HMB24 v Operator, National Redress Scheme for Institutional Child Sexual Abuse
[2025] FCA 278
•28 March 2025
FEDERAL COURT OF AUSTRALIA
HMB24 v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2025] FCA 278
File number(s): QUD 558 of 2024 Judgment of: LONGBOTTOM J Date of judgment: 28 March 2025 Catchwords: ADMINISTRATIVE LAW – where the applicant applied to the respondent for redress under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) – where the a delegate of the respondent determined not to approve the application – where a review determination affirmed the original determination - where the applicant applies for relief under s 39B of the Judiciary Act 1903 (Cth) – where the parties have agreed that the original determination and review determination are affected by legal and jurisdictional error – whether orders jointly promoted by the parties should be made – application allowed Legislation: Judiciary Act 1903 (Cth), s 39B
National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), ss 3, 6, 8, 9, 12, 13, 15, 29, 73, 75
Cases cited: Brooks v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2024] FCA 725
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Igoe v Ryan (No 2) [2020] FCA 1091; (2020) 280 FCR 327
Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of last submission/s: 21 February 2025 (the Applicant)
07 February 2025 (the Respondent)Date of hearing: Determined on the papers Counsel for the Applicant: Ryan Haddrick Solicitor for the Applicant: Knowmore Legal Service Counsel for the Respondent: Margaret Allars SC and Michael Maynard Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
QUD 558 of 2024 BETWEEN: HMB24
Applicant
AND: OPERATOR OF THE NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
Respondent
ORDER MADE BY:
LONGBOTTOM J
DATE OF ORDER:
28 MARCH 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue calling up into this Court and quashing the following decisions made under the National Redress Scheme for Institutional Child Sexual Abuse 2018 (Cth) (Redress Act):
(a)The determination not to approve the application by the applicant for redress under the Redress Act (redress application) made by a delegate of the respondent on 19 December 2022 and provided to the applicant on 12 January 2023 (original determination);
(b)The review determination affirming the original determination made by a delegate of the respondent on 7 February 2023 and provided to the applicant on 19 July 2023.
2.A writ of mandamus issue requiring the respondent to determine the redress application according to law.
3.That in respect of order 2, the determination not be undertaken by the delegate who decided the original determination or the delegate who decided the review determination.
4.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.
5.The respondent pay the applicant’s costs of the proceedings on a party/party basis in a lump sum either as agreed by the parties, or, failing agreement, as fixed by a Judicial 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
LONGBOTTOM J:
OVERVIEW
The National Redress Scheme for Institutional Child Sexual Abuse was established by the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (RedressAct) in furtherance of the statutory objects of recognising and alleviating the impact of past institutional child sexual abuse and related abuse and providing justice for the survivors of that abuse: Redress Act, ss 3(1)-(2) and 8.
The respondent is responsible for operating the Scheme: Redress Act, s 9(2).
A person is eligible for redress under the Scheme if they meet the criteria in s 13 of the Redress Act. Those criteria relevantly include that the person was sexually abused, and a participating institution is responsible for the abuse: Redress Act, ss 13(1)(a)-(b) and 13(1)(d)(i).
In August 2020, the applicant applied to the respondent for redress under the Scheme (redressapplication). On 19 December 2022, a delegate of the respondent determined not to approve the redress application because the delegate could not identify a participating institution responsible for the abuse (original determination). The original determination was provided to the applicant on 12 January 2023.
The applicant applied for a review of the original determination. On 7 February 2023, a delegate affirmed the original determination (review determination). The review determination was provided to the applicant on 19 July 2023. Thereafter, the applicant provided the respondent with new information and requested that the review determination be revoked. The delegate declined.
On 19 September 2024, the applicant commenced proceedings in this Court under s 39B of the Judiciary Act 1903 (Cth) seeking a review of the original determination and review determination. Following a mediation, the applicant filed an amended originating application. The Court was then provided with a form of orders jointly sought by the parties. At a case management hearing on 21 March 2025, the parties refined the form of consent to seek orders for the issuing of a writ of certiorari quashing the original determination and the review determination, a writ of mandamus requiring the respondent to determine the redress application according to law and other ancillary relief.
While not called upon to adjudicate the substantive merits of the amended originating application, I must be satisfied that the Court has jurisdiction to make the orders jointly sought and that it is appropriate to do so: Igoe v Ryan (No 2) [2020] FCA 1091; (2020) 280 FCR 327 at [65]-[67] per Logan J. As his Honour observed in Brooks v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2024] FCA 725 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 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.
(Emphasis added)
For the following reasons, I am satisfied that the Court has jurisdiction, and it is appropriate, to make the orders promoted by the parties.
STATUTORY SCHEME
A person can only be provided with redress under the Scheme if the person is entitled to it: Redress Act, s 12(1). A person’s entitlement to redress is governed by s 12, which relevantly provides as follows:
12 When is a person entitled to be provided with redress?
….
(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.
Eligibility for redress under the Scheme
A person is eligible for redress under the Scheme if the person was sexually abused, a participating institution was responsible for the abuse and the other criteria specified in s 13 of the Redress Act are met.
By s 6 of 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.
Section 15 of the Redress Act defines when an institution will be responsible for abuse and relevantly 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.
…
Determining an application for redress under the Scheme
Where, as here, a person makes an application for redress under s 19, the respondent must make a determination to approve, or not approve, the application as soon as practicable: Redress Act, s 29(1).
By s 29(2) of the Redress Act, if the respondent considers that there is a reasonable likelihood that the person is eligible for redress, the respondent must approve the application and determine the other matters specified in that sub-section, including each participating institution that is responsible for the abuse. Otherwise, the respondent must make a determination not to approve the application: Redress Act, s 29(3). A determination on an application under s 29 is defined by s 73(1)(b) of the Redress Act as the “original determination”.
A person may apply to the respondent for a review of an original determination: Redress Act, s 73. By s 75(1) of the Redress Act, the review must be undertaken by an independent decision-maker to whom the respondent’s power under that section is delegated and who was not involved in the making of the original determination. The independent decision-maker must reconsider the original determination and either affirm, vary, or set it aside and substitute a new determination: Redress Act, s 75(2). A determination on a review application under s 73 is defined by s 75(2) as a “review determination”.
CONSIDERATION
The jurisdictional errors propounded by the amended originating application relevantly concern the applicant’s account of having been subjected to grooming at a specified school. As appears from the statements of reasons:
(a)In the original determination the delegate referred to the grooming experienced by the applicant at the school. But the delegate did not go on to consider whether that conduct was “sexual abuse” within the meaning of s 6 of the Redress Act.
(b)In the review determination, the delegate again referred to the grooming experienced by the applicant. But in dealing with whether an institution was responsible for the abuse the applicant recounted, the delegate went on to “note” that grooming does not meet the definition of sexual abuse before finding that grooming “can only be assessed as related non-sexual abuse, once it is established that an institution is responsible for any sexual abuse that occurred.”
Following the review determination, on 5 July 2024, Logan J delivered judgment in Brooks. His Honour there found that “sexual abuse” is defined in s 6 “in an inclusory way”: at [5]. Justice Logan went on to state (at [18]) that:
…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”…
The form of consent jointly promoted by the parties is premised on the respondent’s concession, given Brooks, that both the original determination and the review determination are affected by legal and jurisdictional error. In each case, the respondent accepts that the delegate misconstrued and misapplied s 6 of the Redress Act by failing to consider whether grooming constituted sexual abuse.
Relevant principles
A determination that the decision-maker is not “satisfied” that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege goes to the jurisdiction of the decision maker and is reviewable under s 39B of the Judiciary Act: Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [131] per Gummow J regarding s 75(v) of the Constitution as cited by Logan J in Brooks at [18].
The categories of jurisdictional error include a constructive failure to exercise jurisdiction and breach of an implied condition of procedural fairness, provided that breach of the condition was material to the decision under review: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [25] per Gummow and Callinan JJ and [95] per Hayne J; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2] and [35]-[39] per Kiefel CJ, Gageler, Keane and Gleeson JJ and Brooks at [16]-[18]. Materiality requires the applicant to establish, on the balance of probabilities, the historical facts necessary to satisfy the Court that a different determination could have been made had there been compliance with the condition of procedural fairness: MZAPC at [2] and [39].
Jurisdictional error
The task of the respondent in making a determination under ss 29 or 75 of the Redress Act involves several steps. First, the respondent needs to be satisfied that there is a reasonable likelihood that the person was sexually abused: Redress Act, ss 12(2)(b) and 13(1)(a). That determination, at least in part, involves a question of law: whether the conduct alleged is capable of meeting the statutory criterion of “sexual abuse”. If that question is answered affirmatively, the next question, one of fact, is whether there is a reasonable likelihood that the conduct occurred. There then follow the questions in ss 12(2)(b) and 13 of the Redress Act including, relevantly, whether there is a reasonable likelihood that a participating institution is responsible for the abuse: Redress Act, ss 13(1)(d) and 15.
In each case, the respondent failed to decide the first question. In both the original determination and the review determination the delegate identified the grooming experienced by the applicant. But in the original determination, the delegate failed to consider whether that conduct was capable of meeting the definition of “sexual abuse” in s 6 of the Redress Act. And in the review determination the delegate excluded the possibility that such conduct could meet the statutory criterion.
I accept that, had the first question been addressed in either case, there is a realistic possibility that a different decision could have been made. That is because, as Logan J outlined at [18] of Brooks, “it would be antithetical to accepted principles of statutory construction…to adopt a narrow construction of ‘sexual abuse’ as defined.” It is by no means impossible to regard grooming as “an act which exposes the person to, or involves the person in, sexual processes beyond the person’s understanding or contrary to accepted community standards”: Redress Act, s 6.
It follows that, in each case, the failure constituted a material breach of an implied condition of procedural fairness. They may also be characterised as constructive failures to exercise jurisdiction. On either view, those failures amount to jurisdictional errors in respect of which relief may be granted under s 39B of the Judiciary Act. I am satisfied that it is appropriate in the circumstances to issue a writ of certiorari quashing both the original determination and the review determination.
For the foregoing reasons, it is apt to issue a writ of mandamus requiring the respondent to determine the redress application according to law. In the ordinary course, it is a matter for the respondent to decide whether to delegate the function of determining the redress application and, if so, to whom: Redress Act, s 184. But the Court has power to give a direction in this respect: Igoe at [75]. Here the parties jointly seek an order that the determination of the redress application not be undertaken by either the delegate who determined the original determination or the delegate who determined the review determination. As such, I am inclined to make the order.
CONCLUSION
For these reasons, I make the orders jointly promoted by the parties.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom. Associate:
Dated: 28 March 2025
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