House of Representatives

Explanatory Memorandum

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

Chapter 4 - Administrative matters

Part 4-1 - Review of determinations

Division 1 - Simplified outline of this Part

Clause 72 provides a simplified outline of Part 4-1.

Division 2 - Review of determinations

Clause 73 provides that a person may apply to the Operator to review a determination made in relation to the person under clause 29. The determination made under clause 29 is the original determination.

Subclause 73(2) provides that the application for review must be made before the day specified in the notice of the determination given under clause 34. Clause 34 requires the Operator to give a notice about the determination made under clause 29. The application must also be in the approved form.

Clause 74 provides for a person to withdraw their application for internal review under clause 73 at any time before the review has been completed. An application that is withdrawn is taken to have never been made. An application may be withdrawn by giving oral or written notice to the Operator.

Clause 75 sets out the process for review of a redress determination.

Subclause 75(1) provides that the Operator must, if an application is made under clause 73, review the original determination or cause the original determination to be reviewed by an independent decision-maker who has been delegated the power to make such a determination and who was not involved in making the original determination.

Subclause 75(2) provides that the person reviewing the original determination must reconsider the determination and either affirm or vary the determination or set aside the determination and substitute a new determination.

Subclause 75(3) clarifies that when reviewing the original determination, the person may only have regard to the information and documents that were available to the person who made the original determination. The limitation placed on the internal reviewer to only have regard to the information and documents that were available to the person who made the original determination is to balance the need for an expedited application process for survivors with the burden of administration. Further, allowing the internal reviewer to request further information from survivors will create a high level of administrative burden, add to the potential re-traumatisation of survivors having to seek additional material and increase the operational costs for institutions to participate in the Scheme.

Clause 76 provides that a determination to vary an original determination or to set aside an original determination and substitute a new determination takes effect on the day specified in the review determination. The review of the original determination as varied or substituted is taken to be the determination made by the Operator under clause 29 from the day the review determination takes effect.

Example:

Person A makes an application for redress and is made an offer, but disagrees with the offer made. They then have the determination reviewed internally, and a substituted offer is made. The review determination may specify a date (for example, 20 March 2020) when the new determination takes effect.

Clause 77 provides that the Operator must give the applicant written notice of the review determination, stating the reasons for it.

Clause 78 clarifies the interaction between review and the offer of redress. Clause 78 applies when a person is given an offer of redress under clause 39 and the person applies for a review of the original determination

Subclause 78(2) makes it clear that a person is taken to have withdrawn an application for review if they accept or decline an offer within the acceptance period but before the review is completed. In such circumstances, the application for review is taken to have been withdrawn immediately before the offer is accepted or declined.

Under subclause 78(3), if the original determination under subclause 29(2) is varied or substituted, the Operator must withdraw the original offer and notify the person in writing. If the varied or substituted determination approves the application for redress, the Operator must give the person a new offer in accordance with clause 39.

Under subclause 78(4), if the original determination under 29(2) is affirmed and approves the application for redress and the person has been given an offer of redress under clause 39, the Operator must extend the acceptance period under clause 40(2) for an additional two months.

Clause 79 requires the Operator to notify each institution that was notified of the determination under clause 35 if a person makes an application for review, withdraws an application for review or if a review determination is made. The notice must comply with any requirements prescribed by the rules.

Part 4-2 - Nominees

Division 1 - Simplified outline of this Part

Clause 80 provides a simplified outline of Part 4-2.

Division 2 - Appointment of nominees

Clause 81 provides for the appointment of nominees.

Subclause 81(1) allows the Operator to appoint a person, in writing, to be the assistance nominee or legal nominee of the applicant. A body corporate may be named as a person's assistance nominee or legal nominee.

The Operator cannot appoint a person to be the assistance nominee of the applicant unless the person and the applicant consent in writing to the appointment (subclause 81(2)).

Subclause 81(3) provides that the Operator cannot appoint a person to be an applicant's legal nominee unless:

(a)

under a law of the Commonwealth, a State or a Territory the person has power to make decisions for the applicant in all matters that are relevant to the duties of a legal nominee; and

(b)

the person gives written consent to the appointment; and

(c)

the Operator has taken into account any wishes of the applicant regarding the making of such an appointment.

