Purpose of the Bill

The purpose of the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments) Bill 2020 (the Bill) is to amend the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act) to improve the operation of the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme). The amendments are intended to clarify the operation of certain provisions of the Scheme and provide greater administrative efficiency, while continuing to achieve the Scheme’s original policy intent.[1]

Structure of the Bill

The Bill contains one Schedule with nine Parts. Parts 1 to 7 inclusive address separate issues, while Parts 8 and 9 contain application and transitional provisions, and other minor amendments.

Background

The information in this section of the Digest follows closely information provided in a Bills Digest published by the Parliamentary Library in 2018.[2]

In 2013 the 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).[3] 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 justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.[4]

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’.[5] 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’.[6]

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.[7]

On 4 November 2016, the Attorney-General, Senator George Brandis, and the 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.[8]

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’.[9]

Ultimately this led to the enactment of the Redress Act. In brief, the purpose of the Redress Act is to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and to provide justice for the survivors of that abuse.[10] In practical terms, this was to be achieved by establishing the Scheme which would commence on 1 July 2018 and continue to operate for 10 years.[11]

A basic outline of the Scheme

The Scheme provides a means of compensating victims of child sexual or related abuse, where that abuse occurred in an institutional setting, without the need for the involvement of the court system.

A person can be provided with redress under the Scheme where they are entitled to it in accordance with the terms of the Redress Act.[12] To establish entitlement:

• the person applies for redress
• the Operator considers that there is a reasonable likelihood that the person is eligible for redress under the scheme[13]
• 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 Redress Act.[14]

Eligibility for redress

A person is eligible to apply 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 or
• the person is eligible under rules developed pursuant to the Redress Act.[15]

The abuse is within the scope of the Scheme if:

• 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 or
• if the rules prescribe that the abuse of a person is within the scope of the Scheme.[16]

Institutional responsibility

An institution is primarily or equally (with other institutions) responsible for the abuse taking into account the following circumstances:

• 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 and
• any other circumstances that are prescribed by the rules.[17]

Forms of redress

Assuming an entitlement to redress is found, the redress can take the following forms:

• a redress payment (of up to $150,000) and
• 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.[18]

These are not alternatives. A person can avail themselves of any or all of the forms of redress, as they choose.[19]

Not every person who can fulfil these requirements is entitled to redress. For example, apart from the citizenship qualification (mentioned above), persons who are in gaol are restricted from accessing the Scheme.[20]

How payments are made

Redress payments are initially made by the Commonwealth.[21] However, the responsible participating institutions are liable to pay funding contributions to reimburse the Commonwealth for their (the institutions’) share of the costs.[22] If an institution does not make the relevant payment before the day one calendar month after the payment became due, with the due date being a date specified in a notice to the institution, the Redress Act provides for a late payment penalty to apply.[23] The penalty, and the payment itself, can be waived in exceptional circumstances.[24] However, the term ‘exceptional circumstances’ is not defined in the Redress Act.

The Scheme has now been operating since 2018. As at 9 October 2020, 3,826 payments totalling approximately $315.1 million had been made; and 615 other offers of redress were being considered by the applicants.[25]

All state and territory governments and a large number of private institutions have joined the scheme. However there are many institutions that have not, including some named in the course of the Royal Commission.[26]

Consistent with a legislative requirement that there should be a review two years after the redress scheme commenced,[27] with the effective date for that review being 1 July 2020, an independent review of the redress scheme is currently underway under the leadership of Robyn Kruk AO.[28] While this may possibly lead to further legislative amendment, it is however a separate process to, and should not be confused with, the passage of this Bill.

In his second reading speech in respect of the Bill, Trevor Evans MP, representing Minister Stuart Robert, described the amendments proposed in the Bill as minor and technical ones which will provide clarity and improve Scheme operations, without increasing any financial obligations on Scheme participants.[29]

Committee consideration

Senate Community Affairs Legislation Committee

The Bill was referred to the Senate Community Affairs Legislation Committee (Community Affairs Committee) for inquiry and report.[30] The Committee reported on 5 November 2020, with the report containing a single recommendation, ‘that the Bill be passed’.[31] Senators from the Australian Labor Party (ALP) and the Australian Greens (the Greens) supported the Bill but made additional comments which are set out below.

