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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to establish a Commonwealth Redress Scheme for Survivors of
Institutional Child Sexual Abuse
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Portfolio
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Social Services
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Introduced
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House of Representatives on 26 October 2017
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Bill status
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Before House of Representatives
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Scrutiny principles
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Standing Order 24(1)(a)(i), (ii), (iii), (iv) and (v)
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2.12 The committee dealt with this bill in Scrutiny Digest No. 13 of 2017. The Minister responded to the committee's comments in a letter dated 30 November 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.[6]
Initial scrutiny – extract
2.13 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.
2.14 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.[8] 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.
2.15 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.[9] 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.
2.16 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.[10] 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.
2.17 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.[11] 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.
2.18 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.[12] 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.[13]
2.19 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.[14]
2.20 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:
• why it is considered necessary and appropriate to leave the elements of this new scheme, as described above, to delegated legislation;
• what type of institutions may be prescribed as not constituting a Commonwealth institution or Territory institution;
• the appropriateness of exempting from disallowance a Ministerial declaration regarding the method or matters to take into account for working out the amount of redress payments, in light of the above comments;
• if significant matters are to be included in delegated legislation, why it is appropriate to include these in rules rather than regulations; and
• the type of consultation that is envisaged will be conducted prior to the making of the rules and whether specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) can be included in the legislation (with compliance with such obligations a condition of the validity of the legislative instrument).
Minister's response
2.21 The Minister advised:
Overview
The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) Redress and Civil Litigation Report recommended the establishment of a national redress scheme for survivors. The Royal Commission has highlighted that many victims of child sexual abuse have not had the opportunity to seek compensation for the abuse they suffered. There is a clear need to provide avenues for survivors to obtain effective redress for this past abuse however, for many it is no longer feasible to seek common law damages. Additionally, the Commonwealth does not have comprehensive constitutional power to legislate for a national scheme. A referral from all starts to the Commonwealth under section 5I(xxxvii) of the Constitution is the most legally sound way to implement a nationally consistent scheme and maximise participation. It will enable redress to be provided to survivors of institutional child sexual abuse in non-government institutions that occurred in a state or where a state government is deemed responsible.
For this reason, the Commonwealth Bill, which I introduced to Parliament on 26 October 2017, does not facilitate states, or non-government institutions in states, to opt-in to the Scheme. The Commonwealth Bill is a significant first step to encourage jurisdictions to opt-in to the Scheme, and will ensure survivors who were sexually abused as children in Commonwealth institutions will receive redress.
If a state agrees to provide a referral and participate in the Scheme from its commencement, the Government will ensure a national redress scheme can be established via legislation from 1 July 2018.
The Royal Commission has shed light on the issue of institutional child sexual abuse on a national level, however the scale of this Scheme is quite different to other state-based schemes or overseas experiences (for example, the Irish Redress Scheme only included one institution). This is the reason the Scheme will need to be flexible to account for any unforeseen numbers of survivors, institutional contexts and other circumstances. Further, my experience of the Western Australian Redress Scheme has shown it will be necessary to adjust policy settings to mitigate against unintended outcomes for survivors.
Detailed advice
The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) Redress and Civil Litigation Report has formed the basis for the development of the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (Commonwealth Bill). Further, an Independent Advisory Council on Redress, appointed by the Prime Minister, the Hon Malcolm Turnbull MP, provided expert advice and insight into the policy and implementation considerations for the Commonwealth Bill. The Independent Advisory Council includes survivors of institutional child sexual abuse and representatives from support organisations, as well as legal and psychological experts, Indigenous and disability experts, institutional interest groups and those with a background in government. The Council is chaired by the Hon Cheryl Edwardes AM, a former solicitor and Western Australian Attorney-General.
The Commonwealth Bill acknowledges that child sexual abuse suffered by children in institutional settings was wrong and should not have happened. The Royal Commission highlighted the complex needs and different life outcomes of survivors of institutional child sexual abuse. The Commonwealth Bill is designed to recognise the suffering survivors have experienced, accept these events occurred and ensure that each institution that is responsible for the abuse pays redress to survivors.
The Commonwealth Redress Scheme for Survivors of Institutional Child Sexual Abuse (the Scheme), which implements all aspects of the Commonwealth Bill, is designed to be responsive to survivors’ and participating institutions’ needs. This is why it is necessary for elements of the Scheme to be in delegated legislation.
The Royal Commission recommended the establishment of a national redress scheme for survivors. In circumstances where the Commonwealth does not have comprehensive constitutional power to legislate for a national Scheme, a referral to the Commonwealth from the states under section 51(xxxvii) of the Constitution is the most legally sound way to implement a nationally consistent Scheme and maximise participation. It will enable redress to be provided to survivors of institutional child sexual abuse in non-government institutions that occurred in a state or where a state government is deemed responsible.
