Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 [2017] AUSStaCSBSD 373 (15 November 2017)

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Purpose	This bill seeks to establish a Commonwealth Redress Scheme for Survivors of Institutional Child Sexual Abuse
Portfolio	Social Services
Introduced	House of Representatives on 26 October 2017
Scrutiny principles	Standing Order 24(1)(a)(i), (ii), (iii), (iv) and (v)

Significant matters in delegated legislation^[4]

1.8 The bill seeks to establish a redress scheme for survivors of institutional child sex abuse. A number of important elements of the scheme are proposed to be left to delegated legislation to determine. In particular, clause 16 sets out when a person is eligible for redress. It provides that person is eligible for redress if the person was sexually abused, the sexual abuse is within the scope of the scheme and the person is an Australian citizen or permanent resident at the time they apply for redress. However, subclause 16(2) provides that the rules may prescribe that a person is eligible for redress on other grounds and subclause 16(3) provides that the rules may prescribe circumstances when a person is not eligible for redress.

1.9 The committee's view is that significant matters, such as who is or is not eligible under the redress scheme, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum provides no explanation as to why it is necessary to allow the rules to prescribe persons who are or are not eligible under the scheme. It merely restates the effect of the provision and notes that it is intended that rules will be made to prescribe three categories of persons that are eligible: child migrants who are non-citizens and non-permanent residents; non-citizens and non-permanent resident currently living in Australia and former Australian citizens and permanent residents.^[5] If the intention is that these categories of persons should be eligible for redress, it is not clear to the committee why these have not been included in the primary legislation.

1.10 In addition, clause 21 sets out when a participating institution will be considered responsible for the abuse of a person. Subclause 21(7) provides that despite provisions setting out when an institution will be held responsible, a participating institution will not be responsible if it occurs in circumstances prescribed by the rules. The explanatory memorandum provides that this is intended to ensure that institutions are not found responsible for abuse that occurred in circumstances where it would be unreasonable to hold the institution responsible.^[6] However, it is not clear to the committee why such circumstances should be left to the rules to determine rather than setting out the relevant criteria as to when it is considered that it would be unreasonable to hold an institution responsible in the primary legislation.

1.11 Furthermore, clause 22 defines what is a participating institution (and so captured by the redress scheme), but paragraphs 23(2)(c) and 25(2)(b) and subclause 26(3) provide that an institution will not be considered to be a participating institution if the rules so prescribe. This therefore excludes the institution from the scheme, and a survivor of child sexual abuse would not be able to seek redress under the scheme in relation to abuse occurring in such an institution. The explanatory memorandum states that the power in paragraphs 23(2)(c) and 25(2)(b) is intended to be used to exclude an institution where it is more appropriate for that institution to pay redress to a person (rather than the Commonwealth or a Territory), which would presumably mean the person would need to pursue their own civil litigation.^[7] In relation to subclause 26(3) the explanatory memorandum explains that this subclause covers the case where an institution was established in a Territory but not at the time the abuse occurred. The committee notes that these provisions would allow rules to be made reducing the scope of the application of the scheme, which would appear to have significant policy implications.

1.12 The committee also notes that clause 34 gives the Minister the power to declare a method, or matters to take into account, for working out the amount of redress payment for a person. The committee notes that this issue is of central importance to the scheme, given that it will determine the amount of redress which may be payable to a person under the scheme. The explanatory memorandum provides no explanation as to why this matter cannot be determined in the primary legislation so that Parliament may consider its appropriateness. Notably subclause 34(3) provides that the declaration is exempt from section 42 disallowance under the Legislation Act 2003. According to the explanatory memorandum, this is appropriate so the amounts of redress payments are certain for applicants and decision-makers.^[8] However, the committee notes that such certainty could also be achieved if these matters were included in the primary legislation. The explanatory memorandum also states that these declarations would ordinarily be of an administrative character and they have been made legislative instruments to ensure certainty and transparency. However, it is not clear to the committee why such declarations should not be characterised as having a legislative character, as they change the law to be applied in working out the amount of redress payable in each successful application.

