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National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 [and] National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018



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ISSN 1328-8091

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BILLS DIGEST NO. 120, 2017-18 18 JUNE 2018

National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 [and] National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018 Owen Griffiths Law and Bills Digest Section

Contents

The Bills Digest at a glance .............................................. 5

Purpose of the Bills ......................................................... 6

Structure of the Bills........................................................ 6

Background ..................................................................... 6

Committee consideration .............................................. 11

Senate Community Affairs Legislation Committee ... 11 Inquiry into the Commonwealth Redress Scheme Bills ............................................................. 11

Government response ........................................... 13

Inquiry into the Bill and Amendments Bill .............. 14 Senate Standing Committee for the Scrutiny of Bills ............................................................................ 15

Joint Select Committee on the Royal Commission into Institutional Responses to Child Sexual Abuse - oversight of redress related recommendations ..................................................... 15

Policy position of non-government parties/independents.................................................... 15

Australian Labor Party ............................................... 15

Australian Greens ...................................................... 16

Centre Alliance .......................................................... 16

Pauline Hanson's One Nation (PHON) Party ............. 17 Derryn Hinch Justice Party ........................................ 17

Date introduced: 10 May 2018

House: House of Representatives

Portfolio: Social Services

Commencement: If Royal Assent is before 1 July 2018, the Acts will commence on 1 July 2018. If Royal Assent is on or after 1 July 2018, the Acts will commence on the earlier of a day fixed by Proclamation or six months after Royal Assent. Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the Bills’ home pages for the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at June 2018.

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National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 [and] National Redress Scheme for Institutional Child Sexual b ( l d ) ll

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Liberal Democratic Party ........................................... 17

Position of major interest groups................................... 17

State and territory governments .............................. 17

New South Wales and Victoria ................................ 17

Queensland, Tasmania and South Australia ........... 18 Western Australia (WA) .......................................... 18

Responsible institutions ............................................ 18

Survivor organisations ............................................... 19

Legal organisations .................................................... 20

Australian Human Rights Commission ...................... 20 Financial implications .................................................... 21

Statement of Compatibility with Human Rights.............. 22

Parliamentary Joint Committee on Human Rights ... 22 Key issues and provisions .............................................. 22

Chapter 1—Introduction ........................................... 22

Commencement ...................................................... 22

Objects ..................................................................... 22

Definitions ............................................................... 23

Chapter 2—The National Redress Scheme for Institutional Child Sexual Abuse ................................ 23

Establishment of the scheme .................................. 23

Entitlement to redress under the scheme .............. 24 Non-sexual abuse .................................................. 25

Citizenship and residency ...................................... 25

Redress payment ................................................... 27

Counselling and psychological services ................. 28 How to obtain redress under the scheme .............. 28 One application ..................................................... 29

Children ................................................................. 29

In gaol .................................................................... 30

Obtaining information for the purposes of determining the application .................................... 30

The Operator must determine whether to approve the application .......................................... 31

Working out the amount of redress and sharing of costs .................................................................... 32

Relevant prior payments ....................................... 32

Indexation of relevant prior payments ................. 33 Working out the amount of the counselling and psychological component and sharing of costs ...... 34 The assessment framework and policy guidelines ................................................................ 34

Transparency of assessment process .................... 35 Notice of determination .......................................... 35

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Effect of determination and admissibility of evidence in civil proceedings .................................. 35

Offers and acceptance of redress ........................... 35

Accepting and declining offers of redress ............... 36 Statutory release ................................................... 37

Counselling and psychological component of redress ..................................................................... 37

Direct personal responses ....................................... 38

Chapter 3—Special rules to deal with exceptional cases .......................................................................... 38

Death of person before acceptance of redress ...... 38 Abuse occurring inside a non-participating State ... 39 Special assessment of applicants with serious criminal convictions................................................. 39

Persons with serious criminal convictions ............ 39 Security notices ....................................................... 41

Chapter 4—Administrative matters .......................... 42

Review of determinations ....................................... 42

Lack of external review ......................................... 43

Nominees ................................................................ 43

Protecting information under the scheme ............. 45 Use and disclosure of the assessment framework policy guidelines ................................... 48

Other matters .......................................................... 48

Chapter 5—Participating institutions, participating groups and participating jurisdictions ............................................................... 48

Participating institutions ......................................... 48

Ministerial declarations about participating institutions............................................................... 49

Participating defunct institutions ............................ 49

Participating lone institutions ................................. 49

Participating groups ................................................ 50

Participating jurisdictions ........................................ 50

Implications for amendment of the Bill ................ 51 Participating jurisdictions providing counselling and psychological services under the scheme ........ 52 Chapter 6—Financial matters ................................... 53

Liability for funding ................................................. 53

Liability of the Commonwealth for counselling and psychological services contribution ................. 54 Appropriation .......................................................... 55

Funders of last resort .............................................. 55

Scope of funder of last resort ................................ 56

Debt recovery .......................................................... 57

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Chapter 7—Other matters ........................................ 58

Application of this Act ............................................. 58

The National Redress Scheme Rules ....................... 58

National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 ....................................... 59

Concerns regarding the breadth of matters in the rules ................................................................. 60

Giving notices for the purposes of the scheme ...... 60 Delegation ............................................................... 60

Independent decision-makers................................. 61

Miscellaneous .......................................................... 61

Annual report ........................................................ 61

Civil penalty provisions .......................................... 62

Review of the scheme ........................................... 62

Sunset of the scheme ............................................ 62

Amendments Bill........................................................... 62

Schedule 1—National redress scheme payments exempt from income tests ........................................ 62

Schedule 2—National redress scheme payments non-divisible property in bankruptcy ........................ 63

Schedule 3—National redress scheme decisions exempt from judicial review ..................................... 63

Schedule 4—Disclosure and protection of information under the national redress scheme ...... 64 Schedule 5—Only adults can apply under the national redress scheme ........................................... 65

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The Bills Digest at a glance

What the Bills do

The National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 will establish a National Redress Scheme for Survivors of Institutional Child Sexual Abuse (the scheme). The scheme responds to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. The Bill builds on earlier proposed legislation for a Commonwealth Redress Scheme and reflects that most state governments have now agreed to participate in the scheme and pass referral legislation.

The related National Redress Scheme for Child Sexual Abuse (Consequential Amendments) Bill 2018 includes changes to make redress payments exempt from certain income tests and bankruptcy recovery and exempts decisions under the scheme from review under the Administrative Decisions (Judicial Review) Act 1977. Amendments will also be made to allow the scheme to access social security information and protect the privacy of applicants and institutions. The scheme will also be exempt from age discrimination law to allow the scheme to prevent children from applying.

Key features of the scheme

The scheme is intended to operate for ten years and will provide redress to eligible survivors of institutional child sexual abuse, comprising three components:

• a monetary payment of up to $150,000

• access to counselling and psychological services under the scheme or a payment to access counselling and psychological services of up to $5,000 (depending on location) and

• a direct personal response from the responsible institution(s) (if requested by the survivor).

To be eligible for redress, applicants will need to meet a number of criteria. The Operator of the scheme (the Secretary of the Department of Social Services) must determine there was a reasonable likelihood the applicant was the victim of sexual abuse and one or more participating institutions are responsible for the abuse. The applicant must have been a child at the time of the sexual abuse, an Australian citizen or resident, and the abuse must have occurred prior to the scheme start date (expected to be 1 July 2018). Applicants can only make one application and must waive their rights to take civil action against responsible institutions and officials (but not the abuser) in order to receive redress.

The scheme is intended to operate on the principle that responsible entities will pay for redress payments. However, in some circumstances where a government institution is determined to be equally responsible for abuse with a defunct institution, it may be a funder of last resort.

Key issues

A number of issues have been raised by stakeholders in relation to the scheme, particularly where the scheme differs from the recommendations made by the Royal Commission. These include:

• the amount of redress (the Royal Commission recommended payments up to $200,000)

• access to counselling and psychological support and other assistance services

• restrictions on eligibility (including restrictions relating to citizenship, serious criminal convictions, non-sexual abuse and children)

• ambiguity regarding the operation of the scheme and a reliance on the rules and

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• the procedures for survivors to claim redress (such as a single application restriction).

Purpose of the Bills The National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 (the Bill) implements the Commonwealth’s response to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. This will be achieved by establishing a National Redress Scheme for Institutional Child Sexual Abuse.

The main objects of the Bill, listed in subclause 3(1), are to:

• recognise and alleviate the impact of past institutional child sexual abuse and related abuse and

• provide justice for the survivors of that abuse.

The related National Redress Scheme for Child Sexual Abuse (Consequential Amendments) Bill 2018 (Amendments Bill) will amend a number of pieces of legislation to facilitate aspects of the scheme.

Structure of the Bills The Bill consists of seven chapters which set out the scheme:

• Chapter 1—Introduction

• Chapter 2—The National Redress Scheme for Institutional Child Sexual Abuse

• Chapter 3—Special rules to deal with exceptional cases

• Chapter 4—Administrative matters

• Chapter 5—Participating institutions, participating groups and participating jurisdictions

• Chapter 6—Financial matters and

• Chapter 7—Other matters.

The Amendments Bill consists of five schedules which contain consequential amendments in relation to the establishment of the scheme:

• Schedule 1—National redress scheme payments exempt from income tests

• Schedule 2—National redress scheme payments non-divisible property in bankruptcy

• Schedule 3—National redress scheme decisions exempt from judicial review

• Schedule 4—Disclosure and protection of information under the national redress scheme and

• Schedule 5—Only adults can apply under the national redress scheme

Background On 11 January 2013, the then Prime Minister, Julia Gillard, announced the appointment of a Royal Commission into institutional responses to allegations and incidents of child sexual abuse and related matters (Royal Commission). 1 The terms of reference of the Royal Commission included inquiring into:

… what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring

1. J Gillard (Prime Minister) et al, Government formally establishes Royal Commission, media release, 11 January 2013, p. 1.

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justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services. 2

In September 2015, the Royal Commission released its Redress and civil litigation report, which responded to this term of reference. A key recommendation of the Royal Commission was that ‘[i]n order to provide redress under the most effective structure for ensuring justice for survivors, the Australian Government should establish a single national redress scheme’.3 However, the Commissioners also recognised that a ‘single national redress scheme is likely to require significant national negotiations and that these negotiations are likely to take some time’.4

The Royal Commission considered the appropriate level of monetary payments for redress should be:

• a minimum payment of $10,000

• a maximum payment of $200,000 for the most severe cases and

• an average payment of $65,000.5

On 4 November 2016, the then Attorney-General, George Brandis, and the then Minister for Social Services, Christian Porter, announced a Commonwealth Redress Scheme for survivors of institutional child sexual abuse. The joint media release noted:

The Government will establish a best practice Commonwealth Redress Scheme and invite other governments and institutions to ‘opt-in’ to the Commonwealth scheme on the ‘responsible entity pays’ basis recommended by the Royal Commission. The Government acknowledges that survivors across the country need and deserve equal access and treatment. That is why the Government is taking the lead and setting up a Commonwealth scheme to provide redress for survivors of child sexual abuse in Commonwealth institutions, and inviting states, territories and other non-government institutions to join.

While the Commonwealth is unable to force participation in a national scheme, the Government will be working closely with states, territories and other non-government institutions to work towards maximising national consistency. A truly national scheme requires the support of the states and territories.

6

The Ministers also announced the establishment of an Independent Advisory Council ‘bringing together a broad group of specialists, including survivor groups, legal and psychological experts, to provide advice on the implementation of the scheme’.7

The Budget 2017-18 included $33.4 million to establish the scheme. The Budget papers noted:

The Scheme has been designed in close consultation with the Independent Advisory Council on Redress appointed by the Prime Minister in December 2016. The Scheme will commence in March 2018 and start receiving applications from 1 July 2018 from people who were sexually abused as children in Commonwealth institutions. The Commonwealth will continue to engage with States, Territories and

2. Ibid., p. 8.

3. Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and civil litigation report, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney, 2015, p. 26. 4. Ibid.

5. Ibid., p. 24.

6. G Brandis (Attorney-General) and C Porter (Minister for Social Services), Commonwealth Redress Scheme for survivors of institutional child sexual abuse, joint media release, 4 November 2016, pp. 1-2. 7. Ibid., p. 2.

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non-government institutions to encourage them to join the Scheme to promote a nationally consistent approach to redress. Redress payments will be exempt from income tax. 8

On 9 May 2017, Attorney-General Brandis and Minister Porter announced that from March 2018, ‘a dedicated telephone helpline and website will be available to provide information to survivors and their families about the Scheme’ and that from July 2018 ‘applications for redress will be open to survivors of abuse in Commonwealth institutions’.9 The Department of Social Services (DSS) National Redress Scheme webpage is available here.10 The National Redress Information Line is 1800 146 713.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 was introduced into the House of Representatives on 26 October 2017 together with a related Amendments Bill (the Commonwealth Redress Scheme Bills).11 These Bills would have established a Commonwealth Redress Scheme which covered Commonwealth institutions, participating territory institutions and participating non-government institutions of a territory. The Commonwealth Redress Scheme Bills were referred to the Senate Community Affairs Legislation Committee for inquiry and report (discussed below).

On 15 December 2017, the Royal Commission delivered its final report. The final report consisted of 17 volumes which contained a broad range of recommendations concerning:

• nature and cause

• making institutions safe for children

• improving institutional responding and reporting

• recordkeeping and information sharing

• advocacy, support and therapeutic treatment services

• children with harmful sexual behaviours

• contemporary out-of-home care

• schools

• sport, recreation, arts, culture, community and hobby groups

• contemporary detention environments

• religious institutions and

• beyond the Royal Commission.12

On 8 February 2018, the Prime Minister, Malcolm Turnbull, announced that he would deliver a national apology to survivors of institutional child sexual abuse ‘before the end of the year’. In relation to the proposed scheme, he stated:

Firstly, it is about unequivocally accepting that the events occurred. The significance of those three words—'I believe you'—cannot be overstated. Secondly, the scheme recognises the suffering that survivors have endured as a result. Thirdly, the scheme is designed to ensure that institutions take

8. Australian Government, Budget measures: budget paper no. 2: 2017-18, p. 146. 9. G Brandis (Attorney-General) and C Porter (Minister for Social Services), Commonwealth Redress Scheme for Survivors of Institutional Child Sexual Abuse, joint media release, 9 May 2017, p. 1. 10. Department of Social Services (DSS), ‘National Redress Scheme’, DSS website, last updated 5 June 2018. 11. Parliament of Australia, ‘Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 homepage’, Australian

Parliament website; Parliament of Australia, ‘Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 homepage’, Australian Parliament website. 12. Royal Commission into Institutional Responses to Child Sexual Abuse, Preface and executive summary—final report, Royal Commission into Institutional Responses to Child Sexual Abuse, Canberra, December 2017.

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responsibility for the abuse that occurred on their watch, perpetrated by their people, people entrusted with caring for our children, and some of the most vulnerable children.

But the scheme will fulfil its promise of justice only if we have maximum participation across all jurisdictions. For this to occur, the states must take urgent action and refer the appropriate power to the Commonwealth in order for them to participate from 1 July. We have been working closely with each jurisdiction to encourage their participation in the scheme. Unless the states agree to participate, institutions within their jurisdictions will not be able to join. Survivors deserve much better and I urge the premiers in all the jurisdictions to prioritise this work and join the redress scheme without further delay. I also urge the non-government institutions to commit now to joining the scheme.

13

On the same day, Attorney-General Christian Porter stated:

Excuses for failing to join the scheme must end. Lingering reasons for delay are now starting to look to any independent observer as if minor details are being manifestly and deliberately used as excuses for needless delay. Excuses are what created this problem, and they should not prevent the churches, the charities, the states and the territories from joining the redress scheme.

14

At the Council of Australian Governments (COAG) meeting on 9 February 2018, ‘First Ministers committed to responding to the recommendations of the Royal Commission’s final report in June 2018’.15

On 9 March 2018, Prime Minister Turnbull announced that the first states, New South Wales (NSW) and Victoria, had opted in to the scheme. He urged the ‘other state and territory governments to follow the lead of New South Wales and Victoria’. The joint media release noted:

About 9,000 people who were abused in New South Wales Government institutions, 5,000 people who were abused in Victorian Government institutions and 1,000 people abused in institutions under the Commonwealth’s responsibility will now be covered as a result of today’s announcement.

Today’s announcement also makes it possible for churches, charities and other non-government institutions in NSW and Victoria to join the scheme. If those non-government institutions opt-in, an estimated 11,000 people in NSW and 10,000 in Victoria will be able to access redress. 16

In relation to the announcement, it was reported that the legislative design of the National Redress Scheme would be restructured:

The legislation for the national scheme is to be drafted in NSW and Victoria and presented to their state parliaments, with “mirror” legislation being passed in Canberra and other jurisdictions that sign up. This is likely to supersede the bill currently before the Federal Parliament. While states such as NSW and Victoria will refer some powers to Canberra to ensure the scheme is set up, this will not go so far as allowing the Senate to amend the scheme and impose the changes on the states.

17

On 4 May 2018, COAG published the Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse (Agreement). The Agreement ‘provides the foundation for Commonwealth, State and Territory governments to work together to implement the National

13. M Turnbull (Prime Minister), ‘Statements on Indulgence: Royal Commission into Institutional Responses to Child Sexual Abuse’, House of Representatives, Debates, 8 February 2018, p. 703. 14. C Porter (Attorney-General), ‘Questions with Notice: Royal Commission into Institutional Responses to Child Sexual Abuse’, House of Representatives, Debates, 8 February 2018, p. 788. 15. Council of Australian Governments (COAG), Communique, COAG Meeting, Canberra, 9 February 2018. 16. M Turnbull (Prime Minister), G Berejiklian (Premier of NSW) and D Andrews (Premier of Victoria), First states commit to

Redress Scheme, joint media release, 9 March 2017. 17. D Crowe, ‘Row over redress scheme for child sexual abuse’, The Age, 13 March 2018, p. 4.

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Redress Scheme’. The published document now contains the signatures of ministers representing the Commonwealth, NSW, Victoria, Tasmania and the ACT.18

The NSW Government introduced legislation to refer matters relating to the Scheme to the Commonwealth Parliament for the purposes of section 51(xxxvii) of the Commonwealth Constitution.19 This legislation was passed 16 May 2018 and received Royal Assent on 23 May 2018.20 The Victorian Government introduced similar referral legislation on 8 May 2018 and passed this legislation on 7 June 2018.21

The Budget 2018-19 included funding for a Royal Commission implementation taskforce and the national apology for institutional child sexual abuse.22 It also set out $8.8 million for legal support services for survivors engaging the scheme in 2018-19. This was expected to rise to $16.4 million in 2019-20 before falling to $12.7 million in 2020-21 and $9.7 million in 2021-22.23 This followed the announcement on 19 February 2018 that survivors of institutional child sexual abuse will have access to legal support services to help them access redress:

The funding will be provided to 'knowmore', the legal advice service that supported the Royal Commission into Institutional Responses to Child Sexual Abuse, to ensure survivors of abuse seeking to access redress are provided with quality, trauma informed advice on their legal options. Knowmore will help survivors by providing information and advice about the options available to them, including claims under the redress scheme, access to compensation through other schemes or common law rights and claims. Advice will also be provided on key steps in the redress process.