The Commonwealth Bill is a significant first step to encourage jurisdictions to opt-in to the Scheme, and has been designed in anticipation of their participation should a referral of powers be received.
Scheme participation will be established with jurisdictions and non-government institutions from commencement of the Scheme, as they choose to opt-in. Flexibility is needed to allow adjustments for the differing needs of survivors, participating institutions, and to enable the Scheme to quickly implement changes required to ensure positive outcomes for survivors.
Responsive changes, such as a declaration for subclause 27(1) to provide that a non-government institution is a participating non-government institution of a Territory for the purposes of the Scheme, allows that institution to provide redress to a survivor as soon as the institution is included in the declaration. Where a non-government institution decides to opt in to the Scheme, this may also require responsive changes to the rules to provide that a participating non-government institution is not a participating non-government institution for a specified period as the institution was not established in a Territory during that period (see: subclauses 26(3) and (4)).
Using rules rather than regulations or incorporating all elements of the Scheme in the Commonwealth Bill, provides appropriate flexibility and enables the Scheme to respond to factual matters as they arise. It is uncertain how many applications for redress the Scheme will receive at the commencement of the Scheme, and whether there will be unforeseen issues requiring prompt responses. It is therefore appropriate that aspects of the Scheme be covered by rules that can be adapted and modified in a timely manner. The need to respond quickly to survivor needs is also a key feature of the Scheme as many survivors have waited decades for recognition and justice.
In relation to the eligibility requirements in clause 16, the Explanatory Memorandum explains that the citizenship requirement:
...is included to mitigate the risk of fraudulent claims and to maintain the integrity of the Scheme. It would be very difficult to verify the identity of those who are not citizens, permanent residents or within the other classes who may be specified in the Rules. Removing citizenship requirements would likely result in a large volume of fraudulent claims which would impact application timeliness for survivors.
As the committee has noted, the Explanatory Memorandum details three initial classes of people that will be eligible for redress, despite the citizenship requirements above. Further investigation and consultation is continuing across Government and with states and territories to determine if there are other classes of survivors that do not fit the above citizenship requirements that should be deemed eligible for the Scheme. There may also be classes of survivors that will apply for redress that the Scheme has not, or could not, envisage to include in the legislation. The Scheme may not have accounted for categories of survivors that it needs to deal with promptly, to ensure the timely processing of applications and the best outcomes for survivors so subclause 16(2) is necessary to allow the Scheme to respond to situations as they arise. Subclause 16(3) will be used to respond to exceptional cases, such as to specify people ineligible where they have a criminal conviction and their eligibility would affect the integrity and public confidence in the Scheme.
I note the committee’s concerns and I am considering the inclusion of predetermined cases in any future legislation to reflect a national redress scheme.
Subclause 21(7) is intended to operate to ensure that institutions are not found responsible for abuse that occurred in circumstances where it would be unreasonable to hold the institution responsible, despite subclauses 21(2) and (3). For example, from the commencement of the Scheme, it is intended the rules will specify an institution is not responsible for child sexual abuse perpetrated by another child unless there is a reasonable likelihood that the institution mismanaged or encouraged the situation. The power in subclause 21(7) will also be used to clarify circumstances where a participating government institution should not be considered responsible. Such circumstances may include:
• where the government only had a regulatory role over a non-government institution;
• where the government only provided funding to a non-government institution; and
• where the only connection is that the non-government institution was established under law enacted by the government.
Until institutions opt in to the Scheme, it is not possible to envisage every possible circumstance to include in the legislation.
In relation to your query about institutions that may be prescribed as not constituting a Commonwealth or territory institution, paragraphs 23(2)(c) and 25(2)(b), and subclause 26(3) allow for flexibility to accommodate opt-in arrangements for different types of institutions.
These rule-making powers are not intended to reduce the scope of the application of the Scheme. Institutions have been established differently in different jurisdictions, which means some institutions may technically be considered a Commonwealth or Territory institution, rather than a non-government institution. For example, the Anglican Church provided comment on a draft of the National Bill that:
Read strictly some Anglican bodies (e.g. those established under the Anglican Church of Australia (Bodies Corporate) Act 1938 in NSW) may meet the definition of a State institution.
Paragraphs 23(2)(c) and 25(2)(b) will allow for institutions that have been established under Commonwealth or Territory laws, but would be considered as separate from these jurisdictions for the purposes of the Scheme, to be determined in the rules to be a non-government institution.
Subclause 26(3) may cover situations where an institution was established in a Territory but only for a limited time. Subclause 26(4) is a safeguard should the Scheme want to prescribe situations where a non-government institution established in a Territory is not within scope of the Scheme but only for a specified period of time. It will not be possible to clarify the circumstances of non-government institutions of territories until the scheme commences and non-government institutions take steps to opt-in to the Scheme. For example, where an institution is operation from 2000 to 2018, but only established in a Territory from 2015, subsections 26(3) and 26(4) may be used to clarify that the institution is not a non-government institution of a territory from 2000 to 2015. These provisions are not intended to reduce the scope of the application of the Scheme, but rather to correctly identify institutions that are responsible for the abuse and which are within the scope of the Scheme.