1.13 In addition, the committee also notes that these significant matters are to be included in 'rules' rather than in 'regulations'. The issue of the appropriateness of providing for significant matters in legislative rules (as distinct from regulations) is discussed in the committee's First Report of 2015.^[9] In relation to this matter, the committee has noted that regulations are subject to a higher level of executive scrutiny than other instruments as regulations must be approved by the Federal Executive Council and must also be drafted by the Office of Parliamentary Counsel (OPC). Therefore, if significant matters are to be provided for in delegated legislation (rather than primary legislation) the committee considers they should at least be provided for in regulations, rather than other forms of delegated legislation which are subject to a lower level of executive scrutiny.^[10]

1.14 Finally, where the Parliament delegates its legislative power in relation to significant schemes the committee considers that it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument. The committee notes that section 17 of the Legislation Act 2003 sets out the consultation to be undertaken before making a legislative instrument. However, section 17 does not strictly require that consultation be undertaken before an instrument is made. Rather, it requires that a rule-maker is satisfied that any consultation, that he or she thinks is appropriate, is undertaken. In the event that a rule maker does not think consultation is appropriate, there is no requirement that consultation be undertaken. In addition, the Legislation Act 2003 provides that consultation may not be undertaken if a rule-maker considers it to be unnecessary or inappropriate; and the fact that consultation does not occur cannot affect the validity or enforceability of an instrument.^[11]

1.15 The committee's view is that significant matters, such as who is eligible for redress and what institutions are captured by the scheme, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this regard, the committee requests the Minister's detailed advice as to:

Standing appropriation^[12]

1.16 Clause 54 provides that the Consolidated Revenue Fund is appropriated for the purposes of paying or discharging the costs incurred by the Commonwealth in providing redress payments, counselling and psychological services.

1.17 As set out in Chapter 3 of this Digest, standing appropriations enable entities to spend money from the Consolidated Revenue Fund on an ongoing basis. Their significance from an accountability perspective is that, once they have been enacted, the expenditure they involve does not require regular parliamentary approval and therefore escapes parliamentary control. They are not subject to approval through the standard annual appropriations process.

1.18 By allowing the executive government to spend unspecified amounts of money for an indefinite time into the future, provisions which establish standing appropriations may, depending on the circumstances of the legislation, infringe on the committee's terms of reference relating to the delegation and exercise of legislative power.

1.19 The committee's long-standing expectation is that the explanatory memorandum to a bill establishing a standing appropriation will include an explanation of the reason the standing appropriation was considered necessary. In this instance, the explanatory memorandum provides no explanation of the reason for this standing appropriation. However, the committee notes that the scheme has a sunset date of 10 years after the scheme commences (although this can be extended by the rules).^[13]

1.20 The committee draws this standing appropriation to the attention of the Senate.

1.21 Sub clause 71(1) of the bill states that a participating institution or person must not refuse or fail to comply with a requirement under section 70. The provision is then stated to constitute a civil penalty of a maximum of 100 penalty units. Subclause (2) states that subsection (1) does not apply if the institution or person has a reasonable excuse. The note at the end of subclause (2) states that a defendant bears an evidential burden in relation to this matter under subsection 13.3(3) of the Criminal Code. The explanatory memorandum states that the note alerts the reader that the burden of proof is on the defendant by virtue of the Criminal Code.^[15] However, subsection 13.3(3) of the Criminal Code applies to reverse the evidential burden of proof in relation to provisions that create 'offences'. In this case the provision does not create an offence but imposes a civil penalty for a failure to comply with the relevant requirements.

1.22 The committee seeks the Minister's advice as to whether it is the intention that subclause 71(1) be subject to a civil, rather than a criminal penalty, and why the note at the end of subclause 71(2) alerts readers to provisions of the Criminal Code when the penalty is civil rather than criminal in nature.

