National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 [2018] AUSStaCSBSD 151 (20 June 2018)

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Purpose	This bill seeks to establish a National Redress Scheme for survivors of institutional child sexual abuse and operate for a 10 year period from 1 July 2018
Portfolio	Social Services
Bill status	Passed both Houses on 19 June 2018

1.67 A number of the measures contained in this bill are identical or substantially similar to measures the committee commented on when it considered the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (2017 bill).^[68] The committee takes the opportunity to reiterate the relevant comments below and also make some additional comments.

Significant matters in delegated legislation^[69]

1.68 The bill seeks to establish a redress scheme for survivors of institutional child sexual abuse, and contains a number of provisions that would allow the scope of the scheme to be significantly altered by delegated legislation. Clauses 12 to 15 set out criteria for when a person is entitled and eligible to redress and when abuse of a person will be within the scope of the scheme and when an institution will be considered responsible for abuse. Each of these clauses also provide that the rules may narrow the scope of the scheme by prescribing cases in which these general criteria do not apply—that is, when a person is not entitled to or eligible for redress, when abuse of a person is not within the scope of the scheme and when an institution is not responsible for abuse.^[70] The committee's view is that significant matters, such as matters central to determining the scope of the redress scheme, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.

1.69 The explanatory memorandum provides no explanation of the need to provide this power in relation to subclause 12(4).^[71] In relation to subclause 13(3), the explanatory memorandum states that the power is intended to be used in exceptional cases that have not, or could not, be envisaged prior to the commencement of the scheme—for example, 'where allowing a class of persons to be eligible for redress may bring the Scheme into disrepute or adversely affect public confidence in, or support for, the Scheme.'^[72] In relation to subclause 14(3), the explanatory memorandum states that it is intended the rules will prescribe that abuse is not within the scope of the scheme where the person has received a favourable court award in respect of that abuse.^[73] Finally, in relation to subclause 15(6), the explanatory memorandum states that it is intended to prescribe that a government institution is not responsible for abuse where another institution was responsible and the government institution merely regulated or funded the other institution, or the other institution was established by or under the law of the relevant government.^[74]

1.70 The explanatory memorandum also contains a general justification of the need to leave some matters to delegated legislation, stating that the scheme 'will need to be flexible to account for any unforeseen numbers of survivors, institutional contexts and other circumstances',^[75] and that:

1.71 The committee sought the minister's advice as to why it was considered appropriate to leave significant matters to delegated legislation in relation to similar provisions in the 2017 bill. The minister's response emphasised the need for flexibility and also stated that he was considering specifying 'in any future legislation' predetermined classes of persons who will not be eligible for redress.^[77] The committee notes that the current bill includes provisions that exclude persons who have a serious criminal conviction or are subject to a security notice from entitlement to redress.^[78]

1.72 While the committee acknowledges that the exclusion of persons with serious criminal convictions or persons who are the subject of a security notice has been moved to primary legislation in the current bill, it emphasises that the proposed rule-making powers under clauses 12 to 15 have not been limited by the inclusion of any general criteria with respect to the circumstances in which they may be used. As such, it remains the case that these powers may be used to significantly alter the scope of the scheme by delegated legislation. The committee therefore reiterates the scrutiny concerns it expressed in relation to similar provisions in the 2017 bill—that is, that legislation which relies heavily on delegated legislation to determine the scope and operation of a scheme can undermine effective parliamentary scrutiny as it avoids detailed parliamentary debate on the content of important provisions.^[79]

1.73 The committee also holds a number of scrutiny concerns with respect to the type of delegated legislation by which these significant matters relating to the scope of the scheme may be prescribed, and the level of parliamentary scrutiny to which such delegated legislation will be subjected. The committee notes that the significant matters identified above 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.^[80] 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.^[81]

1.74 In this instance, the explanatory memorandum states that it is appropriate that aspects of the scheme are left to rules, rather than regulations, as rules 'can be adapted and modified in a timely manner' and that the 'need to respond quickly to survivor needs is a key feature of the Scheme.'^[82] However, the committee considers that the use of delegated legislation is itself designed to allow the executive to swiftly make changes to the law and that it remains unclear how prescribing aspects of the scheme in regulations, rather than rules, would significantly lessen the flexibility of the scheme.

