House of Representatives

Explanatory Memorandum

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

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 BILL 2018

NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE (CONSEQUENTIAL AMENDMENTS) BILL 2018

These Bills are 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 Bills

In 2015, The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) released its Redress and Civil Litigation Report, which recommended the establishment of a national redress scheme for survivors of institutional child sexual abuse. These Bills give effect to the commitment of the Government by establishing the foundations for such a scheme.

The National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 (the National Bill) and the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018 (the Consequential Amendments Bill) will provide redress to eligible survivors of institutional child sexual abuse. The National Redress Scheme for Institutional Child Sexual Abuse (the Scheme) will recognise and alleviate the impact of past child sexual abuse that has occurred in an institutional context by providing three components of redress, including:

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a monetary payment of up to $150,000 as a tangible means of recognising the wrong survivors have suffered. The amount of monetary redress will account for any prior payments that have been made by a participating institution in relation to the abuse for which they are responsible

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access to counselling and psychological services, either through a lump sum payment or state or territory based services, depending on the residence of the survivor

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a direct personal response to survivors from the responsible participating institution(s), should the survivor request one.

The Commonwealth, with the assistance of New South Wales, Victoria and the Australian Capital Territory, is showing national leadership by establishing the Scheme to take responsibility for providing redress to its survivors. Other state and territory governments and non-government institutions are invited to opt-in to the Scheme to provide redress for the survivors that they are responsible for on the basis of the principle of 'responsible entity pays'. The Scheme will be able to provide redress on behalf of:

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a state government's institutions where, for the purposes of paragraph 51(xxxvii) of the Constitution, the state has either referred or adopted the Commonwealth law and the Minister declares in writing that those institutions are participating; and

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a territory government's institutions where the Minister declares in writing that those institutions are participating; and

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a non-government institution where they have agreed to being a part of the Scheme and the Minister declares in writing that it has opted in.

A person is eligible for redress under the Scheme if they are 18 years of age or older, were sexually abused, and that abuse is within the scope of the Scheme. Sexual abuse is within scope of the Scheme if it occurred when the person was a child, took place before the cut-off day of 1 July 2018 (the date of the Scheme's commencement), and a Commonwealth institution or a participating institution is responsible. While redress is for both the sexual and related non-sexual abuse of a person within the scope of the Scheme, to be eligible for redress child sexual abuse must have occurred.

To access redress, a person must apply to the Scheme, and the Scheme Operator (the Secretary of the Department of Social Services, or their delegate) must consider there is a reasonable likelihood that the person is eligible for redress. The Scheme Operator will make an offer of redress to a person where they consider a person is eligible.

To receive redress, a person must accept their offer, and in doing so, release the responsible participating institution(s), and its associates and officials, from any liability for sexual abuse and related non-sexual abuse, of the person within the scope of the Scheme.

Without limiting the circumstances that might be relevant in determining whether a participating institution is responsible for the abuse of a person, it is relevant:

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whether the abuse occurred on the premises of the institution, where activities of the institution took place, or in connection with the activities of the institution

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whether the abuser was an official of the institution when the abuse occurred

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whether the institution was responsible for the day-to-day care or custody of the person when the abuse occurred

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whether the institution was the legal guardian of the person when the abuse occurred

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whether the institution was responsible for placing the person into the institution in which the abuse occurred.

An institution will be primarily responsible for the abuse of a person if the institution is solely or primarily responsible for the abuser having contact with the person. An institution will be equally responsible for the abuse of a person if the institution and one or more other institutions are approximately equally responsible for the abuser having contact with the person.

The Commonwealth or a participating state or territory government may be determined as the funder of last resort (FOLR) where the government is equally responsible with a defunct institution (therefore paying the defunct institution's share of redress). A defunct institution is a non-government institution that no longer exists.