Broad discretionary power^[16]

1.23 Clause 77 provides that the Commonwealth Redress Scheme Operator (the Operator)^[17] may disclose protected information acquired by an officer in the performance of their functions or duties, or in the exercise of their powers under the bill. 'Protected information' is information about a person that is or was held in the records of the relevant government departments.^[18] Paragraph 77(1)(a) provides that the Operator can disclose such protected information if the Operator certifies that the disclosure is necessary in the public interest to do so, and the disclosure is to 'such persons and for such purposes as the Operator determines'. Subclause 77(2) provides that in making such a certification the Operator must act in accordance with 'any rules' made for this purpose (although subclause 77(3) does not require that any rules be made, rather it states that rules 'may' be made). The explanatory memorandum gives no reason as to why this provision is necessary, only giving a short example of the types of matters that may be subject to certification as where 'it is necessary for the investigation of a criminal offence or to locate a missing person'.^[19] However, the committee notes that clause 78 specifically provides that the Operator may disclose information to specified enforcement or protection agencies if the disclosure is reasonably necessary for the enforcement of the criminal law or for the purposes of child protection.

1.24 The committee notes that the proposed power in paragraph 77(1)(a) gives an extremely broad basis on which the Operator can disclose protected information (which would likely include highly sensitive allegations regarding child sexual abuse) to any person and for any reason, so long as the person seeking to disclose the information considers it necessary in the public interest to do so. The committee notes that unlike disclosures made to specified agencies in clause 78, the Operator is not required to have regard to the impact the disclosure might have on the person.^[20] There is also no requirement that rules be made in relation to the Operator's power to disclose the information and no information on the face of the primary legislation as to the circumstances in which the power can be exercised (other than that the Operator must be satisfied that it is in the public interest to make the disclosure). There is also no requirement that before disclosing personal information about a person, the Operator must notify the person, give the person a reasonable opportunity to make written comments on the proposed disclosure and consider any written comments made by the person.

Reversal of evidential burden of proof
Strict liability offence^[21]

1.26 Clause 84 makes it an offence to offer to supply protected information about another person, or for a person to hold themselves out as being able to supply such information. Clause 84(3) provides an exception (offence-specific defence) to this offence, stating that the offence does not apply to an officer acting in the performance or exercise of his or her powers, duties or functions under the Act. In addition, subclause 100(6) provides that a person commits an offence if a person is a nominee and refuses or fails to comply with a relevant notice. Clause 100(7) provides an exception (offence-specific defence) to this offence if the person has a reasonable excuse.

1.27 Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

1.28 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.29 While in these instances the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The reversal of the evidential burden of proof in subclauses 84(3) and 100(7) has not been addressed in the explanatory materials.

1.30 The committee notes that the Guide to Framing Commonwealth Offences^[22] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

1.31 In relation to clause 84, it is not apparent that matters such as whether an officer is acting in the performance or exercise of his or her powers, duties or functions under the Act, are matters peculiarly within the defendant's knowledge, or that it would be difficult or costly for the prosecution to establish the matters. These matters appear to be matters more appropriate to be included as an element of the offence (as it is not clear to the committee why the burden should fall on the officer who is acting in accordance with his or her duties to seek to avoid the commission of a criminal offence).

1.32 In addition, subclause 100(8) provides that an offence under subclause 100(6) is an offence of strict liability. Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[24] The explanatory memorandum provides no justification as to why the offence is subject to strict liability.

1.33 As the explanatory materials do not address this issue, the committee requests:

Limitation on merits review^[27]

1.34 Clause 87 provides that an application for redress apply to the Operator to review a determination to approve, or not approve, the application. Subclause 88(3) provides that when reviewing the original determination, the reviewer may only have regard to the information and documents that were available to the person who made the original determination.

