applies within and outside Australia as well as extending to every external Territory. 

 

Clause 7 provides that the Act binds the Crown in each of its capacities.  

 

 

Part 1-2 - Definitions

 

 

Division 1 - Simplified outline of this part

 

Clause 8 provides a simplified outline of Part 1-2. 

 

Division 2 - The Dictionary

 

Clause 9 provides a Dictionary that defines various technical words and phrases used in the Act.  The Dictionary also provides cross references to specific definitions throughout the Act.

 

abuse means sexual abuse and non-sexual abuse.

 

abuser: for the purposes of the Act, a person is the abuser of another person if the person abuses the other person.  The term is limited to a determination that the person is the abuser for the purposes of the Scheme.  It is not necessary for there to be a finding that a particular individual is the abuser for the purpose of providing redress.

 

acceptance period is defined by cross reference to clause 38 .

 

assessment matrix is defined by cross reference to subclause 34(2) .

 

child for the purpose of the Scheme is a person under 18.

 

civil penalty provision is defined by reference to the definition in the Regulatory Powers Act.

 

Commonwealth company is defined by reference to the definition in the PGPA Act.

 

Commonwealth institution is defined by reference to clause 23.  

Commonwealth Redress Scheme Agreement means the Intergovernmental Agreement on the Commonwealth Redress Scheme for Institutional Child Sexual Abuse, as in force from time to time.  This will be available, once signed, at the following web address https://www.coag.gov.au/agreements .  The Agreement will establish the roles and responsibilities of the parties under the Scheme and give effect to the commitments made under it.

 

Commonwealth Redress Scheme Operator refers to the definition of Operator .

 

correspondence nominee means a person who is appointed as a correspondence nominee under subclause 94(1).

 

eligible is defined by reference to clause 16.

 

entitled is defined by reference to subclause 15(2).

 

financial institution is defined by reference to a corporation that is an ADI for the purposes of the Banking Act 1959 .

 

funder of last resort is defined by reference to clause 66 (for when the Commonwealth is the funder of last resort for a non-government institution of a Territory) and clause 67 (for when a self-governing Territory is the funder of last resort for a non-government institution of a Territory).

 

funding contribution is defined by reference to clause 56.

 

Human Services Department means the Department administered by the Minister administering the Human Services (Centrelink) Act 1997 .

 

independent decision maker is defined by reference to subclause 121(3).

 

institution is any body, entity, group of persons or organisation or any group of bodies, entities, groups of persons or organisations.  An institution may, or may not be, incorporated.  For the purposes of the Act, an institution does not include an individual or a family.  Abuse perpetrated by an individual outside of an institutional setting or within a family is not within the scope of the Scheme.

 

nominee means a correspondence nominee or payment nominee.

 

non-government institution of a Territory is defined by reference to subclause 26(2).

non-sexual abuse for the purpose of the Act includes physical abuse, psychological abuse and neglect.

 

officer of the Scheme is defined broadly to mean a person performing duties, or exercising powers or functions, under or in relation to the Act.  This will include officers of third party organisations providing services in relation to the delivery of the various elements of the Scheme.

 

official of an institution means a person who is or has been an officer, employee, member, volunteer or agent of the institution.

 

Operator is short for Commonwealth Redress Scheme Operator and means the Secretary of the Department of Social Services in his or her capacity as Operator of the Scheme (as referred to in clause 12).

 

original determination is defined by reference to subclause 87(1).

 

participating institution is defined by reference to clause 22.

 

participating non-government institution of a Territory is defined by reference to subclause 26(1).

 

participating Territory institution is defined by reference to clause 24.

 

payment nominee means a person who is appointed as a payment nominee under subclause 94(2).

 

protected information is defined by reference to subclause 75(2).

 

quarter is defined by reference to subclause 55(3).

 

redress is defined by reference to subclause 18(1).

 

redress component is defined by reference to clause 57.

 

redress payment is a payment payable under clause 44 or 115.

 

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014 .

 

related: non-sexual abuse of a person is related to sexual abuse of the person if a participating institution is responsible for both the sexual abuse and the non-sexual abuse of the person.

 

responsible is defined by reference to clause 21 which sets out when a participating institution is responsible for abuse of a person.

 

rules means the rules made by the Minister under clause 117.

 

scheme means the Commonwealth Redress Scheme for Institutional Child Sexual Abuse established under clause 11.

scheme administration component is defined by reference to clause 58(1).

 

scheme start day means 1 July 2018.

 

self-governing Territory is defined as the Australian Capital Territory or the Northern Territory.

 

sexual abuse of a person who is a child includes any act which exposes the person to, or involves the person in, sexual processes beyond the person’s understanding or contrary to accepted community standards (for example, exposing a child to pornography).

 

sunset day is defined by reference to subclause 129(1).

 

survivor is a person who has suffered sexual abuse that is within the scope of the Scheme.

 

Territory institution is defined by reference to clause 25.

 

this Act includes the rules and any other instrument made under the Act.

 

within the scope: clause 17 sets out when abuse is within the scope of the Scheme.

 

 

Chapter 2 - The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

 

 

Part 2-1 - Establishment of the scheme

 

 

Division 1 - Simplified outline of this Part

 

Clause 10 provides a simplified outline of Part 2-1. 

 

Division 2 - Establishment of the scheme

 

Clause 11 establishes the Commonwealth Redress Scheme for Institutional Child Sexual Abuse.  

 

Clause 12 provides that the Commonwealth Redress Scheme Operator (the Operator) is responsible for operating the Scheme. The Commonwealth Redress Scheme Operator is the Secretary of the Department of Social Services. 

 

Clause 13 provides a set of overarching g eneral principles to guide the actions of officers under the Scheme. 

 

Subclause 13(1) opens by stating that the clause sets out principles that must be taken into account by the Operator and other officers when taking action under, or for the purposes of, the Scheme.

 

Subclause13(2) provides that redress under the Scheme should be survivor-focussed. This links to the key objects of the Scheme 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.

 

Subclause13(3) provides that redress under the Scheme should be assessed, offered and provided with appropriate regard to:

(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 13(4) provides that redress should be assessed, offered and provided so as to avoid further harming or traumatising the survivor.  

 

 

Part 2-2 - Entitlement to redress under the scheme

 

 

Division 1 - Simplified outline of this Part

 

Clause 14 provides a simplified outline of Part 2-2.

 

Division 2 - Entitlement to redress under the scheme

 

Clause 15 sets out when a person can be provided with redress. 

 

Subclause 15(1) provides that a person can only be provided with redress under the Scheme if the person is entitled to redress.

 

Subclause 15(2) provides that a person is entitled to redress under the Scheme if all of the following conditions are met:

 

(a)   the person applies for redress under clause 29; and

(b)   the Operator considers that there is a reasonable likelihood that the person is eligible for redress under the Scheme (see clause 16 for eligibility); and

(c)   the Operator approves the application under clause 32; and

(d)   the Operator makes an offer for redress to the person under clause 37; and

(e)   the person accepts the offer in accordance with clause 39.

 

The test of ‘reasonable likelihood’ will be the standard used in assessing applications under the Scheme. The definition of ‘reasonable likelihood’ at Common Law is understood to be ‘the chance of an event occurring or not occurring which is real - 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 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.

 

Clause 16 sets out when a person is eligible for redress. 

 

Subclause 16(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 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 which would impact application timeliness for survivors. 

 

The note to subclause 16(1) clarifies that to be eligible for redress, a person must have been sexually abused. The note further states that redress is for the sexual abuse, and related non-sexual abuse, of the person that is within the scope of the Scheme.  

 

A person is also eligible for redress under the Scheme if the rules prescribe that the person is eligible for redress under the Scheme (subclause 16(2)). 

 

Subclause 16(3) provides that if the rules prescribe that a person is not eligible for redress under the Scheme, a person who is otherwise eligible for redress will not be eligible for redress. 

 

It is intended that on commencement of the Scheme, rules made under subclause 16(2) will prescribe three categories of persons that are eligible under the Scheme.  These are former child migrants who are non-citizens and non-permanent residents, non-citizens and non-permanent residents currently living in Australia, and former Australian citizens and permanent residents.

 

Examples:

 

  1. Person B is an Australian Permanent Resident who suffered sexual abuse as a child while in a Commonwealth Institution before the cut-off date.  Person B is eligible for redress. 

 

  1. Person C is an Australia Citizen who suffered physical abuse as a child while in the care of a participating institution, outside Australia before the cut-off date.  Person C is ineligible for redress as they did not suffer sexual abuse. 

 

  1. 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 cut-off date.  Person D is ineligible for redress as they were not sexually abused as a child. 

 

Clause 17 provides that abuse of a person is within the scope of the Scheme if the abuse occurred when the person was a child either inside or outside Australia, and the abuse occurred before the scheme start day of 1 July 2018, and one or more of the following participating institutions is responsible for the abuse:

 

·          a Commonwealth institution;

·          a participating Territory institution; or

·          a participating non-government institution of a Territory.

 

A child is defined as a person under 18.

The note to clause 17 references clauses 21 and 22. Clause 21 sets out when a participating institution is responsible for abuse. Clause 22 sets out which institutions are participating institutions. 

 

Clause 18 sets out the redress that may be provided to a person. 

 

Subclause 18(1) provides that redress consists of the following 3 elements:

 

(a)   a redress payment (of up to $150,000); and

(b)   access to counselling and psychological services under the Scheme; and

(c)   a direct personal response from each of the participating institutions that are determined by the Operator under paragraph 32(2)(d) to be responsible for the person’s abuse. 

 

The note to subclause 18(1) clarifies that a direct personal response is not available if the institution is no longer in existence and refers to subclause 50(2). 

 

Subclause 18(2) makes it clear that the person entitled to redress can choose any or all of the three elements of redress.  

 

Clause 19 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 19 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 to clause 16 which outlines the eligibility criteria for redress.

 

 

Part 2-3 - Institutions participating in the scheme

 

 

Division 1 - Simplified outline of this Part

 

Clause 20 provides a simplified outline of Part 2-3. 

 

Division 2 - Responsibility of institutions for abuse

 

Clause 21 sets out when a participating institution is responsible for abuse.

Subclause 21(1) provides that for sexual abuse or non-sexual abuse of a person to be within the scope of the Scheme (see paragraph 17(d)), a participating institution must be responsible for the abuse.  

 

Subclause 21(2) provides that a participating institution is responsible for sexual abuse or non-sexual abuse of a person if the abuse occurred in circumstances where the participating institution is, or should be treated as being, primarily or equally responsible for the abuser having contact with the person. 

 

Subclause 21(3) provides that, without limiting the circumstances that might be relevant for determining whether a participating institution is, or should be treated as being primarily or equally responsible for the abuser having contact with the person under subclause 21(2), the following circumstances are relevant:

 

(a)   whether the abuse occurred:

                            (i)         on the premises of the participating institution; or

                          (ii)         where the activities of the participating institution took place; or

                         (iii)         in connection with the activities of the participating institution;

(b)   whether the abuser was an official of the participating institution when the abuse occurred;

(c)   whether the participating institution was responsible for the care of the person when the abuse occurred;

(d)   any other circumstances that are prescribed by the rules. 