The Consequential Amendments Bill will exempt payments made under the Scheme from income tests for other Commonwealth payments, exclude payments made under the Scheme from the divisible property of a bankrupt and exempt Scheme decisions from judicial review under the Administrative Decisions (Judicial Review) Act 1977. The Consequential Amendments Bill will also allow the Scheme to access social security system information for ease of administration, and make protected information exempt from the Freedom of Information Act 1982. In addition, it will exempt the Bill from the Age Discrimination Act 2004 under Schedule 1 of that Act (as a result of the policy for child applicants, as discussed below).

The design and implementation of the Scheme has been undertaken in collaboration with stakeholders including the Independent Advisory Council on redress, state and territory governments, other Commonwealth departments, and non-government institutions.

Consideration by the Parliamentary Joint Committee on Human Rights

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 and the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 (the Commonwealth Redress Bills), were introduced in the House of Representatives on 26 October 2017. Those Bills supported the establishment of a Commonwealth Redress Scheme (absent a referral of power from a state to establish a National Redress Scheme).

Those Bills were considered by the Parliamentary Joint Committee on Human Rights, who concluded their consideration of the Bills in their Report 2 of 2018, after requesting a response from the Minister on a number of matters in their Report 13 of 2017 (the Minister's response was received on 20 December 2017). The Committee's responses on a number of issues are detailed below.

Human rights implications

This Bill engages the following human rights:

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the right to state-supported recovery for child victims of abuse - article 39 of the Convention on the Rights of the Child (the CRC)

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the right to protection from sexual abuse - article 19 and article 34 of the CRC

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the freedom from discrimination in upholding the rights of the child - article 2 of the CRC

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the right to social security - article 9 of the International Covenant on Economic, Social and Cultural Rights (the ICESCR)

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the right to maternity leave with adequate social security benefits - article 10 of the ICESCR

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the right to health - article 12 of the ICESCR

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the right to effective remedy - article 3 of the International Covenant on Civil and Political Rights (the ICCPR)

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the freedom from unlawful attack on honour and reputation - article 17 of the ICCPR

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the right to freedom of expression - article 19 of the ICCPR

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the right to protection against arbitrary or unlawful interferences with privacy - article 17 of the ICCPR

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the right to a fair hearing - article 14 of the ICCPR.

The right to state-supported recovery for child victims of abuse

Article 39 of the CRC guarantees the right to state-supported recovery for child victims of neglect, exploitation and abuse.

The National Bill promotes this right by establishing the Scheme. The Scheme will support the recovery of survivors of institutional child sexual abuse that occurred prior to the cut-off day (the date of the Scheme's commencement) in Commonwealth institutional settings, and in other institutions that are participating in the Scheme.

The Scheme will directly assist in survivors' recovery by providing access to counselling or psychological services, either through a lump sum payment or state or territory based services, depending on where the survivor lives.

Survivors' recovery may also be aided by the recognition of harm done which is built into several other aspects of the Scheme. A monetary payment will be offered to eligible survivors recognising that the abuse should never have occurred. Survivors will also be able to choose to receive a direct personal response from the responsible institution which may include an opportunity for the survivor to tell their story to a senior representative, receive an apology from the institution and an explanation of what measures have been taken to prevent child sexual abuse from occurring in the future.

Additionally, the Commonwealth will be funding community-based Redress Support Services to assist survivors applying for the Scheme. These services will refocus the support available to survivors engaging with the Royal Commission, to assist them through the process of applying and receiving redress. They will be located in each state and Territory and there will be dedicated services for Aboriginal and Torres Strait Islander people.

Beyond the redress and supports that individual survivors will receive, the establishment of the Scheme will afford a high public profile to the issue of institutional child sexual abuse. For survivors who have felt that they have been ignored, this recognition may be a crucial part of their recovery.

The National Bill will not promote or limit the right to state-supported recovery for survivors of child sexual abuse that occurred outside of participating institutional settings, or after the cut-off day for the Scheme. For those survivors who will not be eligible for the Scheme, existing community supports and civil litigation processes remain available.

The right to protection from sexual abuse

Articles 19 and 34 of the CRC guarantee the right of every child to protection from all forms of physical or mental violence, injury or abuse, including sexual exploitation and abuse.

The National Bill seeks to recognise and alleviate the impact of historical failures of the Commonwealth and other government and non-government organisations to uphold this right, by establishing the Scheme to provide redress to survivors as described above.

The freedom from discrimination in upholding the rights of the child

Article 2 of the CRC guarantees the right of children to freedom from discrimination in the upholding of their other rights in the Convention.

Citizenship and permanent residency status

To be eligible for redress under the Scheme, a survivor must be an Australian citizen or permanent resident at the time they apply for redress. However, it will be possible to deem additional classes of people eligible for redress to recognise particular circumstances consistent with the intent of redress.

Non-citizens and non-permanent residents will be ineligible to ensure the integrity of the Scheme. Verification of identity documents for non-citizens and non-permanent residents would be very difficult. Opening the Scheme to all people overseas could result in organised overseas groups lodging false claims in attempts to defraud the Scheme, which could overwhelm the Scheme's resources and delay the processing of legitimate applications. Past examples of fraud highlight this as a key concern; for example, flood relief payments after the 2011 Queensland floods identified a number of fraudulent applications. These restrictions on eligibility for the Scheme are necessary to achieving the legitimate aims of ensuring the Scheme receives public support and protecting against large scale fraud.

Whilst administrative considerations are generally insufficient for the permissible limitation of human rights, it is relevant in the context of this particular Scheme, as the nature of the survivor cohort is 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 accept 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.

Furthermore, using the aforementioned rule-making power is also necessary to ensure that the Scheme can be appropriately flexible. There may be classes of survivors that the Scheme has not, or could not, envisage to include in the Bill, who could be accommodated via this rulemaking power.

The Parliamentary Joint Committee on Human Rights' report on the Commonwealth Redress Bills concluded:

"...there are concerns that the breadth of the restriction on the eligibility of all non-citizens and non-permanent residents may not be proportionate. However, setting out further classes of persons who may be eligible in the proposed redress scheme rules, including those who would otherwise be excluded due to not being citizens or permanent residents, may be capable of addressing these concerns."

Survivors with serious criminal convictions

Whilst the Bill has a special assessment process for applicants with serious criminal convictions, the CRC does not explicitly exclude different processes on the basis of criminal history.

Applicants will not be entitled to redress if they have been convicted of an offence which received a custodial sentence of five or more years. However, the Operator may determine that the person is entitled to redress if providing redress to the person would not bring the Scheme into disrepute or adversely affect public confidence in, or support for, the Scheme. When making this determination, the Operator must take into account any advice given by relevant Attorneys-General, the nature of the offence, the length of the sentence of imprisonment, the length of time since the person committed the offence, any rehabilitation of the person, and any other matter that the Operator considers is relevant. The view of the relevant Attorney-General where the abuse occurred is weighted more heavily than other matters.

Aboriginal and Torres Strait Islander peoples are over-represented in the criminal justice system, and are sentenced to custody at a higher rate than non-Indigenous defendants. This aspect of the Bill may therefore impact on Aboriginal and Torres Strait Islander peoples, and could be perceived as indirectly discriminating on the basis of race.

However, restricting eligibility on the basis of criminal history is necessary to achieve the legitimate aim of the Scheme aligning with community expectations around who should receive redress payments from Government, with flexibility to make relevant persons entitled to redress on a case-by-case basis, where appropriate to do so. There is a risk the public would not support a Scheme that paid redress to perpetrators of serious crimes. In particular, victims of those crimes may strongly object to redress payments being made to people who have committed serious crimes against them.

Furthermore, the restriction on survivors with serious criminal convictions was developed in consultation with State and Territory Attorneys-General, who were almost unanimous that reasonable limitations on applications is necessary to uphold public faith and confidence in the Scheme, and a necessary part of the framework for the states to opt-in to the Scheme (ensuring nationwide access to redress).