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On 10 May 2018, the Bill and the Amendments Bill were introduced into the House of Representatives. In his second reading speech, the Minister for Social Services, Dan Tehan, noted that the ‘aim of the redress scheme is to provide an avenue for survivors of child sexual abuse who have not been able to pursue, or have not been successful in pursuing, their common-law rights in order to obtain compensation for the damage and loss they have suffered’.25 In relation to the components of redress under the scheme, he stated:

The maximum amount of redress payment available under the scheme will be $150,000. The expected average payment will be around $76,000—$11,000 higher than that estimated by the royal commission. The payment will not reduce the income support payments of survivors, will not be divisible property for bankruptcy and will be exempt from Commonwealth debt recovery. A legislative instrument that details the different tiers of payments and how they work together will be publicly available and declared as an instrument to the legislation

Eligible survivors will be provided with access to counselling or psychological services in addition to the assistance already provided by the Commonwealth through Medicare.

18. COAG, Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse, COAG website, 4 May 2018, p. 15. 19. Section 51(xxxvii) of the Constitution allows the Federal Parliament to make laws with respect to matters referred to it by a state parliament. 20. National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (NSW). 21. National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (Vic). 22. Australian Government, Budget measures: budget paper no. 2: 2018-19, p. 77. 23. Australian Government, Portfolio budget statements 2018-19: budget related paper no. 1.2: Attorney-General’s Portfolio,

p. 18.

24. C Porter (Attorney-General) and D Tehan (Minister for Social Services), Legal support services to help survivors of institutional child sexual abuse access redress, media release, 19 February 2018. 25. D Tehan (Minister for Social Services), ‘Second reading speech: National Redress Scheme for Institutional Child Sexual Abuse Bill 2018’, House of Representatives, Debates, 10 May 2018, p. 3639.

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Depending on the residence of a survivor, they will receive either a lump sum payment to access counselling and psychological services privately, or will be given access to state or territory based services. States and territories will elect for survivors residing in their jurisdiction to either receive the lump sum payment or whether they will deliver counselling and psychological services to those survivors. Survivors residing outside Australia will receive the lump sum payment …

Survivors will also have the opportunity to receive a direct personal response from the participating institution or institutions responsible for the abuse. A direct personal response is a statement of acknowledgement, regret or apology and will be delivered to survivors by the relevant participating institution after the survivor has accepted the offer of redress.

26

A consolidated Commonwealth Government Department submission was made to the Senate inquiry into the Bills by the Department of Social Services (DSS submission). This indicated that, ‘[s]ubject to the passage of the legislation’, it was ‘confident that the implementation of service delivery elements are on track to implement the Scheme on 1 July 2018’.27

DSS noted that the scheme rules, which will govern a number of key aspects of the scheme, could not be tabled until the Bill received Royal Assent. However, it noted that it had developed ‘a fact sheet explaining how the rule making powers in the National Bill are intended to be exercised’ (discussed below).28 The scheme will also use an assessment framework to assess the monetary payment amounts that each survivor will receive. DSS noted that ‘the assessment framework will be publicly available as a legislative instrument, which will be tabled after the passage of the Bill’.29

On 13 June 2018, the Government released its response to the Royal Commission’s recommendations. Prime Minister Malcolm Turnbull’s media release noted:

The establishment of a National Redress Scheme for survivors of institutional child sexual abuse is scheduled to commence from 1 July 2018. We are on track to deliver this with all states and territories (except WA) having announced their intent to opt into the scheme and the Western Australian Premier having given a firm commitment to join the national scheme in the next few weeks. Key non-government institutions having also opted in—the Catholic Church, Anglican Church, Uniting Church, Salvation Army, YMCA and Scouts.

30

Committee consideration

Senate Community Affairs Legislation Committee

Inquiry into the Commonwealth Redress Scheme Bills Previously, the Committee considered the provisions of the earlier proposed legislation to establish a Commonwealth Redress Scheme and tabled its report on 28 March 2018.31 The Committee agreed with the ‘universal view’ put forward by participants in the inquiry that a redress scheme was ‘a vital step in addressing cases of historical child sexual abuse’.32 Accordingly,

26. Ibid., p. 3638. 27. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and a related Bill, 30 May 2018, p. 4. 28. Ibid.

29. Ibid., p. 12. 30. M Turnbull (Prime Minister) et al, Australian government response to the royal commission into child abuse, joint media release, 13 June 2018. 31. Senate Community Affairs Legislation Committee, Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions], The Senate, Canberra, March 2018. 32. Ibid., p. 91.

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its final recommendation was that the Commonwealth Redress Scheme Bills be passed.33 However, the Committee also made ten recommendations to improve the implementation of the proposed scheme. These recommendations were:

• reducing the two-year deadline for institutions to opt in to the scheme (to minimise uncertainty for survivors)

• the Department should ensure that planned consultations on the rules of the redress scheme include survivors' representative groups, and ensure information on rules is communicated as it becomes available

• in relation to the amount of redress payment, the Department should actively engage with survivors' representative groups to provide clear communications and where necessary ‘communication should reference the average payment amount rather than focussing on the maximum redress payment’

• in further developing the operational assessment elements of the redress scheme, the Department take into consideration the long-term impact of non-sexual abuse on survivors, including the needs of Aboriginal and Torres Strait Islander survivors

• the Government consider mechanisms to ensure ongoing counselling is available to survivors, should they need it

• the Redress Support Service incorporate referral of affected family members, in cases where it is necessary to meet the critical needs of the survivor, to existing counselling services

• in developing the minimum timeframes in the redress scheme, for the provision of documents or answers to an offer of redress, the Department should consider the special circumstances of survivors in remote communities, those with functional communication barriers and survivors experiencing trauma or mental health episodes linked to their abuse

• the Government consider changing the period of acceptance for redress from three months to six months, including provision for survivors to request an extension to this acceptance period where circumstances warrant

• in finalising the position on the exclusion of serious criminal offenders from the redress scheme, the Australian, state and territory governments should consider the value of the redress scheme as a tool for the rehabilitation of offenders, and that excluding criminal offenders can have the unintended consequence of institutions responsible for child sexual abuse not being held liable and

• the annual report to Parliament on the operation of the redress scheme should include detailed data to understand the experiences of people going through the redress scheme and to provide a basis of any necessary refinements to the scheme, including details of the number of applications received, average processing times and average payments offered.34

Additional comments were made by Labor Party senators on the Committee which included recommendations to maintain parts of the proposed scheme in accordance with the recommendation of the Royal Commission.35 Senator Rachel Siewert from the Australian Greens made a dissenting report which recommended the Bills not be passed in their current form.36

33. Ibid., p. 95. 34. Ibid., pp. 91-5. 35. Ibid., pp. 115-6. 36. Ibid., p. 141.

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Government response On 29 May 2018, the Government response to the report was released. The Government agreed or partially agreed to all of the recommendations in the majority report.37 It also agreed or partially agreed with most of the recommendations made in the additional comments of Labor senators. It did not agree in relation to three of these recommendations (outlined below).

The Labor senators recommended that the Commonwealth Redress Scheme Bill be amended to restore the maximum cap for monetary payment to $200,000 as recommended by the Royal Commission.38 The Government response stated:

A maximum redress payment of $150,000 will be available under the National Redress Scheme, a position which is supported by states and territories. This amount balances the need to provide a payment that provides a tangible means of recognising the wrongs suffered by survivors, while encouraging institutions to opt in to the Scheme. In addition, the average payment under the National Scheme is expected to be around $11,000 higher than under that proposed by the Royal Commission.

39

Labor Party senators also recommended the Commonwealth Redress Scheme Bill be amended to reflect the funder of last resort provisions that were recommended by the Royal Commission.40 The Government response stated:

The policy contained in the National Bill is that a government institution will be funder of last resort where they are:

- equally responsible with a defunct institution (meaning it no longer exists); and

- the government institution has agreed to pick up the other equal share of redress.

This is a necessary departure from the Royal Commission's recommendations, for if governments were to be funder in all circumstances, it would create a serious disincentive for financially viable institutions to opt in to the Scheme, or for those institutions taking responsibility for their historical institutions.

The Commonwealth, state and territory governments have agreed that the 'funder of last resort' arrangements should only apply where the respective government had some very real responsibility for the abuser having contact with the child. The Australian Government does not have power to act as 'funder of last resort' for non-government institutions where there is no level of responsibility or link to a constitutional limb.

41

Finally, Labor Party senators recommended the rule which restricts survivors to one application for redress be reconsidered.42 However, the Government response stated:

37. D Tehan (Minister for Social Services), National Redress Scheme moves a step closer, media release, 29 May 2018. 38. Senate Community Affairs Legislation Committee, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions], op. cit., p. 115.

39. Australian Government, Australian Government response to the Senate Community Affairs Legislation Committee report, Inquiry into the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions], May 2018, p. 8. 40. Senate Community Affairs Legislation Committee, Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions], op. cit., p. 116. 41. Australian Government, Australian Government response, op. cit., pp. 9-10. 42. Senate Community Affairs Legislation Committee, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions], op. cit., p. 116.

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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. This will ensure that survivors will only need to complete one form to cover all instances of child sexual abuse experienced in institutional contexts during their childhood.

As a survivor will only need to disclose their experiences of child abuse in one application, it will provide the opportunity for the survivor to receive closure after a potentially traumatic, but singular, application process … 43

Inquiry into the Bill and Amendments Bill The provisions of the Bills were referred to the Senate Community Affairs Legislation Committee (Committee) on 10 May 2018 for inquiry and report by 15 June 2018.44

On 15 June 2018, the Committee’s report recommended that both Bills be passed.45 The Committee indicated it was ‘strongly supportive of the objects of the National Redress Scheme to recognise and alleviate the impact of past institutional child sexual abuse’ and recognised ‘any changes made to the National Redress Bill would require renegotiation with each of the participating states, jeopardising the Scheme's start date of 1 July 2018’.46

Additional comments were made by Labor senators who were ‘disappointed’ that some of the recommendations made in relation to the Commonwealth Redress Scheme Bills ‘have not been addressed in the National Redress Scheme for Survivors of Institutional Child Sexual Abuse Bill 2018’. They held ‘a number of serious concerns regarding this legislation, including the arbitrary lowering of the maximum payment, the adequacy of counselling and the equality of all Survivors of child sexual abuse before the Scheme’.47

However, Labor senators also noted ‘the high likelihood that any attempt to amend the legislation in the Commonwealth Parliament would jeopardise the scheduled Scheme start date of 1 July 2018’. They indicated that ‘for this reason alone’ they would not recommend any amendments to the Bill.48 Instead, Labor senators recommended that ‘current and future Governments continue to negotiate with States and Territories in good faith to continue to strengthen the Redress Scheme’.49

Additional comments were also made by the Australian Greens. These additional comments stated that ‘[w]hile a small number of the issues canvassed during the previous inquiry have been addressed, many of those issues still remain’. Additionally, it noted that ‘other new issues have arisen in the National Bill and its related bill’.50 These included:

• counselling and psychological services

• when applications cannot be made

• criminal histories

• security notices

43. Australian Government, Australian Government response, op. cit., p. 10. 44. Australia, Senate, Journals, 97, 10 May 2018, pp. 3093-5. 45. Senate Community Affairs Legislation Committee, National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 [Provisions] and National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018

[Provisions], June 2018, p. 46. 46. Ibid. 47. Ibid., p. 47. 48. Ibid., p. 48. 49. Ibid., p. 57. 50. Ibid., pp. 59-60.

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• prior payments and indexation and

• the funder of last resort model.51

The Australian Greens additional comments concluded:

The Greens want to see the Scheme operating from the nominated date of 1 July 2018, at the same time we are very concerned that the Scheme will not be the best it can be given the issues that remain unresolved. Following commencement of the Scheme, we will continue to advocate and work for subsequent reforms to make the Scheme the best it can be.

52

Further details are available on the Committee’s inquiry webpage.53

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) has not yet published its report regarding the Bills, but raised a number of issues when it considered the earlier proposed legislation to establish a Commonwealth Redress Scheme.54

For some of these issues, the Scrutiny Committee decided to make no further comment following the receipt of further advice from the Minister. However, in its December 2017 report, it requested amendments to the proposed legislation and the Explanatory Memorandum as well as drawing scrutiny concerns to the attention of the Senate regarding several matters.55

Joint Select Committee on the Royal Commission into Institutional Responses to Child Sexual Abuse - oversight of redress related recommendations On 20 June 2017, the House of Representatives agreed to a Senate resolution that a joint select committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse be established following the tabling of the final report of the Royal Commission.56 The Joint Select Committee met for the first time in February 2018 and is not yet receiving submissions. Further information is available on the Joint Select Committee’s webpage.57

Policy position of non-government parties/independents

Australian Labor Party Before the last election, the Labor Party pledged to establish a national redress scheme for survivors of institutional child sexual abuse.58 Labor welcomed the initial budget allocation made for the proposed Scheme, but Shadow Minister for Families and Social Services, Jenny Macklin, had expressed concern at the lack of progress in securing an agreement on a national redress scheme with states, territories and institutions.59 On 8 February 2018, Opposition Leader Bill

51. Ibid., pp. 61-8. 52. p. 68. 53. Senate Community Affairs Legislation Committee, National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related bill, The Senate, Canberra, 2018.

54. Senate Scrutiny of Bills Committee, Scrutiny digest, 15, 2017, The Senate, 6 December 2017, pp. 8-36. 55. Ibid., p. 32. 56. Australia, House of Representatives, ‘Message from the Senate’, Votes and proceedings, HVP 62, 20 June 2017. 57. Joint Select Committee on the Royal Commission into Institutional Responses to Child Sexual Abuse—oversight of redress

related recommendations, ‘Committee homepage’, Australian Parliament website. 58. Australian Labor Party, National Redress Scheme for survivors of institutional child sexual abuse: under Labor it will happen, n.d., received by Parliamentary Library 13 May 2016. 59. J Macklin (Shadow Minister for Families and Social Services), National agreement on redress for survivors of child sexual abuse

must be delivered, media release, 19 May 2017. See also J Macklin (Shadow Minister for Families and Social Services) and M Dreyfus (Shadow Attorney-General), 10 weeks until redress deadline, media release, 23 April 2018.

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Shorten stated that the Opposition ‘will work with the government’ and agreed with the position that there should be ‘no more excuses, no more delays’ in relation to agreement on a national redress scheme.60

In her speech to the House of Representatives on the Bill on 24 May 2018, Ms Macklin indicated that as ‘a gesture of good faith in our ongoing discussions with the Government to resolve Labor’s concerns, Labor will support this Bill in the House today’.61 However, she highlighted a number of concerns with the Bill:

First, we do want to make sure that there are enough support services for all survivors of child sexual abuse and that they're accessible no matter where the survivor lives. Second, we want to make sure that survivors have sufficient time to decide whether or not to accept an offer of redress. The bill gives applicants at least six months to make this decision, while the royal commission recommended a year …

The next concern we have is the compensation amount. The bill places an upper limit of $150,000 on the amount of redress that would be payable to any one survivor. The royal commission recommended that the maximum payment be $200,000. Accepting an offer will also mean signing away any rights that any survivor may have to pursue their claim for compensation through litigation. That's why it's so important that the amount of redress available under the scheme is adequate.

62

Jenny Macklin indicated that other areas of concern in the Bill included:

• that the scheme may leave some persons without an avenue to seek redress

• the indexation of past payments

• the exclusion of former child migrants and immigration detainees

• access to counselling and psychological services and

• restrictions on survivors who have a serious criminal history accessing the scheme.63

Australian Greens Before the 2016 election, the Australian Greens also pledged to ‘establish a national redress scheme for survivors of child abuse in institutional settings’ as well as ‘a national redress advisory council to advise on the establishment and operation of the scheme’.64 Australian Greens Senator Rachel Siewert welcomed the earlier proposed legislation but highlighted the need for careful scrutiny.65 Senator Siewert made a dissenting report for the Australian Greens to the Senate Community Affairs Committee inquiry into the Commonwealth Redress Scheme Bills.66

Centre Alliance The Centre Alliance does not appear to have expressed a position on the Bills.

60. B Shorten (Opposition Leader), ‘Questions with notice: Royal Commission into Institutional Responses to Child Sexual Abuse’, House of Representatives, Debates, 8 February 2018, p. 788. 61. J Macklin, ‘Second reading: National Redress Scheme for Institutional Child Sexual Abuse Bill 2018, National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018’, House of Representatives, Debates, 24 May 2018,

p. 23.

62. Ibid., pp. 23-4. 63. Ibid., pp. 24-5. 64. Australian Greens, Caring for survivors of institutional child abuse: one national redress scheme, Parliamentary Library, n.d., received 9 May 2016, p. 1. 65. R Siewert, Greens welcome introduction of Redress Legislation, needs careful scrutiny, media release, 26 October 2017, p. 1. 66. Senate Community Affairs Legislation Committee, Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017 [Provisions] and Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions], op. cit., p. 141.

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On 15 September 2016, Labor moved a motion in the Senate which called on ‘the Federal Government to establish a national redress scheme for survivors of institutional sexual abuse’.67 Then sitting Nick Xenophon Team senators (Xenophon, Kakoschke-Moore and Griff) supported this motion.

Pauline Hanson's One Nation (PHON) Party The sitting PHON senators (Hanson, Burston and Roberts) voted with Government senators against the motion in 2016 to establish a national redress scheme.68 PHON senators have not indicated if they support the scheme proposed in the Bills.

Derryn Hinch Justice Party Senator Derryn Hinch supported the 15 September 2016 motion to create a national redress scheme. He is the Chair of the Joint Select Committee concerned with oversight of the redress related recommendations of the Royal Commission and also participated in the Senate Community Affairs Legislation Committee inquiry. During the earlier Senate Community Affairs Committee inquiry into the Commonwealth Redress Scheme Bills, Senator Hinch indicated he would advocate for the maximum redress payment under the scheme to be increased to the level recommended by the Royal Commission.69

Liberal Democratic Party Senator David Leyonhjelm does not appear to have expressed a position on the Bills. Senator Leyonhjelm voted with Government senators against the motion in 2016 to establish a national redress scheme.70

Position of major interest groups

State and territory governments The Commonwealth Government has placed pressure on state and territory governments to opt in to the national redress scheme and indicated it was willing to use its constitutional powers to compel the territories to join.71 Both the Australian Capital Territory and the Northern Territory have agreed to opt in to the scheme.72

New South Wales and Victoria As noted above, both NSW and Victoria have agreed to opt into the scheme and their respective parliaments have passed legislation referring matters (for purposes of section 51(xxxvii) of the Constitution) to the Commonwealth to facilitate the operation of the scheme.73

67. Australia, Senate, Journals, 7, Notice of Motion No. 57, ‘Law and Justice—National Redress Scheme for Survivors of Institutional Sexual Abuse’, 15 September 2016, pp. 221-2. 68. Ibid. 69. D Hinch, Senate Community Affairs Legislation Committee, Official committee Hansard, 6 March 2018, p. 26. 70. Australia, Senate, Journals, 7, op. cit., pp. 221-2. 71. C Porter (Minister for Social Services), Royal commission into institutional responses to child sexual abuse, transcript of press

conference, 15 December 2017, p. 4. 72. D Tehan (Minister for Social Services), ACT opts in to Redress Scheme, media release, 19 March 2018; D Tehan (Minister for Social Services), Queensland and Northern Territory join national redress scheme, media release, 30 April 2018. 73. National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (NSW) and National Redress

Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (Vic).