 

The rule making power under paragraph 21(2)(d) is intended to capture special circumstances arising over the life of the Scheme.  For example, where a government is involved in a shared chain of responsibility (that is, where there is more than one institution connected to a case of abuse), the rules may prescribe for greater weight to be given to factors such as who was responsible for the placement of the child in an institution and who was responsible for the care of the child at the time of the abuse.

 

Examples :

 

  1. Responsibility might be determined where:

 

·          Person A was a student abused on school grounds, during school hours, by a teacher of that school.

·          Person B was in a cadets program and was abused, during program hours, by the program leader.

·          Person C was abused in a church, where the abuser was a priest at the church.

 

  1. Responsibility might not be determined in a case where Person D was a person who was abused on school grounds, on a weekend, by a person not connected to the school.

 

Subclause 21(4) provides that, for the purposes of subclause 21(2), a participating institution is, or should be treated as being primarily responsible for the abuser having contact with the person if the institution is solely, substantially or primarily responsible for that contact, even if there are other institutions that, in a minor or tangential way, might also have responsibility for that contact.

 

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.

 

  1. Person B was abused in whilst participating in activities at a local sporting club, where the abuser was their coach. The sporting club received substantial Territory government funding. The sporting club is likely to be considered to be primarily responsible for the abuse. The role of the Territory is likely to be considered to be minor and therefore the Territory is not responsible for paying redress.

 

Subclause 21(5) provides that, for the purposes of subclause 21(2), a participating institution is, or should be treated as being equally responsible for the abuser having contact with the person if the institution is equally responsible with one or more other institutions for that contact, even if there are other institutions that, in a minor or tangential way, might also have responsibility for that contact. 

 

Examples :

 

  1. Person A was abused in an orphanage run by a non-government institution, where the child was in the care of a Territory and the government placed the child into the orphanage. The non-government institution and the Territory are likely to be considered to be equally responsible for the abuse. In this case, the Territory was responsible for the care of Person A.

 

  1. A religious institution provided chaplaincy or religious instruction at a Territory public school, and Person B was abused on school grounds by an employee of the religious institution. The religious institution and the Territory are likely to be considered to be equally responsible for the abuse. In this case, the Territory was responsible for the care of Person B.

 

Subclause 21(6) provides that an institution is responsible for sexual abuse or non-sexual abuse of a person if the rules prescribe circumstances in which a participating institution is, or should be treated as being, responsible for the abuse of the person.

 

The rule making power in subclause 21(6) will allow the rules to prescribe circumstances where a participating institution should be held responsible for abuse even though their involvement might otherwise be considered minor or tangential.

 

Subclause 21(7) provides that, despite subclauses 21(2) and 21(6), a participating institution is not responsible for sexual abuse or non-sexual abuse of a person if it occurs in circumstances prescribed by the rules as being circumstances in which a participating institution is not, or should not be treated as being, responsible for the abuse of the person.

 

The rule making power under subclause 21(7) is intended to ensure that institutions are not found responsible for abuse that occurred in circumstances where it would be unreasonable to hold the institution responsible, despite subclauses 21(2) and 21(6).  For example, where child sexual abuse was perpetrated by another child and the institution could not have foreseen this abuse occurring and could not be considered to have mismanaged the situation.

 

 

 

 

 

Division 3 - Institutions participating in the scheme

 

Subdivision A - Participating institutions

 

Clause 22 provides that a Commonwealth institution, a participating Territory institution or a participating non-government institution of a Territory is a participating institution .

 

Subdivision B - Commonwealth institutions

 

Clause 23 sets out what is a Commonwealth institution.  Clause 23(1) provides that an institution is a Commonwealth institution if it:

 

(a)   is the Commonwealth, or is or was part of the Commonwealth; or

(b)   is or was a Commonwealth entity (within the meaning of the PGPA Act); or

(c)   is or was a wholly-owned Commonwealth company (within the meaning of the PGPA Act); or

(d)   is or was a body (whether or not incorporated) established by or under a law of the Commonwealth; or

(e)   is an institution that is prescribed by the rules as being a Commonwealth institution.  This rule making power 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 23(2) provides that an institution is not a Commonwealth institution if that institution:

 

(a)   is a body politic that is a self-governing Territory, or is or was part of that body politic; 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.  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 Commonwealth).

 

Subclause 23(3) provides that rules made for the purposes of paragraph 23(1)(e) or 23(2)(c) may provide 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 a not being a Commonwealth institution for a specific period that it was not under Commonwealth control.

 

Subdivision C - Participating Territory institutions

 

Clause 24 provides that an institution is a participating Territory institution if it is a Territory institution and a declaration by the Minister, under subclause 27(1), that the institution is a participating institution is in force. Subclause 27(1) allows the Minister to make declarations about participating institutions. 

 

Clause 25 sets out what is a Territory institution.  Subclause 25(1) provides that an institution is a Territory institution if it:

(a)   is a self-governing Territory, or is or was part of a self-governing Territory; or

(b)   is or was a body (whether or not incorporated) established by or under a law of a self-governing Territory, or is or was part of such a body; or

(c)   is an institution that is prescribed by the rules as being a Territory institution.

 

The rule making power in paragraph 25(1)(c) is intended to provide a safety net so that where there is any uncertainty as to whether an institution is covered by paragraph 25(1)(a) or 25(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 25(2) provides that an institution is not a Territory institution if the Commonwealth Redress Scheme Agreement specifies, or the rules prescribe, that the institution is not a Territory 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 Territory).

 

Subclause 25(3) provides that rules made for the purposes of paragraph 25(1)(c) or 25(2)(b) may provide that an institution is, or is not, a Territory institution in relation to a period specified by the rules.  This would, for example, allow an institution to be prescribed as a not being a Territory institution for a specific period that it was not under Territory control.

 

Subdivision D - Participating non-government institutions of a Territory

 

Clause 26 sets out what is a participating non-government institution.  Subclause 26(1) provides that an institution is a participating non-government institution if the institution is or was a non-government institution of a Territory and a declaration is in force under subclause 27(1) which allows the Minister to make declarations about participating institutions.  

 

Subclause 26(2) provides that a non-government institution of a Territory is an institution that is or was established in a Territory (other than a Commonwealth or Territory institution).

 

Subclause 26(3) provides that an institution is not a non-government institution of a Territory if the rules prescribe that the institution is not a non-government institution of a Territory.  This subclause covers the case where an institution was established in a Territory 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 26(4) provides that rules made for the purposes of subsection 26(3) may provide that an institution is, or is not, a non-government institution of a Territory in relation to a period specified by the rules.  This would, for example, allow an institution to be prescribed as a not being a non-government institution of a Territory for a specific period that it was incorporated in another jurisdiction.   

 

Division 4 - Ministerial declarations about participating institutions

 

Clause 27 provides for the Minister to make declarations about participating institutions.  Subclause 27(1) provides that the Minister may, before the second anniversary of the start day (or, if prescribed by the rules, a later day), declare, in writing that a Territory institution or non-government institution of a Territory is a participating institution.  

 

Subclause 27(2) provides that the Minister must not make a declaration under subclause 27(1) unless the Minister is satisfied that the institution has opted into the Scheme in accordance with any requirements prescribed by the rules about how an institution may opt in and any other criteria prescribed by the rules in relation to the institution are met.  For example, if a non-government institution seeks to opt into the Scheme, the rules may prescribe a number of criteria that the institution must satisfy, such as a requirement that the non-government institution is a company, incorporated association or unincorporated association, that the institution is solvent, agrees not to rely on any prior deeds of release (including any confidentiality clauses) for the limited purposes of providing redress and signing a Memorandum of Understanding (if applicable).

 

Subclause 27(3) provides that where a non-government institution of a Territory is not in existence and the Commonwealth or a self-governing Territory is the funder of last resort for the institution, the rules may prescribe circumstances for when the institution is taken to have opted into the Scheme for the purposes of paragraph 27(2)(a). 

 

Example :

 

The rules may prescribe that, amongst other considerations, a non-government institution will be deemed to be ‘not in existence’ when it has been placed into voluntary administration or wound up in insolvency or on other grounds, and where this information is not available, the Operator of the Scheme can consider historical information (for example, archives).  This might apply to an orphanage run by a religious institution, where historical information proves that the orphanage was shut down in the 1980s.  The effect of this provision is that the relevant non-existent institution can be taken to have opted into the Scheme, so that abuse that occurred in connection with that institution can be assessed, and a relevant government can be declared to be a funder of last resort where applicable.

 

Subclause 27(4) provides that the Minister may revoke, in writing, a declaration that a Territory institution or non-government institution of a Territory is a participating institution. 

 

Subclause 27(5) provides that a declaration under subclause 27(1) and a revocation under subclause 27(4) are legislative instruments.  These instruments are exempt from section 42 of the Legislation Act 2003 which provides for disallowance.  It is necessary to exempt these Ministerial declarations from disallowance so that where an institution opts in or needs to be removed from the Scheme, that decision is given immediate and certain effect.  This will give clarity and certainty to survivors about whether they are able to apply for redress under the Scheme.  These declarations would ordinarily be of an administrative character and would not be legislative instruments without this provision.  However, in order to ensure certainty and transparency about who is participating in the Scheme, it was considered necessary to make these declarations legislative instruments.

 

 

Part 2-4 - How to obtain redress under the scheme

 

 

Division 1 - Simplified outline of this Part

 

Clause 28 provides a simplified outline of Part 2-4. 

 

Division 2 - Application of redress under the scheme

 

Clause 29 sets out the requirements for an application for redress.

 

Subclause 29(1) provides that a person must make an application to the Operator to obtain redress under the Scheme. 

 

Subclause 29(2) sets out the requirements that must be complied with for an application including: that it must be in a form (if any) approved by the Operator, include any information and documents required by the Operator, and be accompanied by a statutory declaration that verifies the information included in the application.  The note to subclause 29(2) alerts the reader to the requirements of subclause 127(1).  Subclause 127(1) provides that if the requirements of subclause 29(2) are not complied with the Operator is not required to make a determination on the application. 

 

Subclause 29(3) provides that an application must be made no later than 12 months before the sunset day of the Scheme (clause 129). 

 

Subclause 29(4) gives the Operator the power to permit an application to be made within the 12 month period before the sunset day if the Operator determines there are exceptional circumstances that justify the application being made within that period. A determination by the Operator for subclause 29(4) must be in writing. 

 

Clause 30 provides that only one application can be made by person for redress under the Scheme. 

Examples :

 

  1. Person F was sexually abused as a child in two institutions so he submits two applications to the Scheme (one for each institution). One of the applications is valid and the other cannot be accepted because only one application can be made. In this example Person F should withdraw both applications and resubmit a new application that includes both instances of abuse.

 

  1. 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.

 

  1. Person H applies for redress but before Person H receives an offer, they decide to withdraw their application. Two years later Person H decides to apply for redress again. The second application is valid because no decision was made on the previous application to the Scheme.  Person H is able to resurrect the previous application and progress it through the Scheme.

 

  1. Person J was sexually abused in two separate instances as a child.  Person J makes an application to the Scheme, although only one of the responsible institutions is a participating institution.  Person J is advised that he may benefit from withdrawing his application, and re-submitting once the second responsible institution opts in.  Person J chooses to wait and withdraws his application.  One year later, the second responsible institution opts in to the Scheme.  Person J contacts the Scheme and chooses to resubmit his application. Person J’s application is valid as he withdrew his application in the year prior.  Person J is provided with an offer in relation to both instances of abuse because both responsible institutions are participating in the Scheme.

