Mong v Commonwealth of Australia

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The parties jointly seek the court's advanced determination on the admissibility of evidence under section 37 of the National Redress Scheme for Institutional Child Abuse Act 2018 (Cth) ('the NRS Act'). The respondent also seeks an advance determination as to the disclosure of protected information under section 93 of the NRS Act in relation to certain material that the respondent will wish to put before the court and rely upon in defending this matter.
2. The principles of statutory interpretation which guide the court in determining the meaning of the relevant provisions are well settled. They are briefly set out at paragraph 2 of the respondent's written submissions in the following terms:[1]

(a) One must focus on the statutory text, read in context. Context includes the general purpose and policy of the provision under consideration, which is to be derived principally from the statutory text.

(b) When interpreting a provision, the interpretation that would best achieve the purpose or object of the Act is to be preferred.

(c) A statute is to be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.

1. At the heart of the substantive proceeding before the court, is the applicant's claim that the respondent unlawfully discriminated against him in the administration of the National Redress Scheme ('NRS'). It is not necessary to go into the details of that claim at this point.
2. In considering the issues raised in this application for an advanced ruling, it is appropriate to set out in some detail the objects and other relevant provisions of the NRS Act. Section 3 of the NRS Act sets out the objects of the Act as follows:

(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 ...; and

...

...

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

1. Part 2-3 of the NRS Act deals with how one obtains redress under the Scheme. Division 6 of Part 2-3 deals with the effect of a determination by the Operator and admissibility of evidence in civil proceedings. Relevantly, section 36 provides:

(1) A determination by the Operator under section 29 has effect only for the purposes of the scheme.

(2) In particular, a determination under section 29 that an institution:

(a) is, or is not, responsible for the abuse of a person; or

(b) is, or is not, liable to provide redress to a person;

is not a finding of law or fact made by a court in civil or criminal proceedings.

Note: The determination is an administrative decision that is made by the Operator on the basis of whether the Operator considers there to be a reasonable likelihood that the person is eligible for redress. It is not a judicial decision made by a court in civil or criminal proceedings on the basis of a higher standard of proof.

(3) However, a determination under section 29 that an institution is responsible for abuse of a person and therefore liable to provide redress may result in the imposition of a civil liability on the institution to make payments under the scheme in relation to that redress.

(1) The following documents are not admissible in evidence in civil proceedings in a court or tribunal:

(a) a person's application for redress;

(b) a document created solely for the purposes of accompanying a person's application for redress;

(c) a document created solely for the purposes of complying with a request for information made by the Operator under section 24 or 25 in relation to a person's application for redress.

(2) Subsection (1) does not apply if admission of the document in evidence in civil proceedings is for the purposes of giving effect to this Act.

(3) For the purposes of subsection (2) (and without limiting that subsection), if the admission of the document in evidence is in civil proceedings for judicial review of a decision made under this Act, then the admission is for the purposes of giving effect to this Act.

(4) Subsection (1) does not apply if the admission of the document in evidence is in civil proceedings under, or arising out of, section 28 (which is about providing false or misleading documents or information to an officer of the scheme).

1. It is common ground that some of the material that the applicant and the respondent will seek to rely upon would fall within the operation of section 37. Both the applicant and the respondent submit that these documents can nonetheless be relied upon in these proceedings on the basis that they fall within the exception contained in section 37(2).
2. Part 4-3 of the NRS Act then deals with protecting information under the Scheme. Section 91 provides:

Certain information about a person or an institution is protected information and can only be obtained, recorded, disclosed or used if this Act authorises that to happen. Broadly, protected information is information about a person or an institution that was obtained by an officer of the scheme for the purposes of the scheme and is held in the records of the Department or the Human Services Department. An example of protected information about a person is information that the person gives in his or her application for redress. An example of protected information about an institution is information that the institution provides in compliance with a request for information made by the Operator under section 25.

...

...

1. Section 92(2) defines 'protected information' as including 'information about a person or an institution' that:

(i) was provided to, or obtained by, an officer of the scheme for the purposes of the scheme; and

(ii) is or was held in the records of the Department or the Human Services Department; ...

(a) obtain protected information; or

(b) make a record of protected information; or

(c) disclose protected information to another person; or

(d) use protected information;

if:

(e) the obtaining, recording, disclosure or use of the information by the person is done:

(i) for the purposes of the scheme; or

(ii) with the express or implied consent of the person or institution to which the information relates; or

(f) the person believes on reasonable grounds that the obtaining, recording, disclosure or use of the information by the person is necessary to prevent or lessen a serious threat to an individual's life, health or safety.

(2) A person may use protected information to produce information in an aggregate form that does not disclose, either directly or indirectly, information about a particular person or institution.

1. It is submitted that some of the information upon which the applicant and the respondent will seek to rely in the context of these proceedings falls within the definition of 'protected information' and is therefore subject to the restrictions on use and disclosure contained in section 93. Various provisions of Part 4-3 then make it an offence to use or disclose protected information other than in specified circumstances.
2. As stated, both the applicant and the respondent submit that section 37(2) applies to permit them to put before the court, documents and material otherwise captured by section 37(1).
3. In addition, the respondent has identified information that it seeks to put before the court, which would otherwise fall within the definition of 'protected information'.[2] It submits that section 93(1)(e)(i) applies to permit it to put that information before the court in defence of this claim.
4. Both parties had initially also sought to rely upon section 93(1)(e)(ii) as an alternative basis upon which 'protected information' might properly be put before the court, but ultimately did not press this on the basis that there was some concern that the consent required for section 93(1)(e)(ii) was not just the applicant's consent but possibly also the consent of the institution concerned.
5. Having reached the conclusions that I have about the effect of section 93(1)(e)(i), it is not necessary for me to consider the scope of section 93(1(e)(ii).
6. Having regard to the annexure to the respondent's submissions, it is apparent that there are both documents which fall within section 37 that the parties will seek to put before the court in the course of this matter and that there is also information which would fall within the definition of 'protected information' which they, or either of them, may seek to rely upon in the course of the substantive hearing in this court.

1. The issues which therefore arise for determination can be summarised as follows:

(a) Does the exception in section 37(2) apply, such that any documents otherwise caught by section 37(1) may be admitted into evidence?

(b) With regard to any information which would constitute 'protected information' for the purposes of the NRS Act, does section 93(1)(e)(i) apply, permitting the use of that information for the purposes of these proceedings?

Does the exception in section 37(2) apply, such that any documents otherwise caught by section 37(1) may be admitted into evidence?

1. The resolution of this issue turns on the proper interpretation of the terms 'for the purposes of giving effect to this Act' contained in section 37(2).
2. Applying the principles of statutory interpretation set out earlier in these reasons, and having regard to the fact that both the NRS Act and the Disability Discrimination Act 1992 (Cth) ('DD Act') are beneficial legislation, these terms ought be given interpretation consistent with that characterisation.
3. As stated, the substance of the applicant's application under the DD Act is that he asserts that the NRS has not been administered lawfully. That is, it has been administered in a manner which is in breach of the DD Act. The underlying issue is not whether the claims which underpinned his application for redress in fact occurred or not.
4. Neither party has identified any authority directly dealing with the issues before me. In Colbert v Trustees of the Christian Brothers [2024] VSC 372 ('Colbert'), an issue arose in an application for discovery as to whether section 105 of the NRS Act prevented orders sought by the plaintiff. This application arose in the context of a claim for damages by the plaintiff in connection with historical abuse allegations. One of the categories of documents in respect of which the plaintiff sought discovery included documents produced under the NRS. The Judicial Registrar concluded that it was not appropriate to order discovery of this particular category and therefore it was not strictly speaking necessary for them to consider the arguments under the NRS Act. It is in this context that at [52] - [53], the Judicial Registrar said:
   1. The plaintiff sought to sidestep the operation of s 105 by relying on s 105(2), which provides that the restriction on the disclosure of protected information does not apply "if the disclosure of the information is for the purposes of giving effect to this Act". In this regard, the plaintiff pointed to s 3(1)(b) of the Act, noting that one of the main objects of the legislation was "to provide justice for the survivors of [past institutional child sexual and related] abuse", and that, I infer, facilitating civil proceedings by those survivors was consistent with that purpose.
   2. In my view, this submission should not be accepted. The exception in s 105(2) of "giving effect to this Act" must be interpreted according to its terms, and should be interpreted as giving effect to the operation of the provisions of the Act itself, not to any broader concept of objectives that are consistent with those outlined in the legislation. To adopt the broader and more uncertain interpretation proposed by the plaintiff would be to render the clear and detailed confidentiality provisions built into the Act largely meaningless.
5. Whilst these observations in Colbert suggest that documents produced for the purpose of the Scheme cannot be produced in common law proceedings seeking damages for any alleged abuse, or criminal proceedings in respect of the alleged abuse, it does not assist in determining whether documents produced for the purposes of the Scheme can be produced and relied upon in proceedings which effectively question the lawfulness of the administration of the Scheme.
6. When regard is had to the objects of the NRS Act as well as the express permission in section 37(3) for the use of documents produced for the purposes of the Scheme in judicial review proceedings, I am persuaded that the proposed use of such documents in proceedings under the DD Act is permitted by section 37(2).
7. It is common ground that a claim under the DD Act is not a judicial review application. However, it is an application in which the lawfulness of the actions taken by the Operator is to be assessed. The scope of a judicial review proceeding is different in that the assessment of the lawfulness of the actions taken by the Operator is based on different considerations. Both proceedings require a court to exercise supervisory responsibility over administrative actions. In neither case, is the court assessing whether the underlying claim of abuse, in respect of which the application for redress was made, is to be determined.
8. In addition, when one looks at the objects of the NRS Act, it is apparent that the main objects are to provide justice for the survivors of abuse. Those objects are to be achieved by the further objects at section 3(2), which relevantly include, to provide redress under a Scheme and to implement the joint response of, among others, the Commonwealth government. If the Scheme established under the NRS Act, operates in a manner inconsistent with the DD Act, justice for the victims of abuse cannot, by definition, be achieved. The admission of documents which would otherwise be caught by section 37(1) in proceedings such as this, which allow consideration of whether the Scheme has been administered in a manner consistent with the DD Act, is giving effect to the Act.
9. Finally, I note the submission made by the respondent about judicial consideration of the term 'for giving effect to the Act' or similar such terms which have generally arisen in the context of regulation making powers. Generally speaking, these authorities make it clear that such powers can only be exercised 'within the field of operation which the Act marks out for itself'. [3] It is also well settled that such regulation making powers cannot widen the purposes of the principal Act. It is submitted that these cases, albeit arising in a different context, suggest that the term 'for giving effect to an act' requires a focus on the concrete provisions of the enactment and the context of its stated purpose.[4]
10. I agree with that submission.
11. The focus of the NRS Act is to establish a mechanism for redress to victims of institutional abuse, within the scope of the legislative framework. It is implicit that in administering that mechanism, the Operator must act lawfully. One way of determining the lawfulness of the Operator's conduct is through the process of judicial review. Another is through proceedings such as this where allegations are made, namely that in administering the Scheme the Operator has acted unlawfully. The admission of documents necessary to assess the lawfulness of the Operator's administration of the Scheme, in my view, is clearly an admission for the purposes of giving effect to the Act.
12. It would produce a perverse result if, in a claim alleging unlawful discrimination in the manner in which a statutory body has undertaken its statutory duty, the very documents produced and information gathered which is relevant to the question of whether unlawful discrimination has occurred (and may well be the only evidence upon which the court can determine the issue) is precluded from being put before the court.
13. For each of these reasons, I find that section 37(2) applies, such that any documents otherwise caught by section 37(1) may be admitted into evidence.

Does section 93(1)(e)(i) apply, permitting the use of protected information for the purposes of these proceedings?

1. I accept the respondent's submission that there is a distinction between documents and 'protected information' in the sense contemplated by the NRS Act. The respondent submits that when regard is had to the information identified in the annexure to the respondent's written submissions, it is apparent that in order to defend these proceedings, the respondent's witnesses will need to disclose information which would otherwise fall within the concept of 'protected information' as defined.
2. The respondent also submits that section 93 of the NRS Act is enlivened to the extent that the material filed contains 'protected information' within the meaning of section 92 of the Act. The applicant agrees to that assertion in principle.
3. For the following reasons, I find that to the extent that either party seeks to rely upon information which would fall within the definition of 'protected information' under the NRS Act, that information can be produced to the court for the purposes of the hearing by virtue of section 93(1)(e)(i).
4. Section 99 of the NRS Act makes it an offence for a person to have unauthorised access, recording, disclosure or use of protected information.
5. Section 93(1)(e)(i), however, permits the disclosure or use of protected information if it is disclosed or used 'for the purposes of the scheme'.
6. It is conceded for the respondent that the use of the term 'for the purposes of the scheme' in section 93(1)(e)(i) as distinct from the use of the term 'for the purposes of giving effect to this Act' as used in sections 37 and 105 could lead the court to conclude that it has a different meaning. Ultimately, for the following reasons, it is not necessary for present purposes for me to determine whether there are circumstances in which the effect of those terms, do not completely overlap.
7. Whilst section 3 identifies the object of the NRS Act, there is no equivalent provision which clearly and concisely identifies the 'purpose of the scheme'. Section 3 however, does say that the Scheme is established, among other things, for the purpose of achieving the main objects of the Act, which in turn includes, to provide justice for the survivors of abuse.
8. Part 2-1 deals with the establishment of the Scheme. Section 7 relevantly provides:

This Part formally establishes the National Redress Scheme for Institutional Child Sexual Abuse. It provides that the Operator is responsible for operating the scheme. It also sets out general principles that the Operator and other officers of the scheme must take into account, for the benefit and protection of survivors, when taking action under the scheme.

1. Section 9 establishes the Operator who is responsible for operating the Scheme. Section 10 then relevantly provides:

(1) This section sets out the principles that must be taken into account by the Operator and other officers of the scheme when taking action under, or for the purposes of, the scheme.

(2) Redress under the scheme should be survivor-focussed.

(3) Redress should be assessed, offered and provided with appropriate regard to:

(a) what is known about the nature and impact of child sexual abuse, and institutional child sexual abuse in particular: and

(b) the cultural needs of survivors; and

(c) the needs of particularly vulnerable survivors.

(4) Redress should be assessed, offered and provided so as to avoid, as far as possible, further harming or traumatising the survivor.

(5) Redress should be assessed, offered and provided in a way that protects the integrity of the scheme.

1. It is submitted for the respondent that applying the principles of statutory interpretation set out earlier, a broad interpretation of the term 'for the purposes of the scheme' is warranted. I agree.
2. The respondent submits that the use of the term 'for the purposes of' rather than 'under' is intentional and designed to give have broader application. For example, the term 'under the scheme' is used elsewhere in the NRS Act when the legislature clearly intended to limit the circumstances to actions taken or support provided expressly under the Scheme.[5] There is much force to the submission made by the respondent at paragraph 32 of their written submissions. I agree that the use of the term 'for the purposes of the scheme' is a broader phrase and is not limited to action taken under the Scheme itself but could extend to other action necessary to further or support the purposes of the Scheme.
3. It is submitted for the respondent that when regard is had to the objects of the Act, and the requirements imposed on the Operator by section 10 the proper interpretation of the phrase 'for the purposes of the scheme' in section 93(1)(e) of the NRS Act, it should be interpreted as permitting the use or disclosure of protected information 'to lawfully provide redress to survivors of institutional child sexual abuse and use or disclose that is expressly provided for by the NRS Act.' I am also persuaded by that submission.
4. In my view when read in context and having regard to the objects of the Act, section 93(1)(e) permits use or disclosure of protected information in these proceedings in circumstances where these proceedings are aimed at ensuring that the Operator has lawfully administered the Scheme. The purpose of the Scheme must include that the Scheme is administered lawfully and consistently with the objects of the act that the Scheme was established to further.
5. As submitted by the respondent, the use of the information for this purpose would allow the respondent to protect the integrity of the Scheme to ensure that it is administered lawfully and to assist and support the Court's adjudication of the very issue as to whether in this case it has been administered lawfully.
6. For these reasons, the use by the respondent, and the applicant to the extent necessary, or disclosure of information that would be protected information under the NRS Act is permitted under section 93(1)(e)(i).
7. As stated earlier, initially the respondent and the applicant had raised whether the protected information could be accessed on the basis of express consent by the applicant. Ultimately, the respondent, and the applicant, conceded that whilst this might resolve the issue to the extent that the applicant could provide express consent, there may be some information which could only be released with the consent of the institution concerned.
8. Ultimately, for the reasons given, it is not necessary for me to consider this aspect of the respondent's submissions.

1. I direct the parties to prepare a proposed minute reflecting these reasons within 7 days.
2. The matter will otherwise be listed for a directions hearing on 22 July 2025 at 9:30am.
3. The parties also have liberty to apply.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

[1] See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, [69]-[71], [78]; Acts Interpretation Act 1901 (Cth), ss 15AA-15AB.

[2] See Annexure to Respondent's written submissions filed on 25 November 2024.

[3] Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42.

[4] Respondent's written submissions filed on 25 November 2024, paragraph 18.

[5] See for example, s10(2) of the NRS Act which refers to redress under the Scheme.