As noted by the committee, the Explanatory Memorandum explains that assessment guidelines would normally be of an administrative character and would not be contained in a legislative instrument. The committee queries whether the guidelines could instead be included in the primary legislation. It is necessary not to publish the detailed assessment guidelines in the primary legislation in order to mitigate the risk of fraudulent applications. Placing the assessment guidelines in the primary legislation would enable people to understand how payments are attributed and calculated, and possibly submit a fraudulent or enhanced application designed to receive the maximum redress payment under the Scheme. The Scheme has a low evidentiary threshold and is based on a reasonable likelihood test. These aspects of the Scheme are important and provides recognition and redress to survivors who may not be able or want to access damages through civil litigation. However, there needs to be some mechanisms to prevent fraudulent claims. To balance the risk of fraudulent applications with ensuring a transparent and certain process, it was considered necessary to make these declarations legislative instruments.
It is appropriate for matters to be included in rules rather than regulations as the Scheme needs to be responsive to survivors, participating territory institutions, and participating non-government institutions given that the Scheme will operate for a fixed period of time and needs to ensure the timely processing of survivors’ applications. The use of rules allows the Scheme to act on and implement changes quickly and as the need arises. As the committee would know, regulations would need to go through the Executive Council process, which may result in the Scheme being less responsive to the needs of survivors and participating institutions.
All aspects of the Scheme have been subject to ongoing consultation with State and Territory Ministers responsible for redress, state and territory departmental officials, the Independent Advisory Council, survivors of institutional child sexual abuse and non-government institutions. The drafting of the legislation, including the rules, have been a part of this consultation with stakeholders.
A Board of Governance will be established to serve in an advisory capacity to provide advice to the Minister, Scheme Operator, the Department of Social Services and the Department of Human Services. The structure of the board is still under development; however, membership will include Ministerial representatives from each participating State and Territory. Consultation and agreement from the Board will be undertaken prior to any legislative changes, including creating or amending legislative instruments.
Committee comment
2.22 The committee thanks the Minister for this response. The committee notes the Minister's advice that the Commonwealth does not have comprehensive constitutional power to legislate for a national scheme and a referral from all states would be the most legally sound way to implement a nationally consistent scheme. The committee notes the Minister's advice that this bill is a significant first step to encourage jurisdictions to opt-in to the scheme and, as such, flexibility is needed to allow adjustments for the differing needs of survivors and participating institutions and to enable the scheme to quickly implement changes.
2.23 The committee notes the Minister's advice that further investigation and consultation is continuing to determine if there are classes of survivors that should be deemed to be eligible for redress that do not fit within the requirements set out in the bill, and subclause 16(2) (which enables rules to be made prescribing who is eligible for redress) is necessary to allow the Scheme to respond to situations as they arise. The committee further notes the Minister's advice that subclause 16(3) (which enables rules to be made prescribing who is not eligible for redress) will be used to respond to exceptional cases, 'such as to specify people ineligible where they have a criminal conviction and their eligibility would affect the integrity and public confidence in the Scheme'. The committee notes the Minister's advice that he is considering including predetermined cases 'in any future legislation', but notes that no undertaking has been made to amend this bill.
2.24 In relation to the power to make rules to specify when institutions are not to be held responsible for abuse, the committee notes the Minister's advice that until institutions opt in to the scheme 'it is not possible to envisage every possible circumstance to include in the legislation'. The committee notes that in relation to clauses 23, 25 and 26, the Minister's similarly advised that it is not possible to clarify which institutions should not be included as part of the scheme until the scheme commences and non-government institutions take steps to opt-in to the scheme.
2.25 The committee has had long-standing scrutiny concerns[15] about 'framework bills' which are introduced into Parliament but which contain only the broad principles of the legislative scheme and rely heavily on delegated legislation to determine the scope and operation of the scheme. Such legislation undermines effective parliamentary scrutiny as it avoids detailed parliamentary debate on the content of important provisions. The committee considers that, from a scrutiny perspective, it would be better for the introduction of a bill to be delayed until all policy details have been appropriately considered than to allow significant policy content to be determined by way of delegated legislation. In this instance, the committee considers this is of particular concern where the rules can be used to determine who would not be eligible for redress and which institutions would be considered not to be responsible for the abuse of a person.
