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Part 3-2—Special rules excluding entitlement to redress

Part 3-2 Special rules excluding entitlement to redress

Division 1 Simplified outline of this Part

62   Simplified outline of this Part

This Part deals with a number of special cases to provide exclusions to the general rules of entitlement to redress in Chapter 2. Under this Part, a person who would otherwise be entitled to redress under the general rules may nevertheless not be entitled to redress because of the application of the exclusions in this Part.

If a person is sentenced to imprisonment for 5 years or longer for an offence against the law of the Commonwealth, a State, a Territory or a foreign country, the person will not be entitled to redress unless the Operator makes a determination under subsection 63(5). Division 2 deals with that case.

A person is also not entitled to redress under the scheme while a security notice is in force in relation to the person. Division 3 deals with that case.

Division 2 Special assessment of applicants with serious criminal convictions

63   Special assessment of applicants with serious criminal convictions

             (1)  This section applies if:

                     (a)  a person makes an application under section 19 for redress for abuse of the person; and

                     (b)  before or after making the application, the person is sentenced to imprisonment for 5 years or longer for an offence against a law of the Commonwealth, a State, a Territory or a foreign country.

             (2)  For the purposes of subsection 12(4), the person is not entitled to redress under the scheme unless there is a determination in force under subsection (5) of this section that the person is not prevented from being entitled to redress.

             (3)  As soon as practicable after becoming aware of the person’s sentence, the Operator must:

                     (a)  consider whether to make a determination under subsection (5); and

                     (b)  give a written notice under subsection (4) to each of the following (a specified advisor ):

                              (i)  if the abuse of the person occurred inside a participating State or a participating Territory—the Attorney-General of the State or Territory, or another person nominated by that Attorney-General in writing;

                             (ii)  if the abuse of the person occurred outside a participating State or a participating Territory—the Commonwealth Attorney-General;

                            (iii)  if the offence was against a law of a participating State or a participating Territory—the Attorney-General of the State or Territory, or another person nominated by that Attorney-General in writing;

                            (iv)  if the offence was against a law not covered by subparagraph (iii)—the Commonwealth Attorney-General.

             (4)  The notice must:

                     (a)  request the specified advisor to provide advice about whether the Operator should make a determination under subsection (5); and

                     (b)  include sufficient information to enable the specified advisor to provide that advice; and

                     (c)  specify the period (which must be at least 28 days starting on the date of the notice) in which the specified advisor may provide that advice.

             (5)  The Operator may determine that the person is not prevented from being entitled to redress under the scheme if the Operator is satisfied that providing redress to the person under the scheme would not:

                     (a)  bring the scheme into disrepute; or

                     (b)  adversely affect public confidence in, or support for, the scheme.

             (6)  When making a determination under subsection (5), the Operator must take into account:

                     (a)  any advice given by a specified advisor in the period referred to in the notice; and

                     (b)  the nature of the offence; and

                     (c)  the length of the sentence of imprisonment; and

                     (d)  the length of time since the person committed the offence; and

                     (e)  any rehabilitation of the person; and

                      (f)  any other matter that the Operator considers is relevant.

             (7)  When taking into account the matters set out in subsection (6), the Operator must give greater weight to any advice that:

                     (a)  is given by a specified advisor from the jurisdiction in which the abuse of the person occurred; and

                     (b)  is given in the period referred to in the notice;

than to any other matter.

             (8)  The rules may prescribe matters relating to the giving of notices to a person or a participating institution in relation to a determination under subsection (5).

Division 3 Security notices

Subdivision A No entitlement to redress while security notice in force

64   Person not entitled to redress while security notice in force

                   For the purposes of subsection 12(4), a person is not entitled to redress under the scheme while a security notice is in force in relation to the person.

Subdivision B Security notice

65   Security notice from the Home Affairs Minister

             (1)  The Home Affairs Minister may give the Minister a written notice (a security notice ) requiring that this Division apply in relation to a specified person if:

                     (a)  the Foreign Affairs Minister gives the Home Affairs Minister a notice under subsection 66(1) in relation to the person; or

                     (b)  the person’s visa is cancelled under section 116 or 128 of the Migration Act 1958 because of an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ); or

                     (c)  the person’s visa is cancelled under section 134B of the Migration Act 1958 (emergency cancellation on security grounds) and the cancellation has not been revoked because of subsection 134C(3) of that Act; or

                     (d)  the person’s visa is cancelled under section 501 of the Migration Act 1958 and there is an assessment by the Australian Security Intelligence Organisation that the person is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).

             (2)  Before giving a security notice, the Home Affairs Minister must have regard to the extent (if any) that any payments to the person under the scheme have been or may be used for a purpose that might prejudice the security of Australia or a foreign country, if the Home Affairs Minister is aware of that extent.

             (3)  Subsection (2) does not limit the matters to which regard may be had when giving a security notice.

             (4)  A security notice is not a legislative instrument.

66   Notice from the Foreign Affairs Minister

             (1)  If:

                     (a)  either:

                              (i)  under subsection 14(2) of the Australian Passports Act 2005 , the Foreign Affairs Minister refuses to issue a person an Australian travel document; or

                             (ii)  under section 22 of that Act, the Foreign Affairs Minister cancels a person’s Australian travel document; and

                     (b)  the refusal or cancellation was because of a refusal/cancellation request made in relation to the person under subsection 14(1) of that Act; and

                     (c)  the request was made on the basis of the circumstance mentioned in subparagraph 14(1)(a)(i) of that Act;

the Foreign Affairs Minister may give the Home Affairs Minister a written notice setting out those matters.

             (2)  A notice under subsection (1) is not a legislative instrument.

67   Copy of a security notice to be given to the Operator and the Human Services Secretary

                   The Minister must give a copy of a security notice to:

                     (a)  the Operator; and

                     (b)  the Secretary of the Human Services Department.

68   Period a security notice is in force

                   A security notice comes into force on the day it is given to the Minister, and remains in force until it is revoked.

69   Annual review of a security notice

                   Before the end of the following periods, the Home Affairs Minister must consider whether to revoke a security notice (if it has not already been revoked):

                     (a)  12 months after it came into force;

                     (b)  12 months after the Home Affairs Minister last considered whether to revoke it.

70   Revoking a security notice

             (1)  The Home Affairs Minister may, by written notice given to the Minister, revoke a security notice.

             (2)  The revocation takes effect on the day it is made.

             (3)  The Minister must give a copy of a notice under subsection (1) to:

                     (a)  the Operator; and

                     (b)  the Secretary of the Human Services Department.

Subdivision C Other matters affected by a security notice

71   Other matters affected by a security notice

             (1)  If at the time a security notice comes into force in relation to a person:

                     (a)  the person has made an application for redress under section 19; and

                     (b)  either:

                              (i)  a determination has not been made in relation to the application under section 29; or

                             (ii)  an offer of redress has not been given to the person under section 39;

then, at that time, the application is taken to have been withdrawn by the person under subsection 22(1).

             (2)  If at the time a security notice comes into force in relation to a person:

                     (a)  the person has made an application for redress under section 19; and

                     (b)  an offer of redress has been given to the person under section 39; and

                     (c)  the offer has not been accepted, declined or withdrawn;

then, at that time:

                     (d)  the offer is taken to be withdrawn; and

                     (e)  the determination made under subsection 29(2) on the application is taken to be revoked by the Operator under subsection 29(4); and

                      (f)  the application is taken to have been withdrawn by the person under subsection 22(1).

             (3)  The rules may prescribe matters relating to the giving of notices to a person or a participating institution in relation to the operation of this Division in relation to the person’s entitlement to redress.