National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023 - Initial Scrutiny [2023] AUSStaCSBSD 233 (29 November 2023)

• National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 202366
• Significant matters in delegated legislation
• Instruments not subject to an appropriate level of parliamentary oversight67

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National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023^[66]

Purpose	The National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023 (the bill) seeks to amend the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Redress Act). The bill seeks to amend existing provisions of the Redress Act, and also introduces new provisions and concepts to further strengthen the National Redress Scheme for Institutional Child Sexual Abuse (the Scheme).
Portfolio	Social Services
Introduced	House of Representatives on 15 November 2023
Bill status	Before the House of Representatives

Significant matters in delegated legislation
Instruments not subject to an appropriate level of parliamentary oversight^[67]

1.89 Item 12 of Schedule 1 to the bill seeks to introduce proposed section 96A, which authorises the National Redress Scheme Operator^[68] (the Operator) to disclose protected information to the public trustee or other government institutions in relation to financial management orders to which a person under the scheme may be subject.^[6] Proposed subsection 96A(6) allows the Operator of the scheme to impose conditions to be complied with in relation to protected information disclosed under subsection 96A(1). Proposed subsection 96A(8) provides that the Operator may do so in an instrument that is not a legislative instrument.

1.90 Where a bill includes significant matters in delegated legislation, the committee expects the explanatory memorandum to the bill to address why it is appropriate to include the relevant matters in delegated legislation and whether there is sufficient guidance on the face of the primary legislation to appropriately limit the matters that are being left to delegated legislation. A legislative instrument made by the executive is not subject to the full range of parliamentary scrutiny inherent in bringing forward proposed legislation in the form of a bill.

1.91 However, as instruments made under proposed subsection 96A(8) are specified to not be legislative instruments, they are not even subject to the tabling, disallowance or sunsetting requirements that apply to legislative instruments. Noting the importance of parliamentary scrutiny, the committee expects the explanatory materials to include a justification for why instruments made under proposed subsection 96A(8) are not legislative in character.

1.92 In this instance, the committee notes that the explanatory memorandum provides the following justification relating to the content of the instruments:

New subsection 96A(8) clarifies that an instrument made under new subsection 96A(6) is not a legislative instrument.

New subsection 96A(8) clarifies that an instrument made under new subsection 96A(6) is not a legislative instrument. This provision is included to assist the reader. It is declaratory of the law and conveys that such an instrument is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act as conditions on the disclosure of protected information do not determine or alter the content of the law.^[69]

1.93 However, it is unclear to the committee that the content of an instrument under proposed subsection 96A(8) is ‘declaratory of the law’ and that its contents do not ‘determine or alter the content of the law’. The committee notes the instruments will determine conditions to be complied with in relation to the disclosure of protected information under the Redress Act, which is a significant matter to include in delegated legislation. Further, failure to comply with these conditions constitutes an offence carrying a maximum penalty of 2 years imprisonment or 120 penalty units.^[70]

1.94 The committee therefore considers that these instruments determine the content of the law by setting out conditions that must be complied with and have the potential to directly affect privileges or interests and impose an obligation.^[71] The committee also notes that subsection 8(4) of the Legislation Act 2003 does not preclude the minister from prescribing these matters be set out in legislative instruments.

1.95 In light of the above, the committee requests the minister's detailed advice as to:

• why it is considered appropriate that instruments made under proposed subsection 96A(8) are not legislative instruments; and

• whether the bill could be amended to provide that these instruments are legislative instruments to ensure that they are subject to appropriate parliamentary oversight.

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^[66] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023, Scrutiny Digest 15 of 2023; [2023] AUSStaCSBSD 233.

^[67] Schedule 1, item 12, proposed subsections 96A(6) and 96A(8). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv) and (v).

^[68] The National Redress Scheme Operator is the person who is the Secretary of the Department, in the person’s capacity as Operator of the scheme under section 6 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.

^[69] Explanatory memorandum, p. 17.

^[70] Proposed subsection 96A(7).

^[71] Legislation Act 2003, paragraph 8(4)(b).