2.26 The committee is particularly concerned that clause 34(3) provides that any declaration by the Minister setting out the method, or matters to be taken into account, for working out the amount of redress payment is exempt from the usual parliamentary disallowance processes. The committee notes it has consistently taken the view that removing or limiting parliamentary oversight is a significant matter and any exemption of delegated legislation from the usual disallowance process should be fully justified. The committee notes that the Senate Standing Committee on Regulations and Ordinances does not examine non-disallowable instruments and the nature of non-disallowance means that the Senate would have no power to set aside any ministerial declaration that it considers to be inappropriate. The committee notes the Minister's advice that placing these assessment guidelines in the primary legislation 'would enable people to understand how payments are attributed and calculated' which could mean that a person could submit a fraudulent or 'enhanced' application to seek to receive the maximum redress payment under the scheme. The committee notes that the creation of a legislative scheme generally requires that people are able to understand and access details of how the legislative scheme operates. In relation to the accessibility of such information, it is not clear to the committee why including such detail in a legislative instrument, which must be registered on the Federal Register of Legislation[16] (and therefore would be available on a public website), would differ from the accessibility of primary legislation. The committee also notes that the Minister's advice does not address its question as to why it is appropriate to exempt such a legislative instrument from disallowance.
2.27 Further the committee notes the Minister's advice that the use of rules, rather than regulations, allows the scheme to act on and implement changes quickly and as the need arises, whereas regulations would need to go through the Executive Council process which may result in the scheme being less responsive to the needs of survivors and participating institutions. The committee notes that the use of delegated legislation itself is designed to allow the executive to swiftly make changes to the law, and the committee reiterates its view that if significant matters are to be provided for in delegated legislation there should at least be some executive scrutiny over the process, by including such matters in regulations as opposed to rules.
2.28 Finally, the committee notes the Minister's advice that the rules will be developed as part of consultation with stakeholders, but notes that there is nothing in the bill requiring such consultation be undertaken. The committee takes this opportunity to reiterate its general view that where the Parliament delegates its legislative power in relation to significant regulatory schemes 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 those obligations is a condition of the validity of the legislative instrument.
2.29 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.30 The committee considers it may be appropriate for the bill to be amended to provide, at a minimum, that:
• any Ministerial declaration made under clause 34, regarding the method or matters to be taken into account for working out the amount of redress payments, should be subject to the usual parliamentary disallowance procedures;
• the significant delegation of powers in clauses 16, 21, 23, 25, 26 and 34 be included in regulations rather than rules; and
• specific consultation obligations be included in the bill, with compliance with these obligations a condition of the validity of the legislative instrument.
2.31 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.
2.32 The committee otherwise draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of leaving significant elements of this new scheme to delegated legislation.
2.33 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.
2.34 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.
2.35 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.
2.36 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).[18]
2.37 The committee draws this standing appropriation to the attention of the Senate.
Minister's response
2.38 The Minister advised:
I note the Committee’s comments regarding the standing appropriation and that some matters are not addressed in the Explanatory Memorandum. An Addendum to the Explanatory Memorandum will clarify this.
Committee comment
2.39 The committee thanks the Minister for this response. The committee welcomes the Minister's advice that an addendum to the explanatory memorandum will be made to address the standing appropriation.
2.40 In light of this undertaking, the committee makes no further comment on this matter.
Civil penalty[19]
Initial scrutiny – extract
2.41 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.[20] 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.
2.42 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.
Minister's response
2.43 The Minister advised:
It is intended that a refusal or failure to comply with a requirement to provide information or documents to the Scheme Operator under clause 70 be subject to a civil penalty carrying a penalty of 100 penalty units (subclause 71(1)). Subclause 71(2) correctly states that subclause 71(1) will not apply if the institution or person has a reasonable excuse.
The note at the end of subclause 71(2) was included in error. This error will be corrected.
Committee comment
2.44 The committee thanks the Minister for this response. The committee notes the Minister's advice that the note at the end of subclause 71(2) was included in error and welcomes his undertaking to correct this error.
2.45 In light of this undertaking, the committee makes no further comment on this matter.
Initial scrutiny – extract
2.46 Clause 77 provides that the Commonwealth Redress Scheme Operator (the Operator)[22] 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.[23] 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'.[24] 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.
2.47 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.[25] 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.
2.48 The committee therefore requests the Minister's advice as to:
• why (at least high-level) rules or guidance about the exercise of the Operator's disclosure power cannot be included in the primary legislation;
• what circumstances are envisaged might necessitate the use of this power noting the provisions of clause 78, which already proposes allowing disclosure for the enforcement of the criminal law or for the purposes of child protection; and
• why there is no positive requirement that rules must be made regulating the exercise of the Operator's power (i.e. the committee requests advice as to why the proposed subsections have been drafted to provide that the Operator act in accordance with 'any rules' made and that rules 'may' make provision for such matters, rather than requiring that the rules must make provision to guide the exercise of this significant power).
