National Redress Scheme for Institutional Child Sexual Abuse Act 2018

This section applies if:

a person makes an application under section 19 for redress for abuse of the person; and

before or after making the application, the person is sentenced to imprisonment for 5 years or longer for an offence against a law of the Commonwealth, a State, a Territory or a foreign country.

For the purposes of subsection 12(4), the person is not entitled to redress under the scheme if:

the sentence mentioned in paragraph (1)(b) of this section is for any of the following offences:

unlawful killing, attempting to commit an unlawful killing, or conspiring to commit an unlawful killing;

a sexual offence or an offence that includes the intention to commit a sexual offence;

a terrorism offence within the meaning of the Crimes Act 1914;

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

the Operator has determined under subsection (2B) of this section that the person should undergo a special assessment process;

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.

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.

When making a determination under subsection (2B), the Operator may have regard to the matters set out in paragraphs 63(6)(b) to (f).

If:

the person’s sentence is for an offence covered by paragraph (2)(a); or

the Operator has determined under subsection (2B) that the person should undergo a special assessment process;

consider whether to make a determination under subsection (5); and

give a written notice under subsection (4) to each of the following (a specified advisor):

if the abuse of the person occurred inside a participating State or a participating Territory—the Attorney‑General of the State or Territory, or another person nominated by that Attorney‑General in writing;

if the abuse of the person occurred outside a participating State or a participating Territory—the Commonwealth Attorney‑General;

if the offence was against a law of a participating State or a participating Territory—the Attorney‑General of the State or Territory, or another person nominated by that Attorney‑General in writing;

if the offence was against a law not covered by subparagraph (iii)—the Commonwealth Attorney‑General.

The notice must:

request the specified advisor to provide advice about whether the Operator should make a determination under subsection (5); and

include sufficient information to enable the specified advisor to provide that advice; and

specify the period (which must be at least 28 days starting on the date of the notice) in which the specified advisor may provide that advice.

The Operator may determine that the person is not prevented from being entitled to redress under the scheme if the Operator is satisfied that providing redress to the person under the scheme would not:

bring the scheme into disrepute; or

adversely affect public confidence in, or support for, the scheme.

When making a determination under subsection (5), the Operator must take into account:

any advice given by a specified advisor in the period referred to in the notice; and

the nature of the offence; and

the length of the sentence of imprisonment; and

the length of time since the person committed the offence; and

any rehabilitation of the person; and

any other matter that the Operator considers is relevant.

When taking into account the matters set out in subsection (6), the Operator must give greater weight to any advice that:

is given by a specified advisor from the jurisdiction in which the abuse of the person occurred; and

is given in the period referred to in the notice;

The rules may prescribe matters relating to the giving of notices to a person or a participating institution in relation to a determination under subsection (5).