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National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Bill 2020

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2019-2020

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT (TECHNICAL AMENDMENTS) BILL 2020

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for Families and Social Services, Senator the Hon Anne Ruston)



 

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT (TECHNICAL AMENDMENTS) BILL 2020

 

 

OUTLINE

 

The Bill makes several technical amendments to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act) that will improve the operation of the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme). The amendments will variously clarify the operation of certain provisions and provide greater administrative efficiency, while continuing to achieve the original policy intent of the Scheme. The amendments made by the Bill:

 

·          clarify how participating institutions that are associates of a responsible institution are to be determined and specified;

·          clarify that the amount for which a funder of last resort is liable in relation to a responsible defunct institution is based on the number of funders of last resort in relation to that institution;

·          provide for greater efficiency in engaging independent decision-makers;

·          introduce protections for the names and symbols used in connection with the Scheme;

·          permit a redress payment to be made to a person who has been appointed by a court, tribunal or board to manage the financial affairs of a person entitled to redress;

·          permit the National Redress Scheme Operator to extend the timeframe for payment of a funding contribution by an institution;

·          authorise disclosure of protected information about a non-participating institution for the purpose of encouraging the institution to become a participating institution; and

·          correct minor typographical errors.  

 

The amendments will enable these efficiencies and clarifications to occur as early as possible, ensuring Scheme operations are improved where needed and ultimately support the management of applications for redress from survivors of institutional child sexual abuse.

 

Financial impact statement

 

This Bill has nil financial impact.

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

 

 

 

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT (TECHNICAL AMENDMENTS) BILL 2020

 

 

NOTES ON CLAUSES

 

Abbreviations used in this explanatory memorandum

 

  • National Redress Scheme Agreement has the meaning set out in section 6 of the Redress Act.

 

  • Operator means the National Redress Scheme Operator, as defined in section 6 of the Redress Act.

 

  • Redress Act means the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 .

 

  • Scheme means the National Redress Scheme for Institutional Child Sexual Abuse as established by the Redress Act.

 

 

Clause 1 sets out how the new Act is to be cited, that is, as the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Act 2020 .

 

Clause 2 provides a table setting out commencement dates for the new Act. Except for Part 1, the Act commences on the day after it receives the Royal Assent.

 

Part 1 commences on 1 July 2018. This is because the clarifications made to the Act by Part 1 affirm the ways participating institutions that are associates can be described in making a determination on an application, in making an offer of redress or in giving notices, as explained below in relation to Part 1. This will lend clarity to the current and future administration of the Scheme as it relates to determining and identifying participating institutions that are associates of each other because they are members of a participating group of institutions declared by the Minister.

 

Clause 3 provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.



Schedule 1 - Amendments

 

 

Summary

 

The Bill makes several technical amendments to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act) that will improve the operation of the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme). The amendments will variously clarify the operation of certain provisions and provide greater administrative efficiency, while continuing to achieve the original policy intent of the Scheme. The amendments made by the Bill:

 

·          clarify how participating institutions that are associates of a responsible institution are to be determined and specified;

·          clarify that the amount for which a funder of last resort is liable in relation to a responsible defunct institution is based on the number of funders of last resort in relation to that institution;

·          provide for greater efficiency in engaging independent decision-makers;

·          introduce protections for the names and symbols used in connection with the Scheme;

·          permit a redress payment to be made to a person who has been appointed by a court, tribunal or board to manage the financial affairs of a person entitled to redress;

·          permit the National Redress Scheme Operator to extend the timeframe for payment of a funding contribution by an institution;

·          authorise disclosure of protected information about a non-participating institution for the purpose of encouraging the institution to become a participating institution; and

·          correct minor typographical errors. 

 

The amendments will enable these efficiencies and clarifications to occur as early as possible, ensuring Scheme operations are improved where needed and ultimately support the management of applications for redress from survivors of institutional child sexual abuse.