 

Clause 31 provides that a person may withdraw their application at any time before the Operator makes a determination on the application under clause 32.  An application that is withdrawn is treated as not having been made (subclause 31(2)). 

 

Division 3 - Operator to determine whether to approve the application

 

Clause 32 gives the Operator the power to make a determination to approve, or not approve, an application made under clause 29 for redress under the Scheme (subclause 32(1)). The determination must be made by the Operator as soon as is practicable. 

 

The note to subclause 32(1) alerts the reader that the Operator is not required to make a determination about the application until any further information required or requested by the Operator is provided by the applicant (see clause 69), an institution or other person (see clause 70) for the purpose of making the determination.  The power of the Operator to not make a determination until requested information is provided is in subclause 127(2). 

 

Subclause 32(2) sets out the steps the Operator must complete if the Operator considers there is a reasonable likelihood that the person is eligible for redress under the Scheme. These are to:

 

(a)   approve the application; and

(b)   determine which participating institutions are responsible for the abuse (clause 21) and are liable to provide redress to the person under the Scheme; and

(c)   determine the amount of the redress payment for the person and the amount of each liable institution’s share of the cost of the redress payment (in accordance with clause 33); and

(d)   determine, in accordance with any requirements prescribed by the rules, the proportion of each liable institution’s share of the cost of providing the person with access to counselling and psychological services under the Scheme; and

(e)   where an application identifies a participating institution that is not covered by a determination under paragraph 32(2)(b), then the Operator must make a determination that the participating institution is not responsible for the abuse, and therefore not liable for providing redress to the person under the Scheme.

 

Subclause 32(3) provides that the Operator must make a determination not to approve an application for redress in the circumstance where the Operator does not otherwise approve the application under subclause 32(2). 

 

Clause 33 sets out how the Operator must make a determination under paragraph 32(2)(c) about the amount of the redress payment for a person and the amount of each liable institution’s share of the cost of the redress payment.  The note to subclause 33(1) clarifies that clause 33 only applies if the Operator approves the person’s application for redress under clause 32.

 

Subclause 33(2) provides that the Operator must first work out, for each liable institution, the amount of that institution’s share of the cost of the redress payment by using the following method statement:

 

  • Step 1 - Apply the assessment matrix to work out the maximum amount of the redress payment.  The amount cannot be more than $150,000.
  • Step 2 - Work out the amount that is the institution’s share of the maximum amount (in accordance with the rules).  This amount is the gross liability amount for the institution.
  • Step 3 - Work out the amount of any payment (a relevant payment ) that was paid by the institution to the person in relation to the sexual abuse, or related non-sexual abuse, of the person that is within the scope of the Scheme.  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 payment.
  • Step 4 - Multiply the original amount by (1.019) n where n is the number of whole years since the relevant payment was paid to the person.  The resulting amount is the adjusted amount of the relevant 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 payment of the institution.  This amount is the reduction amount for the institution.
  • Step 6 - The amount of the institution’s share of the cost 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 33(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 liable institution’s share of the cost of the redress payment.  The amount may be nil.

 

The note to the subclause 33(3) clarifies that the amount of the redress payment may be nil because the total amount of relevant payments that were paid to the person by the liable institutions exceeds the maximum amount of the redress payment that could be payable to the person (see the method statement in subclause 33(2)).  The note goes on to provide that while a person may not be paid any redress payment, the person will still be entitled to the other elements of redress under the Scheme, such as access to counselling or psychological services and a direct personal response (see clause 18).

 

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 institutions share of the cost of the redress payment.  Person X was abused 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 matrix the maximum amount payable to Person X is $140,000. The gross liability amounts are:

o    Institution H - $50,000

o    Institution J - $50,000

o    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:

o    Institution H - N/A

o    Institution J - $5,000

o    Institution L - $700

·          Step 4

o    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

o    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, so the reduction amounts are the adjusted amounts in step 4.

·          Step 6 - Each institution’s shares are:

o    Institution H - $50,000

o    Institution J - $50,000 - $5,290.45 = $44,709.55

o    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 must determine the amount of the redress payment and the amount of each liable institutions share of the cost 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 matrix 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:

o    a settlement payment of $25,000 on 1 June 1991; and

o    an ex-gratia payment of $5,000 on 1 November 2015.

o    Therefore the original amounts are $25,000 and $5,000.

·          Step 4

o    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

o    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:

o    $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. The result is nil, therefore the institution’s share of the cost of the redress payment for Person Y is nil. Institution K will still have to pay for the cost of other elements of redress 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 so must determine the amount of the redress payment and the amount of each liable institutions share of the cost of the redress payment. Person Q was abused 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 matrix the maximum amount payable to Person Q is $120,000. The gross liability amounts are:

o    Institution V - $100,000

o    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:

o    Institution V - N/A

o    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. The result is nil, therefore the institution’s share of the cost of the redress payment are:

o    Institution V - $100,000

o    Institution D - nil

 

Clause 34 provides for a Ministerial declaration which is referred to as the assessment matrix.

 

Subclause 34(1) provides that the Minister may declare, in writing, a method or matters to take into account, for the purposes of working out:

 

(a)   the amount for redress payment for a person; or

(b)   the amount of payment for a person to access counselling or psychological services.

 

The note to subclause 34(1) notifies the reader that a declaration made under subclause 34(1) may be varied or revoked as provided for in subsection 33(3) of the Acts Interpretation Act 1901

 

Subclause 34(2) provides that the declaration is the assessment matrix .

 

Subclause 34(3) provides that a declaration under subclause 34(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 these Ministerial declarations 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.  These declarations would ordinarily be of an administrative character and would not be legislative instruments without this provision.  However, in order to ensure certainty and transparency it was considered necessary to make these declarations legislative instruments. 

Division 4 - Notice of determination to applicant

 

Clause 35 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 32 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 (see clause 87). 

Subclause 35(2) provides that the notice mentioned in subclause 36(1) must also include an offer of redress to the person (see clause 37) if the application has been approved by the Operator under clause 32. 

 

Subclause 35(3) further requires that the notice also specify a day, which must be at least 28 days but no longer than 90 days after the date of the notice, by which the person may apply for internal review of the determination made under clause 32, and must also comply with any matters prescribed by the rules for subclause 35(3). 

 

 

Part 2-5 - Offers and acceptance of redress

 

 

Division 1 - Simplified outline of this Part

 

Clause 36 provides a simplified outline of Part 2-5. 

 

Division 2 - Offers of redress

 

Clause 37 sets out in subclause 37(1) 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 32(2). These are to:

 

(a)   provide an explanation of the 3 elements of redress (redress payment, access to counselling and psychological services, and direct personal response); and

(b)   specify the amount of the redress payment; and

(c)   specify the participating institutions that the Operator has determined to be responsible for the person’s abuse (see subclause 32(2)(b)) and that are 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 subclause 55(2) apply; and

(d)   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 32(2)(e)) and therefore not liable to provide redress to the person under the Scheme; and

(e)   state the date of the offer; and

(f)    specify the acceptance period in which the offer may be accepted (see clause 38); and

(g)   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

(h)   give information about other services available under the Scheme to help the person decide whether to accept the offer; and

(i)     explain how to accept or decline the offer, should the applicant decide to do so; and

(j)     inform the applicant that the offer expires at the end of the acceptance period; and

(k)   explain the effect of releasing participating institutions from civil liability (clause 40), should the applicant accept the offer; and

(l)     inform the applicant that there is no obligation to accept the offer and that by doing nothing the applicant is taken to decline the offer at the end of the acceptance period; and

(m) inform the applicant they may request an extension of the acceptance period and how to make that application; and

(n)   comply with any other requirements that are prescribed by the rules. 

 

Subclause 37(2) provides that the offer of redress expires at the end of the acceptance period. 

 

Clause 38 provides information about the acceptance period for offers of redress.

 

Subclause 38(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 90 days starting on the date of the offer. 

 

Subclause 38(2) provides the Operator with the power to extend the acceptance period, by written notice to a person, if the Operator considers there are exceptional circumstances that justify the extension.

 

Subclause 38(3) specifies that the extension may be given on the Operator’s own initiative or on request of the person made under subclause 38(4). 

 

Subclause 38(4) allows for a person to request the Operator to extend the acceptance period.  Such a request must be made before the end of the acceptance period and must comply with any requirements prescribed by the rules.

 

Subclause 38(5) provides that if the Operator extends the period, the acceptance period is the original period as extended by the Operator.    

 

Example:

 

Person K applies for redress, is found eligible by the Operator and receives an offer. Person K has 90 days to accept her offer. Person K provides her acceptance in writing four months after she received the offer. As her acceptance period has expired, Person K was taken to have declined her offer after 90 days had passed. Person K is not entitled to redress.

 

Division 3 - Acceptance of offers of redress

 

Clause 39 provides that a person may accept an offer of redress made by the Operator by complying with clause 39 (see subclause 39(1)). 

 

Subclause 39(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 all participating institutions, determined by the Operator under paragraph 32(2)(b) to be liable for providing the redress, from all civil liability for sexual abuse, or related non-sexual abuse, of the person that is within the scope of the Scheme; and

(d)   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 those participating institutions in relation to that abuse; and

(e)   states the elements of the redress that the person wishes to receive; and

(f)    includes an acknowledgement that the person understands the effect of accepting the offer; and

(g)   is signed by the person; and

(h)   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   39(3)). 

 

Clause 40 outlines the consequences in relation to civil liability of accepting an offer of redress under clause 39. From the time of giving the acceptance and by force of section 40:

 

(a)   the person releases and forever discharges all participating institutions determined by the operator under paragraph 32(2)(b) to be liable for providing redress to the person from all 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 any civil claim against those participating institutions in relation to that abuse. 

 

Clause 41 provides that where a person accepts an offer of redress according to the requirements of clause 39 the Operator must give each participating institution the Operator determined under paragraph 32(2)(b) to be liable for providing redress to the person, a written notice that specifies the following information:

 

(a)   the person’s acceptance of the offer; and

(b)   the elements 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)   if the person elects to receive a redress payment, the amount of that payment and the amount of the institution’s share of the cost of that payment; and

(d)   any matters prescribed by the rules .

 

Subclause 41(2) provides that the notice must be accompanied by a copy of the person’s acceptance document.  

 

Clause 42 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 form approved by the Operator; and

(b)   states the person declines the offer; and

(c)   acknowledges that the person understands the effect of declining the offer (including that only one application can be made under the Scheme as provided by clause 30);

(d)   is signed by the person; and

(e)   complies with any requirements prescribed by  the rules. 

 

Subclause 42(2) provides that if the person does not accept the offer 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.  It should be noted that if the person (applicant) requires additional time to make a decision on the offer, the Operator has the capacity to extend the acceptance period (see clause 38). 

 

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 two 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.

 

 

Part 2-6 - Provision of redress under the scheme

 

 

Division 1 - Simplified outline of this Part

 

Clause 43 provides a simplified outline of Part 2-6.