Senate Standing Committee for the Scrutiny of Bills

In its Digest dated 11 November 2020, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) raised a number of issues with the Bill, and has sought Ministerial advice on those points. The subjects raised by the Committee relate to:

• the reversal of the evidential burden of proof in certain sections of the Bill[32]
• allowing significant matters to be the subject of delegated legislation[33] and
• the handling of protected information.[34]

The Minister responded in a letter dated 25 November 2020.[35] The issues raised by the Scrutiny of Bills Committee and the Minister’s comments in response, are mentioned in the ‘Key issues and provisions’ section of this Digest.

Policy position of non-government parties/independents

ALP

Whilst ALP Senators support the passage of the Bill, they made additional comments in the Community Affairs Committee report. In particular, they called on the Government to take action to make sure the National Redress Scheme is delivering justice for survivors and properly reflects the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. This includes by:

• publicly naming institutions that do not sign up to the National Redress Scheme, and ceasing Commonwealth funding for institutions that do not sign up
• removing the charitable and tax deductibility status of institutions that do not sign up to the National Redress Scheme
• if an institution refuses to participate in the National Redress Scheme, deem them as participating, process claims and recoup the money through the tax system, or other means
• introducing an advance payment scheme for elderly and ill applicants, similar to the Scottish model
• ensure governments act as funders of last resort in all cases where defunct institutions do not have links to existing entities
• increasing the maximum payment to $200,000, as recommended by the Royal Commission
• ensuring prior payments are not indexed when calculating a Redress payment
• ensuring that prior payments which do not relate to institutional child sexual abuse are not deducted from Redress, including payments to the Stolen Generations
• guaranteeing that an offer of Redress will not be reduced if an applicant requests a review
• fixing the Redress Assessment Framework (the matrix) so that it properly recognises the impact of abuse when calculating redress payments, as recommended by the Royal Commission and
• ensuring adequate ongoing psychological support, as recommended by the Royal Commission, not just one-off payments.[36]

Greens

The Greens also supported the Bill. However, they echoed concerns of some stakeholders in relation to the amendments to:

• associates of participating institutions
• funder of last resort provisions and
• engaging independent decision-makers.[37]

That being the case, the Greens stated that they will closely monitor the recommendations made in the second anniversary review of the Redress Scheme and will ‘continue to push for future reform to ensure the Redress Scheme delivers justice for all survivors’.[38]

Position of major interest groups

The Senate Committee received and published 10 submissions from various parties—mainly legal advisers and groups representing people with disabilities and sexual assault survivors. All submissions were broadly supportive of the Bill.

Financial implications

The Bill is considered to have no financial impact.[39]

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.[40]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had no comment on the Bill.[41]

Key issues and provisions

Associates of participating institutions

Under the current legislation, participating institutions can form a participating group for the Scheme.[42] A participating institution that is part of such a group is an associate of each other participating institution in the group.[43] A participating group of non-government institutions must have a single representative, as declared by the Minister by notifiable instrument.[44] The Minister can also declare by notifiable instrument that two or more participating institutions form a participating group. The Minister may only do so where each institution has agreed to be a member of the group and to each other institution being a member of the group.[45]

One particular advantage of institutions being members of a group is that if one of the associates makes a redress payment, all of the members of the group are released from potential civil liability in relation to that individual applicant.[46] Currently, an offer of redress to an applicant who is seeking redress from one member of a group contains a reference to all institutions that are associates of the member. In a participating group of many members this is neither practical nor helpful to the applicant.[47]

