Explanatory Memorandum
(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018
Background
The National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018 makes consequential amendments to Commonwealth legislation for the purposes of the Scheme established under the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018.
This Bill makes the following consequential amendments:
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- Payments made under the Scheme will be exempt from the income test under the Social Security Act and the Veterans' Entitlements Act and will not reduce income support payments to a person who receives redress. This is because any payment under the Scheme will not meet the requirements for being ordinary or statutory income. Any payment of redress is also not taxable because the payment is not included in the person's assessable income.
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- Payments under the Scheme will not be capable of being divided among creditors for the purpose of recovering money under bankruptcy proceedings, regardless of whether the person receiving the payment was bankrupt before or after the payment was made.
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- Decisions under the Scheme will not be subject to judicial review under the Administrative Decisions Judicial Review Act as the Scheme is not intended to be legalistic in nature and is intended as an alternative to civil litigation with a low evidentiary burden. Providing survivors with judicial review mechanisms would be overly legalistic, time consuming, expensive and would risk further harm to survivors.
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- Protected information under the Scheme will not be required to be disclosed under the Freedom of Information Act. The amendment will also ensure that the assessment framework policy guidelines are not required to be published as part of the information publication scheme under Part II of the Freedom of Information Act.
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- Amendments to the Social Security (Administration) Act 1999 will be made so that a person may obtain, record, disclose and otherwise use protected information in relation to social security recipients, if it is done so for the purposes of the Scheme.
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- Only adults will be permitted to apply to the Scheme. An amendment to the Age Discrimination Act 2004 will allow for the exclusion of children applying to the Scheme if they will not turn 18 throughout the life of the Scheme to be exempted from unlawful age discrimination. Applying an age limit to the Scheme addresses the risk of children signing away their future civil rights when they may have limited capacity to understand the implications, and when the impact of the abuse may not fully be realised. An age limit will also address the risk of the misuse of monetary payments made to minors.
Clause 1 provides that the short title of the Act is the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Act 2018.
Clause 2 provides that the whole Act will commence at the same time as the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 commences, that is:
- (a)
- if the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 receives Royal Assent before 1 July 2018 - 1 July 2018; or
- (b)
- if the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 receives Royal Assent on or after 1 July 2018 - on a single day that is to be specified in a Proclamation instrument.
However if paragraph (a) or (b) do not occur the whole of the Act will commence the first day after a six month period that commences on the day the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 receives Royal Assent.
Clause 3 provides that legislation that is specified in a Schedule is amended or repealed as set out in that Schedule.
Schedule 1 - National redress Scheme payments exempt from income tests
Social Security Act 1991
Item 1 inserts a new paragraph (jc) into subsection 8(8) of the Social Security Act. This means that payments made to a person under the Scheme will not be included in the definition of income for the purposes of the Social Security Act and other legislation that relies on the definition of income in the Social Security Act.
Veterans' Entitlements Act 1986
Item 2 insert a new paragraph (mb) into subsection 5H(8) of the Veterans' Entitlements Act. This means that payments made to a person under the Scheme will not be included in the definition of income for the purposes of that Act.
Schedule 2 - National redress Scheme payments non-divisible property in bankruptcy
Bankruptcy Act 1966
Item 1 inserts a new paragraph (ga) into subsection 116(2) of the Bankruptcy Act. This paragraph provides that a payment under the Scheme is not able to be divided among creditors for the purpose of recovering money under bankruptcy proceedings, regardless of whether the person receiving the payment was bankrupt before or after the payment was made.
The provision further provides that a payment under the Scheme is exempt from being able to be divided among creditors regardless of whether the payment was made to the person who suffered the sexual abuse to which the payment relates.
There may be instances where a payment due under the Scheme will be made to a person other than the person who suffered the sexual abuse to which the payment relates. This may occur where the eligible person dies prior to a decision being made on the application or dies before accepting or declining the offer (clauses 58 and 59 respectively of the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018).
Schedule 3 - National redress Scheme decisions exempt from judicial review
Administrative Decisions (Judicial Review) Act 1977
Item 1 inserts a new paragraph (zg) into Schedule 1 to the Administrative Decisions Judicial Review Act. This amendment means that decisions under the Scheme will not be subject to judicial review under the Administrative Decisions Judicial Review Act.
Exempting a decision made under the Scheme from the Administrative Decisions Judicial Review Act promotes the objects of the Scheme by ensuring a timely response to eligible survivors of institutional child sexual abuse. The Scheme has been developed with a trauma-informed approach so that judicial review processes will not be required. Judicial review may cause undue administrative delays under the Scheme.
The threshold of 'reasonable likelihood' means that it is more likely that a person who has experienced institutional child sexual abuse will have access to redress under the Scheme. Accordingly, the protections provided by the Administrative Decisions Judicial Review Act are unlikely to be required.
Further, where an applicant is dissatisfied with a decision in relation to their eligibility under the Scheme or the redress that is available to them, the applicant is able to apply for an internal review of the decision (clause 73 of the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018). Clause 75 provides that the internal review of a decision is to be undertaken by the Operator or independent decision-maker delegated with that power. To ensure full independence, neither the Operator nor independent decision-maker is permitted to have been involved in the making of the decision under review.
This alternate review mechanism ensures that an independent and unbiased review of a decision is available at no cost to the applicant. The internal review process is intended to prevent re-traumatising the applicant through having to re-tell their story of past institutional child sexual abuse in an action under the Administrative Decisions Judicial Review Act. Re-traumatisation of an applicant is counter to the objects of the Scheme which seeks to recognise and alleviate the impact of past institutional child sexual abuse.
Schedule 4 - Disclosure and protection of information under the national redress scheme
Freedom of Information Act 1982
Item 1 inserts a new item into Schedule 3 of the Freedom of Information Act, which sets out a list of secrecy provisions from various enactments. This amendment means that 'protected information', as provided for in subclauses 96(6), 99(1), 100(1), 101(1), 101(2) and clause 104, would not be required to be disclosed under the Freedom of Information Act.
This exemption supports the trauma informed approach of the Scheme, ensuring that survivors' information is adequately protected. It also protects institutions' information against fraudulent applications made to the Scheme. The exemption protects the integrity of the operation of the Scheme, removes any uncertainty about the operation of the information publication scheme regarding the assessment policy guidelines, and makes it transparent that protected information under the Scheme is exempt under the Freedom of Information Act.
Social Security (Administration) Act 1999
Item 2 inserts a new paragraph (h) into subsection 202(1) of the Social Security (Administration) Act 1999. This paragraph provides that a person may obtain protected information if the information is obtained for the purposes of the Scheme.
Item 3 inserts a new paragraph (de) into subsection 202(2) of the Social Security (Administration) Act 1999. This paragraph provides that a person may make a record of, disclosure or otherwise use such protected information if it is done so for the purposes of the Scheme.
Schedule 5 - Only adults can apply under the national redress scheme
Age Discrimination Act 2004
Item 1 inserts new table item 32B into Schedule 1 of the Age Discrimination Act 2004, which sets out a list of enactments and instruments to which an exemption for unlawful age discrimination apply. This amendment allows the exclusion of children applying to the Scheme if they will not turn 18 during the life of the Scheme to be exempted from unlawful age discrimination.
Applying an age limit to the Scheme addresses the risk of children signing away their future civil rights when they may have limited capacity to understand the implications, and when the impact of the abuse may not fully be realised, and reduces the risk of monetary payments to minors being misused. The Scheme's support services will be available to child survivors who must wait until they turn 18 years to receive redress under the Scheme.