Minister's response
2.49 The Minister advised:
The provisions have been drafted to reflect similar provisions in other legislation within the Social Services portfolio, which routinely deals with a person’s sensitive information and provides a consistent approach to the way in which the Department deals with protected information. It was considered more appropriate to provide a power to enable rules to be made by the Minister if it was considered necessary to assist with the exercise of the Scheme Operator’s disclosure of protected information. This provides flexibility to address any circumstances that arise which are of sufficient public interest to warrant the exercise of that power. Incorporating high-level rules in the Commonwealth Bill would restrict the Scheme Operator’s power to make a public interest disclosure to those circumstances set out in the Commonwealth Bill.
Careful consideration will be given to ensure that any personal information held by the Scheme Operator is given due and proper protection. It is envisaged the power to make public interest disclosures will only be used, for instance, where it is necessary to prevent, or lessen, a threat to life, health or welfare, for the purpose of briefing the Minister or if the information is necessary to assist a court, coronial inquiry, Royal Commission, etc., for specific purposes such as a reported missing person or a homeless person.
Despite there not being a positive requirement in the Commonwealth Bill, the intention is to make rules to regulate the Scheme Operator’s disclosure power. However, the Committee’s concerns are noted and I will consider including a positive requirement for rules in the National Bill.
Committee comment
2.50 The committee thanks the Minister for this response. The committee notes the Minister's advice that the provision has been drafted to reflect similar provisions in other legislation within the social security portfolio, and that giving the Minister the discretion to make rules will provide flexibility to address any circumstances that warrant the exercise of the power. The committee also notes the Minister's advice that personal information held by the Operator will be given due and proper protection, and that it is envisaged public interest disclosures will only be made in certain limited circumstances. Finally, the committee notes the Minister's advice that it is intended to make rules to regulate the Operator's disclosure power and consideration will be given to including a positive requirement to this effect in the bill.
2.51 The committee does not consider that the existence of similar disclosure provisions in other legislation provides a sound justification for including such a provision in this bill. The committee reiterates that the bill, as it stands, would allow the Operator to disclose extremely sensitive information, including information relating to allegations regarding child sexual abuse, to any person and for any reason so long as it is considered necessary in the public interest to do so. Although the Minister's response outlines a number of circumstances in which it is envisaged this disclosure power might be used, it remains the case that the bill itself does not restrict disclosure to these circumstances, nor does the bill require the making of rules to regulate the use of the disclosure power. The committee reiterates 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.[26] 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. It remains unclear to the committee why it is necessary to grant such a broad disclosure power to the Operator and why guidance as to its use cannot be set out in primary legislation.
2.52 From a scrutiny perspective, the committee therefore considers it would be appropriate for the bill to be amended so as to provide at least high-level guidance about the exercise of the Operator's disclosure powers, including that affected persons must be consulted before personal information is disclosed (except in specified urgent circumstances).
2.53 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.54 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.
2.55 The committee otherwise draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of granting the Operator broad discretionary power to disclose personal information.
Initial scrutiny – extract
2.56 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.
2.57 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.
2.58 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.
2.59 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.
2.60 The committee notes that the Guide to Framing Commonwealth Offences[28] 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:
• it is peculiarly within the knowledge of the defendant; and
• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.[29]
2.61 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).
2.62 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.[30] The explanatory memorandum provides no justification as to why the offence is subject to strict liability.
2.63 As the explanatory materials do not address this issue, the committee requests:
• the Minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in these instances. 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; [31] and
• a detailed justification from the Minister for the proposed application of strict liability to this offence with reference to the principles set out in the Guide to Framing Commonwealth Offences.[32]
Minister's response
2.64 The Minister advised:
Subclauses 84(1) and 84(2) make it an offence to offer to supply protected information about another person, or for a person to hold himself or herself out as being able to supply such information. Subclause 84(3) provides a defence where an officer is acting in the performance or exercise of his or her powers, duties or functions under the Act. Subclause 100(6) provides that a nominee commits an offence if they refuse or fail to comply with a relevant notice. Subclause 100(7) provides a defence where the nominee has a reasonable excuse.
In relation to the offence specific defence in subclause 84(3), whether the person was acting in the performance or exercise of his or her powers, duties or functions under the Act would be peculiarly within the knowledge of the defendant. It is therefore appropriate that the defendant bears the evidential burden of proof in relation to the matter.
In relation to the offence-specific defence in subclause 100(7), evidence pertaining to the defendant’s excuse for failing to comply with a relevant notice is a matter peculiarly within the knowledge of the defendant. It is therefore appropriate that the defendant bears the evidential burden of proof in relation to the matter.
Consistent with the Guide to Framing Commonwealth Offences, subclauses 84(3) and 100(7) specify that the evidential burden of proof in relation to the defence rests with the defence.
Subclause 100(8) provides that an offence under subclause 100(6) is an offence of strict liability. The offence in subclause 100(6) is not punishable by imprisonment and the penalty in subclause 100(6) is 30 penalty units. The offence in subclause 100(6) is necessary to ensure that the Scheme Operator is able to monitor the disposal of redress payments by payment nominees. A payment nominee may be appointed where, for example, a survivor is a minor or does not have capacity to manage their financial affairs. The payments may be up to $150,000 and it is essential to the integrity of the Scheme that payment nominees who receive money on behalf of survivors are accountable to the Scheme Operator for their use of survivors redress payments.