Consequently item 7 in Part 1 of the Bill repeals and replaces paragraph 39(g) of the Redress Act to note that the written offer of redress should include either the other participating institutions or the classes of participating institutions which are members of a participating group. This does not change the legal position of other members of the group in relation to the release from civil liability.[48]

Funder of last resort

The Redress Act sets out the concept of a funder of last resort.[49] As was noted earlier, the general intention is for the institution(s) in which abuse occurred ultimately to fund the redress payment. However, this is not always possible—where, for example the institution no longer exists. In those circumstances, and where the entitlement to redress means that the responsibility is shared between a government institution and the now defunct institution, the government institution becomes the funder of last resort, which means that it pays its share and the share of the defunct institution.[50]

However the current wording of the Redress Act assumes that only one government institution will be involved. This is not necessarily the case. Item 27 in Part 2 of the Bill repeals and replaces subsection 165(1) to add a reference to ‘one or more participating government institutions’. Where necessary they will become joint funders of last resort. The additional amount to be paid by each funder of last resort will be calculated by ascertaining the amount owed by the defunct institution and dividing the amount between the funders of last resort. Items 29, 31 and 33 in Part 2 of the Bill repeal and replace paragraph 165(2)(b), paragraph 165(3)(b) and paragraph 165(4)(b) respectively to make clear how contributions are to be calculated.

Decision-makers

Section 185 of the Redress Act sets out the current process for engaging independent decision‑makers for the purposes of the Scheme. Subsection 185(1) provides that ‘the Operator may, on behalf of the Commonwealth and with the approval of the Minister, engage a person...’ Currently, under section 183, the Minister cannot delegate this function to another person.

This can make the process of engaging an independent decision-maker in a timely manner difficult.[51] Consequently item 37 in Part 3 of the Bill proposes to remove from subsection 185(1) the requirement for Ministerial approval. Item 38 amends subsection 185(2) so that the Operator, rather than the Minister, will in future be responsible for consultation with states and territories.

Item 36 provides a limited delegation power to the Operator by adding proposed subsections 184(5) and 184(6). These will allow the Operator to delegate the power to engage independent decision-makers to a Senior Executive Service employee. That employee must comply with any directions that the Operator may give.

Protected terms

Item 40 in Part 4 of the Bill inserts proposed section 185A into the Redress Act. The purpose of this section is to protect various terms relating to the Scheme so that those terms cannot be used, or misused, by persons engaging in a business, trade, profession, or occupation without the Operator’s written consent. The basic purpose of these provisions is to stop businesses and the like appearing to claim some connection to, or to use the good name established by, the Scheme when in fact they are not part of the Scheme. These will be offences of strict liability; which is to say that the ‘offender’ can be liable to penalty without having a deliberate intention to break the law. However, honest mistake can be a defence to an offence of strict liability. The maximum penalty for the offence is 30 penalty units.[52]

The fact that this is a strict liability offence was one of the points raised by the Scrutiny of Bills Committee; in that such an offence means that the person charged must demonstrate that their actions were reasonable in the circumstances, rather than the prosecution proving that they were not. In fact, strict liability offences are relatively common particularly where, as the Minister notes in his reply, ‘the matters to be proven in relying on those defences are matters that are peculiarly within the knowledge of the defendant’.[53] Following consideration of the Minister’s response, the Scrutiny of Bills Committee asked that an addendum to the Explanatory Memorandum to the Bill, containing the key information provided by the Minister, be tabled as soon as practicable.[54]

While three names to be protected are set out in proposed subsection 185A(6) of the Bill, that subsection also proposes that other names can be prescribed by the rules (delegated legislation). This was queried by the Scrutiny of Bills Committee, which asked whether such delegation of legislative power was desirable. The Minister, in response, noted that this would provide some flexibility over the life of the Scheme, so that legislative amendment would not be necessary if the Scheme’s name or branding was changed in future.[55] Following consideration of the Minister’s response, the Scrutiny of Bills Committee left to the Senate as a whole the appropriateness of allowing protected names and protected symbols relevant to the commission of a strict liability offence to be set out in delegated legislation.[56]

