House of Representatives

Explanatory Memorandum

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

Chapter 7 - Other matters

Part 7-1 - Application of this Act

Division 1 - Simplified outline of this Part

Clause 173 provides a simplified outline of Part 7-1.

Division 2 - Application of this Act

Clause 174 provides the constitutional basis of the Bill.

Specifically, subclause 174(2) provides that where the abuse occurred inside a participating State, the Bill applies based on the legislative powers of the Commonwealth Parliament (other than under paragraph 51(xxxvii) of the Constitution) and the legislative powers that have been given to the Commonwealth Parliament as a result of a reference or adoption by the Parliaments of participating States for the purposes of paragraph 51(xxxvii).

Subclause 174(3) provides that where the abuse occurred in a non-participating State, the application of the Bill is based on sections 51 (other than paragraph 51(xxxvii)) and 122 of the Constitution, and the other legislative powers that the Commonwealth Parliament has under the Constitution.

In respect of abuse that occurred within an internal or external Territory, subclause 174(4) provides that the Bill applies on the basis of section 122 of the Constitution which provides for the Commonwealth to make laws for the government of a Territory, and other legislative powers that the Commonwealth Parliament has under the Constitution.

Where the abuse occurred outside Australia, subclause 174(5) provides that the Bill applies on the basis of paragraph 51(xxix), section 122 and the other legislative powers that the Commonwealth Parliament has under the Constitution.

Clause 175 provides that the Bill does not exclude or limit the operation of a law of a State and Territory where the laws can operate concurrently. This seeks to provide for potential conflicts of law where section 109 of the Constitution may apply.

Subclause 175(2) provides that this extends to the concurrent operation of the Bill with a law of a State or Territory that also provides for redress (however described) to be provided to a person for abuse suffered by the person.

Clause 176 sets out that the Bill applies inside and outside Australia and extends to every external Territory, such as Ashmore and Cartier Islands.

Clause 177 provides that the Bill binds the Crown in each of its capacities.

Part 7-2 - The National Redress Scheme Rules

Division 1 - Simplified outline of this Part

Clause 178 provides a simplified outline of Part 7-2.

Division 2 - The National Redress Scheme Rules

Clause 179 provides for the making of rules by the Minister for the purposes of the Scheme.

Subclause 179(1) provides the Minister with the power to make rules, by legislative instrument prescribing matters:

(a)

required or permitted by the Bill to be prescribed by the rules; or

(b)

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

The 'necessary and convenient' power provided in this subclause ensures that the Commonwealth is able to incorporate additional matters that arise over the 10 year course of the Scheme. However, this power cannot be used to extend the scope or general operation of the Bill. The power can be used to fill out the purposes of the Bill and support its effective operation, but it cannot be used to widen the Bill's scope.

Subclause 179(2) further provides that the rules may provide for matters relating to:

(a)

an institution ceasing to be a participating institution;

(b)

a participating group ceasing to be a participating group;

(c)

a participating State ceasing to be a participating State;

(d)

a person becoming, being or ceasing to be a representative for a defunct institution, a lone institution or a participating group;

(e)

overriding, for the purposes of the Scheme, any provisions of settlement agreements or deeds that relate to confidentiality or would inhibit access to, or the operation of, the Scheme.

Subclause 179(3) provides that the rules may apply, adopt or incorporate any matter contained in the assessment framework as in force from time to time. This is despite section 14 of the Legislation Act 2003. For example, the inclusion of this clause in the Bill relates to references about the methodology to be applied in calculating the maximum amount of the redress payment that may be payable to the person. Although the assessment framework is not subject to disallowance, it will be made available on the Federal Register of Legislation once registered.

It is essential that the Scheme is flexible and adaptable to the realities of implementation, which requires some provisions to be in delegated legislation, such as rules. The scale of this Scheme is different to other state-based schemes or overseas experiences, with greater coverage, scale and participating institutions than these other schemes (for example, the Irish Redress Scheme only included one institution). This is the reason the Scheme will need to be flexible to account for any unforeseen numbers of survivors, institutional contexts and other circumstances. Accordingly, it will be necessary to adjust policy settings to mitigate against unintended outcomes for survivors. This flexibility allows the Scheme to meet its objective of a survivor-focussed and expedient process, with a lower evidentiary threshold, to ensure a survivor experience less traumatic than civil justice proceedings. Protections will be in place to balance this flexibility, including governance arrangements to provide oversight of the operation of the Scheme.