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Queensland, Tasmania and South Australia On 30 April 2018, the Queensland Government announced it would also opt in to the scheme and would set aside $500 million for payments. Around 10,000 Queenslanders were expected to be eligible: 5,000 abused in government institutions and another 5,000 in non-government institutions. Survivors who were compensated after the Forde Inquiry into the abuse of children in Queensland institutions could potentially be further compensated under the national redress scheme.74

On 22 May 2018, Tasmania also announced it would join the scheme.75 The Tasmanian Attorney-General, Elise Archer, was reported as stating:

Our decision to opt in to the National Redress Scheme builds on Tasmania’s proud record of supporting victims, including through our $54 million Abuse in State Care compensation scheme that operated between 2003 and 2013, that assisted more than 1800 survivors who were the subject of sexual, physical or emotional abuse while in state care as children. With an estimated cost of around $70 million over the life of the scheme, Tasmania’s participation will be provided for in the upcoming State Budget.

76

The position of South Australia was complicated by its earlier compensation payments to survivors of institutional abuse which followed the Mulligan inquiry. However, on 1 May 2018, the Attorney-General Vickie Chapman was reported as saying that South Australia ‘had given in-principle support to the scheme but was still working through the practicalities of joining’.77 On 28 May 2018, the South Australian Government announced it would be joining the scheme.78

Western Australia (WA) The Western Australian Government has been reported as raising concerns in relation to the scheme including a lack of information and ‘critical problems and disincentives’.79 On 14 March 2018, the WA Attorney General John Quigley told the Legislative Assembly that ‘[u]ntil a set of rules is published that clearly sets out the Commonwealth’s liability in this matter, we are very reluctant to agree to anything the Commonwealth says’.80 However, on 8 June 2018, Minister Tehan was reported as stating that the Commonwealth and Western Australian governments had ‘agreed on all remaining issues’ and that the WA Attorney General was ‘now seeking approval to join the scheme through their cabinet processes’.81

Responsible institutions The Royal Commission showed that the sexual abuse of children has occurred in a large number of non-government institutions across Australia, often operated by religious organisations.82 There has been pressure placed on responsible institutions by the Commonwealth Government and others to opt in to the scheme. On 31 May 2018, the Catholic Church was the first major non-

74. A Palaszczuk (Queensland Premier) et al, $500 million for survivors of child sex abuse, joint media release, 30 April 2018. 75. D Tehan (Minister for Social Services), Tasmania commits to the National Redress Scheme, media release, 22 May 2018. 76. D Killick, ‘State joins abuse compo scheme’, The Mercury, 23 May 2018. 77. ‘State defers child abuse compo plan’, The Advertiser, 1 May 2018, p. 6. 78. D Tehan (Minister for Social Services), South Australia joins National Redress Scheme, media release, 28 May 2018. 79. K Emery and G Adshead, ‘Premier yet to commit to child abuse compo plan’, The Weekend West, 16 December 2017. 80. J Quigley (Attorney-General), ‘Answer to question without notice: Commonwealth Redress Scheme’, Western Australia,

Legislative Assembly, Debates, 14 March 2018, p. 732. 81. M Davey, ‘Child sexual abuse: all states on board for redress after WA resolves doubts’, The Guardian, 8 June 2018. 82. V Badham, ‘Child sexual abuse royal commission: recommendations and statistics at a glance‘, The Guardian,

15 December 2017.

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government organisation to announce that it was joining the scheme.83 It was followed on 1 June 2018 by the Anglican Church, Salvation Army, the Scouts and YMCA.84 On 4 June 2018, the Uniting Church opted into the scheme.85

While a number of submissions were made by, or on behalf of, responsible institutions to the Senate inquiry into the Commonwealth Redress Scheme Bills, fewer responsible institution submissions were made to the Senate inquiry into the current Bills. A joint submission was received from the Salvation Army and the Uniting Church in Australia regarding the assessment framework. This will be a legislative instrument declared by the Minister to set out a method, or matters to take into account, in working out redress payments in the scheme. It argued that the assessment framework should align with the recommendations of the Royal Commission. The Royal Commission recommended that an ‘assessment matrix’ for monetary payments in the redress scheme should contain three factors:

• the severity of the abuse (on a scale of 1 - 40);

• the severity of the impact of the abuse (on a scale of 1 - 40) and

• additional elements (on a scale of 1 - 20).86

Survivor organisations Organisations which represent the interests of survivors of institutional child abuse have generally supported the establishment of a national redress scheme. However, these groups have also expressed concerns in relation to the scheme, particularly where it differs from the recommendations of the Royal Commission.

For example, the Alliance for Forgotten Australians (AFA) submission to the Senate inquiry into the Bills emphasised that ‘the reduction in the maximum payment from $200,000 recommended by the Royal Commission to $150,000 … has not been explained’.87 The AFA also raised:

• the apparent lack of future indexation for redress payments under the scheme

• a lack of clarity regarding who will ‘actually fund a successful redress claim in relation to a defunct institution’

• that the $5,000 counselling component will be inadequate to support some survivors and

• on-going concerns that the scheme is limited to those who experienced sexual abuse.88

The Care Leavers Australasia Network (CLAN) has argued that the scheme ‘will not deliver justice … if previous compensation payments are indexed before being factored into the payment process’.89 The Chief Executive Officer, Leonie Sheedy, noted that care leavers in Western

Australia, Queensland and Tasmania may have already received some payments from state-based redress scheme in those jurisdictions. She highlighted the impact of legal fees on previous

83. M Perkins, ‘Catholic Church to sign up to abuse redress scheme’, The Sydney Morning Herald, 31 May 2018. 84. AAP, ‘YMCA, Scouts and Salvos join $3.8b redress scheme’, The Age, 1 June 2018. 85. R Ferguson, ‘Uniting Church opts into scheme’, The Australian, 5 June 2018. 86. Salvation Army Australia and Uniting Church in Australia, Submission to Senate Community Affairs Legislation Committee,

Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, p. 1. Also see Anglican Church of Australia, General Synod, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, pp. 1-2 and Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and civil litigation report, op. cit., p. 245. 87. Alliance for Forgotten Australians, Submission to Senate Community Affairs Legislation Committee, Inquiry into National

Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, p. 1. 88. Ibid., pp. 2-3. 89. Care Leavers Australasia Network, Justice denied if National Redress Scheme allows indexation, media release, 27 April 2018.

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payments to survivors noting the proposed scheme would index past payments on the gross amount received, not the net amount. Ms Sheedy made the point that survivors ‘didn't get that money — the lawyers got the money’.90

Legal organisations Law firms and legal organisations expressed mixed views on the proposed scheme. While many have welcomed the establishment of the scheme, concerns have also been expressed that the eligibility requirements will limit access to redress, the fairness of the acceptance of offer processes and highlighted the lack of an external review process for determinations.

For example, the Law Council of Australia’s submission to the Senate inquiry made a range of recommendations regarding the Bill. These included:

• survivors should not be excluded from accessing the scheme on the basis of a past criminal conviction or alternatively, the default position should be that survivors with criminal convictions are eligible unless it is determined otherwise

• the citizenship and residency requirement for eligibility to redress ‘should be extended, at least, to those currently living in Australia, those who were child migrant, and those who were formally Australian citizens or permanent residents’

• eligibility criteria for the scheme should be established in the Bill and not be subject to amendment by way of the rules

• the Bill should be amended to extend the period for acceptance of an offer of redress from six months to one year

• the scheme should allow for an independent review mechanism that is external to the scheme and

• the Bill should clarify that the counselling and psychological services offered under the scheme are to be available for the applicant’s lifetime and subject to no fixed limits.91

Australian Human Rights Commission While the Australian Human Rights Commission (AHRC) commended many aspects of the scheme, its submission to the Senate inquiry on the Bill outlined its concerns that ‘some aspects of the Scheme do not adequately implement the Royal Commission’s findings and otherwise limit the human rights of survivors of child sexual abuse’. The AHRC’s submission outlined a number of recommended changes to the Bill, noting that its ‘major concern’ was that the Bill ‘excludes many survivors from accessing redress’.92 Its recommendations included that the Bill be amended to:

• remove the requirement for a person be an Australian citizen or a permanent resident at the time of application to be eligible for redress

• remove the exclusion of survivors based on criminal histories

• remove the exclusion of incarcerated survivors from applying for redress and

• remove the exclusion on children who will not turn 18 before the Scheme sunset date from applying for redress.93

90. S Donovan, ‘Institutional child sex abuse survivors might get less money under national redress scheme’, ABC News, 27 April 2018. 91. Law Council of Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, pp. 10-15. 92. Australian Human Rights Commission, Submission to Senate Community Affairs Legislation Committee, Inquiry into National

Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 4. 93. Ibid.

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Financial implications As noted above, the Australian Government committed $33.4 million in the 2017-18 Budget to establish the scheme.94 The Mid-Year Economic and Fiscal Outlook 2017-18 included additional funding for the operation of the scheme:

The Government will provide $54.7 million over four years from 1 January 2018 to support the operation of the Commonwealth Redress Scheme for Survivors of Institutional Child Sexual Abuse, including funding for Redress Support Services to assist applicants to the Scheme. 95

The bulk of this additional funding appears to be directed to the Department of Social Services— $20.3 million in 2018-19, $16.9 million in 2019-20 and $17.4 million in 2020-21.96 However, the scheme is intended to operate until 30 June 2028. Funding required for the operation of the scheme will extend beyond the forward estimates. The Explanatory Memorandum states that ‘[t]he Scheme’s funding arrangements will be made available after commencement through

normal reporting mechanisms’.97

Clause 161 of the Bill provides that the Consolidated Revenue Fund is appropriated to ‘the extent necessary for the purposes of the payment or discharge of the costs incurred by the Commonwealth in making the following payments’:

• redress payments

• counselling and psychological services payments and

• counselling and psychological services contribution.

The liability of the Commonwealth under the scheme and through ‘funder of last resort’ arrangements will have financial implications. However, there is little clarity on the extent of these liabilities at this stage. The Royal Commission’s report on redress stated:

The estimated total cost of funding redress is $4.01 billion. If governments—both the Australian Government and state and territory governments—agree to be funders of last resort then, under the modelling, the estimated cost of last resort funding is $613 million or some 15.3 per cent of the total cost of funding redress.

98

However, the Commonwealth will only be responsible for a part of that liability. The Intergovernmental Agreement lists estimated liability for each jurisdiction based on a report completed in 2017. This indicates the Commonwealth will be responsible for 955 survivors or 3.68 per cent of the total liability.99

Table 1. Estimated liability of each jurisdiction in the Intergovernmental Agreement100 Jurisdiction No. of survivors Percentage of

liability

NSW 8,950 34.45%

VIC 5,290 20.36%

94. Explanatory Memorandum, National Redress Scheme for Institutional Child Sexual Abuse Bill 2018, p. 4. 95. The Treasury, Mid-Year Economic and Fiscal Outlook 2017-18, Commonwealth of Australia, Canberra, 12 December 2017, p. 177. 96. Ibid., p. 130. 97. Explanatory Memorandum, op. cit., p. 5. 98. Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation report, op. cit., p. 34. 99. COAG, Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse, op. cit., p. 18. 100. Ibid., p. 18. This is listed in the Intergovernmental Agreement as being derived from a report by Finity Consulting in

September 2017.

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QLD 5,030 19.36%

WA 2,395 9.22%

SA 1,690 6.51%

TAS 1,115 4.29%

Cwlth 955 3.68%

NT 330 1.27%

ACT 225 0.87%

Total 25,890 100%

Source: COAG, Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse, 4 May 2018, p. 18.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.101 The compatibility statement includes some responses to the previous consideration by the Parliamentary Joint Committee on Human Rights of similar provisions in the proposed legislation for a Commonwealth redress scheme (see below).

Parliamentary Joint Committee on Human Rights The report of the Parliamentary Joint Committee on Human Rights (PJCHR) into the Bills is not yet available. However, the PJCHR raised a number of issues with the Commonwealth Redress Scheme Bills which are likely to be reflected in consideration of the Bills. Provisions which engaged the rights to an effective remedy, privacy, equality and non-discrimination were highlighted by the PJCHR.102 The PJCHR sought and received advice from the Minister on several of these matters. For some of these issues, the PJCHR observed that further details regarding the scheme will be contained in the rules and would be considered for human rights compatibility when they were received.103

Key issues and provisions

Chapter 1—Introduction

Commencement While the commencement date under the earlier legislation was 1 July 2018, clause 2 of the Bill includes different commencement arrangement. If Royal Assent is before 1 July 2018, then commencement is on 1 July 2018. If Royal Assent is after 1 July 2018 then commencement is on a day fixed by Proclamation or six months from Royal Assent, whichever occurs first. This is significant as the scheme will only provide redress for sexual abuse which occurred before the commencement date.

Objects As noted above, the main objects of the Bill, listed in subclause 3(1)), are to:

• recognise and alleviate the impact of past institutional child sexual abuse and related abuse and

• provide justice for the survivors of that abuse.

101. The Statement of Compatibility with Human Rights can be found at pages 113-27 of the Explanatory Memorandum to the Bill. 102. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 2, 13 February 2018, pp. 73-96. 103. Ibid., pp. 79, 83, 85, 93.

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Subclause 3(2) expands on these objectives by stating the objects of the Bill are also to establish the scheme and to provide the three components of redress. It differs from the earlier proposed legislation by outlining that the objects of the Bill are also to:

• enable institutions responsible for abuse of survivors to participate in the scheme to provide that redress to those survivors and

• implement the joint response of the Commonwealth Government, participating state and territory governments to the recommendations of the Royal Commission.

Definitions Clause 6 contains the Dictionary. While most listed definitions cross-reference relevant clauses in the Bill, there are some key terms explained. These include:

abuse means sexual abuse or non-sexual abuse.

abuser: a person is the abuser of another person if the person has abused the other person.

institution means any body, entity, group of persons or organisation (whether or not incorporated), but does not include a family or an individual.

non-sexual abuse includes physical abuse, psychological abuse and neglect.

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

reasonable likelihood, in relation to a person being eligible for redress, means the chance of the person being eligible is real, is not fanciful or remote and is more than merely plausible.

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.

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.

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

Chapter 2—The National Redress Scheme for Institutional Child Sexual Abuse

Establishment of the scheme Clause 9 provides that the Secretary of the Department of Social Services is the National Redress Scheme Operator (Operator) and authorises the Operator to arrange support and assistance for applicants as well as to make and vary contracts, agreements, deeds or understandings for this purpose.

Clause 10 sets out general principles that must be taken into account by the Operator and officers taking action under, or for the purposes, of the scheme:

• redress under the scheme should be survivor-focused

• redress should be assessed, offered and provided with appropriate regard to:

- what is known about the nature and impact of child sexual abuse, and institutional child sexual abuse in particular - the cultural needs of survivors and - the needs of particularly vulnerable survivors • redress should be assessed, offered and provided so as to avoid, as far as possible, further

harming or traumatising the survivor.

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The final guiding principle (subclause 10(5)) was not included in the earlier legislation. It provides that ‘[r]edress should be assessed, offered and provided in a way that protects the integrity of the scheme’.

Entitlement to redress under the scheme Part 2-2 of the Bill deals with entitlement to redress under the scheme. Division 2 of Part 2-2 explores entitlement through a series of rhetorical questions.

Clause 12—When is a person entitled to be provided with redress?

Subclause 12(1) provides that a person can only be provided with redress under the scheme if the person is entitled to it. Subclause 12(2) provides that a person is entitled to redress if:

• the person applies for redress

• the Operator considers that there is a reasonable likelihood that the person is eligible for redress under the scheme

• the Operator approves the application

• the Operator makes an offer of redress to the person and

• the person accepts the offer in accordance with the requirements of the Bill.

Subclause 12(3) provides that a person is also entitled to redress, or a component of redress, if the legislation or the rules prescribe that the person is entitled to it. Similarly, subclause 12(4) notes that despite subclause 12(2) and (3), a person not entitled to redress if the legislation or the rules prescribe that the person is not entitled to it. The Explanatory Memorandum notes that this may occur where a person has a security notice in force against them and will not be entitled to redress.104

Clause 13—When is a person eligible for redress?

Under subclause 13(1) a person will be eligible for redress if:

• the person was sexually abused

• the sexual abuse is within the scope of the scheme

• the sexual abuse is of a kind for which the maximum amount of redress payment that could be payable to the person (as worked out under the assessment framework) would be more than nil

• one or more participating institutions are responsible for the abuse and

• the person is an Australian citizen or a permanent resident (within the meaning of the Australian Citizenship Act 2007) at the time the person applies for redress.

A note to subclause 13(1) clarifies that while a person must have been sexually abused to be eligible, redress is for both sexual abuse and related non-sexual abuse of the person that is within the scope of the scheme.

Similar to the approach in clause 12, subclauses 13(2) and (3) clarify that persons are eligible or not eligible if the legislation or the rules prescribe.105

104. Explanatory Memorandum, op. cit., pp. 19-20. 105. Ibid., p. 20. The Explanatory Memorandum provides a number of examples of eligibility for subclause 13(1) of the scheme.

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Non-sexual abuse A number of submitters to the Senate inquiry argued that limiting eligibility to persons who suffered childhood sexual abuse in institutions would unfairly exclude those who suffered only non-sexual abuse in institutions.106 Tuart Place (a resource service for adults who experienced out-of-home care during childhood) expressed concern that the ‘inability of the national scheme to adequately address the abuse and neglect of the Stolen Generations, Forgotten Australians and former child migrants who were not sexually abused has already, inadvertently, caused harm among a very disadvantaged population group’.107 The Chair of the Alliance for Forgotten Australians (AFA) Ms Caroline Carroll has stated:

I would like to reiterate our concern that the scheme should cover all forms of abuse, not just sexual abuse … AFA recognises that the scheme is limited to those who experienced sexual abuse. We will never accept this eligibility criterion. What may be defined as sexual in an intellectual, legal and eligibility context needs to acknowledge, with the support of overwhelming evidence, that all forms of abuse in an institutional context are connected.

108

Citizenship and residency The Government response to the Senate Committee’s earlier report on the Commonwealth Redress Scheme Bills stated:

[O]nly people who are Australian citizens or permanent residents will be able to apply for redress. This is in line with other government entitlements. Non-citizens and non-permanent residents will be ineligible to ensure the integrity of the Scheme. Verification of identity documents for non-citizens and non-permanent residents would be very difficult and could result in organised overseas groups lodging large numbers of false claims in attempts to defraud the Scheme.

