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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
AMENDMENT (TECHNICAL AMENDMENTS) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families and Social Services, Senator the Hon Anne Ruston)
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
AMENDMENT (TECHNICAL AMENDMENTS) BILL 2020
OUTLINE
The Bill makes several technical amendments to the National Redress Scheme for
Institutional Child Sexual Abuse Act 2018 (the Redress Act) that will improve the
operation of the National Redress Scheme for Institutional Child Sexual Abuse (the
Scheme). The amendments will variously clarify the operation of certain provisions
and provide greater administrative efficiency, while continuing to achieve the original
policy intent of the Scheme. The amendments made by the Bill:
clarify how participating institutions that are associates of a responsible
institution are to be determined and specified;
clarify that the amount for which a funder of last resort is liable in relation to a
responsible defunct institution is based on the number of funders of last resort
in relation to that institution;
provide for greater efficiency in engaging independent decision-makers;
introduce protections for the names and symbols used in connection with the
Scheme;
permit a redress payment to be made to a person who has been appointed by
a court, tribunal or board to manage the financial affairs of a person entitled to
redress;
permit the National Redress Scheme Operator to extend the timeframe for
payment of a funding contribution by an institution;
authorise disclosure of protected information about a non-participating
institution for the purpose of encouraging the institution to become a
participating institution; and
correct minor typographical errors.
The amendments will enable these efficiencies and clarifications to occur as early as
possible, ensuring Scheme operations are improved where needed and ultimately
support the management of applications for redress from survivors of institutional
child sexual abuse.
Financial impact statement
This Bill has nil financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
AMENDMENT (TECHNICAL AMENDMENTS) BILL 2020
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
National Redress Scheme Agreement has the meaning set out in section 6
of the Redress Act.
Operator means the National Redress Scheme Operator, as defined in
section 6 of the Redress Act.
Redress Act means the National Redress Scheme for Institutional Child
Sexual Abuse Act 2018.
Scheme means the National Redress Scheme for Institutional Child Sexual
Abuse as established by the Redress Act.
Clause 1 sets out how the new Act is to be cited, that is, as the National Redress
Scheme for Institutional Child Sexual Abuse Amendment (Technical Amendments)
Act 2020.
Clause 2 provides a table setting out commencement dates for the new Act. Except
for Part 1, the Act commences on the day after it receives the Royal Assent.
Part 1 commences on 1 July 2018. This is because the clarifications made to the Act
by Part 1 affirm the ways participating institutions that are associates can be
described in making a determination on an application, in making an offer of redress
or in giving notices, as explained below in relation to Part 1. This will lend clarity to
the current and future administration of the Scheme as it relates to determining and
identifying participating institutions that are associates of each other because they
are members of a participating group of institutions declared by the Minister.
Clause 3 provides that legislation that is specified in a Schedule to the Act is
amended or repealed as set out in that Schedule, and any other item in a Schedule
to the Bill has effect according to its terms.
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Schedule 1 - Amendments
Summary
The Bill makes several technical amendments to the National Redress Scheme for
Institutional Child Sexual Abuse Act 2018 (the Redress Act) that will improve the
operation of the National Redress Scheme for Institutional Child Sexual Abuse (the
Scheme). The amendments will variously clarify the operation of certain provisions
and provide greater administrative efficiency, while continuing to achieve the original
policy intent of the Scheme. The amendments made by the Bill:
clarify how participating institutions that are associates of a responsible
institution are to be determined and specified;
clarify that the amount for which a funder of last resort is liable in relation to a
responsible defunct institution is based on the number of funders of last resort
in relation to that institution;
provide for greater efficiency in engaging independent decision-makers;
introduce protections for the names and symbols used in connection with the
Scheme;
permit a redress payment to be made to a person who has been appointed by
a court, tribunal or board to manage the financial affairs of a person entitled to
redress;
permit the National Redress Scheme Operator to extend the timeframe for
payment of a funding contribution by an institution;
authorise disclosure of protected information about a non-participating
institution for the purpose of encouraging the institution to become a
participating institution; and
correct minor typographical errors.