Subclause 179(4) provides that the provisions of the Bill that provide for rules to deal with matters do not operate to limit each other.

Subclause 179(5) sets out what the rules may not provide for. This includes the following:

(a)

create an offence or civil penalty;

(b)

provide powers of:

(i)

arrest or detention; or

(ii)

entry, search or seizure;

(c)

impose a tax;

(d)

set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Bill;

(e)

directly amend the text of the Bill.

Using rules rather than regulations, or incorporating all elements of the Scheme in the Bill, provides appropriate flexibility and enables the Scheme to respond to factual matters as they arise. It is uncertain how many applications for redress the Scheme receive at the commencement of the Scheme, and whether there will be unforeseen issues requiring prompt responses. It is therefore appropriate that aspects of the Scheme are covered by rules that can be adapted and modified in a timely manner. The need to respond quickly to survivor needs is also a key feature of the Scheme.

Part 7-3 - Other matters

Division 1 - Simplified outline of this Part

Clause 180 provides a simplified outline of Part 7-3.

Division 2 - Giving notices for the purposes of the scheme

Clause 181 sets a requirement to notify the Operator of certain circumstances.

Subclause 181(1) requires a redress applicant to notify the Operator if they are 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 after making a redress application. The person must notify to Operator of that fact in accordance with any requirements prescribed by the rules. The rules may prescribe circumstances for when a person or a participating institution must or may notify the Operator of a matter and requirements relating to the giving of the notice (subclause 181(2)).

Clause 182 deals with the Operator giving notices to persons or institutions.

Subclause 182(1) provides that the rules may require or permit the Operator to give a notice to a person or an institution about a matter relating to the operation of this Bill.

Subclause 182(2) provides that if this Bill requires or permits the Operator to give a notice to a person or institution, the Operator may give the notice in any way that the Operator considers appropriate.

Division 3 - Delegation

Clause 183 enables the Minister to delegate his or her powers of functions under the Bill.

Subclause 183(1) provides that the Minister may, in writing, delegate all or any of his or her powers or functions under the Bill to the Operator or to a person who holds or performs the duties of an SES Band 3 position (or equivalent) in the Department. The 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.

Subclause 183(2) provides that a delegate, exercising a power or function delegated by the Minister under subsection 183(1), must comply with any directions of the Minister.

Clause 184 enables the Operator to delegate any or all of his or her powers or functions to an officer of the Scheme. An officer of the Scheme is defined in clause 6 to mean a person in the Department or the Human Services Department performing duties, or exercising powers or functions, under or in relation to the Bill. A broad delegation of the Scheme Operator's powers is necessary to enable the Department of Human Services and the Department of Social Services to administer the Scheme in an efficient manner, which is responsive and flexible to address matters as they arise. The Operator will delegate functions for the ordinary administration of the Scheme and will determine the appropriate level of delegation commensurate with the administrative function being undertaken.

Subclause 184(1) requires that any delegation is to be made in writing and clarifies that powers and functions under clauses 29, 75 and 190 cannot be delegated.

The capacity for the Operator to delegate all or any of his or her powers or functions (other than those excluded) is due to the nature of the survivor cohort, such that timeliness in processing Scheme applications is critical. Over half of the survivors anticipated to apply to the Scheme are over 50 years of age, and so significant delays to the processing of applications may result in survivors passing away before they have the opportunity to receive redress. It is also widely recognised survivors of child sexual abuse also experience poorer health and social outcomes, amplifying the need for timely decision-making and for promoting the rights of survivors. Timeliness in the processing of applications is also critical to providing closure to survivors, and prolonging the processing of applications is likely to re-traumatise those survivors. These issues were highlighted by the Royal Commission.

Subclause 184(2) provides that a delegate must comply with any directions of the Operator when exercising delegated powers and functions.

Subclause 184(3) states that the Operator may, in writing, delegate his or her powers and functions under clauses 29 or 75 only to an independent decision-maker. These powers and functions are limited to being delegated only to an independent decision maker as they relate to making determinations on applications and internal review of redress decisions. An independent decision-maker can be engaged under paragraph 185(1).

