National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2024 (Cth)

National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2024 No. 9, 2024 An Act to amend the National Redress Scheme for Institutional Child Sexual Abuse Act 2018, and for related purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendments to existing processes Part 1—Review of determinations National Redress Scheme for Institutional Child Sexual Abuse Act 2018 Part 2—Serious criminal convictions and applications by persons in gaol National Redress Scheme for Institutional Child Sexual Abuse Act 2018 Part 3—Protected information Division 1—Main amendments National Redress Scheme for Institutional Child Sexual Abuse Act 2018 Division 2—Other amendments Freedom of Information Act 1982 Part 4—Funder of last resort National Redress Scheme for Institutional Child Sexual Abuse Act 2018 Part 5—Application and transitional provisions National Redress Scheme for Institutional Child Sexual Abuse Act 2018 Schedule 2—Reassessment of determinations National Redress Scheme for Institutional Child Sexual Abuse Act 2018 National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2024 No. 9, 2024 An Act to amend the National Redress Scheme for Institutional Child Sexual Abuse Act 2018, and for related purposes [Assented to 28 March 2024] The Parliament of Australia enacts: 1 Short title This Act is the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2024. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 28 March 2024 2. Schedule 1 The day after the end of the period of 7 days beginning on the day this Act receives the Royal Assent. 4 April 2024 3. Schedule 2 A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments to existing processes Part 1—Review of determinations National Redress Scheme for Institutional Child Sexual Abuse Act 2018 1 Section 72 Omit: An application for review must be made within the period specified in the notice of determination given by the Operator to the person under section 34. substitute: An application for review must be made within the period specified in the notice of determination given by the Operator to the person under section 34. The application may be accompanied by information and documents the person considers may be relevant to the review of the determination. The reviewer may request the person who applied for review and participating institutions or partly‑participating institutions to provide further information that may be relevant to the review (see sections 75A and 75B). 2 At the end of section 73 Add: (3) The application for review may be accompanied by information and documents the person considers may be relevant to the review of the original determination. 3 Subsection 75(2) After "person", insert "(the reviewer)". 4 Subsection 75(3) Repeal the subsection, substitute: (3) When reviewing the original determination, the reviewer may have regard to the following: (a) the information and documents that were available to the person who made the original determination; (b) any information and documents that accompany the application for review; (c) further information requested under section 75A or 75B. (4) The review determination must not have the effect of reducing the amount of the redress payment determined in the original determination, unless the reviewer is satisfied that: (a) either: (i) the reduction is the result of considering information mentioned in paragraph (3)(b) or (c); or (ii) the Operator has reasonable grounds to believe that information given, a document produced, or a statement made to an officer of the scheme in relation to the application for redress, or the application for review, is false or misleading in a material particular; and (b) the reduction is appropriate, having regard to the principles set out in section 10. Note: A person may be liable to a civil penalty or commit an offence if the person gives information, produces a document or makes a statement to an officer of the scheme and the person knows, or is reckless as to whether, the information, document or statement is false or misleading in a material particular (see section 28 of this Act and sections 136.1, 137.1 and 137.2 of the Criminal Code). 5 After section 75 Insert: 75A Obtaining further information for the review from the applicant (1) If the reviewer has reasonable grounds to believe that the person who has applied for review has information that may be relevant to the review, then the reviewer may request the person to give the information to the reviewer. (2) Subsections 24(2) to (7) apply in relation to the request by the reviewer to the person in the same way as they apply in relation to a request under subsection 24(1) by the Operator to a person. (3) For the purposes of subsection (2) of this section, in applying subsections 24(2) to (7), treat references to section 24 and its subsections as references to those provisions as they apply in relation to the request because of this section. (4) If the information requested is not provided within the production period mentioned in paragraph 24(3)(c) (as it applies in relation to the request by the reviewer), the reviewer is not required to make the review determination until the information is provided. 75B Obtaining further information for the review from institutions (1) If the reviewer has reasonable grounds to believe that a participating institution or partly‑participating institution has information that may be relevant to the review, then the reviewer may request the institution to give the information to the reviewer. (2) Subsections 25(3) to (8) apply in relation to the request by the reviewer to the institution in the same way as they apply in relation to a request under subsection 25(2) by the Operator to a participating institution or partly‑participating institution. (3) For the purposes of subsection (2) of this section, in applying subsections 25(3) to (8), treat references to section 25 and its subsections as references to those provisions as they apply in relation to the request because of this section. (4) If the information requested is not provided within the production period mentioned in paragraph 25(4)(c) (as it applies in relation to the request by the reviewer), the reviewer may conduct the review and make the review determination on the basis of the information that has been obtained by, or provided to, the reviewer. 75C State or Territory laws do not prevent complying with request Nothing in a law of a State or a Territory prevents a person from giving information that the person is requested to give to the reviewer under section 75A or 75B unless that law is prescribed by the rules. Note: Section 28 (false or misleading information, documents or statements) applies in relation to a request made under section 75A or 75B. Part 2—Serious criminal convictions and applications by persons in gaol National Redress Scheme for Institutional Child Sexual Abuse Act 2018 6 Paragraph 20(1)(d) Repeal the paragraph. 7 Subsection 20(2) Omit "Paragraphs (1)(d) and (e) do", substitute "Paragraph (1)(e) does". 8 Section 62 Omit: If a person is sentenced to imprisonment for 5 years or longer for an offence against the law of the Commonwealth, a State, a Territory or a foreign country, the person will not be entitled to redress unless the Operator makes a determination under subsection 63(5). Division 2 deals with that case. substitute: A person is not entitled to redress under the scheme if: (a) the person is sentenced to imprisonment for 5 years or longer for unlawful killing, a sexual offence, a terrorism offence, or certain related offences; or (b) the Operator has determined under subsection 63(2B) that the person should undergo a special assessment process; unless the Operator makes a determination under subsection 63(5). Division 2 deals with that case. 9 Subsection 63(2) Repeal the subsection, substitute: (2) For the purposes of subsection 12(4), the person is not entitled to redress under the scheme if: (a) the sentence mentioned in paragraph (1)(b) of this section is for any of the following offences: (i) unlawful killing, attempting to commit an unlawful killing, or conspiring to commit an unlawful killing; (ii) a sexual offence or an offence that includes the intention to commit a sexual offence; (iii) a terrorism offence within the meaning of the Crimes Act 1914; (iv) an offence against a law of a State, a Territory or a foreign country that the Operator is satisfied is substantially similar to a terrorism offence within the meaning of the Crimes Act 1914; or (b) the Operator has determined under subsection (2B) of this section that the person should undergo a special assessment process; unless there is a determination in force under subsection (5) of this section that the person is not prevented from being entitled to redress. Consideration of whether person should undergo a special assessment process (2A) As soon as practicable after becoming aware of the person's sentence, and if paragraph (2)(a) does not apply, the Operator must consider whether the person should undergo a special assessment process. (2B) The Operator may determine that the person should undergo a special assessment process if the Operator considers there are exceptional circumstances that make it likely that providing redress to the person under the scheme may bring the scheme into disrepute or adversely affect public confidence in, or support for, the scheme. (2C) When making a determination under subsection (2B), the Operator may have regard to the matters set out in paragraphs 63(6)(b) to (f). Special assessment process 10 Subsection 63(3) Omit all the words before paragraph (a), substitute: (3) If: (aa) the person's sentence is for an offence covered by paragraph (2)(a); or (ab) the Operator has determined under subsection (2B) that the person should undergo a special assessment process; the Operator must, as soon as practicable after becoming aware of the sentence or making the determination: Part 3—Protected information Division 1—Main amendments National Redress Scheme for Institutional Child Sexual Abuse Act 2018 11 After section 95A Insert: 95B Additional authorisation—Operator disclosing to applicant that institution is not participating in the scheme (1) The Operator may disclose to a person that a non‑government institution is not a participating institution if: (a) either or both of the following apply: (i) the person has applied for redress under the scheme and the application identifies the institution as being involved in the abuse of the person; (ii) the Operator has reasonable grounds to believe that the institution may be connected with abuse of the person that is within the scope of the scheme; and (b) the institution is not a participating institution or a partly‑participating institution. (2) The Operator may also disclose to the person any of the matters set out in paragraphs 95A(2)(c) to (i) that are applicable. (3) To avoid doubt, the Operator may disclose information under this section even if the information is protected information. (4) In making a disclosure to the person under this section, the Operator must not disclose the identity of any other person who: (a) has applied for redress under the scheme; or (b) the Operator has reasonable grounds to believe may have been abused. 12 After section 96 Insert: 96A Additional authorisation—Operator disclosing to public trustee etc. in relation to financial management orders (1) The Operator may disclose protected information for any of the purposes specified in subsection (2) to a government institution specified in subsection (3) if: (a) the protected information is about a person who applied for redress (the applicant); and (b) the Operator believes, on reasonable grounds, that the applicant is, or may become, subject to an order (a financial management order) under which another person is appointed by a court, tribunal or board, or other entity prescribed by the rules, under a law of the Commonwealth, a State or a Territory to manage all or part of the person's property or financial affairs or matters. (2) The Operator may disclose protected information to the government institution under subsection (1) for any of the following purposes (a relevant purpose): (a) ascertaining whether the applicant is subject to a financial management order; (b) ascertaining whether the government institution has management of the applicant's affairs under a financial management order; (c) if the government institution has management of the applicant's affairs under a financial management order—providing the institution such information as is necessary for it to manage the applicant's affairs under the financial management order in relation to the applicant's redress application; (d) any other purpose that is: (i) related to dealing with applicants who are, or may become, subject to a financial management order; and (ii) prescribed by the rules. (3) Government institutions to which protected information may be disclosed under subsection (1) are as follows: (a) the Public Trustee of a State or a Territory; (b) a government institution that can be, or the employees of which can be, given responsibility for managing the affairs of an individual under a financial management order; (c) a government institution prescribed by the rules. Disclosure, use etc. by government official (4) If protected information is disclosed to a government institution under subsection (1), then an employee or officer of the institution (the government official) may: (a) obtain the information; or (b) make a record of the information; or (c) disclose the information to a person; or (d) use the information; but only if the government official does so for a relevant purpose in the official's capacity as an employee or officer of the government institution. (5) Section 97 does not apply in relation to protected information that is disclosed to a government institution under subsection (1) of this section. Conditions (6) The Operator may, in writing, impose conditions to be complied with in relation to protected information disclosed under subsection (1). (7) A person commits an offence if: (a) the person is subject to a condition under subsection (6); and (b) the person engages in conduct (within the meaning of the Criminal Code); and (c) the person's conduct breaches the condition. Penalty: Imprisonment for 2 years or 120 penalty units, or both. (8) An instrument under subsection (6) is not a legislative instrument. 13 Paragraph 98(2)(d) Repeal the paragraph, substitute: (d) in any case—the purpose of either of the following undertaking investigation and disciplinary procedures: (i) the institution; (ii) if the institution is a member of a participating group—another member of the group. 14 At the end of section 98 Add: (4) If the person obtains protected information for the purpose covered by subparagraph (2)(d)(ii), the person may record, disclose or use the protected information for only that purpose. Division 2—Other amendments Freedom of Information Act 1982 15 Schedule 3 Omit "National Redress Scheme for Institutional Child Sexual Abuse Act 2018, subsections 96(6)", substitute "National Redress Scheme for Institutional Child Sexual Abuse Act 2018, subsections 96(6), 96A(7)". Part 4—Funder of last resort National Redress Scheme for Institutional Child Sexual Abuse Act 2018 16 Paragraph 165(2)(b) After "redress payment", insert "(to the extent that it relates to the abuse)". 17 At the end of paragraph 165A(4)(a) Add "(to the extent that it relates to the abuse)". 18 Paragraph 165A(7)(a) After "redress payment", insert "(to the extent that it relates to the abuse)". 19 At the end of section 165A Add: Rounding (15) If an amount worked out under subsection (5) or (10) or paragraph (14)(c) is not a whole number of cents, round the amount up to the next whole number of cents. Part 5—Application and transitional provisions National Redress Scheme for Institutional Child Sexual Abuse Act 2018 20 At the end of Chapter 8 Add: Part 8‑5—Application and transitional provisions relating to the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2024 209 Definitions In this Part: amending Act means the National Redress Scheme for Institutional Child Sexual Abuse Amendment Act 2024. 210 Application of amendments made by Schedule 1 to the amending Act Applications for review (1) The amendments made by Part 1 of Schedule 1 to the amending Act apply in relation to applications for review made under section 73 on or after the commencement of that Schedule. (2) If: (a) before the commencement of Schedule 1 to the amending Act, a person had made an application for review under section 73; and (b) at the commencement of that Schedule, the review had not been completed; then: (c) the Operator must notify the person of the amendments made by Part 1 of that Schedule; and (d) the reviewer must not make a review determination under section 75 in relation to the application for review before the earlier of the following: (i) 30 days after the date of the notification; (ii) if, in response to the notification, the person gives the reviewer further information or documents that the person considers may be relevant to the review—the day after the Operator receives the further information or documents; and (e) if the person gives the reviewer further information or documents that the person considers may be relevant to the review: (i) the amendments made by Part 1 of that Schedule apply in relation to the application for review; and (ii) the further information or documents are to be treated as information or documents accompanying the application for review under subsection 73(3). (3) If: (a) before the commencement of Schedule 1 to the amending Act, a person had made an application for review under section 73; and (b) at the commencement of that Schedule, a review determination had been made under section 75 in relation to the application for review; and (c) the Operator has given the person an offer of redress under section 39; and (d) the person has not accepted or declined the offer of redress; then: (e) the Operator must notify the person of the amendments made by Part 1 of that Schedule; and (f) if the acceptance period for the offer of redress ends during the period of 30 days after the date of the notification (the response period)—the Operator must extend the acceptance period under subsection 40(2) to end after the response period; and (g) if, during the response period, the person gives the Operator further information or documents that the person considers may be relevant to the review: (i) the review determination is taken to never have been made; and (ii) if the Operator has given the person a new written offer of redress under paragraph 78(3)(b)—the new written offer of redress is taken to never have been given; and (iii) the amendments made by Part 1 of that Schedule apply in relation to the application for review; and (iv) the further information or documents are to be treated as information or documents accompanying the application for review under subsection 73(3). (4) The rules may prescribe matters relating to the giving of notices to a person or a participating institution in relation to the operation of subsection (3). Special assessment processes (5) If: (a) before the commencement of Schedule 1 to the amending Act, the Operator had given a written notice under paragraph 63(3)(b) in relation to a person's sentence of imprisonment; and (b) at the commencement of that Schedule, the Operator had not made a determination in relation to the person under subsection 63(5); the Operator is taken to have determined under subsection 63(2B) that the person should undergo a special assessment process. (6) To avoid doubt, the Operator may, in writing, revoke a determination that the Operator is taken to have made under subsection (5). Protected information (7) The amendments of section 98 made by Division 1 of Part 3 of Schedule 1 to the amending Act apply in relation to a person obtaining, recording, disclosing or using protected information on or after the commencement of that Schedule. Schedule 2—Reassessment of determinations National Redress Scheme for Institutional Child Sexual Abuse Act 2018 1 Section 6 Insert: reassessment contribution: see subsection 71Y(2). reassessment deficit: see subsection 71X(3). reassessment surplus: see subsection 71X(4). 2 Section 6 (definition of redress payment) Omit "48 or 60", substitute "48, 60 or 71Q". 3 At the end of subsection 29(4) Add: Note: A provision of this Act may also require or permit the Operator to revoke a determination made under subsection (2) or (3) (see, for example, paragraph 71S(3)(d) and subsection 71S(4)). 4 Subsection 29(6) Omit "or (3), then", substitute "or (3) (including under paragraph 71S(3)(d) or subsection 71S(4)), then". 5 Subsection 54(1) Omit "44 or 46B", substitute "44, 46B or 71L". 6 After subsection 71(2) Insert: (2A) If, at the time a security notice comes into force in relation to a person: (a) the person has agreed under section 71B to have the Operator reassess a determination on an application for redress; and (b) a reassessment decision has not been made under section 71D in relation to the determination; then, at that time, the person is taken to have revoked the person's agreement to have the Operator reassess the determination under subsection 71C(1). (2B) If, at the time a security notice comes into force in relation to a person: (a) the person has agreed under section 71B to have the Operator reassess a determination on an application for redress; and (b) a new offer of redress has been given to the person under section 71G; and (c) the offer has not been accepted, declined or withdrawn; then, at that time: (d) the new offer of redress is taken to be withdrawn; and (e) the reassessment decision made under section 71D on the determination is taken to be revoked by the Operator; and (f) the person is taken to have revoked the person's agreement to have the Operator reassess the determination under subsection 71C(1). 7 At the end of Chapter 3 Add: Part 3‑3—Special rules about reassessment of determinations Division 1—Simplified outline of this Part 71A Simplified outline of this Part If: (a) the Operator has made a determination under section 29 to approve an application for redress by a person; and (b) the person has been given an offer of redress and the person has accepted or declined the offer; and (c) the Operator has reasonable grounds to believe that an institution identified in the application, or in the course of dealing with the application, may be connected with abuse of the person; and (d) at the time the determination was made, the institution was not a participating institution or listed for a participating jurisdiction under section 164, 164A, 164B or 164C; and (e) at a later time, the institution becomes a participating institution or is listed for a participating jurisdiction under section 164, 164A, 164B or 164C; then the person (the reassessee) may agree, by written notice given to the Operator, to have the Operator reassess the determination under this Part. The Operator must give notice of the reassessee's agreement to relevant institutions and participating jurisdictions. The reassessee may revoke the reassessee's agreement at any time before the Operator reassesses the determination. If the reassessee revokes the agreement, the Operator must give notice of the revocation to the relevant institutions and participating jurisdictions. If the reassessee agrees to have the Operator reassess the determination, the Operator must reassess the determination and make a decision (the reassessment decision), in writing, affirming the determination or setting it aside and substituting a new determination. The Operator must give the reassessee notice of the reassessment decision. If the Operator makes a reassessment decision to set aside the determination and substitute a new determination, the Operator must give the reassessee a new offer of redress. The reassessee may accept or decline the new offer of redress. If the reassessee declines the new offer of redress, the current determination and anything done based on the current determination is not affected, and the new determination has no effect from the time the new offer of redress is declined. If the reassessee accepts the new offer of redress, the new determination is taken to be the determination made by the Operator under section 29 and the new offer of redress, the reassessee's acceptance of the new offer and the acceptance document given by the reassessee are taken to have effect as provided by section 71K. The Operator must give relevant institutions and participating jurisdictions a notice stating certain matters relating to the reassessment decision. Special rules apply if the reassessee dies before the new offer of redress is accepted, declined or withdrawn, or before the reassessment decision is made, or before the determination under section 29 is identified for reassessment. Division 4 deals with those cases. The Operator must identify each determination made under section 29 that may be eligible for reassessment under this Part (see section 71R) and must take certain action in relation to each identified determination. Division 5 deals with this. The reassessee may apply to the Operator for review of the reassessment decision (see Division 6 of this Part). Division 2 of Part 4‑1 (with some modifications) applies in relation to the review. If the Operator makes a reassessment decision that sets aside a determination made under section 29 in relation to a person and substitutes a new determination, the amount of funding contribution that a participating institution or funder of last resort may be liable to pay for a quarter may change. Division 7 deals with this. Division 2—Reassessment of determinations 71B Reassessment of determinations (1) This section applies if: (a) a person has made an application for redress under the scheme; and (b) the Operator has made a determination to approve the application under section 29 (the current determination); and (c) the person has been given an offer of redress and the person has accepted or declined the offer; and (d) the Operator has reasonable grounds to believe that an institution identified in the application, or in the course of dealing with the application, may be connected with abuse of the person; and (e) at the time the current determination was made, the institution was not a participating institution or listed for a participating jurisdiction under section 164, 164A, 164B or 164C; and (f) at a later time, the institution becomes a participating institution or is listed for a participating jurisdiction under section 164, 164A, 164B or 164C. Note: Generally, when the institution becomes a participating institution or is listed for a participating jurisdiction under section 164, 164A, 164B or 164C, the Operator will invite the person to agree to have the Operator reassess the determination (see section 71S). (2) The person (the reassessee) may agree, by written notice given to the Operator, to have the Operator reassess the current determination under this Part. (3) A notice under subsection (2) must be given to the Operator at least 12 months before the scheme sunset day, unless the Operator determines there are exceptional circumstances justifying the application being made after that time. Notice to participating institutions etc. (4) The Operator must give written notice of the reassessee's agreement to the following: (a) each institution determined in the current determination as a participating institution or partly‑participating institution; (b) each participating jurisdiction (other than the Commonwealth) that is determined in the current determination under paragraph 29(2)(k); (c) each institution covered by paragraph (1)(f) of this section; (d) if an institution covered by paragraph (a) or (c) of this subsection is listed for a participating jurisdiction—that participating jurisdiction. (5) However, the Operator does not need to give a notice under subsection (4) in the circumstances (if any) prescribed by the rules. 71C Revoking agreement to reassessment (1) The reassessee may give the Operator a written notice revoking the reassessee's agreement under subsection 71B(2) to have the Operator reassess the current determination at any time before the Operator reassesses the current determination. (2) If the reassessee revokes the reassessee's agreement, the reassessee is taken to never have agreed to have the Operator reassess the current determination. Notice to participating institutions etc. (3) The Operator must give written notice of the revocation of the reassessee's agreement to each institution and participating jurisdiction that was given written notice of the reassessee's agreement under subsection 71B(4). (4) The notice must comply with any matters prescribed by the rules. 71D The Operator must make a reassessment decision (1) This section applies if the reassessee has agreed to have the Operator reassess the current determination. (2) The Operator must, as soon as practicable, reassess the current determination and make a decision (the reassessment decision), in writing, doing one of the following: (a) affirming the current determination; (b) setting the current determination aside and substituting a new determination. Note: A reassessment decision setting the current determination aside and substituting a new determination does not affect the current determination unless the new offer made based on the new determination is accepted. If that occurs, the new determination set out in the reassessment decision is substituted for the current determination (see section 71K). (3) The following provisions apply in relation to making the reassessment decision in the same way as they apply in relation to making a determination on an application for redress: (a) Division 3 of Part 2‑3