National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018

Adoption: The adoption under s 4(1) is the constitutional act of taking the Commonwealth National Redress Act as a law that operates in South Australia, restricted to the “relevant version” of that Act - namely, the Act as originally enacted plus any amendments enacted before the assent day (27 September 2018). The adoption does not cover later amendments unless they are made under the separate amendment reference. The adoption operates from commencement until a fixed termination day, and the Governor can set that day unilaterally.

Amendment reference: This is the referral under s 5(1) of the “matters relating to a redress scheme for institutional child sexual abuse” to the Commonwealth, but only to the extent of making express amendments of the National Redress Act. An “express amendment” is defined as a direct textual change to the Act (insertion, omission, repeal, substitution or relocation of words) by another Commonwealth Act or instrument, not a provision that has substantive effect outside the text (s 3). The amendment reference is narrower than the adoption: it only covers future amendments, and it is subject to the exclusions for State redress mechanisms and State agreement provisions.

State redress mechanism: Defined broadly in s 7(1) as any scheme, program or arrangement (temporary or otherwise) established by the State Parliament, government, or any institution (governmental or non‑governmental) for persons who have suffered institutional child sexual abuse, and includes the jurisdiction of a court or tribunal to grant compensation or support for victims of crime. This concept is critical because the amendment reference does not include the power to make a Commonwealth law that would prevent or limit any such mechanism. However, that protection does not extend to matters already covered by the original National Redress Act, release of civil liability, disclosure of information, or payments under the scheme (s 7(3)). The effect is that the Commonwealth may amend the National Redress Act in ways that affect those excluded matters, even if they also clash with a State mechanism.

Participating State institution: Defined by reference to the National Redress Act; it is a State institution that has agreed to participate. The State can give its agreement to participation by regulations or ministerial directions, and that agreement may be given for individual institutions or a class (s 11). A participating State institution is obliged to give information to the Operator upon request, and the Act overrides any State law that would otherwise block that disclosure, unless the law is prescribed by regulations (s 12).

State agency: Defined in s 12(1) as a body established for a public purpose by or under a State law, whether or not it is a State institution or participating State institution, and includes any body prescribed by regulations as within the definition (and excludes any prescribed as not within). This concept is used only in the information‑sharing provisions: a State agency may give information to another State agency to assist a participating State institution to comply with an Operator request.

Assent day: The day the Act received royal assent, 27 September 2018. The “relevant version” of the National Redress Act is frozen as at that date (including earlier amendments) but not later ones.

Termination: The Governor may by proclamation fix a day on which the adoption, the amendment reference, or both terminate (s 9(1)). Before that day arrives, the Governor may revoke the proclamation, and if revoked, the original proclamation is taken never to have been made (s 9(2)-(4)). This provides the State with a flexible exit, but termination of the amendment reference before the adoption does not affect laws already made under that reference or the continued operation of the National Redress Act as amended by those laws (s 10). The adoption can continue even if the amendment reference terminates, but if the adoption is terminated, the amendment reference also ceases to have effect for future laws (s 10(2) read with s 10(1)).

Express amendment: A defined term that excludes substantive provisions not directly amending the text. This means the Commonwealth cannot, under the amendment reference, enact a free‑standing provision that deals with the matter but is not part of the National Redress Act’s text. It must actually change the words of the Act.

The Act directly affects several classes of persons and entities. State institutions (as defined by the National Redress Act) are the government bodies, agencies, and possibly non‑government entities that may be designated as participating in the scheme. The Act does not compel any institution to participate; rather it provides the legal infrastructure for participation by allowing the State to give its agreement to particular institutions or classes (s 11). Once an institution becomes a participating State institution, it is subject to a duty to provide information to the Commonwealth Operator (s 12(2)). State agencies broadly defined are also affected: they may be required or authorised to share information among themselves to facilitate compliance with Operator requests, and State secrecy laws are overridden in that context unless those laws are prescribed by regulations (s 12(3)-(4)). The Commonwealth Operator (the official administering the National Redress Scheme) benefits from the information‑sharing provisions: it can request information from participating State institutions and receive it despite any contrary State law. Survivors of institutional child sexual abuse are the ultimate beneficiaries, but the Act does not itself create any right to redress; it merely enables the Commonwealth scheme to operate in South Australia and preserves the availability of separate State redress mechanisms. The South Australian Government (including the Minister and the Governor) is affected in its administrative capacity: it may make regulations, give directions about the giving or withdrawal of agreement, and fix days for termination by proclamation. The State also retains the power to establish or maintain its own redress mechanisms (s 7), so survivors may have a choice between State and Commonwealth schemes, but the Act does not require them to choose one over the other. Courts and tribunals are affected in that their jurisdiction to grant compensation for institutional child sexual abuse is preserved as part of a State redress mechanism, and the Commonwealth cannot (through the amendment reference) legislate to limit that jurisdiction except in the specific excluded matters (s 7(3)). Non‑government institutions that are State institutions under the National Redress Act (likely including churches, schools, and other organisations that had a presence in South Australia) may become participating State institutions if the State agrees. They then become subject to information‑sharing obligations and may be affected by the release of civil liability provisions under the National Redress Act (excluded from the protection of State redress mechanisms). The regulations can expand or contract the definition of State agency, and can prescribe laws that will not be overridden by the information‑sharing provisions, giving the State executive some control over the scope of the Act’s operation.