The note to subclause 81(3) makes it clear that a person who may be eligible to be an applicant's legal nominee is a person who, under a guardianship order or power of attorney, has power to make decisions for the applicant in all relevant matters.

Under paragraph 81(3)(c), the Operator is only required to consider the wishes of the applicant, and does not require the applicant's consent. This is because it may not be possible for some applicants to provide consent where a legal nominee is to be appointed (for example, where the applicant has an existing power of attorney arrangement as a result of their incapacity).

Subclause 81(4) provides that a copy of an appointment under clause 81 must be given to the nominee and the applicant.

Clause 82 provides for the suspension and revocation of nominee appointments.

Subclause 82(1) specifies that the Operator must revoke the appointment of an assistance nominee or legal nominee if requested in writing by the nominee. The appointment of an assistance nominee must also be revoked if requested in writing by the applicant. Revocation must take place as soon as practicable.

Subclause 82(2) provides for the suspension or cancellation of a nominee's appointment. This may occur where the Operator gives the nominee a notice under clause 87 and the nominee subsequently informs the Operator that an event or change of circumstances has occurred, or is likely to occur, and that event or change of circumstances is likely to have an effect referred to in paragraph 87(1)(b) (that is, it will affect the ability of the nominee to act as the legal or assistance nominee of the person).

Subclause 82(3) provides that the Operator may suspend or revoke a nominee's appointment in circumstances where the Operator gives a nominee a notice under clause 88 and the nominee does not comply with a requirement of the notice.

While an appointment is suspended the appointment has no effect (subclause 82(4)). The Operator may revoke the suspension of an appointment that was suspended under subclause 82(2) or (3) at any time (subclause 82(5)). The suspension or revocation of an appointment and the revocation of a suspension must be in writing (subclause 82(6)) and has effect on and from the day specified (subclause 82(7)).

Subclause 82(8) provides that the Operator must give a nominee and applicant a copy of any suspension, revocation or revocation of a suspension of the nominee's appointment.

Division 3 - Duties, functions and responsibilities of nominees

Clause 83 sets out the duty of an assistance nominee or legal nominee of a person. The duty is to act in the best interests of the person at all times. Where the nominee reasonably believes that doing an act is in the best interests of the person, the nominee does not breach the duty by doing that act. Likewise, where the nominee reasonably believes that refraining from doing an act is in the best interests of the person, the nominee does not breach the duty by refraining from doing that act.

Clause 84 sets out the effect of actions of an assistance nominee.

Subclause 84(1) allows an assistance nominee of a person to perform any act that may be done by the person under or for the purpose of the Bill.

Subclause 84(2) provides that subclause 84(1) does not authorise a person's assistance nominee to do any of the following on the person's behalf:

(a)

make an application for redress under clause 19;

(b)

accept an offer of redress under clause 42;

(c)

decline an offer of redress under clause 45;

(d)

do an act for the purposes of Division 2;

(e)

do an act prescribed by the rules.

However, subclause 84(1) does not apply if the Operator gives a notice to a person who has an assistance nominee and the notice requires the person to do an act (subclause 84(3)).

The limitations set out under subclause 84(1) reflect the purpose of an assistance nominee - that is, to assist an applicant with the redress process but not make key decisions on their behalf. This is distinct from a legal nominee, as set out below.

Subclause 84(4) provides that an act done by a person's assistance nominee under clause 84 has effect as if it had been done by the person.

Clause 85 sets out the effect of actions of a legal nominee.

Subclause 85(1) allows a legal nominee of a person to perform any act that may be done by the person under or for the purpose of the Bill.

Subclause 85(2) clarifies, without limiting subclause 85(1), that a legal nominee for a person may make an application under the Bill on behalf of the person and the application will be taken to be made by the person. Similarly, a legal nominee for a person may accept an offer under clause 42 or reject an offer under clause 45 on behalf of the person and the offer will be taken to have been accepted or declined by the person.