109

However, the requirement was questioned in submissions on the Bill. The Law Council of Australia noted that the Royal Commission saw ‘no need for any citizenship, residency or other requirements, whether at the time of abuse or at the time of the application for redress’. It argued that ‘the only relevant nexus for eligibility should be whether a person was sexually abused as a child, and that abuse is the responsibility of a participating institution’ and as a minimum ‘the Bill should extend the scheme to cover child migrants and those that were formerly Australian citizens or permanent residents’.110 Similarly, the Australian Association of Social Workers objected ‘to the fact this will rule ineligible people who have been sexually abused in immigration detention’ and recommended this group ‘be eligible for redress under the Scheme’.111

Clause 14 When is abuse within the scope of the scheme?

Subclause 14(1) provides that abuse is within the scope of the scheme if:

106. For example, Ryan Carlisle Thomas, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, pp. 1-2. 107. Tuart Place, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 15. 108. Alliance for Forgotten Australians, Submission to Senate Community Affairs Legislation Committee, Inquiry into National

Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, p. 3. 109. Australian Government, Australian Government response to the Senate Community Affairs Legislation Committee report: Inquiry into the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [Provisions] and the

Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [Provisions], 29 May 2018, p. 9. 110. Law Council of Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 10. 111. Australian Association of Social Workers, Submission to Senate Community Affairs Legislation Committee, Inquiry into

National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, May 2018, p. 3.

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• it occurred when the person was a child

• it occurred

- inside a participating State or - inside a Territory or - outside Australia and • it occurred before the scheme start day.112

Similar to the approach taken in clauses 12 and 13, subclauses 14(2) and (3) clarify that abuse of a person is within the scope of the scheme if the legislation or the rules prescribe.

Clause 15—When is an institution responsible for abuse?

Subclause 15(1) provides that an institution (whether or not a participating institution) is responsible for abuse of a person if the institution is primarily responsible or equally responsible for the abuse.

An institution is primarily responsible for abuse of a person if the institution is solely or primarily responsible for the abuser having contact with the person (subclause 15(2)).

An institution is equally responsible for abuse of a person if:

• the institution and one or more other institutions are approximately equally responsible for the abuser having contact with the person and

• no institution is primarily responsible for the abuse of the person (subclause 15(3)).

Subclause 15(4) outlines a non-exhaustive list of circumstances relevant to determining whether an institution is primarily responsible or equally responsible for the abuser having contact with the person. These circumstances are:

• whether the institution was responsible for the day-to-day care or custody of the person when the abuse occurred

• whether the institution was the legal guardian of the person when the abuse occurred

• whether the institution was responsible for placing the person into the institution in which the abuse occurred

• whether the abuser was an official of the institution when the abuse occurred

• whether the abuse occurred:

- on the premises of the institution or - where activities of the institution took place or - in connection with the activities of the institution • any other circumstances that are prescribed by the rules.

The first three of these listed relevant circumstances were not part of the earlier proposed legislation. The DSS submission to the Senate committee inquiry clarified that ‘[w]hereas one of the factors was previously that ‘the institution was responsible for the care of the child when the abuse occurred’, this has been split out into three distinct factors in order to provide further clarity to decision makers’.113

Potentially, the inclusion of these ‘relevant circumstances’ in the Bill may increase the likelihood that institutions which had a direct caring or legal relationship with a person who suffered institutional child sexual abuse will be assessed as primarily or equally responsible.

112. Clause 6 defines the scheme start date as ‘the day this Act commences’. 113. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 7.

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Subclauses 15(5) and (6) provide that, despite the above, institutions can be (or not be) ‘responsible, primarily responsible or equally responsible for the abuse of a person in the circumstances (if any) prescribed by the rules’. The DSS submission to the Senate inquiry states:

The rule-making power in clause 15(5) of the Bill has also been utilised to give effect to a number of instances where institutions will automatically be equally responsible.

It is proposed that the Rules will set out that governments will be equally responsible, along with the relevant non-government institution, for other circumstances where they had parental responsibility for a child and placed them in an institution where they were abused. This rule was developed at the request of and in close consultation with the states and territories.

The Rules will also set out that Commonwealth Defence institutions will be equally responsible, along with the relevant non-Defence institution(s), for abuse on or after 1 January 1977 that is linked to an externally run Cadet program. 114

Clause 16—What redress is provided to a person?

Subclause 16(1) outlines the three components of redress available under the scheme:

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

• a counselling and psychological component which, depending on where the person lives (as stated in the person’s application for redress), consists of:

- access to counselling and psychological services provided under the scheme or - a payment (of up to $5,000) to enable the person to access counselling and psychological services provided outside of the scheme and • a direct personal response from each of the participating institutions that are determined by the Operator to be responsible for the abuse of the person.

Subclause 16(2) clarifies that a person entitled to redress can choose any or all of those components.

Subclause 16(3) outlines that in situations where two or more participating institution are determined to be responsible for abuse, the person may choose to be given a direct personal response from each of those institutions, or from only some or one of them.

Redress payment The DSS submission states:

The average monetary payment under the Scheme is expected to be around $76,000 (before prior payments are taken into account). The maximum payment available under the Scheme is $150,000. This payment will recognise the most extreme cases. This average monetary payment is $11,000 higher than that recommended by the Royal Commission.

115

As noted above, a number of stakeholders have raised objections to the maximum redress payment of $150,000 when the Royal Commission had recommended a maximum payment of $200,000. For example, the Australian Human Right Commission observed that the amount had been set by the Royal Commission to ‘allow recognition of the most severe cases, taking account of both the severity of the abuse and the severity of the impact of the abuse’. The Commission considered:

… the efficacy of the Scheme depends on the availability of adequate redress to recognise the significance of the abuse from the perspective of the survivor. Inadequate redress may cause more

114. Ibid. 115. Ibid., p. 12.

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survivors to pursue civil litigation, which undermines the efficacy of the Scheme and may not be in the best interests of the survivor. 116

Others concerns raised regarding the redress payment have included the lack of provision for the redress payment to be increased or indexed for inflation and the lack of a set minimum redress payment.117

Counselling and psychological services Some submissions to the Senate inquiry considered that there was a lack of clarity in the Bill regarding the counselling and psychological services available under the scheme. Relationships Australia commented that ‘it is not clear from the face of the Bill whether those survivors who will have access to a declared provider will also be subject to a cap of $5000 in the value of services which they can receive under the Scheme’.118

During Budget estimates, DSS officers provided further detail on how the counselling and psychological services component would be allocated:

With the state jurisdictions, while that hasn't been confirmed with every jurisdiction, most of them themselves, through their public health networks or equivalent, provide support [to survivors of institutional child sexual abuse]. Some of these provide it through victims' support units. So already they're providing the support to survivors. So up to $5,000 will go into those existing structures those states have—at the end of the journey as we finalise the arrangements with them and they sign on. It's not as if there is a cap on the $5,000. It's being fed out to contribute to the systems.

119

Other submissions questioned the payment amount of this component of redress. For example, the Australian Psychological Society stated that ‘[i]f a survivor lives in a jurisdiction that is not a declared provider of counselling and psychological services under the Scheme, access to counselling and psychological [services] will be capped at $5,000’. It noted that ‘this provision falls short of the Commission’s recommendation that survivors should have access to counselling and psychological services across their lifetime’.120

Clause 17—What is redress for?

This clause clarifies that redress is for the sexual abuse, and related non-sexual abuse, of the person that is within the scope of the scheme.

How to obtain redress under the scheme Clause 19 provides that a person must make an application to obtain redress under the scheme. To be valid, the application must meet certain requirements including specifying where the person lives (presumably for the purpose of determining access to counselling and psychological component under the scheme).

Clause 20 outlines when a person cannot make an application for redress. These are:

• the person has already made an application for redress under the scheme

116. Australian Human Rights Commission, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 13. 117. For example, Centre for Excellence in Child and Family Welfare, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018,

p. 1.

118. Relationships Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, p. 7. 119. B Bennett (Department of Social Services), Evidence to Senate Community Affairs Legislation Committee, 1 June 2018, p. 82. 120. Australian Psychological Society, Submission to Senate Community Affairs Legislation Committee, Inquiry into National

Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 2.

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• a security notice is in force in relation to the person [issued by the Home Affairs Minister under clause 65]

• the person is a child who will not turn before the scheme sunset day

• the person is in gaol (within the meaning of subsection 23(5) of the Social Security Act 1991121) or

• the application is being made in the period of 12 months before the scheme sunset day.

For persons who are in goal or who have made an application in the period 12 months before the scheme sunset day, the Operator can determine there are exceptional circumstances justifying the application being made (subclause 20(2)).

One application The restriction in paragraph 20(1)(a) against subsequent applications for redress means that survivors will be limited to one application. In submissions to the Senate inquiry several organisations objected to the single application rule. Tuart Place argued:

The rule that applicants can submit only one application to the NRS is unnecessarily restrictive and is neither survivor-focussed nor trauma-informed. It can also be expected to cause great distress to survivors, particularly in cases where one of the institutions deemed responsible for providing redress is not a participating institution.

122

Children Paragraph 20(1)(c) restricts children from making an application for redress if they will not turn 18 years of age during the operation of the scheme. The Australian Human Rights Commission outlined Australia’s international human rights obligations in relation to children in its Senate Committee inquiry submission, including that the ‘best interests of the child’ must be a primary consideration.123 It noted that paragraph 20(1)(c) ‘means that children who are currently under eight years old will be excluded from applying for redress’.124 The Australian Human Rights Commission expressed the view that ‘the blanket exclusion of children is contrary to [the] requirement to ensure the best interests of the child, especially in relation to vulnerable children’.125

The DSS submission explained that during consultations with jurisdictions a number of concerns were raised regarding child applicants to the scheme:

The final policy reflected in the National Bill is that children may apply for redress, however their application will not be determined and they will not sign a statutory release until they reach 18 years of age. Children who will not turn 18 before the Scheme sunset date will not be able to apply for redress. Applying an age limit to the Scheme addresses the risk of children signing away their future civil rights when they may have limited capacity to understand the implications, and when the impact of the abuse may not fully be realised. An age limit will also address the risk of the misuse of monetary payments made to minors.

121. Subsection 23(5) of the Social Security Act 1991 provides that a person is in gaol if: (a) the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or (b) the person is undergoing a period of custody pending trial or sentencing for an offence.

122. Tuart Place, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 3. 123. Australian Human Rights Commission, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 5. 124. Ibid., p. 9. 125. Ibid., p. 10.

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By allowing children aged eight or above to apply, the Scheme will be able to request information from the responsible institution(s) at the time of the application to ensure the information is current and prevent possible issues in sourcing information later. Once the child turns 18, they can choose to proceed with their application and provide any further relevant information if they wish, or withdraw their application.

126

In gaol Paragraph 20(1)(d) restricts persons in gaol from making an application for redress. The Explanatory Memorandum states this was ‘included as it would be difficult to secure appropriate redress support services for this environment, and there are risks associated with the confidentiality of applicants in a closed institutional setting’.127 In a Senate inquiry submission, the Blue Knot Foundation, an organisation focused on childhood trauma, considered this provision was ‘punitive and inequitable’. It argued ‘[w]hether a person is in gaol or not is irrelevant to whether they were sexually abused as a child within an institution’.128 Sexual Assault Support Services acknowledged that the delivery of services to incarcerated survivors was complex but made the point that it was possible. It stated ‘we have been successfully providing advocacy and counselling services to incarcerated survivors of institutional child sexual abuse for some time … and can also be extremely beneficial for survivors’.129

Clause 21 requires the Operator to deal with applications for redress made by children who will turn 18 before the scheme sunset date ‘in accordance with any requirements prescribed by the rules’. However, as the scheme rules are not available, it is unclear what these requirements will

be. It clarifies that rules made for this purpose will apply despite the obligation on the Operator to determine applications ‘as soon as practicable’ in clause 29.

The Explanatory Memorandum notes that the ‘special process for children’ to be prescribed in the scheme rules is necessary to ensure there are adequate protections:

Children who will turn 18 throughout the life of the Scheme may apply for redress; however, their application will not be determined until they reach 18 years of age. This will allow the Scheme to request information from the responsible institution(s) at the time of the application to ensure the information is current, especially in the circumstance where the responsible institution may go defunct before the claim can be determined. Once the child reaches 18, the survivor can choose to proceed with their application, withdraw their application and reapply, or withdraw their application completely. Those child survivors who are waiting for their redress application to be determined will have access to the Scheme’s support services throughout this period.

130

Clause 22 provides for persons to withdraw applications at any time before determination. Where an application is withdrawn, for the purpose of the legislation ‘it is treated as not having been made’. Under clause 23, if a person withdraws their application and the Operator has requested a participating institution provide information, the Operator must give the institution written notification (complying with any requirements set in the rules).

Obtaining information for the purposes of determining the application Division 3 of Part 2-3 of the Bill includes clauses which give the Operator the power to request information from the applicant (clause 24) and from participating institutions (clause 25). Under

126. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 8. 127. Explanatory Memorandum, op. cit., p. 27. Also see the Statement of Compatibility with Human Rights, p. 119. 128. Blue Knot Foundation, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme

for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, p. 2. 129. Sexual Assault Support Service, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, June 2018, p. 4. 130. Explanatory Memorandum, op. cit., p. 29.

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subclause 24(1) if the Operator has reasonable grounds to believe that an applicant has information that may be relevant to determining the application, then the Operator may request the person to give the information to the Operator. However, under subclause 25(1) the Operator must request an institution give any information that may be relevant to the application where:

• the application identifies a particular participating institution as being involved in the abuse of the person or

• the Operator has reasonable grounds to believe that a participating institution may be responsible for the abuse of the person.

Subclause 25(2) also provides the Operator with a broad discretionary power to request information from institutions where there are reasonable grounds to believe the participating institution has information relevant to determining an application.

The consequences for failing to comply with a request for information also differ. If an applicant fails to comply with a request, the Operator is not required to make a determination on their application until the information is provided (subclause 26(1)). If a participating institution fails to comply with a request the Operator may still progress the application and make a determination (subclause 26(2)). State and territory law do not prevent a person from complying with a request (clause 27).

Clause 28 also provides that ‘[a] person must not give information, produce a document or make a statement to an officer of the scheme if the person knows, or is reckless as to whether, the information, document or statement is false or misleading in a material particular’. The maximum civil penalty for a breach of this provision is 60 penalty units ($12,600).131

The Operator must determine whether to approve the application Subclause 29(1) provides that if a person makes an application for redress the Operator must make a determination to approve, or not approve, the application ‘as soon as practicable’.

Subclause 29(2) lists the things the Operator must do if there is a reasonable likelihood the person is eligible for redress. These include:

• approve the application

• determine each participating institution that is responsible for abuse

• determine the amount of redress payment and each liable institution’s share of the cost of the redress payment

• determine:

- the amount of counselling and psychological component of redress - each responsible institution’s share of the cost of that component • determine whether the counselling and psychological component consists of:

- access to the counselling and psychological services provided under the scheme or - a counselling and psychological services payment • if a counselling and psychological services payment, determine that the amount of the payment equals the amount of the counselling and psychological component of redress

• for each responsible institution that is a member of a participating group, determine each other participating institution that is an associate of the responsible institution at that time

131. Section 4AA of the Crimes Act 1914 provides that a penalty unit is currently equal to $210.

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• for a participating institution that was identified in the application and is not covered by a determination, determine that the participating institution is not responsible for the abuse and therefore not liable for providing redress

• determine that a participating government institution is the funder of last resort for the defunct institution in relation to abuse if

- the participating government institution is equally responsible with a defunct institution for the abuse and - the defunct institution is listed for the participating jurisdiction that the participating government institution belongs.

Working out the amount of redress and sharing of costs Clause 30 provides the process for the Operator to determine the amount of redress payment and each responsible institution’s share of the costs of the redress payment.

The Operator must ‘work out’ each responsible institution’s share of the costs of the redress payment by following a method statement. The method statement requires:

• applying the assessment framework (see clause 32) to work out the maximum amount of redress which could be made to the person (the maximum amount must not be more than $150,000)

• working out each responsible institution’s share of the maximum amount (this is the gross liability amount for each responsible institution)

• determining relevant prior payments to the person by each responsible institution

• adjusting the relevant prior payments for inflation (multiplying the original amount by (1.019)n where ‘n’ is the number of years since the relevant payment was made to the person)

• adding together the adjusted prior payments to find the reduction amount for each institution

• an institution’s share of the cost of redress payment is gross liability amount less the reduction amount.

The Operator must then ‘work out’ the amount of redress payment for the person by adding together each responsible institution’s share of the costs of the redress payment.

A note to the clause confirms that the amount of redress payment may be nil (because of the total amount of adjusted prior payments exceeds the redress payment) but that the person will still be entitled to the other components of redress.132

Relevant prior payments A key part of this process is taking into account ‘relevant prior payments’ paid to the person ‘by, or on behalf of, the responsible institution in relation to abuse’. The method statement sets out that a relevant prior payment is ‘any payment … by, or on behalf of, the responsible institution in relation to abuse for which the institution is responsible (but do not include any payment to the extent that it is prescribed by the rules as not being a relevant prior payment)’.

This wording leaves ambiguity as to which payments from, or on behalf of, a responsible institution to an applicant may be determined to be a ‘relevant prior payment’. The DSS submission to the Senate Committee inquiry describes ‘relevant prior payments’ as ‘payments

132. The Explanatory Memorandum includes examples to illustrate the application of the method statement, pp. 35-7.

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made by or on behalf of a responsible institution in recognition of the harm caused by abuse for which the institution is responsible, or in recognition of such abuse itself’.133 It states:

The Scheme will not deduct payments provided to support access to counselling and psychological services, or routine payments of treatment, or other expenses like medical or dental bills. The Scheme will not take into account one-off payments for specific purposes that are not in recognition of harm, even where the specific purpose for which the payment was made was requested by the survivor (for example, for consumer items or covering rent). In cases of shared responsibility, the Scheme will only deduct prior payments from the liability for redress of the institution that made the payment.

134

Notably, the Royal Commission recommended that ‘any uncertainty as to whether a payment already received related to the same abuse for which the survivor seeks a monetary payment through redress should be resolved in the survivor’s favour’.135 This preference towards survivors in assessing prior payments does not appear to be incorporated into the method statement.

Indexation of relevant prior payments As noted above, survivor groups and others have raised concerns regarding the impact of indexation of prior payments to applicants in reducing redress payments under the scheme. For example, Tuart Place, a resource service for adults who experienced out-of-home care during childhood commented:

The primary problem with indexing redress payments however, is that these payments are not ‘proper compensation’, and upscaling is inappropriate when dealing with amounts that bear no direct relationship to the ‘true value’ of the damage, as is the case in civil claims. It is accepted that redress payments are significantly lower than common law damages, which makes upscaling particularly unfair.

Further, institutional liability for payment of damages is triggered at the time the abuse occurs, in some cases more than half a century ago. Much of the sexual abuse to be redressed under the [scheme] is decades old, but there is no counterbalance or provision for payment of interest backdated to the time of the abuse. Applicants will be required to accept the payment in lieu of claiming damages which would likely carry interest calculated at a significant sum.