Division 2 - The redress payment

 

Clause 44 specifies the Operator must pay the redress payment to a person who has accepted an offer of redress in accordance with the requirements specified in clause 39 and where the person has stated in the acceptance document that the person wishes to be paid the redress payment. The payment must be made as soon as is practicable.

 

Subclause 44(2) permits the rules to prescribe matters relating to the making of redress payments.  The rules may include matters such as a requirement to provide the Operator with the details of a bank account to enable the redress payment to be credited to that account.

 

Clause 45 provides that for the purposes of any law of the Commonwealth, a State or a self-governing Territory, a redress payment:

 

(a)   is not to be treated as being a payment of compensation or damages; and

(b)   is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise; and

(c)   an amount must not be deducted from a redress payment. 

 

The effect of paragraph 45(1)(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 45(1)(c) makes it clear that a redress payment cannot be used to offset any other debt to the Commonwealth.

 

Subclause 45(2) provides that paragraph 45(1)(b) is subject to Part 4-5 (which is about debt recovery under the Scheme).

 

Clause 46 provides additional protection for redress payments from garnishee orders.

 

Subclause 46(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 46(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 services

 

Clause 47 provides that the Operator must enable a person to access psychological and counselling services as soon as practicable where the person accepts an offer of redress in accordance with clause 39 and they stated in their acceptance document that they wish to access counselling and psychological service under the Scheme.

 

Clause 48 provides for counselling and psychological services under the Scheme.

 

Subclause 48(1) allows the rules to prescribe matters about counselling and psychological services under the Scheme.

 

Subclause 48(2) requires the Minister to have regard to the principals in clause 49 when making rules for the purpose of clause 48.

 

Clause 49 outlines the general principles that should guide the provision of counselling and psychological services for the purpose of the Scheme.

 

Subclause 49(1) provides that counselling and psychological services should be available throughout the life of the Scheme.

 

Subclause 49(2) provides that survivors should be empowered to make decisions about their own need for counselling or psychological services.

 

Subclause 49(3) states that survivors should be supported to maintain existing therapeutic relationships to ensure continuity of care.

 

Subclause 49(4) provides that counselling and psychological services provided through redress should supplement, and not compete with, existing services.

 

Division 4 - Direct personal response

 

Clause 50 provides that a participating institution must take reasonable steps to provide a direct personal response to a person who has expressed a wish 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 41 that indicated the elements of redress the person wished to receive, including a direct personal response (paragraph 41(1)(b)).  Subclause 50(1) provides the direct personal response provided by the institution must be provided in accordance with the rules. 

 

The note to subclause 50(1) clarifies that where an institution does not comply with the request for a direct personal response, the Operator must include details about the non-compliance in the annual report for the Scheme that the Minister will present to Parliament.  Requirements for the annual report for the Scheme are provided for in clause 122. 

 

Subclause 50(2) clarifies that a participating institution is not required to take reasonable steps to provide a direct personal response where the participating institution was not in existence when it became a participating institution. 

 

The note to subsection 50(2) provides that a non-government institution of a Territory that is not in existence can become a participating institution where certain conditions are met. One of those conditions is that the Commonwealth or a self-governing Territory has agreed to be the funder of last resort for the institution (see clauses 66 and 67). 

 

Clause 51 provides that the rules may prescribe matters that need to be addressed by a participating institution when providing a direct personal response under the Scheme.  Subclause 51(2) provides that, without limiting the scope the rule making power under subclause 51(1), the rules may prescribe the form and manner in which responses are to be given by participating institutions and the timeframes in which responses are to be given.  

 

The intention is to ensure that each d irect personal response provided to a person under the Scheme is delivered in an appropriate and timely manner that recognises and alleviates the impact of the past institutional child sexual abuse and related non-sexual abuse.  Allowing the rules to prescribe other matters will ensure that direct personal responses are of a consistent standard for each person receiving a direct personal response under the Scheme.

 

Subclause 51(3) makes it clear that rules made by the Minister for the purposes of Division 4 must have regard to the general principles that are set out in clause 52.   

 

Clause 52 outlines the general principles which guide the way in which a direct personal response is provided to a person under the Scheme. 

 

Subclause 52(1) provides that engagement between a participating institution and a person (being the survivor and applicant under the Scheme) should only occur if, and to the extent, a person desires it.

 

Subclause 52(2) requires participating institutions to be clear about what they can offer and provide by way of 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 52(3) requires all participating institutions to offer and provide on request by a survivor a meaningful recognition of the participating institution’s responsibility through a statement of apology, acknowledgement or regret, and assurance as to steps taken to protect against further abuse.

Subclause 52(4) requires participating institutions to try to be responsive to survivors’ needs in offering a direct personal response.

 

Subclause 52(5) encourages participating institutions that already provide a program, service or form of direct personal responses to survivors to consider continuing this approach when participating in the Scheme.

 

Subclause 52(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 52(7) provides that participating institutions should welcome feedback from survivors about the direct personal response they offer and provide.

 

 

Chapter 3 - Funding

 

 

Part 3-1 - Liability for funding

 

 

Division 1 - Simplified outline of this Part

 

Clause 53 provides a simplified outline of Part 3-1 .

 

Division 2 - Appropriation

 

Clause 54 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 paying a redress payment to a person and providing counselling or psychological services to a person under the Scheme. 

 

Division 3 - Funding contributions by participating institutions

 

The Scheme is intended to operate on a responsible entity pays basis as recommended by the Royal Commission.  Division 2 sets out how funding contributions 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 a 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 55 sets out liability for funding contributions under the Scheme. 

 

Subclause 55(1) provides that an institution that is a participating institution at any time during a quarter is liable to pay a funding contribution for that quarter. 

 

Subclause 55(2) makes it clear that where a participating institution is a non-government institution of a Territory and there is a funder of last resort for that institution, the funder of last resort is liable to pay funding contribution for that quarter.  

 

Subclause 55(3) defines a quarter as a period of 3 months beginning on 1 July, 1 October, 1 January or 1 April in any year. 

 

 

 

Example:

Person A was abused in an orphanage run by a non-government institution, where the child was a ward of the Territory and the government placed the child into the orphanage. The Territory and the non-government institution are determined to be equally responsible for the abuse, but the non-government institution is insolvent and cannot pay redress. The Territory is declared a funder of last resort for that institution, and is required to pick up the non-government institution’s share of payment in addition to its own. The Territory will therefore be liable to pay this funding contribution in the relevant quarter.  

 

Clause 56 defines funding contribution for a participating institution for a quarter. The funding contribution consists of the redress component for the institution for a quarter and the Scheme administration component for the institution for a quarter. 

 

Clause 57 defines the redress component of funding contribution for a participating institution for a quarter.  Clause 57 specifies that the redress component is the amount equal to the sum of the amount of the institution’s share of the cost of a redress payment and the amount that represents the proportion of the institution’s share of providing access to counselling and psychological services to a person in the quarter. 

 

The note to this clause directs the reader to paragraphs 32(2)(c) and 32(2)(d) which provide for the Operator to determine an institution’s share of the cost of a redress payment and the proportion of the institution’s share of providing access to counselling and psychological services to a person, respectively.

 

Internal review is not available for this decision. By opting-in to the Scheme an institution agrees that the Operator will make determinations in relation to the redress they are required to pay.

 

Clause 58 defines the scheme administration component of funding contribution for a participating institution for a quarter.

 

Subclause 58(1) specifies that the Scheme administration component is the amount equal to the institution’s share of the administration costs of the Scheme for the quarter. 

 

Subclause 58(2) provides that the Operator must determine an institution’s share of the cost of administering the Scheme for a quarter in accordance with the rules.

 

Internal review is not available for this decision. By opting-in to the Scheme an institution agrees that the Operator will make determinations in relation to the administration costs they are required to contribute.

 

Clause 59 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 60 outlines when a late payment penalty will be due in respect of any funding contribution payable by a participating institution.  

Subclause 60(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 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 0.2/12. 

 

Subclause 60(2) provides that a late payment penalty for a calendar month is due and payable at the end of the calendar month.  

 

Subclause 60(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 0.2, and divided by 12. Therefore, the late payment penalty would be $833.33, 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 61 provides that funding contributions and late payment penalties are payable to the Operator on behalf of the Commonwealth. 

 

Clause 62 enables funding contributions and late payment penalties to be waived in certain circumstances. 

 

Subclause 62(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 62(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). 

 

Subclause 62(3) provides that any application for a waiver of funding contribution or late payment penalty must be in the form approved by the Operator.  

 

Clause 63 provides for the recovery of funding contributions and late payment penalties.  The Commonwealth may recover funding contribution due and payable by an institution or a late payment penalty due and payable by an institution as a debt due to the Commonwealth. 

 

Clause 64 provides for the internal review of decisions relating to the waiver of funding contributions and late payment penalties.  Such decisions are made by the Operator under clause 62. 

 

Subclause 64(1) allows a participating institution to request reconsideration of a decision of the Operator under clause 62.  Reconsideration may be requested by a participating institution that is affected by the decision if  it is dissatisfied with the decision.

 

Subclause 64(2) provides that a request for reconsideration must be made by notice to the Operator in the approved form.  It must be made within 21 days after the notice of the decision is first received by the participating institution or within a further period as allowed by the Operator.  The request must set out the reasons for making the request. 

 

Subclause 64(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 clause 64.  That person must not be a person involved in making the original decision. 

 

Subclause 64(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 64(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 64(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 a request under clause 62.  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 impact on participating institutions 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 the 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 $3,333.33 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 form approved by the Operator.  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 decision within 13 days of receiving the request and provided a notice in writing to Institution A that the decision was affirmed along with reasons for that decision.

 

 

Part 3-2 - Funders of last resort

 

 

Division 1 - Simplified outline of this Part

 

Clause 65 provides a simplified outline of Part 3-2 .

 

Division 2 - Funders of last resort

 

Division 2 sets out how last resort funding 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 or cannot opt into the Scheme because it does not have sufficient assets or resources.  Where there is an appropriate level of shared responsibility, it will be open to the Commonwealth or a self-governing Territory to step in to meet the cost of providing redress for survivors of that abuse.  Division 2 provides the mechanism for the Minister to declare that the Commonwealth or a self-governing Territory is the funder of last resort for a non-government institution.  For the Commonwealth and self-governing Territories a Ministerial declaration will be made following a process that will be set out in the Commonwealth Redress Scheme Agreement.  

 

Clause 66 sets out when the Commonwealth will be the funder of last resort for a non-government institution of a Territory. 

Subclause 66(1) provides that the Commonwealth is the funder of last resort for a non-government institution if a declaration under subclause 66(2) is in force to that effect.

 

Example :

 

The Commonwealth may be a funder of last resort in a case where Person A was abused at a sporting club by a club employee, where they were taken to that facility as part of an Australian Defence Force cadets program.  In this case, the Commonwealth and the sporting club may be equally responsible entities, but the sporting club is insolvent and unable to pay redress.  Therefore, the Commonwealth may be declared a funder of last resort for the sporting club, requiring the government to pay the sporting club’s share of payment in addition to its own.

 

Subclause 66(2) allows the Minister to declare in writing that the Commonwealth is the funder of last resort for a specified non-government institution of a Territory. 

 

Subclause 66(3) provides that the Minister may only make a declaration under subclause 66(2) in accordance with the Commonwealth Redress Scheme Agreement.  

