House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Amanda Rishworth MP)

OUTLINE

The National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023 ( the Bill ) amends the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 ( the Redress Act )). The Bill amends existing provisions of the Redress Act, and also introduces new provisions and concepts to further strengthen the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme) in being survivor focused and trauma informed, to enable fairer outcomes for survivors and to enhance survivors' access to redress.

The Bill will:

•

change review processes to allow new information to be provided as part of a request for review of a determination, and considered by independent decision-makers as part of the review process. This will increase procedural fairness for applicants.

•

remove the restriction on people making an application for redress from gaol to increase equity for survivors.

•

make changes to the process for people with serious criminal convictions applying for redress to better target and reduce the number of people required to go through the special assessment process. This will reduce unnecessary delays in the progression of applications for many people with a serious criminal conviction.

•

make changes to the Scheme's protected information framework by introducing additional authorisations for the disclosure of protected information. The amendments will:

o

allow information about a non-participating institution to be shared with survivors who have named those institutions in their applications to enhance transparency

o

authorise the Operator to share protected information with public trustees, as appropriate

o

authorise an institution within a participating group to share protected information with another institution within the same participating group for the purposes of conducting internal investigations and disciplinary procedures

•

implement technical amendments to align funder of last resort rounding provisions to other areas of the Redress Act, and address drafting inconsistencies within the funder of last resort provisions. These technical amendments give effect to the intent of the funder of last resort provisions and promote consistency in drafting

•

allow finalised applications for redress to be reassessed where an institution identified in the application has subsequently joined the Scheme or been listed under funder of last resort arrangements. This new process will allow participating institutions to be held accountable for abuse of children, including after the application process has been completed, and a decision made, so that the survivor is not disadvantaged by having their application decided prior to relevant institutions joining.

FINANCIAL IMPACT STATEMENT

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

NOTES ON CLAUSES

Abbreviations used in this explanatory memorandum

In this explanatory memorandum, unless the contrary is indicated:

•

Crimes Act means the Crimes Act 1900.

•

Criminal Code means Schedule 1 to the Criminal Code Act 1995.

•

FOLR Act means the National Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and Other Measures) Act 2021.

•

PGPA Act means Public Governance, Performance and Accountability Act 2013.

•

Redress Act means the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.

•

rules means the rules made by the Minister under section 179 of the Redress Act.

•

Scheme means the National Redress Scheme for Institutional Child Sexual Abuse as established by the National Redress Scheme for Institutional Child Sexual Abuse Bill 2018.

•

Social Security Act means the Social Security Act 1991.

As the Bill primarily amends the Redress Act, all legislative references should be read as references to that Act unless otherwise stated.

Background

The Bill supports the Australian Government's Final Response to the Final Report, Second Year Review of the National Redress Scheme (the Final Response).

The Final Response was in reply to the recommendations made in the final report of the Second Year Review of the Scheme (the Second Year Review). The Secord Year Review was a legislative requirement, imposed by section 192 of the Redress Act.

The Final Response highlighted the Australian and state and territory governments' shared commitment to continuous improvement of the Scheme and builds on actions taken in response to the Second Year Review to date. It outlined additional improvements to be made via legislative change, to be agreed with state and territory governments.

The Bill contains the measures outlined in the Final Response to improve the Scheme experience for survivors, and also makes technical amendments to improve the operation of the Redress Act.

Explanation of the clauses

Clause 1 sets out how the Bill is to be cited, that is, as the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2023.

Clause 2 sets out the commencement date for the Bill. Sections 1 to 3 of the Bill commence the day the Bill receives the Royal Assent. Schedule 1 commences the day after the end of the period of 7 days beginning on the day the Bill receives the Royal Assent. Schedule 2 commences a single day to be fixed by Proclamation. If Schedule 2 does not commence within the period of 6 months beginning on the day the Bill receives Royal Assent, they provisions commence on the day after the end of that period.

Clause 3 provides that legislation that is specified in a Schedule to this Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Bill has effect according to its terms.

SCHEDULE 1—AMENDMENTS TO EXISTING PROCESSES

Summary

Schedule 1 amends and expands on existing processes and concepts in the Redress Act.

Part 1 of this Schedule amends the process for reviews of determinations conducted under Part 4-1 of the Redress Act. The amendments will allow redress applicants to provide additional information and documents with their requests for internal review of an initial determination under section 29 of the Redress Act.

Part 2 of this Schedule deals with the treatment of serious criminal convictions and applications by persons in gaol. It amends sections 20 and 63 of the Redress Act to allow survivors who are in gaol to make applications for redress, and to amend the special assessment process so that it is only required for persons who have committed specific classes of offence, or where there are 'exceptional circumstances'.

Part 3 of this Schedule makes a number of amendments to the protected information provisions in Division 2 of Part 4-3 of the Redress Act. These amendments set out new circumstances in which protected information may be lawfully shared.

Part 4 of this Schedule makes technical amendments to Division 2 of Part 6-2 of the Redress Act. These amendments give effect to the original intent of the provisions and ensure consistency.

Part 5 of this Schedule contains application and transitional provisions.

Explanation of the changes

Part 1 of Schedule 1—Review of determinations

The process for review of section 29 determinations is set out in Division 2 of Part 4-1 of the Redress Act. Review may be sought once a determination has been made, before a redress offer is accepted or declined. Specifically, subsection 75(2) of the Redress Act allows a decision maker to vary, set aside or affirm the original decision.

Currently, applicants to the Scheme under the Redress Act are unable to provide additional information with a request for review of a redress determination. This prevents applicants providing information that may have a material effect on the decision of the reviewer under subsection 75(2). It limits procedural fairness and, along with the risk of a redress offer being reduced, deters survivors from requesting an internal review (noting there is no right to external merits review).

The Bill will amend the Redress Act to allow redress applicants to provide additional information and documents with requests for internal review of an initial determination. It will also enable independent decision-makers to undertake requests for information at the internal review stage. The amendments will apply to future applications and all applications that are not finalised to the date of the amendment (that is, applications that are being processed, and applications where an offer is yet to be accepted or declined).

The Bill will introduce a limited 'no worse off' provision so that redress offers are not reduced on internal review as a result of a differing interpretation of the same material by the reviewing independent decision maker. This means a less beneficial decision could not be reached based on the same evidence. Reviewed decisions will still be able to be adjusted to account for new information that was not available at the time of the original decision.

Item 1 – Section 72

Item 1 omits a segment of the simplified outline of Division 1 of Part 4-1 of the Redress Act and substitutes language that includes a summary of the new provisions. Simplified outlines help readers understand the substantive provisions. They are included as a navigation aid for the reader and are not intended to be comprehensive. The reader should consult the substantive provisions to understand the rights and obligations that arise under this Part.

Item 2 – At the end of section 73

Item 2 inserts new subsection 73(3). It provides that an application for review may be accompanied by new information and documents the person making the application considers relevant to the review of the original determination. The documents or information accompanying the application for review may not have been considered by the decision maker in making the original determination. There are no restrictions on the form of the information or documentation.

This addresses the current inability of an applicant to provide additional information for the purposes of internal review, which limits their right to procedural fairness and may unfairly affect them as a result.

Item 3 – Subsection 75(2)

Item 3 inserts the words "(the reviewer )" in subsection 75(2) to clarify that references to "the person" in this Part refer to the person reviewing the decision (that is, the independent decision-maker).

Item 4 – Subsection 75(3)

Item 4 repeals subsection 75(3), and substitutes new subsections 75(3) and (4). Current subsection 75(3) only allows the reviewer to have regard to information that was provided by the applicant at the time of the application.

New subsection 75(3) provides that the reviewer may have regard to:

(a)

the information and documents that were available to the person who made the original determination

(b)

any information and documents that accompany the application for review (including information which was not available to the decision maker while making the original determination)

(c)

any further information requested under new sections 75A or 75B (see item 5 below).

New subsection 75(3) is necessary to ensure that reviewers can consider any new information provided by an applicant with their request for internal review under new subsection 73(3) (see item 2) or obtained through requests for information under new sections 75A and 75B (see item 5).

New subsection 75(4) provides that the review determination must not have the effect of reducing the amount of the redress payment that was determined in the original determination, unless the reviewer is satisfied that:

(a)

the reduction is the result of considering information that was not provided with the original application. This ensures that a reduction cannot be made simply because the reviewer disagrees with the original determination, but must be done on the basis of the new information provided. Information that could lead to a reduction includes information such as a previously unknown prior payment.

(b)

the reduction is because the Operator has reasonable grounds to believe the information given, a document produced, or a statement made relating to the application is false or misleading in a material particular. This includes the initial application and any information provided as part of the request for internal review.

In addition, the reviewer must be satisfied that any reduction is appropriate, having regard to the principles set out in section 10 which prescribes the general principles guiding actions of officers under the Scheme. Section 10 of the Redress Act provides that redress should be assessed, offered and provided so as to avoid, as far as possible, further harming or traumatising the survivor, but also in a way that protects the integrity of the Scheme.

There is a note to assist the reader which states that a person may be liable to a civil penalty or commit an offence if the person gives false or misleading information to an officer of the scheme and points to section 28 of the Redress Act and relevant sections of the Criminal Code.

The intention of new subsection 75(4) is to provide comfort to individuals in seeking internal review by ensuring that an applicant will be "no worse off", unless this is the result of exceptions set out in 75(4) (a) and (b). This provision will ensure that applicants are not dissuaded from seeking internal review by a potential reduction in their redress payment.

At the same time, new subsection 75(4) maintains Scheme integrity. There may be circumstances where the information provided to an independent decision-maker indicates a different, or lower, outcome should be reached. This gives independent decision-makers appropriate levels of discretion to reduce determinations if appropriate, noting that they must also have in mind the principles guiding actions of officers under the Scheme. These principles include that redress should be assessed, offered and provided with appropriate regard to the needs of particularly vulnerable survivors, and in way that avoids, as far as possible, further harming or traumatising survivors.

Item 5 – After section 75

Item 5 inserts new sections 75A, 75B and 75C. Together, these provide the reviewer power to obtain further information to assist them in determining the outcome of an internal review application. The new sections will ensure that review decisions can be made based on all relevant and available information. It also supports procedural fairness for applicants and institutions, and assists those applicants who may have had difficulty completing their application or providing all relevant information.

Section 75A – Obtaining further information for the review from the applicant

New Section 75A provides that if the reviewer has reasonable grounds to believe the person who has applied for review has information that may be relevant to the review, then the reviewer may request the person to give that information to the reviewer.

Subsections 24(2) to (7) apply in relation to the request by the reviewer under section 75A in the same way they apply in relation to a request under section 24, which deals with the power to request information from the applicant as part of considering the original application. In applying subsections 24(2) to (7) in this way, references to section 24 and its subsections are to be treated as references to those provisions as they apply in relation to the request because of new section 75A.

This ensures consistency in how requests for information are made during different decision making processes under the Redress Act.

If the information requested is not provided within the production period set out in the notice requesting the information, the reviewer is not required to make the review determination until the information is provided.

Section 75B – Obtaining further information for the review from institutions

If the reviewer has reasonable grounds to believe that a participating institution, or partly participating institution, has information that may be relevant to the review, then the reviewer may request the institution to give that information to the reviewer.

Subsections 25(3) to (8) apply in relation to the request by the reviewer to the institution in the same way they apply in relation to a request under section 25, which deals with the power to request information from institutions as part of considering the original application. In applying subsections 25(3) to (8) in this way, treat references to section 25 and its subsections as references to those provisions as they apply in relation to the request because of new section 75B.

This ensures consistency in how requests for information are made during different decision making processes under the Redress Act.

If the information requested is not provided within the production period set out in the notice requesting the information, the reviewer may conduct the review and make the review determination on the basis of the information that has been obtained by, or provided to, the reviewer.

Section 75C – State of Territory laws do not prevent complying with request

New section 75C provides that nothing in a law of a State or a Territory prevents a person from giving information that the person is requested to give to the reviewer under new sections 75A or 75B unless that law is prescribed by the rules (see section 179 of the Redress Act).

The note to new section 75C provides that section 28 (false or misleading information, documents or statements) applies in relation to a request made under new sections 75A and 75B.

Part 2 of Schedule 1—Serious criminal convictions and applications by persons in gaol

Section 63 of the Redress Act (dealing with the special assessment of applicants with serious criminal convictions) provides a special assessment process that applies to applicants who, before or after making an application for redress, have been sentenced to imprisonment for 5 years or longer for an offence against a law of the Commonwealth, a State or Territory or a foreign country.

The special assessment process requires the Operator to write to certain persons, including the relevant Attorney General of the State, Territory or Commonwealth, requesting advice as to whether the determination should be made. A person with a sentence of imprisonment of 5 years or longer for a single offence must go through a special assessment process before they can be deemed entitled to access redress (subsection 63(2) of the Redress Act). The person will not be entitled to redress unless there is a determination in force under subsection 63(5) that the person is not prevented from being entitled to redress.

