Federal Court of Australia

IKL26 v Operator, National Redress Scheme [2026] FCA 1185

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is referred to by a pseudonym for the purposes of this proceeding until further order.

2.    The name of the Respondent be amended to “Operator, National Redress Scheme”.

3.    A writ of certiorari issue calling up into this Court and quashing the review determination, made under the National Redress Scheme for Institutional Child Sexual Abuse 2018 (Cth) (Redress Act), made by a delegate of the respondent on 12 November 2025, affirming the original determination not to approve the application by the applicant for redress under the Redress Act made by a delegate of the respondent on 10 April 2024.

4.    A writ of mandamus issue requiring the respondent to determine the review of the original determination according to law.

5.    Having regard to the “protected information” provisions in Div 2, Pt 4-3, Ch 4 of the Redress Act and the documents on the Court file, until further order, no person other than a judge or member of the Court’s staff or a party or the legal representative of a party may access the Court file without the leave of the Court or a judge.

6.    There be no order as to costs.

7.    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

(REVISED FROM TRANSCRIPT)

MEAGHER J

introduction

1    The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (Redress Act) establishes the National Redress Scheme for Institutional Child Sexual Abuse. The statutory objects of the Redress Act are to recognise and alleviate the impact of institutional child sexual abuse and related abuse, and to provide justice for the survivors of that abuse. The Scheme is established for the purpose of achieving those objects: ss 3(1), (2) and 8 of the Redress Act. The Operator of the Scheme is responsible for operating the Scheme: s 9(2) of the Redress Act. Eligibility for redress is governed by s 13 of the Redress Act. A person is relevantly eligible for redress if the person was sexually abused, and a participating institution is responsible for the abuse: s 13(1) of the Redress Act.

2    On 18 April 2023, the applicant made an application for redress under the Scheme concerning institutional child sexual abuse, said to have occurred in connection with an institution within the meaning of the Redress Act (redress application). On 8 November 2023, a delegate of the Operator determined not to approve the redress application because he was unable to conclude that an institution was responsible for the applicant’s abusers having contact with her (original determination). The original determination was communicated to the applicant on 22 April 2024.

3    The applicant sought a review of the original determination on 19 October 2024. On 12 November 2025, a delegate of the Operator affirmed the original determination (review determination). The review determination was provided to the applicant on 4 December 2025.

4    By an originating application filed on 30 December 2025 (originating application), the applicant seeks judicial review of the review determination, on the basis of jurisdictional error, errors of law and procedural unfairness. She seeks the following orders:

1.    An order setting aside the decision of the Respondent dated 4 December 2025.

2.    An order remitting the matter to the Respondent for reconsideration according to law.

3.    Such further or other relief as the Court considers appropriate.

5    The parties engaged in mediation between 21 May and 30 June 2026, but the proceeding did not resolve. On 17 July 2026, the respondent indicated to the Court that it intended to concede that the review determination was infected with legal error. The respondent subsequently on 29 July 2026 provided the Court with proposed orders agreed by the applicant, as well as written submissions in support of its concession that the review determination was infected by error. A case management hearing was held on 30 July 2026 at which the respondent orally addressed the Court on its concession. The applicant supported the respondent’s submissions in support of that concession. Additionally, the parties refined the proposed consent orders to seek orders that the Court issue a writ of certiorari quashing the review determination, a writ of mandamus requiring the respondent to determine the review of the original determination according to law, and other relief.

6    The Court is not being asked here to adjudicate the substantive merits of the originating application. However, it must be satisfied that it has jurisdiction to make the orders sought, and that doing so is appropriate: Igoe v Ryan (No 2) [2020] FCA 1091; 280 FCR 327 at [65] – [67]; Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [12] – [16]. In Brooks v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2024] FCA 725; 185 ALD 1, Logan J stated as follows at [11]:

… although there is a public interest in the consensual resolution of litigation, an application for relief under s 39B of the Judiciary Act [1903 (Cth)] 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.

7    These remarks were referred to with approval by Longbottom J in HMB24 v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2025] FCA 278 at [7].

8    I am satisfied that the Court has jurisdiction and that it is appropriate to make orders granting the relief sought by the parties.

legislation

Entitlement and eligibility for redress under the Scheme

9    Entitlement to redress under the Scheme is governed by s 12 of the Redress Act, which provides as follows:

12 When is a person entitled to be provided with redress?

(1)     A person can only be provided with redress under the scheme if the person is entitled to it.

(2)     A person is entitled to redress under the scheme if:

(a)     the person applies for redress under section 19; and

(b)     the Operator considers that there is a reasonable likelihood that the person is eligible for redress under the scheme (see section 13 for eligibility); and

(c)     the Operator approves the application under section 29; and

(d)     the Operator makes an offer of redress to the person under section 39; and

(e)     the person accepts the offer in accordance with section 42.

(3)     A person is also entitled to redress, or a component of redress, under the scheme if this Act or the rules prescribe that the person is entitled to it.

Note: For cases where this Act prescribes that a person is entitled to redress, or a component of redress, under the scheme, see Part 3-1.

(4)     Despite subsections (2) and (3), a person is not entitled to redress, or a component of redress, under the scheme if this Act or the rules prescribe that the person is not entitled to it.

Note: For cases where this Act prescribes that a person is not entitled to redress, or a component of redress, under the scheme, see Part 3-2.

10    As noted above, a person is relevantly eligible for redress if the person was sexually abused, and a participating institution is responsible for the abuse: s 13(1) of the Redress Act. Section 15 of the Redress Act defines when an institution will be responsible for abuse. It provides as follows:

15 When is an institution responsible for abuse?

When is an institution responsible for abuse?

(1)     An institution (whether or not a participating institution) is responsible for abuse of a person if the institution is primarily responsible or equally responsible for the abuse.

When an institution is primarily responsible for abuse

(2)     An institution is primarily responsible for abuse of a person if the institution is solely or primarily responsible for the abuser having contact with the person.

When an institution is equally responsible for abuse

(3)     An institution is equally responsible for abuse of a person if:

(a)     the institution and one or more other institutions are approximately equally responsible for the abuser having contact with the person; and

(b)     no institution is primarily responsible for the abuse of the person.

Relevant circumstances for determining responsibility

(4)     Without limiting the circumstances that might be relevant for determining under subsection (2) or (3) whether an institution is primarily responsible or equally responsible for the abuser having contact with the person, the following circumstances are relevant:

(a)     whether the institution was responsible for the day-to-day care or custody of the person when the abuse occurred;

(b)     whether the institution was the legal guardian of the person when the abuse occurred;

(c)     whether the institution was responsible for placing the person into the institution in which the abuse occurred;

(d)     whether the abuser was an official of the institution when the abuse occurred;

(e)     whether the abuse occurred:

(i)     on the premises of the institution; or

(ii)     where activities of the institution took place; or

(iii)     in connection with the activities of the institution;

(f)     any other circumstances that are prescribed by the rules.

Note:     When determining the question whether an institution is responsible for abuse of a person, the circumstances listed in this subsection are relevant to that question, but none of them on its own is determinative of that question.

…

Applications for redress under the Scheme

11    Where a person applies for redress under s 19 of the Redress Act, “the Operator must make a determination to approve, or not approve, the application as soon as practicable”: s 29(1) of the Redress Act. If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, the Operator must approve the application and, inter alia, determine each participating institution responsible for the abuse: s 29(2) of the Redress Act. Otherwise, the Operator must make a determination not to approve the application: s 29(3) of the Redress Act.

12    Section 73(1)(b) of the Redress Act defines the determination of an application under s 29 of the Redress Act as the “original determination”. A person may apply, under s 73 of the Redress Act, for a review of the original determination. The review must be undertaken by the Operator, or by an independent decision-maker to whom the Operator’s power under s 73 of the Redress Act is delegated, and who was not involved in the original determination: s 75(1) of the Redress Act. That person must reconsider the original determination, and make a determination (defined as a “review determination”), and either affirm, vary or set aside and substitute a new decision for, the original determination: s 75(2) of the Redress Act.

consideration

13    The errors alleged by the applicant in her originating application concern her account of having been subjected to sexual abuse perpetrated by members of the particular institution. The statement of reasons shows, inter alia, the following:

(1)    In the original determination, the delegate accepted the applicant’s statement that the abusers were members of the particular institution, but said that the particular institution was not responsible for one of the abusers, her grandfather, having contact with her, and it was unclear how the other two abusers’ membership of the particular institution caused it to be responsible for them having contact with the applicant.

(2)    In the review determination, the delegate stated that he relied upon the applicant’s submissions which referred to specific aspects of the abuse that were said to be indicative of and related to the symbolism and ritual of the particular institution, said to be relevant to whether it was “responsible for the abuse” under s 15(4)(e) of the Redress Act. The delegate did not, however, engage with the applicant’s submissions as to how the particular institution was said to be “responsible for the abuse”. Nor did he engage with the applicant’s argument that the symbolism described as part of the abuse meant that it was in connection with the particular institution’s activities, and therefore that it was the institution responsible for the abuse.

14    The proposed consent orders provided by the parties, and the respondent’s submissions, note the respondent’s concession that the review decision is affected by material jurisdictional error, and should be set aside and remitted on the basis that the delegate made two errors of law, being:

•    a failure to give proper, genuine and realistic consideration of the Applicant’s evidence when considering whether the abuse occurred in connection with the activities of the institution under s 15(4)(e)(iii) of the Redress Act; and

•    a failure to engage with a substantial and clearly articulated argument made by the Applicant, namely that the symbolism described as part of the abuse meant that the abuse was in connection with the activities of the relevant institution, and therefore the institution was responsible for the abuse.

Principles

15    Jurisdictional error encompasses, inter alia, a constructive failure to exercise jurisdiction, and breach of an implied condition of procedural fairness, provided that the breach of the condition was material to the decision under review: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [25], [32] and [95]; Brooks at [16] – [18]. To establish materiality, it is sufficient that there is a realistic possibility that the outcome of the determination could have been different if the errors had not been made. That threshold is “not demanding or onerous”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [14], [16].

16    Where a decision-maker’s reasons disclose that the decision-maker ignored, overlooked or misunderstood relevant factors or materials, or a substantial and clearly articulated argument, that may give rise to jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [27]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13], [105]. This may also be characterised as a failure to afford that party procedural fairness on the basis that it is a failure to consider, on the merits, the circumstances of that application: Brooks at [17]. A failure to give proper, genuine and realistic consideration of evidence before a decision-maker may also amount to a jurisdictional error: see Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; 270 FCR 335 at [50] – [58], [101].

17    The respondent characterises the conceded errors referred to at [14] above as either a constructive failure to exercise jurisdiction, or alternatively as a denial of procedural fairness, which are errors of the kind attracting the Court’s jurisdiction to grant certiorari and mandamus under s 39B of the Judiciary Act 1903 (Cth). I agree with this concession. Further, it says that these errors are material because there is a realistic possibility that the outcome of the review determination could have been different if the errors had not been made, and the applicant’s argument considered. I also agree with this concession.

18    The Operator failed to substantively engage with the applicant’s argument regarding how the particular institution was said to be responsible for the abuse, by reference to s 15(4)(e) of the Act. The applicant’s submissions in support of the redress application contended that the abuse suffered by the applicant was distinctively connected to rituals and customs of the particular institution, “involving [its] practices, customs and symbols”, and referred to the specific aspects of the abuse suffered, said to be indicative of and related to symbols and rituals of the particular institution. The applicant provided further material in support of the review of the original determination. The review determination stated that the delegate of the Operator relied upon the applicant’s submissions. However, it is not apparent from the statement of reasons that the delegate substantively engaged with the argument regarding how the particular institution was said to be “responsible for the abuse” under s 15(4)(e) of the Redress Act. There is a realistic possibility that the outcome of the review determination could have been different if that argument, and the applicant’s evidence, as to symbolism, had been considered.

19    For completeness, I note that the respondent’s concession as to materiality does not extend to a concession that the outcome of the review determination will necessarily be different on reconsideration.

20    The failures amount to jurisdictional errors in respect of which relief may be granted under s 39B of the Judiciary Act. A writ of certiorari should issue quashing the review determination. A writ of mandamus should also issue requiring the respondent to determine the review of the original application according to law. No order was sought by the parties that the review of the original application not be considered by the delegate who determined the review application. As such, no order to that effect is made.

Other matters

21    I agree that the respondent’s name should be changed from the “Commonwealth of Australia (Department of Social Services)” to the Operator of the National Redress Scheme, in whom the decision-making power under s 73 of the Redress Act is vested (see in this regard the named respondent in Brooks and HMB24).

22    The parties’ proposed consent orders provided that there be no order as to costs. As such, none is made.

Associate:

Dated:    30 July 2026