This issue has also been previously addressed in the context of the Defence Abuse Response Taskforce (the DART). To ensure the DART remained in step with community expectations, the rules were changed to render persons convicted of serious crimes ineligible.

The Parliamentary Joint Committee on Human Rights' report on the Commonwealth Redress Bills concluded:

"...there are concerns in relation to the proposed exclusion of persons with certain criminal convictions from being eligible for the scheme. However, the discretion of the scheme operator to determine eligibility of survivors if they are otherwise ineligible may be capable of addressing some of these concerns."

The Committee also noted the Minister's intention to include any limitation on eligibility for persons with criminal convictions in the primary legislation of the National Bill (rather than in subordinate legislation), which is now the case.

Incarcerated survivors

Whilst the Bill sets out different operational processes for incarcerated survivors, the CRC does not explicitly exclude different processes on the basis of incarceration.

The Bill specifies that a person cannot make an application for redress if the person is in gaol (within the meaning of subsection 23(5) of the Social Security Act 1991). This includes persons who are being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence, or persons who are undergoing a period of custody pending trial or sentencing for an offence. The person will therefore be able to make an application for redress if they are not in gaol at some point during the 10 years of the Scheme. This restriction can be overridden if the Operator determines that there are circumstances justifying their application being made, for example because they will be in gaol during the last two years of the Scheme, or they are terminally ill.

This restriction is necessary as the Scheme will be unable to deliver appropriate Redress Support Services to incarcerated survivors, which may make it more difficult for those survivors to write an application, or for those survivors to understand the implications of releasing responsible participating institutions from liability for sexual abuse and related non-sexual abuse within the scope of the Scheme. Additionally, institutions may not be able to deliver an appropriate direct personal response to a survivor if that survivor is incarcerated. As the Scheme will run for 10 years, survivors who are incarcerated for a short period of time will be able to apply when they are no longer incarcerated. In a closed institutional setting there will also be greater difficulty maintaining survivor privacy and confidentiality.

Additionally, survivors who are incarcerated for longer periods of time (i.e. five or more years) may not be entitled to redress as a result of their custodial sentence (detailed above) in the first instance.

Child applicants

Whilst the Bill sets out different operational processes for child applicants, the CRC does not explicitly exclude different processes on the basis of age.

The Bill specifies that a person cannot make an application for redress under the Scheme if the person is a child who will not turn 18 years of age before the Scheme sunset day. This will mean that children aged under eight when the Scheme commences will not be able to receive redress, but will still have the right to pursue civil litigation if they choose.

The Bill also sets out that if a child who will turn 18 years of age before the Scheme sunset day makes an application for redress, the Operator must deal with the application in accordance with any requirements prescribed by the Rules. The Rules will set out that the Operator must not make a determination to approve or not approve the application until the person is 18 years, and once they turn 18, the Operator will make a determination (taking into account any new information provided by the survivor), allowing the survivor to accept or decline an offer. If the offer is accepted, the survivor will be provided with redress.

Notably, of the more than 8,000 survivors who attended private sessions with the Royal Commission, only around 50 survivors were aged 0 to under 8 years (the majority were aged over 50 years). Additionally, in their Redress and Civil Litigation Report, the Royal Commission noted that while it was possible that some individuals will wish to seek redress while they are still a minor, it is not expected that many minors will apply as it will almost always be within the time limitations to commence proceedings through civil litigation. This is because an individual would be more likely to receive larger payment either through settlement or civil litigation than they might through the Scheme. It is therefore assumed that only a small number of survivors will be unable to make an application for redress due to this age limitation.

The restriction on some children applying for redress, and the special process for how children's applications are treated, is necessary to protect those children's interests. As a requirement of the Scheme is to release responsible participating institutions from any liability for sexual abuse and related non-sexual abuse within the scope of the Scheme (restricting their right to later pursue civil litigation), it is necessary to ensure that the effect of the release is fully understood Survivors who are children are unlikely to be able to fully comprehend the implications of such a decision, especially when the impact of their abuse may not have been fully realised yet.