The outcome of the special assessment process is that the vast majority of people are not prevented from accessing redress. In effect, the policy unnecessarily delays survivor outcomes. The Bill refines the special assessment process to only require people with certain types of offences to undergo the special assessment process as committed to in the Australian Government's Final Response to the Second Year Review of the National Redress Scheme. This will see fewer survivors undergo the special assessment process before a decision on their eligibility for redress is made, which is currently leading to unnecessary delays in survivors accessing their redress outcome.

The Bill prescribes that only people with certain types of particularly serious offences, or where there may be a risk to the integrity of the Scheme in allowing access to redress, will go through the special assessment process.

The Bill provides that a person who has been sentenced to imprisonment for five years or more for unlawful killing, a sexual offence, a terrorism offence, or certain related offences is not entitled to access redress without undergoing the special assessment process. The Operator can require a person to undergo the special assessment process where they consider that there are exceptional circumstances that make it likely that providing redress to the person may bring the Scheme into disrepute or adversely affect public confidence in the Scheme.

The Bill also removes the restriction on people applying from gaol. This ensures survivors have the choice to apply for redress while in gaol or wait to apply upon release from gaol, making the Scheme more trauma-informed and survivor-focussed.

Item 6 – Paragraph 20(1)(d)

Item 6 repeals paragraph 20(1)(d) of the Redress Act which currently provides that an application for redress cannot be made by a person if they are in gaol (within the meaning of subsection 23(5) of the Social Security Act).

Subsection 23(5) of the Social Security Act provides a person is "in gaol" if:

•

the person is being lawfully detained (in prison or elsewhere) while under sentence for conviction of an offence and not on release on parole or licence; or

•

the person is undergoing a period of custody pending trial or sentencing for an offence.

The effect of this amendment is that persons will be able to make an application for redress from gaol. This will increase equity for survivors and remove unnecessary barriers which prevent access to redress.

Item 7 – Subsection 20(2)

Item 7 amends subsection 20(2) by omitting the words "Paragraphs (1)(d) and (e) do" and substitutes "Paragraph (1)(e) does". This is consequential to the repeal of paragraph 20(1)(d) (see item 6).

Item 8 – Section 62

Item 8 omits a segment of the current simplified outline of Division 1 of Part 3-2 of the Redress Act and substitutes language that includes a summary of the new provisions. Simplified outlines help readers understand the substantive provisions. They are included as a navigation aid for the reader and are not intended to be comprehensive. The reader should consult the substantive provisions to understand the rights and obligations that arise under this Part.

Item 9 – Subsection 63(2)

Item 9 repeals subsection 63(2) and substitutes new subsections 63(2), (2A), (2B) and (2C).

Section 63 deals with the special assessment of applicants with serious criminal convictions. Subsection 63(1) provides that the section applies if a person makes an application for redress under section 19 and before or after making the application, the person is sentenced to imprisonment for 5 years or longer for an offence against the Commonwealth, a State, a Territory or a foreign country.

Current subsection 63(2) provides that a person is not entitled to redress under the Scheme unless there is a determination in force that the person is not prevented from being entitled to redress.

New subsection 63(2) provides that a person is not entitled to redress under the Scheme if either of the following apply (unless there is a determination in force under subsection 63(5) that the person is not prevented from being entitled to redress):

(a)

if their relevant sentence (being a sentence of 5 years or more) is for one or more of the following offences:

(i)

unlawful killing, attempting to commit an unlawful killing, or conspiring to commit an unlawful killing. The term 'unlawful killing' has been chosen as a plain-language alternative to other like words (such as homicide and murder), and will capture any criminal offence causing a person's death, or attempting or conspiring to cause a person's death. This acknowledges the fact that various Commonwealth, State and Territory laws use different language to describe offences concerning unlawful killing.

(ii)

a sexual offence or an offence that includes the intention to commit a sexual offence. As above, the term 'sexual offence' has been chosen noting that various State and Territory laws use different language to describe sexual offences (such as sexual assault and rape). The term 'sexual offence' has a core of recognised meaning (that is, acts, or the intent of acts, of a sexual nature against another person, including non-consensual acts, acts committed where consent is required and acts committed against children).

(iii)

a terrorism offence within the meaning of the Crimes Act.

(iv)

an offence against a law of a State, a Territory or a foreign country that the Operator is satisfied is substantially similar to a terrorism offence within the meaning of the Crimes Act.

(b)

the Operator has determined under new subsection 63(2B) that the person should undergo a special assessment process (see below for explanation of 63(2B)).

The above categories of offences are inserted to better target the special assessment process because the vast majority of redress applicants, with a serious criminal conviction of 5 years or more for a single offence, are currently not prevented from accessing redress following the special assessment process. Requiring all affected applicants to go through the special assessment process unnecessarily delays survivor outcomes.

This amendment will operate prospectively, and will only apply to applicants from the date the amendments take effect.

New subsection 63(2A) provides that as soon as practicable after becoming aware of a person's sentence the Operator must consider whether the person should undergo a special assessment process by making a determination under subsection 63(2B) which requires consideration of whether there are exceptional circumstances which apply. This does not apply if the person has been convicted of one of the categories of offences listed under subsection 63(2).

New subsection 63(2B) provides that the Operator may determine that a person should undergo a special assessment process if the Operator considers there are 'exceptional circumstances' that make it likely that providing redress to the person under the scheme may bring the scheme into disrepute or adversely affect public confidence in, or support for, the scheme.

Subsection 63(2B) is inserted to protect the integrity of the Scheme.

New subsection 63(2C) provides that when making a determination under subsection 63(2B) as to whether exceptional circumstances apply, the Operator may have regard to the matters set out in paragraphs 63(6)(b) to (f), which are:

•

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

•

any other matter that the Operator considers is relevant.

Item 10 – Subsection 63(3)

Item 10 updates subsection 63(3) to take account of the amendments to the special assessment process made by item 9.

Subsection 63(3) provides that as soon as practicable after becoming aware of a person's sentence, the Operator must consider whether to make a determination under subsection 63(5) and provide a written notice to specified advisors. The amendments made by this item reflect substituted subsection 63(2) by providing that subsection 63(3) applies where:

•

the person's sentence is for an offence covered by paragraph 63(2)(a), or

•

the Operator has determined under subsection 63(2B) that the person should undergo a special assessment process.

Part 3 of Schedule 1—Protected Information

Division 1 – Main amendments

Division 1 of Part 3 of Schedule 1 makes amendments to the Redress Act.

Information about a person or an institution, obtained by the Scheme for the purposes of the Scheme, is protected information in accordance with section 92 of the Redress Act.

Division 2 of Part 4-3 sets out when protected information can be obtained, recorded, used and disclosed. It is an offence to obtain, record, use or disclose protected information in a manner not authorised by the Scheme legislative framework.

The protected information arrangements provided for in the Redress Act provide appropriate protections for information collected for the purposes of administering the Scheme. These amendments to the Scheme's protected information framework are beneficial amendments for applicants and for the continued protection of children. This includes providing increased transparency to applicants regarding the onboarding of institutions in the Scheme where that institution was named in the person's application to the Scheme and allowing an institution to share protected information within a group for the purposes of internal investigations and disciplinary procedures.

The Bill updates the protected information provisions to provide additional authorisations to support appropriate use and disclosures of protected information including providing increased transparency to applicants about non-participating institutions.

The changes will allow the Operator to disclose protected information to an applicant in relation to an institution that is not participating in the Scheme. This disclosure could include sharing information such as the fact that the Scheme has contacted an institution about participating in the Scheme and they have not responded, that the institution informed the Scheme that they intend to participate, or that the institution has advised the Scheme they do not intend to participate. This amendment is designed to improve transparency for survivors on the steps to join the Scheme taken by the institution named in their application.

The Redress Act will also be amended to allow the Operator to disclose relevant protected information to a public trustee to ascertain whether an applicant is subject to a financial management order and support an applicant's financial affairs where they are subject to a financial management order.

The amendments will also allow a person engaged by a participating institution to disclose protected information to another institution within the same participating group for the purpose of an internal investigation and disciplinary procedures. This amendment will allow a person engaged by a participating institution to indicate to another institution within the same participating group that they have received a redress application, and that a named perpetrator continues to work at an institution within the participating group and may require investigation.

These amendments have been drafted narrowly to ensure that the handling of highly sensitive personal information is reasonable, necessary and proportionate to the aims.

The amendments contain important safeguards, including:

•

limiting disclosure to particular persons or entities

•

including provisions allowing conditions on particular disclosures

•

including purpose based limitations to the use and disclosure of information.

Item 11 – After section 95A

Item 11 inserts new section 95B which prescribes an additional authorisation, enabling the Operator to disclose to a person that a non-government institution is not a participating institution in the following circumstances:

•

where either or both of the following apply:

o

the person has applied for redress under the scheme and the application identifies the institution as being involved in the abuse of the person

o

the Operator has reasonable grounds to believe that the institution may be connected with the abuse of the person that is within the scope of the scheme, and

•

the institution is not a participating institution or a partly-participating institution.

New section 95B will increase transparency surrounding an institution's participation in the Scheme so that people who apply to the Scheme can make informed decisions regarding their redress application.

New subsection 95B(2) provides that the Operator may disclose to a person information (including protected information) concerning any matters set out in paragraphs 95A(2)(c) to (i) which are applicable. Paragraphs 95A(2)(c) to (i) provide the following matters may be disclosed to a person about an institution:

•

that the Operator has contacted the institution about participating in the scheme and the institution has not responded to the Operator despite having had a reasonable time to do so

•

that the institution has informed the Operator that the institution intends to agree to participate in the scheme

•

that the institution has informed the Operator that the institution does not intend to agree to participate in the scheme

•

that the institution has informed the Operator that the institution intends to agree to being listed under section 164B (partly-participating institutions)

•

that the institution has informed the Operator that the institution does not intend to agree to being listed under section 164B (partly-participating institutions)

•

that there are not reasonable grounds for expecting that, if the institution were declared to be a participating institution under section 115, its liabilities under this Act would be discharged

•

any other matter prescribed by the rules.

New subsection 95B(3) clarifies, for the avoidance of doubt, that the Operator may disclose information under new section 95B, even if the information is protected information.

New subsection 95B(4) provides that, in making a disclosure under new section 95B, the Operator must not disclose the identity of any other person who:

•

has applied for redress under the Scheme, or

•

the Operator has reasonable grounds to believe may have been abused.

Item 12 – After section 96

Item 12 inserts new section 96A.

New section 96A prescribes an additional authorisation for the Operator to disclose protected information to a public trustee (or similar entity) in relation to financial management orders.

New subsection 96A(1) provides that the Operator may disclose protected information to certain government institutions for a certain purpose if:

•

the protected information is about a person (not an institution) who has applied for redress (namely an applicant)

•

the Operator believes, on reasonable grounds, that the applicant is, or may become, subject to an order (a financial management order) under which another person is appointed by a court, tribunal or board, or other entity prescribes by the rules, under a law of the Commonwealth, a State or a Territory to manage all or part of the person's property or financial affairs or matters.

New subsection 96A(2) provides that the Operator is permitted to make such a disclosure for any of the following purposes:

•

ascertaining whether the applicant is subject to a financial management order

•

ascertaining whether the government institution has management of the applicant's affairs under a financial management order

•

if the government institution has management of the applicant's affairs under a financial management order—providing the institution such information as is necessary for it to manage the applicant's affairs under the financial management order in relation to the applicant's redress application

•

any other purpose that is related to dealing with applicants who are, or may become, subject to a financial management order and prescribed by the rules.

New subsection 96A(2) does not allow the Operator to disclose information to ascertain whether a redress applicant has voluntarily provided power of attorney to another person, for example through an Enduring Power of Attorney.

New subsection 96A(3) provides that the protected information may be provided to the following government institutions:

•

the Public Trustee of a State or a Territory

•

a government institution that can be, or the employees of which can be, given responsibility for managing the affairs of an individual under a financial management order, or

•

a government institution prescribed by the rules.

New subsection 96A(4) provides that if protected information is disclosed under new section 96A, then an employee or officer of the institution may obtain, record, disclose or use the information if they do so for a relevant purpose in the official's capacity as an employee or officer of the government institution.

New subsection 96A(5) provides that section 97 does not apply in relation to information disclosed under this section. Section 97 is concerned with disclosure to a government institution for a permitted purpose, however new section 96A will operate separately and the two should not be conflated.

New subsection 96A(6) provides that the Operator may, in writing, impose conditions in relation to the protected information. New subsection 96A(7) provides that a person commits an offence if they breach those conditions. Consistent with other secrecy offences in the Redress Act, the penalty for breaching a condition is imprisonment for 2 years or 120 penalty units. This penalty is proportionate considering the nature of the information that may be disclosed and is consistent with other offence provisions in the Redress Act.