The Committee’s comment that these matters are not addressed in the Explanatory Memorandum are noted. An Addendum to the Explanatory Memorandum will clarify this.
Committee comment
2.65 The committee thanks the Minister for this response. The committee notes the Minister's advice that, in relation to the offence-specific defence set out in subclause 84(3), whether the person was acting in the performance or exercise of his or her powers, duties or functions under the Act would be peculiarly within the knowledge of the defendant and it is therefore appropriate that the defendant bear the evidential burden of proof.
2.66 The committee also notes the Minister's advice that it is appropriate that the defendant bear the evidential burden of proof in relation to the offence-specific defence set out in subclause 100(7) as evidence pertaining to the defendant's excuse for failing to comply with a relevant notice is a matter peculiarly within the defendant's knowledge. The committee further notes the Minister's advice that the application of strict liability to the offence in subclause 100(6) is necessary to ensure the Operator is able to monitor the disposal of redress payments by payment nominees, and that the offence is not punishable by imprisonment and attracts a penalty of 30 penalty units.
2.67 The committee considers that the Minister's response has adequately addressed its scrutiny concerns in relation to the application of strict liability and the reversal of the evidential burden of proof in clause 100. However, in relation to the reversal of the evidential burden of proof in clause 84, the committee does not consider that the Minister's response has established 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. Whether an officer is acting in accordance with their legislative duties should be known to the Commonwealth. The committee does not consider that it is appropriate that the burden of proof 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. The committee considers these matters appear to be matters more appropriate to be included as an element of the offence.
2.68 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.69 In light of the information provided, the committee makes no further comment in relation to the application of strict liability and the reversal of the evidential burden of proof in clause 100.
2.70 However, the committee draws its scrutiny concerns in relation to clause 84 to the attention of Senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in this clause.
2.71 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.
2.72 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.[34]
2.73 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.[35] The explanatory memorandum states that limiting rights to internal review was made on the recommendation of the Independent Advisory Council on redress and that:
[t]he lower evidentiary thresholds under the Scheme and the broad discretion of the decision-makers mean that merits review and judicial review under the ADJR Act are not appropriate for decisions under the Scheme. The Scheme is to be supportive, survivor-focussed and non-legalistic and decisions will be made expeditiously.[36]
2.74 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 [2.95] to [2.96] below.
2.75 The committee seeks the Minister's advice as to:
• why an internal reviewer of the original determination will only be able to have regard to information and documents that were available to the person who made the original determination; and
• the justification for excluding external merits review for applicants dissatisfied with the original decision or decision on review, particularly in the context of the committee's concerns regarding the lack of any legislative guidance on the quality of the persons to be appointed as decision-makers.
Minister's response
2.76 The Minister advised:
The decision to limit the internal reviewer to only have regard to information and documents that were available to the person who made the original determination was to balance the need for an expedited application process for survivors with the burden of administration required when reopening many applications for review. Allowing the internal reviewer to request further information from survivors will create a high level of administrative burden to the individual and the Scheme, add to the potential re-traumatisation of survivors having to seek additional material and increase the operational costs for institutions to participate in the Scheme. To ensure national participation of Territory and non-government institutions in the Scheme, and to allow maximum coverage for survivors, administration costs have to be kept to a minimum. If administration costs are too high, institutions will not participate in the Scheme and many survivors will therefore not have the opportunity to receive redress. The Scheme will provide extensive communication and support to survivors to ensure they provide all information available to them when they lodge an application.
The decision to exclude external merits review for applicants was made on the advice of the Independent Advisory Council on redress following the Royal Commission’s recommendation. The Council recommended the Scheme provide survivors with access to an internal review process, but no rights to external merits or judicial review as they considered that providing survivors with external review would be overly legalistic, time consuming, expensive and would risk further harm to survivors.
Survivors of institutional child sexual abuse often have experienced significant and continuing power imbalance between themselves, even as an adult, and institutions. The long-term impacts of child sexual abuse leave many survivors much less able to confront institutions and they remain at great risk of re-traumatisation.
For these reasons, the Scheme is not intended to be legalistic in nature and is intended as an alternative to civil litigation with a low evidentiary burden and a high level of beneficial discretion. The Scheme aims to have the needs of survivors at the core and to take lengths to avoid further harm or re-traumatisation of survivors. The Scheme has taken many steps to ensure that all aspects are developed in accordance with a trauma-informed approach and the judicial review process has not been developed for these reasons. If judicial review avenues were available, many survivors may have unrealistic expectations of what could be achieved and the judicial review process is likely to re-traumatise a survivor.
My Department will recruit appropriately qualified, independent assessors, known as Independent Decision Makers, who will make all decisions on applications made to the Scheme. Independent Decision Makers will not report or be answerable to Government. The Scheme will allow internal merits review of decisions and the Independent Decision Maker undertaking the review must not have been involved in the making of the original decision. The recruitment process, including the criteria for appropriate skills and attributes of the Independent Decision Makers to ensure objectivity, are under development.
Committee comment
2.77 The committee thanks the Minister for this response. The committee notes the Minister's advice that allowing the internal reviewer to request further information from survivors beyond that available to the original decision maker would create a high level of administrative burden to the individual and the scheme, add to potential re-traumatisation of survivors, and increase operational costs for participating institutions. The committee also notes the Minister's advice that institutions may not participate in the scheme if administration costs are too high, and that survivors will be provided with support to ensure they include all information available to them then when lodging an application.
2.78 The committee further notes the Minister's advice that the decision to exclude external merits review before the Administrative Appeals Tribunal (AAT) was made on the advice of the Independent Advisory Council on redress, which considered that providing survivors with external review would be overly legalistic, time consuming and expensive and would risk further harm to survivors.
2.79 Finally, the committee notes the Minister's advice that the Department intends to recruit appropriately qualified independent assessors as independent decision makers and that criteria detailing appropriate skills and attributes for these positions are being developed.
2.80 The committee remains concerned that not allowing the consideration of additional information during the internal review process could prevent applicants from relying on evidence that becomes available between the time of the original application and the internal review, or material that 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. It is not clear to the committee that allowing internal reviewers to have regard to such additional information would increase the administrative burden to individuals or add to potential re-traumatisation as it would be the individuals themselves who would seek to have the additional information considered, rather than the internal reviewer requiring its production. It is also not clear to the committee that this would significantly add to the cost of the internal review process.
2.81 With respect to the decision not to allow external merits review, the committee reiterates its view that AAT review is itself designed to not be legalistic and, as it would only apply if a survivor of abuse sought to make an application for review, it remains unclear to the committee why providing AAT review would be inconsistent with the intention of placing the needs of survivors at the core of the scheme. The committee notes that, while the intention may be to appoint appropriately qualified persons as independent decision makers, there is nothing in the bill to require this.
2.82 The committee considers it would be appropriate for the bill to be amended so as to remove subclause 88(3), which seeks to exclude the use of new information or documents in the internal review process.
2.83 The committee otherwise draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of excluding external merits review of decisions on applications for redress.
Initial scrutiny – extract
2.84 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.
2.85 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.
2.86 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.
2.87 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. [38]
Minister's response
2.88 The Minister advised:
Subclause 109(3) makes it an offence for a financial institution not to comply with a notice given to it by the Scheme Operator requiring repayment to the Commonwealth of an amount that the Scheme Operator considers was wrongly paid to the credit of an account kept with that institution. The financial institution must repay the lessor of the amount stated in the notice or the amount standing to the credit of the relevant account. For a financial institution, it is a defence to the offence of failing to comply with the notice if the financial institution proves that it was incapable of complying with the notice.
The note to subclause 109(4) clarifies that a defendant (financial institution) bears the legal burden of proving that it was incapable of complying with the Scheme Operator’s notice. It is appropriate for the financial institution to be required to prove that it was incapable of complying with the notice in order to be released from the usual requirement to repay an amount owing to the Commonwealth. The financial institution bears the legal burden of proof because whether it was incapable of complying with the notice is a matter that would be peculiarly within its knowledge. It would be unreasonable to require the prosecution to disprove, beyond reasonable doubt, that the financial institution was incapable of complying with the notice. For that reason is it appropriate for the defendant to discharge the legal burden of proof in relation to this matter.
The committee’s comment that this is not addressed in the Explanatory Memorandum is noted. An Addendum to the Explanatory Memorandum will clarify this.
Committee comment
2.89 The committee thanks the Minister for this response. The committee notes the Minister's advice that it is considered appropriate to require a financial institution to prove, on the balance of probabilities, that it was incapable of complying with the notice because this would be a matter peculiarly within its knowledge and it would be unreasonable to require the prosecution to disprove the matter beyond reasonable doubt.
2.90 The committee notes that the Guide to Framing Commonwealth Offences states that, where a defendant is required to discharge a legal burden of proof, the explanatory material should justify why a legal burden has been imposed instead of an evidential burden.[39] The committee accepts that whether or not a financial institution was incapable of complying with the notice appears to be peculiarly within the knowledge of that institution and that it would therefore be justifiable to reverse the evidential burden of proof. However, it is not clear from the Minister's response, or from the explanatory materials, why it is proposed to instead place a legal burden of proof on the defendant.
2.91 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.92 In light of the information provided and the fact that this offence applies to financial institutions rather than individuals, the committee makes no further comment on this matter.