136

Further, Tuart Place observed that ‘the process of monetising someone’s childhood abuse is inherently fraught’:

One of the problems with applying the [scheme’s] proposed formula of (1.019) n is that it will generate

‘oddly precise’ amounts of redress, and while such a high level of specificity may be normal and considered reasonable in a taxation or Centrelink assessment, it has no place in a redress scheme. 137

The DSS submission to the Senate inquiry states that ‘in line with the recommendations of the Royal Commission, relevant prior payments will be adjusted for inflation to account for changes in the value of money over time’:

The Scheme will be using a flat inflation rate of 1.9 per cent per annum when adjusting prior payments for inflation. This represents the average rate of inflation over the lifetime of the Royal Commission.

133. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 15. 134. Ibid., p. 16. 135. Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation report, op. cit., p. 25. 136. Tuart Place, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for

Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, pp. 6-7. 137. Ibid., p. 6.

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Adjusting relevant payments by CPI would generally result in a higher indexation rate in most cases, thereby lowering the payment available to survivors. 138

DSS considered that ‘it is likely that a number of key institutions would choose not to participate in the Scheme if relevant payments were not adjusted to account for inflation’.139

Working out the amount of the counselling and psychological component and sharing of costs Clause 31 sets out how the Operator must determine the amount of the counselling and psychological component and each responsible institution’s share of the costs of that component.

Subclause 31(2) provides the Operator must apply the assessment framework to work out the component. The amount must not be more than $5,000, regardless of the number of responsible institutions. The Operator must work out, in accordance with the rules, the amount that is each responsible institution’s share of the costs of the component.

This raises an issue of ambiguity concerning the delivery of this component of redress. Under the Bill a person can receive counselling and psychological services provided under the scheme or a counselling and psychological services payment (up to $5,000). It is not clear how the calculation of the value of this component of redress will translate to the services provided under the scheme.

The assessment framework and policy guidelines Clause 32 of the Bill provides that the Minister may declare in writing an assessment framework for ‘working out’ amounts of redress under the scheme. This will be a legislative instrument, but not disallowable under section 42 of the Legislation Act 2003.

The DSS submission states ‘the assessment framework will be publicly available as a legislative instrument, which will be tabled after the passage of the Bill’:

The Scheme will use an assessment framework to assess the monetary payment amount that each survivor will receive. The assessment framework design is based on the approach recommended by the Royal Commission, and on consultation with the Independent Advisory Council, jurisdictions and key non-government institutions. It will include components that recognise the severity of sexual abuse suffered, the impact on the survivor, related non-sexual abuse, institutional vulnerability (for residential institutions) and extreme circumstances.

The average monetary payment under the Scheme is expected to be around $76,000 (before prior payments are taken into account). The maximum payment available under the Scheme is $150,000. This payment will recognise the most extreme cases. This average monetary payment is $11,000 higher than that recommended by the Royal Commission.

140

Clause 33 provides for the Minister to make guidelines for the purposes of the applying the assessment framework. These guidelines will not be a legislative instrument and the Operator ‘may’ take them into account when applying the assessment framework.

138. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 16. 139. Ibid. 140. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National

Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 12.

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Transparency of assessment process Access to the assessment framework policy guidelines appears to be restricted in later clauses (see clauses 102-104 below). The restricted access to the assessment framework policy guidelines is likely to limit transparency concerning the calculation of redress payments under the scheme. The Explanatory Memorandum provides a policy rationale for this restriction:

This Division is necessary to ensure that the assessment framework policy guidelines are appropriately protected from unauthorised use and disclosure, as the guidelines provide additional matters that the Operator may take into account when applying the assessment framework (clauses 32 and 33), which may contain graphic and triggering descriptions of abuse. Further, protecting the assessment framework policy guidelines from unauthorised use and disclosure will assist with mitigating the risk of fraudulent and enhanced applications, as unauthorised disclosure of the guidelines could enable people to understand how payments are attributed and calculated.

141

However, Maurice Blackburn was ‘bewildered that, far from moving toward a more transparent approach to the calculation of redress, the current draft legislation actually makes the assessment framework more secretive’. It submitted that ‘in the interests of transparency and survivor confidence, the draft legislation be remodelled allowing for the contents of the assessment framework, and the processes for its use to be made public, and made subject to parliamentary oversight’.142

Notice of determination Clause 34 provides that, after making a determination, the Operator to must give an applicant a notice of determination stating whether the application has been approved, the reasons for the determination and that the person may apply for a review of the determination.

The notice must also specify the date by which the person may apply for review of the determination (at least 28 days, but no longer than six months after the date of notice) and it must comply with the any matter prescribed by the rules.

Additionally, clause 35 of the Bill requires the Operator give a notice of determination to participating institutions specified in the determination. Subclause 35(2) contains a detailed list of information the notice to the participating institution should contain include the reasons for the determination. Further, the notice must comply with any requirements prescribed by the rules.

Effect of determination and admissibility of evidence in civil proceedings Clauses 36 and 37 of the Bill deal with the legal effect of determinations. Clause 36 provides that a determination only has effect for the purposes of the scheme and ‘is not a finding of law or fact made by a court in civil or criminal proceedings’. A note to the clause observes that a different standard of proof ‘reasonable likelihood’ is applied under the scheme. Clause 37 makes applications for redress, associated documents and documents created to comply with requests for information by the Operator inadmissible in civil proceedings.

Offers and acceptance of redress Clause 39 details what must be contained in a written offer of redress when a person’s application for redress is approved. Offers of redress must contain a range of information including:

141. Explanatory Memorandum, op. cit., pp. 68-9. 142. Maurice Blackburn, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 7.

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• the amount of the redress payment

• whether the counselling and psychological component of redress for the person consists of:

- access to the counselling and psychological services that are provided under the scheme or - the counselling and psychological services payment and • the participating institutions determined to be responsible for the abuse and therefore liable for providing redress to the person under the scheme.

In particular, the offer of redress must explain the effect of clause 43 ‘(which is about the release from civil liability of the responsible institutions, their officials, their associates and the officials of their associates) should the person accept the offer’.

Clause 40 provides that the acceptance period of an offer of redress must be at least six months. The acceptance period can also be extended by the Operator or at the request of the applicant if there are exceptional circumstances. Under the previous legislation the acceptance period was at least 90 days. Some submissions to the Senate inquiry, such as the Law Council of Australia have argued for ‘one year to be an appropriate timeframe’.143

Clause 41 requires that where the Operator makes an offer of redress, he or she must provide a notice of the offer to relevant participating institutions or people.

Accepting and declining offers of redress Clause 42 provides for persons to accept an offer of redress by giving the Operator an acceptance document before the end of the acceptance period. The key component of the acceptance document requires the person to release all institutions, associates and officials determined to be responsible for the abuse of the person of all civil liability (other than the abuser of the person).

It also must state that the person forgoes any entitlement to be paid damages by a released institution or official if the released institution or official were joined as a party to civil proceedings brought or continued by the person against another party in relation to abuse of the person that is within the scope of the scheme.

The acceptance document must also state that the person will not, whether as an individual, a representative party or a member of a group, bring or continue any civil claim against a released institution or official in relation to abuse of the person that is within the scope of the scheme.

While the acceptance document must comply with any requirements in the rules, subclause 42(4) provides that the rules ‘must not require the person to enter into a confidentiality agreement’.

Clause 43 of the Bill deals with the effect of acceptance of an offer of redress on civil liability. When a person accepts an offer of redress:

• the person releases and forever discharges every released institution or official from civil liability for abuse of the person that is within the scope of the scheme and

• the person cannot (whether as an individual, a representative party or a member of a group) bring or continue civil proceedings against a released institution or official in relation to that abuse.

However, the release and discharge of civil liability of a released institution or official for abuse does not release or discharge another institution or person from civil liability for that abuse or

143. Law Council of Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 6.

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prevent the person from bringing or continuing civil proceedings against another institution or person in relation to that abuse (paragraph 43(c)).

The DSS submission also noted that ‘[t]he changes to the release provisions clarify that a released institution or official cannot be made liable to pay damages if later joined as a third party to a common law claim or being subject to contribution proceedings’.144 In this respect, paragraph 43(d) clarifies that if a released institution or official ‘is liable to make a contribution to another institution or person in relation to damages payable to the person in civil proceedings brought or continued by the person against the other institution or person in relation to that abuse’:

• the released institution or official is released and forever discharged from liability to make that contribution and

• the amount of damages payable to the person in those proceedings is reduced by the amount of that contribution.

Statutory release Under the previous proposed legislation the required release from civil liability only applied to participating institutions. The Bill extends the release from civil liability when an offer of redress is accepted to institutions and officials (other than an official who is an abuser of the person). The DSS submission stated:

To ensure increased participation of institutions, it was also crucial to ensure officials of institutions were released from civil liability. These arrangements do not apply if the official of an institution was also the abuser of the applicant, and the release does not apply to criminal liability. 145

Counselling and psychological component of redress The previous proposed legislation provided that the Operator must enable eligible persons to access counselling and psychological services as soon as possible after the person has accepted an offer of redress.146 It also included ‘general principles guiding counselling and psychological services’ including that ‘[c]ounselling and psychological services provided through redress should supplement, and not compete with, existing services’.147

Clause 51 reflects a changed approach to this component of redress in the Bill.

If the person lives in a participating jurisdiction that is a declared provider of counselling and psychological services under the scheme, the Operator must refer the person to the participating jurisdiction. The participating jurisdiction must, as soon as practicable after receiving the referral, provide for the delivery of counselling and psychological services under the scheme in accordance with the National Service Standards. 148

If the person does not live in a participating jurisdiction that is a declared provider of counselling and psychological services the Operator must pay the counselling and psychological services payment to the person (in accordance with any rules).

144. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, p. 11. 145. Ibid. 146. Clause 47, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017. 147. Clause 49, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017. 148. The National Service Standards for the provision of State/and or territory based counselling and psychological care (CPC) in

contained in Schedule C of the Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse.

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The DSS submission to the Senate inquiry contains details regarding the ‘tiered’ structure of this component of redress under the scheme:

Survivors will access [counselling and psychological care] under the Scheme in one of two ways:

• where a jurisdiction has elected to provide a lump sum payment, the survivor will receive a tiered lump sum payment of $1,250, $2,500, or $5,000 (based on the severity of the sexual abuse they have experienced), or

• where a jurisdiction has elected to provide state based counselling services, survivors will be referred through a state or territory government to appropriate counselling services. Jurisdictions will be provided with the tiered counselling payment directly ($1,250, $2,500, or $5,000 based on the severity of the sexual abuse the person has experienced). The inclusion of the option came at the request from a number of the jurisdictions.

149

Clause 52 extends the protections for the redress payment from affecting social security or veterans’ entitlements or from bankruptcy etc to the counselling and psychological services payment. Similarly, clause 53 provides additional protection to the counselling and psychological services payment from court garnishee orders.

Direct personal responses Clause 54 provides for direct personal responses from responsible institutions. A direct personal response can be ‘any one or more’ of the following:

• an apology or a statement of acknowledgement or regret

• an acknowledgement of the impact of the abuse on the person

• an assurance as to the steps the institution has taken, or will take, to prevent abuse occurring again

• an opportunity for the person to meet with a senior official of the institution.

When providing a direct personal response, participating institutions must take into account the direct personal response framework set out in clause 55. This clause provides that the Minister may declare, in writing, guidelines about how direct personal responses are to be provided under the scheme.

Chapter 3—Special rules to deal with exceptional cases The previous proposed legislation dealt with ‘exceptional cases’ (such as the death of applicant or death before offer of redress is accepted), but the Bill also establishes new processes concerning applicants with serious criminal convictions and the issuing of security notices.

Death of person before acceptance of redress A number of potential applicants to the scheme are elderly or are in poor health. The clauses below deal with situations where the applicant dies during the determination and offer and acceptance process.

Clause 58 provides that if a person has made a valid application but dies before a determination is made, the Operator must continue to deal with the application as if the person had not died. The redress payment is payable in accordance with clause 60 below.

Clause 59 provides that if an offer of redress has been made and the applicant dies before the offer is accepted, declined or withdrawn then the offer is taken to be withdrawn.

149. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 6.

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However, if before the person died, they had not applied for review or applied for review and the review had been completed then the redress payment is payable according to clause 60. Similarly, if the applicant has applied for review and the review is still on-going, the review will continue as if the person has not died.

Clause 60 provides that if a redress payment is payable after the person has died the Operator must determine who should be paid and make the redress payment to that person(s) as soon as possible. The Operator can consider the deceased person’s will and the law relating to the disposition of deceased persons in making this determination.

Abuse occurring inside a non-participating State Clause 61 provides that a person will be eligible and abuse will be within the scope of the scheme if the sexual abuse occurred inside a non-participating state where a Commonwealth institution or a participating territory institution is primarily responsible.

Special assessment of applicants with serious criminal convictions Clause 63 provides that if a person is sentenced to imprisonment for five years or longer for an offence against a law of the Commonwealth, a state, a territory or a foreign country, the person will not be entitled to redress unless a determination by the Operator is made.

In particular, subclause 63(3) states that the Operator must make this determination ‘soon as practicable after becoming aware of a person’s sentence’. In making the determination, the Operator must request advice and ‘sufficient information’ from specified advisors. These specified advisors are the relevant Attorneys-General from the participating jurisdictions where the person’s abuse occurred and where the offence occurred (paragraph 63(3)(b)).

Under subclause 63(5) the Operator may determine that the person is not prevented from being entitled to redress under the scheme if satisfied providing redress would not:

• bring the scheme into disrepute or

• adversely affect public confidence in, or support for, the scheme.

In making this determination, the Operator must take into account:

• any advice given by a specified advisor

• the nature of the offence

• the length of the sentence of imprisonment

• the length of time since the person committed the offence

• any rehabilitation of the person and

• any other matter that the Operator considers is relevant.

However, the Operator must give ‘greater weight’ to any advice given by a specified advisor from the jurisdiction in which the abuse of the person occurred.

Persons with serious criminal convictions The earlier proposed legislation did not exclude people with serious criminal convictions from applying from the proposed scheme. However, in December 2017, then Minister for Social Services, Christian Porter, announced there would be ‘some limitation … placed around the ability of someone with a fairly significant criminal record of offending and sexual offending to themselves be able to apply’. He observed this decision had followed consultation, particularly with the state and territory governments and the independent advisory committee and was

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intended to ‘maintain public confidence in the scheme’.150 The DSS submission to the Senate inquiry into the Bill stated:

This means that the Scheme will still accept applications from people with criminal convictions. However, people who have a serious criminal conviction, where they have been sentenced to imprisonment for five years or longer for any offence, will have their application assessed on a case-by-case basis. This policy was negotiated with jurisdictions and non-government institutions. This decision balances the need for the Scheme to recognise the impact that childhood abuse can have on a person’s life, including increasing the risk of offending behaviour, with the need to ensure that the Scheme is not brought into disrepute by providing redress to a person who has themselves committed heinous crimes.

151

The potential exclusion of persons with serious criminal convictions from the scheme has been controversial. A large number of submissions to the Senate inquiry into the previous proposed legislation argued that an exclusion for persons with criminal convictions would punish persons who were driven into criminal activities as a consequence of their experiences of abuse when they were children. Several of these concerns were repeated in the Senate inquiry into the Bill. For example, the law firm Ryan Carlisle Thomas considered that excluding those who had suffered childhood abuse but who had served more than five years in prison was ‘manifestly unjust’ and that ‘applications for an exemption will rarely, if ever, be allowed’.152 It attached its submission on the earlier proposed legislation which pointed out that that ‘[i]t is well documented that one of the effects of child sexual abuse can include imprisonment’.153

Shine Lawyers also argued there was a lack of certainty in the process outlined in clause 63:

The Bills do not define what constitutes public confidence or support or identify how these concepts will be measured. It is unclear exactly how the public’s confidence or support in the scheme will influence a person’s eligibility for redress. The redress scheme must be transparent and predictable. It is unclear how perceptions of public confidence and support will be applied equitably to survivors across the scheme. Placing survivors of child sexual abuse in a situation where they do not know whether they are eligible based on subjective interpretations of concepts of public confidence in the scheme, exposes survivors to further distress and trauma.

154

It also highlighted that the factor to be given the most weight in the process is ‘the opinion of the relevant Attorney(s) General’:

We remain concerned that the opinion of the Attorney General about the ill-defined concepts of public confidence and support and apparently an individual’s ‘notoriety’ will be given any weight at all given the scheme has no external appeal mechanism for a survivor to dispute assumptions about public confidence and notoriety. If the opinion of an Attorney General is to be included at all, it should be given no greater weight than any other factor in clause 65(5).

155

The Royal Australian and New Zealand College of Psychiatrists (RANZCP) considered that ‘[d]enying criminal offenders counselling/psychological services and other opportunities to assist

150. C Porter (Minister for Social Services), ‘Royal Commission into Institutional Responses to Child Sexual Abuse’, transcript of press conference, Western Australia, 15 December 2017, pp. 5-6. 151. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 9. 152. Ryan Carlisle Thomas, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme

for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, p. 2 153. Ibid., Attachment 1, p. 2. 154. Shine Lawyers, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for

Institutional Child Sexual Abuse Bill 2018 and related Bill, June 2018, p. 4. 155. Ibid., p. 5.

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in their recovery is in opposition to the survivor-focussed approach recommended by the Royal Commission’. It stated:

The RANZCP notes that section 63(5) of the Bill allows the Operator to determine that the person is not prevented from being entitled to redress under the Scheme, with relevant considerations noted in section 63(6). In particular, the RANZCP notes that any rehabilitation of the person is included as a relevant consideration. While the RANZCP appreciates these provisions allow access to the Scheme for some people who would otherwise be excluded, the RANZCP is concerned that these allowances are discretionary and based on factors associated with the offence, rather than a person's prognosis or chance of recovery and rehabilitation.

156

Security notices Clause 64 provides that a person is not entitled to redress while a security notice is in force.

Under clause 65, the Home Affairs Minister is granted a broad discretionary power to give a security notice to the Minister in relation to a specified person. The Home Affairs Minister may give a security notice if:

• the Foreign Affairs Minister gives the Home Affairs Minister notice (under subclause 66(1) below)

• 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 (ASIO) that the person is directly or indirectly a risk to security157

• the person’s visa is cancelled under section 134B of the Migration Act (emergency cancellation on security grounds) and the cancellation has not been revoked because of subsection 134C(3) of that Act158

• the person’s visa is cancelled on character grounds under section 501 of the Migration Act and there is an assessment by ASIO that the person is directly or indirectly a risk to security.159

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 (subclause 65(2)). However, this does not limit ‘the matters to which regard may be had’ (subclause 65(3)).

