FEDERAL COURT OF AUSTRALIA

Australaw Pty Ltd v Minister for Families and Social Services [2020] FCA 227

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the respondent’s cost to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (Act) established the National Redress Scheme for Institutional Child Sexual Abuse (Scheme).

2    Under the Scheme the National Redress Scheme Operator (Operator) has an obligation imposed by s 48 of the Act to pay redress payments “to” the person entitled to redress where that person has accepted the redress payment. The applicant is an incorporated legal practice that specialises in compensation claims for victims of sexual and other abuse and is also the “legal nominee” of certain persons who have made an application for redress under the Scheme.

3    This application raises a discrete point as to the way in which redress payments may be made under the Act.

4    Two issues arise on the applicant’s submission: first, whether the obligation imposed on the Operator to pay the redress payment to the person may be complied with by causing for a payment to be made to an account that a legal nominee of the person holds with a financial institution; and second, if not, whether s 33(2) of the National Redress Scheme for Institutional Child Sexual Abuse Rules 2018 (Cth) (Rules) is invalid.

5    For the reasons below the application is dismissed.

6    Before addressing the submissions it is necessary to consider the legislative scheme.

Legislative scheme

7    This legislation stems from the 2015 report released by the Royal Commission into Institutional Responses to Child Sexual Abuse, entitled “Redress and Civil Litigation Report”. This included a recommendation that the Australian Government establish what was described as a “single national redress scheme”.

8    The main objects of the Act are to (a) “recognise and alleviate the impact of past institutional child sexual abuse and related abuse” and (b) “provide justice for the survivors of that abuse”: s 3(1). A redress payment is intended as “a tangible means of recognising the wrong survivors have suffered”: s 3(2)(b)(i). To achieve those objects, the Act establishes the Scheme. The Secretary of the Department of Social Services is the Operator of the Scheme (the Operator): s 9(1).

9    A person is entitled to redress under the Scheme if he or she meets the conditions: Pt 2-2; see generally ss 11, 12, 13. Redress consists of three components: (1) a redress payment, paid under ss 48 (redress payments) or 60 (redress payments for certain deceased persons). These can amount to payments of up to $150,000; (2) a counselling and psychological component, which consists of access to counselling and psychological services provided under the Scheme, or a payment of up to $5,000 to enable the person to access counselling and psychological services outside the Scheme; and (3) a direct personal response from each participating institution responsible for the abuse of the person, as determined by the Operator: s 16(1). A person who is entitled to redress under the scheme may choose to accept 1, 2 or all 3 of those components of redress: s 16(2).

10    To become entitled to a payment under the Scheme, a person seeking redress must apply under the Scheme: ss 12(2)(a), 19. A person is eligible for redress if, among other things, the person suffered sexual abuse within the scope of the Scheme (according to s 14) and “one or more participating institutions are responsible for the abuse”: s 13(1)(d).

11    It is the responsibility of the Operator to determine a person’s eligibility for redress. If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, the Operator must approve the application and make an offer of redress: ss 12(2)(b)-(d), 13-15, 29, 39.

12    A person may accept or decline an offer of redress: ss 42, 45. If a person accepts the offer, they are entitled to redress under the Scheme: ss 12(2)(e), 42. In accepting an offer, the person must state the components of redress that they wish to receive: s 42(2)(f), (g). An effect of accepting an offer of redress is to release the institutions determined to be responsible for the abuse and their officials from civil liability in relation to abuse that is within the scope of the Scheme: s 43.

13    If a person accepts a redress payment contained in an offer of redress, the Operator must pay the redress payment to the person. Section 48 of the Act imposes a duty on the Operator to pay the redress payment to the person. Section 48 provides:

48 The Operator must pay the redress payment

(1) If:

(a) a person is entitled to redress under the scheme (see section 12); and

(b) the person stated in the acceptance document that the person wishes to be paid the redress payment;

then the Operator must pay the redress payment to the person as soon as practicable.

(2) The rules may prescribe matters relating to the payment of redress payments.

14    Section 33 of the Rules is a section made for the purposes of s 48(2) and 51(4) of the Act and prescribes matters relating to the payment of redress payments under s 48(1) of the Act and counselling and psychological services payments under s 51(3) of the Act. Section 33(2) of the Rules states:

33 Payment of redress payment and counselling and psychological services payment

…

(2) A redress payment, or a counselling and psychological services payment, for a person must be paid to an account that:

(a) the person holds with a financial institution; and

(b) the person has nominated in writing to the Operator.

15    “Financial institution” is defined in s 6 of the Act as “a body corporate that is an authorised deposit-taking institution for the purposes of the Banking Act 1959”.

16    Section 33(3) of the Rules provides that, in circumstances where a person has died after becoming entitled to redress under the Scheme and other conditions are satisfied, a redress payment or a counselling and psychological services payment must be paid to an account nominated in writing to the Operator by the executor or administrator of the person’s estate.

17    If a person makes an application for redress under the Scheme, or proposes to do so, the Operator may appoint another person to be an “assistance nominee” or a “legal nominee” of the applicant: s 81(1). They require appointment under the Act, and constitute a status that is relevant only for the purposes of the Act.

