|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
|
Purpose
|
This legislative instrument:
· sets out that a redress payment can be made to a person who has been
appointed by a court, tribunal or board, or under a Commonwealth,
state or
territory law, to manage the financial affairs of a person entitled to
redress;
· specifies the protected symbols used in connection with the
Scheme;
· allows certain universities to be declared as not State or Territory
Institutions for the purpose of the Scheme; and
· classifies the Police Citizens Youth Club Limited NSW as a State
Institution, allowing this institution to participate in the
Scheme as a
participating State Institution
|
|
Portfolio
|
Social Services
|
|
Authorising legislation
|
|
|
Last day to disallow
|
15 sitting days after tabling (tabled in the Senate and the House of
Representatives on 3 August 2021). Notice of motion to disallow
must be given by
18 October 2021[2]
|
|
Rights
|
Effective remedy; rights of the child
|
1.125 The National Redress Scheme for Institutional Child Sexual Abuse (the scheme) seeks to provide remedies in response to historical failures of the Commonwealth and other government and non-government organisations to uphold human rights, including the right of every child to protection by society and the state,[3] from physical and mental violence, injury or abuse (including sexual exploitation and abuse).[4]
1.126 Subsection 111(1) of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act) provides that an institution is a 'state institution' if it is, or was, part of the state, or is, or was, a body established for public purposes by or under a law of a state. Subsection 111(2) of the Redress Act states that an institution is not a state institution if the rules prescribe this.
1.127 This legislative instrument excludes 37 universities from the definition of state institutions for the purposes of the scheme. This has the effect that those institutions may only participate in the scheme if they choose to participate as non-government institutions.[5]
1.128 For an individual to be eligible for redress pursuant to this scheme, the relevant institution against which a claim is being made must be participating in the scheme.[6] The prescription of universities as not being state or territory institutions for the purposes of the Redress Act, means that they will not become participating institutions unless the minister is satisfied that the institutions themselves agree to participate in the scheme. Consequently, as this instrument ensures 37 universities are no longer automatically part of the redress scheme, this measure engages and may limit the rights of the child, and the right to an effective remedy. The statement of compatibility states that this measure promotes the right of the child to state-supported recovery for neglect, exploitation and abuse.[7] However, it does not identify that the prescription of these universities may engage and limit the rights of the child or the right to an effective remedy.
1.129 Under international human rights law, the state is obliged to take all appropriate measures to protect children from all forms of violence or abuse, including sexual abuse.[8] The prescription of these institutions, and the potential for delay in securing redress for individuals making a claim in relation to them, therefore engages and may limit the right to an effective remedy, as this right exists in relation to the rights of children. International law requires that effective remedies must be available to redress violations, noting that children have a special and dependent status.[9] The right to an effective remedy may take a variety of forms, such as prosecutions of suspected perpetrators or compensation to victims of abuse,[10] and 'remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children'.[11] While limitations may be placed in particular circumstances on the nature of the remedy provided (judicial or otherwise), state parties must comply with the fundamental obligation to provide a remedy that is effective.[12] In addition, international human rights law may require an effective remedy to be available against the state, regardless of the availability of civil remedies against other individuals and non-state actors.[13]
1.130 It is questionable whether the fact that the 37 universities prescribed under these rules operate independently of government control[14] is a sufficient basis under international human rights law to potentially exclude victims of abuse from access to the redress scheme. Unless the institutions independently (re)join the Scheme, the state may be responsible for providing redress to survivors of child sexual abuse at these educational institutions. Further, while a person may engage in civil litigation against the relevant institutions, the scheme offers a lower evidentiary burden and a high level of discretion, and therefore potentially affords a more effective remedy, particularly in historical abuse cases which may be harder to prove over time, noting also that civil litigation does not address systemic issues of redress and may not be available in all cases.[15]
1.131 As such there is some risk that exempting these 37 universities from the operation of the redress scheme, and relying on those universities voluntarily joining the scheme, may result in a victim of sexual abuse, whose rights under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child have been violated, not having access to an effective remedy.[16] In assessing the extent of such a risk it would generally be useful to know: how many people would be likely to be affected (including whether any intention to claim against the relevant institutions has been indicated); whether the institutions have indicated an intention to join the scheme voluntarily; and what time limits (if any) may apply to a decision to join.