Subclause 182(4) makes it clear that an independent decision-maker does not need to comply with any directions of the Operator when making a determination on an application (clause 29) or reviewing a redress decision (clause 75). This ensures that independent decision-makers are able to act with genuine independence in making decisions when exercising a power or performing a function under those clauses.

Division 4 - Independent decision-makers

Clause 185 deals with engaging persons to be independent decision-makers.

Subclause 185(1) provides for the Operator to engage a person, under written agreement, to assist in the performance of his or her functions in relation to making a determination under clause 29 on an application for redress or clause 75 relating to internal review. The Operator may engage such a person on behalf of the Commonwealth only with the approval of the Minister.

Subclause 185(2) requires the Minister to consult with appropriate Ministers from the participating States and participating Territories in accordance with the National Redress Scheme Agreement before approving the engagement of a person as an independent decision-maker under subclause 185(1). 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.

Subclause 185(3) provides that a person engaged under subclause 185(1) is an independent decision-maker.

Subclause 185(4) makes it clear that Subdivision A of Division 3 of Part 2-2 of the Public Governance, Performance and Accountability Act, that deals with general duties of officials and any rules made under that Act for the purposes of that Subdivision, applies to an independent decision-maker in the same way as it applies to an official (as defined in section 13 of the Public Governance, Performance and Accountability Act).

The note to subclause 185(4) indicates that the duties of officials under the Public Governance, Performance and Accountability Act 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.

Division 5 - Miscellaneous

Clause 186 deals with giving agreement. It provides that a reference in the Bill to the Commonwealth, a participating Territory, an institution or a person agreeing to a matter is a reference to the body or person giving agreement in the way (if any) prescribed by the rules.

A note to clause 186 provides an example of where an agreement is required and directs the reader to paragraph 115(3)(b) that provides that the Minister must not make a declaration that a non-government institution is a participating institution unless the institution has agreed to participate in the Scheme. Under clause 186, the way the institution gives its agreement must be the way prescribed by the rules (if the rules prescribe a way).

Clause 187 sets out the requirements for annual reporting on the operation of the Scheme.

Subclause 187(1) requires the Operator to prepare and give an annual report on the operation of the Scheme during the year to the Minister for presentation in Parliament. This must be done as soon as practicable after the end of each financial year.

Subclause 187(2) specifies that the annual report must include any information about any matter prescribed by the rules and comply with any requirements prescribed by the rules.

Clause 188 states that the Operator may, in writing, approve one or more forms for the purposes of a provision of the Bill that provides for something to be done in an approved form.

Clause 189 provides that a determination by the Operator under the Bill must be made in writing, but is not a legislative instrument.

Clause 190 provides for the enforcement of civil penalty provisions.

Subclause 190(1) provides that each civil penalty provision of this Bill is enforceable under Part 4 of the Regulatory Powers Standard Provisions Act.

The note to subclause 190(1) alerts the reader that Part 4 of the Regulatory Powers Standard Provisions Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Subclause 190(2) provides that the Operator, an SES employee, or an acting SES employee, in the Department or the Human Services Department is an authorised applicant in relation to the civil penalty provisions of this Bill for the purposes of Part 4 of the Regulatory Powers Standard Provisions Act.

Subclause 190(3) provides that the Federal Court of Australia or the Federal Circuit Court of Australia is a relevant court in relation to the civil penalty provisions of this Bill for the purposes of Part 4 of the Regulatory Powers Standard Provisions Act.

Subclause 190(4) provides that Part 4 of the Regulatory Powers Act, as it applies in relation to the civil penalty provisions of this Bill, extends to every external Territory.

Subclause 190(5) provides that Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Bill, does not make the Crown in right of the Commonwealth, a State or a Territory liable to a pecuniary penalty.

Clause 191 provides for compensation for acquisition of property, in circumstances where this could occur.

Subclause 191(1) sets out a requirement for reasonable compensation to be paid to a person where the operation of the Bill would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution).

Subclause 191(2) provides that where compensation is payable, and the Commonwealth and a person do not agree on the amount of compensation, the person may commence proceedings in the Federal Court of Australia or the Supreme Court of a State or participating Territory.

Clause 192 provides for mandated reviews of the Scheme, at two years after the commencement of the Scheme and another at eight years after the commencement of the Scheme.

Subclause 192(1) requires the Minister to cause a review of the operation of the Scheme to be commenced as soon as possible after the second anniversary of the Scheme start day or at a date specified in the rules, where this is done before the second anniversary and specifies a date after the second anniversary. The Scheme start day is defined in clause 6 as being the day the Bill commences.

Subclause 192(2) specifies that the second anniversary review must include consideration of the:

(a)

extent to which the States, participating Territories and non-government institutions have opted into the Scheme, including key facilitators and barriers to opting in;

(b)

extent to which survivors who are eligible for redress have applied for redress;

(c)

extent to which redress has been provided to survivors who are entitled to redress under the Scheme;

(d)

application, assessment and decision-making process, including user experiences of the process;

(e)

redress payments;

(f)

access to counselling and psychological services under the Scheme;

(g)

extent to which survivors access direct personal responses under the Scheme, including factors influencing the uptake and experiences with the direct personal response process;

(h)

availability and access to support services under the Scheme;

(i)

implications of the Scheme's design for survivors including Indigenous and child migrant survivors as well as those who are still children or who have a criminal conviction;

(j)

operation of the funding arrangements, including the Scheme administration element of funding contribution;

(k)

the operation of the funder of last resort provisions;

(l)

the extent to which the Scheme has been implemented as proposed by the National Redress Scheme Agreement;

(m)

views of key stakeholders on the Scheme, including representatives from survivor groups, non-government institutions, advocacy groups, support services provider groups, the Independent Advisory Council, the Commonwealth, the States and the Territories;

(n)

the impact and effectiveness of clause 37 (which is about the admissibility of certain documents in evidence in civil proceedings);

(o)

the question of whether an institution (the first institution ) should be responsible for abuse that occurs in connection with another institution merely because the first institution regulates or funds the other institution or its activities;

(p)

the administration of the Bill and the Scheme;

(q)

any other matter relevant to the general operation of the Bill or the Scheme.

Subclause 192(3) provides for a review of the operation of the Scheme to be initiated by the Minister as soon as possible after the eighth anniversary of the Scheme start day or, if before the eighth anniversary and the rules prescribe a day that is after the eighth anniversary, then the review should be initiated that day.

Subclause 192(4) provides matters that the eighth anniversary review much consider, which include:

(a)

the matters referred to in subsection 192(2);

(b)

the results of any other review or evaluation conducted in relation to the operator of the Scheme.

Clause 193 provides the sunset provisions for the Scheme

Subclause 193(1) provides that the Scheme will cease to have effect at the end of the day that is the tenth anniversary of the Scheme start date or, if before the tenth anniversary, the rules prescribe a date that is after the tenth anniversary then the Scheme will cease to operate at the end of the date specified (the Scheme sunset day).

The note clarifies that the fact that the Bill ceases to have effect does not affect the operation of clause 43 in releasing and discharging an institution or official from civil liability (see section 7 of the Acts Interpretation Act 1901).

The capacity to extend the sunset day of the legislation is to ensure that all elements of redress (redress payment, counselling or psychological services and a direct personal response) under the Scheme have been delivered. It will also ensure that all funding contributions, redress components, Scheme administration elements and late payment penalty amounts have been paid by each participating institution.

Subclause 193(2) provides that despite subclause 193(1), prior to the first anniversary of the Scheme sunset day rules may be made for the Scheme (under clause 179) for the purposes of subclauses 193(3) and 193(4).

Subclauses 193(3) and 193(4) permit the rules to prescribe matters of a transitional nature (including prescribing any saving or application provisions) in relation to when the Bill will cease to have effect under subclause 193(1), and may (without limiting subclause 193(3)) provide that certain provisions of the Bill continue to apply after the sunset day for the purposes set out in the rules. The rules may also specify that certain provisions continue to apply after the sunset day in a modified way for the purposes set out in the rules.

Subclause 193(5) provides that subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to rules made for the purposes of this clause.

Subclause 193(6) provides that all legislative instruments made under this Bill (including the rules) are repealed immediately before the first anniversary of the Scheme sunset day.