 

Subclause 66(4) makes it clear that the Minister may revoke a declaration made under subclause 66(2), in writing.  

 

Subclause 66(5) provides that declarations under subclause 66(2) and revocations under subclause 66(4) are legislative instruments.  These instruments are exempt from section 42 of the Legislation Act 2003 which provides for disallowance.  It is necessary to exempt these Ministerial declarations from disallowance to give agreements reached under the Commonwealth Redress Scheme Agreement immediate and certain effect.  These declarations would ordinarily be of an administrative character and would not be legislative instruments without this provision.  However, in order to ensure certainty and transparency about who is participating in the Scheme, it was considered necessary to make these declarations legislative instruments.  

 

Clause 67 sets out when a self-governing Territory will be the funder of last resort for a non-government institution of a Territory. 

 

Subclause 67(1) provides that a self-governing Territory is the funder of last resort for a non-government institution of a Territory if a declaration under subclause 67(2) is in force to that effect. 

 

Example :

 

The Territory may be a funder of last resort in a case where a religious institution provided chaplaincy or religious instruction at a Territory public school, and Person A was abused on school grounds by an employee of the religious institution.  In this case, the Territory and the religious institution may be equally responsible entities, but the religious institution no longer exists.  Therefore, the Territory may be declared a funder of last resort for the religious institution, requiring the Territory government to pay the religious institution’s share of payment in addition to its own.

 

Subclause 67(2) allows the Minister to declare in writing that a self-governing Territory is the funder of last resort for a specified non-government institution of a Territory.  

 

Subclause 67(3) provides that the Minister may only make a declaration under subclause 67(2) in accordance with the Commonwealth Redress Scheme Agreement.

 

Subclause 67(4) makes it clear that the Minister may revoke a declaration made under subclause 67(2), in writing. 

 

Subclause 67(5) provides that declarations under subclause 67(2) and revocations under subclause 67(4) are legislative instruments.  These instruments are exempt from section 42 of the Legislation Act 2003 which provides for disallowance. It is necessary to exempt these Ministerial declarations from disallowance to give agreements reached under the Commonwealth Redress Scheme Agreement immediate and certain effect.  These declarations would ordinarily be of an administrative character and would not be legislative instruments without this provision.  However, in order to ensure certainty and transparency about who is participating in the Scheme, it was considered necessary to make these declarations legislative instruments. 

 

 

Chapter 4 - Administrative matters

 

 

Part 4-1 - Obtaining information for the purposes of the Scheme

 

 

Division 1 - Simplified outline of this Part

 

Clause 68 provides a simplified outline of Part 4-1. 

 

Division 2 - Obtaining information for the purposes of the scheme

 

Clause 69 gives the Operator the power to request information from applicants. 

 

Subclause 69(1) provides that the Operator may request a person who applies for redress to give information or produce a document if the Operator has reasonable grounds to believe that the person has information, or has custody or control of a document, that may be relevant to determining the person’s application.  The request must be in writing (subclause 69(2)). 

 

Subclause 69(3) sets out that the notice must specify the matters listed in the subclause, including the period in which the person is to give the information or produce the document. This is referred to as the production period .  Subclause 69(3) also requires the notice to specify the nature of the information or document that is requested to be given or produced, how the person is to give the information or produce the document and that the notice is given under clause 69.

 

The production period must be at least 14 days beginning on the date of the notice,   As the 14 day time period is a minimum requirement, it would be open to the Operator to allow a longer time period (subclause 69(4). 

 

Subclause 69(5) provides that the Operator may, by written notice to the person, extend the production period where the Operator considers that there are exceptional circumstances that justify the extension.  Subclause 69(6) makes it clear than an extension may be given on the Operator’s own initiative or following a request from the person under subclause 69(7).

 

Subclause 69(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 (although under subclause 127(2) the Operator is not required to make a decision about the application). 

 

 

Clause 70 gives the Operator the power to require information from institutions and others. 

 

Subclause 70(1) provides that if an application for redress is made by a person, the Operator may require a participating institution or another person to provide information or a document, of which they have custody or control. The Operator must have reasonable grounds to believe that the information or document may be relevant to determining a person’s application for redress.  The requirement must be made in writing (subclause 70(2)). 

 

Subclause 70(3) sets out that the notice must specify the matters listed in the subclause, including the period in which the person is to give the information or produce the document. This is referred to as the production period .  Subclause 70(3) also requires the notice to specify the nature of the information or document that is requested to be given or produced, how the person is to give the information or produce the document and that the notice is given under clause 70. 

 

The production period must be at least 14 days beginning on the date of the notice,   As the 14 day time period is a minimum requirement, it would be open to the Operator to allow a longer time period (subclause 70(4). 

 

Subclause 70(5) provides that the Operator may, by written notice to the person, extend the production period where the Operator considers that there are exceptional circumstances that justify the extension.  Subclause 70(6) makes it clear than an extension may be given on the Operator’s own initiative or following a request from the person under subclause 70(7).

 

Subclause 70(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  another person or 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 (although under subclause 127(2) the Operator is not required to make a decision about the application).  Further consequences for the institution or other person for refusing or failing to comply with the requirements of clause 70 are set out in clause 71.

 

Clause 71 sets out the consequences if a participating institution or person refuses or fails to comply with a requirement to provide information or a document. 

Subclause 71(1) provides for a civil penalty if a participating institution or person refuses or fails to comply with a requirement under clause 70, unless they have a reasonable excuse (subclause 71(2)).  The penalty is 100 penalty units for each refusal or failure to comply with a requirement.  The penalty reflects the importance of information being provided to the Scheme in a timely way.  This penalty is considered to be an appropriate amount to deter a participating institution or other person from refusing or failing to comply with a notice.    

 

The note to subclause 71(1) alerts the reader that if a participating institution does not comply with the requirement to provide information or a document, the Operator must include details about the non-compliance in the annual report for the Scheme which will be presented by the Minister to the Parliament (see clause   122).  This reporting requirement is in addition to the participating institution’s liability for a civil penalty. 

 

The note to subclause 71(2) alerts the reader that the burden of proving whether a person has a reasonable excuse is on the defendant, by virtue of subsection 13.3(3) 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 71(3) provides that a person is not excused from giving information or producing a document under clause 70 if the production of a document or the giving of information would tend to incriminate the individual or to expose that individual to a penalty.  The reference to an individual relates to a natural person that is providing information about themselves (as this clause relates to the privilege against self-incrimination).  This recognises the importance of having access to relevant information in a Scheme with an evidentiary threshold of ‘reasonable likelihood’.

 

For example, it is envisaged that an applicant to the Scheme has the full knowledge of the sexual abuse they suffered as a child.  Further, an individual of a participating institution may have access to the institution’s documents that would support the applicant’s application but the disclosure of that information would incriminate that individual.  It is crucial that the defence against self-incrimination is abrogated so that it does not seriously undermine the effectiveness of the Scheme and prevent the collection of evidence from an individual, through answers to questions and production of documents. 

 

Subclause 71(4) provides a safeguard for individuals providing information to the Scheme.  The information given and documents produced and any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the documents are not admissible in evidence against the individual in any criminal proceedings, aside from proceedings under section 137.1 (False or misleading information) or section 137.2 (False or misleading documents) of the Criminal Code.

 

Division 3 - Interaction with other laws

 

Clause 72 clarifies that the obligation to give information, produce a document or give evidence to the Operator or an officer for the purposes of the Scheme, is not affected by a law of a State or a self-governing Territory (subclause 72(1)).  However, a person is not required to give information or documents if the person would be prevented from doing so under a law of a State or self-governing Territory and that law has been specified in the Commonwealth Redress Scheme Agreement or prescribed by the rules (subclause 72(2)).  The rules could prescribe the laws of any State that is not a party to the Commonwealth Redress Scheme Agreement to be excluded from the operation of the Scheme.

 

Clause 73 clarifies that a person is not required to give information or produce a document when doing so would contravene a law of the Commonwealth. It is anticipated that Commonwealth entities that are able to share information with the Scheme on a discretionary basis (under a relevant secrecy provision or otherwise) will do so in order to facilitate the operation of the Scheme.  

 

 

Part 4-2 - Protecting information

 

 

Division 1 - Simplified outline of this Part

 

Clause 74 provides a simplified outline of Part 4-2. 

Division 2 - Use and disclosure of information under the scheme

 

Clause 75 sets out the purpose of Part 4-2 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 75(1) provides that Part 4-2 deals with how protected information about a person may be obtained, recorded, disclosed or used for the purposes of the Scheme.

 

Subclause 75(2) defines protected information broadly as information about a person that was obtained by an officer 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 75(2)(a).

 

Clause 76 sets out the main authorisations for obtaining, recording, disclosing or using protected information.

 

Subclause 76(1) provides that a person may obtain protected information for the purposes of the Scheme. 

 

Subclause 76(2) provides that a person may make a record of, disclose to any person or otherwise use protected information in the following circumstances:

 

·          for the purposes of the Scheme; or

·          for the same purpose that the information was disclosed under clause 77 or 78; or

·          with the express or implied authorisation of the person to whom 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 76(3) 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.

 

Clause 77 gives the Operator the power to disclose protected information in certain limited circumstances. 

 

Subclause 77(1) provides that the Operator may disclose protected information that was acquired by an officer in the performance of his or her functions or duties or in the exercise of his or her powers under the Act if:

 

(a)   the Operator certifies that it is necessary in the public interest to do so 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)         the Secretary of a Department of State of the Commonwealth or to the head of an authority of the Commonwealth, for the purposes of that Department or authority; or

                  (ii)         a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; or

                 (iii)         the Chief Executive Centrelink for the purposes of a Centrelink program (within the meaning of the Human Services (Centrelink) Act 1997) ; or

                 (iv)         the Chief Executive Medicare for the purposes of a Medicare program (within the meaning of the Human Services (Medicare) Act 1973) ; or

                  (v)         the chief executive (however described) of a Department of State of a State or self-governing Territory, or to the head of an authority of a State or Territory, for the purposes of that Department or authority.

 

Subclause 77(2) provides that, if the Operator certifies that protected information may be disclosed in the public interest, or to the head of a Department of State or authority of the Commonwealth, a State or self-governing Territory, then the Operator must act in accordance with any rules made for the purposes of subclause 77(3). 

 

Subclause 77(3) provides that the rules 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 77(1)(a)); or

(b)   the Operator’s power to disclose information to the heads of Commonwealth, State or self-governing Territory departments or authorities (subparagraphs 77(1)(b)(i) or 77(1)(b)(v)). 

 

Subclause 77(4) clarifies that a certificate or determination under paragraph 77(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 78 provides for the Operator to disclose protected information for the purposes of law enforcement or child protection. 

 

Subclause 78(1) provides that clause 78 applies if the Operator is satisfied that the protected information is reasonably necessary for the enforcement of the criminal law or for the purposes of child protection. 

 

Subclause 78(2) provides that protected information may be disclosed by the Operator to an enforcement or protection agency as specified in this subclause, but only if the agency’s functions include the enforcement of the criminal law or child protection and only for the purposes of that enforcement or protection. The listed agencies include the Australian Federal Police, a police force or police service of a State or self-governing Territory, a Commonwealth institution and a Department of State, an agency or an authority of a Sate or self-governing Territory. 