1.75 In addition, the committee notes that the use of rules rather than regulations may also reduce parliamentary scrutiny of these significant matters. Section 44 of the Legislation Act 2003 relevantly provides that the usual parliamentary disallowance procedures do not apply to legislative instruments if their enabling legislation facilitates the establishment of an intergovernmental scheme involving the Commonwealth and one or more states and authorises the instrument to be made for the purposes of the scheme, unless the instrument is a regulation. In this case, the bill states that the objects of the bill include implementing the joint response of the Commonwealth and any participating state or territory government to recommendations of the Royal Commission.^[83] The bill also imposes certain requirements based on the intergovernmental National Redress Scheme for Institutional Child Sexual Abuse (Intergovernmental Agreement). It therefore appears that rules made under the bill would meet these criteria and therefore not be subject to the usual disallowance procedures. However, as the explanatory memorandum does not address this matter and the bill also includes provisions specifically excluding particular legislative instruments from the usual disallowance procedures (see discussion at paragraphs 1.94 to 1.100), it is not clear to the committee whether it is intended that the National Redress Scheme Rules will not be subject to disallowance by virtue of section 44 of the Legislation Act 2003.

1.76 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.^[84]

1.77 In this instance, the explanatory memorandum states that the Ministers' Redress Scheme Governance Board (Governance Board), which comprises the Commonwealth minister and ministers from participating states and territories, must agree to any amendments to the rules.^[85] However, as this consultation requirement is set out in the Intergovernmental Agreement, rather than in the bill itself, it is not a legislative requirement. The committee notes that the Intergovernmental Agreement states that none of its provisions are intended to be legally enforceable.^[86] The committee also notes that neither the bill nor the Intergovernmental Agreement require consultation with interested parties beyond the members of the Governance Board. In particular, no consultation is required with persons whose entitlement to redress under the scheme could be adversely affected by changes to the rules. The committee therefore considers that the requirement that the Governance Board agree to any changes to the rules does not address its scrutiny concern that the bill contains no specific consultation requirements beyond those contained in section 17 of the Legislation Act 2003.

1.79 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

1.80 The committee draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

Exclusion of merits review^[87]

1.81 Clause 73 provides that if a person has made an application for redress and the Operator has made a determination on the application under clause 29, the person may apply to the Operator for review of the original determination. A person would therefore be able to apply for internal review of a determination not to approve an application for redress, or of a determination of the amount of a redress payment.

1.82 However, the committee notes that the bill also enables the Operator and the Minister for Home Affairs to make determinations or issue notices that affect a person's eligibility to make an application for redress or entitlement to redress, and it does not appear that a person may seek internal review of such decisions as these are not determinations made under clause 29.

1.83 For instance, subclause 20(1) provides that a person cannot make an application for redress under the scheme on a number of grounds, including if the person is in jail or the application is being made in the 12 months before the scheme sunset day. However, subclause 20(2) states that these restrictions do not apply if the Operator determines there are exceptional circumstances justifying the application being made.

1.84 Subclauses 63(1) and (2) provide that a person who has made an application is not entitled to redress if, before or after making the application, they are sentenced to imprisonment for five years or longer for an offence against a law of the Commonwealth, a state, a territory or a foreign country, unless the Operator has made a determination that a person is not prevented from being entitled to redress under subclause (5). Subclause (5) provides that an Operator may make such a determination if the Operator is satisfied that providing redress to that person would not bring the scheme into disrepute or adversely affect public confidence in, or support for, the scheme.

1.85 Finally, subclause 65(1) provides that the Home Affairs Minister may give the Social Services Minister a security notice in relation to a specified person in a number of specified circumstances, the effect of which would be that a person is not entitled to redress while a security notice is in force.^[88] Subclause 65(2) provides that before giving such a notice, the Home Affairs Minister must have regard to the extent, if any, that any payments to the person under the scheme may have been or may be used for a purpose that might prejudice the security of Australia or a foreign country.

1.86 The explanatory memorandum does not address the question of whether the Operator's decision not to make a determination under subclauses 20(2) or 63(5), or the Home Affairs Minister's decision to give a security notice under clause 65, are intended to be excluded from merits review. However, as these decisions will directly affect the ability of persons to access redress under the scheme, the committee considers that it may be appropriate that they be subject to merits review. The committee notes that, as the bill makes no provision for a person affected by a decision to seek external merits review before the Administrative Appeals Tribunal, the exclusion of internal review would leave a person without access to any form of merits review in relation to these decisions.^[89]

1.87 As set out above, the committee has scrutiny concerns regarding whether a refusal by the Operator to make a determination under subclauses 20(2) and 63(5), and a decision by the Home Affairs Minister to issue a security notice under subclause 64(1), will be subject to any form of merits review.

1.88 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Significant matters in delegated legislation^[90]

1.89 Clause 29 sets out the circumstances in which the Operator would be required to make a determination to approve, or not approve, an application for redress. However, subclause 29(4) provides that the rules may require or permit the Operator to revoke such a determination (unless a person has already accepted an offer of redress^[91]).

1.90 The committee's view is that significant matters, such as the circumstances in which the Operator may be required or permitted to revoke a determination to approve, or not approve, an application for redress, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The explanatory memorandum provides no explanation of why it is necessary to allow the rules to require that a determination made in accordance with legislative criteria be revoked, merely restating the terms of subclause 29(4).^[92] However, the committee notes that the Department of Social Services' submission to the Senate Community Affairs Legislation Committee's inquiry into the bill states that it is intended that the rules will:

1.91 As set out above, the committee has scrutiny concerns that the rules, and not the primary legislation, will set out the circumstances in which the Operator will be required or permitted to revoke a determination to approve, or not approve, an application for redress.

1.92 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

1.93 The committee draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

Exemption from disallowance
Procedural fairness^[94]

1.94 Clause 32 provides that the minister may declare a method, or matters to take into account, for the purposes of working out the amount of redress payment for a person and the amount of the counselling and psychological component of redress for a person. This declaration is to be known as the 'assessment framework' and subclause 32(3) provides that it will be a legislative instrument but will not be subject to disallowance under section 42 of the Legislation Act 2003.

1.95 The explanatory memorandum states that this declaration is of an administrative character but has been designated as a legislative instrument so as to 'ensure certainty and transparency'.^[95] The explanatory memorandum also states that it is necessary to exclude this declaration from disallowance 'so that the method or matters to be taken into account for the purpose of working out the amount of redress payment for a person are certain for applicants to the Scheme and decision makers.'^[96]

1.96 However, it is not clear to the committee why the assessment framework should not be characterised as having a legislative character, as it appears to determine the law to be applied in working out the amount of redress payable for each successful application.^[97] The committee also notes that certainty with respect to how redress payments will be calculated could also be achieved by including the assessment framework in primary legislation. Alternatively, if it is considered necessary to include the assessment framework in a legislative instrument, the committee notes that it is possible to maintain parliamentary scrutiny of this matter while also preventing any uncertainty that may arise from potential disallowance. For example, it would be possible to provide that the assessment framework declaration does not come into effect until the relevant disallowance period has expired.^[98]

1.97 Clause 33 provides that the minister may make guidelines for the purposes of applying the assessment framework and that the Operator may take such guidelines into account when applying the assessment framework. Subclause 33(4) states that these guidelines are not a legislative instrument. The explanatory memorandum states that guidelines for the application of the framework are administrative in character, and that omitting them from the bill is necessary as 'providing detailed guidelines would enable people to understand how payments are attributed and calculated, and risks the possibility of fraudulent or enhanced applications designed to receive the maximum redress payment under the Scheme being submitted.'^[99] The explanatory memorandum further states that the scheme has a low evidentiary threshold and is based on a 'reasonable likelihood' test, aspects which are important to provide recognition and redress to survivors who may not be able or may not want to access damages through civil litigation.^[100]

1.98 The committee considers that, although policy guidelines may be considered to be of an administrative character, the application of policy may nevertheless structure the exercise of administrative power. Importantly, if a person is not aware of the policy to be applied, they will not be able to be adequately heard as to how a power should be exercised in their case. For example, it will not be possible for them to address criteria or considerations contained in the policy. In this respect, the committee notes that subsection 10(2) of the Freedom of Information Act 1982 provides that a 'person must not be subjected to any prejudice' only because of the application to conduct undertaken in ignorance of (among other things) unpublished guidelines 'if the person could lawfully have avoided that prejudice had he or she been aware of the unpublished information'. This rule reflects the general importance for a fair hearing of disclosing guidelines and policy prior to their application in individual cases.

1.99 The committee also notes that clause 104 provides that obtaining, making a record of, disclosing or using the information contained in the assessment guidelines without authorisation is an offence, subject to a maximum penalty of imprisonment for two years or 120 penalty units, or both. In justifying this clause, the explanatory memorandum reiterates that protecting the guidelines from unauthorised use and disclosure will 'assist with mitigating the risk of fraudulent and enhanced applications, as unauthorised disclosure of the guidelines could enable people to understand how payments are attributed and calculated'.^[101] The explanatory memorandum also states that disclosure of the guidelines is undesirable as they may 'contain graphic and triggering descriptions of abuse'.^[102]

1.100 The committee is conscious of the aim of providing a redress scheme that is not overly legalistic in nature. Nevertheless, the committee is concerned that the secrecy about the how redress payments are to be calculated runs the risk that affected persons may receive less than they should precisely because they are unaware of the method that will be applied, and the matters that will be considered, when determining the quantum of redress. It may be accepted that there is a risk of some fraudulent claims being made, although the committee also notes that it may be difficult to assess the significance of that risk. On the other hand, there is also a risk of underpayments due to the inability of applicants to present their case to the Operator or delegate. The committee also notes that the secrecy of the guidelines compromises the ability of affected and interested persons to evaluate the efficacy and fairness of the scheme. In reaching the conclusion that the guidelines should be secret, the committee is concerned that these factors have not been addressed.

• the denial of access to the guidelines, given that this may limit the capacity of persons to fairly present their case.

1.102 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Broad discretionary power^[103]

1.103 Clause 60 sets out how a redress payment will be payable where the applicant dies before a determination is made on an application for redress or before an offer of redress is accepted, declined or withdrawn.^[104] Subclause 60(2) would require the Operator to determine who should be paid the redress payment and to pay the redress payment to that person or those persons as soon as practicable. Subclause 60(3) provides that, in determining who should be paid the redress payment, the Operator may consider the people who are entitled to the property of the deceased person under the deceased person's will and the law relating to the disposition of the property of deceased persons. Subclause 60(5) provides that rules may prescribe matters relating to the payment of redress payments under this section.

1.104 The bill therefore appears to grant the Operator a broad power to determine who should be paid the redress payment in such circumstances, with no legislative criteria as to the matters he or she must take into account when making such determinations. While the bill provides that the Operator may consider the deceased person's will and the law relating to the disposition of the property of deceased persons in making a determination, it does not positively require this. The bill also merely allows for rules to be made in relation to the payment of redress payments under this clause, but does not positively require such rules to be made.

1.105 The explanatory memorandum provides no justification for the breadth of the Operator's proposed power to determine who should receive the redress payment of a deceased person. In relation to the power to make rules relating to such powers, the explanatory memorandum merely states that it is not possible to identify all matters relating to the payment of redress payments under this clause due to the 10-year length of the scheme and that the power 'will ensure that any issues that would prevent payment of the redress payment to a person can be addressed.'^[105]

1.106 As set out above, the committee has scrutiny concerns regarding the absence in the bill of:

1.107 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Limitation on merits review^[106]

1.108 Clause 73 provides that where the Operator has made a determination on an application for redress, the applicant may apply to the Operator for review of the original determination. Subclause 75(3) provides that, when reviewing the original determination, the reviewer may have regard only to the information and documents that were available to the person who made the original decision.