 

Background

 

The Redress Act commenced on 1 July 2018, establishing the Scheme in response to the Royal Commission into Institutional Responses to Child Sexual Abuse. The Scheme will operate until 1 July 2028 (the Scheme sunset day) to provide redress to eligible survivors, consisting of a monetary payment of up to $150,000 in recognition of wrong suffered, access to counselling and psychological services and the option of a direct personal response from the institution, or institutions, found responsible. It has been open to survivors to apply for redress under the Scheme since its commencement, and applications can be made until 30 June 2027 (12 months before the Scheme sunset day).

 

 

 

In order for a person to receive redress from a responsible institution, the institution must agree to participate in the Scheme (that is, opt into the Scheme) and be declared a participating institution by the Minister for Families and Social Services. The latest date an institution may be declared a participating institution is 31 December 2020.

 

The second anniversary review of the operation of the Scheme, required by the Redress Act, is currently underway. This review will consider a broad range of prescribed matters relating to the implementation, operation and administration of the Scheme, and the views of key stakeholders. The second anniversary review is an important mechanism for formally considering these matters. However, a number of technical issues have already been identified as impacting the optimal operation of the Scheme, or as having potential to create inefficiencies in the operation of the Scheme, and it is appropriate to address these through amendments to the Redress Act.

 

In accordance with the National Redress Scheme Agreement, the Commonwealth has consulted with States and Territories on the minor and technical amendments proposed by the Bill.

 

Explanation of the changes

 

Part 1 - Associates of participating institutions

 

The amendments in Part 1 will reflect that whether a participating institution is an associate of another participating institution is determined by whether the Minister has made a declaration, under subsection 134(1) of the Redress Act, that the institutions form a participating group. Two or more participating institutions may form a participating group, with each member being an associate of the other members.  Such a determination has no bearing on the discretion of an independent decision-maker in making a determination on an application: the Minister’s declaration that two or more institutions form a participating group is relevant only to the status of member institutions as associates.

 

Reference to a participating group declared by the Minister, or to the institutions that are members of a group as set out in a declaration made by the Minister, are ways of identifying those institutions that are associates of each other as provided for by subsection 133(3) of the Redress Act. The amendments proposed do not affect whether an institution is an associate of another institution, but clarify the ways this relationship can be described in making a determination on an application, in making an offer of redress or in giving notices. This allows for greater administrative efficiency and practicality when dealing with large participating groups in particular, and in communicating with institutions and applicants. The amendments will not affect institutions’ obligation to provide redress or the release from civil liability when an offer of redress is accepted.

 

Item 1 repeals and substitutes paragraph 29(2)(g) with an amended provision requiring that, if a responsible institution is a member of a participating group, the Operator must determine the participating group of which the institution is a member.

 

This change replaces the requirement that the Operator determine each other institution that is an associate of the responsible institution, noting subsection 133(3) already provides that a participating institution that is a member of a participating group is an associate of each other participating institution in the group.

 

Whether a participating institution is a member of a participating group of institutions is a question of fact, determined by whether the Minister has declared, under subsection 134(1) of the Redress Act, that particular institutions form a participating group. 

 

The operation of the Redress Act in this way is clarified by new Note 1A, added by Item 2 , following subsection 29(2).

 

Item 3 adds to paragraph 29(7)(b) a reference to the representative for a participating group. This is to clarify that if a determination is revoked under subsection 29(4), notice is to be given to each participating institution or representative for a participating group that was given notice under section 35 of the determination on the application.

 

Item 4 inserts new subsection 35(1A) as a consequence of the amendments made by item 1. Since new paragraph 29(2)(g) will not enliven the notice requirement in subsection 35(1), new subsection 35(1A) will apply. This will require the representative for a participating group determined under paragraph 29(2)(g) to be notified of a determination on an application for redress.

 

Item 5 repeals and substitutes paragraph 35(2)(c), also as a consequence of the amendments made by item 1. New paragraph 35(2)(c) reflects new paragraph 29(2)(g) by amending the notice requirement to refer to the participating group of which the institution has been determined to be a member under paragraph 29(2)(g).

 

Item 6 adds to paragraph 35(2)(f) reference to a participating group. This is to clarify that notice of a determination on an application given under section 35 must state the reasons for the determination as they relate to the institution or participating group.

 

Item 7 repeals and substitutes paragraph 39(g) with an amended provision requiring that, if the Operator determines, under paragraph 29(2)(g) that a responsible institution is a member of a participating group, the offer of redress given to a person must identify the other participating institutions, or classes of participating institutions, that are associates of the responsible institution at that time because they are members of a participating group declared by the Minister under subsection 134(1).

 

This amendment reflects that an institution declared by the Minister to be a participating institution may be identified by inclusion in a particular class (see subsection 115(2) of the Redress Act) and that those participating institutions that are associates is determined by declaration of the Minister under subsection 134(1).

 

Item 8 repeals and substitutes subparagraph 42(2)(c)(ii) as a consequence of the amendments made by item 7. New subparagraph 42(2)(c)(ii) requires an acceptance document to state that the release from civil liability as referred to in paragraph 42(2)(c) releases and forever discharges, in addition to all responsible institutions, all participating institutions that are associates of the responsible institutions, as specified under paragraph 39(g).

 

This reference to paragraph 39(g) rather than paragraph 29(2)(g) does not alter the institutions that are released from liability because, as noted in relation to item 1, this depends on the institutions that have been declared by the Minister under subsection 134(1) of the Redress Act to form a participating group. However, this change ensures consistency between the offer of redress and the acceptance document. It will also support a more trauma informed approach to communicating with survivors of institutional child sexual abuse.

 

Item 9 adds to subsection 79(1) a reference to the representative for a participating group. This is to clarify that notice about review of a determination on an application for redress given under section 79 is to be given to each participating institution or representative for a participating group that was given notice under section 35 of the determination on the application.

 

Part 2 - Funder of last resort provisions

 

Items 10 to 12 and 14 to 26 amend the Redress Act to reflect that there may be more than one funder of last resort in relation to a responsible defunct institution, consistent with the amendments to subsection 165(1) proposed by item 27, and to make technical corrections where reference is made to ‘funders’ rather than ‘funder’.

 

Item 13 amends paragraph 35(2)(e) to provide that notice to a funder of last resort of a determination made on an application must state the number of other institutions that are also a funder of last resort.

 

Item 27 substitutes a new subsection 165(1), relating to the effect of a government institution being a funder of last resort. New subsection 165(1) reflects that one or more government institutions may be equally responsible for abuse of a person and a funder of last resort in relation to that abuse and that, in this case, each government institution (defined as the “funding institutions”) is proportionately liable for the amount the relevant defunct institution would have been liable to pay in providing redress to a person.

 

This amendment clarifies that in the event there is more than one funder of last resort, as may currently be determined, each government institution pays only a portion of the amount for which the relevant defunct institution would have been liable, had it been a participating institution. This ensures the payments by funders of last resort (by way of funding contributions under Part 6-1 of Chapter 6 of the Redress Act) do not exceed the amount of the defunct institution’s liability.

 

Items 28 to 33 make amendments to subsections 165(2), 165(3) and 165(4) that follow from item 27 in respect of working out a funding institution’s share of the redress payment, the amount of the counselling and psychological component and the Scheme administration costs respectively, for a relevant defunct institution. Consistent with new subsection 165(1), the amendments refer to government institutions that are funders of last resort as “funding institutions” and provide for a proportional payment amount to be worked out by dividing the amount the defunct institution would have been liable to pay by the number of funding institutions.