 

Subclause 78(3) provides that the Operator must have regard to the impact the disclosure might have on a person that has applies for redress before disclosing protected information that relates to the person.

 

Subclause 78(4) provides that it is an offence if a current or former employee or officer of a law enforcement or protection agency discloses or uses protected information that was previously disclosed to that agency without the consent of the Operator or for a purpose other than enforcing the criminal law or child protection.  The penalty is two years imprisonment or 120 penalty units, or both. 

 

Subclause 78(5) provides that the Operator may, in writing, impose conditions to be complied with in relation to protected information disclosed under subclause 78(2).  It is an offence for the person, subject to a condition imposed under subclause 78(5), to engage in conduct with breaches the condition.  The penalty is two years imprisonment or 120 penalty units, or both (subclause 78(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 78(7) provides that an instrument under subclause 78(4) is not a legislative instrument. 

 

Clause 79 provides additional authorisations to obtain, make record of, disclose and otherwise use protected information for matters including insurance purposes.  Clause 79 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 79(1) provides that a person engaged by a participating institution, as an employee or otherwise, may obtain, make a record of, disclose or otherwise use protected information if the person believes on reasonable grounds that it is reasonably necessary for one of the following purposes specified in subclause 79(2):

 

(a)   complying with a requirement under clause 70 to provide information; or

(b)   providing a direct personal response to a person under clause 50;

(c)   facilitating a claim under an insurance policy; or

(d)   undertaking internal investigation and disciplinary procedures.

 

Subclause 79(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 80 provides that the Operator may disclose protected information that relates to a person who has applied for redress to the person’s nominee. 

 

Clause 81 provides that a person commits an offence if the person obtains information, the person is not authorised under the Act to obtain the information 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 unauthorised access to protected information and recognises the sensitivity of information held by the Scheme.

 

Clause 82 creates an offence if a person records, discloses or uses protected information and is not authorised or required by or under the Act to make a recording, 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.   

 

Clause 83 creates an offence if a person solicits the disclosure of information from an officer or another person, the disclosure would contravene Division 2 of Part 4-2 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 83(1) even if no protected information is actually disclosed (see subclause 83(2)).

 

Clause 84 creates offences relating to supplying protected information.

 

Subclause 84(1) provides that a person commits an offence if the person offers to supply protected information about another person (whether to a particular person or otherwise) 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 supply protected information about another person and recognises the sensitivity of information held by the Scheme. 

 

Subclause 84(2) provides that a person commits an offence if the person holds himself or herself out as being able to supply information about another person (whether to a particular person or otherwise) 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. 

Subclause 84(3) makes it clear that subsections 84(1) and 84(2) do not apply to an officer acting in the performance or exercise of his or her powers, duties of functions under the Act.

 

The note to clause 84 alerts the reader that the burden of proving whether a person has a reasonable excuse is on the defendant, by virtue of subsection 13.3(3) 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.

 

Clause 85 provides that a person is not, except where it is necessary to do so for the purposes of giving effect to the Act, required to produce any document in their possession or disclose any matter or thing they had or knew because of their performance, exercise of their duties, functions or powers under the Act to a 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 85 would not prevent information being provided to a court in circumstance where a person seeks judicial review of a decision made under the Act (noting however, that review under the ADJR Act is not available under this Scheme).

 

 

Part 4-3 - Internal review of determinations

 

 

Division 1 - Simplified outline of this Part

 

Clause 86 provides a simplified outline of Part 4-3. 

 

Division 2 - Internal review of determinations

 

Clause 87 provides that a person may apply to the Operator to review a determination made in relation to the person under clause 32.  Clause 32 requires the Operator to make a determination in relation to a person’s application for redress (subclause 87(1)).  The determination made under clause 32 is the original determination

 

Subclause 87(2) provides that the application for review must be made before the day specified in the notice of the determination made under clause 35.  Clause 35 requires the Operator to give a notice about the determination made under clause 32. The application must also be in the form (if any) approved by the Operator.

 

Clause 88 sets out the process for internal review of a redress determination. 

 

Subclause 88(1) provides that the Operator must, if an application is made under clause 87, 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 88(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 88(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.

 

Clause 89 provides for a person to withdraw their application for internal review under clause 87 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 orally, in writing or in any other manner approved by the Operator.

 

Clause 90 provides that a determination under paragraph 88(2)(b) 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.

 

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 91 provides that if a determination is made under paragraph 88(2)(b) in relation to an original determination, the decision-maker must give written notice of the review determination to the applicant.  The notice must include a statement that sets out the reasons for the review determination, the findings by the decision-maker on material questions of fact, and refer to evidence or other material on which those findings were based.

 

Clause 92 clarifies the interaction between internal review and the offer of redress.   Clause 92 applies when a person is given an offer of redress under clause 37 and the person applies for a review of a determination made under subclause 32(2) (subclause 92(1)).

 

Subclause 92(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.

 

In the event that the acceptance period ends before the review is completed, the Operator must extend the acceptance period under clause 38 so that it ends on a day after the review is completed (subclause 92(3)).

 

Under subclause 92(4), if a determination under subclause 32(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 37.

 

 

Part 4-4 - Nominees

 

 

Division 1 - Simplified outline of this Part

 

Clause 93 provides a simplified outline of Part 4-4.

 

Division 2 - Appointment of nominees

 

Clause 94 provides for the appointment of nominees.

 

Subclause 94(1) allows the Operator to appoint a person, in writing, to be the correspondence nominee of another person for the purpose of the Scheme.  A body corporate may be named as a person’s correspondence nominee.

 

Subclause 94(2) allows the Operator to appoint a person in writing to be the payment nominee of another person for the purposes of the Scheme.  A body corporate may be named as a person’s payment nominee. The Operator may also direct that the whole or a specified part of a redress payment payable by the Operator to the other person under clause 44 or 115 is to be paid to the nominee instead.

 

The note to subclause 94(2) makes it clear that a person can be appointed as both the correspondence nominee and the payment nominee of the same person.

 

Subclause 94(3) specifies that the Operator must not appoint a nominee for a person (who is the principal ) under clause 94 except with the written consent of the person to be appointed and after taking into consideration the wishes (if any) of the principal regarding the appointment. The Operator, having considered the principal’s wishes, can appoint any nominee that he or she considers appropriate.

 

Subclause 94(4) provides that a copy of an appointment under clause 94 must be given to the nominee and the principal.

 

Clause 95 provides for the suspension and cancellation of nominee appointments.

 

Subclause 95(1) specifies that the Operator must cancel the appointment of a nominee as soon as practicable if the person nominee appointed under clause 94 informs the Operator in writing that he or she no longer wishes to be a nominee under that appointment.

 

Subclause 95(2) provides for the suspension or cancellation of a nominee’s appointment or appointments.  This may occur where the Operator gives the nominee a notice under clause 99 and the nominee subsequently informs the Operator that an event or change of circumstances has occurred or is likely to occur and that event of change of circumstances is likely to have an effect referred to in paragraph 99(1)(b) (that is, it will affect the ability of the nominee to act as the correspondence or payment nominee of the person).

 

Subclause 95(3) provides that the Operator may suspend or cancel the nominee’s appointment (or each of their appointments) in circumstances where the Operator gives a nominee a notice under clause 99 or 100 and the nominee does not comply with a requirement of the notice.

 

While an appointment is suspended the appointment has no effect (subclause 95(4)).  The Operator may cancel the suspension of an appointment that was suspended under subclause 95(2) or 95(3) at any time (subclause 95(5)). The cancellation of an appointment or cancellation of a suspension must be in writing (subclause 95(6)) and has effect on and from the day specified (subclause 95(7)).

 

Subclause 95(8) provides that the Operator must give the nominee and the person for which he or she is a nominee a copy of any suspension, cancellation or cancellation of the suspension of the nominee’s appointment.    

 

Division 3 - Duties, functions and responsibilities of nominees

 

Clause 96 sets out the duty of a correspondence or payment nominee.  The duty is to act in the best interests of the principal 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 97 sets out the effect of actions of the correspondence nominee.

 

Subclause 97(1) allows a correspondence nominee to perform any act that may be done by the person under or for the purpose of the Act (other than appointing a person as a correspondence or payment nominee). In particular, if a person has a correspondence nominee, that nominee may apply to the Scheme on the principal’s behalf and the application will be taken to have been made by the principal (subclause 97(2)).

 

However, subclause 97(1) does not apply if the Operator gives a notice to a person who has a correspondence nominee and the notice requires the principal to do an act.

 

Subclause 97(4) provides that an act done by a correspondence nominee under clause 97 has effect as if it had been done by the principal.

 

Clause 98 provides for giving notices to a correspondence nominee.

 

Subclause 98(1) enables the Operator to give any notice required or authorised under the Act to a person’s correspondence nominee in place of the principal.  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 98(1)(a)).  Any such notice may be given to the correspondence nominee personally or by post or by any other means approved by the Operator (paragraph 98(1)(b)).

 

Clause 99 sets out the requirement for a nominee to inform the Operator of matters that affect their ability to act as a nominee.

Subclause 99(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 correspondence nominee has changed address.

 

Subclause 99(2) sets out specific requirements for the notice. The notice must be in writing and must be given to the nominee personally, by post or by any other means approved by the Operator.  It must specify how information is to be given to the Operator and specify the period within which the information must be given to 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 99(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 99(4)). However this does not apply to a requirement in a notice to inform the Operator that the nominee proposes to leave Australia.

 

Clause 100 relates to statements by the payment nominee regarding the disposal of money.

 

Subclause 100(1) provides that the Operator may give a payment nominee a notice that requires the nominee to give the Operator a statement about a matter relating to the disposal of a redress payment that has been paid to the payment nominee. 

 

Subclause 100(2) sets out specific requirements for the notice.  The notice must be in writing and must be given to the nominee personally, by post or by any other means approved by the Operator.  It must specify how the statement is to be given to the Operator and specify the period within which the statement must be given to the Operator. A notice will not be invalid merely because it fails to specify how the statement is to be given to the Operator (subclause 100(3)).

 

The period within which the statement must be provided to the Operator must not end any earlier than 14 days after the date of the notice (subclause 100(4)).  The statement in response to the notice must be in writing and in accordance with a form approved by the Operator (subclause 100(5)).

Subclause 100(6) creates an offence where a nominee refuses or fails to comply with a notice under subclause 100(1).  The penalty is 30 penalty units.  However, subsection 100(6) does not apply if the person has a reasonable excuse (subclause 100(7)).  This penalty is considered to be an appropriate deterrent against refusing or failing to comply with a notice.

 

The note to subclause 100(7) provides that the burden of proving whether a person has a reasonable excuse is on the defendant, by virtue of subsection 13.3(3) 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.  An offence against subclause 100(6) is an offence of strict liability (subclause 100(8)).

 

Division 4 - Payment of redress payment to payment nominee

 

Clause 101 sets out the requirements for making a payment of redress to a payment nominee.

 

Subclause 101(1) provides that a payment must be made to a payment nominee where certain conditions are met. Those conditions are that a person has a payment nominee, a redress payment is payable to the person and the Operator has given a direction in relation to the payment under paragraph 94(2)(b).

 

Subclause 101(2) makes it clear that where a redress payment is paid to a payment nominee it is taken to have been paid to the person.