Furthermore, a component of the application process is for survivors to articulate the impact that the relevant abuse has had on them. As the impact of child abuse in a person's early years may not be realised until later in the person's life, an application submitted as a child may not contain the relevant detail. Similarly, a child survivor's ability to articulate their experience would likely increase with age. While children who will turn 18 years of age before the Scheme sunset day are able to make an application for redress as a child, it is important that they are able to provide the Operator with updated information once they are an adult, which the special process will allow.

Whilst other avenues to include children, such as requiring them to have a nominee arrangement were considered, numerous stakeholders raised concerns about nominees not making decisions in the best interests of the survivor, or not using redress payments for the benefit of the survivor. Additionally, even if the Scheme were to require that payments go into a trust account, the necessary interaction with the minor's parent or guardian would present complexities. Some minors who have been sexually abused in an institutional setting may have fractured relationships with their parents or guardians, and may remain in out of home care. Due to these relationships, the minor may not trust that their parent or guardian will make choices in their best interest.

The special process described strikes the right balance between safeguarding the interests of children whilst allowing them to have some indication of their likely redress entitlement. This will allow these children to pursue a range of different options. Some survivors may wait until they turn 18 in order to access redress, whilst others (supported by their parent/ or guardian/s) may choose to pursue civil litigation.

There is precedent to excluding children from redress schemes for the reasons outlined above. Several state-based redress schemes have excluded children from applying, including the Western Australian Scheme and South Australia's ex-gratia scheme. In addition, under Tasmania's and Queensland's schemes, only people who were aged 18 and over at scheme commencement were able to apply.

Child survivors and their families, including both those who are unable to access redress under the Scheme and those who have to wait until they are 18 to receive a redress determination, will be able to access the Scheme's community support services, as well as legal support services to receive advice about available options outside of the Scheme.

This policy has been developed in discussions between state and territory redress ministers, and will be reviewed during the Scheme's review points. The policy will also be carefully communicated to the survivor cohort.

On the basis of above, the Consequential Amendments Bill will exempt the Bill from the Age Discrimination Act 2004 under Schedule 1 of that Act.

Survivors with a security notice in force

Whilst the Bill prohibits applications from people who have a security notice in force, it is unlikely that the CRC was intended to cover discrimination on this basis. In any case, this limitation is reasonable. The Bill specifies that persons are not entitled to redress while a security notice is in force in relation to the person. A person's security notice must be reviewed annually, and can be revoked. Once revoked, the person can apply for redress under the Scheme. This limitation is necessary to ensure that redress funds are not given to persons who may prejudice Australia's national security interests, or may use those funds for purposes against Australia's national security interests. This restriction is consistent with broader Commonwealth policy.

Counselling and psychological services

Whilst Bill sets out different methods of delivering counselling and psychological depending on the residence of a survivor, the CRC does not explicitly exclude different delivery models on the basis of a person's residence.

The Bill specifies that depending on their current residence (not the jurisdiction in which they were abused), survivors will receive either a lump sum payment (to access counselling and psychological services privately), or will be given access to state or territory based services. States and territories, upon opting-in to the Scheme, will elect for survivors residing in their jurisdiction to either receive the lump sum payment (the amount of which will be linked to the severity of abuse experienced by the survivor), or whether they will deliver counselling and psychological services to those survivors. Survivors residing outside Australia will receive the lump sum payment. Responsible participating institutions will be liable for the same amount to support the delivery of counselling and psychological survivors; this will either be paid directly to the survivor or to the applicable jurisdiction delivering services to survivors.

This model of delivering counselling and psychological services recognises that not all states and territories are capable of delivering the same services to survivors, due to a number of constraints including geography (i.e. rural, regional and remote areas) and their existing services. This model allows jurisdictions that are capable of delivering services directly to survivors, and can meet National Service Standards, to do so. Where this is not possible, or where a survivor resides outside of Australia, they will be given a lump sum payment whereby they can access counselling and psychological services privately. In either form of delivery, survivors will still be accessing the benefit of counselling and psychological services, and those services will be comparable.