18    Both the person and the applicant must give written consent before the Operator can appoint a person as an assistance nominee: s 81(2). An assistance nominee for a person may do certain acts that the person may do under, or for the purposes of, the Act: s 84(1). An assistance nominee is not authorised to do any of the various acts specified in s 84(2), including applying for redress, accepting an offer of redress or declining an offer of redress.

19    The authority of a legal nominee for a person is not so qualified. A legal nominee may do any act that may be done by the person under, or for the purposes of, the Act: s 85(1). This is specifically taken to include making an application for redress and accepting or declining an offer of redress: s 85(2). Any act done by a person’s legal nominee under s 85 “has effect, for the purposes of this Act (other than this Part [Pt. 4-2 concerning nominees]), as if it had been done by the person”: s 85(3).

20    To be appointed a legal nominee, a person must satisfy more exacting conditions than a person appointed as an assistance nomine. Section 81(3) provides that:

(3) The Operator must not appoint a person to be the legal nominee of the applicant unless:

(a) under a law of the Commonwealth, a State or a Territory the person has power to make decisions for the applicant in all matters that are relevant to the duties of a legal nominee; and

(b) the person gives written consent to the appointment; and

(c) the Operator has taken into account any wishes of the applicant regarding the making of such an appointment.

Note: A person who may be eligible to be the legal nominee of the applicant is a person who under a guardianship order or power of attorney, has power to make decisions for the applicant in all relevant matters.

21    As the note to s 81(3) recognises, a person who has power to make decisions for an applicant by virtue of a guardianship order or power of attorney may be eligible to be the legal nominee of an applicant for redress.

22    The duty of a legal nominee (as with an assistance nominee) is to act in the best interests of the applicant at all times: s 83(1).

23    Section 50 provides special protection against the operation of garnishee orders. Section 50(1) provides that if a redress payment “is being paid, or has been paid, to the credit of an account” and a garnishee order comes into operation in relation to the account, the court order does not apply to the “saved amount” (if any) in the account. Section 50(2) contains a method for working out the “saved amount”.

24    The Act contains a similar regime for the payment of the counselling and psychological services payment to a person entitled to such payment: ss 51, 53.

25    Part 6-3 of the Act contains debt recovery provisions. Relevantly, if a redress payment is paid to the wrong person or exceeds the amount payable to the recipient, that payment is a debt due to the Commonwealth and may be recovered under Part 6-3: s 167(2). Where a payment is made wholly or partly because of a false or misleading statement or a misrepresentation by the recipient or another person, an amount equal to so much of the amount as is attributable to the false or misleading statement or misrepresentation is a debt due to the Commonwealth by the recipient: s 167(3).

26    Section 179(1) provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted by the Act to be prescribed by the rules. Section 48(2) expressly provides that the Rules “may prescribe matters relating to the payment of redress payments”. The Rules were made on 29 June 2018. It was not in dispute that the Act (and therefore also the Rules) commenced on 1 July 2018: Rules, s 2.

27    I note that the Act does not require the recipient of the redress payment to do anything after the Operator has paid the redress payment into the nominated account, and nor is there anything in the Act which regulates or addresses how the redress payment can be used after it is paid into the nominated account.

28    This application raises an issue in relation to the manner in which the Operator may comply with the obligation imposed under s 48 of the Act, to pay the redress payment to a person.

Argument

29    The argument can be shortly stated.

30    The applicant contended that the Operator can comply with the obligation in s 48 in several ways including (1) causing for a payment to be made to the entitled person’s credit or benefit such as by causing for a payment to be made to a trustee of the entitled person; (2) causing for a payment to be made to the credit of an account held with a financial institution by a “legal nominee” appointed by the Operator; or (3), the Operator’s duty under s 33(2) of the Rules, may be complied with by causing for an account of a “legal nominee” to be credited with an amount equivalent to a “redress payment”. In the alternative, the applicant contended that if s 33(2) purported to prohibit a redress payment being paid into a solicitor’s trust account that sub-rule is inconsistent with or repugnant to the Act and therefore invalid, at least where the solicitor is also the legal nominee.

31    The respondent submitted that s 48(2) provides expressly that the Rules, made under the Act, “may prescribe matters relating to the payment of redress payments,” and that the relevant Rules (which commenced at the same time as the Act) prescribe that a redress payment for a person “must” be paid to an account that “the person holds with a financial institution” and that the person has nominated in writing to the Operator: s 33(2) of the Rules. The respondent submitted the position “could hardly be clearer”.