 

 

Part 3 - Engaging independent decision-makers

 

Item 34 omits section 185 (engaging persons to be independent decision-makers) from the specified powers and functions the Minister is not permitted to delegate under subsection 183(1). This is because items 37 and 38 repeal the requirement for approval of the Minister and Ministerial consultation with participating States and Territories, before the Operator may engage a person as an independent decision-maker, meaning section 185 will no longer contain a power or function of the Minister.

 

Item 35 adds section 185 to the provisions identified in subsection 184(1) that cannot be delegated by the Operator to an officer of the Scheme. This amendment is made as a consequence of item 36, which adds a new, limited, delegation power that applies to section 185.

 

Item 36 adds new subsections 184(5) and (6) relating to delegation of the Operator’s powers or functions under section 185. Subsection 184(5) permits the power to engage an independent decision-maker and the function of consultation with participating States and Territories to be delegated by the Operator only to Senior Executive Service employees, in view of the importance of these decisions. Subsection 184(6) provides that in exercising a power or performing a function so delegated, a delegate must comply with any directions given by the Operator.

 

Item 37 removes from subsection 185(1) the requirement for the Minister to approve the engagement of a person, by the Operator, as an independent decision-maker. This change is proposed so that independent decision-makers can be engaged more expediently where needed in order to respond to peaks in the number and/or complexity of applications for redress under the Scheme.

 

The qualification, skills and experience of a person to perform the role of independent decision-maker can continue to be appropriately assessed at a departmental level, in consultation with participating States and participating Territories and, as such, this change will not impact the suitability of persons to be engaged as independent decision-makers.

 

Item 38 is also proposed to achieve greater administrative efficiency in the process for engaging independent decision-makers. This item amends subsection 185(2) so that consultation with participating States and participating Territories continues but is not required to be at Ministerial level.

 

Part 4 - Protected names and symbols

 

Part 4 adds new provisions to protect of the names and symbols used in connection with the Scheme against unauthorised use.

 

Item 39 amends the simplified outline to Part 7-3 (other matters) to reflect the protection of names and symbols added by item 40. This is inserted to assist readers understand the provisions, but is not intended to be relied upon as comprehensive.

 

 

Item 40 adds new Division 4A (protected names and symbols), containing new section 185A (use of protected names and symbols). Section 185A protects the use of the names “National Redress Scheme”, “National Redress Scheme for Institutional Child Sexual Abuse” and “National Redress Scheme for people who have experienced institutional child sexual abuse”, in addition to any name prescribed by the rules (each defined by subsection 185A(6) as a “protected name”). Similarly, any symbol used, or for use, in connection with the Scheme and set out in the rules is a protected symbol (also defined as such by subsection 185A(6)).

 

Certain uses (prescribed by subsection 185A(1)) without the Operator’s consent constitute an offence of strict liability. These include use in relation to a business or trade, profession or occupation, or application as a trade mark to goods. The application of strict liability to the offence is to ensure there is a sufficient deterrent effect to achieve protection of the names and symbols, balanced by defensibility on the basis of honest and reasonable mistake of fact. Additionally, having regard to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers , published by the Attorney-General’s Department, the penalty is limited to 30 penalty units.

 

There is a strong policy basis for regulating the use of those names and symbols used in relation to the Scheme given the potential for harm to survivors should, for example, services unrelated to the Scheme be mistaken as being provided under, or in connection with, the Scheme. However, new subsections 185A(4) and (5) provide (by reference to the “protection time” as defined in subsection 185A(6)) that the protections under section 185A will not prevent a person who is using a protected name or symbol according to rights conferred by law or in good faith immediately before commencement of the provision (or any rules made for the purposes of the provision) from continuing to do so. This position is adopted to ensure no penalty applies in relation to existing use, provided such use is based on registered legal rights and/or good faith use.

 

New subsection 185A(3) provides that the offence under subsection 185A(1) does not affect use of a name or symbol by a State or Territory. Given the national operation of the Scheme, it is not intended that States and Territories be required to seek consent from the Operator in order to make use of names and symbols used in connection with the Scheme.