New subsection 96A(8) clarifies that an instrument made under new subsection 96A(6) is not a legislative instrument.

New subsection 96A(8) clarifies that an instrument made under new subsection 96A(6) is not a legislative instrument. This provision is included to assist the reader. It is declaratory of the law and conveys that such an instrument is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act as conditions on the disclosure of protected information do not determine or alter the content of the law.

Item 13 – Paragraph 98(2)(d)

Item 13 repeals and substitutes paragraph 98(2)(d) which currently provides that a person may obtain, record, disclose or use protected information if it is reasonably necessary for the purpose of an institution undertaking internal investigation and disciplinary procedures.

Item 13 substitutes a new paragraph 98(2)(d) which broadens the authorisation to allow a person to obtain, record, disclose or use protected information for the purpose of either an institution undertaking an internal investigation and disciplinary procedures, or (if the institution is a member of a participating group) for the purposes of another member of a participating group undertaking such investigations and procedures.

This addresses situations such as where an institution becomes aware an alleged perpetrator continues to work with children at another institution within their participating group. Currently, the institution cannot directly advise a current employer of those allegations, even if they are both members of a participating group.

Item 14 – At the end of section 98

Item 14 adds new subsection 98(4) which provides that if a person obtains protected information for the purpose covered by subparagraph 98(2)(d)(ii) (where information is disclosed to a member of a participating group for the purposes of internal investigation and disciplinary procedures), the person may record, disclose or use the protected information for that purpose only. The amendments will support "need to know" disclosures for this specific purpose.

Division 2 – Other amendments

Division 2 sets out amendments to other legislation.

Item 15 – Schedule 3

Item 15 amends Schedule 3 of the Freedom of Information Act 1982 by adding references to new subsection 96A(7). Schedule 3 of the Freedom of Information Act lists Commonwealth secrecy provisions for the purposes of section 38 of that Act. Section 38 provides that a document may be exempt from disclosure under the Freedom of Information Act if disclosure of the document is prohibited under a provision of a Commonwealth law listed in Schedule 3.

This exemption is necessary to protect the integrity of the Scheme. In particular, it will ensure that a survivor's highly sensitive personal information is adequately protected.

Part 4 of Schedule 1 – Funder of last resort

Part 6-2 Division 2 of the Redress Act was amended by the FOLR Act. The amendments expanded the funder of last resort provisions (see sections 164 to 164C of the Redress Act).

The amendments made by this Part give effect to the intention of the funder of last resort provisions and promote consistency. They will address drafting inconsistencies with the original funder of last resort provisions and the expanded funder of last resort arrangements inserted by the FOLR Act. For example, the changes will ensure that a person's redress payment and an institution's redress liability are appropriately calculated where the same institution is responsible under more than one funder of last resort category.

If the Scheme applies its usual method of payment calculations, it could result in a "double counting" of a funder of last resort's redress liability causing possible overpayment of redress amounts. The amendments made by this Part will bring the relevant provisions in line with the initial intent.

Item 16 – Paragraph 165(2)(b)

Item 16 amends paragraph 165(2)(b) to add the words "(to the extent that it relates to the abuse)" following the words "redress payment" to ensure that double counting cannot occur.

Section 165 deals with special rules for calculating liability in funder of last resort cases where the funder of last resort is a government institution. Paragraph 165(2)(b) concerns the working out of a defunct institution's share of the costs of redress payments by the number of funders of last resort.

Item 17 – At the end of paragraph 165A(4)(a)

Item 17 amends paragraph 165A(4)(a) to add the words "(to the extent that it relates to the abuse)" at the end of the paragraph.

Section 165A deals with which special rules for calculating liability in funder of last resort cases where the funder of last resort is a participating jurisdiction. Subsection 165A(4) deals with working out a funding jurisdiction's share of the costs of a redress payment.

Item 18 – Paragraph 165A(7)(a)

Item 18 amends paragraph 165A(7)(a) to add the words "(to the extent that it relates to the abuse)" following the words "redress payment".

Subsection 165A(7) deals with working out the Commonwealth's share of a redress payment.

Item 19 – At the end of section 165A

Item 19 adds new subsection 165A(15). This provision provides that if an amount is worked out under subsections 165A(5) or 165A(10), or paragraph 165A(14)(c) is not a whole number of cents, the number should be rounded up to the next whole number of cents. This change is consistent with other rounding provisions in the Redress Act and the rules.

Part 5 of Schedule 1—Application and transitional provisions

This Part deals with application and transitional provisions for amendments made by Schedule 1.

Item 20 – At the end of Chapter 8

Item 20 adds Part 8-5 'Application and transitional provisions relating to the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2023' to the Redress Act. It inserts new sections 209 and 210.

New section 209 provides that Amending Act means the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2023.

New section 210 is an application provision dealing with the amendments made to the internal review process, the special assessment process and the handling of protected information.

Applications for review

Amendments made by Part 1 of Schedule 1 of this Bill, in relation to applications for review, apply in relation to applications for review made under section 73 on or after the commencement of Schedule 1.

New subsection 210(2) provides that if:

(a)

before the commencement of Schedule 1 to the Amending Act, a person had made an application for review under section 73; and

(b)

at the commencement of that Schedule, the review had not been completed;

then:

(c)

the Operator must notify the person of the amendments made by Part 1 of that Schedule; and

(d)

the reviewer must not make a review determination under section 75 in relation to the application for review before the earlier of the following:

i.

30 days after the date of the notification;

ii.

if, in response to the notification, the person gives the reviewer further information or documents that the person considers may be relevant to the review—the day after the Operator receives the further information or documents; and

(e)

if the person gives the reviewer further information or documents that the person considers may be relevant to the review:

i.

the amendments made by Part 1 of that Schedule apply in relation to the application for review; and

ii.

the further information or documents are to be treated as information or documents accompanying the application for review under subsection 73(3).

New Subsection 210(3) provides that, if:

(a)

before the commencement of Schedule 1 to the amending Act, a person had made an application for review under section 73; and

(b)

at the commencement of that Schedule, a review determination had been made under section 75 in relation to the application for review; and

(c)

the Operator has given the person an offer of redress under section 39; and

(d)

the person has not accepted or declined the offer of redress;

then:

(e)

the Operator must notify the person of the amendments made by Part 1 of that Schedule; and

(f)

if the acceptance period for the offer of redress ends during the period of 30 days after the date of the notification (the response period )—the Operator must extend the acceptance period under subsection 40(2) to end after the response period; and

(g)

if, during the response period, the person gives the Operator further information or documents that the person considers may be relevant to the review:

(h)

the review determination is taken to never have been made; and

(i)

if the Operator has given the person a new written offer of redress under paragraph 78(3)(b)—the new written offer of redress is taken to never have been given; and

(ii)

the amendments made by Part 1 of that Schedule apply in relation to the application for review; and

(iii)

the further information or documents are to be treated as information or documents accompanying the application for review under subsection 73(3).

In accordance with new subsection 73(4), the rules may prescribe matters relating to the giving of notices to a person or a participating institution where an offer of redress has been made but not accepted or declined.

In summary, the above explains the process which must occur if Schedule 1 has commenced, but the review had not been completed or the Operator has given the person an offer of redress under section 39 but the person has not accepted or declined the offer. That is, where a review has not been completed at commencement of Schedule 1 or an offer has not yet been accepted or declined, the applicant may provide further documents or information to support their application should they choose to do so. This will ensure applicants are not disadvantaged by having made a request for review under section 73 just before the commencement of Schedule 1.

Special assessment process

Subsection 210(5) provides that if:

(a)

before the commencement of Schedule 1 to the amending Act, the Operator had given a written notice under paragraph 63(3)(b) in relation to a person's sentence of imprisonment; and

(b)

at the commencement of that Schedule, the Operator had not made a determination in relation to the person under subsection 63(5);

the Operator is taken to have determined under subsection 63(2B) that the person should undergo a special assessment process.

New subsection 210(6) provides that, to avoid doubt, the Operator may, in writing, revoke a determination that the Operator is taken to have made under new subsection 210(5).

In summary, this provision provides that if, at the date that this Schedule commences, the Operator had not made a determination in relation to a person under subsection 63(5) but had given written notice under paragraph 63(3)(b) (that is, after becoming aware of the person's sentence, the Operator must give written notice to a specified advisor of the relevant jurisdiction), the Operator is taken to have determined the person should undergo a special assessment process under subsection 63(2B). It also provides the Operator may, in writing, revoke a determination they were taken to have made that the person should undergo the special assessment process.

This will ensure applications can be considered on a case-by-case basis and persons will not need to undertake the special assessment process if it is deemed they do not need to do so despite subsection 210(5).

Protected information

New subsection 210(7) provides the amendments of section 98 made by Division 1 of Part 3 of Schedule 1 to the amending Act apply in relation to a person obtaining, recording, disclosing or using protected information on or after the commencement of that Schedule.

The amendments apply in relation to a person obtaining, recording disclosing or using protected information on or after the commencement of Schedule 1 as it will operate prospectively.

SCHEDULE 2—REASSESSMENT OF DETERMINATIONS

Summary

Schedule 2 inserts a process for a determination on certain applications to be reassessed once the application has been finalised if the application process was finalised with one or more relevant institutions not participating in the Redress Scheme at the time the determination was made, and where those institutions subsequently join the Scheme or jurisdictions agree to act as funder of last resort for those institutions.

Background

Currently, there is no process to review a finalised application (that is, where a person has accepted or rejected a redress offer, or the Operator has determined not to approve the application). Relevantly, this includes where one or more relevant institutions identified in the application or in the course of dealing with the application, were not participating at the time of the original determination, and subsequently join the Scheme, or where government(s) agrees to act as funder of last resort for an institution. As a result, survivors of abuse can be disadvantaged if their application relates to both participating and non-participating institutions.

Where an application names both participating and non-participating institutions, or names non-participating institutions only, the survivor needs to choose whether to progress their application (which may affect their final redress outcome and/or eligibility), or have their application put on hold to wait for the non-participating institution/s to join.

This new process allows an applicant who chooses to proceed with their application despite one or more institutions not participating in the Scheme, to have their application reassessed where that institution later joins the Scheme or is listed under funder of last resort arrangements. This will allow those applicants to receive the total amount of redress to which they are entitled, a direct personal response from all relevant institutions and to hold those institutions to account, while preserving the intention of the Scheme that an applicant may only submit one application.

To ensure the measure is survivor-centred and in recognition that a person has finalised their application, a person will need to agree to the reassessment being undertaken. Additionally, a person can withdraw their agreement to a reassessment before an offer is made or decline the new offer, resulting in the current determination remaining in force. A person can choose to have their application reassessed more than once where there are multiple non-participating institutions.

The purpose of a reassessment is to account for the previously non-participating institution in the determination as if they had been participating, rather than undertake a fresh assessment of the whole application. This may result in changes for an existing institution under the reassessment decision, including a change to the amount of its redress liability or responsibility for abuse. Additionally, information obtained for the purpose of undertaking the reassessment may identify another participating institution not previously identified that should be included in the reassessment decision.

When calculating an institution's share, a person's redress payment will not be reduced by any additional indexation on prior payments. The dates for calculating indexation will apply as if the calculations were being done when the application was originally processed (that is, the date the application was submitted and the date of the original determination). However, for the previously non-participating institution, should any prior payments have been made after the original determination where those dates cannot apply, the related dates associated with the reassessment would apply (that is, the date the person agreed to the reassessment and the reassessment decision date).

Where a reassessment decision is made, a person will be able to seek a review of the decision. However, as the purpose of the reassessment is not about reassessing the whole application, the provisions introduced through this Bill in relation to providing additional information as part of a request for review do not apply to reassessments. Decision makers can still seek additional information from the person during the reassessment.

A reassessment may result in an institution's liability changing, which could be an increase or a decrease. A person's reassessment offer will not be less than the amount of their previous offer. Where the amounts of the institution's share result in an amount that is less, the Commonwealth's share will be the difference between the amounts. If an institution was previously found responsible, and their status with the Scheme has since changed (for example the institution was a participating institution but is now defunct and listed under funder of last resort arrangements), any liability or refunds may need to be paid by, or made to, the most relevant institution. This is particularly relevant where an institution is listed under funder of last resort arrangements, and a jurisdiction is liable for the funding contributions of that institution. The Minister can make rules in relation to the payment of funds where necessary.

A person cannot have their application reassessed if an institution was not identified in the initial application or in the course of dealing with the initial application that has since joined the Scheme. This is to ensure that a reassessment does not become a de facto second application for redress.

Explanation of clauses

Item 1 – Section 6

Item 1 inserts the following definitions to section 6 of the Redress Act:

reassessment contribution : see subsection 71Y(2).

reassessment deficit : see subsection 71X(3).

reassessment surplus : see subsection 71X(4).