The actions set out under subclause 85(2) are consistent with the higher 'threshold' required to appoint a legal nominee in the first instance. That is, the person will already have the power to make decisions for the applicant under an existing law, and as a result, they will be able to make key decisions for the applicant in relation to redress such as accepting an offer.

Subclause 85(3) provides that an act done by a person's legal nominee under clause 85 has effect as if it had been done by the person.

Clause 86 provides for giving notices to an assistance nominee or legal nominee.

Subclause 86(1) enables the Operator to give any notice the Operator is required or authorised to give under the Bill, to a person's assistance nominee or legal nominee in place of the person. Any such notice must in every respect be in the same form and in the same terms as if it were being given to the person (paragraph 86(2)).

Clause 87 sets out the requirement for a nominee to inform the Operator of matters that affect their ability to act as a nominee.

Subclause 87(1) states that the Operator may give a nominee a notice that requires the nominee to inform the Operator if there is an event or change of circumstances or the nominee becomes aware that such an event or change of circumstances is likely to happen. The event or change of circumstances must be likely to affect the ability of the nominee to act, the ability of the Operator to give notices to the nominee or the ability of the nominee to comply with notices given by the Operator. An example of a relevant change of circumstances is that the nominee has changed address.

Subclause 87(2) sets out specific requirements for the notice. The notice must be in writing and must specify how, and the period within which the nominee is to inform the Operator and the period within which the nominee is to inform the Operator. A notice will not be invalid merely because it fails to specify how the information is to be given to the Operator (subclause 87(3)).

The period within which information must be provided to the Operator must not end any earlier than 14 days after the day of the event or change of circumstances or the day on which the nominee becomes aware that the event of change or circumstances is likely to happen (subclause 87(4)). However this does not apply to a requirement in a notice to inform the Operator that the nominee proposes to leave Australia (subclause 87(5)).

Division 4 - Other matters relating to nominees

Clause 88 protects a person against liability for actions of the person's nominee. This clause operates so that a person is not taken to have committed an offence against the Bill in relation to any act or omission of their nominee.

Clause 89 protects the nominee against criminal liability. This clause provides that a nominee of a person is not subject to any criminal liability under the Bill in relation to any act or omission of the person or anything done in good faith by the nominee in his or her capacity as nominee.

Clause 90 provides that if the Operator gives a notice to a person who has a nominee, the Operator may inform the nominee of the fact that the notice has been given and may inform the nominee of the terms of the notice.

Part 4-3 - Protecting information under the Scheme

Division 1 - Simplified outline of this Part

Clause 91 provides a simplified outline of Part 4-3.

Division 2 - Use and disclosure of protected information

Clause 92 sets out the purpose of Division 2 and defines protected information. A large amount of protected information will likely be acquired by the Operator through the operation of the Scheme, and the protection of that information and a person's right to privacy is considered paramount.

Subclause 92(1) provides that Division 2 deals with how protected information may be obtained, recorded, disclosed or used for the purposes of the Scheme.

Subclause 92(2) defines protected information broadly as information about a person or an institution that was obtained by an officer of the Scheme for the purposes of the Scheme and is or was held in the records of the Department (the Department of Social Services) or the Human Services Department (the Department of Human Services). Protected information includes information to the effect that there is no information about a person held in the records of the Departments referred to in paragraph 92(2)(a)(ii).

Clause 93 sets out the main authorisation for obtaining, recording, disclosing or using protected information.

Subclause 93(1) provides that a person may obtain protected information, make a record of protected information, disclose protected information to another person, or use protected information, if the obtaining, recording, disclosure or use of the information is done:

•

for the purposes of the Scheme; or

•

with the express or implied a consent of the person or institution to which the information relates; or

•

if the person believes on reasonable grounds that doing so is necessary to prevent or lessen a serious threat to an individual's life, health or safety.

Subclause 93(2) provides that a person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person or institution.

Clause 94 provides that the Operator may disclose protected information that relates to a person who has applied for redress to the person's nominee.

Clause 95 gives the Operator the power to disclose protected information in the public interest or for another specified purpose.

Subclause 95(1) provides that the Operator may disclose protected information that was provided to, or obtained by, an officer of the Scheme for the purposes of the Scheme if:

(a)

the Operator certifies that it is necessary in the public interest in a particular case or class of cases (for example, if it is necessary for the investigation of a criminal offence or to locate a missing person) and the disclosure is to such persons and for such purposes as determined by the Operator; or

(b)

the disclosure is to:

(i)

a person who is expressly or impliedly authorised by the person or institution to which the information relates to obtain it; or

(ii)

the Chief Executive Centrelink for the purposes of a Centrelink program (within the meaning of the Human Services (Centrelink) Act 1997); or

(iii)

the Chief Executive Medicare for the purposes of a Medicare program (within the meaning of the Human Services (Medicare) Act 1973); or

(iv)

the head (however described) of a government institution, for the purposes of that institution.

Subclause 95(2) provides that a person to whom protected information is disclosed under subclause 95(1) may obtain, make a record or, disclose or use the information if the person does so for the purpose for which the information was disclosed under that subclause.

Subclause 95(3) provides that, if the Operator certifies that protected information may be disclosed in the public interest or to the head of a government institution for the purposes of that institution, then the Operator must act in accordance with any rules made for the purposes of subclause 95(4).

Subclause 95(4) provides that the rules may make provision for and in relation to the exercise of either or both of the following:

(a)

the Operator's power to certify for the purpose of disclosing protected information in the public interest (paragraph 95(1)(a)); or

(b)

the Operator's power to disclose information to the head of a government institution for the purposes of that institution (subparagraph 95(1)(b)(iv)).

The rule-making power in subclause 95(4) is necessary to ensure that the Scheme can be flexible in adapting to a range of circumstances not yet contemplated in this Bill where it may be necessary to disclose information. There will be scope for the use of this rule-making power to be scrutinised via the normal operation of the Scheme, including reports and reviews of the Scheme's implementation.

Subclause 95(5) clarifies that a certificate or determination under paragraph 95(1)(a) is not a legislative instrument. This is declaratory of the law as public interest certificates would not meet the definition of legislative instrument in subsection 8(4) of the Legislation Act 2003.

Clause 96 provides for the Operator to disclose protected information for law enforcement or child safety or wellbeing.

Subclause 96(1) provides that clause 96 applies if the Operator is satisfied that the disclosure of protected information is reasonably necessary for either the enforcement of the criminal law or the safety or wellbeing of children (a relevant purpose).

Subclause 96(2) provides that protected information may be disclosed by the Operator to a government institution that has functions that relate to the relevant purpose.

Subclause 96(3) provides that the Operator must have regard to the impact the disclosure might have on a person that has applied for redress before disclosing protected information that relates to the person.

Subclause 96(4) provides that if the information is disclosed to a government institution under subclause 96(2), then an employee or officer of the institution (the government official) may:

(a)

obtain the information; or

(b)

make a record of the information; or

(c)

disclosure the information to a person; or

(d)

use the information;

but only if the government official does so for a relevant purpose, and does so in their capacity as an employee or officer of the government institution.

Subclause 96(5) provides that the Operator may, in writing, impose conditions to be complied with in relation to protected information disclosed under subclause 96(2). It is an offence for a person, who is subject to a condition imposed under subclause 96(5), to engage in conduct (within the meaning of the Criminal Code) that breaches the condition. The penalty is two years imprisonment or 120 penalty units, or both (subclause 96(6)). The penalty reflects the importance of handling the sensitive information held by the Scheme appropriately and will deter a recipient of information from breaching a condition imposed by the Operator. This allows the Operator to continue to exercise control over protected information after it is disclosed.

Subclause 96(7) provides that an instrument under subclause 96(5) is not a legislative instrument.

Clause 97 provides for obtaining, recording, disclosing and using protected information for a permitted purpose.

Subclause 97(1) provides for disclosure by a person to a government official. If protected information is disclosed to a government institution, then an employee or officer of the institution (the government official) may obtain, make a record of, disclose or use the information, if:

•

the government official does so for the enforcement of the criminal law, the safety or wellbeing of children, investigatory, disciplinary or employment processes related to the safety or wellbeing of children or a purpose prescribed by the rules (a permitted purpose); and

•

the government official does so in their capacity as an employee or officer of that institution; and

•

a law of the Commonwealth, a State or a Territory does not prohibit the government official from doing so.

For clarity and without limiting what protected information can be disclosed under clause 97, this clause would allow states and territories to comply with existing reportable conduct schemes. For example, this clause would allow the disclosure of protected information for the purpose of complying with Victoria's reportable conduct scheme under the Child Wellbeing and Safety Act 2005 (Vic).

Subclause 97(2) provides that if:

(a)

a person is satisfied that the disclosure of protected information is reasonable necessary for a permitted purpose; and

(b)

a law of the Commonwealth, State or Territory requires or permits the person to disclose the information to a government institution that has functions that relate to that purpose;

then the person may disclose the information to that institution for that purpose.

Subclause 97(3) provides that subclause 97(2) does not apply if the person is:

(a)

an officer of the Scheme; or

(b)

an employee or the officer of a government institution.

Subclause 97(4) provides that the rules may prescribe that specified persons are officers of a government institution for the purposes of subclause 97(1) or paragraph 97(3)(b).

Clause 98 provides additional authorisation to persons engaged by participating institutions to obtain, make record of, disclose and otherwise use protected information for a specified purpose. Clause 98 will allow participating institutions to undertake certain activities related to their participation in the Scheme such as making claims against their insurance to cover the cost of redress payment. It will also allow participating institutions to use Scheme information to conduct internal investigations and disciplinary proceedings where, for example, an alleged perpetrator is still employed by, or associated with, the institution.

Subclause 98(1) provides that a person engaged by a participating institution, as an employee or otherwise, may obtain, make a record of, disclose or use protected information if the person believes on reasonable grounds that it is reasonably necessary for one of the following purposes specified in subclause 98(2):

(a)

complying with a request under clause 25 to provide information; or

(b)

providing a direct personal response to a person under clause 54;

(c)

facilitating a claim under an insurance policy; or

(d)

undertaking internal investigation and disciplinary procedures.

Subclause 98(3) provides that the person must have regard to the impact the disclosure might have on a person that has applied for redress before disclosing protected information that relates to the person.

Clause 99 creates an offence if a person obtains, records, discloses or uses protected information and is not authorised or required by or under the Bill to obtain, make a recording of, disclose or use the protected information. The penalty is imprisonment for 2 years, 120 penalty units or both. This penalty is considered to be an appropriate deterrent against unauthorised recording, disclosure or use of protected information and recognises the sensitivity of information held by the Scheme. Subclause 99(2) provides that a person won't have committed an offence if the person did not obtain the information under, for the purposes of, or in connection with the Scheme, or the person had already obtained the information before they obtained the information in connection with the Scheme.

For clarity, information that is obtained by a person independently of the Scheme is not protected information for the purposes of this Part, even if that same information was also provided to an officer for the purposes of the Scheme and is protected.

For example, if an official of a government institution is provided with information through a complaints process set up under legislation, and that information was also provided to an officer for the purposes of the Scheme, the information that was provided to an official for the complaints process would not be protected information. However, the information that was provided to an officer for the purposes of the Scheme would be protected information (even if both the protected and non-protected information is identical). This means that this Part does not impose requirements or conditions on the usage of the non-protected information.

Clause 100 creates an offence if a person solicits the disclosure of information from an officer of the Scheme or another person, the disclosure would contravene Division 2 of Part 4-3 of Chapter 4 and the information is protected information. The penalty is imprisonment for 2 years, 120 penalty units or both. This penalty is considered to be an appropriate deterrent against soliciting the disclosure of protected information and recognises the sensitivity of information held by the Scheme. A person may commit an offence under subclause 100(1) even if no protected information is actually disclosed (see subclause 100(2)).

Clause 101 creates offences relating to an offer to disclose protected information.

Subclause 101(1) provides that a person commits an offence if the person offers to disclose information about another person (whether to a particular person or otherwise); the disclosure would be in contravention of this Division; and the information is protected information. The penalty is imprisonment for 2 years, 120 penalty units or both. This penalty is considered to be an appropriate deterrent against offering to disclose protected information about another person and recognises the sensitivity of information held by the Scheme.

Subclause 101(2) provides that a person commits an offence if the person holds himself or herself out as being able to disclose information about another person (whether to a particular person or otherwise); the disclosure would be in contravention of this Division; and the information is protected information. The penalty is imprisonment for 2 years, 120 penalty units or both. This penalty is considered to be an appropriate deterrent against a person holding themselves out as being able to supply protected information about another person and recognises the sensitivity of information held by the Scheme.

Division 3 - Use and disclosure of the assessment framework policy guidelines

Clause 102 provides that the main authorisation for an officer of the Scheme to obtain, record, disclose (to another officer of the Scheme) or otherwise use information contained in the assessment framework policy guidelines, is where it is done so for the purposes of the Scheme.

Clause 103 provides additional authorisations to disclose and use information contained in the assessment framework policy guidelines.

Subclause 103(1) provides that the Minister or the Operator may disclose information contained in the assessment framework policy guidelines to a person where it is done so in accordance with the requirements set out in the National Redress Scheme Agreement.

Subclause 103(2) provides that a person who receives information under subclause 103(1) may obtain, make a record of, disclose to another person or use that information in accordance with the requirements set out in the National Redress Scheme Agreement.

Clause 104 provides that a person commits an offence if the person obtains, makes a record of, discloses or uses information that is contained in the assessment framework policy guidelines and the person is not authorised or required to do so under this Bill. The penalty is imprisonment for 2 years, 120 penalty units or both. This penalty is considered to be an appropriate deterrent against unauthorised access to protected information and recognises the sensitivity of information held by the Scheme.

This Division is necessary to ensure that the assessment framework policy guidelines are appropriately protected from unauthorised use and disclosure, as the guidelines provide additional matters that the Operator may take into account when applying the assessment framework (clauses 32 and 33), which may contain graphic and triggering descriptions of abuse. Further, protecting the assessment framework policy guidelines from unauthorised use and disclosure will assist with mitigating the risk of fraudulent and enhanced applications, as unauthorised disclosure of the guidelines could enable people to understand how payments are attributed and calculated.

Division 4 - Other matters

Clause 105 provides for disclosures of protected information or information contained in the assessment framework policy guidelines to a court or a tribunal.

Subclause 105 (1) provides that provides that a person must not be required to disclose protected information or information contained in the assessment framework policy guidelines to a court or a tribunal in any civil proceedings.

However, subclause 105(2) creates an exception and provides that subclause 105(1) does not apply if the disclosure of the information is for the purposes of giving effect to the Bill. Subclause 105(3) provides that for the purposes of subclause 105(2), (without limiting subclause 105(2)), if the disclosure of the information is in civil proceedings for judicial review of a decision made under this Bill, then the disclosure is for the purposes of giving effect to this Bill.

Subclause 105(4) provides that subsection 105(1) does not apply if the disclosure of the information is in civil proceedings under, or arising out of clause 28 (which is about giving false or misleading information, documents, or statements to an officer of the Scheme).

Subclause 105(5) provides that subsection 105(1) does not apply if the person did not obtain the information under, for the purposes of, or in connection with the Scheme, or the person had already obtained the information before they obtained the information in connection with the Scheme.

Subclause 105(6) provides that the protected information and information contained in the assessment framework policy guidelines is not to be published by any person, court or tribunal.

The objects of the Scheme are to provide an avenue for a payment that acknowledges a wrong that might otherwise be pursued through civil litigation. The Scheme would be undermined if it were able to be used as a form of discovery in court proceedings. It would also overload the administrative arm of the Scheme which would result in delays to the process of assessing applications under the Scheme.

Clause 106 provides for disclosures of information in good faith. Subclause 106(1) provides that clause 106 applies if a person discloses information for the purposes of the Scheme in good faith.

Subclause 106(2) provides that if a person makes such a disclosure in good faith, they will not be liable to any civil or criminal proceedings, or any disciplinary action for disclosing the information. Further, subclause 106(3) provides that the person cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct.