Federal Court of Australia

Brooks v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2024] FCA 725

ORDERS

THE COURT ORDERS THAT:

1.    The following documents be placed on the Court file by the Registrar:

(a)    a consent dated 28 June 2024 signed by the solicitors for the respective parties;

(b)    the submission of the Respondent provided to the Court on 28 June 2024 (Respondent’s submissions).

2.    Having regard to the “protected information” provisions in Division 2 of Part 4-3 of the National Redress Scheme for Institutional Child Abuse Act 2018 (Cth) (Redress Act) and to the contents of the Respondent’s submissions, and until further order, no person other than a judge or member of the Court staff or a party or the legal representative of a party may access the Respondent’s submissions without the leave of the Court or a judge.

3.    A writ of certiorari issue calling up into this Court the following decisions made by delegates of the Respondent and quashing them:

(a)    a determination of 14 July 2022 not to approve an application by the Applicant for redress under the Redress Act (Original Determination);

(b)    a decision of an independent decision-maker of 15 September 2022 to affirm the Original Determination.

4.    A writ of mandamus issue requiring the Respondent to determine the Applicant’s redress application according to law.

5.    The Respondent pay the Applicant’s costs of the proceeding (including the Applicant’s costs associated with the preparation of a proposed Further Amended Application) on a party/party basis in a lump sum either as agreed by the parties or, failing agreement, as fixed by the registrar.

6.    Liberty to apply reserved to the parties in respect of such orders as may be just and necessary in respect of protected information under the Redress Act in documents on the Court’s file.

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

REASONS FOR JUDGMENT

LOGAN J:

1    In the aftermath of, and by way of response to, the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse made in its ‘Redress and Civil Litigation’ report, Parliament enacted the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (Redress Act). The objects of the Redress Act, found in s 3, are:

Objects of this Act

(1)    The main objects of this Act are:

(a)    to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and

(b)    to provide justice for the survivors of that abuse.

(2)    For the purposes of achieving those objects, the objects of this Act are also:

(a)    to establish the National Redress Scheme for Institutional Child Sexual Abuse; and

(b)    to provide redress under the scheme which consists of:

(i)    a monetary payment to survivors as a tangible means of recognising the wrong survivors have suffered; and

(ii)    a counselling and psychological component which, depending on where the survivor lives, consists of access to counselling and psychological services or a monetary payment; and

(iii)    a direct personal response to survivors from the participating institutions and partly - participating institutions responsible; and

(c)    to enable institutions responsible for abuse of survivors to participate in the scheme to provide that redress to those survivors; and

(d)    to implement the joint response of:

(i)    the Commonwealth Government; and

(ii)    the government of each participating State; and

(iii)    the government of each participating Territory;

to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to redress.

2    The “National Redress Scheme for Institutional Child Sexual Abuse” (Redress Scheme) referred to in these objects is established by Chapter 2 of the Redress Act.

3    The Secretary of the Department of Social Services is, by s 9(1) of the Redress Act (and having regard to the assignment of administration of the Redress Act made by the Governor General by the Administrative Arrangements Order made under s 61 of the Constitution), appointed as the National Redress Scheme Operator (Operator). By s 9(2) of the Redress Act, the Operator is made responsible for operating the Redress Scheme. Section 16 of the Redress Act provides for three components of redress for those determined to be eligible for redress under the Redress Scheme. These components are:

(a)    a redress payment of up to $150,000;

(b)    access to counselling and psychological treatment; and

(c)    a personal response from participating institutions.

4    Section 10 of the Redress Act sets out principles which Parliament expects the Operator and other officers to take into account in the administration of the Redress Scheme. These include that redress should be “survivor focussed”, should avoid “further harming or traumatising the survivor” and also that powers should be exercised in a way that “protects the integrity of the scheme”.

5    To obtain such redress, it is necessary to make application to the Operator in the approved form: s 19, Redress Act. Eligibility for redress under the Redress Scheme is conditioned upon the Operator considering that there is a reasonable likelihood that the person is eligible for redress under the scheme: s 12(2)(b), Redress Act. Scheme eligibility is, by s 13 of the Redress Act, dependent upon a person’s having been sexually abused and that abuse being within the scope of the Redress Scheme together with other factors specified in that section. The term “sexual abuse” is defined (s 6 and the “Dictionary”) in an inclusory way by the Redress Act:

sexual abuse of a person who is a child includes any act which exposes the person to, or involves the person in, sexual processes beyond the person's understanding or contrary to accepted community standards.

6    In turn, the Operator must make a determination to approve, or not approve, the application as soon as practicable: s 29(1), Redress Act. If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, then the Operator must approve the application (s 29(2)(a), Redress Act) and take other action detailed in s 29 of the Redress Act. The Redress Act provides, by s 73, for the internal review of a determination made under s 29 by an independent decision-maker (IDM), at the request of an applicant.

7    Mr Warren Stephen Brooks applied for redress under the Redress Scheme. He alleged that he had experienced sexual abuse at a particular institution when he was a child aged seven to eleven years old.

8    Mr Brooks’ application for redress was made as long ago as 2018, shortly after the Redress Scheme commenced. That application was supplemented by a statement made by Mr Books and lodged with the Operator on 25 October 2021. The application was rejected on 14 July 2022 (Original Determination). Mr Brooks then promptly sought the internal review of this decision by an IDM. On 15 September 2022, an IDM decided to affirm the Original Determination (Review Determination). On 26 March 2023, Mr Brooks requested the Operator to revoke the Original Determination as so affirmed. On 3 May 2023, the Operator declined to do this. On 28 September 2023, Mr Brooks applied to the Court under s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) for the judicial review of the Review Determination, which was amended on 26 April 2024 to seek review of the Original Determination rather than the Review Determination. The Operator is the respondent to that judicial review application.

9    At the initial case management stage, I formed the view that it was in the interests of justice that the proceeding first be referred to mediation. Unfortunately, especially in light of more recent developments, the parties proved unable consensually to resolve the proceeding via mediation. It was therefore set down for hearing on 5 July 2024.

10    Earlier this week, the parties provided to the Court a form of consent jointly promoting the making of the following orders:

1.    The determination made by a delegate of the Respondent on 14 July 2022 be set aside and, in lieu thereof, it be ordered that:

(a)    a writ of certiorari be issued quashing the determination; and

(b)    a writ of mandamus be issued directing the respondent to determine the applicant's application for redress according to law.

2.    The Respondent pay the Applicant’s costs of the proceeding (including the Applicant’s costs associated with the preparation of a proposed Further Amended Application) on a party/party basis.

[sic]

11    As I observed in Igoe v Ryan (No 2) (2020) 280 FCR 327, at [67], although there is a public interest in the consensual resolution of litigation, an application for relief under s 39B of the Judiciary Act entails an exercise of a judicial discretion dependent upon being persuaded that there is occasion for the granting of that relief. It is necessary to explain why judicial power is being exercised. The relief promoted in this case is certiorari quashing an administrative decision and mandamus requiring the decision to be made afresh. Occasion for the granting of such relief is dependent upon the Court being persuaded that the administrative decision concerned is attended with jurisdictional error.

12    Recognising this, the Operator, quite properly, lodged a submission the effect of which was to concede, for reasons detailed in that submission, that the Original Determination was attended with jurisdictional error. That submission underpins the joint promotion by the parties of the orders mentioned.

13    In turn, that concession manifests a settled view on the part of the Operator, having regard to the duties of a party to a proceeding in this Court, as specified in s 37M of the Federal Court of Australia Act 1976 (Cth), that, responsibly and for the reasons given in the submission, the Original Determination could not stand, because it was invalid. Given that the Operator is an officer of the Commonwealth, one might doubt whether s 37M adds anything to “the old-fashioned, traditional and almost instinctive standard of fair play to be observed by the Crown in dealing with subjects”: Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, at 342 per Griffith CJ. Like Sir Samuel Griffith in 1912, I long ago learned to regard that obligation as “elementary”. Elementary though that standard, since termed a “model litigant obligation”, may be, that in no way diminishes my respectful commendation of the Operator (presently, Vice Admiral Raymond James Griggs, AO, CSC), and those advising him, for taking this course having formed this settled view. Especially given the revelations and recommendations concerning public administration in the report of the Royal Commission into the Robodebt Scheme, there is a singular public interest, in terms of public confidence in the integrity of administration of the Redress Scheme and encouragement of model litigant behaviour, in making this commendation explicit.

14    Although developed with greater specificity in the Operator’s submission, a degree of circumspection must attend the relating in these reasons of the factual background to the concession. That is because Division 2 of Part 4-3 of the Redress Act affords confidentiality to what is termed “protected information”. Such information may relate to the individual applicant, to another person or to the institution concerned. Nonetheless, it is necessary to offer some factual foundation for why it is appropriate to exercise judicial power.

15    In his statement of 25 October 2021, Mr Brooks described an act of very particular violence inflicted upon him at the institution concerned by one alleged abuser (the husband of the other) in the presence of another (the wife) and to his belief, based on demeanour, that the abusers may have been getting sexual gratification from that. He also attested, based on his experience of the incident, that the violent abuse was a way for his abusers to “break me down in order to perpetrate further sexual abuse against me”.

16    In his submissions, the Operator has drawn attention to a passage in the reasons given for the Original Determination in which it is patent that the decision-maker has focussed solely upon the wife. It is stated, “I have no doubt from Mr Brooks’ account that [the wife] was complicit in the physical abuse meted out by her husband; however, I am unable to find that she gained sexual gratification from observing the mistreatment.” That the violent abuse may have been for the sexual gratification of the husband was not addressed by the decision-maker. The Operator conceded that this omission constituted a failure to address an aspect or “integer” of Mr Brooks’ application for redress, as supplemented by his statement of 25 October 2021. The Operator conceded in his submissions that this omission constituted, in the circumstances related, a constructive failure to undertake the statutory duty consigned to the decision-maker under s 29 of the Redress Act. In support, the Operator cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov); (2003) 197 ALR 389, at [24] (Gummow and Callinan JJ), [95] (Hayne J); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, at [27] (Kiefel CJ, Keane, Gordon and Steward JJ), [105] (Gleeson J).

17    In the circumstances related, and on the true construction of the Redress Act, these authorities amply support the Operator’s concession. The obligation which falls on the Operator, and a delegate under s 29(1) of the Redress Act, is to “make a determination to approve, or not approve, the application as soon as practicable”. If the application as made, which includes its key integers, is not addressed by the determination, the statutory duty is not discharged. As Dranichnikov also supports, the error might further or alternatively be described as a failure in the circumstances to afford Mr Brooks procedural fairness by failing to consider, on the merits, the circumstances of the application as made by him.

18    The error concerned is undoubtedly jurisdictional. That conclusion follows even though eligibility for any redress is ultimately dependent on fulfilment of the conditional clause in s 29(2) of the Redress Act, “If the Operator considers that there is a reasonable likelihood that the person is eligible for redress” (emphasis added). In context, the emphasised word (“considers”) indicates that eligibility is dependent upon a state of administrative satisfaction: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, at 303. Administrative decisions so based are not unexaminable either under s 39B of the Judiciary Act or, where jurisdiction is conferred by the Act, under the Administrative Decisions (Judicial Review) Act 1977 (Cth). As to the jurisdiction conferred by s 75(v) of the Constitution and its replication (subject to presently immaterial exceptions) in s 39B(1) of the Judiciary Act, the bases upon which such review might occur were notably canvased by Gibbs J in Buck v Bavone (1976) 135 CLR 110, at 118 – 119, and in a helpful survey of this and other pertinent authority offered by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at [129] – [137]. Those bases include the conceded errors. Further, if one accepts Mr Brooks’ account (and that is a matter for the Operator), it is by no means impossible to regard the definition of “sexual abuse” in the Redress Act as embracing the violent beating of a child for sexual gratification. Given the text of that definition and the subject matter, scope and purpose of the Redress Act, it would be antithetical to accepted principles of statutory construction (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69] (McHugh, Gummow, Kirby and Hayne JJ)) to adopt a narrow conception of what may constitute “sexual abuse”, as defined. Given this, and having regard to the concession, there is a realistic possibility that, but for the conceded error, the fate of Mr Brooks’ application may have been different. The conceded error is therefore jurisdictional: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610.

19    A question which arises is whether it is sufficient only to quash the Original Determination. So doing would remove the foundation for the Review Determination. However, it would still leave that decision in place. If only out of an abundance of caution, I consider that it is desirable also to quash that the Review Determination. On the other hand, I do not consider it necessary to quash the refusal to revoke decision. The operative decisions are those which have rejected (and affirmed the rejection of) Mr Brooks’ application. These will be quashed by judicial order rather than administrative revocation. However, the existence of an administrative refusal to revoke does mean it is apt to grant a mandamus requiring that application to be considered afresh by the Operator, or a delegate. Obviously enough, that delegate should be one who has not hitherto decided (or affirmed the rejection of) the application.

20    I note that the Operator has also conceded an obligation to pay Mr Brooks’ costs.

21    There will be orders accordingly.

Associate:    

Dated:    5 July 2024