The right to effective remedy

Article 3 of the ICCPR guarantees the right to effective remedy for those whose rights outlined in the ICCPR are violated. Article 24 of the ICCPR guarantees the right of every child to protection by society.

The Bill limits the right to remedy for survivors who accept redress under the Scheme by requiring them to release all institutions providing them with redress, as well as 'associates' of the institution(s), from any liability for sexual abuse and related non-sexual abuse within the scope of the Scheme. This would have the effect of barring the survivor from civil litigation against the responsible participating institution(s) and their associates and officials for all sexual and non-sexual abuse within the scope of the Scheme.

Due to its non-legalistic nature, redress through the Scheme will be a more accessible remedy for eligible survivors than civil litigation. Entitlement to redress is determined based on a standard of 'reasonable likelihood', which is lower than the standard for determining the outcome of civil litigation, which is the balance of probabilities. The availability of redress is dependent on the extent to which institutions opt-in to the Scheme. Consultation has shown that institutions are not likely to opt-in to the Scheme if they remained exposed to paying compensation through civil litigation in addition to paying monetary redress. Attaching the release to entitlement to all elements of redress is necessary to encourage institutions to opt-in and to make redress available to the maximum number of survivors.

Furthermore, organisations comprising multiple institutions are likely to opt-in to the Scheme as one, forming a 'participating group' (institutions are then known as 'associates' of one another). In order to form a participating group, institutions must be sufficiently connected and appoint a representative for the group. That representative will then be jointly and severally liable with each associate for funding contributions. Attaching the release to all associates of responsible participating institution(s) for sexual abuse and related non-sexual abuse within the scope of the Scheme is therefore reflective of their joint financial liability, and is a necessary component of ensuring that institutions will opt-in to the Scheme together, therefore ensuring maximum coverage for survivors.

To acknowledge the extent that this Bill may limit this right, the Scheme will deliver free, trauma informed, culturally appropriate and expert Legal Support Services. These services will be available to survivors for the lifetime of the Scheme at four key stages of the application process: prior to application so survivors understand eligibility requirements and the application process, during the completion of a survivor's application, after a survivor has received an offer of redress and elects to seek an internal review, and on the effect of accepting an offer, including its impact on the prospect of future litigation. This means that survivors will be able to make an informed choice as to whether they wish to accept their offer and in doing so release the institution(s) and their associates and officials (excluding the perpetrator) from civil liability for abuse within the scope of the Scheme, or seek remedy through other avenues. Survivors will be strongly encouraged to utilise this legal advice. Broader Scheme communications (including the Scheme website) will also ensure that survivors are well informed.

The Parliamentary Joint Committee on Human Rights' report on the Commonwealth Redress Bills concluded:

"The bar on future civil liability of participating institutions may engage and limit the right to an effective remedy. However, the proposed rules governing the provision of legal services under the redress scheme may operate as a sufficient safeguard so as to support the human rights compatibility of the measure."

The freedom from unlawful attack on honour and reputation

Article 17 of the ICCPR guarantees the right of everyone to freedom from unlawful attacks on their honour and reputation.

Key survivor details, including details of alleged perpetrators will be provided, with the survivor's consent, to institutions identified in their application. Participating institutions will be required to provide specific relevant information to the Scheme. All information under the Scheme will be subject to confidentiality. However, there is a risk that unlawful disclosure of information about an abuser by a participating institution irrevocably damages the reputation of an abuser in circumstances where proof to a criminal or even a civil standard is not required.

Supplying details of abusers is necessary to allow participating institutions to provide the relevant information and records that verify 'reasonable likelihood', which underpins eligibility assessments made for the Scheme. The risk of unlawful disclosure by participating institutions is necessarily a part of making redress available for survivors through the Scheme. In order to mitigate this risk there are strict limits and offence provisions relating to access, use and disclosure of Scheme information. Any unlawful attack on honour or reputation will be the result of individuals breaching the provisions of the Bill, rather than resulting from the Bill itself.