1.109 The explanatory memorandum states that this limitation on considering additional material is intended to 'balance the need for an expedited application process for survivors with the burden of administration' and that allowing the internal reviewer to 'request further information from survivors will create a high-level of administrative burden, add to the potential retraumatisation of survivors having to seek additional material and increase the operational costs for institutions to participate in the Scheme.'^[107]

1.110 When the committee considered an identical provision in the 2017 bill, it sought the minister's advice as to why an internal reviewer of an original determination would only be able to have regard to information and documents that were available to the person who made the original determination. The minister's response provided justifications essentially the same as those provided in the explanatory memorandum to the current bill, as quoted above.^[108]

1.111 The committee notes that the default rule for merits review (such as review 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. 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.

1.112 It is not clear to the committee that allowing internal reviewers to have regard to such additional information would increase the administrative burden on 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.

1.113 As set out above, the committee has scrutiny concerns regarding the appropriateness of excluding consideration of new information or documents in the internal review process.

1.114 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

No-invalidity clause^[109]

1.115 Part 4-2 provides that the Operator may appoint a person to act as an applicant's nominee, and that a nominee may then act on behalf of the applicant for the purposes of the scheme. Subclause 87(1) provides that the Operator may give a nominee a notice requiring the nominee to inform the Operator of an event or change of circumstances that is likely to affect the nominee's ability to act as nominee, the ability of the Operator to give notices to the nominee under the Act, or the ability of the nominee to comply with such notices. Subclause 87(2) provides that such a notice must be in writing and specify how, and the period within which, the nominee is to inform the Operator. However, subclause 87(3) states that a notice is not ineffective just because it does not comply with the requirement that it specify how, and the period within which, the nominee must inform the Operator. Subclause 82(3) provides that, if the Operator gives a nominee a notice and the nominee does not comply with a requirement of the notice, the Operator may suspend or revoke the nominee's appointment.

1.116 The explanatory memorandum states that the effect of subclause 87(3) is that a notice will not be invalid merely because it fails to specify how the information is to be given to the Operator.^[110] It appears that this subclause would allow the Operator to suspend or revoke the appointment of a nominee who does not comply with a requirement of a notice issued under clause 87, even where the nominee's failure to comply occurred because the notice did not specify how, and the period within which, the nominee was to respond. The committee is concerned that, in such circumstances, a nominee would not have been given a fair opportunity to respond to the notice.

1.117 As set out above, the committee has scrutiny concerns that a notice given under subclause 87(1) will not be ineffective despite a failure to specify in the notice how, and the period within which, a nominee must respond to the notice, noting that a nominee's failure to comply with a notice may result in the suspension or revocation of their appointment.

1.118 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Broad discretionary power
Privacy^[111]

1.119 Clause 95 provides that the Operator may disclose protected information that was provided to, or obtained by, an officer of the scheme for the purposes of the scheme if the disclosure meets certain criteria. Paragraph 95(1)(a) provides that such a disclosure may be made if the Operator certifies that the disclosure is necessary in the public interest in a particular case, or class of cases, and the disclosure is to such persons and for such purposes as the Operator determines. 'Protected information' is defined by subclause 92(2) as information about a person or institution that was provided to, or obtained by, an officer of the scheme for the purposes of the scheme, and is or was held in the records of the Department of Human Services, or information to the effect that the records of the Department of Human Services contain no information about a person or institution. Subclause 95(4) provides that the rules may make provision for and in relation to the Operator's power to certify that a disclosure is in the public interest under paragraph 95(1)(a), and subclause 95(3) requires the Operator to act in accordance with any such rules when making a certification.

1.120 The explanatory memorandum contains no explanation of why it is necessary to include this provision, merely stating that the disclosure of protected information may be considered necessary in the public interest 'for the investigation of a criminal offence or to locate a missing person'.^[112] However, the committee notes that subclause 96(1) specifically provides that the Operator may disclose protected information if he or she is satisfied the disclosure is reasonably necessary for the purposes of the enforcement of the criminal law or the safety or wellbeing of children. Such disclosures would be restricted to government institutions that have functions relevant to these two purposes and, where the information relates to a person, the Operator would be required to have regard to the impact the disclosure might have on the person.^[113]

1.121 The committee notes that the proposed power in paragraph 95(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 government institutions under clause 96, the Operator is not required to have regard to the impact the disclosure might have on the person. 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.

1.122 When the committee considered a similar provision in the 2017 bill, it sought the minister's advice as to why at least high level guidance about the exercise of the Operator's disclosure power could not be included in the bill, the circumstances in which it was envisaged the power might be needed (noting the proposal to allow disclosures for the purposes of enforcement of the criminal law or for the purposes of child protection under a separate provision), and why the bill contained no positive requirement that rules be made regulating the exercise of the Operator's power.

1.123 The minister advised the committee that the provision in the 2017 bill had been drafted to reflect similar provisions in other legislation within the social security portfolio, and that giving the minister the discretion to make rules would provide flexibility to address any circumstances that warrant the exercise of the power. The minister also advised 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 minister advised that it was intended to make rules to regulate the Operator's disclosure power and consideration would be given to including a positive requirement to this effect in the bill.^[114] The committee notes that no such requirement has been included in current bill.

1.124 The committee reiterates its view that neither the existence of similar disclosure provisions in other legislation, nor a desire for administrative flexibility, provide a sound justification for including such a provision in this bill. The committee also reiterates that, although it is intended the Operator's disclosure power will only be used in limited circumstances and that rules will be made to constrain the use of the power, the bill itself neither restricts the circumstances in which the power may be used (beyond the requirement that the Operator be satisfied the disclosure is in in the public interest) nor requires the making of rules to regulate the use of the power.

1.125 As set out above, the committee has scrutiny concerns regarding the Operator's broad discretionary power to disclose protected information, including sensitive 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 (and with no positive requirement that rules be made to guide the exercise of this power).

1.126 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Delegation of legislative power
Privacy^[115]

1.127 Subclause 97(1) provides that, where protected information is disclosed to a government institution, a government official may obtain, make a record of, disclose or use that information for the purposes of the enforcement of the criminal law; the safety or wellbeing of children; investigatory, disciplinary or employment processes related to the safety or wellbeing of children; or a purpose prescribed by the rules. In doing so, the government official must be acting in their official capacity and their actions must not be prohibited by a Commonwealth, state or territory law.

1.128 The committee's view is that significant matters, such as additional purposes for which sensitive protected information may be disclosed, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The committee's scrutiny concerns are heighted in this case because protected information is likely to include highly sensitive allegations regarding child sexual abuse and its disclosure could potentially have a serious impact on persons to whom it relates.

1.129 The explanatory memorandum states that clause 97 would allow states and territories to comply with existing reportable conduct schemes, such as Victoria's reportable conduct scheme under the Child Wellbeing and Safety Act 2005 (Vic).^[116] However, the explanatory memorandum does not explain why it is considered necessary to allow the rules to prescribe additional purposes for which protected information may be disclosed, or what types of additional purposes it is envisaged may be prescribed by the rules.

1.131 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

1.132 The committee draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

Reversal of evidential burden of proof^[117]

1.133 Clause 99(1) would make it an offence for a person to obtain, make a record of, disclose or use protected information if the person is not authorised or required to do so under the Act. Subclause 99(2) provides an exception (offence specific defence) to this offence, stating that the offence does not apply if the person did not obtain the information under, for the purposes of, or in connection with the scheme, or the person had already obtained the information before obtaining the information under, for the purposes of, or in connection with the scheme. The offence carries a maximum penalty of imprisonment for two years or 120 penalty units, or both.

1.134 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.

1.135 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, interfere with this common law right.

1.136 While in this instance 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 proposed subsection 99(2) have not been addressed in the explanatory materials.

1.137 The committee notes that the explanatory memorandum includes no justification for the reversal of the evidential burden of proof in proposed subsection 99(2).

1.138 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Immunity from liability^[118]

1.139 Subclauses 106(1) and (2) provide that a person who, acting in good faith, discloses information for the purposes of the scheme is not liable to any civil or criminal proceedings, or any disciplinary action, for disclosing the information. These provisions therefore remove any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply a lack of an honest or genuine attempt to undertake the task and that it will involve personal attack on the honesty of the decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.140 The committee expects that if a bill seeks to provide immunity from civil and criminal liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum provides no explanation for this provision and merely restates its terms.^[119]

1.141 As set out above, the committee has scrutiny concerns that any person who discloses information for the purposes of the scheme will have immunity from civil and criminal liability so that affected persons have their right to bring an action to enforce their legal rights limited to situations where lack of good faith is shown.

1.142 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Incorporation of materials existing from time to time^[120]

1.143 Proposed subclause 179(3) provides that the rules may apply, adopt or incorporate any matter contained in the assessment framework as in force or existing from time to time. The explanatory memorandum states that this provision relates to the 'methodology to be applied in calculating the maximum amount of the redress payment that may be payable to the person' and that this assessment framework will be available on the Federal Register of Legislation.^[121] However, the explanatory memorandum provides no detail as to the types of documents that may be contained in the assessment framework, nor does it explain why it would be necessary for these documents to apply as in force or existing from time to time.

1.144 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

1.145 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.

1.146 The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue. This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

1.147 The committee notes that the explanatory memorandum includes no information as to the type of documents that it is envisaged may be applied, adopted or incorporated under subclause 179(3), and why it is necessary to apply the documents as in force or existing from time to time, rather than when the instrument is first made.

1.148 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

1.149 The committee draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

Broad delegation of administrative powers^[122]

1.150 Subclause 184(1) provides that the Operator may delegate all or any of his or her powers under the Act (other than in relation to making a determination on an application, review of a determination, or the application of civil penalties) to 'an officer of the scheme'. An 'officer of the scheme' is a person in the Department of Social Services or the Department of Human Services, performing duties or exercising powers or functions under or in relation to the Act, an independent decision-maker, or a person prescribed by the rules.^[123] The Operator would therefore be able to delegate all or any of his or her powers to any level APS employee performing functions in relation to the Act in the two departments, to an independent decision-maker, or to 'a person' prescribed by the rules.

1.151 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, including delegations to persons outside the APS, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.152 In this case, the explanatory memorandum states that a broad delegation of the Operator's powers is necessary to enable the scheme to be administered in 'an efficient manner, which is responsive and flexible to address matters as they arise' and that the Operator will 'determine the appropriate level of delegation commensurate with the administrative function being undertaken.'^[124] However, the committee has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers to officials at any level. The committee also notes that the explanatory memorandum provides no explanation of why it is considered necessary to allow the delegation of the Operator's powers to 'a person' prescribed by the rules, nor what accountability mechanisms will be put in place with respect to such persons.

1.153 Subclauses 185(3) and (4) also provide that the Operator may delegate his or her powers and functions in relation to making a determination on an application for redress and reviewing such a determination to an independent decision-maker, who would not be required to comply with any directions of the operator in relation to such a delegation. Subclause 185(1) provides that the Operator may, with the approval of the minister, engage persons to be independent decision-makers, and that the duties of public officials under the Public Governance, Performance and Accountability Act 2013 apply to such persons. Subclause 185(2) also provides that the minister must consult with the appropriate ministers from participating states and territories before approving the engagement of an independent decision-maker.

1.154 The explanatory memorandum states that the selection of prospective independent decision-makers will include a probity and vetting process undertaken by the department to identify suitable candidates', who will then be subject to agreement from participating states and territories.^[125] The explanatory memorandum also states that it is considered that 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.'^[126]

1.155 However, the committee does not consider that the proposed consultation process between the minister and the appropriate state and territory ministers provides appropriate legislative guidance as to the appropriate qualifications of independent decision makers. While the department may undertake a probity and vetting process as part of the consultation process, it remains the case that no legislative guidance is set out in the bill to require that persons engaged as independent decision-makers have appropriate expertise.

1.156 When the committee considered similar provisions in the 2017 bill, it requested advice as to why it is necessary to allow the broad delegation of the Operator's powers to an APS level employee at any level, and to allow independent decision makers to be appointed without any legislative guidance as to their skills, training and experience. The minister's response provided justifications essentially the same as those provided in the explanatory memorandum to the current bill, as quoted above.^[127] However, the range of persons to whom the Operator may delegate his or her powers and functions has been broadened under the current bill to include a person prescribed by the rules, and this matter has not been addressed in the explanatory memorandum to the current bill.

1.157 As set out above, the committee has scrutiny concerns regarding the broad delegation of the Operator's administrative powers and of the power to engage independent decision-makers, in the absence of any legislative requirement that they possess appropriate expertise.

1.158 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

Parliamentary scrutiny—no requirement to table report^[128]

1.159 Subclause 192(1) would require the minister to cause a review of the operation of the scheme to be commenced as soon as possible after the second anniversary of the scheme start day or on a day prescribed by the rules, if the rules prescribe a day before the second anniversary. Subclause 192(2) sets out the range of matters that the review must consider. Subclauses 192(3) and (4) would also require that a further review of the operation of the scheme be commenced as soon as possible after the eighth anniversary of the scheme start date, or on a later date prescribed by the rules, and set out the matters that this review must consider.

1.160 However, the bill contains no requirement for the results of these reviews to be made public or tabled in Parliament and the explanatory memorandum does not address this clause beyond simply restating its terms.

1.161 As set out above, the committee has scrutiny concerns that there is no legislative requirement that the second and eighth anniversary reviews of the operation of the scheme be tabled in the Parliament or published on the internet.

1.162 However, in light of the fact that this bill has already passed both Houses of Parliament the committee makes no further comment on this matter.

[68] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2017, 6 December 2017, pp. 8-36.

[69] Clauses 12 to 15. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[77] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2017, 6 December 2017, pp. 16-17.

[79] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2017, 6 December 2017, p. 17.

[80] Senate Standing Committee for the Scrutiny of Bills, First Report of 2015, 11 February 2015,

[81] See also Senate Standing Committee on Regulations and Ordinances, Delegated Legislation

[87] Subclauses 20(2) and 63(5)-(7) and clause 65. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii).

[88] See clause 64. See also clause 71 which provides that if a security notice is given after a person has made an application for redress, that application is taken to have been withdrawn and, if an offer of redress has been made to the person but not yet accepted, declined or withdrawn, that too is taken to be withdrawn.

[89] The committee raised scrutiny concerns in relation to the exclusion of external merits review of decisions on applications for redress as part of its consideration of the 2017 bill (see Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2017, 6 December 2017, pp. 28-32). In light of the detailed explanation provided in the explanatory memorandum to the current bill (see pp. 126-127), the committee makes no comment in relation to the exclusion of external merits review in this case.

[90] Subclause 29(4). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[94] Clauses 32 and 33. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[97] The committee sought the minister's advice as to why it was considered appropriate to exempt a similar provision in the 2017 bill from disallowance, noting that it appeared to be legislative in character. The minister's response did not address the committee's question. See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2017, 6 December 2017, pp. 8-19.

[103] Subclause 60(3). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[106] Subclause 75(3). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[108] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2017, 6 December 2017, p. 29.

[109] Subclause 87(3). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[111] Paragraph 95(1)(a). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (ii).

[114] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2017, 6 December 2017, pp. 22-23.

[115] Subparagraph 97(1)(e)(iv). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[117] Clause 99. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[118] Clause 106. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[120] Subclause 179(3). The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[122] Clauses 184 and 185. The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii).

[127] See Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2017, 6 December 2017, pp. 34-36.

[128] Clause 192. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

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