32    The respondent took a preliminary point, submitting that the issue of the effect and validity of s 33(2) cannot be dealt with only in the alternative, as argued by the applicant as, if s 33(2) is valid, it plainly has a central role in determining how the Operator may lawfully make a payment under s 48(1) of the Act. It was submitted that logically, therefore, the applicant’s argument about the invalidity of s 33(2) needs to be considered first. The applicant took issue with that submission contending that the starting point is to first construe the primary legislation because one of the matters that needs to be taken into account in considering invalidity is to determine the constructional choices and then consider the Rules, as the rules made pursuant to s 48(2) must not be repugnant or inconsistent with the Act, citing Plaintiff M47/2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1 at [54], per French CJ applying Federal Capital Commission v Laristan Building and Investment Co [1929] HCA 36; (1929) 42 CLR 582 at 588 per Dixon J. The applicant submitted that the proper approach is to construe the Act to understand the scope of the delegated authority to make rules, and then construe the rules with a view to ascertaining whether that falls within or outside of the delegated power. It submitted that in so doing, it is possible that there will be two reasonably arguable constructions, one of which is in power and one of which is not, and that it is the construction within power which should be preferred, relying on Airservices Australia v Canadian Airlines International [1999] HCA 62; (1999) 202 CLR 133 at [222], [228], [229] per McHugh J. The applicant submitted that, as a general rule, it is not permissible to use delegated legislation as an aid in the construction of an act, relying on Mine Subsidence Board v Wambo Coal Pty Ltd [2017] NSWCA 137; (2017) 154 LGERA 60 at [41].

33    Those latter propositions may be accepted however, for the reasons explained below, it does not assist the applicant in this case.

34    The issue as to the correct approach to construction is discussed below, although, as the respondent submitted, ultimately it is not necessary to resolve the issue. As explained below, the respondent correctly submitted that if s 33(2) is valid, given it prescribes the manner in which the Operator is to make payments, it plainly has a role in determining how the Operator may lawfully make a payment under s 48(1) of the Act. The reason why it is unnecessary to resolve the issue of approach is that, as the respondent submitted, even leaving aside the Rules, s 48 does not give rise to two reasonably arguable constructions as contended by the applicant.

35    In that context I will consider the two issues identified above in the order in which they were argued.

Complying with the obligation imposed on the Operator by s 48(1) of the Act

Submissions

36    The applicant’s submission focussed on three main bases to support its contention: first, the literal meaning of “to the person” in s 48(1); second, the role of a legal nominee in the Act; and third, the alleged absurdity that is said to result from the respondent’s construction.

37    As to the first point, the applicant submitted that the reference in s 48(1) “to the person” could not be read literally as, if it were otherwise, the only conventional way that a person entitled to redress under the Scheme could be paid would be by cash and that Parliament could not have intended that. It was submitted that this is because other conventional forms of payment involve making a payment “to” an intermediary such as a bank that then applies the payment to a recipient customer’s credit. It followed, so the applicant contended, that the reference to a payment “to the person” should be construed as being broad enough to encompass a payment made to the benefit of a person such as by way of an electronic funds transfer. It submitted consequently there is no reason to distinguish between: (1) a payment made to a bank for the credit of a current account in the child abuse victim’s name (giving the victim a legal chose in action as against his or her bank having a value that is equivalent to the amount required to be paid); and (2) a payment made to a bank for the credit of a current account that is in the name of a trustee of the child abuse victim (giving the child victim a beneficial interest in or in relation to an amount equivalent to the amount required to be paid). It was contended that in both cases, the payment is properly regarded, as having been made “to” the person entitled to redress under the Scheme. Therefore, it was submitted, the obligation in s 48(1) of the Act may be complied with by causing for a payment to be made to the credit of a solicitor’s trust account maintained by a solicitor for an entitled person.

38    As to the second point, the applicant contended that in any event, that course is authorised by Part 4-2 of the Act (Nominees) where the solicitor is a “legal nominee” of a person who is entitled to a redress payment. The applicant submitted that s 80 confirms that the legislative intent of Part 4-2 of the Act is to permit anything that can be done personally under or for the purposes of the Act to be done by a kind of statutory agent called a “legal nominee”. Further, consistent with this, s 85(3) of the Act confirms that “[a]ny act done by a person’s legal nominee under [s 85] has effect, for the purposes of this Act (other than this Part), as if it had been done by the person”. It submitted that this position is consistent with the general law and that, absent clear language, s 85 would not be construed so as to depart from the general law position that what a person may do himself, he may do by an agent.

39    As to the third point, the applicant submitted that the respondent’s construction would lead to absurd results. It submitted the distinction relied on, between positive “act[s]” such as the act of accepting an offer of redress and the supposedly passive function of “[r]ecieving a redress payment” was illusory because to “receive” a payment it is necessary for positive acts to be performed (e.g. in the case of an electronic funds transfer, the person must open and hold a bank account, nominate electronic funds transfer as an acceptable method of payment and provide bank account details to the payer). The applicant submitted this was acknowledged in s 33(2)(a) of the Rules. The applicant submitted the correct view is that “act” in s 85(1) is sufficiently broad to encompass such acts as are necessary to cause for a payment to be received for or on behalf of a person entitled to a redress payment (e.g. the holding of a financial institution account and the nomination of it as the account to which a redress payment should be credited). To illustrate the claimed absurdity the applicant referred, as an example, to an order made by the Supreme Court of New South Wales declaring that a person is incapable of managing his/her affairs and committing the management of his/her property to the NSW Trustee and Guardian, and the purported consequences in that scenario. The applicant submitted that Parliament should be taken to have legislated in the knowledge that there is a pre-existing body of statutory and general law concerning the duties of a person who “has power to make decisions for [an] applicant [for redress]” “under a law of the Commonwealth, a State or a Territory”: adopting s 81(3)(a), and that together with the imposition of further statutory duties on nominees tends against a construction of the Act or the Rules that would undermine a person’s powers and duties to act as guardian, manager or attorney “under a law of the Commonwealth, a State or a Territory”.

40    The respondent addressed each of the applicant’s three arguments.

41    In relation to the first point, the respondent submitted that the applicant’s construction of the phrase “to the person” strains the language of s 48(1). The applicant’s reasoning results not in a payment “to the person” entitled to the payment, but rather payment to a third party, so long as the person entitled to the payment has some form of beneficial interest or other legal claim in respect of the money held by that third party.

42    The respondent submitted that the construction departs from the language of s 48 and wrongly equates the status of a bank account held in the name of the person entitled to the payment, with that person having an interest in the proper administration of a trust account. It submitted that it is commonplace to describe a payment to a person’s bank account as a form of payment to that person, and it is a conventional arrangement under Commonwealth statutes to require that benefits payable to a person be paid to an account held by that person: see, for example, s 55 of the Social Security (Administration) Act 1999 (Cth); s 40 of the Business Services Wage Assessment Tool Payment Scheme Act 2015 (Cth); s 7A of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). It is not commonplace to describe a payment to a trustee as a form of payment to the beneficiary of that trustee (as involved in the applicant’s analysis). The respondent submitted that s 50 which protects redress payments from the operation of garnishee orders, makes plain that within this legislative scheme payment to a person’s bank account was contemplated by the legislature as a form of payment to that person. Section 50(1) refers to a redress payment that is being paid, or has been paid, “to the credit of an account”. See also the equivalent provision in s 53(1).

43    The respondent accepted, as the applicant submitted, that the legislature did not intend that a payment can only be made to a person in cash, however, it submitted that it does not follow logically or as a matter of legislative text, context and purpose, that in addition to authorising such payments, the legislature must also have intended that a payment could be made “to a person” by making a payment to an account in another person’s name, if the recipient has fiduciary obligations in the administration of such an account.

44    The respondent submitted that in any event, these abstract possibilities of construction become irrelevant once proper attention is paid to s 48(2) of the Act and s 33 of the Rules. The legislature expressly provided that the statutory duty to pay redress payments to a person would be subject to additional prescription in the Rules and to the extent that there was any scope for ambiguity about the manner of paying a person if s 48(1) of the Act stood alone, that was removed by the making of s 33 of the Rules. To the extent it is considered necessary, the Rules themselves may be used in construing the Act because the Act and Rules together form a scheme that was prepared contemporaneously to commence at the same time, referring to Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652 (Mason J); Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 (Master Education Services) at [19]; Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315; (1994) 53 FCR 86 at 90.

45    Other contextual features reinforce this construction, referring to inter alia, ss 50 and 53, 58(3)-(4), 59(3), 59(4)(d), and s 60(2). It submitted that these provisions confirm that where the legislature intended to authorise the payment of a redress payment by the Operator to a person other than the person entitled it did so expressly and in a way which assumes that s 48 does not otherwise authorise such payments.

46    As to the second point, the respondent emphasised that in the applicant’s case, this is dealing with the exceptional scenario where a solicitor or legal firm is acting as a legal representative of a client in the conventional sense, and as a person authorised to make decisions on behalf of their client (for example pursuant to a guardianship order) who has been appointed as a legal nominee by the Operator under s 81 of the Act.

47    The respondent submitted that the flaw in this argument is that payment of a redress payment by the Operator into a particular account is not an “act that may be done by the person [who is entitled to a redress payment] under, or for the purposes of, this Act”. The relevant “act” regulated by s 48 of the Act and s 33 of the Rules is the act of “payment”. This is an act performed by the Operator pursuant to a statutory obligation to pay. It is the Operator who “must pay the redress payment to the person” pursuant to s 48(1) of the Act. Section 33 of the Rules is made, explicitly, for the purposes of ss 48(2) and 51(4) of the Act. Those provisions refer to the rules prescribing matters relating to “the payment of” redress payments and counselling and psychological services payments.

48    The respondent submitted that the receipt of money by a person from the Operator is not an “act” that “may be done by the person under, or for the purposes of” the Act. A payment to a bank account in accordance with s 33(2) of the Rules does not require, and will not involve, any act by the recipient. It submitted that the status and legal significance of a person being appointed “legal nominee” turns on the Act and the Rules, not on general principles of agency.

49    It was submitted that the positive acts relied on by the applicant (e.g. opening and holding a bank account and nominating an account) are distinct from the making of payment by the Operator. Opening and holding a bank account are not acts done by a person under, or for the purposes of, this Act. They are part of daily life.

50    The respondent accepted that nomination of an account to the Operator is an act done by the person under, or for the purposes of, the Act: Act, s 48(2); Rules, s 33(2)(b), and therefore the legal nominee may validly nominate which account that the person holds with a financial institution is to receive the payment. However, the legal nominee has no authority under the Act or the Rules to nominate an account that is held by the legal nominee, not by the person entitled to the payment.

51    The Act makes certain express provisions relating to the role of nominees in matters other than performing acts that may be done by the person under, or for the purposes of, the Act, for example, ss 86 and 94. That the Act explicitly provides for instances where a legal nominee may receive something demonstrates that receipt of something under the Act is not an act under, or for the purposes of, the Act. If the applicant’s argument that “receiving” something is itself an act done by the recipient (which may therefore be done by the legal nominee under the general authority of s 85), there would be no need for such specific provisions.

52    The respondent submitted that the notion of a “legal nominee” is a bespoke statutory concept that exists to serve limited statutory ends. The purpose is to facilitate the processes established for accessing the Scheme and delivering redress where there is an entitlement. These processes are applying for redress (Act, s 19), the provision of information by the applicant to the Operator (Act, ss 24, 26), accepting or declining an offer of redress (Act, ss 42, 45), and seeking review of a determination made by the Operator (Act, s 73). The Act does not set up any scheme for regulating how a redress payment paid to a person’s legal nominee should be applied. The purpose of the Act is to provide justice for survivors of past institutional child sexual abuse and other abuse, and requiring that redress payments be paid directly to the nominated bank account of the person entitled to that payment serves that end. Allowing the payment to be made to the bank account of a third party legal nominee would introduce a significant element of risk. On the applicant’s construction any person who happened to be appointed as legal nominee by the Operator would be entitled to nominate his or her own bank account to receive payments, regardless of the nature of that account. It submitted that it was unlikely that the legislature, or the Minister in making the Rules, intended such an arrangement, in circumstances where there is no scope in the Act for regulating the ongoing handling of funds in such an account.

53    As to the third point, the respondent submitted no absurdity arises. The example of a person who has been declared by the Supreme Court of NSW to be incapable of managing their affairs, which is relied on by the applicant to illustrate this point, does not expose any practical difficulty with the Minister’s construction. A redress payment paid into a bank account held in the name of the managed person is still capable of being accessed and properly applied by a properly authorised guardian. The redress payment paid into the managed person’s account would form part of the estate of the managed person, which is on this hypothesis managed by the NSW Trustee: NSW Trustee and Guardian Act 2009 (NSW), ss 38 (definition of “estate”), 40. Under ss 56 and 59, the NSW Trustee could access a redress payment paid into a managed person's account. The respondent submitted that there is nothing in the arrangements under the NSW Trustee and Guardian Act 2009 (NSW) which makes it absurd or improbable that redress payments were intended to be paid into a bank account held by the person under guardianship, rather than into an account held by the guardian in its own name.

Consideration

54    The respondent’s submission must be accepted.

55    The resolution of this issue is one of statutory construction.

56    Statutory construction must begin with the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 (Alcan) at [47] per Hayne, Heydon, Crennan and Kiefel JJ. While the language employed is the surest guide, its meaning may require consideration of the context which includes the general purpose and policy of the provision: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69] per McHugh, Gummow, Kirby and Hayne JJ; in particular the mischief it is seeking to remedy: Alcan at [47] per Hayne, Heydon, Crennan and Kiefel JJ. More recently it has been emphasised that the starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is to be had to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ, citing Project Blue Sky at [69]-[71], and [35]-[39] per Gageler J; cited by BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45 at [48].

57    That said, as noted above, an issue arose during the hearing as to the correct approach to construction in this case with the applicant submitting that the respondent’s approach “to have regard to the Rules…so as to construe the Act” is incorrect as a matter of legal method, and that the correct approach is to construe the Act, including assessing the breadth of the empowering provisions to make Rules, and it is only then that the Rules can be properly construed. In support of the proposition the applicant relied on a number of authorities, Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137; (2007) 154 LGERA 60 at [41]; Airservices Australia v Canadian International Airlines [1999] HCA 62; (1999) 202 CLR 133 at [222], [228], [229], and [408]; and made observations about Elazac Pty Ltd v Commissioner of Patents [1994] FCA 1315; (1994) 53 FCR 86 at 90; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19], the latter two authorities being relied on by the respondent, referred to at [44] above.

58    There was no real issue with the principles in those cases, but rather the dispute between the parties was with their application to this case.

59    The respondent’s approach to construction is correct. The applicant’s contention that the respondent used the Rules to construe the Act is to mischaracterise its submission.

60    As was observed in Master Education Services at [19] per Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ (references omitted):

It may be useful to read together regulations and the Act with which they were made, in order to identify the nature of a legislative scheme which they comprise. That is not a warrant for the use of the Code to construe, and expand, the terms of s 51AD, in particular by reference to the nature of the language of cl 11(1). Regulations are to be construed according to ordinary principles of construction. That requires that they be placed in their statutory context. In the case of regulations that includes the legislation under which they are enacted and with which they are required to be consistent.

61    It follows, that to consider the Rules in this case is not to construe the Act by reference to them, but rather to see the Act and the Rules operating together as a legislative scheme: see also, SZVBN v Minister for Immigration and border Protection [2017] FCAFC 90; (2017) 254 FCR 393 at [153]. In any event, the Act and the Rules together form a scheme, prepared contemporaneously to commence at the same time.

62    The applicant’s interpretation of s 48(1), with respect, is artificial and strained. It commenced with considering s 48(1) in isolation of the context in which it appears, which relevantly includes, inter alia, s 48(2). Contrary to the applicant’s contention, the respondent’s approach is not using the Rules to construe the Act “in some unnatural way”, but rather it is part of the relevant context as s 48(2) provides that the Rules may prescribe matters relating to the payment of redress payments.

63    When regard is had to the text of s 48 in its proper context and having regard to its purpose, which includes proper attention being given to s 33 of the Rules, it is plain that the legislature expressly provided that the statutory duty to pay the redress payment to a person would be the subject of additional prescription in the Rules. The Rule making power in s 48(2) is broad. Section 33(2) of the Rules addresses the practicality of how the redress payment must be made, namely, to an account held by a person. As explained below, the Rule plainly falls within power.

64    Even leaving aside the Rules, the applicant’s submission as to the construction of s 48(1), given its text, context and purpose, is strained. It does not give rise to alternative constructional choices which, the applicant submitted, arise before considering the Rules.

65    First, while it may be accepted that the reference to “to the person” in s 48(1) cannot be confined to cash payments, and therefore cannot be read literally, as the respondent submitted it is commonplace in Commonwealth legislation to refer to payment to a person’s bank account as a form of payment to the person. The legislative examples provided by the respondent, referred to above at [42], amply bear that out.

66    Second, the applicant’s submission makes no reference to provisions such as ss 50(1) and 53(1) which make it clear that the legislature contemplated that a redress payment would be paid into the person’s bank account. Nor does the applicant address ss 58(3)-(4), 59(3), 59(4)(d), 60(2) of the Act which expressly address redress payments that may be paid to persons other than the person entitled. Those provisions reflect that where the legislature intended to authorise the payment of a redress payment to a person other than the person entitled, it has expressly done so. It follows, that s 48 does not authorise such payments. These provisions provide contextual support for the interpretation of s 48 as described in the paragraph above, and are inconsistent with the construction sought by the applicant. I note that s 33(3) of the Rules is also of this character.

67    Third, the applicant’s construction of s 48(1) reasons from the proposition that when payment is made into a person’s bank account it is not received by that person, but by the bank as debtor, which has contractual obligations to the account holder. While that may be correct, that does not lead to the next proposition in the applicant’s submission, namely if that is permissible under s 48(1) it must equally be permissible to pay it to a third party who has equitable obligations to apply the money to the benefit of the person. As the respondent submitted, that reasoning equates the status of a bank account held in the name of the person who is entitled to payment with that person having an interest in the administration of a trust. That reasoning is not supported by the language in s 48(1).

68    The applicant calls in aid of his interpretation Logan J’s decision in Aboriginal Community Benefit Fund Pty Ltd v Chief Executive Centrelink [2016] FCA 769; (2016) 153 ALD 104 (Aboriginal Community Benefit Fund) which considered s 55 of the Social Security (Administration) Act 1999 (Cth), one of the provisions referred to by the respondent in argument (see [42] above). Relevantly that provision is in the following terms:

55 Payment into bank account etc.

(1) Subject to Part 3A, an amount (the relevant amount) that is to be paid to a person under section 44, 45, 47, 48, 48A, 48B, 48C, 48D or 50 is to be paid in the manner set out in this section.

(2) Subject to subsections (4) and (4A), the relevant amount is to be paid to the credit of a bank account nominated and maintained by the person.

(3) The account may be an account that is maintained by the person either alone or jointly or in common with another person.

(4) The Secretary may direct that the whole or a part of the relevant amount be paid to the person in a different way from that provided for by subsection (2). If the Secretary gives a direction, the relevant amount is to be paid in accordance with the direction.

…….

69    After drawing attention to the terms of that provision, the applicant placed particular emphasis on the statement at paragraph [40]:

…Accepting, as I do, that “paid” means discharging the obligation to pay the relevant amount to a person, a “different way” might conceivably and permissibly be a payment by direction of the Secretary whereby part of that person’s relevant amount was paid to a third party to whom that person owed an amount…

70    From that the applicant submitted that this case, which involves a lesser proposition of paying the redress payment into a trust account of the legal nominee for the exclusive benefit of the person to who the redress is to be paid, falls within the concept of paying an amount to a person. While Logan J’s decision went on appeal, this aspect was not pursued on the appeal.

71    However, Aboriginal Community Benefit Fund does not assist the applicant. It does not stand for any broader proposition which can be extrapolated to apply to s 48 of the Act. One cannot infer from that case, support for the proposition that the payment to a person in s 48 can be discharged by paying it to any person to whom they might be indebted. In contradistinction to this Act, I note that s 55(4) expressly provides that the Secretary may direct that money may be paid in different ways. I note also that the remainder of the paragraph [40] which was relied on by the applicant includes the following:

….Inferentially, because the default position is as stated in s 55(2), the Secretary could not make a direction that the person be in part paid the relevant amount by a payment to a third party without the consent of the person. Absent such consent, a permissible “different way” would have to place the relevant amount in the hands of the person entitled to it...

72    Aboriginal Community Benefit Fund is an example of construction of the relevant provisions there under consideration. There is no basis to contend that because money can be paid into another’s account under that legislation, it can be paid into the account of the legal nominee to satisfy the obligation in s 48(1).

73    Fourth, the applicant’s reliance on the “legal nominee” to support its argument is misplaced. It must be borne in mind that while the applicant is a legal practice, it is not necessary to be a legal practitioner in order to be appointed a legal nominee under the Act. It follows that while the applicant’s submission focussed on its position as a legal practice, and the responsibilities and regulations in respect to a solicitor’s trust account (and the consequences for a breach thereof), that submission is of limited assistance. The applicant must make good its proposition across the range of persons who are entitled to be appointed as a legal nominee.

74    The concept of a “legal nominee” in this Scheme has a particular meaning, with the Act expressly providing the conditions which must be satisfied before such a person is appointed and the acts which that person is entitled to perform on behalf of the person as a consequence of that appointment, and importantly the circumstances in which a legal nominee may receive something (e.g. ss 86, 94). As such, there is no basis to resort, as the applicant does, to general principles of agency to expand upon what the Act has expressly designated as the role of the legal nominee.

75    A legal nominee may do any act that may be done by the person under, or for the purposes of, the Act: s 85(1). As such, a legal nominee may make an application for redress to the Operator: s 19; provide information to the Operator: ss 24, 26; accept or decline an offer for redress made by the Operator: ss 42, 45; and seek a review of the determination made: s 73. It may also be accepted that the legal nominee can nominate the account that the person holds with a financial institution for the purposes of being paid the redress payment: s 33(2)(b) of the Rules, as that involves an act done under, or for the purposes of, the Act.

76    The applicant’s submission that the redress payment can be paid into the legal nominee’s account, based on s 85(3), is flawed. It will be recalled that subsection provides that any act done by a person’s legal nominee under s 85 “has effect, for the purposes of this Act…as if it had been done by the person”: s 85(3). However, for that subsection to apply it is necessary that there be a relevant act to be done under the Act. The Operator’s payment of a redress payment into a particular account pursuant to s 48 does not involve any relevant act to be done by the legal nominee. The act performed by the Operator is the statutory obligation to pay the redress payment to the person entitled.

77    The holding of an account with a financial institution is not a relevant act for the purposes of s 85; it is not an act done under, or for the purposes of, the Act. Nor is the opening of a bank account. Those acts are correctly described by the respondent as acts of daily life. In the applicant’s case for example, the trust account into which they seek payment, no doubt, already exists and was not created nor held for the purposes of the Act. It may be accepted, as the applicant submitted in reply, that it is not necessary for the person to hold the bank account from its inception for the purpose of being paid the redress payment but rather it is only necessary that it be held at the time of nomination, however that submission does not advance its position. Rather, it undercuts its submission that the relevant acts of the legal nominee sufficient to satisfy the condition include opening and holding a bank account. If the account of the legal nominee into which it wished the funds be transferred already existed, it is difficult to see how the matters identified, such as opening and holding the account, would constitute acts done under, or for the purposes of, the Act. So much is illustrated by the fact the applicant seeks to have the redress payment paid into its trust account, which it holds as a legal practice.

78    Similarly, the receipt of the redress payment by the person from the Operator, is not a relevant act for the purposes of the Act. The submission distorts the concept on “an act” in s 85(1) and (3). Nothing in the Act and Rules specifies any act constituted by the receipt of the payment. As noted above, where the legal nominee is involved in a step not involving an act, the Act expressly provides for that. There is nothing in the Act and Rules which authorises the legal nominee to receive the redress payment on behalf of the person.

79    Moreover, a consequence of the applicant’s construction (which is based in part on s 85(3)) is that the assistance nominee, by virtue of s 84(4) (which is in the same terms as s 85(3)), would also be authorised to receive the redress payment into their bank account, as that is not an act excluded under s 84(2). That cannot have been the intended result and further tells against the applicant’s construction.

80    Finally, no absurdity arises from the result that a legal nominee cannot receive the redress payment into their bank account. To the contrary, having redress payments made directly into an account of the person entitled to it is a construction consistent with achieving the purpose of the Scheme.

81    The example given by the applicant that if an Operator appoints the NSW Trustee as legal nominee under that Act, does not have the consequence the applicant contends for. The redress payment would form part of the estate of the managed person. The NSW Trustee, by virtue of ss 56 and 59 of the NSW Trustee and Guardian Act 2009 (NSW) may exercise all the functions necessary for the management and care of the estate of the managed person, and therefore could access and manage the redress payment made to the person.

82    Importantly, as alluded to above, the applicant’s submission must address the full range of persons who could be legal nominees of the person entitled to the redress payment. They will not necessarily be lawyers (who have a duty to act on the instructions of the client), they just need to be a person who under a Commonwealth, State or Territory law has power to make decisions for the person: s 81(3). It follows that the duties placed on those persons under other laws would vary depending on the particular relationship (e.g. solicitor, power of attorney etc). While it may be accepted that s 83(1) imposes a duty on the legal nominee to act in the best interests of the person at all time, nothing in the Act or Rules addresses how the redress payment can be used after it is paid into the nominated account. Reliance on the fact that there must be some pre-existing relationship, and some duty which must accompany that relationship, before a person becomes a legal nominee, does not assist the applicant. Notably, despite the role of the legal nominee being identified with precision in the Act, the receipt of the redress money for another person is not specified as a relevant act that may be performed by them.