 

Part 5 - Payment of redress payments etc.

 

Item 41 adds a definition of “administrator” to section 6 (the dictionary) for the purposes of the amendments to subsections 48(1) and section 51, made by items 43 and 45 respectively, which will permit payment of a redress payment and payment of the counselling and psychological component of redress to be made to an administrator of a person entitled to redress.

 

Currently, the Redress Act limits the Operator to making a redress payment to the person who is entitled to redress under the Scheme. While in most cases this is appropriate, this outcome is not always suitable for individuals whose finances are administered by a third party appointed by a court, tribunal or board under a Commonwealth, State or Territory law (for example, a public trustee or guardian). Such appointments may be made because an individual has impaired capacity or there is risk to the individual’s property or other interests. As such, it is beneficial that redress payments can be made in a way that is consistent with these arrangements where the Operator considers this is appropriate.

 

An administrator for the purposes of the Redress Act will be limited to a person who has been appointed by a court, tribunal, board or other entity prescribed by rules, under a law of the Commonwealth, a State or a Territory, to make decisions on behalf of another person in relation to all or part of that person’s property or financial affairs or matters.

 

The notes to new subsections 48(1) and 51(3) clarify that these provisions do not authorise payment other than to a person appointed by a court, tribunal or board. For example, a payment cannot be made to a person who has been appointed power of attorney by a person who is entitled to redress.

 

Item 42 amends the simplified outline for Part 2-5 of the Redress Act, at section 47, to reflect the amendments made by Part 5 of the Bill. This is to assist readers to understand the substantive provisions, but should not be relied upon as comprehensive.

 

Items 44 and 46 amend sections 49 and 52 by adding new subsections 49(2A) and 52(2A), to provide that the protections under these sections in relation to the redress payment and the counselling and psychological services payment respectively are subject to the ability to make payment to a person who is an administrator.

 

Part 6 - Due date for funding contributions

 

Item 47 adds subsection numbering to the existing provision in section 153, as a consequence of the new provision added by item 48 .  

 

Item 48 adds new subsection 153(2), to permit the Operator to specify a later day for payment of a funding contribution by a responsible institution than the day previously specified under subsection 153(1). As for a notice under subsection 153(1), a notice under subsection 153(2) to, in effect, extend the timeframe for payment of a funding contribution, must be given to an institution in writing.

 

New subsection 153(2) gives the Operator discretion in relation to the due date for payment of a funding contribution in the same way as already provided for in relation to late payment penalties by section 154. Extension of this discretion to funding contribution payments provides a mechanism for responding to circumstances that have placed financial or other pressure on an institution and warrant allowing a longer timeframe for payment. A recent example of this is the financial and operational pressure experienced by some institutions as a result of the impact of COVID-19. The amendment will not affect an institution’s liability or the timing of redress payments to applicants.

 

 

 

A notice specifying a later date may be given by the Operator, or a delegate, under subsection 153(2) before, on or after the day a funding contribution is otherwise payable and has, and is taken always to have had, effect according to its terms. This means a notice given after the due date for payment under a prior notice will have retrospective effect and in such cases no late payment penalty arises under section 154.

 

Part 7 - Disclosure to encourage institutions to participate in the scheme

 

Item 49 adds a new authorisation for disclosure of protected information to section 95. New subsection 95(1A) permits information about a non-participating institution that is provided to, or obtained by, an officer of the Scheme for the purposes of the Scheme to be disclosed to a third party for the purpose of encouraging the institution to participate in the Scheme.

 

This new provision will facilitate engagement with and between States, Territories and non-government institutions such as peak bodies, and support proactive engagement to encourage institutions to participate in the Scheme. This will be of particular benefit in the lead up to the 31 December 2020 deadline for institutions to be declared participating institutions and in the event the Minister extends this timeframe by prescribing a later date. Having more institutions participate in the Scheme will maximise the number of survivors who have access to redress through the Scheme. 