These provisions will only take effect from the passage of the legislation. This means that a person who is already using a protected name or symbol in good faith, and according to legal rights, will not be penalised.[57] The provisions also do not prevent states and territories, which are essentially partners in the Scheme, from using names and symbols in connection with the Scheme.[58]

To whom is a redress payment made

Subsection 48(1) of the Redress Act states that where a redress payment is to be made, ‘the Operator must pay the redress payment to the person...’. This is normally done by bank transfer. However, it has been recognised that it is not always appropriate to make the payment directly to the person; for example where that person’s finances are administered by a guardian or by a public trustee.[59]

Consequently item 43 in Part 5 of the Bill adds proposed subsection 48(1A) which allows the Operator to make the redress payment to an administrator, as defined in the proposed subsection, where that is the appropriate course of action in the circumstances. Item 45 in Part 5 of the Bill makes a similar provision in respect of payment for counselling and psychological services, by adding proposed subsection 51(3A) so that those types of payments can also be made to an administrator.

Due date for institution’s payment

As noted earlier, after the Operator has made a redress payment to an applicant, the relevant participating institution or institutions is issued a notice requiring them to pay their contribution. This payment is due on a date specified in the notice, being at least 30 days after the date of the notice.[60] If the amount owed by the participating institution is not paid before the start of a calendar month after the due date, late payment penalties apply.[61]

Item 48 in Part 6 of the Bill inserts proposed subsection 153(2) into the Redress Act, allowing the Operator by written notice to specify a later date as the due date for a payment to be made. The written notice is to be given after the original notice has been sent but before the original due date has been reached. This provision might be used, for example, in circumstances such as those currently occurring, where COVID-19 has placed significant financial pressure on various institutions.[62]

Disclosure

Section 95 of the Redress Act contains provisions about situations in which the Operator can disclose protected information, including where it is ‘necessary in the public interest’.[63]

Item 49 in Part 7 of the Bill inserts proposed subsection 95(1A) into the Redress Act to provide for another situation in which the Operator may disclose protected information—namely for the purpose of encouraging an institution that is not participating in the Scheme to participate in the Scheme. There are limitations on what protected information can be provided; it must be about that institution and must have been provided to, or obtained by, a Scheme officer for the purposes of the Scheme.

Subsection 95(2) of the Redress Act currently restricts the ways in which a person who receives protected information can use that information. This will also apply to information provided under proposed subsection 95(1A).[64]

The Scrutiny of Bills Committee sought the Minister’s further advice on privacy issues that might be raised by the disclosure provisions. The Minister noted:

The information disclosed would be limited, as required by the new provision, to information about the institution. While this disclosure could include incidental personal information (within the meaning of the Privacy Act 1988), for example, where it is necessary to provide the contact details of a person in an institution to another person in order to facilitate contact with the institution, there is no intention or capacity to disclose personal information about any individual redress applicant under the new section 95(1A).

If protected information is disclosed under the new section 95(1A), the recipient is subject to the statutory confidentiality regime in relation to the information that is disclosed. Section 95(2) would permit the recipient to use the information to encourage the relevant institution to participate in the Scheme and the recipient would also be able to use the information within the bounds of the statutory confidentiality framework mentioned above. However, any use or disclosure of the protected information by the recipient in a manner not authorised by the statutory confidentiality framework would engage the offence provisions in sections 99, 100 and 101 of the Act.[65]

Following consideration of the Minister’s response, the Scrutiny of Bills Committee asked that an addendum to the Explanatory Memorandum to the Bill, containing the key information provided by the Minister, be tabled as soon as practicable.[66]

Conclusion

As noted at the commencement of this Bills Digest, Part 1 of Schedule 1 (about associates in a participating group) has retrospective application, back to the commencement of the Scheme on 1 July 2018.

This is not viewed as problematic, as they are essentially clarifying provisions and do not impose any additional obligations on anyone.