Clause 66 provides that the Foreign Minister may give notice to the Home Affairs Minister where the Foreign Minister has refused to issue or revoked an Australian travel document, based on a request by a competent authority, under certain sections of the Australian Passports Act 2005. In

156. Royal Australian and New Zealand College of Psychiatrists, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, p. 2. 157. Section 116 of the Migration Act 1958 is the power of the Minister to cancel visas. Section 128 of the Migration Act relates to the cancellation of visas of people outside of Australia (without notice). The term ‘security’ is defined in section 4 of the

Australian Security Intelligence Organisation Act 1979 as (a) the protection of, and of the people of, the Commonwealth and the several States and Territories from: (i) espionage; (ii) sabotage; (iii) politically motivated violence; (iv) promotion of communal violence; (v) attacks on Australia’s defence system; or (vi) acts of foreign interference; whether directed from, or committed within, Australia or not; and (aa) the protection of Australia’s territorial and border integrity from serious threats; and (b) the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa). 158. Section 134B of the Migration Act 1958 provides the Home Affairs Minister must cancel a visa held by a person where:

(a) there is an ASIO assessment (b) which contains advice that ASIO suspects that the person might be, directly or indirectly, a risk to security and (c) recommends all visas held by the person be cancelled and (d) the person is outside of Australia. Essentially, subsection 134C(3) provides that the Home Affairs Minister must not revoke the visa cancellation under section 134B where ASIO’s assessment regarding (b) and (c) is maintained. 159. Section 501 of the Migration Act 1958 provides that the Home Affairs Minister may refuse or cancel a visa on ‘character

grounds’. A broad ranging ‘character test’ is set out in subsection 501(6).

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particular, this would be in circumstances where ‘a competent authority’ suspects on reasonable grounds that, if an Australian travel document were issued to a person, the person would be likely to engage in conduct that ‘might prejudice the security of Australia or a foreign country’.160

Clause 67 provides that the Minister must give copies of a security notice to the Operator and the Secretary of the Human Services Department.

A security notice comes into force on the day it is given to the Minister and remains in force until revoked by the Home Affairs Minister (clause 68). It must be annually reviewed by the Home Affairs Minister (clause 69) and may be revoked by written notice to the Minister and copies given to the Operator and the Secretary of the Human Services Department (clause 70). The procedures for the review of a security notice are not detailed.

In relation to security notices, the DSS submission to the Senate inquiry states:

A person’s access to redress will only be impacted in circumstances where the receipt of redress is relevant to the assessed security risk posed by the individual and the receipt of redress would adversely impact the requirements of security. This is to ensure that those individuals assessed to be engaged in politically motivated violence overseas, fighting or actively supporting extremist groups are covered. It is not intended that every person whose passport or visa has been refused or cancelled would lose access to redress, rather only in cases where it is appropriate or justified on security grounds.

The arrangements align with Australia’s existing counter-terrorism legislative framework by mirroring provisions contained in the Paid Parental Leave Act 2010 (sections 278A to 278L), Social Security Act 1991 (sections 38L to 38W) and A New Tax System (Family Assistance) Act 1999 (sections 57GH to 57GS).

161

The Australian Human Rights Commission noted that the stated justification for excluding persons with security notices in the Bill’s Statement of Compatibility with Human Rights ‘only refers to the use of “funds” and is therefore confined to the redress “payment”’. It argued that ‘[g]iven the object of the Scheme to recognise and alleviate the past injustices of institutional child sexual abuse, the Commission considers that non-monetary aspects of redress could still be offered to survivors the subject of security notices’.162

Chapter 4—Administrative matters Chapter 4 of the Bill deals with the review of determinations, nominees of applicants and protecting information under the scheme, including the assessment framework policy guidelines.

Review of determinations If the Operator has made a determination on a person’s application the person can apply to the Operator for a review (clause 73).

If an application for review is made the Operator must review the original determination or cause the original determination to be reviewed by an independent decision maker (who has been delegated the Operator’s power under the section and was not involved in the making the

160. Subparagraph 14(1)(a)(i) of the Australian Passports Act 2005. 161. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 10.

162. Australian Human Rights Commission, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 12.

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determination) (subclause 75(1)). DSS has noted that the independent decisions makers will make the ‘final decisions on applications for redress’.163

The reviewer (either the Operator or independent decision maker) must reconsider the original determination and make a review determination to affirm, vary or set aside and substitute the original determination (subclause 75(2)). However, in this review, the reviewer may only have regard to the information and documents that were available to the person who made the original determination (subclause 75(3)). The Explanatory Memorandum states:

The limitation placed on the internal reviewer to only have regard to the information and documents that were available to the person who made the original determination is to balance the need for an expedited application process for survivors with the burden of administration. Further, allowing the internal reviewer to request further information from survivors will create a high level of administrative burden, add to the potential re-traumatisation of survivors having to seek additional material and increase the operational costs for institutions to participate in the Scheme.

164

Lack of external review While the scheme contains an internal review process, there is no provision for external review of decisions under the scheme.165 In his second reading speech, the Minister stated this was ‘in line with feedback from institutions, survivors and the Independent Advisory Council on Redress following the royal commission's recommendation’ and would ‘provide survivors with access to independent and impartial internal review without subjecting them to potential retraumatisation’.166

In relation to the similar internal review arrangements in the previous proposed legislation, the Commonwealth Ombudsman expressed concern that ‘there appears to be no recourse to external review for applicants to the scheme’. He argued the internal review process in the scheme ‘should be complemented by at least one avenue of external review, probably judicial review given some of the novel administrative law concepts (such as the standard of ‘reasonable likelihood’ that also applies to our decisions) to guard against an incorrect decision being made’.167

The Law Council of Australia recommended subclause 73(5) be removed to allow new documents and information to be considered in the review. It stated ‘such a limitation appears unjustified and may lead to unjust outcomes’.168

Nominees The previous proposed legislation provided for the appointment of ‘payment nominees’ and ‘correspondence nominees’. This has been changed in the Bill to reflect feedback from participating jurisdictions that ‘payment nominees’ were unnecessary.169 The previous

163. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 6. 164. Explanatory Memorandum, op. cit., p. 58. 165. Schedule 3 of the Amendments Bill exempts decisions made under the scheme from judicial review under the Administrative

Decisions (Judicial Review) Act 1977 (Cth). 166. D Tehan (Minister for Social Services), ‘Second reading: National Redress Scheme for Institutional Child Sexual Abuse Bill 2018’, House of Representatives, Debates, 10 May 2018, p. 3640. 167. Commonwealth Ombudsman, Submission to Senate Community Affairs Legislation Committee, Inquiry into Commonwealth

Redress Scheme for Institutional Child Sexual Abuse Bill 2017 and related Bill, February 2018, pp. 3-4. 168. Law Council of Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 14. 169. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National

Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 12.

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arrangements for nominees have been replaced by a framework of ‘assistance nominees’ and ‘legal nominees’.

Clause 81 allows the Operator to appoint a person as an assistance nominee or legal nominee for an applicant. An assistance nominee can only be appointed with the consent of that person and the applicant. However, a legal nominee can be appointed if:

• under a law of the Commonwealth, a state or a territory the person has power to make decisions for the applicant in all matters that are relevant to the duties of a legal nominee

• the nominee gives written consent to the appointment and

• the Operator has taken into account any wishes of the applicant regarding the making of such an appointment.170

DSS has indicated that ‘[t]his type of nominee arrangement is intended for applicants with existing legal arrangements who may not be able to provide consent to such an arrangement (for example, if the person’s mental capacity is limited)’.171

Clause 83 provides that it is the duty of an assistance nominee or a legal nominee to act in the best interests of the person at all times. However, a nominee does not breach this duty if they reasonably believe when acting (or refraining from acting) that it is in the best interests of the person.

Clauses 84 and 85 outline the actions that can be taken by assistance nominees and legal nominees respectively. In particular, assistance nominees will be able to do any act that can be done by applicants, except for making an application for redress, accepting and declining offers of

redress, actions related to appointing a nominee or an act prescribed by the rules. A legal nominee will be able to do any act that can be done by the applicant, including accepting or rejecting an offer of redress.

A key issue in relation to nominees, noted by DSS in its submission to the Senate inquiry, is that accepting an offer of redress involves the applicant agreeing ‘to release responsible institution(s) from civil liability’. Accordingly, assistance nominees are ‘intended for applicants who have the capacity to provide consent to such an arrangement, but may prefer some assistance in engaging with the Scheme (for example, if the person is finding it too traumatic to engage with the Scheme)’.172

Clause 88 protects a person from liability for an offence against the legislation in relation to ‘any act or omission of the person’s nominee’. Clause 89 protects the nominee of a person from criminal liability from acts or omissions by the person or ‘anything done, in good faith, by the nominee in his or her capacity as nominee’.

People with Disability Australia expressed ‘reservations about how nominee provisions in legislation limit the participation of people with disability in decision-making about their lives’. It argued the ‘nominee provisions in this Bill emulate the outdated substitute decision-making

170. A note to clause 81 provides an illustrative example: ‘A person who may be eligible to be the legal nominee of the applicant is a person who, under a guardianship order or power of attorney, has power to make decisions for the applicant in all relevant matters’. 171. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National

Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 13. 172. Ibid., p. 12.

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frameworks that persist in other forms of legislation, yet are not human rights compliant’.173 The knowmore legal service characterised the changed nominee arrangements as an improvement.174

Protecting information under the scheme Division 1 of Part 4-3 deals with how protected information under the scheme may be obtained, recorded, disclosed or used. This includes disclosure in the public interest or for another specified purpose. A number of offences are also created for misconduct in relation to protected information. The Explanatory Memorandum notes that ‘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’.175

Clause 92 provides that ‘protected information’ means ‘information about a person or an institution that was obtained by an officer of the scheme for the purposes of the scheme’ and is held in the records of DSS or the Department of Human Services. This includes information to the effect that ‘there is no information’ held about a person or institution.

Clause 93 provides the ‘main authorisation’ for obtaining, recording, disclosing or using protected information. A person may obtain, make a record of, disclose or use protected information if it is done for:

• for the purposes of the scheme

• with the express or implied a consent of the person or institution to which the information relates or

• if the person believes on reasonable grounds that doing so is necessary to prevent or lessen a serious threat to an individual’s life, health or safety.176

A person may also use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person or institution (subclause 93(2)).

In its submission to the Senate inquiry into the Bill, the Law Council of Australia recommended the words ‘express or implied’ should be removed from this clause ‘so that the consent of the person or institution to which the information relates is required before the information is used or disclosed in the manner outlined in the Bill’.177

Clause 94 outlines an additional authorisation which provides the Operator may disclosure protected information provided by a person applying for redress to the nominee of that person.

Clause 95 allows the Operator to disclose protected information in the public interest or for another specified purpose.

Subclause 95(1) provides that the Operator may disclose protected information that was provided to, or obtained by, an officer of the scheme for the purposes of the scheme if:

173. People with Disability Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 2. 174. Knowmore, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, p. 8. 175. Explanatory Memorandum, op. cit., p. 63. 176. Ibid. 177. Law Council of Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress

Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 7.

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• the Operator certifies that it is necessary in the public interest in a particular case or class of cases and the disclosure is to such persons and for such purposes as determined by the Operator or

• the disclosure is to:

- a person who is expressly or impliedly authorised by the person or institution to which the information relates to obtain it - the Chief Executive Centrelink for the purposes of a Centrelink program - the Chief Executive Medicare for the purposes of a Medicare program - the head (however described) of a government institution, for the purposes of that

institution.

Subclause 95(2) provides for subsequent dealing with the disclosed protected information. A person to whom protected information is disclosed under subclause 95(1) may obtain, make a record, disclose or use the information ‘if the person does so for the purpose for which the information was disclosed’ under that subclause.

The Law Council of Australia expressed concerns regarding this clause and recommended that it be amended:

• to require the Operator to consider the impact disclosure of protected information might have on a person to whom that information relates

• to specifically identify the classes of persons or entities to whom the Operator may disclose protected information ‘in the public interest’.178

It also recommended that ‘if a decision to disclose protected information under proposed section 95 is made, the consent of the survivor should be sought prior to disclosure and, where that consent is refused, information should only be provided where it is de-identified’.179

Clause 96 provides the Operator may also disclose protected information if satisfied the disclosure is ‘reasonably necessary’ for the ‘relevant purposes’ of:

• the enforcement of the criminal law

• the safety or wellbeing of children.

The Operator may disclosure the protected information to a government institution that has functions that relate to the above purposes. However, before disclosing protected information related to a person who has applied for redress, the Operator ‘must have regard to the impact the disclosure might have on the person’.

If the protected information is disclosed to a government institution, then an employee or officer of the institution may obtain, make a record of, disclose or use the information, but only for a ‘relevant purpose’ in their capacity as an employee or officer of the institution.

Under subclause 96(5) the Operator can impose conditions to be complied with in relation to protected information which has been disclosed. Subclause 96(6) makes it an offence for a person subject to a condition to engage in conduct that breaches the condition. The maximum penalty for

this offence is imprisonment for two years or 120 penalty units ($25,200) or both.180

Clause 97 provides for obtaining, recording, disclosing and using protected information for a series of permitted purposes.

178. Ibid. 179. Ibid., p. 8. 180. Section 4AA of the Crimes Act 1914 provides that a penalty unit is currently equal to $210.

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Under subclause 97(1) a government official may obtain, make a record of, disclose or use protected information for the purposes of:

• the enforcement of the criminal law

• the safety or wellbeing of children

• investigatory, disciplinary or employment processes related to the safety or wellbeing of children or

• a purpose prescribed by the rules.

The Explanatory Memorandum clarifies that ‘this clause would allow states and territories to comply with existing reportable conduct schemes’.181

Subclause 97(2) provides for the disclosure of protected information by a person to a government institution if:

• the person is satisfied that the disclosure of protected information is reasonable necessary for a permitted purpose and

• a law of the Commonwealth, a state or territory requires or permits the person to disclose the information to a government institution that has functions that relate to that purpose.

Clause 98 provides an additional authorisation to persons engaged by participating institutions to obtain, make record of, disclose and otherwise use protected information for a specified purpose. The Explanatory Memorandum notes that this clause ‘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 for the use of protected information ‘to conduct internal investigations and disciplinary proceedings where, for example, an alleged perpetrator is still employed by, or associated with, the institution’.182

Clauses 99, 100 and 101 create offences for the misuse of protected information. All these offences have a maximum penalty of imprisonment for two years or 120 penalty units ($25,200) or both. 183

Clause 99 creates an offence where a person obtains, records, discloses or uses protected information and is not authorised or required by or under the Act to do so. However, this offence will not apply where the person did not obtain the information under, for the purposes of, or in connection with the scheme or where the person had already obtained the information before they obtained the information in connection with the scheme.184

Clause 100 creates an offence where a person solicits the disclosure of protected information from an officer of the scheme or another person and the disclosure would contravene this Division. An offence would be committed regardless of whether or not any information is disclosed.

Clause 101 contains two offences. Subclause 101(1) creates an offence where a person offers to disclose protected information about another person or an institution and the disclosure would contravene this Division. Subclause 101(2) creates an offence where person holds himself or herself out as being able to disclose (whether to a particular person or otherwise) protected information about another person or an institution.

181. Explanatory Memorandum, op. cit., p. 66. 182. Ibid. 183. Section 4AA of the Crimes Act 1914 provides that a penalty unit is currently equal to $210. 184. Explanatory Memorandum, op. cit., p. 67.

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Use and disclosure of the assessment framework policy guidelines As noted above, clause 33 allows the Minister to issue assessment framework policy guidelines. Access to these policy guidelines will be restricted by the provisions below.

Clause 102 provides the ‘main authorisation’ for officers of the scheme to obtain, make a record of, disclose to another officer of the scheme or use the assessment framework policy guidelines ‘for the purposes of the scheme’.

Clause 103 provides an ‘additional authorisation’ for disclosure and use of the assessment framework policy guidelines in accordance with the National Redress Scheme Agreement.

Clause 104 creates an offence where a person obtains, makes a record of, discloses or uses information contained in the assessment framework policy guidelines without authorisation. This offence will have a maximum penalty of two years imprisonment or 120 penalty units ($25,200) or both.

Other matters With some exceptions, clause 105 provides that a person must not be required to disclose protected information or information contained in the assessment framework policy guidelines to a court or tribunal in civil proceedings. It also provides that protected information and information contained in the assessment framework policy guidelines ‘are not to be published by any person, court or tribunal’.

In relation to this clause, the Explanatory Memorandum states that the ‘Scheme would be undermined if it were able to be used as a form of discovery in court proceedings’ and this would ‘also overload the administrative arm of the Scheme which would result in delays to the process of assessing applications’.185

Clause 106 provides protection for persons who disclose information ‘acting in good faith’ for the purposes of the scheme. In these circumstances the person is ‘not liable to any civil or criminal proceedings, or any disciplinary action, for disclosing the information’. Further, the person ‘cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct’.

Chapter 5—Participating institutions, participating groups and participating jurisdictions

Participating institutions For a person to be eligible for redress for sexual abuse or non-sexual abuse, a participating institution must be responsible for the abuse (subclause 108(1)).

Subclause 108(2) lists the types of participating institutions (which are further defined in later clauses). These are:

• Commonwealth institutions (clause 109)

• participating State institutions (clauses 110 and 111)

• participating Territory institutions (clauses 112 and 113) and

• participating non-government institutions (clause 114).

185. Ibid., p. 69.

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Ministerial declarations about participating institutions Clause 115 provides that the Minister may declare, by notifiable instrument, that an institution is a participating institution. However, the Minister cannot make a declaration unless an institution is within a participating jurisdiction and the institution has agreed to participate in the scheme. Similarly, a declaration cannot be made in relation to a defunct non-government institution or an unincorporated lone institution unless a person agrees to be a representative for the institution. Declarations can only be made within the first two years of the scheme (unless regarding a defunct institution or otherwise prescribed by the rules). Clause 116 provides circumstances for these Ministerial declarations to be revoked.

Participating defunct institutions A defunct institution (which is a government or non-government institution that no longer exists) can also become a participating institution (clause 117). A defunct institution must have a single representative (clause 118). The representative acts on the institution’s behalf and assumes its obligations and liabilities under the scheme (such as the obligation to provide a direct personal response to a person and the liability to pay funding contribution).

The representative for defunct Commonwealth, participating state and participating territory institutions is the relevant jurisdiction. For defunct participating non-government institutions the Minister must, by notifiable instrument, declare the person who has agreed to be the representative for the institution (clause 119).

Clause 123 provides that the obligations and liabilities of the legislation imposed on a participating defunct institution are taken to be imposed on the representative for the institution.

The Royal Commission recommended that ‘[w]here the institution in which the abuse is alleged or accepted to have occurred no longer exists but the institution was part of a larger group of institutions or where there is a successor to the institution, the group of institutions or the successor institution should fund the cost of redress’.186 The DSS submission states that the provisions in relation to defunct institutions in the Bill provide ‘a clear mechanism to allow existing institutions to take responsibility for defunct institutions, therefore maximising participation in the Scheme’.187 However, a successor non-government institution may agree to become a representative for the defunct predecessor, but it is not obliged to do so.

The provisions for defunct institutions may also create disparities in access to redress for survivors of institutional child sexual abuse where the responsible institution is now defunct. If the responsible institution was a government institution in a participating jurisdiction, the jurisdiction will become the representative and the survivor will be able to apply for redress under the scheme. However, if the survivor was sexually abused in a (now defunct) non-government institution, another person/institution will need to agree and be declared a representative for that defunct institution for it to be a participating institution under the scheme.