 

Subclause 101(3) requires a redress payment that is paid to a payment nominee to be paid into a bank account specified and maintained by the payment nominee.  The whole or part of a redress payment may be paid to a payment nominee in a different way to that provided for under subclause 101(3), if the Operator directs.  Any payment must be made in accordance with the Operator’s direction (subclause 101(4)).  Such a direction by the Operator is not a legislative instrument (subclause 101(5)).

 

Division 5 - Other matters relating to nominees

 

Clause 102 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 Act in relation to any act or omission of their nominee.

 

Clause 103 protects the nominee against criminal liability.  

 

Subclause 103(1) provides that a nominee of a person is not subject to any criminal liability under the Act 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. This is subject to clause 100 which deals with a statement by a payment nominee regarding the disposal of money (subclause 103(2)).

 

Clause 104 provides that if the Operator gives a notice to a person who has a correspondence nominee, the Operator may inform the correspondence nominee of the fact that the notice has been given and may inform the nominee of the terms of the notice.

 

 

Part 4-5 - Debt recovery

 

 

Division 1 - Simplified outline of this Part

 

Clause 105 provides a simplified outline of Part 4-5.

 

Division 2 - Debt recovery

 

Clause 106 sets out the circumstances under which a debt is due to the Commonwealth.  Subclause 106(1) provides that, if an amount has been paid to a person under this new Act, the amount is a debt due to the Commonwealth only to the extent that clause 106 expressly provides that it is.

 

Subclause 106(2) provides that if an amount paid to a person (the recipient) which 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 applicant’s redress payment.  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 106(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 which 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 106(4) provides that the debt arises at the time the amount was paid to the recipient.

Clause 107 provides that where a debt under this new Act is recoverable by the Commonwealth by means of legal proceedings, the debt may be recovered in a court of competent jurisdiction.  This will enable legal proceedings to be commenced in the most appropriate jurisdiction allowing the matter to be heard at the lowest level necessary to address the matter.

 

Clause 108 provides for the Operator to enter into an arrangement for the payment of a debt. 

 

Subclause 108(1) enables the Operator to decide that a person may enter into an arrangement to repay the debt, for example by means of instalments.

 

Subclause 108(2) provides that the Operator’s decision is to take effect on the day stated in the arrangement.  If no day is stated, the decision is to take effect on the day the arrangement is entered into subclause 108(3).

 

Subclause 108(4) provides that the Operator may terminate or alter an arrangement at the person’s request, after giving 28 days’ notice to the person or without notice where the Operator is satisfied that the debtor has not provided material information about their capacity to repay the debt.

 

Clause 109 provides for the recovery of amounts directly from financial institutions where a payment was made in error.  The effect of clause 109 is that, where the Operator is satisfied that an amount has been paid to the account of a person who was not intended to obtain the payment, the Operator may, by written notice, require the financial institution to pay the amount of the payment to the Commonwealth, within a reasonable period.  Significantly, where the amount of the payment exceeds the amount that remains in the account when the notice is given, the obligation imposed on the financial institution is to repay only the amount remaining in the account.

 

Subclause 109(3) makes it an offence if a financial institution fails to comply with the notice.  The penalty is 300 penalty units.  This is considered to be an appropriate penalty for a financial institution which will deter a financial institution from failing to comply with a notice.

 

Subclause 109(4) provides a defence if the financial institution proves that it was incapable of complying with the notice given under subclause 109(2).  The note to subclause 109(4) provides that the burden of proving whether a person has a reasonable excuse is on the defendant, by virtue of subsection 13.3(3) 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 109(5) provides that any amount that has been paid by a financial institution to the Commonwealth pursuant to this clause is to be deducted from any debt referred to in subclause 106(1) (as it relates to paragraph 106(2)(a).

 

 

 

 

Part 4-6 - Other administrative matters

 

 

Division 1 - Simplified outline of this Part

 

Clause 110 provides a simplified outline of Part 4-6.

 

Division 2 - Regulatory powers

 

Clause 111 provides for the enforcement of civil penalty provisions.  Subclause 111(1) provides that each civil penalty provision of this new Act is enforceable under Part 4 of the Regulatory Powers Standard Provisions Act. 

 

The note 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 111(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 new Act for the purposes of Part 4 of the Regulatory Powers Standard Provisions Act.

 

Subclause 111(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 new Act for the purposes of Part 4 of the Regulatory Powers Standard Provisions Act.

 

 

Chapter 5 - Other matters

 

 

Part 5-1 - Exceptional cases

 

 

Division 1 - Simplified outline of this Part 5-1

 

Clause 112 provides a simplified outline of Part 5-1

 

Division 2 - Death of person before acceptance of redress offer

 

Clause 113 applies in circumstances where a person applies for redress under clause 33 of the Scheme, but dies at any time after the application is made and before a determination on the application is made under clause 32 of the Scheme.

 

Subclause 113(1) provides that in such circumstances the Operator must continue with the application as if the person had not died.

 

If the Operator approves the application under paragraph 32(2)(a) the Operator must make a determination under paragraph 32(2)(b) about the participating institution liable for providing redress and a determination under paragraph 32(2)(c) about the amount of the redress payment and each liable institution’s share of the cost of the redress payment.

 

If the Operator makes a determination under clause 32 on the application, the Operator must give written notice to the person whom the Operator considers most appropriate.  The notice must state:

 

(a)   whether or not the application has been approved; and

(b)   the reasons for the determination; and

(c)   if the application is approved - specifies the amount of the redress payment.

 

The redress payment for the person under this clause is payable in accordance with clause 115 (subclause 113(5)).

 

Clause 114 applies in circumstances where a person applies for redress under clause 29 and the person dies at any time after an offer of redress is made under clause 37 and before the offer is accepted or declined.  In such circumstances, the offer is deemed to be withdrawn and any application for internal review under clause 87 is deemed to have been withdrawn.  This has effect at the time of the person’s death.

 

Subclause 114(3) provides that the redress payment for the person is payable in accordance with clause 115.

 

Clause 115 will apply if a redress payment for a deceased person is payable under subclause 113(5) or 114(3).  The payment is made in accordance with subclauses 115(2) to 115(5).

 

Subclause 115(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 115(3) specifies the Operator must, 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 115(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 115(5) to allow the rules to prescribe matters relating to the payment of redress payments under clause 115.  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 115.  The rule making power provided in subclause 115(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.

 

 

Part 5-2 - The Commonwealth Redress Scheme Rules

 

 

Division 1 - Simplified outline of this Part 

 

Clause 116 provides a simplified outline of Part 5-2

 

Division 2 - The Commonwealth Redress Scheme Rules

 

Clause 117 provides for the making of rules by the Minister, in the form of a legislative instrument, for the purposes of the Scheme. 

 

Subclause 117(1) provides the Minister with the power to make rules, by legislative instrument prescribing matters:

 

(a)   required or permitted by the Act to be prescribed by the rules; or

(b)   necessary or convenient to be prescribed for the carrying out or giving effect to the Act. 

 

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.

 

Subclause 117(2) further provides that the rules may prescribe matters about the following:

 

(a)   the provision of legal services under the Scheme;

(b)   the provision of support services under the Scheme

(c)   an institution ceasing to be a participating institution;

(d)   whether or how Part 3-1 (about liability to pay funding contribution) applies to participating institutions that are Commonwealth institutions;

(e)   repaying participating institutions in relation to debts recovered from a person under clause 106. 

 

Subclause 117(3) clarifies that other provisions in the Act that provide for rules to deal with matters do not limit each other. 

 

Subclause 117(4) specifies that the rules may not do any of the following:

 

(a)   create an offence or civil penalty;

(b)   provide powers of:

 

                    (i)         arrest or detention;

                  (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 this Act;

(e)   directly amend the text of this Act. 

 

 

Part 5-3 - Other matters  

 

 

Division 1 - Simplified outline of this Part 

 

Clause 118 provides a simplified outline of Part 5-3

 

Division 2 - Delegation 

 

Clause 119 gives the Minister the power to delegate powers of functions under the Act.

 

Subclause 119(1) provides that the Minister may, in writing, delegate all or any of his or her powers or functions under the Act 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 making rules for the purpose of the Scheme, as set out in clause 117, cannot be delegated. 

 

Subclause 119(2) provides that a delegate, exercising a power or function delegated by the Minister under subsection 119(1), must comply with any directions of the Minister. 

 

Clause 120 deals with the delegation by the Operator of his or her powers or functions in the Bill. 

 

Subclause 120(1) states that the Operator may, in writing, delegate all or any of his or her powers under this Act to an officer of the Scheme.  An officer of the Scheme is defined in clause 9 to mean a person performing duties, or exercising powers or functions, under or in relation to the Act. 

 

Subclause 120(1) further identifies that powers and functions under clauses 32, 88 and 111 cannot be delegated to an officer of the Scheme.  These clauses relate to making a determination on an application (clause 32), internal review of a redress decision (clause 88) and the Operator being an authorised applicant in relation to seeking to enforce civil penalty provisions (clause 111). 

 

Subclause 120(2) provides that a delegate exercising a function or power delegated to them under clause 120(1) must comply with directions of the Operator when exercising powers or performing functions under a delegation. 

Subclause 120(3) states that the Operator may, in writing, delegate his or her powers and functions under clause 32 or 88 to an independent decision-maker.  Clause 32 relates to making a determination on an application and clause 88 relates to internal review of a redress decision.  An independent decision-maker can be engaged under clause 121. 

 

Subclause 120(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 32) or reviewing a redress decision (clause 88).  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 3 - Independent decision-makers

 

Clause 121 deals with engaging persons to be independent decision-makers.

 

Subclause 121(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 32 on an application for redress or clause 88 relating to internal review. The Operator may engage such a person on behalf of the Commonwealth and with the approval of the Minister.

 

Subclause 121(2) requires the Minister to consult with appropriate Ministers from the participating self-governing Territories in accordance with the Commonwealth Redress Scheme Agreement before approving the engagement of a person as an independent decision-maker under subclause 121(1).

 

Subclause 121(3) provides that a person engaged under subclause 121(1) is an independent decision-maker .

 

Subclause 121(4) makes it clear that Subdivision A of Division 3 of Part 2 of the PGPA Act, that deals with general duties of officials and any rules made under that Act for the purposes of that Subdivision, apply to an independent decision-maker in the same way that they apply to an official (within the meaning of the PGPA Act).

 

The note to subclause 121(4) indicates that the duties of officials under the PGPA Act include the duty of care and diligence, the duty to act honestly, in good faith and for a proper purpose, the duties in relation to the use of information and position, and the duty to disclose interests.

 

Division 4 - Reporting to Parliament

 

Clause 122 sets out the requirements for annual reporting on the operation of the Scheme.

 

Subclause 122(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 122(2) specifies what information must be included in the annual report in relation to requests for information or documents from participating institutions. Such requests may be made by the Operator under clause 70. In particular, the annual report must specify:

 

(a)   the number of requirements for information or documents made by the Operator under clause 70 to a participating institution that:

 

                     (i)         were not complied with at all;

                    (ii)         were complied with only partially;

                  (iii)         were complied with (fully or partially) after the day specified in a request;

 

(b)   the name of each of those participating institutions;

(c)   the number of requirements to which paragraph 122(2)(a) applies for each of those participating institutions.