The amendments will enable these efficiencies and clarifications to occur as early as
possible, ensuring Scheme operations are improved where needed and ultimately
support the management of applications for redress from survivors of institutional
child sexual abuse.
Background
The Redress Act commenced on 1 July 2018, establishing the Scheme in response
to the Royal Commission into Institutional Responses to Child Sexual Abuse. The
Scheme will operate until 1 July 2028 (the Scheme sunset day) to provide redress to
eligible survivors, consisting of a monetary payment of up to $150,000 in recognition
of wrong suffered, access to counselling and psychological services and the option
of a direct personal response from the institution, or institutions, found responsible. It
has been open to survivors to apply for redress under the Scheme since its
commencement, and applications can be made until 30 June 2027 (12 months
before the Scheme sunset day).
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In order for a person to receive redress from a responsible institution, the institution
must agree to participate in the Scheme (that is, opt into the Scheme) and be
declared a participating institution by the Minister for Families and Social Services.
The latest date an institution may be declared a participating institution is
31 December 2020.
The second anniversary review of the operation of the Scheme, required by the
Redress Act, is currently underway. This review will consider a broad range of
prescribed matters relating to the implementation, operation and administration of
the Scheme, and the views of key stakeholders. The second anniversary review is
an important mechanism for formally considering these matters. However, a number
of technical issues have already been identified as impacting the optimal operation of
the Scheme, or as having potential to create inefficiencies in the operation of the
Scheme, and it is appropriate to address these through amendments to the Redress
Act.
In accordance with the National Redress Scheme Agreement, the Commonwealth
has consulted with States and Territories on the minor and technical amendments
proposed by the Bill.
Explanation of the changes
Part 1 - Associates of participating institutions
The amendments in Part 1 will reflect that whether a participating institution is an
associate of another participating institution is determined by whether the Minister
has made a declaration, under subsection 134(1) of the Redress Act, that the
institutions form a participating group. Two or more participating institutions may
form a participating group, with each member being an associate of the other
members. Such a determination has no bearing on the discretion of an independent
decision-maker in making a determination on an application: the Minister's
declaration that two or more institutions form a participating group is relevant only to
the status of member institutions as associates.
Reference to a participating group declared by the Minister, or to the institutions that
are members of a group as set out in a declaration made by the Minister, are ways of
identifying those institutions that are associates of each other as provided for by
subsection 133(3) of the Redress Act. The amendments proposed do not affect
whether an institution is an associate of another institution, but clarify the ways this
relationship can be described in making a determination on an application, in making
an offer of redress or in giving notices. This allows for greater administrative
efficiency and practicality when dealing with large participating groups in particular,
and in communicating with institutions and applicants. The amendments will not
affect institutions' obligation to provide redress or the release from civil liability when
an offer of redress is accepted.
Item 1 repeals and substitutes paragraph 29(2)(g) with an amended provision
requiring that, if a responsible institution is a member of a participating group, the
Operator must determine the participating group of which the institution is a member.
4
This change replaces the requirement that the Operator determine each other
institution that is an associate of the responsible institution, noting subsection 133(3)
already provides that a participating institution that is a member of a participating
group is an associate of each other participating institution in the group.
Whether a participating institution is a member of a participating group of institutions
is a question of fact, determined by whether the Minister has declared, under
subsection 134(1) of the Redress Act, that particular institutions form a participating
group.
The operation of the Redress Act in this way is clarified by new Note 1A, added by
Item 2, following subsection 29(2).
Item 3 adds to paragraph 29(7)(b) a reference to the representative for a
participating group. This is to clarify that if a determination is revoked under
subsection 29(4), notice is to be given to each participating institution or
representative for a participating group that was given notice under section 35 of the
determination on the application.
Item 4 inserts new subsection 35(1A) as a consequence of the amendments made
by item 1. Since new paragraph 29(2)(g) will not enliven the notice requirement in
subsection 35(1), new subsection 35(1A) will apply. This will require the
representative for a participating group determined under paragraph 29(2)(g) to be
notified of a determination on an application for redress.
Item 5 repeals and substitutes paragraph 35(2)(c), also as a consequence of the
amendments made by item 1. New paragraph 35(2)(c) reflects new paragraph
29(2)(g) by amending the notice requirement to refer to the participating group of
which the institution has been determined to be a member under paragraph 29(2)(g).
Item 6 adds to paragraph 35(2)(f) reference to a participating group. This is to clarify
that notice of a determination on an application given under section 35 must state
the reasons for the determination as they relate to the institution or participating
group.
Item 7 repeals and substitutes paragraph 39(g) with an amended provision requiring
that, if the Operator determines, under paragraph 29(2)(g) that a responsible
institution is a member of a participating group, the offer of redress given to a person
must identify the other participating institutions, or classes of participating
institutions, that are associates of the responsible institution at that time because
they are members of a participating group declared by the Minister under subsection
134(1).
This amendment reflects that an institution declared by the Minister to be a
participating institution may be identified by inclusion in a particular class (see
subsection 115(2) of the Redress Act) and that those participating institutions that
are associates is determined by declaration of the Minister under subsection 134(1).
Item 8 repeals and substitutes subparagraph 42(2)(c)(ii) as a consequence of the
amendments made by item 7. New subparagraph 42(2)(c)(ii) requires an acceptance
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document to state that the release from civil liability as referred to in paragraph
42(2)(c) releases and forever discharges, in addition to all responsible institutions, all
participating institutions that are associates of the responsible institutions, as
specified under paragraph 39(g).
This reference to paragraph 39(g) rather than paragraph 29(2)(g) does not alter the
institutions that are released from liability because, as noted in relation to item 1, this
depends on the institutions that have been declared by the Minister under subsection
134(1) of the Redress Act to form a participating group. However, this change
ensures consistency between the offer of redress and the acceptance document. It
will also support a more trauma informed approach to communicating with survivors
of institutional child sexual abuse.
Item 9 adds to subsection 79(1) a reference to the representative for a participating
group. This is to clarify that notice about review of a determination on an application
for redress given under section 79 is to be given to each participating institution or
representative for a participating group that was given notice under section 35 of the
determination on the application.
Part 2 - Funder of last resort provisions
Items 10 to 12 and 14 to 26 amend the Redress Act to reflect that there may be
more than one funder of last resort in relation to a responsible defunct institution,
consistent with the amendments to subsection 165(1) proposed by item 27, and to
make technical corrections where reference is made to 'funders' rather than 'funder'.
Item 13 amends paragraph 35(2)(e) to provide that notice to a funder of last resort of
a determination made on an application must state the number of other institutions
that are also a funder of last resort.
Item 27 substitutes a new subsection 165(1), relating to the effect of a government
institution being a funder of last resort. New subsection 165(1) reflects that one or
more government institutions may be equally responsible for abuse of a person and
a funder of last resort in relation to that abuse and that, in this case, each
government institution (defined as the "funding institutions") is proportionately liable
for the amount the relevant defunct institution would have been liable to pay in
providing redress to a person.
This amendment clarifies that in the event there is more than one funder of last
resort, as may currently be determined, each government institution pays only a
portion of the amount for which the relevant defunct institution would have been
liable, had it been a participating institution. This ensures the payments by funders of
last resort (by way of funding contributions under Part 6-1 of Chapter 6 of the
Redress Act) do not exceed the amount of the defunct institution's liability.
Items 28 to 33 make amendments to subsections 165(2), 165(3) and 165(4) that
follow from item 27 in respect of working out a funding institution's share of the
redress payment, the amount of the counselling and psychological component and
the Scheme administration costs respectively, for a relevant defunct institution.
Consistent with new subsection 165(1), the amendments refer to government
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institutions that are funders of last resort as "funding institutions" and provide for a
proportional payment amount to be worked out by dividing the amount the defunct
institution would have been liable to pay by the number of funding institutions.
Part 3 - Engaging independent decision-makers
Item 34 omits section 185 (engaging persons to be independent decision-makers)
from the specified powers and functions the Minister is not permitted to delegate
under subsection 183(1). This is because items 37 and 38 repeal the requirement for
approval of the Minister and Ministerial consultation with participating States and
Territories, before the Operator may engage a person as an independent decision-
maker, meaning section 185 will no longer contain a power or function of the
Minister.
Item 35 adds section 185 to the provisions identified in subsection 184(1) that
cannot be delegated by the Operator to an officer of the Scheme. This amendment is
made as a consequence of item 36, which adds a new, limited, delegation power
that applies to section 185.
Item 36 adds new subsections 184(5) and (6) relating to delegation of the Operator's
powers or functions under section 185. Subsection 184(5) permits the power to
engage an independent decision-maker and the function of consultation with
participating States and Territories to be delegated by the Operator only to Senior
Executive Service employees, in view of the importance of these decisions.
Subsection 184(6) provides that in exercising a power or performing a function so
delegated, a delegate must comply with any directions given by the Operator.
Item 37 removes from subsection 185(1) the requirement for the Minister to approve
the engagement of a person, by the Operator, as an independent decision-maker.
This change is proposed so that independent decision-makers can be engaged more
expediently where needed in order to respond to peaks in the number and/or
complexity of applications for redress under the Scheme.
The qualification, skills and experience of a person to perform the role of
independent decision-maker can continue to be appropriately assessed at a
departmental level, in consultation with participating States and participating
Territories and, as such, this change will not impact the suitability of persons to be
engaged as independent decision-makers.
Item 38 is also proposed to achieve greater administrative efficiency in the process
for engaging independent decision-makers. This item amends subsection 185(2) so
that consultation with participating States and participating Territories continues but
is not required to be at Ministerial level.
Part 4 - Protected names and symbols
Part 4 adds new provisions to protect of the names and symbols used in connection
with the Scheme against unauthorised use.
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Item 39 amends the simplified outline to Part 7-3 (other matters) to reflect the
protection of names and symbols added by item 40. This is inserted to assist readers
understand the provisions, but is not intended to be relied upon as comprehensive.
Item 40 adds new Division 4A (protected names and symbols), containing new
section 185A (use of protected names and symbols). Section 185A protects the use
of the names "National Redress Scheme", "National Redress Scheme for
Institutional Child Sexual Abuse" and "National Redress Scheme for people who
have experienced institutional child sexual abuse", in addition to any name
prescribed by the rules (each defined by subsection 185A(6) as a "protected name").
Similarly, any symbol used, or for use, in connection with the Scheme and set out in
the rules is a protected symbol (also defined as such by subsection 185A(6)).
Certain uses (prescribed by subsection 185A(1)) without the Operator's consent
constitute an offence of strict liability. These include use in relation to a business or
trade, profession or occupation, or application as a trade mark to goods. The
application of strict liability to the offence is to ensure there is a sufficient deterrent
effect to achieve protection of the names and symbols, balanced by defensibility on
the basis of honest and reasonable mistake of fact. Additionally, having regard to the
Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers, published by the Attorney-General's Department, the penalty is limited to 30
penalty units.
There is a strong policy basis for regulating the use of those names and symbols
used in relation to the Scheme given the potential for harm to survivors should, for
example, services unrelated to the Scheme be mistaken as being provided under, or
in connection with, the Scheme. However, new subsections 185A(4) and (5) provide
(by reference to the "protection time" as defined in subsection 185A(6)) that the
protections under section 185A will not prevent a person who is using a protected
name or symbol according to rights conferred by law or in good faith immediately
before commencement of the provision (or any rules made for the purposes of the
provision) from continuing to do so. This position is adopted to ensure no penalty
applies in relation to existing use, provided such use is based on registered legal
rights and/or good faith use.