The right to protection against arbitrary or unlawful interferences with privacy

Article 17 of the ICCPR guarantees the right of everyone to protection from arbitrary or unlawful interference with privacy. Collection, use and disclosure of personal information under the Scheme will engage Article 17 of the ICCPR.

To establish eligibility, survivors will be required to supply the Scheme with personal information including highly sensitive information about the child sexual abuse that they experienced. To progress the application to assessment, limited survivor and alleged perpetrator details will be provided, with the survivor's consent, to the participating institution(s) identified in their application. Participating institution(s) will be able to use this information in a limited way to facilitate making insurance claims and to institute internal disciplinary procedures where an alleged perpetrator or person with knowledge of abuse is still associated with the institution. Participating institutions will be required to provide the Scheme with specific information pertaining to survivors and alleged perpetrators, including the survivor's and alleged perpetrator's involvement with the institution, any related complaints of abuse made to the institution and details of any prior payments made to the survivor.

This collection and exchange of information is necessary for the eligibility assessment process and information under the Scheme will be subject to confidentiality. Outside of Scheme representatives, only survivors and those they nominate will have access to records relating to their application. Strict offence provisions will be put in place to mitigate risks of unlawful access, disclosure, recording, use, soliciting or offering to supply Scheme information.

The Bill also includes provisions for the Operator to disclose allegations of child sexual abuse to child protection authorities and police in certain circumstances, and allows institutions to comply with their existing mandatory reporting obligations under state and territory laws (imposing offences for the misuse of protected information). This will be communicated to survivors prior to them submitting their application. The Scheme, in very limited circumstances, will also be required to refer some matters to police without the survivor's consent in cases of serious risk to life. Additionally, some non-identifying information collected by the Scheme will be used to report on performance of the Scheme.

The information sharing provisions of the Bill are necessary to achieve the legitimate aims of assessing eligibility under the Scheme and protecting children from abuse, and are appropriately limited to ensure they are a proportionate means to achieve those aims.

The Parliamentary Joint Committee on Human Rights' report on the Commonwealth Redress Bills concluded:

"The committee notes that disclosure in such circumstances may be sufficiently circumscribed such that the measure would be a proportionate limitation on the right to privacy. The committee recommends that the Scheme Operator's disclosure power be monitored by government to ensure that any limitation on the right to privacy be no more extensive than what is strictly necessary."

The Government intends to monitor the Operator's disclosure power, including through broader reviews of the Scheme's implementation. General information relevant to disclosure may also be detailed in the Scheme's annual report to the Minister (for presentation to the Parliament) and also has the capacity to be scrutinised through the Scheme's governance arrangements.

The Committee also noted that the (former) Minister has indicated he will consider including a positive requirement that the Operator must have regard to the impact the disclosure may have on a person to whom the information relates in any future legislation developed for a National Redress Scheme. This has now been reflected in the Bill.

The right to freedom of expression

Article 19 of the ICCPR requires that everyone shall have the right to freedom of expression, which includes the freedom to seek, receive and impart information. Article 19(3) provides that this right may be subject to restrictions provided by law, where it is necessary for respect of the rights of others. The Bill sets out a number of restrictions on the use and disclosure of protection information in the Scheme.

The Scheme will utilise a number of different types of information which will be protected. This includes information provided by applicants and institutions, and other materials such as the assessment framework policy guidelines. There are a number of limited authorisations for the disclosure of this information (as described in relation to privacy), with strict offences for unauthorised access, recording, disclosure, soliciting, offering and use of protected information (depending on the circumstances).

These restrictions are reasonably necessary for respect of the rights of others. These restrictions predominantly serve to protect the privacy of persons engaging with the Scheme, including survivors (noting that the right to protection against arbitrary or unlawful interferences with privacy, as detailed above, would necessarily be infringed without reasonable limitations around disclosure). This is particularly important as survivors of institutional child sexual abuse are a vulnerable cohort, and the release of their private information is likely to be extremely distressing and re-traumatising.