The definitions are used when calculating reassessed redress amounts, which may result in a deficit or surplus of an institution's redress contribution when working out the difference between the current determination and the reassessed determination.

Item 2 – Section 6 (definition of redress payment )

Item 2 amends the definition of redress payment at section 6 of the Redress Act to omit "48 or 60" and substitutes "48, 60 or 71Q". New section 71Q deals with entitlement to redress payments under Division 4 of Part 8-2 (concerning the death of a reassessee before or during reassessment) (see item 7). The effect is that payments made under 71Q are 'redress payments'.

Item 3 – At the end of subsection 29(4)

Item 3 adds a note to the end of subsection 29(4). That subsection provides the rules may require or permit the Operator to revoke a determination to approve or not approve an application.

The new note states that a provision of the Redress Act may also require or permit the Operator to similarly revoke a determination, for example under new subsection 71S(3)(d) and new paragraph 71S(4) (see item 7).

Item 4 – Subsection 29(6)

Item 4 amends subsection 29(6) to omit "or (3), then" and substitutes "or (3) (including under paragraph 71S(3)(d) or subsection 71S(4)), then".

Subsection 29(6) deals with the consequences of revoking a determination. New paragraph 71S(3)(d) and new subsection 71S(4) (inserted by item 7) deal with the revocation of determinations in the context of reassessments. This amendment makes it clear that the consequences for revoking a determination in the context of a reassessment is the same as revoking an initial determination, most critically that any determination made under subsections 29(2) or (3) are taken to have never been made. This ensures consistency with existing processes in the Redress Act.

Item 5 – Subsection 54(1)

Item 5 amends subsection 54(1) to omit "44 or 46B" and substitute "44, 46B or 71L".

Subsection 54(1) deals with direct personal responses from participating institutions and partly-participating institutions. It requires institutions to take reasonable steps to provide a person with a direct personal response if that institution is given a notice that an offer has been accepted and the applicant wishes to be given a direct personal response.

New section 71L (inserted by item 7) relevantly provides that the Operator must give institutions a reassessment notice which states the components of redress a reassessee wishes to receive (including whether a reassessee wishes to receive a direct personal response). The amendment requires institutions to provide direct personal responses requested as part of the reassessment process.

Item 6 – After subsection 71(2)

Item 6 inserts new subsections 71(2A) and (2B). Section 71 deals with matters that are affected by the giving of a security notice. These currently include that an application for redress (where there has been no determination or offer) is taken to be withdrawn and that an offer that has not been accepted, declined or withdrawn is taken to be revoked if a security notice comes into force in relation to a person. This ensures that a person subject to a security notice cannot receive a redress payment.

Consistently, new subsections 71(2A) and (2B) ensure that a person cannot be eligible for additional redress payments whilst they are subject to a security notice.

New subsection 71(2A) provides that if, at the time a security notice comes into force, the person has agreed to have the operator reassess a determination, but a reassessment decision has not yet been made, then the person is taken to have revoked their agreement to the reassessment.

New subsection 71(2B) provides that if, at the time that a security notice comes into force, a new offer of redress has been given to a person as part of the reassessment process, but the offer has not yet been accepted, declined or withdrawn, then the new offer is taken to have been withdrawn, the reassessment decision is taken to be revoked and the person is taken to have revoked their agreement to the reassessment taking place.

Item 7 – At the end of Chapter 3

Item 7 inserts new Part 3-3 into the Redress Act, dealing with the reassessment of determinations.

Part 3-3 – Special rules about reassessment of determinations

Division 1 - Simplified outline of this part

New section 71A inserts a simplified outline of new Part 3-3 of the Redress Act. Simplified outlines help readers understand the substantive provisions. They are included as a navigation aid for the reader and are not intended to be comprehensive. The reader should consult the substantive provisions to understand the rights and obligations that arise under this Part.

Division 2 - Reassessment of determinations

Division 2 provides for the reassessment process, including initiating reassessments, making and notifying relevant parties of reassessment decisions and making payments as a result of reassessment decisions.

Section 71B Reassessment of determinations

New section 71B sets out how and when a reassessment process may be initiated.

New subsection 71B(1) provides that a reassessment may occur where all of the following circumstances are met:

(a)

a person has made an application for redress under the Redress Scheme

(b)

the Operator has made a determination to approve the application under section 29 (the current determination )

(c)

the person has been given an offer of redress and the person has accepted or declined the offer

(d)

the Operator has reasonable grounds to believe that an institution identified in the application, or in the course of dealing with the application, may be connected with abuse of the person

(e)

at the time the current determination was made, the institution was not a participating institution or listed for a participating jurisdiction under section 164, 164A, 164B or 164C (which deal with funder of last resort arrangements)

(f)

at a later time, the institution becomes a participating institution or is listed for a participating jurisdiction under section 164, 164A, 164B or 164C.

New subsection 71B(2) sets out that a person (the reassessee ) may agree, by written notice given to the Operator, to have their current determination reassessed by the Operator.

This notice can be given to the Operator at any time, but must be given to the Operator at least 12 months before the Scheme sunset day unless the Operator determines there are exceptional circumstances. This is consistent with section 20 of the Redress Act, which provides that applications for redress must be made at least 12 months before the Scheme's sunset date.

New subsection 71B(4) also requires the Operator to give written notice of the reassessee's agreement to undergo a reassessment (unless prescribed by the rules) to:

(a)

each institution determined in the current determination as a participating institution or partly-participating institution

(b)

each participating jurisdiction (other than the Commonwealth) that is determined in the current determination under paragraph 29(2)(k)

(c)

each institution covered by paragraph 71B(1)(f)

(d)

if an institution covered by paragraph 71B(4)(a) or (c) is listed for a participating jurisdiction—that participating jurisdiction.

Section 71C Revoking agreement to reassessment

New section 71C enables a reassessee to give the Operator written notice revoking their agreement to have a reassessment of their current determination. This may occur any time before the Operator reassesses the current determination. If the agreement to have a reassessment is revoked, the reassessee is taken to never have agreed to a reassessment.

This does not prevent the reassessee from accepting a future invitation to agree to a reassessment.

If the agreement is revoked, the Operator must give written notice to each institution and participating jurisdiction that was given written notice of the reassessee's initial agreement under new subsection 71B(4). The notice must comply with any matters prescribed by the rules.

Section 71D Operator must make a reassessment decision

New section 71D requires the Operator to reassess the current determination as soon as practicable after the reassessee has agreed to a reassessment. It sets out how redress payment amounts and institutional or funder of last resort liabilities are to be calculated.

This section adopts existing provisions of the Redress Act and modifies and applies them for the purpose of the reassessment process. The approach of adopting and adapting existing provisions and processes under the Redress Act, ensures consistency and efficiency in procedures and decision making across the Scheme.

New subsection 71D(2) provides that the Operator must make a decision, in writing, affirming the current determination or setting the current determination aside and substituting a new one.

A note to new subsection 71D(2) reminds the reader that a reassessment decision setting aside the current determination and substituting a new determination does not affect the current determination unless the reassessee accepts the new offer. If the applicant does not accept the new offer (that is, if they decline the new offer or fail to accept the new offer within relevant timeframes), the current determination stands and the reassessed determination has no effect.

New subsection 71D(3) provides that the following provisions apply in relation to making the reassessment decision in the same way as they apply in relation to making a determination on an application for redress:

•

Division 3 of Part 2-3 (obtaining information for the purposes of determining the application).

Part 2-3 provides the power to request information from an applicant (section 24); power to request information from institutions (section 25); failure of the applicant or institutions to comply with a request under sections 24 and 25 (section 26); that State or Territory laws do not prevent complying with a request under sections 24 and 25 (section 27); and an offence provision regarding the provision of false or misleading information, documents or statements to an officer of the Scheme (section 28).

Subsection 29(2) (determination to approve the application) other than paragraph 29(a) of that subsection.

Subsection 29(2) prescribes that if the Operator considers there is a reasonable likelihood a person is eligible for redress, the Operator must take a number of steps to approve the application.

The process for making a reassessment decision is similar to making an initial determination to approve an application, including the working out of institutional responsibility and the amount of redress payment in accordance with section 30 (as modified by new subsection 71D(4)), but the Operator is not required to approve the application again under paragraph 29(2)(a).

•

Sections 30 and 31 (working out amounts of redress payment, counselling and psychological component for share of costs).

There is the possibility a redress payment may increase, as well as an alternative sharing of institutional liability as a result of reassessment. The amount must be worked out during the reassessment process.

•

Subsection 33(1) (assessment framework policy guidelines).

Subsection 33(1) provides that the Operator may take into account the assessment framework policy guidelines when applying the assessment framework for the purposes of sections 30 to 31 during the reassessment, consistent with the process for working out original amounts.

•

Subsections 165(2) and (3) (special rules for funder of last resort cases).

Subsections 165(2) and (3) deal with the redress payment and the counselling and psychological component of redress. They are relevant in working out a person's redress offer and will form part of the reassessment decision-making process where there is a government institution as a funder of last resort.

•

Subsections 165A(2) to (13) (special rules for funder of last resort cases – participating jurisdictions).

Subsections 165A(2) to (13) deal with the redress payment and the counselling and psychological component of redress. They also include a method of working out the participating jurisdiction's and the Commonwealth's share of the costs. These subsections are relevant in working out a person's redress offer and will form part of the reassessment process where there is a participating jurisdiction as a funder of last resort.

New subsection 71D(4) provides that for the purposes of applying provisions under new subsection 71D(3), this subsection applies subject to the following:

(a)

treat a reference to a provision of this Act as a reference to that provision as it applies in relation to the reassessment decision because of this Part

(b)

treat a reference to an offer of redress as a reference to a new offer of redress under new section 71G

(c)

in applying step 4 of the method statement in subsection 30(2) (which deals with working out an institution's share of the costs of redress payments):

i.

in relation to an institution and a relevant prior payment that was paid at a time before the first time the Operator made a determination under section 29 on the application for redress—treat the definition of n as being instead the number of whole years between those times, and

ii.

in relation to an institution covered by paragraph 71B(1)(f) and a relevant prior payment that was paid after the first time the Operator made a determination under section 29 and before the reassessment decision was made—treat the definition of n as being instead the number of whole years since the relevant prior payment was paid

(d)

ignore step 4 of the method statement in subsection 30(2) in relation to an institution other than an institution covered by paragraph 71B(1)(f), and a relevant prior payment that was paid after the first time the Operator made a determination under section 29 and before the reassessment decision was made

(e)

new subsection 71D(5) applies if the amount of redress payment for the reassessee worked out by applying subsection 30(5) (dealing with the working out of the amount of a redress payment) (ignoring the effect of this paragraph) is less than the amount of redress payment for the reassessee set out in the current determination (the current redress amount)

(f)

new subsections 75D(6) and (7) apply if the reassessee has previously accepted an offer of redress in connection with the application for redress

(g)

if the rules prescribe further modifications to how the amounts mentioned in sections 30 and 31 (including as modified by sections 165 and 165A) are worked out—those further modifications.

Note that institutions covered by paragraph 71B(1)(f) are new institutions listed under section 164 (listing defunct institutions—listing relating only to abuse for which participating government institution is equally responsible); section 164A (listing defunct institutions—listing relating only to abuse for which participating government institution is equally responsible); section 164B (listing partly-participating institutions); or 164C (listing non-defunct institutions other than partly-participating institutions).

New subsection 71D(5) provides that for the purposes of new paragraph 75D(4)(e), treat the difference between the institutions' total share (worked out by applying subsection 30(3)) and the current redress amount as the Commonwealth's share of the costs of the redress payment (instead of the amount worked out by applying subsection 30(4)). This is to ensure that a person cannot receive a lower redress payment through the reassessment process. If the total of the institutions' liability worked out in a reassessment is lower than the original amount, the Commonwealth's share will be the difference in the institutions' liability amounts so the reassessee's redress payment remains the same.

New subsection 71D(6) provides that for the purposes of paragraph 71D(4)(f):

(a)

if the Operator has, in the current determination, determined under paragraph 29(2)(b) that a participating institution is responsible for the abuse—treat the institution as a participating institution (even if the institution is defunct or is a partly-participating institution at the time the reassessment decision is made); and

(b)

if the Operator has, in the current determination, determined under paragraph 29(2)(h) that a participating institution is not responsible for the abuse—treat the institution as a participating institution (even if the institution is defunct or is a partly-participating institution at the time the reassessment decision is made); and

(c)

if the Operator has, in the current determination, determined under paragraph 29(2)(i) that a participating government institution is a funder of last resort for a defunct institution in relation to the abuse—treat the government institution (whether or not it is a participating government institution at the time the reassessment decision is made) as the funder of last resort for the defunct institution; and

(d)

if the Operator has, in the current determination, determined under paragraph 29(2)(k) that a participating jurisdiction is a funder of last resort for an institution in relation to the abuse—treat the jurisdiction (whether or not it is a participating jurisdiction at the time the reassessment decision is made) as the funder of last resort for the institution.

New subsection 71D(7) provides that subsection 71D(6) does not apply if:

(a)

the institution is covered by new paragraph 71B(1)(f)

(b)

if a paragraph of new subsection 71D(6) applied to the institution—the Operator intends, in the reassessment decision, to determine the institution under a paragraph of subsection 29(2) that is different from the paragraph of subsection 29(2) mentioned in the relevant paragraph of new subsection 71D(6).

The reassessment process seeks to account for institutions which were not participating when a person's application was finalised. New subsections 71D(6) and 71D(7) seek to deal with circumstances where an institution was participating when the application was finalised and was found responsible for abuse, and their status with the Scheme has since changed (for example the institution was a participating institution but is now defunct and listed under funder of last resort arrangements). It is not intended that the liability of these institutions should vary in a reassessment solely as a result of such a change in status.

Section 71E Notice and effect of reassessment decision

New section 71E applies if the Operator has reassessed the current determination and made the reassessment decision. It adopts existing provisions of the Redress Act and modifies and applies them for the purpose of the reassessment process. The approach of adopting and adapting existing provisions and processes under the Redress Act, ensures consistency and efficiency in procedures and decision making across the Scheme.

Subsection 71E(2) provides that section 34 (notice of determination to applicant) and Division 6 of Part 2-3 (effect of determination and admissibility of evidence in civil proceedings) apply in relation to a determination under section 29 on an application for redress.

Section 34 provides that if the Operator makes a determination under section 29 on an application for redress for a person, the Operator must give the person written notice of the determination stating whether or not the application has been approved.

If the application has been approved, the notice must include the offer of redress to the person under section 39. It must also state that the review period for the determination is the same as the acceptance period of the offer included in the notice. If the application was not approved, the notice must specify the review period for the determination, the reasons for the determination, and that the person may apply under section 73 for review of the determination during the review period for the determination.

The review period may be extended where there are exceptional circumstances. A notice under section 34 must also comply with any matters prescribed by the rules.

Division 6 of Part 2-3 deals with the effect of a determination and admissibility of evidence in civil proceedings:

•

Section 36 provides that a determination under section 29 has effect only for the purposes of the Redress Scheme (that is, it is not a finding of law or fact made by a court in civil or criminal proceedings), and may result in the imposition of a civil liability to payments made under the Scheme in relation to redress.

•

Section 37 provides certain redress documents are not admissible in evidence in civil proceedings in a court or tribunal, unless it is for the purposes of giving effect to the Redress Act or if it is in civil proceedings under, or arising out of, section 28 (which is about providing false or misleading documents or information to an officer under the Redress Scheme).

New subsection 71D(3) provides that for the purposes of applying the provisions under paragraph 71D(2)(a) or (b), apply those provisions to the reassessment decision, subject to the following:

(a)

treat the reassessee as the person mentioned in subsection 34(1). Subsection 34(1) provides that the Operator must provide the notice of determination to the person who made the application for redress.

(b)

treat a reference to a provision of this Act as a reference to that provision as it applies in relation to the reassessment decision because of this Part

(c)

treat a reference to the application being approved as a reference to the reassessment decision setting the current determination aside and substituting a new determination.

(d)

treat a reference to the application not being approved as a reference to the reassessment decision affirming the current determination. In these circumstances, the current determination would stand.

(e)

treat a reference to whether or not the application has been approved as a reference to whether the current determination has been affirmed under paragraph 71D(2)(a) or the current determination has been set aside and a new determination substituted under paragraph 71D(2)(b)

(f)

treat the reference in paragraph 34(1)(c) to section 73 as a reference to new section 71T. The effect of this provision is that a person may apply for review of the determination during the review period of the determination.

(g)

treat the reference in subsection 34(2) to the offer of redress under section 39 as a reference to the new offer of redress under new section 71G. The effect of this provision is that if the current determination has been set aside and substituted with a new determination, the notice must include the new offer of redress to the person.

(h)

treat a reference in section 37 to a person's application for redress as a reference to the reassessee's agreement to have the Operator reassess the current determination. Section 37 deals with the admissibility of documents in evidence in civil proceedings.

Section 71F Notice of decision to affirm current determination to participating jurisdictions and institutions

New section 71F provides that, if the Operator has reassessed the current determination, the reassessment decision is to affirm the current determination and either:

•

the review period mentioned in section 34 (as it applies in relation to the reassessment decision because of new section 71E) has passed, or

•

if the reassessee has applied to the Operator for review of the reassessment decision under new section 71T—the review has been completed.

New subsection 71F(2) provides that the Operator must give written notice of an affirmed reassessment decision to each institution and participating jurisdiction that was given written notice of the reassessee's agreement under new subsection 71B(4).

New subsection 71F(3) provides that the notice must comply with any requirements prescribed by the rules, however new subsection 71F(4) provides that the Operator does not need to give a notice under new subsection 71F(2) in the circumstances (if any) prescribed by the rules.

Division 3 – New offers of redress

This division deals with the process where new offers of redress are to be provided to an applicant where the Operator has made a reassessment decision to set aside the current determination and substitute a new determination.

71G New offer of redress

New section 71G applies if the reassessment decision is to set aside the current determination and substitute a new determination. It adopts existing provisions of the Redress Act and modifies and applies them for the purpose of the reassessment process. The approach of adopting and adapting existing provisions and processes under the Redress Act, ensures consistency and efficiency in procedures and decision making across the Scheme.

New subsection 71G(2) provides that the Operator must give the reassessee a new offer of redress which complies with:

(a)

paragraphs 39(a) to (t) (dealing with offers of redress), other than paragraphs 39(r) and (ra). Paragraphs 39(a) to (t) deal with what must be contained within the written offer of redress.

(b)

new subsection 71G(4) and

(c)

if applicable, new subsection 71G(5).

New subsection 71G(3) provides that for the purposes of paragraph 71G(2)(a), paragraphs 39(a) to (t) are applied subject to the following:

(a)

treat a reference to a provision in section 29 as a reference to that provision as it applies in relation to the new determination because of this Part

(b)

treat paragraph 39(p) (which provides that the notice must explain the effect of section 43 (dealing with release from civil liability) should the person accept the offer) as referring instead to the effect of new section 71J and the effect of section 43, as it applies in relation to the new offer of redress because of new section 71H

(c)

if the rules prescribe further modifications to the content of the new offer of redress as set out in paragraphs 39(a) to (t)—those further modifications.

New subsection 71G(4) provides that for the purposes of paragraph 71G(2)(b), the new offer of redress must:

(a)

inform the reassessee that, if the reassessee declines the new offer of redress, there will be no change to the existing arrangements (including those arising out of the acceptance or declining of the offer of redress made based on the current determination). This means the current determination will stand if the reassessee does not accept the offer and there will be no effect as a result of the reassessment.

(b)

specify the differences between the current determination and the new determination, including any difference between the amount of redress payment the reassessee is, or was, entitled to under the current determination and the amount of redress payment the reassessee would be entitled to if the reassessee accepts the new offer of redress

(c)

specify:

i.

the amount (if any) of redress payment based on the current determination that has been paid to the reassessee

ii.

the amount (if any) of redress payment based on the current determination that has not yet been paid to the reassessee

iii.

the additional amount (if any) of redress payment based on the new determination that would be payable to the reassessee if the new offer of redress is accepted. This amount will not be paid if the applicant does not accept the offer, as the current determination will stand and

(d)

comply with any requirements prescribed by the rules.

New subsection 71G(5) provides that for the purposes of new paragraph 71G(2)(c), if:

(a)

the reassessee had previously accepted an offer of redress based on the current determination; and

(b)

the previous acceptance document stated that the reassessee wished to receive any or all of the following components of redress:

i.

a redress payment;

ii.

the counselling and psychological component of redress;

iii.

a direct personal response from a specified institution;

then the new offer of redress must inform the reassessee that, if the reassessee accepts the new offer of redress by giving the Operator an acceptance document (the new acceptance document) under subsection 42(2) (as it applies because of new section 71H):

(c)

the statement mentioned in paragraph (b) of this subsection will be taken to be included in the new acceptance document; and

(d)

if the reassessee has received, or receives, any or all of the components of redress mentioned in paragraph (b) of this subsection—that component of redress will be taken to have been, or be, received by the reassessee in accordance with the new acceptance document.

The effect of subsection 71G(5) is that if a person accepted a redress offer including one or more components of redress, that acceptance of those components will carry over to the new redress offer. If the person had received one or more components of redress in the period between the original offer and the new offer, those components will be taken to have been received in accordance with the new acceptance document (for example, an institution which provided a direct personal response prior to the new offer will not need to provide a new direct personal response).

The note to new section 71G clarifies the offer of redress has no effect unless it is accepted under new subsection 71H(4) and new section 71K.

Section 71H Accepting or declining the new offer of redress

New section 71H applies if the reassessment decision is to set aside the current determination and substitute a new determination and the Operator has given the reassessee a new offer of redress under new subsection 71G(2).

New section 71H adopts existing provisions of the Redress Act, dealing with accepting and declining offers of Redress and modifies and applies them for the purpose of the reassessment process. The approach of adopting and adapting existing provisions and processes under the Redress Act, ensures consistency and efficiency in procedures and decision making across the Scheme.

New subsection 71H(2) provides that, subject to new section 71J (accepting the new offer where previous offer was accepted), the following provisions apply in relation to the new offer of redress and the new determination in the same way as they apply to an offer and determination on an application for redress:

section 40 (acceptance period for offers of redress);

Division 3 of Part 2-4 (accepting or declining offers of redress), other than sections 44, 44A and 46B.

Sections 44, 44A and 46B concern notices to participating institutions, partly participating institutions and funders of last resorts that the offer has been accepted or declined. These do not apply as relevant notice requirements are set out in this Part.

New subsection 71H(3) provides for the purposes of applying provisions under subsection (2), those provisions should be applied in relation to the new offer of redress subject to the following:

(a)

treat a reference to a provision of this Act as a reference to that provision as it applies in relation to the new offer of redress or the reassessment decision because of this Part

(b)

treat the reference in paragraph 45(1)(c) to "the person will not be able to make another application for redress under the scheme" as a reference to "there will be no change to the existing arrangements (including those arising out of the acceptance or declining of the offer of redress made based on the current determination)". Paragraph 45(1)(c) deals with the effect of a person declining an offer of redress. The effect of this provision is that, if a reassessee declines an offer, the current determination will stand and the reassessed decision will have no effect.

(c)

treat the reference in section 46 (dealing with a notice to participating institutions that the person has declined the offer) to each institution that was notified under section 41 of the offer as a reference to each institution that was notified under new paragraphs 71B(4)(a) or (c)

(d)

treat the reference in subsection 46A(1) (which deals with a notice to funders of last resort that the person has declined the offer) to each participating jurisdiction (if any) that was notified under section 41A of the offer as a reference to each participating jurisdiction (if any) that was notified under paragraph 71B(4)(b) or (d).

New subsection 71H(4) provides if the reassessee declines the new offer of redress, the current determination is not affected, and the new determination has no effect from the time the new offer of redress is declined. The current determination will stand including institutional liability and redress payment amounts as determined by the current determination.

Section 71J Accepting the new offer where previous offer was accepted

New section 71J applies if the reassessee has previously accepted an offer of redress in connection with the application for redress by giving the Operator an acceptance document under subsection 42(2) (which sets out the requirements for acceptance of an offer of redress). This includes an offer accepted under new section 71H as a result of a prior reassessment, noting a person may have multiple reassessments if institutions named or identified in their application join the Scheme at different times.

This section adopts existing provisions of the Redress Act and modifies and applies them for the purpose of the reassessment process. The approach of adopting and adapting existing provisions and processes under the Redress Act ensures consistency and efficiency in procedures and decision making across the Scheme.

New subsection 71J(2) provides that subsection 42(2) (as it applies because a new offer has been accepted as a result of a reassessment) applies subject to the following:

(a)

the acceptance document (the new acceptance document) must also state that the person revokes, from the time the new acceptance document is given, the releases, discharges and promises mentioned in paragraphs 42(2)(c), (d) and (e) that were stated in the previous acceptance document.

Paragraphs 42(c), (d) and (e) concern civil releases and liability against institutions and officials. This has the effect of revoking civil releases made in the prior acceptance document prospectively, and does not prevent civil releases being made in both the current acceptance document and the new acceptance document for one institution.

(b)

if the rules prescribe further modifications to the content of the new acceptance document as set out in paragraphs 42(2)(a) to (j)—the new acceptance document is in accordance with those paragraphs as modified.

Subparagraph 71J(3) provides that if:

(a)

the previous acceptance document stated that the reassessee wished to receive any or all of the following components of redress:

(i)

a redress payment

(ii)

the counselling and psychological component of redress

(iii)

a direct personal response from a specified institution and

(b)

the reassessee accepts the new offer of redress by giving the Operator the new acceptance document:

(i)

the new acceptance document is taken to include the statement mentioned in paragraph (a) about the components of redress and

(ii)

if the reassessee has received, or receives, any or all of the components of redress mentioned in paragraph (a)—that component of redress will be taken to have been, or be, received by the reassessee in accordance with the new acceptance document.

The effect of subsection 71J(3) is that if a person accepted a redress offer including one or more components of redress, that acceptance of those components will carry over to the new redress offer. If the person had received one or more components of redress in the period between the original offer and the new offer, those components will be taken to have been received in accordance with the new acceptance document (for example, an institution which provided a direct personal response prior to the new offer will not need to provide a new direct personal response).

New subsection 71J(4) provides if the reassessee accepts the new offer of redress by giving the Operator the new acceptance document, the following have effect from the time the new acceptance document is given:

(a)

the release and discharge mentioned in paragraph 43(a) (providing that the person releases and forever discharges every released institution or official from civil liability for the abuse of the person that is within the scope of the scheme), as it relates to the previous acceptance document, is taken not to have been made;

(b)

the following, as they relate to the previous acceptance document, cease to have effect:

i.

paragraphs 43(b), which provides that the person cannot bring or continue civil proceedings against a released institution or official in relation to that abuse,

ii.

paragraph 43(c), which provides that the release and discharge against released institutions or officials does not release another institution for the abuse or prevent the person from bringing civil proceedings against another person in relation to the abuse;

iii.

paragraph 43(d), which provides that the released institution or official is released and forever discharged from liability to make contributions in proceedings against another institution or person;

(c)

any direct personal response provided to the reassessee in accordance with the previous acceptance document is taken to be a document that is not admissible in evidence in civil proceedings in a court or tribunal under subsection 37(1).

(d)

any redress payment or counselling and psychological services payment previously made to or in relation to the reassessee is taken to be a part payment of the redress payment or counselling and psychological services payment required to be paid under section 48 or 51 in accordance with the new acceptance document.

Section 71K Effect of acceptance of new offer of redress

New section 71K provides that if the reassessee accepts the new offer of redress under section 42 (as it applies in relation to the new offer of redress because of new section 71H) by giving the Operator an acceptance document, the following have effect from the time the acceptance document is given:

(a)

the new determination set out in the reassessment decision is taken to be the determination made by the Operator under section 29;

(b)

the new offer of redress is taken to be the offer of redress made to the reassessee under section 39;

(c)

the reassessee's acceptance of the new offer of redress is taken to be the reassessee's acceptance of the offer of redress under section 42;

(d)

the acceptance document given by the reassessee under subsection 42(2) (as it applies in relation to the new offer of redress because of section 71H) is taken to be the reassessee's acceptance document under section 42.

Note that an acceptance under section 42 triggers section 43, which deals with the effect of acceptance on civil liability.

Section 71L Notice to institutions and participating jurisdictions that new offer is accepted

New section 71L applies if the reassessee accepts the new offer of redress under section 42 (as it applies in relation to the new offer of redress because of new section 71H). It prescribes the requirements for notices to institutions and participating jurisdictions that a new offer has been accepted.

This section adopts existing provisions of the Redress Act and modifies and applies them for the purpose of the reassessment process. The approach of adopting and adapting existing provisions and processes under the Redress Act ensures consistency and efficiency in procedures and decision making across the Scheme.

New subsection 71L(2) provides that the Operator must give a written notice (the reassessment notice ) to each institution that was notified under new paragraphs 71B(4)(a) or (c) that:

(a)

states the matters set out in paragraphs 35(2)(b) to (f) (setting out the requirements for a notice of determination to participating institutions);

(b)

if the institution was previously notified under this section or section 35 in relation to the reassessee—states:

(i)

the amounts mentioned in subparagraphs 35(2)(b)(ii) to (v) of the most recent previous notification and the amounts paid by the institution in relation to that notification. These amounts include the following:

o

the amount of the redress payment for a person;

o

the amount of an institution's share of the costs of that payment;

o

the amount of the Commonwealth's share of the costs of that payment;

o

if an advance payment for the person has been paid – the amount of the advance payment;

o

the amount of the counselling and psychological component of redress for the person;

o

the amount of the institution's share of the costs of that component.

(ii)

the difference in the amounts mentioned in subparagraphs 35(2)(b)(ii) to (v) between the reassessment notice and the most recent previous notification;

(iii)

the amount of the institution's liability, or the amount that is to be credited to the institution should the institution require a refund as a result of the reassessment, in relation to the reassessee (worked out in accordance with Division 7);

(c)

states the components of redress that the reassessee wishes to receive (including whether the reassessee wishes to receive a direct personal response from the institution);

(d)

is accompanied by a copy of the reassessee's acceptance document;

(e)

complies with any requirements prescribed by the rules.

New subsection 71L(3) requires the Operator to give a written notice (the reassessment notice ) to each participating jurisdiction (if any) that was notified under new paragraphs 71B(4)(b) or (d) that:

(a)

states the matters set out in paragraphs 35A(2)(b) to (k) (setting out the requirements for a notice of determination to funders of last resort)

(b)

if the participating jurisdiction has previously been notified under this section or section 35A in relation to the reassessee—states:

(i)

the amounts mentioned in paragraphs 35A(2)(c) to (i) of the most recent previous notification and the amounts paid by the jurisdiction in relation to that notification. These amounts include the following:

o

the amount of the redress payment for a person;

o

the amount of the participating jurisdiction's share of the costs of the redress payment for the person;

o

the amount of the Commonwealth's share of the costs of the redress payment for the person;

o

if an advance payment for the person has been paid – the amount of the advance payment;

o

the amount of the counselling and psychological component of redress for the person;

o

the amount of the participating jurisdiction's share of the costs of the counselling and psychological component of redress for the person;

o

the amount of the Commonwealth's share of the costs of the counselling and psychological component of redress for the person.

(ii)

the difference in the amounts mentioned in paragraphs 35A(2)(c) to (i) as between the reassessment notice and the most recent previous notification;

(iii)

the amount of the jurisdiction's liability, or the amount that is to be credited to the jurisdiction, in relation to the reassessee (worked out in accordance with Division 7);

(c)

complies with any requirements prescribed by the rules.

New subsection 71L(4) provides that if:

(a)

the new offer of redress specified an institution determined to be responsible for abuse, and a participating jurisdiction determined to be the funder of last resort for a responsible institution; and

(b)

the institution is a partly-participating institution;

the Operator must give the institution a written notice that:

(c)

states the matters set out in paragraphs 46B(2)(a) (that the Operator determined that the institution was responsible for abuse) and (b) (the reasons for the determination, as they relate to the institution);

(d)

states whether the reassessee wishes to receive a direct personal response from the institution; and

(e)

complies with any requirements prescribed by the rules.

New subsection 71L(5) provides that the Operator does not need to give a notice under new subsections 71L(2), (3) or (4) in the circumstances (if any) and to the extent (if any) prescribed by the rules.

Division 4 – Death of reassessee before or during reassessment

This Division deals with circumstances where a person dies before or during a reassessment process. Currently, where an applicant dies after submitting their redress application but before receiving an outcome, the application is processed and paid to the person's estate. This Division seeks to treat reassessments in a similar way, however only if the redress offer increases as a result of the reassessment. The additional redress payment would be paid to the appropriate beneficiaries.

Section 71M Reassessee dies before new offer of redress is accepted, declined or withdrawn

New section 71M addresses circumstances where a person has agreed to have a reassessment, but dies before they accept, decline or withdraw an offer. Specifically, it applies if:

(a)

the reassessee agrees to have the Operator reassess a current determination under new section 71B;

(b)

the Operator makes a reassessment decision under new section 71D that sets aside the current determination and substitutes a new determination;

(c)

the Operator gives the reassessee a new offer of redress under new section 71G; and

(d)

the reassessee dies before the offer is accepted, declined or withdrawn.

New subsection 71M(2) provides that the offer is taken to be withdrawn immediately after the reassessee dies.

However, new subsection 71M(3) provides that if, before the reassessee died they applied for review of the reassessment decision under new section 71T and the review had not been completed the application for review continues as if the reassessee had not died and new subsection (4) of this section applies after the review has been completed.

New subsection 71M(4) provides that if the amount of the redress payment determined in the reassessment decision is more than the amount of the redress payment determined in the current determination:

(a)

the amount of the difference is payable in accordance with new section 71Q (which deals with entitlement to redress payment); and

(b)

for the purposes of this Act, the new determination set out in the reassessment decision is taken to be the determination made by the Operator under section 29.

New subsection 71M(5) provides that the rules may prescribe matters relating to the giving of notices to a person, a participating institution, a partly-participating institution or a funder of last resort in relation to the operation of new section 71M.

The effect of this section is that if a reassessee is entitled to an additional payment as a result of a reassessment, then the amount of that payment will automatically be paid to the appropriate person or people determined under new section 71Q regardless of the fact that the reassessee died before they could accept the new offer.

If the reassessed amount is not more than the amount in the current determination, the new determination will have no effect, and the Scheme will not contact or notify the reassessee's family or estate about the reassessed outcome.

71N Reassessee dies before reassessment decision is made

New section 71N applies if the reassessee agrees to have the Operator reassess a current determination under new section 71B and the reassessee dies before the Operator makes a reassessment decision under new section 71D.

Subsection 71N(2) provides that the Operator must continue to reassess the current determination and make a reassessment decision as if the reassessee had not died.

Subsection 71N(3) provides that if the reassessment decision sets aside the current determination and substitutes a new determination and the amount of the redress payment determined in the reassessment decision is more than the amount of the redress payment determined in the current determination, then:

(c)

the amount of the difference is payable in accordance with new section 71Q; and

(d)

the new determination set out in the reassessment decision is taken to be the determination made by the Operator under section 29.

New subsection 71N(4) provides that the rules may prescribe matters relating to the giving of notices to a person, a participating institution, a partly-participating institution or a funder of last resort in relation to the operation of this section.

The effect of this section is that if a reassessee is entitled to an additional payment as a result of a reassessment, then the amount of that payment will automatically be paid to the appropriate person or people determined under new section 71Q regardless of the fact that the reassessee died before an offer could be made.

If the reassessed amount is not more than the amount in the current determination, the new determination will have no effect, and the Scheme will not contact or notify the reassessee's family or estate about the reassessed outcome.

71P Reassessee dies before identification for reassessment

This section allows for a reassessment if an individual dies before a relevant institution joins the scheme or before the Operator is able to invite a person to agree to a reassessment. This ensures that a survivor's family or beneficiaries can still be provided the benefit of a reassessment.

New section 71P applies if:

(a)

the Operator had made a determination (the current determination ) on a person's application for redress under subsection 29(2);

(b)

the person had accepted an offer of redress in connection with the application for redress under section 42;

(c)

the Operator subsequently identified the current determination under new section 71R; and

(d)

the person had died before the Operator identified the current determination.

New subsection 71P(2) provides that the Operator must reassess the current determination and make a reassessment decision as if the reassessee had not died and the reassessee had agreed, in writing, to have the Operator reassess the current determination.

New subsection 71P(3) provides that if the reassessment decision sets aside the current determination and substitutes a new determination and the amount of the redress payment determined in the reassessment decision is more than the amount of the redress payment determined in the current determination then:

(c)

the amount of the difference is payable in accordance with new section 71Q; and

(d)

for the purposes of this Act, the new determination set out in the reassessment decision is taken to be the determination made by the Operator under section 29. Prior determinations cease to have effect.

The rules may prescribe matters relating to the giving of notices to a person, a participating institution, a partly-participating institution or a funder of last resort in relation to the operation of this section.

The effect of this section is that if a deceased person is entitled to an additional payment as a result of a reassessment, then the amount of that payment will automatically be paid to the appropriate person or people determined under new section 71Q regardless of the fact that the reassessee died before the Operator could invite the reassessee to agree to a reassessment.

If the reassessed amount is not more than the amount in the current determination, the new determination will have no effect, and the Scheme will not contact or notify the reassessee's family or estate about the reassessed outcome.

71Q Entitlement to redress payment under this Division

New section 71Q sets out how redress payments are made if a reassessee dies before a reassessment process can be completed. This section applies if, under new sections 71M, 71N or 71P, an amount of redress payment for the reassessee is payable in accordance with this section.

New Subsection 71Q(2) provides that, if an amount is payable, the Operator must determine who should be paid the redress payment (for example, a beneficiary of the reassessee) and pay the amount to that person or those persons as soon as practicable.

Subsection 71Q(3) provides that, in determining who should be paid the redress payment, the Operator may consider the people who are entitled to the property of the reassessee under the reassessee's will and the law relating to the disposition of the property of deceased persons.

New subsection 71Q(4) provides that when determining the appropriate person or persons to whom the payment should be made, the Operator may pay the redress payment without requiring production of probate of the will of the reassessee or letters of administration of the estate of the reassessee.

New subsection 71Q(5) provides that the rules may prescribe matters relating to the payment of redress payments under this section.

Division 5 - Identifying determinations and notifying applicants

This Division sets out when and how the Operator will identify and invite individuals to undergo a reassessment. Under the new reassessment process, potential reassessees will be notified if an institution named or identified through their application joins or has joined the Scheme or is listed for a participating jurisdiction under funder of last resort arrangements. This notice will invite the potential reassessee to agree to have their current determination reassessed.

71R Identification of determinations for reassessment

This section sets out when and how the Operator will identify what determinations should be reassessed. Subsection (1) deals with institutions that have become participating institutions or are listed for a participating jurisdiction before commencement, while subsection (2) deals with institutions that become participating institutions or are listed for a participating jurisdiction after commencement. Institutions do not need to be specifically or correctly named in the application, but may be identified in the course of dealing with the application. This reduces the burden on redress applicants, and reduces barriers to accessing redress.

New subsection 71R(1) provides that as soon as practicable after the commencement of Schedule 2, the Operator must identify each determination made by the Operator under section 29 on an application for redress in relation to which all of the following apply:

(a)

the Operator has reasonable grounds to believe that an institution identified in the application, or in the course of dealing with the application, may be connected with abuse of the person who made the application;

(b)

at the time the determination under section 29 was made, the institution was not a participating institution or listed for a participating jurisdiction under sections 164, 164A, 164B or 164C (which set out funder of last resort arrangements);

(c)

at a later time, the institution has become a participating institution or listed for a participating jurisdiction under sections 164, 164A, 164B or 164C.

New Subsection 71R(2) provides that if an institution becomes a participating institution or an institution is listed for a participating jurisdiction under section 164, 164A, 164B or 164C, then the Operator must, as soon as practicable, identify each determination made by the Operator under section 29 on an application for redress in relation to which the Operator has reasonable grounds to believe that an institution identified in the application, or in the course of dealing with the application, may be connected with abuse of the person who made the application.

Section 71S Notification for reassessment

New section 71S deals with inviting applicants to agree to a reassessment.

If the Operator identifies a determination on an application for redress under new section 71R, the Operator must comply with new subsections 71S(2) or (3) (as applicable) as soon as practicable after identifying the determination. Subsection (2) deals with the situation where there was an original determination to approve an application, while subsection (3) deals with a situation where there was an original determination not to approve an application.

New subsection 71S(2) is applicable where there was a determination to approve an application. It provides that if the determination was to approve the application and the person who made the application had been given an offer of redress and the person had accepted or declined the offer, the Operator must:

(a)

make reasonable efforts to invite the person to agree under new subsection 71B(2) to have the Operator reassess the determination; or

(b)

if the person is deceased—comply with new subsection 71P(2) and, if applicable, new subsection 71P(3).

New subsection 71S(3) is applicable where there was a determination not to approve an application. It provides that if:

(a)

the determination was to not approve the application; and

(b)

the Operator is satisfied that the person who made the application would have been eligible for redress under the scheme if, at the time the determination was made, an institution identified in the application, or in the course of dealing with the application, had been a participating institution or listed for a participating jurisdiction under sections 164, 164A, 164B or 164C;

the Operator must:

(c)

make reasonable efforts to invite the person to agree to the Operator revoking the determination; or

(d)

if the person is deceased—revoke the determination.

Subsection 71S(4) provides that if the person agrees under paragraph 71S(3)(c) to the Operator revoking the determination not to approve the application, the Operator must revoke the determination.

There is a note to new subsection 71S(4) that explains the effect of the Operator revoking the determination. It states that, if the Operator revokes the determination, subsections 29(6) and (7) apply, with the following effects:

(a)

the determination is taken never to have been made;

(b)

the Operator may make further requests for information relating to the application;

(c)

the Operator must give written notice of the revocation to the person, and each participating institution, participating jurisdiction or representative for a participating group that was notified of the determination not to approve the application.

It is important to note that the Operator may only invite a person whose application was not approved to agree to a reassessment if the person would have been eligible for redress had the institution(s) named in the application been participating in the Scheme or listed under funder of last resort provisions. If a person was deemed ineligible and the application was not approved for any other additional reason that is not affected by participation of the relevant institution (for example, the applicant is not an Australian citizen), they would not be invited to agree to a reassessment.

Division 6 - Review of reassessment decisions

This Division deals with how a reassessment decision can be reviewed, including clarifying that new information cannot be considered during such a review, and relevant timeframes.

71T Review of reassessment decisions

If a reassessee has agreed under subsection 71B(2) to have the Operator reassess a current determination, and the Operator has reassessed the current determination and made a reassessment decision under new section 71D, then the reassessee may apply to the Operator for review of the reassessment decision.

The application for review must be made within the review period mentioned in section 34 (as it applies in relation to the reassessment decision because of new section 71E) and be in the approved form.

Section 34 provides the review period depends on a number of factors, but is generally at least 28 days but not longer than 6 months unless an extension has been given.

71U – The Review

New Section 71U sets out the process for a review of a reassessment decision. It adopts existing provisions of the Redress Act and modifies and applies them for the purpose of the reassessment process. The approach of adopting and adapting existing provisions and processes under the Redress Act, ensures consistency and efficiency in procedures and decision making across the Scheme.

New subsection 71U(1) provides that if the reassessee has applied to the Operator for review of the reassessment decision, the following provisions apply in relation to the application and the reassessment decision in the same way as they apply in relation to an application for review made under section 73 and a determination on an application for redress under section 29:

(a)

section 74 (dealing withdrawal of application for review). This allows for the withdrawal of an application for review at any time before the review has been completed by oral or written notice to the Operator.

(b)

section 75 (the review), other than new paragraphs 75(3)(b) and (c) and subparagraph 75(4)(a)(i) (which are inserted by item 4 of Schedule 1 of this Bill). The effect is that the review process for reassessment determinations will be the same as for original determinations, with the exception of the fact that individuals will not be able to provide additional information with their application for the review. This is because reassessments are based on an applicant's original application, and not new information. A decision maker is not prevented from requesting further information during the course of the reassessment.

(c)

section 76 (date of effect of review determination). The effect of this is that, if the review determination varies or sets aside and substitutes the reassessment determination, the review determination takes effect on the day specified in the review determination.

(d)

section 77 (notice of review determination to applicant). This requires the Operator to give the applicant written notice of the review determination, stating the reasons for it.

(e)

section 78 (dealing with the interaction between review and offer of redress). This has the following effects:

o

If the person accepts of declines the reassessment offer in the acceptance period but before the review is completed, the application for review is taken to have been withdrawn;

o

If, on review, the reassessment determination is varied or substituted, the Operator must withdraw the offer with notification, and give the person a new written offer of redress;

o

If the reassessment determination is affirmed and the person has been given an offer, the Operator must extend the acceptance period for an additional 2 months.

New subsection 71U(2) provides that, for the purposes of applying provisions under new subsection 71U(1), those provisions should be applied in relation to the reassessment decision, subject to the following:

(a)

treat the reassessee as the person mentioned in subsection 74(1) and the applicant mentioned in section 77;

(b)

treat a reference to a provision of this Act as a reference to that provision as it applies in relation to the application or the reassessment decision because of this Part;

(c)

treat a reference to the original determination as a reference to the reassessment decision;

(d)

treat the reference in subparagraph 75(2)(b)(iii) to a new determination as a reference to a new decision;

(e)

treat the reference in subsection 76(3) to the determination made by the Operator under section 29 as a reference to the reassessment decision made under new section 71D;

(f)

treat a reference in section 78 to an offer of redress under or in accordance with section 39 as a reference to a new offer of redress under or in accordance with new section 71G;

(g)

treat the reference in paragraph 78(3)(b) to "the determination as varied or substituted approves the application for redress" as a reference to "the review determination varies or sets aside the reassessment decision and substitutes a new decision".

Division 7 - Financial matters

This Division deals with instances where a reassessment determination has changed the liability of an institution or funder of last resort, resulting in a reassessment surplus or deficit.

71V Application of this Division

New section 71V sets out when this Division applies. It provides that Division 7 applies if either or both of the following occur in a quarter (the present quarter ):

(a)

a person who had previously accepted an offer of redress accepts a new offer of redress given under new section 71G based on a reassessment decision made under new section 71D that sets aside a determination (a current determination ) and substitutes a new determination;

(b)

a payment is made in relation to a deceased person under new section 71Q based on a reassessment decision made under new section 71D that sets aside a determination (also a current determination ) and substitutes a new determination.

71W Reassessment decision does not change funding contribution for a quarter before the present quarter, except in certain circumstances

New section 71W provides that amounts of funding contribution (including the redress element and the scheme administration element) for a participating institution or funder of last resort worked out for a quarter before the present quarter are not to change because of the reassessment decision, except as provided by Division 7 or as prescribed by the rules.

71X Determining reassessment deficit or reassessment surplus

New section 71X sets out how to determine a reassessment deficit or reassessment surplus. It applies in relation to:

(a)

a person in relation to whom paragraph 71V(a) or (b) applies in the present quarter; and

(b)

a participating institution or funder of last resort determined in the current determination or the new determination mentioned in paragraph 71V(a) or (b) in relation to the person.

Subsection 71X(2) provides that the Operator must determine, in respect of the amounts of the institution's or funder of last resort's:

(a)

share of the costs of the redress payment to the person in all quarters up to the present quarter;

(b)

share of the costs of the counselling and psychological component of redress for the person in all quarters up to the present quarter; and

(c)

scheme administration element for all quarters up to the present quarter, to the extent it is attributable to the person;

the difference for the institution or funder of last resort between such amounts worked out:

(d)

based on the current determination in relation to the person, as in effect immediately before the start of the present quarter; and

(e)

based on the new determination in relation to the person, as in effect at the end of the present quarter.

If an amount worked out under paragraph 71X(2)(e) is more than a corresponding amount worked out under paragraph 71X(2)(d), the institution or funder of last resort has an amount of reassessment deficit in relation to the person for the present quarter that is equal to the difference.

Conversely, if an amount worked out under paragraph 71X(2)(e) is less than a corresponding amount worked out paragraph 71X(2)(d), the institution or funder of last resort has an amount of reassessment surplus in relation to the person for the present quarter that is equal to the difference.

71Y Liability for reassessment deficits – reassessment contribution

New section 71Y deals with how liabilities for reassessment deficits are paid.

New subsections 71Y(2) and (3) together provides that if a participating institution or funder of last resort has an amount of reassessment deficit in relation to a person for the present quarter, the participating institution or funder of last resort is liable to pay reassessment contribution for the present quarter. Reassessment contribution for a quarter for a participating institution or funder of last resort is the total of the institution's or funder of last resort's amounts of reassessment deficit in relation to all persons for the quarter.

New subsection 71Y adopts existing provisions of the Redress Act and modifies and applies them for the purpose of the reassessment process. Specifically, sections 153 to 158 (which deal with matters relating to funding contribution) apply in relation to the institution's or funder of last resort's reassessment contribution for a quarter in the same way as those sections apply in relation to a funding contribution for an institution or funder of last resort for a quarter.

The approach of adopting and adapting existing provisions in relation to liability for payments provides consistency and efficiency for Scheme processes and for institutions and funders of last resort making payments.

Section 71Z Crediting reassessment surplus to institutions and funders of last resort

New section 71Z deals with how to credit any reassessment surplus to institutions or funders of last resort. This section allows for flexibility in how to credit a reassessment surplus, which is particularly relevant where an institution may not be required to make frequent or regular contributions.

New subsection 71Z(1) provides that if a participating institution or funder of last resort has an amount of reassessment surplus in relation to a person for the present quarter, the Operator may set off all or part of the reassessment surplus for the present quarter against all or part of any of the following amounts:

(a)

reassessment contribution for the institution or funder of last resort for the present quarter or a quarter before the present quarter;

(b)

reassessment contribution for the institution or funder of last resort for a quarter after the present quarter for which the Operator reasonably believes the institution or funder of last resort will be liable;

(c)

funding contribution for the institution or funder of last resort for the present quarter or a quarter before the present quarter;

(d)

funding contribution for the institution or funder of last resort for a quarter after the present quarter for which the Operator reasonably believes the institution or funder of last resort will be liable.

Subsection 71Z(2) provides that, if all or part of the reassessment surplus for the institution or funder of last resort is set off against an amount under new subsection 71Z(1), the amount set off is taken to have been paid by the institution or funder of last resort.

Subsection 71Z(3) provides that the Commonwealth must repay so much of the reassessment surplus as is not set off under new subsection 71Z(1) to:

(a)

if paragraph 71Z(1)(b) does not apply—the institution or funder of last resort or

(b)

if rules made for the purposes of this paragraph prescribe a different person in relation to the repayment—the person prescribed by the rules.

It may be appropriate to make rules under new paragraph 71Z(3)(b) in situations such as where an institution has become defunct and there is no existing body to repay.

There is a note to new subsection 71Z(3) that states that for the appropriation for the refund, see section 77 of the PGPA Act. Section 77 of the PGPA Act will allow for repayments under new subsection 71Z(3) to be appropriated from the Consolidated Revenue Fund.

Subsection 71Z(4) provides that the Operator may, on behalf of the Commonwealth reduce the amount that may be set off under new subsection 71Z(1), or the amount of any repayment under new subsection 71Z(3), by the amount (if any) of payment waived in respect of the institution or funder of last resort under section 156 (including as it applies in relation to an amount of reassessment contribution because of new subsection 71Y(3)).

Section 156 provides the Operator may, on behalf of the Commonwealth, waive the payment of all or part of a funding contribution or late penalty if satisfied there are exceptional circumstances justifying the waiver.

Item 8 – After paragraph 84(2)(b)

Item 8 inserts paragraph 84(2)(ba). Subsection 84(2) deals with actions that may not be done by an assistance nominee. The new paragraph provides that an assistance nominee may not accept a new offer of redress made as a result of a reassessment.

Item 9 – After paragraph 84(2)(c)

Item 9 inserts paragraph 84(2)(ca). Subsection 84(2) deals with actions that may not be done by an assistance nominee. The new paragraph provides that an assistance nominee may not decline a new offer of redress made as a result of a reassessment.

Item 10 Paragraph 85(2)(c)

Item 10 amends paragraph 85(2)(c), which provides that a person's legal nominee may accept an offer of redress or decline an offer of redress on behalf of a person. This item inserts "(including as it applies in relation to a new offer of redress because of new section 72H after "section 42"). This has the effect that references to a legal nominee accepting an offer of redress will include accepting an offer of redress made as a result of a reassessment.

Item 11 Paragraph 85(2)(c)

Item 11 amends paragraph 85(2)(c), which provides that a person's legal nominee may accept an offer of redress or decline an offer of redress on behalf of a person. This item inserts "(including as it applies in relation to a new offer of redress because of new section 72H after "section 45". This has the effect that references to a legal nominee declining an offer of redress will include declining an offer of redress made as a result of a reassessment.

Item 12 At the end of section 184

Item 12 adds a note to the end of section 184 which deals with delegations by the Operator. The new note states that a reference in section 29 (dealing with making determinations on applications) or 75 (dealing with reviews of determinations) include a reference to that section as it applies in relation to a reassessment decision because of new sections 71D and 71U.

This clarifies that:

•

the Operator may not delegate the power to make reassessment determinations under new section 71D and review reassessment determinations under new section 71U to an officer of the Scheme (see subsection 184(1));

•

the Operator may delegate the power to make reassessment determinations under new section 71D and review reassessment determinations under new section 71U to an independent decision-maker (see subsection 184(3)).

Item 13 – At the end of subsection 185(1)

Item 13 adds a note to the end of subsection 185(1) which deals with engaging persons to be independent decision-makers. The new note states that a reference in section 29 (dealing with making determinations on applications) or 75 (dealing with reviews of determinations) includes a reference to that section as it applies in relation to a reassessment decision because of new sections 71D and 71U.

This notifies the reader that the Operator may engage a person as an independent decision-maker to make reassessment determinations under new section 71D and review reassessment determinations under new section 71U.

Item 14 – At the end of Part 8-5

Item 14 adds section 211, which is an application provision, dealing with the application of amendments made by Schedule 2 to the Bill.

It provides that the amendments made by Schedule 2 to the Bill apply in relation to determinations made under section 29 before, on or after the commencement of that Schedule. This ensures that reassessment decisions can be made on determinations made prior to the commencement of the Schedule.

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 Amendment Bill 2023

This Bill is 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 Bill

The National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023 (the Bill ) amends the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act ). The Bill amends existing provisions of the Redress Act, and also introduces new provisions and concepts to further strengthen the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme) in being survivor focussed and trauma informed, to enable fairer outcomes for survivors and to enhance survivors' access to redress.

The Bill will:

•

change review processes to allow new information to be provided as part of a request for review of a determination, and considered by independent decision-makers as part of the review process. This will increase procedural fairness for applicants;

•

remove the restriction on people making an application for redress from gaol to increase equity for survivors;

•

make changes to the process for people with serious criminal convictions applying for redress, to better target and reduce the number of people required to go through the special assessment process. This will reduce unnecessary delays in the progression of applications for many people with a serious criminal conviction;

•

make changes to the Scheme's protected information framework by introducing additional authorisations for the disclosure of protected information. The amendments will:

o

allow information about a non-participating institution to be shared with survivors who have named those institutions in their applications to enhance transparency;

o

authorise the Operator to share protected information with public trustees, as appropriate;

o

authorise an institution within a participating group to share protected information with another institution within the same participating group for the purposes of conducting internal investigations and disciplinary procedures.

•

implement technical amendments to align funder of last resort rounding provisions to other areas of the Redress Act, and address drafting inconsistencies within the funder of last resort provisions. These technical amendments give effect to the intent of the funder of last resort provisions and promote consistency in drafting;

•

allow finalised applications for redress to be reassessed where an institution identified in the application has subsequently joined the Scheme or been listed under funder of last resort arrangements. This new process will allow participating institutions to be held accountable for abuse of children, including after the application process has been completed, and a decision made, so that the survivor is not disadvantaged by having their application decided prior to relevant institutions joining.

The Bill supports the Australian Government's final response to the Final Report, Second Year Review of the National Redress Scheme (the Final Response). The Final Response was in reply to the recommendations made in the final report of the National Redress Scheme Second Year Review (the Second Year Review). The Secord Year Review was a legislative requirement, imposed by section 192 of the Redress Act.

The Final Response highlighted the Australian and state and territory governments' shared commitment to continuous improvement of the Scheme and builds on actions taken in response to the Second Year Review to date. It outlined additional improvements to be made via legislative change, to be agreed with state and territory governments.

The Bill delivers the measures outlined in the Final Response to improve the Scheme experience for survivors, and technical amendments to improve the operation of the Redress Act.

Human rights implications

This Bill engages with the following human rights:

•

The right of the child to be protected from abuse, neglect, sexual exploitation and sexual abuse and the right to state-sponsored recovery for child victims of abuse – Articles 3, 19, 34 and 39 of the Convention on the Rights of the Child (CRC)

•

The right to privacy – Article 16 of the CRC and Article 17 of the International Covenant on Civil and Political Rights (ICCPR)

•

The right to equality and non-discrimination – Article 2 of the CRC

•

The right to health – Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

•

The rights of people deprived of their liberty – Article 10(1) of the ICCPR

•

The right to effective remedy – Article 3(a) of the ICCPR

The right of the child to be protected from abuse, neglect, sexual exploitation and sexual abuse and the right to state-sponsored recovery for child victims of abuse – Articles 19, 34 and 39 of the CRC

Article 19 of the CRC provides that States Parties shall take all appropriate measures to protect the child from all forms physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Article 34 of the CRC provides that States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.

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

The Scheme currently provides an effective remedy to people and supports the recovery of people who have experienced institutional child sexual abuse by enabling recognition of past abuse and providing access to redress, including a redress payment, a direct personal response from the responsible institution/s and access to counselling and psychological care services. Maximising access to these components is a critical part of furthering the above rights. This Bill further promotes these rights by increasing survivors' ability to access redress and outcomes under the Scheme.

Applicants to the Scheme can only receive redress once and the principle of a single application remains an important part of the Scheme's design. However, there are some survivors who have been unfairly disadvantaged when, at the time their application was finalised, a relevant institution had not yet joined the Scheme. This Bill addresses this by providing for reassessment of a determination where an institution identified through an application later joins the Scheme, or where a government later agrees to be the funder of last resort for an institution. Introducing the reassessment process allows survivors to benefit from the Scheme to the greatest extent possible, not just financially but also by providing the option of a direct personal response from every institution responsible for the abuse of that survivor.

In addition, the Bill allows survivors to provide additional information to a decision maker when requesting a review of their original determination. This recognises that some survivors might not be able to fully articulate or remember all the details of their abuse at once, and provides a further opportunity for applicants to add information for consideration at review. Again, this maximises survivor access to the Scheme.

The right to privacy – Article 16 of the CRC and 17 of the ICCPR

Article 17 of the ICCPR provides that no person shall be subject to arbitrary or unlawful interference with their privacy. Similarly, Article 16 of the CRC provides that no child shall be subjected to arbitrary or unlawful interference with his or her privacy.

This Bill inserts new authorisations for the disclosure of protected information. These amendments have been drafted narrowly to ensure that the handling of highly sensitive personal information is reasonable, necessary and proportionate to the relevant aims.

The Bill will also allow for the disclosure of protected information between institutions within a participating group for the purposes of undertaking internal investigations and disciplinary procedures. This is an important step in protecting children by ensuring that alleged perpetrators are not in a position that could pose a risk to children.

Where relevant, the new authorisations also allow for the Operator to place conditions on the use of protected information that is disclosed for a particular purpose.

The new information sharing provisions are necessary to achieve the legitimate aims of accessing redress under the Scheme and protecting children from abuse. They are also appropriately limited to ensure that they are proportionate to achieving those aims and contain the following important safeguards:

•

limiting disclosure to particular persons or entities;

•

allowing for conditions on particular disclosures;

•

including purpose based limitations to the use and disclosure of information.

The right to health – Article 12 of ICESCR

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 extending access to redress, and therefore counselling and psychological services to survivors, maximising survivors' access to health services.

The Bill extends access to redress through the implementation of the reassessment process, which will allow survivors to benefit from the Scheme to the maximum extent possible, including through access to counselling and psychological services.

The rights of people deprived of their liberty – Article 10(1) of the ICCPR

Article 10(1) of the ICCPR provides that all persons deprived of their liberty (for example due to being in gaol) shall be treated with humanity and with respect for the inherent dignity of the human person.

Currently, the Redress Act prohibits an application being made when a person is in gaol unless the Operator determines there are exceptional circumstances. In addition, the Redress Act requires that all applicants sentenced to imprisonment for five years or longer for a single offence (a Serious Criminal Conviction) must undergo a special assessment process undertaken by the Operator (in conjunction with special advisors), to determine whether providing redress to that person will bring the Scheme into disrepute or adversely affect public confidence in, or support for, the Scheme.

This Bill furthers the rights of people deprived of their liberty by allowing applicants who are in gaol to apply for redress. It will also address the delays on applications faced by those with a serious criminal conviction by providing that the special assessment process will only need to be undertaken by those applicants who have been convicted of the most serious offences, including unlawful killing, sexual offences and terrorism related offences, or in exceptional circumstances.

These amendments recognise that those incarcerated should not be unnecessarily disadvantaged in accessing redress. As outlined in the Royal Commission into Institutional Responses to Child Sexual Abuse Final Report: Impacts, 713 private sessions were held with people while they were incarcerated and incarceration was identified as one of many impacts associated with child sexual abuse. This Bill has been introduced with the intention to promote the recovery of those who are incarcerated and who were a victim of sexual abuse. The Bill seeks to acknowledge their dignity and humanity despite their incarceration status, and to offer an effective remedy for the violation of their rights as a child.

The right to equality and non-discrimination – Article 2 of the CRC

Article 2(1) of the CRC provides that States Parties shall respect and ensure the rights set forth in the CRC to each child within their jurisdiction without discrimination of any kind.

The Bill promotes these rights by expanding access to the Scheme, including to survivors who have been convicted of most offences. This access to the Scheme is limited as those who have committed the most serious crimes are still required to undergo a special assessment process. As noted above, incarceration has been identified as a potential impact associated with child sexual abuse. These amendments balance this understanding while not compromising the integrity of the Scheme.

The special assessment process does provide an important safeguard in this respect, allowing the Operator to give consideration to whether survivors convicted of the most serious crimes may still be entitled to redress under the Scheme. Relevant considerations by the Operator in making this decision may include having regard to an individual's rehabilitation.

The right to effective remedy – Article 2(3) of the ICCPR

Article 2(3) of the ICCPR provides that States Parties undertake to ensure that any person whose rights or freedoms are violated shall have an effective remedy.

This Bill promotes that right by improving access to the Scheme to more survivors, therefore allowing for more people to gain access to redress.

Conclusion

This Bill is compatible with human rights as it advances the protection of the rights of people who have experienced child sexual abuse in Australia. To the extent that it limits the right to privacy, these limitations are proportionate and for a legitimate objective.