1.35 However, the default rule for merits review (such as reviewed by the Administrative Appeals Tribunal (AAT)) is that the reviewing body should be able to consider material that was not before the original decision-maker. The explanatory memorandum provides no justification as to why the review would be limited in this way. As the purpose of the scheme is to provide redress to abuse victims, it is not clear to the committee why an applicant should not be able to provide further material in support of their case on review. For example, it may be that further evidence becomes available between the time of the original application and the internal review, or material may have inadvertently not been included in the original application or not included because its relevance had not been properly understood at the time the original application was made. This is particularly relevant given the bill provides that a person may only make one application for redress under the scheme.^[28]

1.36 In addition, the bill only provides for internal review of decisions made under it. No provision has been made for a person affected by the decision to be entitled to seek external merits review before the AAT, or to seek judicial review under the Administrative Decisions (Judicial Review) Act 1977.^[29] The explanatory memorandum states that limiting rights to internal review was made on the recommendation of the Independent Advisory Council on redress and that:

1.37 However, AAT review is designed to be an alternative and less legalistic form of review than judicial review. It is therefore not clear to the committee why providing AAT review would be inconsistent with the listed objectives of the scheme. This is of particular concern to the committee as there is no legislative mechanism to ensure the quality of the persons to be appointed as decision-makers (either the original decision-makers or the decision-makers on review), see paragraphs [1.45] to [1.46] below.

Reversal of legal burden of proof^[31]

1.39 Clause 109(3) makes it an offence for a financial institution not to comply with a notice given to it by the Operator regarding the recovery of amounts. Clause 109(4) proposes introducing a defence to this offence, to provide that the offence does not apply if the institution proves it was incapable of complying with the notice. A legal burden of proof is proposed to be placed on the defendant, ensuring that the defendant would need to prove, on the balance of probabilities, that they were incapable of complying with the notice.

1.40 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove one or more elements of an offence, interferes with this common law right.

1.41 As the reversal of the legal burden of proof undermines the right to be presumed innocent until proven guilty, the committee expects there to be a full justification each time the burden is reversed, with the rights of those affected being the paramount consideration. In this instance the explanatory memorandum gives no justification for the imposition of this legal burden.

1.42 As the explanatory materials do not address this issue, the committee requests the Minister's advice as to why it is proposed to reverse the legal burden of proof in this instance. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[32]

Broad delegation of administrative powers^[33]

1.43 Clause 120 provides that the Operator may delegate all or any of his or her powers or functions under the Act (other than in relation to making a determination on an application or review of the determination and in relation to the application of civil penalties) to 'an officer of the scheme'. An officer of the scheme is a person performing duties, or exercising powers or functions, under or in relation to the Act.^[34] This would presumably apply to any APS employee within the relevant government department.

1.44 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum. In this instance the explanatory memorandum provide no information about why these powers are proposed to be delegated to any level of officer.

1.45 Clause 120(3) also provides that the Operator may delegate his or her powers and functions which relate to whether an application for redress is to be approved (on the initial application or on review) to an 'independent decision-maker', who is not required to comply with any directions of the Operator. Clause 121 provides that the Operator may engage persons to be independent

decision-makers, and the duties of public officials under the Public Governance, Performance and Accountability Act 2013 apply to such persons. However, there is no legislative guidance as to the categories of persons that may be appointed as independent decision-makers and no requirement that they possess relevant skills, training or experience.

1.46 The committee requests the Minister's advice as to why it is necessary to:

[4] Clauses 16, 21, 23, 25, 26 and 34. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(iv) of the committee’s terms of reference.

[9] Senate Standing Committee for the Scrutiny of Bills, First Report of 2015, 11 February 2015, pp 21–35.

[10] See also Senate Standing Committee on Regulations and Ordinances, Delegated Legislation Monitor No. 17 of 2014, 3 December 2014, pp 6–24.

[12] Clause 54. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iv) and (v) of the committee’s terms of reference.

[14] Clause 71. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(ii) of the committee’s terms of reference.

[16] Paragraph 77(1)(a). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(ii) of the committee’s terms of reference.

[17] Which is to be the Secretary of the Department of Social Services acting in their capacity as the Operator; see the definition of 'Operator' in clause 9.

[21] Clauses 84 and subclause 100(7) and 100(8). The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(i) of the committee’s terms of reference.

[22] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[23] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[24] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

[25] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[26] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

[27] Clause 88. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iii) of the committee’s terms of reference.

[31] Subclause 109(4). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

[32] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[33] Clause 120. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(ii) of the committee’s terms of reference

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests