Knight v Secretary, Department of Social Services

1. Section 8 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) (hereafter, "the Act") establishes a scheme - known, perhaps unsurprisingly, as the National Redress Scheme for Institutional Child Sexual Abuse - which the respondent operates. That scheme (hereafter, "the NRS") exists to afford to the victims of institutional child sexual abuse redress in the form of monetary compensation, counselling and acknowledgment. Eligibility for redress in one or more of those forms is a function of various criteria; but, for present purposes (and at the risk of over-simplification), it suffices to note that it is generally established in circumstances in which a person was subjected to sexual abuse as a child, for which a "participating institution" was responsible.
2. Access to redress under the NRS applies somewhat differently in the case of applicants who have serious criminal convictions. As will later be explored, their entitlement to redress under the NRS is conditional upon the operator of the scheme first determining that its provision would not bring the scheme into disrepute or adversely affect public confidence in, or support for, the scheme.
3. On 22 June 2020, the applicant, Mr Knight, sought redress under the NRS related to a sexual encounter that he had with a secondary school teacher when he was 13 years old. That application (the "NRS Application") was rejected on the basis that, by reason of a serious criminal conviction, Mr Knight is not entitled to redress under it. That state of affairs arises on account of (or, perhaps, was confirmed by) the respondent's refusal to make a determination of the kind described in the preceding paragraph.
4. By an originating application filed on 1 February 2023, Mr Knight moves for prerogative relief directed to that refusal and declaratory relief directed to the constitutional validity of the statutory provisions out of which it arose. For the reasons that follow, neither form of relief is appropriate and the application will, instead, be dismissed with costs.

1. As has already been noted, s 8 of the Act operates to establish the NRS. It provides (and provided) as follows:

The National Redress Scheme for Institutional Child Sexual Abuse is established by this Act.

1. Section 9 of the Act nominates the respondent as the operator of the NRS. Relevantly, it provides (and provided):

(1) The Secretary of the Department is the National Redress Scheme Operator.

(2) The Operator is responsible for operating the scheme.

1. Sections 19 and 20 of the Act govern the mechanism by which members of the public might seek redress and the circumstances in which those applications might validly be made. At the time that the NRS Application was made, they provided as follows:

(1) To obtain redress under the scheme, a person must make an application to the Operator.

(2) To be valid, the application must:

(a) be in the approved form; and

(b) specify where the person lives; and

(c) include any information, and be accompanied by any documents, required by the Operator.

(3) The Operator is not required to make a determination on an application that is not valid.

(1) A person cannot make an application for redress under the scheme if:

(a) the person has already made an application for redress under the scheme; or

(b) a security notice is in force in relation to the person; or

(c) the person is a child who will not turn 18 before the scheme sunset day; or

(d) the person is in gaol (within the meaning of subsection 23(5) of the Social Security Act 1991); or

(e) the application is being made in the period of 12 months before the scheme sunset day.

(2) Paragraphs (1)(d) and (e) do not apply if the Operator determines there are exceptional circumstances justifying the application being made.

(3) Before making a determination under subsection (2), the Operator must comply with any requirements prescribed by the rules.

1. Section 13 of the Act governs the circumstances in which a person is eligible for redress under the NRS. The criteria for eligibility are broadly as summarised at [1] of these reasons and (for reasons that will shortly become apparent) nothing further need be said about them. To be provided with redress, in addition to being eligible for redress, the person must be also entitled to it: s 12(1) of the Act. Relevantly for present purposes, s 12(4) specified that:

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

...

(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.

1. In the instant case, the question of Mr Knight's eligibility or otherwise may be put to one side. It is common ground that the NRS Application was forestalled by operation of s 63, which is contained in pt 3-2 and relevantly provides (and, at the time of the Refusal, provided) as follows:

63 Special assessment of applicants with serious criminal convictions

(1) This section applies if:

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

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

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

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

(i) unlawful killing, attempting to commit an unlawful killing, or conspiring to commit an unlawful killing;

...unless there is a determination in force under subsection (5) of this section that the person is not prevented from being entitled to redress.

(3) If:

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

...

the Operator must, as soon as practicable after becoming aware of the sentence or making the determination:

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

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

(i) if the abuse of the person occurred inside a participating State or a participating Territory - the Attorney-General of the State or Territory, or another person nominated by that Attorney-General in writing;

(4) The notice must:

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

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

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

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

(a) bring the scheme into disrepute; or

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

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

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

(b) the nature of the offence; and

(c) the length of the sentence of imprisonment; and

(d) the length of time since the person committed the offence; and

(e) any rehabilitation of the person; and

(f) any other matter that the Operator considers is relevant.

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

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

(b) is given in the period referred to in the notice;

1. For present purposes, there is no suggestion that the NRS Application was invalid (or could not have been made) under ss 19 and 20 of the Act. Nor is there any dispute that Mr Knight is a person in respect of whom s 63 of the Act applies (and applied). The parties appear each to accept that, for the purposes of s 63(5) of the Act, Victoria's "specified advisor" is (or relevantly was) the Secretary of the Victorian Department of Justice and Community Safety.

1. On 22 February 2022, the respondent (as Operator of the NRS under the Act) decided not to make a determination under s 63(5) of the Act. That decision (the "Refusal") was conveyed by correspondence addressed to Mr Knight on that date, which assumed the following form (omitting formalities and reference):

Special assessment process - Final Decision

This letter is to inform you of the final decision concerning your entitlement for redress under the National Redress Scheme (the Scheme).

A person who has been sentenced to imprisonment for five years or longer for a single offence (a serious criminal conviction) is generally not entitled to redress. However, following a special assessment process set out in section 63 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act)- the National Redress Scheme Operator (Operator) is able to make a determination that a person with a serious criminal conviction is not prevented from being entitled to redress.

Under Section 63(5) of the Act a determination that allows you to be entitled to redress under the Scheme can only be made if I, as Operator, am satisfied that providing redress would not:

• bring the Scheme into disrepute, or
• adversely affect public confidence in, or support for, the Scheme.

I have very carefully reviewed all the information concerning your application, and I consider that issuing a determination that entitled you to redress would not meet the requirement of subsection 63(5) of the Act. Therefore, I have decided not to make a determination under subsection 63(5) of the Act in your favour.

I appreciate this information may be difficult to receive. I also recognise that applying to the Scheme can be an emotionally confronting experience and I acknowledge your courage in telling us about your experiences.

I want to assure you that this decision does not mean that the abuse you experienced did not occur, and in no way does it mean that any form of abuse is acceptable. All abuse is wrong, particularly the abuse of children, and it should not have occurred. I am personally saddened by what happened to you and the impact it has had on your life.

If you need immediate support, 24 hour telephone assistance is available through:

• Beyond Blue - 1300 224 636
• Lifeline - 13 11 14, and
• 1800 Respect - 1800 737 732

Matters taken into consideration

On 10 July 2020, you submitted an application for redress to the Scheme. Your application for redress was subject to a special assessment process because you have been sentenced to imprisonment for five years or longer for a single offence. This process is in accordance with Section 63 of the Act.

You were advised in correspondence dated 20 April 2021 that based on a preliminary assessment of your application and the nature of your serious criminal convictions, that Ms Kathryn Campbell AO CSC, in her capacity as the former Operator, may decide not to make a determination that would entitle you to redress under the Scheme. The letter offered you the opportunity to provide additional information to support your application.

You provided further submissions in response to the preliminary assessment, in a letter dated 30 June 2021.

To make the final decision, information taken into account included:

• your redress application, including your Criminal Conviction Additional Information Form,
• the advice provided by the Specified Advisor for Victoria, under whose jurisdiction you were sentenced to imprisonment and experienced abuse,
• publicly available court remarks in relation to your offending,
• the nature of the serious criminal offence you committed, for which you were sentenced to:

• life imprisonment for each count of seven counts of murder (1988)
• 10 years imprisonment for each count of 46 counts of attempted murder (1988).

It is open to any person to access damages through civil litigation. You may wish to obtain further advice and assistance on options from your own legal service, however please note this may not be free of charge.

1. As will be apparent from the terms of that correspondence, account was taken of various (and voluminous) material that Mr Knight submitted to the respondent in support of his hope that it might make a determination favourable to him under s 63(5) of the Act. At least for present purposes, Mr Knight accepts that that material was considered. The reference to the receipt of "advice provided by the Specified Advisor for Victoria" is a reference to a recommendation that the respondent obtained from Ms Rebecca Falkingham, the then-Secretary of the Victorian Government's Department of Justice and Community Safety (who served in that capacity as Victoria's "specified advisor" for the purposes of s 63(3)(b) of the Act). Ms Falkingham's recommendation was to the effect that the respondent, "...as the [NRS] Operator, should make a determination under subsection 63(5) of the Act that Mr Knight should be prevented from being entitled to redress due to his previous serious criminal convictions".

1. Mr Knight seeks relief in the form of a writ of mandamus to compel the respondent to make a decision regarding his NRS Application "...without relying upon s.63(7) of [the Act]". His originating application is one for relief under s 39B(1) of the Judiciary Act 1903 (Cth). Additionally, he moves for declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth) concerning the validity of s 63(7).
2. In support of that relief, Mr Knight contends that s 63(7) is beyond what the Commonwealth Parliament is competent to enact. In light of that contention, Mr Knight has given notice of his cause to the Attorneys-General of the Commonwealth, the states, the Australian Capital Territory and the Northern Territory. None has sought to be joined to the proceeding or otherwise to take any action in relation to it. I am satisfied that the requirements of s 78B(1) of the Judiciary Act 1903 (Cth) have been met and that it is appropriate for the cause to proceed.
3. By his written outline of submissions, Mr Knight's principal contention was put as follows:
   1. Subsection (6) [of s 63 of the Act] list[s] six matters that the Operator must take into account: four specific matters, paragraphs (a)-(d), and two general matters, paragraphs (e)-(f). The direction contained in subsection (7), however, ensures that paragraph (a) outweighs paragraphs (b)-(f) to the point where those paragraphs become irrelevant. As such, it acts to fetter the discretion of the decision maker contrary to the discretion provided by subsection (5).
   2. The applicant was advised by the National Redress Scheme that the special assessment process had been completed for 144 applicants with a serious criminal conviction, and that of these applicants, approximately 92% (132) had received a positive determination by the Operator pursuant to s.63(5) that they were entitled to redress (Knight affidavit at paragraph 11). It is submitted that in relation to the 8% (12) of applicants who received a negative determination, in every instance the Operator heeded the advice of the relevant specified adviser not to provide redress to the applicant.
   3. In the instant case the applicant made lengthy written submissions and submitted 69 documents in support of his application. If the totality of this material is outweighed by the provision of one line of advice (which itself amounts to the statement of a bare fact - that the applicant has 'serious criminal convictions'), the question arises as to what, if any, material and facts would not be outweighed by the advice of the specified adviser? Only if redress had been regularly provided in spite of advice from the specified adviser not to provide redress, could it be argued that s.63(7) is not a complete fetter on the discretion of the decision maker.

1. I should pause to note that the statistics to which Mr Knight refers find expression in his affidavit of 30 January 2023. They reflect advice that was given to him by Ms Emma Kate McGuirk, for and on behalf of the respondent, on 6 August 2021. Although little (in fact, nothing) turns on it, no objection was taken to the court's receiving that evidence and I take the statistics to be accurate.

1. Mr Knight complains that s 63(7) of the Act operates effectively to set at naught the considerations listed in ss 63(6)(b)-(f), such that favourable determinations under s 63(5) turn solely upon the consideration in s 63(6)(a). Operating as he maintains that it does (specifically, to fetter the respondent's discretion to make favourable determinations under s63(5) of the Act in the face of unfavourable advice from a specified advisor), s 63(7) is invalid and ought not to have factored in the Refusal. Because it did, Mr Knight maintains, if I understood him correctly, that those other matters, about which various representations were made, went effectively (although not actually) unconsidered; and, in the absence of proper consideration of those matters, Mr Knight submits that the Refusal was made otherwise than in a manner authorised under the Act. For that reason, he contends that prerogative relief in the form of mandamus is warranted.
2. It may be accepted - and the respondent accepts - that, if s 63(7) of the Act is ultra vires (or void for want of constitutional authority), then the Refusal could properly be impugned as a product of jurisdictional error, which this court might correct by granting the relief for which Mr Knight moves. Two questions arise: first, does s 63(7) operate in the manner for which Mr Knight contends (specifically, so as impermissibly to fetter the relevant discretion); and, if it does, does that mean that it lacks constitutional validity?
3. Respectfully, Mr Knight's construction of s 63 of the Act is misconceived. Subsection (7) thereof does not require that favourable determinations under sub-s (5) should rest solely upon the receipt of advice from specified advisors. It does no more than establish a weighting hierarchy pursuant to which one consideration is elevated in significance above each of the other individual considerations. So to recognise is not to require that the other considerations (those expressed in s 63(6)(b)-(f) of the Act) be ignored. It is not the case that the respondent is precluded from making a favourable determination under s 63(5) of the Act in the face of contrary advice from a specified advisor. In any given case, notwithstanding the additional weight that is given to the consideration described by s 63(6)(a) - that is, the additional weight relative to the other individual considerations - the cumulative significance of the considerations described in s 63(6)(b)-(f) of the Act might well warrant a favourable determination.
4. The suggestion that "...[o]nly if redress had been regularly provided in spite of advice from the specified [advisor] not to provide redress, could it be argued that s.63(7) is not a complete fetter on the discretion of the decision maker" is, with respect, not sustainable. The respondent retains a discretion to grant favourable determinations under s 63(5) of the Act; albeit one that is informed by considerations that the statute deems to be of unequal significance. The "complete fetter" of which Mr Knight complains does not exist.
5. But it wouldn't much matter if it did.
6. Again with respect, Mr Knight has not explained how it might be that a provision that fetters - whether completely or otherwise - the decision-making function for which s 63(5) of the Act provides is, for that reason, denuded of constitutional validity. Insofar as concerns any given statutory decision-making power, it is generally (although, admittedly, it might not always be) within the legislative competence of the Commonwealth Parliament to identify, by enactment, the considerations that must inform its exercise and to require that greater weight should attach to one or some of them relative to others.
7. For the court now to accept the suggestion that s 63(7) of the Act is void for want of constitutional authority would require that Mr Knight demonstrate that it trespasses beyond the scope of the legislative power conferred upon the Parliament by s 51 of the Constitution.
8. No submission of that kind was advanced and, with respect, for good reason.
9. The constitutional source of the legislative power pursuant to which the Act was enacted is to be found (at least relevantly for present purposes) in s 51(xxxvii) of the Constitution: the so-called "referral" power. By s 4(1) of the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (Vic), the Victorian Parliament referred to the Commonwealth Parliament its power to enact legislation with respect to matters that are enacted in the terms, or substantially in the terms, of what is described as the "scheduled text". The "scheduled text" appears as Schedule 1 to that enactment. It comprises of a Bill that appears then to have been proposed for the consideration of the Commonwealth Parliament, the terms of which are, at least for present purposes, materially identical to the terms in which the Act is now expressed. Of greatest significance, the "scheduled text" includes a provision that is identical to what is now (and, when the respondent made the Refusal, was) s 63(7) of the Act.
10. That understood, there is simply no basis upon which to doubt that s 63(7) of the Act is within the scope of the Victorian Parliament's referral and, therefore, qualifies as a constitutionally-valid exercise of Commonwealth legislative power.
11. Mr Knight's contentions to the contrary are, with respect, misconceived. The originating application must and will be dismissed.
12. As to costs, Mr Knight submitted that he is an indigent prisoner and there is as good as no sensible prospect that he might meet any order for costs that is made against him. He informed the court that the Commonwealth has, in other matters that he has run, opted not to pursue him for costs. Be that as it may (and accepting that the court's discretion to award costs is validly informed by what I have just outlined), I do not consider that there is any compelling reason why costs should not follow the event. I shall order accordingly.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.