1.132 The committee notes that this legislative instrument prescribes 37 universities as not being state or territory institutions for the purposes of the National Redress Scheme for Institutional Child Sexual Abuse. The committee notes that, as a result, if there are persons eligible for redress pursuant to the scheme for conduct at those institutions, they will only be able to seek redress under the scheme if the institutions choose to join the scheme.
1.133 The committee considers that this measure engages and may limit the right to an effective remedy, and the rights of the child, including the right to
state-supported recovery for neglect, exploitation and abuse. In this regard the committee notes that the state bears the responsibility for providing an effective remedy with respect to violations of the rights of the child. The committee considers there is some risk that exempting these 37 universities from the operation of the redress scheme, and relying on the universities voluntarily joining the scheme, may result in a victim of sexual abuse not having access to an effective remedy.
|
Suggested action
1.134 The committee recommends that the statement of compatibility be
updated to identify that this measure engages and may limit
the rights of the
child and the right to an effective remedy and outline alternative remedies
which victims of child sexual abuse
may pursue (for example, civil
litigation).
|
1.135 The committee draws these human rights concerns to the attention of the minister and the parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, National Redress Scheme for Institutional Child Sexual Abuse Amendment (2021 Measures No. 1) Rules 2021 [F2021L00990], Report 10 of 2021; [2021] AUPJCHR 99.
[2] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.
[3] Article 24 of the International Covenant on Civil and Political Rights.
[4] The statement of compatibility to the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017, p. 70.
[5] Explanatory statement, p. 1.
[6] Redress Act, s. 107.
[7] Statement of compatibility, p. 10.
[8] Convention on the Rights of the Child, article 19.
[9] See, United Nations Committee on the Rights of the Child, General Comment No. 5 (2003): general measures of implementation of the Convention on the Rights of the Child, [24]. This right to an effective remedy also exists in relation to individuals who are now adults, but regarding conduct which took place when they were children. Article 5(1) of the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (OP3 CRC) provides that a communication can be submitted by any individual.
[10] UN Human Rights Committee, General comment No. 31 on the nature of the general legal obligation imposed on states parties to the Covenant CCPR/C/21/Rev.1/Add. 13 (2004) [16]
[11] UN Human Rights Committee, General comment No. 31 on the nature of the general legal obligation imposed on states parties to the Covenant CCPR/C/21/Rev.1/Add. 13 (2004) [15].
[12] See UN Human Rights Committee, General Comment No. 29 on States of Emergency (Article 4) CCPR/C/21/Rev.1/Add.11 (2001) [14]. See also UN Committee on the Rights of the Child, General comment No. 16 on State obligations regarding the impact of business on children’s rights CRC/C/GC/16 (2013) [30].The UN Committee on the Convention on the Rights of the Child (CRC Committee) has stressed that in cases of violence, '[e]ffective remedies should be available, including compensation to victims and access to redress mechanisms and appeal or independent complaint mechanisms'. See, UN Committee on the Rights of the Child, General comment No. 13 on the right of the child to freedom from all forms of violence CRC/C/GC/13 (2011) [56] (emphasis added).
[13] In Case of O'Keeffe v Ireland, the European Court of Human Rights has held that the state itself has a positive duty to take steps to protect children from abuse and to provide an effective remedy. In this case, a victim of sexual abuse by her primary school principal took a case against the State, and the court held that 'a State cannot absolve itself from its obligations to minors in primary schools by delegating those duties to private bodies or individuals'. Case of O'Keeffe v Ireland, European Court of Human Rights Application no 35810/09 (2014), para. [150].
[14] Explanatory statement, p. 1.
[15] See, for example the national legal service Knowmore's submission to the issues paper on civil litigation systems by the Royal Commission into Institutional Child Sexual Abuse: Knowmore, Submission in Response to Issues Paper 5: Civil Litigation, 17 March 2000, pp. 3-4, https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Issues%20Paper%205%20-%20Submission%20-%2017%20Knowmore.pdf, which lists the procedural and evidentiary hurdles that may restrict the chances of a successful civil claim.
[16] See also, previous advice provided with respect to the prescription of 11 private schools. Parliamentary Joint Committee on Human Rights, National Redress Scheme for Institutional Child Sexual Abuse Amendment (2019 Measures No. 1) Rules 2019 [F2019L01491] and National Redress Scheme for Institutional Child Sexual Abuse Amendment (2020 Measures No. 1) Rules 2020 [F2020L00096], Report 4 of 2020 (9 April 2020), pp. 122-130.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2021/99.html