 

The amendment will not affect the application of the protected information provisions to information about individuals who apply for redress or permit any additional use or disclosure of protected information that relates to an individual (including information that is personal information for the purposes of the Privacy Act 1988 ).   

 

Item 50 amends subsection 95(2) so that it applies to a person to whom information is disclosed under new subsection 95(1A). This means that information about a non-participating institution that is disclosed for the purpose of encouraging that institution to participate in the Scheme can only be dealt with (that is, obtained, recorded, disclosed or used) by a recipient for that same purpose. This limitation is a key mechanism for ensuring protected information is not used or disclosed more broadly than necessary to assist in achieving the objects of the Redress Act and that is reasonable and proportionate to achieving this policy objective. The existing protected information provisions and penalties for unauthorised use and disclosure of protected information remain unchanged.

 

Part 8 - Application and transitional provisions

 

Item 51 adds new Chapter 8 at the end of the Redress Act, setting out application and transitional provisions for several of the amendments made by the Bill. Section 194 provides a simplified outline of the provisions. The outline is to assist readers to understand the substantive provisions but is not intended to be comprehensive; readers should rely on the substantive provisions.

 

 

 

New section 195 provides for the amendments made by Part 2 of Schedule 1 to the Bill, in relation to funders of last resort, to apply to determinations on applications for redress under section 29 made on or after the date Part 2 commences, being the day after the Act receives the Royal Assent.

 

New section 196 provides for the amendments made by Part 3 of Schedule 1 to the Bill, in relation to the engagement of independent decision-makers, to apply to persons who are engaged after Part 3 commences, being the day after the Act receives the Royal Assent.

 

New section 197 provides for the amendments made by Part 5 of Schedule 1 to the Bill, in relation to payment of redress payments, to apply to redress payments and counselling and psychological payments that are made after the commencement of Part 5, being the day after the Act receives the Royal Assent.

 

New section 198 provides for the amendments to section 153, made by Part 6 of Schedule 1 to the Bill in relation to when a funding contribution is due for payment, to apply to funding contributions payable before, on or after commencement of Part 6, being the day after the Act receives the Royal Assent. 

 

New section 199 provides for the amendments to section 95, made by Part 7 of the Bill in relation to disclosure of protected information about institutions, to apply after commencement of Part 7, being the day after the Act receives the Royal Assent, in relation to protected information that is provided or obtained before, on or after commencement.

 

Part 9 - Minor technical amendments

 

Items 52 and 53 correct typographical errors in the definition of “associates” at section 6 of the Redress Act and in paragraph 35(2)(b) respectively. Item 52 corrects the incorrect reference to “subsection” rather than “subsections” and item 53 adds the word “the” missing from reference to the Operator.



STATEMENT  OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE AMENDMENT (TECHNICAL AMENDMENTS) BILL 2020

 

This Bill is 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

The Bill makes several minor and technical amendments to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act) that will improve the operation of the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme).

 

The Bill proactively addresses issues identified in the administration of the legislation from the Scheme’s inception or provides additional clarity on existing policy intent of the Scheme. This is to ensure Scheme integrity is maintained and to enable administrative efficiencies, where needed, to be made as early as possible, and ultimately to support the management of applications for redress from survivors of institutional child sexual abuse. Importantly, the amendments will support the operation of the remaining eight years of the Scheme.

 

The amendments made by the Bill will:

·          clarify how participating institutions that are associates of a responsible institution are to be determined and specified;

·          clarify the proportional amount for which a funder of last resort is liable in relation to a responsible defunct institution;

·          provide for greater efficiency in engaging independent decision-makers;

·          introduce protections for the names and symbols used in connection with the Scheme;

·          permit a redress payment to be made to a person who has been appointed by a court, tribunal or board to manage the financial affairs of a person entitled to redress;

·          permit the National Redress Scheme Operator to extend the timeframe for payment of a funding contribution by an institution; and

·          authorise disclosure of protected information about a non-participating institution for the purpose of encouraging the institution to become a participating institution; and

·          correct minor typographical errors. 