2.93 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.[41] This would presumably apply to any APS employee within the relevant government department.
2.94 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.
2.95 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.
2.96 The committee requests the Minister's advice as to why it is necessary to:
• allow much of the Operator's powers and functions to be delegated to an APS employee at any level; and
• allow independent decision-makers to be appointed without any legislative guidance as to their skills, training or experience.
Minister's response
2.97 The Minister advised:
A broad delegation of the Scheme Operator’s powers is necessary to enable the Department of Human Services and the Department of Social Services to administer the Scheme in an efficient manner, which is responsive and flexible to address matters as they arise.
Determinations to do with eligibility or assessment can only be delegated to an Independent Decision Maker. The Scheme Operator will delegate functions for the ordinary administration of the Scheme. The Scheme Operator, who is the Secretary of the Department of Social Services, will determine the appropriate level of delegation commensurate with the administrative function being undertaken.
Subclause 121(2) states that before the Minister can engage a person to be an Independent Decision Maker, the Minister must consult the appropriate Ministers from the self-governing Territories in accordance with the Commonwealth Redress Scheme Agreement. The consultation process will include selection, vetting and training of prospective Independent Decision Makers. This consultative process provides appropriate legislative guidance to engage appropriate Independent Decision Makers, whilst retaining flexibility to respond to cohorts of survivors coming through the Scheme as they present.
Committee comment
2.98 The committee thanks the Minister for this response. The committee notes the Minister's advice that the broad delegation of the Operator's powers is necessary to enable the efficient, responsive and flexible administration of the scheme. The committee also notes the Minister's advice that the Scheme Operator—that is, the Secretary of the Department of Social Services—will determine the appropriate level of delegation with respect to the administrative function being undertaken.
2.99 The committee further notes the Minister's advice that, before engaging a person as an independent decision maker, the bill provides that the Minister must consult the appropriate Territory Ministers in accordance with the Commonwealth Redress Scheme Agreement and that this consultation will include selection, vetting and training of prospective independent decision makers.
2.100 The committee reiterates its preference that delegations of administrative power be confined to holders of nominated offices or members of the Senior Executive Service or, alternatively, that a limit be set on the scope and type of powers that may be delegated. The committee notes the Minister's advice as to how it is intended the Scheme Operator's administrative powers will be delegated. However, the committee notes there is nothing on the face of the bill that would require the delegation power to be exercised in this way.
2.101 The committee also reiterates its concern that the bill contains no guidance as to the skills, training or experience independent decision makers must possess in order to be appointed. The committee does not share the Minister's view that the consultation process between the Minister and the appropriate Territory Ministers, as set out in subclause 121(2), provides appropriate legislative guidance as to the appropriate qualifications of independent decision makers, as it relates only to the need for consultation. While the selection, vetting and training of independent decision makers may be addressed in this consultation process, this does not address the committee's concern that no legislative guidance on such matters is set out in the bill.
2.102 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of allowing for a broad delegation of the Scheme Operator's administrative powers and of the power to appoint independent decision makers in the absence of any legislative guidance as to their skills, training or experience.
2.1
[6] See correspondence relating to Scrutiny Digest No. 15 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest
[7] 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.
[8] Explanatory memorandum, p. 13.
[9] Explanatory memorandum, pp 16-17.
[10] Explanatory memorandum, pp 17-18.
[11] Explanatory memorandum, p. 26.
[12] Senate Standing Committee for the Scrutiny of Bills, First Report of 2015, 11 February 2015, pp 21–35.
[13] See also Senate Standing Committee on Regulations and Ordinances, Delegated Legislation Monitor No. 17 of 2014, 3 December 2014, pp 6–24.
[14] See sections 18 and 19 of the Legislation Act 2003.
[15] See, for example, Senate Standing Committee for the Scrutiny of Bills, Final Report: Inquiry into the future role and direction of the Senate Scrutiny of Bills Committee, Chapter 5.
[16] See subsection 15A(2) of the Legislation Act 2003.
[17] 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.
[18] Clause 129.
[19] Clause 71. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(ii) of the committee’s terms of reference.
[20] Explanatory memorandum, p. 41.
[21] 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.
[22] 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.
[23] See subclause 75(2).
[24] Explanatory memorandum, p. 43.
[25] See clause 78(3).
[26] See clause 78(3).
[27] 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.
[28] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.
[29] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.
[30] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.
[31] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.
[32] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.
[33] Clause 88. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iii) of the committee’s terms of reference.
[34] Clause 30.
[35] In relation to judicial review, see the committee's comments in relation to the Commonwealth Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2017, at pages 20-21 of Scrutiny Digest 13 of 2017.
[36] Explanatory memorandum, p. 7.
[37] Subclause 109(4). The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.
[38] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.
[39] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 52.
[40] Clause 120. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(ii) of the committee’s terms of reference
[41] See clause 9.
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