Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017 [2017] AUSStaCSBSD 374 (15 November 2017)

• Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017
• Exclusion of judicial review 35

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017

Purpose	This bill seeks to provide for consequential amendments to be made to Commonwealth legislation for the purpose of the Commonwealth Redress Scheme for Survivors of Institutional Child Sexual Abuse
Portfolio	Social Services
Introduced	House of Representatives on 26 October 2017
Scrutiny principle	Standing Order 24(1)(a)(iii)

Exclusion of judicial review ^[35]

1.47 This bill is consequential to the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017, which seeks to establish a redress scheme for survivors of institutional child sex abuse. This bill seeks to make decision made under the redress scheme exempt from judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

1.48 The committee notes that the ADJR Act is beneficial legislation that overcomes a number of technical and remedial complications that arise in an application for judicial review under alternative jurisdictional bases (principally, section 39B of the Judiciary Act 1903) and also provides for the right to reasons in some circumstances. Where a provision excludes the operation of the ADJR Act, the committee expects that the explanatory memorandum should provide a justification for the exclusion. In this instance, the explanatory memorandum offers a number of reasons for exempting decisions made under the scheme from the ADJR Act, namely:

• to ensure a timely response to eligible survivors;

• to prevent undue administrative delay;

• that protections provided by the ADJR Act are unlikely to be required, as the 'reasonable likelihood' threshold means it more likely a person who has experienced institutional child sexual abuse will have access to redress;

• internal review is available under the scheme; and

• legal proceedings may risk re-traumatising an applicant.

1.49 However, the committee notes that as any judicial review application would be at the election of a person who is dissatisfied with a decision made under the scheme, it is unclear why any delays thereby created or the risk of re-traumatisation cannot be considered as part of a person's decision about whether to seek a judicial review. Nor is it clear why the fact that access to redress is determined by the reasonable likelihood standard or the provision of internal review are cogent reasons for the exclusion of judicial review. In light of the fact that judicial review of decisions made by the Operator (or delegate) will still be available under s 39B of the Judiciary Act 1903, it is therefore unclear why ADJR Act review is to be excluded. The committee considers, from a scrutiny perspective, the proliferation of exclusions from the ADJR Act should be avoided.

1.50 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of excluding judicial review under the Administrative Decisions (Judicial Review) Act 1977 of decisions made under the redress scheme.

1.1

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[35] Schedule 3, item 1. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(ii) of the committee’s terms of reference.