House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)

Chapter 3 - Special rules to deal with exceptional cases

Part 3-1 - Special rules allowing entitlement to redress

Division 1 - Simplified outline of this Part

Clause 57 provides a simplified outline of Part 3-1.

Division 2 - Death of person before acceptance of redress offer

Clause 58 applies in circumstances where a person applies for redress under clause 19 of the Scheme, but dies before a determination on the application is made under clause 29 of the Scheme (subclause 58(1)).

Subclause 58(2) provides that in such circumstances the Operator must continue to deal with the application as if the person had not died.

Subclause 58(3) provides that if the Operator approves the application under paragraph 29(2)(a) the Operator must:

(a)

make a determination under paragraph 29(2)(b) about each participating institution that is responsible for the abuse; and

(b)

make a determination under paragraph 29(2)(c) as to:

(i)

the amount of the redress payment for the person; and

(ii)

the amount of each responsible institution's share of the costs of the redress payment; and

(c)

if paragraph 29(2)(i) applies to a participating government institution and defunct institution (that is, that they are equally responsible for the abuse)- determine, under that paragraph, that the participating government institution is the funder of last resort for the defunct institution.

Subclause 58(4) provides that the redress payment for the person under this clause is payable in accordance with clause 60.

A rule making power is provided in subclause 58(5) to allow rules to be made prescribing matters relating to giving notices to a person or participating institution in relation to the operation of this clause.

Clause 59 applies in circumstances where a person applies for redress under clause 19 and the person dies after an offer of redress is made under clause 39 but before the offer is accepted, declined or withdrawn. In such circumstances, the offer is deemed to be withdrawn immediately after the person dies (subclause 59(2)).

Subclause 59(3) provides that, if, before the person died, the person had not made an application under clause 73 for review or the review had completed, then the redress payment for the person is payable in accordance with clause 60.

Subclause 59(4) provides that if the person had made an application for review under clause 73 before their death, and the review had not been completed, then the application continues as if the person had not died. If the review approves the person's application for redress, the redress payment is payable in accordance with clause 60.

A rule making power is provided in subclause 59(5) to allow rules to be made prescribing matters relating to giving notices to a person or participating institution in relation to the operation of this clause.

Clause 60 will apply if a redress payment for a deceased person is payable under subclause 58(4), 59(3) or paragraph 59(4)(d).

Subclause 60(2) provides that the Operator must determine who should be paid the redress payment and pay the redress payment to that person or those persons as soon as practicable.

Subclause 60(3) specifies the Operator may, in determining who should be paid the redress payment, consider the people who are entitled to the property of the deceased person under:

(a)

the deceased person's will; and

(b)

the law relating to the disposition of the property of deceased persons.

Subclause 60(4) provides that the Operator may pay the redress payment without requiring the production of probate of the will of the deceased person, or letters of administration of the estate of the deceased person.

A rule making power is provided in subclause 60(5) to allow the rules to prescribe matters relating to the payment of redress payments under clause 60. Due to the 10 year length of the Scheme it is not possible to identify all matters relating to the payment of redress payments under clause 60. The rule making power provided in subclause 60(5) will ensure that any issues that would prevent payment of the redress payment to a person can be addressed.

Example:

Person A applies for redress under the Scheme, is determined to be eligible and an offer of redress is made, but the person dies before they have accepted the offer. Once the Operator of the Scheme is made aware of Person A's death, the redress payment for the person is payable to the person the Operator determines should be paid the redress payment. This may include Person A's next of kin, as stipulated in Person A's will. The redress payment is then paid to the Person A's next of kin.

Division 3 - Abuse for which a Commonwealth institution or participating Territory institution is responsible

Clause 61 extends the eligibility for redress for abuse occurring inside a non-participating State.

Subclause 61(1) sets out the circumstances in which a person can be eligible for redress under the Scheme if the person does not meet the condition in paragraph 13(1)(b) because the sexual abuse of the person occurred inside a non-participating State. A person is eligible for redress under the Scheme where the sexual abuse of that person occurred in a non-participating State if a Commonwealth institution or a participating Territory institution is primarily responsible for the abuse of the person, and they are otherwise eligible for redress under subclause 13(1).

Subclause 61(2) provides that if a person is eligible for redress under the Scheme because of subclause 61(1) then the abuse of the person is within the scope of the Scheme for the purposes of subclause 14(2).

Part 3-2 - Special rules excluding entitlement to redress

Division 1 - Simplified outline of this Part

Clause 62 provides a simplified outline of Part 3-2.

Division 2 - Special assessment of applicants with serious criminal convictions

Clause 63 allows for a determination to be made that a person with a serious criminal conviction is entitled to redress.

Subclause 63(1) provides that clause 63 applies to a person who applies under clause 19 for redress for abuse of the person, and who, either before or after making the application, 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.

Subclause 63(2) provides that for the purposes of subclause 12(4) (persons not entitled to redress where prescribed by the Act or rules), a person to whom clause 63 of the Scheme applies is not entitled to redress unless a determination that the person is not prevented from being entitled is in force under subclause 63(5).

Paragraph 63(3)(a) requires that as soon as practicable after becoming aware of a person's sentence, the Operator must consider whether to make a determination under subclause 63(5) that the person is entitled to redress. Paragraph 63(3)(b) provides that the Operator must give a notice in accordance with subclause 63(4) to each of the following (a specified advisor ):

•

the Attorney-General of the State or Territory (or a person nominated in writing by the relevant State or Territory Attorney-General), if the abuse of the person occurred inside a participating State or Territory or if the person's conviction was for an offence against a law of a participating State or Territory;

•

the Commonwealth Attorney-General, if the abuse occurred outside a participating State or Territory or if the offence was against a law not covered by subparagraph 63(b)(iii).

Subclause 63(4) sets out the requirements for a notice that is required to be given under subclause 63(3). A notice must request the specified advisor to provide advice about whether the Operator should make a determination under subclause 63(5) that the person is entitled to redress. The notice must include sufficient information to enable the specified advisor to provide the requested advice and must specify a period of at least 28 days from the date of the notice within which the advice may be provided.

Subclause 63(5) allows the Operator to determine that a person to whom clause 63 applies is not prevented from being entitled to redress if satisfied that providing redress to the person would not bring the scheme into disrepute or adversely affect public confidence in, or support for, the Scheme.

Subclause 63(6) requires the Operator, in making a determination under subclause 63(5), to take into account the following:

(a)

any advice given by the specified advisor in the period referred to in the notice given under subclause 63(3); and

(b)

the nature of the offence for which the person was convicted; and

(c)

the length of the person's sentence of imprisonment; and

(d)

the length of time since the person committed the offence; and

(e)

any rehabilitation of the person; and

(f)

any other matter the Operator considered to be relevant.

Subclause 63(7) provides that when taking into account the matters set out in subclause 63(6), the Operator must give greater weight to any advice that is given by a specified advisor form the jurisdiction in which the abuse of the person occurred and is given in the period referred to in the notice, that to any other matter..

A rule making power is provided in subclause 63(8) to allow rules to be made prescribing matters relating to the giving of notices to a person or a participating institution in relation to a determination under subclause 63(5).

Example:

Person B applies to the Scheme, and notifies the Operator that they have a previous criminal sentence of 5 years imprisonment. Person B provides the Operator with context of their offending, including information showing that their offence occurred 20 years ago, they have committed no further offending, and provides evidence of positive rehabilitation outcomes. As Person B's abuse and offending occurred in the Australian Capital Territory (ACT), which is a participating Territory, the Operator provides written notice, including Person B's contextual information, to the ACT Attorney General asking for advice on whether Person B should be entitled to redress under the Scheme. The ACT Attorney-General provides advice to the Operator that Person B should receive redress. The Operator, after taking into account the Attorney General's advice and the contextual information of Person B's prior offending, is satisfied that providing Person B with redress would not bring the Scheme into disrepute or adversely affect public confidence in the Scheme. The Operator determines that Person B is entitled to redress.

Person C applies to the Scheme and notifies the Operator that they have a previous criminal sentence of 15 years imprisonment. Person C provides the Operator with information about their offence, which includes information about further offending. Person C does not provide sufficient information demonstrating positive rehabilitation outcomes. Person C's primary offence occurred in Victoria, however Person C's abuse occurred in New South Wales, and both States are participating in the Scheme. The Operator provides written notice, including Person C's contextual information, to the Victorian and News South Wales Attorneys General asking for advice on whether Person C should be entitled to redress under the Scheme. The News South Wales Attorney-General does not provide advice during the specified period.

The Victorian Attorney-General nominates the Secretary of a Department of State of Victoria (the Secretary) to provide advice on their behalf. The Secretary provides advice to the Operator that Person C is a person of notoriety that could bring the Scheme into disrepute, and advises that they should not receive redress. The Operator, after taking into account the Secretary's advice, is satisfied that Person C could bring the Scheme into disrepute or adversely affect public confidence in, or support for, the Scheme. The Operator does not determine that Person C is entitled to redress under the Scheme.

Division 3 - Security notices

Division 3 provides circumstances where a person is not entitled to redress under the Scheme while a security notice is in force. These provisions ensure that those individuals assessed to be engaged in politically motivated violence overseas, fighting or actively supporting extremist groups, or that the individual would be likely to engage in conduct that might prejudice the security of Australia or a foreign country, would not be entitled to redress under the Scheme.

Subdivision A- No entitlement to redress while security notice in force

Clause 64 provides that for the purposes of subclause 12(4) (persons not entitled to redress where prescribed by the Act or rules), a person is not entitled to redress under the Scheme while a security notice is in force in relation to the person.

Subdivision B - Security notice

Clause 65 provides for the Home Affairs Minister to give a security notice requiring that Division 3 apply in relation to a specified person, meaning that person will not be entitled to redress.

Subclause 65(1) provides that the Home Affairs Minister may give the Minister a written notice requiring that Division 3 apply to a specified person in the following circumstances:

(a)

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

(b)

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

(c)

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

(d)

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

Subclause 65(2) requires the Home Affairs Minister to have regard, before giving a security notice, to the extent (if any and as far as the Home Affairs Minister is aware) that any redress payments to the person have been or may be used for a purpose that might prejudice the security of Australia or a foreign country.

Subclause 65(3) clarifies that subclause 65(2) does not limit the matters to which the Home Affairs Minister may have regard before giving a security notice.

Subclause 65(4) provides that a security notice is not a legislative instrument. This is declaratory of the law as security notices would not meet the definition of legislative instrument in subsection 8(4) of the Legislation Act 2003.

Clause 66 gives the Foreign Affairs Minister the power to give the Home Affairs Minister a written notice setting out the following matters in relation to a person:

(a)

either:

(i)

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

(ii)

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

(b)

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

(c)

the request was made on the basis of the circumstance mentioned in subparagraph 14(a)(i) of that Act (that the person might prejudice the security of Australia or a foreign country).

Subclause 66(2) provides that a security notice is not a legislative instrument. This is declaratory of the law as a written notice in this respect would not meet the definition of legislative instrument in subsection 8(4) of the Legislation Act 2003.

Clause 67 requires the Minister to give a copy of a security notice received from the Home Affairs Minister to the Operator and to the Secretary of the Human Services Department.

Clause 68 provides that a security notice comes into force on the day it is given to the Minister, and remains in force until it is revoked.

Clause 69 requires the Home Affairs Minister to consider whether to a revoke a security notice that is in force before the end of the following periods: 12 months after the notice came into force, and before 12 months after the Home Affairs Minister last considered whether to revoke the notice.

Clause 70 allows the Home Affairs Minister to revoke a security notice by written notice to the Minister, with effect from the day the notice is made. The Minister must give a copy of a notice of revocation to the Operator and to the Secretary of the Human Services Department.

Subdivision C - Other matters affected by a security notice

Clause 71 sets out the circumstances in which an application for redress is taken to be withdrawn and an offer taken to have been revoked, because of a security notice.

Subclause 71(1) deems a person's application for redress to have be withdrawn under subclause 22(1) if either a determination has not been made under clause 29 or an offer of redress has not been given to the person under clause 39. The withdrawal takes effect at the time the security notice comes into force.

Subclause 71(2) deems a person's offer to have been revoked by the Operator under subclause 29(4) and the application to have been withdrawn under subclause 22(1) if the person has made an application under clause 19 and an offer of redress has been given under clause 39, but the offer has not been accepted, declined or withdrawn. Revocation of the offer and withdrawal of the application takes effect at the time the security notice comes into force.

A rule making power is provided in subclause 71(3) to allow rules to be made prescribing matters relating to the giving of notices to a person or a participating institution in relation to the operation of Division 3 in relation to the person's entitlement to redress.