Participating lone institutions Clause 124 defines a ‘lone institution’ as a non-government, non-defunct institution which is not part of a participating group. It differentiates between ‘unincorporated lone institutions’ and ‘incorporated lone institutions’. While a participating incorporated lone institution ‘may’ have a

186. Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation report, op. cit., p. 334. 187. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 11. =

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representative, a participating unincorporated lone institution ‘must’ have a representative (clause 125). The Explanatory Memorandum states:

The requirement for an unincorporated lone institution to have a representative (which is a legal person) provides the Scheme with a safeguard in the event that the unincorporated institution (which is not a legal person) cannot meet any of its obligations under the Scheme. Without this requirement, it would be difficult for the Scheme to allow the participation of unincorporated institutions. This does not apply to incorporated lone institutions.

188

In particular, clause 131 provides that if a participating unincorporated lone institution is liable to pay a funding contribution under the scheme, then the institution and representative ‘are jointly and severally liable’. The Explanatory Memorandum notes ‘[t]his requirement provides the Scheme with a safeguard, in the event that the participating unincorporated lone institution is not able to pay a funding contribution’.189

Participating groups Clause 133 provides that two or more participating institutions may form a participating group for the purposes of the scheme. Under clause 134, the Minister may declare participating groups but must not for government institutions unless the relevant participating jurisdiction agrees. For a group of non-government institutions the Minister must not declare a participating group unless each institution agrees and ‘there is sufficient connection between each institution in the group’.

The DSS submission states that under the concept of ‘participating groups’ in the Bill ‘two or more institutions (known as ‘associates’) will be able to form to support all the various institutional structures that may wish to participate in the Scheme’:

To be able to form a participating group, the institutions must not be members of another participating group, and (if comprised of non-government institutions) be sufficiently connected (i.e. belong to the same faith denomination or “brand”). There are two key features of participating groups. The first is that, if an associate is liable to pay a funding contribution, then the associate and the group’s representative will be jointly and severally liable to pay that funding contribution. The second feature is that, where one associate is responsible, all associates of the group will be released from civil liability for abuse within the scope of the Scheme …

190

Participating jurisdictions Clause 142 provides the simplified outline concerning where jurisdictions are participating jurisdictions:

Only participating jurisdictions are part of the scheme. While the Commonwealth and participating Territories are automatically participating jurisdictions, a State is only a participating jurisdiction (and therefore part of the scheme) if it makes a law that gives certain legislative powers to the Commonwealth Parliament for the purposes of paragraph 51(xxxvii) of the Constitution. This is known as a State reference. Section 144 deals with this

Broadly, if a State is not a participating State, then abuse of a person that occurred inside that State will not be within the scope of the scheme. This means that the person will not be eligible for redress for that abuse.

188. Explanatory Memorandum, op. cit., p. 78. 189. Ibid., p. 80. 190. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, pp. 10-11.

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The Commonwealth’s head of power to legislate based on matters referred by the States (the state referral power) is found in section 51(xxxvii) of the Constitution. Clause 144 of the Bill provides that a state is a participating state where its Parliament has legislated to refer:

• ‘the text reference’, which is ‘the matters to which the initial referred provisions relate, to the extent of making laws with respect to those matters by including the initial referred provisions in the original version of this Act’ and

• ‘the amendment reference’, which is ‘the referred national redress scheme matters [set out in clause 145]… to the extent of making laws with respect to those matters by making express amendments of this Act’.

Alternatively, under clause 144, a state is a participating state where its Parliament has legislated:

• to adopt the relevant version of the National Redress Scheme Act and

• refers to the Commonwealth an ‘amendment reference’ (as outlined above).

Essentially, to participate in the scheme, a state must legislate to refer both the text of the proposed legislation (or adopt it, if already enacted) and a general ‘referred national redress scheme matters’ to the Commonwealth (to facilitate the future amendment of the scheme).

Subclause 144(4) sets out matters that do not affect a state’s status as a participating state for the purposes of the scheme. These matters include if the state’s referral legislation will terminate ‘in particular circumstances’.

Subclause 144(5) provides that a state cannot become a participating state if it has not joined the scheme before the second anniversary of the scheme start date or a later date prescribed by the rules. The Explanatory Memorandum notes that this ‘has been included to ensure each State elects to opt in to the scheme early in the 10-year duration of the Scheme, to enable redress be provided to survivors in a timely manner’.191

Clause 145 clarifies the ‘referred national redress scheme matters’ for the amendment reference from the participating states to the Commonwealth. In particular, the matters referred to the Commonwealth do not include the ‘making of a law to the extent that that law would operate to prevent or limit the operation of any State redress mechanism’. A ‘State redress mechanism’ is defined in subclause 145(4) to mean a scheme ‘for or in respect of persons who have suffered institutional child sexual abuse in the State’ and ‘the jurisdiction of a court or tribunal to grant compensation or support for or in respect of victims of crime (including crime relating to institutional child sexual abuse) and any associated matters’.

Implications for amendment of the Bill New South Wales and Victoria have now passed legislation referring matters to the Commonwealth to facilitate the operation of the scheme.192 These included ‘text-based’ referrals to the Commonwealth under section 51(xxxvii) of the Constitution (where the relevant scheduled text is the provisions of the Bill) for the purposes of establishing a National Redress Scheme. Subsection 4(1) of both the NSW and Victorian legislation refers matters to the Commonwealth, ‘but only to the extent of making laws with respect to those matters by including the initial referred provisions in a Commonwealth Act enacted in the terms, or substantially in the terms, set out in the scheduled text’.

191. Explanatory Memorandum, op. cit., p. 86. 192. National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (NSW); National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (Vic).

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Amendments to the Bill which make a ‘substantial’ change from the scheduled text of the referral legislation may raise questions about the constitutional validity of the referral from the states to the Commonwealth. The DSS submission to the Senate inquiry also made this point:

Any changes made to the National Bill would mean the National Bill would not align with the Schedule included in state referral Acts. This would render the referral ineffective and mean that the National Bill could not operate in States which had passed their referral Bills before the changes were made to the National Bill. Any amendments to the National Bill in the Commonwealth Parliament would require the negotiation, reintroduction and passage of a state referral Bill through any state Parliament that has passed its legislation, thereby delaying the 1 July 2018 Scheme start date. Any such delay would represent an adverse outcome for elderly individuals who experienced institutional child sexual abuse.

193

The Tasmanian Government’s submission to the Senate inquiry outlined that its ‘agreement to participate in the Scheme is also contingent on many of the policy parameters agreed with the Commonwealth Government, which are now largely reflected in the National Bill’. It stated to the Committee that ‘should any changes be made to the National Bill following your inquiry, the Tasmanian Government's participation in the Scheme may need to be re-negotiated’.194

The separate ‘amendment referral’ in the NSW and Victorian referral legislation allows for the future amendment of the legislation (but only after it is enacted).195 The Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse provides details regarding the agreed process for any changes to the scheme. This includes a Ministers’ Redress Scheme Governance Board which will ‘[d]iscuss and agree on proposed amendments to primary legislation, rules and policy guidelines’.196

Under the Intergovernmental Agreement changes to the primary legislation and other significant issues will be subject to a ‘two-stage voting process’ which requires two-thirds of parties plus jurisdictions representing 75 per cent financial liability for the scheme to agree. However, the intergovernmental agreement also provides that unanimity will be required ‘for changes culminating in increased participating costs to states and territories and any major design decisions’. These major design decisions include ‘changes to the maximum redress payment amount’.197

Participating jurisdictions providing counselling and psychological services under the scheme Clauses 146 and 147 provide that the Minister must declare that a participating jurisdiction is a ‘declared provider’ of counselling and psychological services under the scheme if notified:

• arrangements are in place in the jurisdiction for the delivery of counselling and psychological services in accordance with the National Service Standards and

• the jurisdiction requests to become a declared provider of counselling and psychological services under the scheme.

193. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 2. 194. Tasmanian Government, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 7 June 2018, p. 1. 195. See subsection 4(2) of the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018

(NSW) and subsection 4(2) of the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (Vic). 196. COAG, Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse, op. cit., p. 16. 197. Ibid., p. 18.

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Where a participating jurisdiction becomes a ‘declared provider’ then that jurisdiction will provide for the delivery of those services to those persons who are entitled to redress and live in that jurisdiction. The DSS submission notes:

[i]f a jurisdiction has elected to provide state based services, they must adhere to National Service Standards for the delivery of counselling and psychological services for the redress cohort which are publicly available as a schedule to the Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse.

198

Chapter 6—Financial matters

Liability for funding The Explanatory Memorandum notes that the scheme is ‘intended to operate on a responsible entity pays basis as recommended by the Royal Commission’.199 While the Commonwealth will be responsible for the initial costs of redress payments, counselling and psychological components of redress and administration of the scheme, the responsible participating institutions will be liable to pay funding contributions to reimburse the Commonwealth for their share of the costs.

Clause 149 provides that, if in a quarter, a person becomes entitled to redress then each participating institution determined to be responsible is liable to pay funding contribution for that quarter.

The funding contribution for a participating institution for a quarter consists of two elements:

• the redress element for the institution for a quarter and

• the scheme administration element for the institution for a quarter (clause 150).

The redress element of the funding contribution is an amount equal to the sum of the amounts for each person entitled to redress comprising:

• the amount of the institution’s share of the costs of the redress payment and

• the amount of the institution’s share of the costs of the counselling and psychological component of redress for the quarter, for each person who is entitled to redress (clause 151).

Clause 152 provides the scheme administration element of the funding contribution for a participating institution for a quarter is the amount equal to the institution’s contribution to the costs of the administration of the scheme for the quarter (as determined by the Operator in accordance with the rules).

The Explanatory Memorandum clarifies that internal review is not available for decisions by the Operator concerning the elements of the funding contribution. It states that, by agreeing to participate in the scheme, participating institutions have accepted that the Operator will make these determinations.200 Clause 153 provides that funding contributions are due and payable on a business day specified in notices the Operator will give to participating institutions and not earlier than 30 days after the date of the notice.

Clause 154 provides for a late payment penalty where the funding contribution of a participating institution remains unpaid a calendar month after being due. The Explanatory Memorandum outlines the formula for calculating the late payment penalty is ‘worked out by multiplying the

198. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 6. 199. Explanatory Memorandum, op. cit., p. 88. 200. Ibid., op. cit., p. 90.

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amount of the unpaid funding contribution (as at the start of the calendar month) by 0.1 divided by 12’.201 However, the Operator may defer the payment of a late payment penalty (subclause 154(3)).

The funding contribution and late payment penalty are payable to the Operator on behalf of the Commonwealth (clause 155). However, the Operator can, on behalf of the Commonwealth, waive a funding contribution or late payment penalty if ‘satisfied that there are exceptional circumstances justifying the waiver’ (clause 156). The Explanatory Memorandum states the Operator could use this waiver in circumstances where ‘recovery would cause a participating institution that is a charitable organisation to cease operating’.202

If a participating institution is dissatisfied by the Operator’s decision in relation to a waiver, it can request the Operator ‘reconsider the decision’ (clause 157). After receiving the request, the Operator must review the decision or cause the decision to be reviewed by a person delegated with the Operator’s power and who was not involved in the making of the decision. However, the other requirements which apply to the appointment and conduct of the ‘independent decision-makers’ under the scheme do not appear to apply to the person undertaking this review (see below for more information). The Explanatory Memorandum states:

An internal review is a quick and inexpensive means of re-examining decisions … It was considered appropriate to make decisions on waiving funding contributions and late payment fees reviewable because these are decisions that directly affect a participating institution and their ability to effectively

participate in the Scheme. 203

Clause 158 provides the relevant state and territories will be liable for funding contributions where a state institution or a territory institution is a body corporate and the imposition of liability on the institution would impermissibly:

• impose taxation on the institution or

• acquire property of the institution otherwise than on just terms.

Liability of the Commonwealth for counselling and psychological services contribution Under the scheme, the Commonwealth will be liable to pay counselling and psychological services contributions to participating jurisdictions where those jurisdictions are delivering services under the scheme.

Clauses 159 provides that the Commonwealth is liable to pay a ‘counselling and psychological services contribution’ to a participating jurisdiction, for a quarter, where:

• the jurisdiction is a declared provider of counselling and psychological services and

• the jurisdiction is required under paragraph 51(2)(b) to provide counselling and psychological services to a person.

Clause 160 provides that the ‘counselling and psychological services contribution’ is an amount ‘equal to the sum of the amounts of the counselling and psychological component of redress for each person in relation to whom the jurisdiction becomes required under paragraph 51(2)(b) in the quarter to provide for the delivery of counselling and psychological services’.

201. Ibid., p. 90. 202. Ibid., p. 88. 203. Ibid., pp. 91-2.

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Appropriation As noted in the financial implications section above, clause 161 provides that the Consolidated Revenue Fund is appropriated to the extent necessary for the purposes of payment and discharge of the costs incurred by the Commonwealth in making:

• redress payments

• counselling and psychological services payments and

• counselling and psychological services contributions.

Funders of last resort The Royal Commission observed that there will be cases ‘where institutions in which abuse occurred no longer exist’ and ‘cases where institutions that still exist have no assets from which to fund redress’. It stated:

Funding for redress for survivors of abuse in these institutions will need to come from elsewhere. Leaving these survivors without access to the redress that is available to others would fall short of the requirement in our Terms of Reference of ‘ensuring justice for victims’.

The community is entitled to look to governments to meet an identified community need from their revenue sources rather than impose the obligations of one institution either on another institution or on individual survivors.

We are satisfied that governments should act as funders of last resort on the basis of their social, regulatory and guardianship responsibilities. 204

The Royal Commission recommended that ‘Australian Government and state and territory governments should provide “funder of last resort” funding for the redress scheme or schemes so that the governments will meet any shortfall in funding for the scheme or schemes’.205

Under the previous proposed legislation, the Commonwealth or a self-governing territory could be a ‘funder of last resort’ for specified non-government institutions declared by the Minister.206 However, this approach is changed under the Bill.

Clause 163 provides that a participating government institution (rather than a jurisdiction) is the funder of last resort for a defunct institution where a determination is made by the Operator under paragraph 29(2)(i). This is a determination that the participating government institution is ‘equally responsible’ with a defunct institution for the abuse and that the defunct institution is listed for the participating jurisdiction.

Clause 164 provides for the listing by the Minister of defunct institutions for a participating jurisdiction, which must be non-government institutions not participating in the scheme. However, the Minister must not list a defunct institution:

• for the Commonwealth or a participating territory unless satisfied the relevant jurisdiction has agreed, in the way prescribed by the rules, to the institution being listed (subclause 164(3))

• for a participating state unless satisfied the state has agreed, in a way provided for in the state’s referral or adoption legislation, to the institution being listed (subclause 164(4)).

Clause 165 contains special rules for funder of last resort cases. In particular, where a participating government institution is the ‘funder of last resort’ for the defunct institution and is equally

204. Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation report, op. cit., p. 32. 205. Ibid., p. 34. 206. Clauses 66 and 67, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.

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responsible for the abuse of a person it will be liable ‘for what the defunct institution would have been liable to pay in relation to providing redress to the person’.

As noted above, subclause 15(3) sets out that an institution is equally responsible for the abuse of a person if:

(a) the institution and one or more other institutions are approximately equally responsible for the abuser having contact with the person; and

(b) no institution is primarily responsible for the abuse of the person.

Scope of funder of last resort In his second reading speech, the Minister stated:

In cases where a government is determined to be equally responsible, they may be determined to be the funder of last resort. This will only occur when the other equally responsible institution is a defunct non-government institution. Where a funder-of-last-resort arrangement exists, the government that shares responsibility will pay the full amount of redress. The purpose of the funder-of-last-resort policy is to pick up shortfalls in funding where an institution no longer exists. It is not intended to pick up liability for institutions that have the capacity to opt in and choose not to.

207

In relation to the funder of last resort arrangements the Explanatory Memorandum states:

In some circumstances there may be no responsible participating institution for a particular instance of abuse because the relevant institution no longer exists. Where there is an appropriate level of shared responsibility, it will be open to a participating government institution to step in to meet the cost of providing redress for survivors of that abuse.

208

Concerns were raised by submitters to the Senate inquiry regarding the scope of the funder of last resort arrangements. Law firm Maurice Blackburn argued that that the Bill should be amended so that ‘a government may be called upon to be “funder of last resort” even in cases where the government is not equally responsible for the abuse’. Otherwise, the Bill would create ‘a class of survivor who misses out on redress merely because the abuse occurred in an independent institution which is now defunct’.209 The Centre for Excellence in Child and Family Welfare also recommended that participating jurisdictions should be responsible for the redress of survivors where the responsible institution is defunct. It stated:

The Bill is silent on situations where a survivor was sexually abused in a now defunct organisation, but a government institution is not equally responsible for the abuse. It appears that in these situations a survivor will not be eligible for redress under the scheme. This means that the survivor will have no recourse in respect of the abuse suffered, either through the redress scheme or by civil litigation.

210

It is unclear how many survivors of institutional child sexual abuse will benefit from the funder of last resort arrangements. For example, the knowmore legal service observed in its Senate inquiry submission that the equally responsible requirement ‘is a higher test than that of “shared responsibility” that was in the previous Bill’. It was concerned ‘this change may operate to exclude some survivors where the participating Government had some role in their placement in an

207. D Tehan (Minister for Social Services), ‘Second reading: National Redress Scheme for Institutional Child Sexual Abuse Bill 2018’, House of Representatives, Debates, 10 May 2018, p. 3640. 208. Explanatory Memorandum, op. cit., p. 94. 209. Maurice Blackburn, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for

Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 10. 210. The Centre for Excellence in Child and Family Welfare, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 2.

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institution, but seeks to establish to the Operator that these acts did not amount to “equal responsibility” on its part for the abuse of the person’.211

Debt recovery The Bill includes provisions for the recovery of debts due to the Commonwealth under the scheme.

Clause 167 provides that the Commonwealth can recover amounts in a number of circumstances. These include where:

• the amount was paid to the wrong person or institution

• the amount exceeds the amount payable to the recipient

• the 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

• the recipient was required to notify the Operator under clause 181 that they have been sentenced to imprisonment for five years or more and, if notified, the amount would not have been paid.

Clause 168 provides that a funding contribution or late payment penalty that is due and payable by the institution or a person may be recovered as debt due to the Commonwealth.

A debt due to the Commonwealth under this Part is recoverable by the Commonwealth in a court of competent jurisdiction (clause 169). The Explanatory Memorandum notes ‘[t]his will enable legal proceedings to be commenced in the most appropriate jurisdiction and allow the matter to be heard at the lowest level necessary’.212

Clause 170 allows the Operator to enter into arrangements for the payment of a debt.

Clause 171 provides for the recovery of amounts directly from financial institutions where the Operator is satisfied that a payment was not made to the intended person. In these circumstances the Operator can give notice to the financial institution (subclause 171(2)). Subclause 171(3) creates an offence if a financial institution does not comply with the notice. The penalty is 300 penalty units ($63,000). The Explanatory Memorandum states ‘[t]he penalty is considered to be

appropriate for a financial institution so as to deter the institution from failing to comply with a notice’.213 Subclause 171(4) provides a defence to prosecution if the financial institution can prove that it was incapable of complying with the notice.