New subsection 185A(3) provides that the offence under subsection 185A(1) does
not affect use of a name or symbol by a State or Territory. Given the national
operation of the Scheme, it is not intended that States and Territories be required to
seek consent from the Operator in order to make use of names and symbols used in
connection with the Scheme.
Part 5 - Payment of redress payments etc.
Item 41 adds a definition of "administrator" to section 6 (the dictionary) for the
purposes of the amendments to subsections 48(1) and section 51, made by items
43 and 45 respectively, which will permit payment of a redress payment and
payment of the counselling and psychological component of redress to be made to
an administrator of a person entitled to redress.
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Currently, the Redress Act limits the Operator to making a redress payment to the
person who is entitled to redress under the Scheme. While in most cases this is
appropriate, this outcome is not always suitable for individuals whose finances are
administered by a third party appointed by a court, tribunal or board under a
Commonwealth, State or Territory law (for example, a public trustee or guardian).
Such appointments may be made because an individual has impaired capacity or
there is risk to the individual's property or other interests. As such, it is beneficial that
redress payments can be made in a way that is consistent with these arrangements
where the Operator considers this is appropriate.
An administrator for the purposes of the Redress Act will be limited to a person who
has been appointed by a court, tribunal, board or other entity prescribed by rules,
under a law of the Commonwealth, a State or a Territory, to make decisions on
behalf of another person in relation to all or part of that person's property or financial
affairs or matters.
The notes to new subsections 48(1) and 51(3) clarify that these provisions do not
authorise payment other than to a person appointed by a court, tribunal or board. For
example, a payment cannot be made to a person who has been appointed power of
attorney by a person who is entitled to redress.
Item 42 amends the simplified outline for Part 2-5 of the Redress Act, at section 47,
to reflect the amendments made by Part 5 of the Bill. This is to assist readers to
understand the substantive provisions, but should not be relied upon as
comprehensive.
Items 44 and 46 amend sections 49 and 52 by adding new subsections 49(2A) and
52(2A), to provide that the protections under these sections in relation to the redress
payment and the counselling and psychological services payment respectively are
subject to the ability to make payment to a person who is an administrator.
Part 6 - Due date for funding contributions
Item 47 adds subsection numbering to the existing provision in section 153, as a
consequence of the new provision added by item 48.
Item 48 adds new subsection 153(2), to permit the Operator to specify a later day for
payment of a funding contribution by a responsible institution than the day previously
specified under subsection 153(1). As for a notice under subsection 153(1), a notice
under subsection 153(2) to, in effect, extend the timeframe for payment of a funding
contribution, must be given to an institution in writing.
New subsection 153(2) gives the Operator discretion in relation to the due date for
payment of a funding contribution in the same way as already provided for in relation
to late payment penalties by section 154. Extension of this discretion to funding
contribution payments provides a mechanism for responding to circumstances that
have placed financial or other pressure on an institution and warrant allowing a
longer timeframe for payment. A recent example of this is the financial and
operational pressure experienced by some institutions as a result of the impact of
9
COVID-19. The amendment will not affect an institution's liability or the timing of
redress payments to applicants.
A notice specifying a later date may be given by the Operator, or a delegate, under
subsection 153(2) before, on or after the day a funding contribution is otherwise
payable and has, and is taken always to have had, effect according to its terms. This
means a notice given after the due date for payment under a prior notice will have
retrospective effect and in such cases no late payment penalty arises under section
154.
Part 7 - Disclosure to encourage institutions to participate in the scheme
Item 49 adds a new authorisation for disclosure of protected information to section
95. New subsection 95(1A) permits information about a non-participating institution
that is provided to, or obtained by, an officer of the Scheme for the purposes of the
Scheme to be disclosed to a third party for the purpose of encouraging the institution
to participate in the Scheme.
This new provision will facilitate engagement with and between States, Territories
and non-government institutions such as peak bodies, and support proactive
engagement to encourage institutions to participate in the Scheme. This will be of
particular benefit in the lead up to the 31 December 2020 deadline for institutions to
be declared participating institutions and in the event the Minister extends this
timeframe by prescribing a later date. Having more institutions participate in the
Scheme will maximise the number of survivors who have access to redress through
the Scheme.
The amendment will not affect the application of the protected information provisions
to information about individuals who apply for redress or permit any additional use or
disclosure of protected information that relates to an individual (including information
that is personal information for the purposes of the Privacy Act 1988).
Item 50 amends subsection 95(2) so that it applies to a person to whom information
is disclosed under new subsection 95(1A). This means that information about a non-
participating institution that is disclosed for the purpose of encouraging that
institution to participate in the Scheme can only be dealt with (that is, obtained,
recorded, disclosed or used) by a recipient for that same purpose. This limitation is a
key mechanism for ensuring protected information is not used or disclosed more
broadly than necessary to assist in achieving the objects of the Redress Act and that
is reasonable and proportionate to achieving this policy objective. The existing
protected information provisions and penalties for unauthorised use and disclosure
of protected information remain unchanged.
Part 8 - Application and transitional provisions
Item 51 adds new Chapter 8 at the end of the Redress Act, setting out application
and transitional provisions for several of the amendments made by the Bill. Section
194 provides a simplified outline of the provisions. The outline is to assist readers to
10
understand the substantive provisions but is not intended to be comprehensive;
readers should rely on the substantive provisions.
New section 195 provides for the amendments made by Part 2 of Schedule 1 to the
Bill, in relation to funders of last resort, to apply to determinations on applications for
redress under section 29 made on or after the date Part 2 commences, being the
day after the Act receives the Royal Assent.
New section 196 provides for the amendments made by Part 3 of Schedule 1 to the
Bill, in relation to the engagement of independent decision-makers, to apply to
persons who are engaged after Part 3 commences, being the day after the Act
receives the Royal Assent.
New section 197 provides for the amendments made by Part 5 of Schedule 1 to the
Bill, in relation to payment of redress payments, to apply to redress payments and
counselling and psychological payments that are made after the commencement of
Part 5, being the day after the Act receives the Royal Assent.
New section 198 provides for the amendments to section 153, made by Part 6 of
Schedule 1 to the Bill in relation to when a funding contribution is due for payment, to
apply to funding contributions payable before, on or after commencement of Part 6,
being the day after the Act receives the Royal Assent.
New section 199 provides for the amendments to section 95, made by Part 7 of the
Bill in relation to disclosure of protected information about institutions, to apply after
commencement of Part 7, being the day after the Act receives the Royal Assent, in
relation to protected information that is provided or obtained before, on or after
commencement.
Part 9 - Minor technical amendments
Items 52 and 53 correct typographical errors in the definition of "associates" at
section 6 of the Redress Act and in paragraph 35(2)(b) respectively. Item 52 corrects
the incorrect reference to "subsection" rather than "subsections" and item 53 adds
the word "the" missing from reference to the Operator.
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Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
AMENDMENT (TECHNICAL AMENDMENTS) BILL 2020
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill makes several minor and technical amendments to the National Redress
Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act) that will
improve the operation of the National Redress Scheme for Institutional Child Sexual
Abuse (the Scheme).
The Bill proactively addresses issues identified in the administration of the legislation
from the Scheme's inception or provides additional clarity on existing policy intent of
the Scheme. This is to ensure Scheme integrity is maintained and to enable
administrative efficiencies, where needed, to be made as early as possible, and
ultimately to support the management of applications for redress from survivors of
institutional child sexual abuse. Importantly, the amendments will support the
operation of the remaining eight years of the Scheme.
The amendments made by the Bill will:
clarify how participating institutions that are associates of a responsible
institution are to be determined and specified;
clarify the proportional amount for which a funder of last resort is liable in
relation to a responsible defunct institution;
provide for greater efficiency in engaging independent decision-makers;
introduce protections for the names and symbols used in connection with the
Scheme;
permit a redress payment to be made to a person who has been appointed by
a court, tribunal or board to manage the financial affairs of a person entitled to
redress;
permit the National Redress Scheme Operator to extend the timeframe for
payment of a funding contribution by an institution; and
authorise disclosure of protected information about a non-participating
institution for the purpose of encouraging the institution to become a
participating institution; and
correct minor typographical errors.
1
Statement of compatibility with human rights
While the issues being addressed have not caused significant problems with the
operation of the Scheme to date, and in some cases have not yet eventuated, taking
action on known issues will strengthen Scheme operations and clarify the law ahead
of any unintended consequences arising into the future. The minor amendments are
focused on the day to day management of Scheme operations and do not change
how survivors interact with the Scheme.
Human rights implications
The Bill does not introduce any limitations on human rights. The Bill positively
engages several human rights conventions.
The Bill does not affect a person's potential eligibility under the Scheme, the
assessment of applications for redress, or an institution's liability or obligations under
the Scheme. Rather, the minor amendments are focused on proactively supporting
the day to day management of Scheme operations and do not impact or change any
fundamental Scheme design matters.
The Bill engages the following rights:
Convention on the Rights of the Child (CRC)
o article 39 - state supported recovery for child victims of neglect,
exploitation and abuse
International Covenant on Civil and Political Rights (ICCPR)
o article 3 - right to effective remedy
o article 17 - right to protection against arbitrary or unlawful interferences
with privacy
The Bill promotes Article 39 of the CRC, which guarantees the right to state-
supported recovery for child victims of neglect, exploitation and abuse. The Scheme
supports the recovery of people who have experienced institutional child sexual
abuse by enabling recognition of past abuse and providing access to redress,
including a redress payment, a personal response from the responsible institution
and access to counselling and psychological care services. The Bill further promotes
article 39 by allowing for more efficient administrative operations, which will support
the finalisation of applications to the Scheme and access to redress.
The Bill supports Article 3 of the ICCPR, which guarantees the right to effective
remedy for those whose rights outlined in the ICCPR are violated. The Bill enables
the Scheme to pay a person's redress payment to a Public Trustee, or someone with
financial management powers. The Redress Act currently limits the Operator to
making a redress payment to a person who is entitled to redress. While in most
cases this is appropriate, this outcome is not always suitable for individuals whose
finances are administered by a third party appointed by a court, tribunal or board
under a Commonwealth, State or Territory law, such as a public trustee or guardian.
These appointments may occur where an individual has impaired capacity to
manage their finances or there is risk to the individual's property or other interests.
2
Statement of compatibility with human rights
The Bill provides a beneficial mechanism to enable the Scheme to make a redress
payment for an applicant, while ensuring their interests remain protected in a way
that is consistent with the legal arrangements in place. The amendment is tightly
restricted, meaning a payment can only be made other than to the person entitled to
redress in very limited, legitimate circumstances, and the provision cannot be utilised
for unintended purposes.
Article 3 is also promoted by the Bill streamlining the process for sharing information
for the purpose of encouraging non-participating institutions named in applications to
participate in the Scheme. The Scheme offers people who have experienced
institutional child sexual abuse an alternative to civil litigation, where the responsible
institution has joined the Scheme. However, the Scheme requires voluntary
participation by institutions. The amendment is aimed at supporting efficient
processes to target engagement with non-participating institutions, aimed at
increasing the number of institutions that join the Scheme and thereby increasing
access to redress. The provisions in the Bill are proportionate to the intended
outcome and are appropriately limited to ensure it applies only for the intended
purpose.
A person who does not, or cannot, access redress under the Scheme is still able to
seek a remedy through the civil justice system. This right is not impacted by the Bill.
Article 17 of the ICCPR guarantees the right of everyone to protection from arbitrary
or unlawful interference with privacy. The amendments do not affect the protected
information provisions that apply to information about individual applicants. The
existing provisions and penalties concerning unauthorised access, use and
disclosure of protected information also remain unchanged.
Conclusion
The Bill is compatible with human rights because it promotes the protection of
human rights and does not introduce any new limitation on human rights.
(Circulated by the authority of the Minister for Families and Social Services,
Senator the Hon Anne Ruston)
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