 

These requirements will ensure that there are consequences for participating institutions failing to meet or respond to requests for information and documents required under clause 70.

 

Subclause 122(3) specifies what information must be included in the annual report for the year in relation to participating institutions failing to provide a direct personal response.  The requirement to provide a direct personal response is in subclause 50(2).  Under subclause 121(3) the annual report must include the following information for the year:

 

(a)   the number of cases where a participating institution:

 

                    (i)         did not comply with subclause 50(1) (which is about institutions not giving direct personal responses) at all; or

                  (ii)         complied with subclause 50(1) only partially;

 

(b)   the name of each of those participating institutions;

(c)   the number of cases to which paragraph 122(3)(a) applies for each of those participating institutions. 

 

Subclause 122(4) allows for rules to be made which prescribe other requirements to be included in the annual report.  This will allow the Operator to specify matters that may be of interest to Parliament that arise over the 10 year course of the Scheme.

 

Division 5 - Treatment of unincorporated participating non-government institutions of a Territory  

 

Clause 123 sets out how a participating non-government institution of a Territory that is a partnership is to be treated under the Scheme. 

 

Subclause 123(1) provides that the Act applies to a partnership as though it were a person, but with the changes set out in clause 123. 

 

Subclause 123(2) states that obligations imposed on an institution are instead imposed on each partner.  Such obligations may be discharged by any of the partners. 

 

Subclause 123(3) provides that an offence against this Act that would otherwise have been committed by the institution is taken to be committed by each partner in the partnership, at the time the offence was committed, who:

 

(a)   did the relevant act or made the relevant omission; or

(b)   aided, abetted, counselled or procured the relevant act or omission; or

(c)   was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner). 

 

Clause 124 sets out how a participating non-government institution of a Territory that is an unincorporated association is to be treated under the Scheme. 

 

Subclause 124(1) provides that the Act applies to an unincorporated association as though it were a person, with the changes set out in subclause 124(2). 

 

Subclause 124(2) states that an obligation that would otherwise be imposed on the institution by the Act is imposed on each member of the association’s committee of management.  Such obligations may be discharged by any of the members. 

 

Subclause 124(3) provides that an offence against the Act that would otherwise have been committed by the institution is taken to have been committed by each member of the association’s committee of management, at the time the offence was committed, who:

 

(a)   did the relevant act or omission; or

(b)   aided, abetted, counselled or procured the relevant act or omission; or

(c)   was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the member. 

 

Division 6 - Miscellaneous

 

Clause 125 provides a decision of the Operator under the Act must be made in writing. 

 

Clause 126 provides that a notification required to be made or permitted to be made under the Act by the Operator, may be made:

 

(a)   by sending the notice by prepaid post to the last postal address known to the Operator for the person; or

(b)   by giving the notice to the person directly; or

(c)   in any other way the Operator considers appropriate. 

 

Clause 127 provides the Operator with the power not to make a determination in certain circumstances.

 

Subclause 127(1) provides the Operator is not required to make a determination on an application if it is not in a form approved by the Operator.

 

Subclause 127(2) provides that where the Act permits the Operator to require or request information or documents for the purposes of, or purposes relating to, making a determination or doing a thing, the Operator is not required to make a determination or do the thing until the information or documents are provided. 

 

Examples :

 

  1. An application must be completed via the prescribed paper form or online form.  Person A sends by post to the Operator of the Scheme, a copy of a past police report detailing abuse committed against them. In this case, the Operator does not need to make a decision on the application as Person A did not complete a valid application. 

 

  1. Person B applies for redress and submits their application via the prescribed online form.  The Operator of the Scheme is required to seek information from the institution relevant to Person B’s application.  In this case, until that information is provided, the Operator does not need to make a decision. 

 

Clause 128 requires the Minister to cause a review of the operation of the Scheme as soon as possible after the eighth anniversary of the scheme start day or earlier (but not within the first two years of the Scheme).  The scheme start day is defined in clause 9 as being 1 July 2018.   

 

Clause 129 provides the sunset provisions for the Bill. 

 

Subclause 129(1) provides that the Scheme will cease to have effect at the end of the day that is:

 

(a)   the tenth anniversary of the scheme start day; or

(b)   if, before the tenth anniversary, the rules prescribe a day that is after the tenth anniversary —that day.  For example, this may occur if there is an unforeseen volume of applications outstanding in the lead-up to the scheduled sunset day.

 

The scheme start day is defined in clause 9 as being 1 July 2018 and the tenth anniversary of the scheme start day will be 1 July 2028.

 

Subclause 129(2) provides that despite subclause 129(1), prior to the first anniversary of the scheme start day (1 July 2019) rules may be made for the Scheme (under clause 117) for the purposes of subclauses 129(3) and 129(4). 

 

Subclauses 129(3) and 129(4) permit the rules to prescribe matters of a transitional nature (including prescribing any saving or application provisions) in relation to when the Act will cease to have effect under subclause 129(1), and may (without limiting subclause 129(2)) provide that certain provisions of the Act 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 129(5) provides that the rules are repealed immediately before the first anniversary of the sunset day that is provided for in subclause 129(1). 

 

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 components and late payment penalty amounts have been paid by each participating institution. 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017

 

 

Background

 

 

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 makes consequential amendments to Commonwealth legislation for the purposes of the Scheme established under the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017

 

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 ADJR 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. 

 

Clause 1 provides that the short title of the Act is the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Act 2017.

 

Clause 2 provides that the whole Act will commence on 1 July 2018. 

 

Clause 3 provides that legislation that is specified in a Schedule is amended or repealed as set out in that Schedule.

 

Schedule 1 — Commonwealth 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 — Commonwealth redress scheme payments non-divisible property in bankruptcy  

Bankruptcy Act 1996

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 104 and 104B respectively of the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 ).

 

Schedule 3 — Commonwealth redress scheme decisions exempt from judicial review

Administrative Decisions (Judicial Review) Act 1977

Item 1 inserts a new paragraph (zg) into schedule 1 of the ADJR Act. This amendment means that decisions under the Scheme will not be subject to judicial review under the ADJR Act.

 

Exempting a decision made under the Scheme from the ADJR 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 ADJR 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 request an internal review of the decision (clause 92 of the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 ).  Clause 92 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 ADJR 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.

 

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

COMMONWEALTH REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2017

 

COMMONWEALTH REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE (CONSEQUENTIAL AMENDMENTS) BILL 2017

 

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 Bill

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 Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (the Bill) and the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 (the Consequential Amendments Bill) will provide redress to eligible survivors of institutional child sexual abuse. The Commonwealth 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 elements 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 within scope of the Scheme.

·          access  to counselling and psychological services of their choice throughout their lives; and

·          a direct personal response to survivors from the responsible participating institution, should the survivor request one.

The Commonwealth is showing national leadership by establishing the Scheme to take responsibility for providing redress to its survivors.  Territories and non-government institutions established in Territories 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 Territory’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 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 Territory or non-government 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 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 all responsible participating institutions from any liability for sexual abuse and related non-sexual abuse, of the person within the scope of the Scheme.

In determining whether a participating institution is responsible for the abuse of a survivor, 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 alleged abuser was an official of the institution when the abuse occurred;

·          whether the institution was responsible for the care of the survivor when the abuse occurred;

·          whether the abuse was the result of mismanagement of the institution; and

·          whether it was reasonable to foresee the abuse occurring.

A participating institution will be treated as primarily responsible for an alleged abuser having contact with a survivor if the institution is solely, substantially or primarily responsible for that contact.  A participating institution will be treated as equally responsible for an alleged abuser having contact with a survivor if the institution is equally responsible with one or more institutions for that contact.

The Operator may declare the Commonwealth or a participating Territory is the funder of last resort (FOLR) where:

·          the Commonwealth or Territory is equally responsible for the abuse either through a test of responsibility or through pre-determined categories; and

·          the other equally responsible entity is a non-government institution that does not exist and has not been subsumed; or exists but is insolvent.

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 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.

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 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 Bill promotes this right by establishing the Scheme.  The Scheme will support the recovery of survivors of child sexual abuse that occurred prior to the cut-off day (the date of the Scheme's commencement) in Commonwealth institutional settings, in a Territory, or outside Australia where the responsible institution is participating in the Scheme.

The Scheme will directly assist in survivors’ recovery by providing access to counselling or psychological services.  Survivors will be empowered to make decisions about their own counselling needs, access services of their choice and throughout their 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 are a continuation of support services available to assist survivors engaging with the Royal Commission, which included locations in each state and Territory and 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 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 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.

 

There may be a perception that the Bill discriminates in upholding Article 39 on the basis of survivors’ nationality and 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. This rulemaking power may be used to deem the following groups of non-citizen, non-permanent residents eligible: those currently living in Australia, those who were child migrants, and those who were formerly Australian citizens or permanent residents.

Non-citizens and non-permanent residents who are not members of one of the aforementioned classes 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 large volumes of false claims in attempts to defraud the Scheme, which could overwhelm the Scheme’s resources and delay the processing of legitimate applications.

These restrictions on eligibility for the Scheme are necessary to the achieving legitimate aims of ensuring the Scheme receives public support and protecting against large scale fraud.

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.

There could be a perception 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 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) for all sexual and non-sexual abuse that the institution was responsible for before the cut-off date.

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 Territory government and non-government 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.

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 relevant points of the application process, and will assist survivors to understand the implications of releasing responsible institutions from further liability.  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 from civil liability for abuse within the scope of the Scheme or seek remedy through other avenues.

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.  There could be a perception that the Bill limits this right for alleged perpetrators of child sexual abuse.

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 exposure of alleged perpetrator information by a participating institution irrevocably damages the reputation of an alleged perpetrator in circumstances where proof to a criminal or even a civil standard is not required.

Supplying details of alleged perpetrators 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 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 institutions identified in their application.  Participating institutions 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 survivor and the 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 includes provisions for the Scheme to disclose allegations of child sexual abuse to child protection authorities and police, which will be communicated to survivors prior to them submitting their application.  Survivor consent will be sought to include their personal information in referrals to relevant authorities.  Where consent is given, full survivor details and allegations will be provided to the relevant authorities.

Where survivors do not consent to their information to be provided to relevant authorities, the Scheme will adopt a practice of de-identifying the survivor information, while still referring the allegations to relevant authorities.  Exceptions to disclosure practices will apply where it is known the alleged perpetrator is deceased or the allegations do not include any allegations of child sexual abuse; for example, where an ineligible application has been made for non-sexual abuse only, or for sexual abuse experienced as an adult.

This approach respects survivors’ wishes relating to the protection of their personal information to the extent possible while still maintaining the prevention of future child sexual abuse as the highest priority.

The Scheme, in very limited circumstances, will be required to refer some matters to police without the survivor’s consent in cases of serious risk to life; for example, where a survivor threatens self-harm or threatens an alleged perpetrator.

Some non-identifying information collected by the Scheme will be used to report on performance of the Scheme. Survivors will be informed of this at the point of application.

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 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 a access to counselling and psychological care to survivors who seek it as one of the three elements of redress, maximising survivors’ access to health services. Further, a monetary payment for this purpose gives survivors maximum flexibility to choose the most appropriate care for their needs.

 

 

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 Christian Porter MP]