Subclause 171(5) provides that any amount that has been paid by a financial institution to the Commonwealth pursuant to this clause reduces the amount of any debt in clause 167 (which creates a debt where an amount was paid to a wrong person or institution).

Clause 172 provides that if the Commonwealth recovers an amount where a participating institution has already paid a contribution, the Commonwealth must repay the institution.

211. Knowmore, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, p. 8. 212. Explanatory Memorandum, op. cit., p. 98. 213. Ibid., p. 99.

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Chapter 7—Other matters

Application of this Act Clause 174 sets out the constitutional basis for the legislation which emphasises the reliance on matters referred by the states under paragraph 51(xxxvii) of the Constitution in relation to sexual abuse, and related non-sexual abuse which occurred in a participating State. In non-participating states, the Commonwealth’s power to legislate for the scheme is limited. For the territories, section 122 of the Constitution gives the Commonwealth power to legislate for those jurisdictions. For application outside of Australia, clause 174 highlights the Commonwealth’s external affairs power (paragraph 51(xxix)) of the Constitution.

Clause 175 provides for the concurrent operation of the legislation with state and territory laws and adds:

Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory merely because that law provides for redress (however described) to be provided to a person for abuse suffered by the person.

Clause 176 extends application of the legislation ‘within and outside Australia’ and ‘to every external Territory’.

Clause 177 provides that ‘[t]his Act binds the Crown in each of its capacities’.

The National Redress Scheme Rules Clause 179 provides the Minister with a broad power to, by legislative instrument, make rules prescribing matters:

• required or permitted by the legislation to be prescribed by the rules or

• necessary or convenient to be prescribed for carrying out or giving effect to the legislation.

This includes rules prescribing matters for

• overriding, for the purposes of the scheme, any provisions of settlement agreements or deeds:

- relate to confidentiality or - would inhibit access to, or the operation of, the scheme. Despite section 14 of the Legislation Act 2003, the rules may apply, adopt or incorporate any matter contained in the assessment framework as in force or existing from time to time.214

However, the rules may not:

• create an offence or civil penalty

• provide powers of:

- arrest or detention or - entry, search or seizure • impose a tax

• set an amount to be appropriated from the Consolidated Revenue Fund or

• directly amend the text of this legislation.

214. Section 14 of the Legislation Act imposes restrictions on the extent to which legislative instruments can incorporate matters by reference to external documents. This restriction can be overcome by express provision, as provided in subclause 179(3) of the Bill.

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National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 The DSS submission to the Senate inquiry includes a ‘factsheet’ on National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 (the Rules). It notes that the Rules are ‘currently the subject of negotiations with jurisdictions’ and will be ‘finalised over the coming month, with the aim for them to commence on 1 July 2018’.215 The factsheet contains an overview of the key policies likely to be contained in the Rules. It provides the Rules will:

• specify circumstances where a participating institution will be automatically deemed to be equally responsible, which is likely to include where a state or territory government was a legal guardian of a child that was placed in the care of another institution, and where the abuse of the child was connected to a cadets program associated with the Department of Defence

• specify circumstances where an institution will be deemed not responsible including where ‘a government agency only had a regulatory or funding role, or where an institution has paid court ordered compensation or damages to a person for the same abuse for which the person is claiming redress’

• exclude from the scheme any sexual abuse perpetrated by a child, unless the abuse involved physical contact with, or penetration of, another child

• prescribe that the Operator will consult with relevant state and territory Attorneys-General when considering whether an incarcerated person should be allowed to apply to the scheme

• prescribe that applications made by children will be determined after they turn 18 years old and that they will be invited to provide further information to support their application at that time

• provide further detail for calculating redress and apportioning costs across liable institutions including grouping abuse into “sets” for the purpose of applying the monetary assessment framework

• specify payments that are not to be considered relevant prior payments, and therefore not deducted from an applicant’s redress payment, including statutory compensation payments such as those paid by the Department of Veterans’ Affairs, and payments made to cover medical expenses

• allow a determination to be revoked where the Operator receives new information that affects the determination, and requires a determination to be revoked where that information was about a payment made after the determination

• specify the prerequisites for making a declaration that an institution is participating in the scheme, including that their agreement is in writing, and that they satisfy the Minister that their financial obligations under the scheme will be met

• prescribe the method for working out an institution’s share of the administration costs for the scheme per billable quarter

• prescribe that prior agreements or deeds that would have the effect of preventing or prohibiting a person from applying for redress are waived

• prescribe the circumstances in which the Operator may disclose protected information in the public interest and

• provide a number of administrative arrangements, such as prescribing circumstances where notices should be provided to the person, or the participating institution, and when certain agreements or information needs to be provided in writing.216

215. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, Appendix 1, p. 17. 216. Ibid., pp 17-18.

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Concerns regarding the breadth of matters in the rules Some institutions and legal groups expressed concern that many important aspects of the scheme were subject to changes in the scheme rules. These aspects include key components such as entitlement, eligibility and when institutions are responsible for abuse under the scheme.217 For example, the Law Council of Australia has recommended that the ‘eligibility criteria for the Scheme should be established in the Bill and not be subject to amendment by way of the rules’.218 Relationships Australia supported the use of rules to modify operation of the scheme when this was to the benefit of survivors, but had ‘serious concerns’ about the lack of scrutiny of new arrangements that may operate to the detriment of survivors. It commented:

As presently framed, however, the Bill presents some significant concerns; in particular, by making actual operation of the Scheme significantly the matter for the making of rules that will be out of reach of ordinary means of Parliamentary scrutiny. A particular concern is presented by subclauses 12(3) and (4), which provide that rules may both extend eligibility and exclude eligibility. The Explanatory Memorandum rightly notes that, in a Scheme intended to operate over the course of a decade, unforeseen circumstances (including unforeseen groups of survivors) may come to light, and that it is highly desirable that there be a mechanism for quickly recognising their entitlements. However, while an absence of the scrutiny to which Bills and regulations are ordinarily subject may be prudent and compassionate when applying to the benefit of survivors, it should occasion disquiet where exclusionary measures, which will operate to the detriment of individuals, are concerned.

219

Giving notices for the purposes of the scheme Clause 181 requires a person, if they have made an application, and are then subsequently sentenced to imprisonment to five years or longer, to notify the Operator in accordance with the rules. This is related to the special rules for applicants with serious criminal convictions above (clause 63).

Clause 182 provides the rules may require or permit the Operator to give notices to persons or institutions about a matter relating to the legislation. If the legislation requires the Operator to give a notice, he or she can give the notice ‘in any way’ they ‘consider appropriate’.

Delegation Clause 183 allows the Minister to delegate his or her powers or functions under the legislation to the Operator or ‘a person who holds or performs the duties of an SES Band 3 position, or an equivalent position, in the Department’. However, the Explanatory Memorandum notes that ‘[t]he Minister’s powers and functions relating to exemptions for criminal convictions and making rules for the purpose of the Scheme or engaging independent decision makers, as set out in clause 179 or 185 respectively, cannot be delegated’. Delegates must also comply with any directions of the Minister.220

Clause 184 allows the Operator to delegate his or her powers or functions under the legislation (other than functions under sections 29 (under which the Operator must make a determination on an application); section 75 (which requires a determination to be reviewed on application) and section 190 (which allows the Operator to apply to a court for the imposition of a civil penalty) to an officer of the scheme. Delegates must comply with any directions of the Operator. The

217. Law Council of Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 11. 218. Ibid. 219. Relationships Australia, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme

for Institutional Child Sexual Abuse Bill 2018 and related Bill, 31 May 2018, p. 9. 220. Explanatory Memorandum, op. cit., p. 103.

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Operator can delegate his or her functions and under clauses 29 and 75 to independent decision-makers. These delegates are not required to comply with any directions of the Operator.

Independent decision-makers Clause 185 provides for the engagement of independent decision-makers to determine applications for redress and review redress determinations made under the scheme.

The Operator, with the approval of the Minister, may engage independent decision-makers. Before giving approval, the Minister must consult with appropriate Ministers from the participating states and territories in accordance with the National Redress Scheme Agreement. The Explanatory Memorandum states:

The consultation process will include participating States and participating Territories nominating prospective decision-makers that are independent from responsible institutions to ensure fairness, transparency, and public trust in the Scheme. The selection of prospective independent decision-makers will include a probity and vetting process undertaken by the Department to identify suitable candidates. The engagement of suitable candidates will then be subject to agreement from participating States and Territories. This consultative process provides appropriate legislative guidance to engage appropriate independent decision-makers, whilst retaining flexibility to respond to cohorts of survivors coming through the Scheme as they present.

221

The DSS submission contains further information regard the intended approach to the engagement of independent decision-makers for the scheme:

To ensure independence, the Department will conduct a probity process for all Independent Decision Makers before appointment. This will require all Independent Decision Makers to declare any potential conflicts of interest, undertake a national police history check, a working with children check and a social media check. The process will be undertaken by the Department.

It is expected that people appointed as Independent Decision Makers will have knowledge and experience in social welfare, case management and/or the legal sector, and an ability to develop an understanding and knowledge of the survivor cohort and the history of the Royal Commission into Institutional Responses to Child Sexual Abuse. Independent Decision Makers will also be required to undertake a comprehensive training to ensure they are trauma-informed.

222

Independent decision-makers will be subject to the general duties of officials set out in the Public Governance, Performance and Accountability Act 2013 (and any relevant rules under that Act). A note indicates these duties include the duty of care and diligence, the duty to act honestly, in good faith and for a proper purpose, the duties relating to the use of information and position, and the duty to disclose interests.

Miscellaneous

Annual report The previous proposed legislation for the Commonwealth Redress Scheme included a Division on reporting to Parliament which set out detailed requirements for contents of the annual report on the operation of the scheme.223 These requirements included details concerning where institutions failed to provide information to the Operator and failed to give direct personal

221. Ibid., p. 104. 222. Australian Government Departments, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 30 May 2018, p. 6.

223. Clause 122, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.

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responses. Under the Bill, clause 187 provides for an annual report to be presented to Parliament which will contain any matters prescribed in the rules.

In its submission to the Senate inquiry, the law firm Maurice Blackburn noted ‘with disappointment that the “name and shame” provisions noted in the previous iteration of the draft Bill have been removed’. It advocated that the reporting requirements should be broadened to inform the Parliament of more detail about the operation of the scheme and highlighted the Royal Commission’s recommendation on this matter.224

Civil penalty provisions Clause 190 provides that the civil penalty provisions of the Bill are enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 and includes further details in relation to the operation of that legislation including authorised applicants, relevant courts and application.

Review of the scheme The previous proposed legislation required a single review of the operation of the scheme on the eighth anniversary of the scheme start day or a day after the second anniversary prescribed by the rules.225 In comparison, clause 192 of the Bill requires two reviews of the scheme to be conducted—one starting on the second anniversary of the scheme start day and the other starting on the eighth anniversary of that day. The rules can prescribe a later date to start those reviews.

Clause 192 also includes a detailed list of matters which the reviews must consider. These matters reflect a broad range of areas concerning the scheme’s operation. For example, one of the matters the reviews must consider is ‘the implications of the scheme’s design for survivors (including Indigenous and child migrant survivors, as well as survivors who are still children or who have a criminal conviction)’. The eighth year anniversary review must also consider ‘the results of any other review or evaluation conducted in relation to the operation of the scheme’.

Sunset of the scheme Clause 193 provides the sunset day of the scheme will be the tenth anniversary of the start date, or a later day prescribed by the rules. However, the rules may prescribe matters of a transitional nature (subclause 193(3)) and may provide that certain provisions of the legislation continue to apply, or continue to apply in a modified way, after the scheme sunset day (subclause 193(4)). The capacity of the rules to extend the scheme appears limited to one year. All legislative instruments (including the rules) made under the legislation are repealed on the first anniversary of the scheme sunset day (subclause 193(6)).

Amendments Bill As noted above, the Amendments Bill consists of five schedules which contain consequential amendments in relation to the establishment of the scheme. Schedules 1 to 3 are similar to the consequential amendments proposed for the Commonwealth Redress Scheme. Schedules 4 and 5 contain consequential amendments which were not previously included.

Schedule 1—National redress scheme payments exempt from income tests Schedule 1 will amend social security and veterans’ entitlement legislation to exempt payments made under the scheme from income tests.

224. Maurice Blackburn, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 12. 225. Clause 128, Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017.

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Item 1 of Schedule 1 will insert proposed paragraph 8(8)(jc) into the Social Security Act 1991 (Cth). This means a payment under the Scheme will be an ‘excluded amount’ and will not be included as income for the purposes of that Act.

Item 2 of Schedule 1 will insert proposed paragraph 5H(8)(mb) into the Veterans' Entitlements Act 1986 (Cth). Similarly, this makes a payment under the scheme an ‘excluded amount’ which will not be included as income for the purposes of that Act.

The National Social Security Rights Network (NSSRN) supported the proposed amendment ‘to exempt redress scheme payments from income tests under social security law’. However, it was concerned ‘redress scheme payments may still impact on a person’s social security entitlement’ as there were no amendments to exempt redress scheme payments from social security asset assessments. This could mean ‘some social security recipients may experience a reduction or cancellation of their income support or pension payments’. The NSSRN proposed an ‘additional amendment to [section]1118 of the Social Security Act 1991 (Cth) to include payments under this redress scheme, and any gifts or purchases made from these payments, as exempt assets for the purposes of social security asset assessments’.226

Schedule 2—National redress scheme payments non-divisible property in bankruptcy Schedule 2 will insert proposed paragraph 116(2)(ga) into the Bankruptcy Act 1966 (Cth).

This will mean that a payment under the Scheme will not be able to be divided among creditors for the purposes of bankruptcy. This protection will extend whether the payment was received before or after the person became bankrupt and whether or not the person suffered the sexual abuse to which the payment relates (in the event another person receives the payment, such as a nominee appointed under proposed Part 4-4 of the Bill).

Schedule 3—National redress scheme decisions exempt from judicial review Schedule 3 will make an amendment which will mean that decisions under the scheme will not be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The Explanatory Memorandum states:

Exempting a decision made under the Scheme from the Administrative Decisions Judicial Review Act promotes the objects of the Scheme by ensuring a timely response to eligible survivors of institutional child sexual abuse. The Scheme has been developed with a trauma-informed approach so that judicial review processes will not be required. Judicial review may cause undue administrative delays under the Scheme.

227

It notes that where an applicant is dissatisfied with a decision made under the scheme, they will be able to apply for an internal review of the decision (undertaken by the Operator or an independent decision-maker). This approach is ‘intended to prevent re-traumatising the applicant through having to re-tell their story of past institutional child sexual abuse in an action under the Administrative Decisions Judicial Review Act’.228

In considering the same amendment for the previous legislation, the PJCHR raised issues regarding the compatibility of the measure with the right to a fair hearing and questioned the absence of

226. National Social Security Rights Network, Submission to Senate Community Affairs Legislation Committee, Inquiry into National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, p. 2. 227. Explanatory Memorandum, op. cit. p. 111. 228. Ibid.

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external merits review and removal of judicial review.229 It concluded its examination of these issues but recommended ‘that the operation of the internal review mechanism be monitored to ensure that survivors have sufficient opportunities to have their rights and obligations determined by an independent and impartial tribunal’.230 The compatibility statement for the Bills notes:

The Government intends to monitor the Scheme’s internal review mechanism, including through broader reviews of the Scheme’s implementation. General information relevant to internal review may also be detailed in the Scheme’s annual report to the Minister (for presentation to the Parliament) and also has the capacity to be scrutinised through the Scheme’s governance arrangements.

231

The Australian Human Rights Commission noted:

While the Consequential Amendments Bill excludes judicial review via the ADJR Act, it does not purport to exclude Australia’s constitutionally-protected avenue of judicial review -nor could it do so in conformity with the Australian Constitution. 232

In practice, this means that people wishing to challenge

the legality of a decision made under the Scheme would still be able to do so, but would have access only to the more complex and cumbersome avenue protected by the Constitution.

Moreover, a person could not challenge a decision under the Scheme on the basis that they disagree on the merits. It is central to the rule of law, as well as international human rights law, that judicial review be readily available to ensure that the executive branch of government acts lawfully. There is a public interest, as well as a personal interest, in there being a clear and simple means of ensuring that the Scheme acts lawfully. By excluding access to the ADJR Act, this would not exclude judicial review altogether; rather, it would simply make it harder for an individual to correct that legal error.

233

It recommended that the Amendment Bill be amended to permit judicial review of decisions under the scheme.234

Schedule 4—Disclosure and protection of information under the national redress scheme Item 1 of Schedule 4 to the Amendments Bill amends Schedule 3 of the Freedom of Information

Act 1982 (Cth) which lists secrecy provisions in other legislation. The Explanatory Memorandum notes that this amendment means that ‘protected information’ (defined in subclause 92(2) of the Bill), the subject of the secrecy offences in proposed subclauses 96(6), 99(1), 100(1), 101(1), 101(2) and clause 104, would not be required to be disclosed under the Freedom of Information Act. It states:

This exemption supports the trauma informed approach of the Scheme, ensuring that survivors’ information is adequately protected. It also protects institutions’ information to protect against fraudulent applications being made to the Scheme. The exemption protects the integrity of the operation of the National Redress Scheme, removes any uncertainty about the operation of the information publication scheme in relation to the assessment framework policy guidelines, and makes it transparent that protected information under the National Redress Scheme is exempt under the Freedom of Information Act 1982.

235

229. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 2, 13 February 2018, pp 73-96. 230. Ibid., p. 96. 231. Explanatory Memorandum, op. cit. p. 127. 232. See section 75 of the Constitution. 233. Australian Human Right Commission, Submission to Senate Community Affairs Legislation Committee, Inquiry into National

Redress Scheme for Institutional Child Sexual Abuse Bill 2018 and related Bill, 1 June 2018, pp. 14-15. 234. Ibid., p. 15. 235. Ibid., p. 4.

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Items 2 and 3 of Schedule 4 amend section 202 of the Social Security (Administration) Act 1999 (Cth) to allow the use of protected personal information under that Act for the purposes of the Scheme. Item 2 would insert proposed paragraph 202(1)(h) to allow a person to obtain protected information if the information is obtained for the purposed of the scheme. Item 3 would insert proposed paragraph 202(2)(de) to allow a person to record, disclose or otherwise use protected information for the purposes of the Scheme. The Bills’ human rights Statement of Compatibility suggests these amendments will allow ‘the Scheme to access social security system information for ease of administration’.236

Schedule 5—Only adults can apply under the national redress scheme Item 1 of Schedule 5 will insert a reference to the legislation into Schedule 1 of the Age Discrimination Act 2004 (Cth). This Schedule sets out laws which for which an exemption from unlawful age discrimination applies. The Explanatory Memorandum notes that the amendment ‘will allow for the exclusion of children applying to the Scheme if they will not turn 18 throughout the life of the Scheme to be exempted from unlawful age discrimination’. It notes:

Applying an age limit to the Scheme addresses the risk of children signing away their future civil rights when they may have limited capacity to understand the implications, and when the impact of the abuse may not fully be realised. An age limit will also address the risk of the misuse of monetary payments made to minors.

237

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236. Ibid., p. 115. 237. Ibid., pp. 109-10.