83    As stated at the outset, even leaving aside a consideration of the Rules, s 48 does not give rise to two reasonably arguable constructions. The applicant’s construction of the provision cannot be accepted.

84    I note also that the applicant submitted that s 33(2)(b) of the Rules is consistent with the construction it contended for because that rule, with s 85 of the Act, is said to confirm that it is open to a legal nominee to make the nomination under s 33(2)(b). However, that submission suffers the same problem as referred to above, that s 85(3) requires an act to be done for the purposes of the Act. For the reasons given above, holding a bank account is not such an act.

85    As explained above, when regard is had to the text of s 48, in its proper context and having regard to its purpose, which includes proper attention being given to s 33 of the Rules, the Operator’s obligation cannot be satisfied by paying the redress payment into the bank account of the legal nominee.

Invalidity

Submission

86    The applicant submitted that if s 33(2) of the Rules is to be read as prohibiting the Operator from causing for the crediting of an account in the name of a “legal nominee” of a person, that sub-rule is invalid because it is beyond the legislative authority to make rules conferred by the Act.

87    The relevant provisions are s 179(1) of the Act (the Minister may, by legislative instrument, make rules prescribing matters required or permitted by this Act to be prescribed by the rules); s 48(2) (the rules may prescribe matters relating to the payment of redress payments) and s 33 of the Rules which is described as a section for the purposes of ss 48(2) and 51(4) of the Act.

88    The applicant submitted that properly construed, ss 179(1)(a) and 48(2) of the Act do not permit the Minister to make rules that are inconsistent with or repugnant to the Act, and that s 48(2) does not authorise the Minister to make rules that would undermine the intention of the Act that anything that can be done personally under or for the purposes of the Act can be done by his or her “legal nominee”. Therefore, to the extent that s 33(2)(a) is to be read as requiring the financial institution account contemplated by s 33(2)(a) to be held personally rather than by his or her “legal nominee”, it is invalid as beyond the rule making authority of the Minister.

89    The respondent submitted that contrary to the applicant’s contention, it is not a question of s 33(2) “prohibiting” any particular form of payment, but rather, it directs the Operator as to the modes of payment which are authorised under the Rules and the Act. Section 48(2) provides that the rules may “prescribe” matters relating to the payment of redress payments. Section 33(2) of the Rules is prescriptive in its terms and effect. That is, s 33(2) is a rule of the kind expressly contemplated by s 48(2). The respondent submitted that the applicant does not suggest, and could not sensibly suggest, that a rule which requires that payments be made to the eligible person’s nominated bank account is not prescribing a matter “relating to the payment of redress payments”. The reason that payments to a solicitor’s trust account or the account of the person’s legal nominee are not lawful is because they are not within the scope of that which is prescribed. The respondent submitted that the applicant’s analysis miscarries by seeking to identify modes of payment that might be considered permissible if s 48(1) of the Act were read in isolation, and then treating the Rules as prohibiting that which is otherwise permitted by the Act. That approach ignores the fact that the Rules themselves define the way in which the Operator’s duty under s 48(1) must be performed, in a way authorised by s 48(2). The respondent submitted that there is no inconsistency between s 33 of the Rules and the Act.

Consideration

90    Section 179(1) of the Act relevantly provides:

179 The National Redress Scheme Rules

(1) The Minister may, by legislative instrument, make rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the rules; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

…

91    Section 48(2) provides:

(2) The rules may prescribe matters relating to the payment of redress payments.

92    Section 33 of the Rules provides:

33 Payment of redress payment and counselling and psychological services payment

(1) This section is for the purposes of subsections 48(2) and 51(4) of the Act (about matters relating to the payment of redress payments and counselling and psychological services payments).

(2) A redress payment, or a counselling and psychological services payment, for a person must be paid to an account that:

(a) the person holds with a financial institution; and

(b) the person has nominated in writing to the Operator.

...

93    Section 33(2) of the Rules prescribes the method of payment by the Operator of the redress payment. The rule making power in s 48(2) is broad, and the Rule plainly falls within that power.

94    However, the applicant’s submission is dependent on there being a construction of s 48 (absent a consideration of s 33(2) of the Rules) which leads to the conclusion that the obligation on the Operator to pay the redress payment could be satisfied by paying the payment into an account of the person’s legal nominee.

95    This is because the argument on this ground is put on the basis that if s 33(2)(a) is to be read as requiring the account at the financial institution to be held by the person to whom the redress is to be paid rather than his/her legal nominee that is beyond the ruling making power. The applicant’s submission is put on the basis that the Act provides that anything that can be done personally under or for the purposes of the Act can be done by his or her “legal nominee”: s 85.

96    However, the flaw in that submission, as explained above, is that there is no relevant act to be done by the recipient of the redress payment. The act is the obligation on the Operator to “pay the redress payment to the person”. Moreover, as explained above, the applicant’s submission as to the interpretation of the Act does not support the construction it contends for.

97    Section 33(2) of the Rules is not inconsistent with or repugnant to the Act.

Conclusion

98    The application is dismissed.

Associate:

Dated:    28 February 2020