Restrictions on the use and disclosure of protection information is also necessary for the broader operation of the Scheme. For example, participating institutions expect that the information they supply will be kept secure, and to not have appropriate safeguards would jeopardise their participation in the Scheme.

The right to social security and the right to maternity leave with adequate social security benefits

Article 9 of the ICESCR guarantees the right of everyone to social security. Article 10 of the ICESCR guarantees the right of mothers to maternity leave with adequate social security benefits. The Consequential Amendments Bill will uphold these rights by making monetary payments made under the Scheme exempt from income tests for other government payments.

The right to health

Article 12 of the ICESCR guarantees the right of everyone to the highest attainable standard of physical and mental health. The Bill promotes survivors' right to health by providing access to counselling and psychological services to survivors who seek it as one of the three elements of redress, maximising survivors' access to health services. Counselling and psychological services will be delivered either through a lump sum payment or state or territory based services, depending on where the survivor lives at the time of their application.

The right to a fair hearing

Article 14 of the ICCPR requires that in the determination of a person's rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. A determination of a person's entitlement to redress as a result of sexual abuse, and a finding of responsibility on the part of institutions for such abuse, involves the determination of rights and obligations and therefore is likely to constitute a suit at law. There could be a perception that the Bill limits this entitlement by excluding external merits review and review by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 from the Scheme.

The decision to limit external merits review rights from the Scheme, including review by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977, was made following consultation with institutions, survivors and the Independent Advisory Council on Redress following the Royal Commission's recommendation. This is consistent with the non-legalistic nature of redress schemes. The Scheme provides survivors with access to an internal review process, but no rights to external merits review, as this would be overly legalistic, time consuming, expensive (adding considerable costs to administration) and would risk further harm to survivors. Furthermore, if these avenues were available, many survivors may have unrealistic expectations of what could be achieved given the low evidentiary barrier to entry to the Scheme. Survivors also retain the right to pursue civil litigation until they accept an offer of redress.

The Scheme will appoint appropriately qualified, independent assessors, known as Independent Decision Makers, who will make all decisions on applications made to the Scheme. Independent Decision Makers will not report or be answerable to Government. These Independent Decision Makers will be able to provide survivors with access to independent and impartial internal review without subjecting them to potential re-traumatisation.

Furthermore, members of the Administrative Appeals Tribunal are appointed based on their judicial experience, not recruited for the skillset and understanding of the survivor cohort that will be required of Independent Decision Makers. The Administrative Appeals Tribunal must make a legally correct or preferable decision, while Independent Decision Makers will make decisions on applications with highly variable levels of detail and without strict legislative guidance on what weight should be applied to the information they do receive. Without an understanding of past decisions under the Scheme, the Tribunal may reach decisions that are inconsistent with past decisions made by Independent Decision Makers. Utilising the Administrative Appeals Tribunal for merits review under the Scheme risks inappropriately imposing a legalistic lens on a non-legalistic decision making process.

The Parliamentary Joint Committee on Human Rights' report on the Commonwealth Redress Bills concluded:

"Having regard to this information and the particular context in which the review scheme operates, the internal review mechanism may be capable of ensuring that survivors have adequate opportunities to have their rights and obligations determined in a manner that is compatible with the right to a fair hearing. However, the committee recommends that the operation of the internal review mechanism be monitored to ensure that survivors have sufficient opportunities to have their rights and obligations determined by an independent and impartial tribunal."

The Government intends to monitor the Scheme's internal review mechanism, including through broader reviews of the Scheme's implementation. General information relevant to internal review may also be detailed in the Scheme's annual report to the Minister (for presentation to the Parliament) and also has the capacity to be scrutinised through the Scheme's governance arrangements.

Conclusion

The Bill and Consequential Amendments Bill are compatible with human rights because they promotes the protection of human rights and to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate to ensuring the Scheme's integrity and proper functioning.