 

 

 

 

While the issues being addressed have not caused significant problems with the operation of the Scheme to date, and in some cases have not yet eventuated, taking action on known issues will strengthen Scheme operations and clarify the law ahead of any unintended consequences arising into the future. The minor amendments are focused on the day to day management of Scheme operations and do not change how survivors interact with the Scheme.

Human rights implications

The Bill does not introduce any limitations on human rights. The Bill positively engages several human rights conventions.

The Bill does not affect a person’s potential eligibility under the Scheme, the assessment of applications for redress, or an institution’s liability or obligations under the Scheme. Rather, the minor amendments are focused on proactively supporting the day to day management of Scheme operations and do not impact or change any fundamental Scheme design matters.

The Bill engages the following rights:

·          Convention on the Rights of the Child (CRC)

o    article 39 - state supported recovery for child victims of neglect, exploitation and abuse

·          International Covenant on Civil and Political Rights (ICCPR)

o    article 3 - right to effective remedy

o    article 17 - right to protection against arbitrary or unlawful interferences with privacy

 

The Bill promotes Article 39 of the CRC, which guarantees the right to state-supported recovery for child victims of neglect, exploitation and abuse. The Scheme supports the recovery of people who have experienced institutional child sexual abuse by enabling recognition of past abuse and providing access to redress, including a redress payment, a personal response from the responsible institution and access to counselling and psychological care services. The Bill further promotes article 39 by allowing for more efficient administrative operations, which will support the finalisation of applications to the Scheme and access to redress.  

 

The Bill supports Article 3 of the ICCPR, which guarantees the right to effective remedy for those whose rights outlined in the ICCPR are violated. The Bill enables the Scheme to pay a person’s redress payment to a Public Trustee, or someone with financial management powers. The Redress Act currently limits the Operator to making a redress payment to a person who is entitled to redress. While in most cases this is appropriate, this outcome is not always suitable for individuals whose finances are administered by a third party appointed by a court, tribunal or board under a Commonwealth, State or Territory law, such as a public trustee or guardian.  These appointments may occur where an individual has impaired capacity to manage their finances or there is risk to the individual’s property or other interests.

 

 

 

 

The Bill provides a beneficial mechanism to enable the Scheme to make a redress payment for an applicant, while ensuring their interests remain protected in a way that is consistent with the legal arrangements in place. The amendment is tightly restricted, meaning a payment can only be made other than to the person entitled to redress in very limited, legitimate circumstances, and the provision cannot be utilised for unintended purposes.

 

Article 3 is also promoted by the Bill streamlining the process for sharing information for the purpose of encouraging non-participating institutions named in applications to participate in the Scheme. The Scheme offers people who have experienced institutional child sexual abuse an alternative to civil litigation, where the responsible institution has joined the Scheme. However, the Scheme requires voluntary participation by institutions. The amendment is aimed at supporting efficient processes to target engagement with non-participating institutions, aimed at increasing the number of institutions that join the Scheme and thereby increasing access to redress. The provisions in the Bill are proportionate to the intended outcome and are appropriately limited to ensure it applies only for the intended purpose.

 

A person who does not, or cannot, access redress under the Scheme is still able to seek a remedy through the civil justice system. This right is not impacted by the Bill.

 

Article 17 of the ICCPR guarantees the right of everyone to protection from arbitrary or unlawful interference with privacy. The amendments do not affect the protected information provisions that apply to information about individual applicants. The existing provisions and penalties concerning unauthorised access, use and disclosure of protected information also remain unchanged.

 

Conclusion

The Bill is compatible with human rights because it promotes the protection of human rights and does not introduce any new limitation on human rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)