The Act imposes few duties directly, but those it does impose are significant. A participating State institution has a duty to give information to the Commonwealth Operator when the Operator requests it for the purpose of processing an application under the National Redress Scheme (s 12(2)). This duty overrides any State law that would otherwise prevent disclosure, unless that State law is specifically prescribed by the regulations (s 12(4)). The duty is not unlimited: the request must be for information “in relation to an application under the National Redress Scheme”, so the Operator cannot make a general or speculative demand. The duty is also qualified by the power of the State to prescribe laws that will continue to block disclosure. A State agency has a right (but not a duty) to give information to another State agency to assist a participating State institution in complying with such a request (s 12(3)). This provision allows inter‑agency collaboration but does not compel it.

The State (through the Governor) has the right to terminate the adoption, the amendment reference, or both at any time by proclamation (s 9(1)). It also has the right to revoke such a proclamation before the fixed termination day (s 9(2)). This gives the State a unilateral exit, but the termination of the amendment reference before the adoption has limited effect: laws already made under the reference continue to operate, and the National Redress Act as amended by those laws continues in force (s 10(1)). The State also has the right to give or withdraw its agreement to participating State institutions (s 11). The regulations or the Minister may prescribe how agreement is given or withdrawn, and may authorise a person to give agreement on behalf of the State. The State’s agreement can be given for individual institutions or a class.

The State’s right to maintain its own redress mechanisms is a key right protected by the Act. The amendment reference does not include the making of a Commonwealth law that would prevent or limit the establishment or operation of any State redress mechanism (s 7(2)). This means the Commonwealth cannot, under the amendment reference, abolish or restrict the South Australian schemes for compensating victims of institutional child sexual abuse, whether they be statutory compensation schemes, ex‑gratia programs, or court‑based damages regimes. However, this protection does not extend to matters already covered by the original National Redress Act, the release of civil liability, disclosure of information, or payments under the scheme (s 7(3)). So if the original National Redress Act already deals with those matters, the Commonwealth may amend them in ways that affect State mechanisms.

The Commonwealth Operator has the right to request information from participating State institutions, and that request triggers the State’s duty to provide it. The Operator’s right is limited by the purpose of the request (relating to an application) and by the possibility that the State may prescribe a law that blocks disclosure.

Survivors have no direct rights under this Act. They may have rights under the National Redress Act (e.g., to apply for redress) and under State redress mechanisms, but this Act does not create or modify those rights. It only ensures the constitutional foundation for the Commonwealth scheme’s operation in South Australia and preserves the State’s ability to run its own schemes.

The Act creates no penalties of its own. It does not set fines, imprisonment, infringement notices, or any administrative sanctions for non‑compliance. Enforcement of the National Redress Scheme itself is left entirely to the Commonwealth National Redress Act, which likely contains penalties for false statements, failure to comply with information requests, or misuse of information. The South Australian Act merely provides the constitutional cover and the information‑sharing authorisation. The consequence of a participating State institution failing to provide information to the Operator would be governed by the Commonwealth Act: it may be a civil penalty or a breach of a scheme condition, but those details are not in this source text. The only enforcement mechanism present in this Act is the Governor’s power to terminate the adoption or amendment reference by proclamation (s 9). That is a blunt instrument: if the State is dissatisfied with how the scheme operates, it can withdraw its constitutional consent, but that would affect all institutions and survivors, not just a particular non‑compliant entity. Information‑sharing obligations are supported by the override of State secrecy laws (s 12(4)). If a State agency refuses to share information because of a State secrecy law that is not prescribed in the regulations, that refusal would be ineffective: the law is overridden, so the agency would have no legal excuse for withholding. But the Act does not say what happens if the agency withholds anyway. There is no penalty prescribed. The remedy would likely be in the form of a direction from the State government or perhaps an action for breach of the National Redress Act (if the Commonwealth Act imposes a duty). The regulations can prescribe which State laws are not overridden, giving the State a way to carve out certain secrecy protections (s 12(4)). That is a potential source of contest: the State could choose to insulate sensitive information from disclosure, but that would then make non‑compliance lawful. There is no private right of action for survivors under this Act. If a survivor is aggrieved that a State institution did not cooperate with the Operator, their recourse would be under the Commonwealth scheme, not this Act. The Act also does not create any offence for the State institutions or agencies to misuse information; the National Redress Act would likely cover that. In summary, the South Australian Act is a constitutional and administrative facilitation, not a penal statute.

The Act interacts primarily with the Commonwealth National Redress Act, State secrecy and privacy laws, and other State redress legislation. Under s 4(1), the relevant version of the National Redress Act is adopted as a Commonwealth law applicable in South Australia, so that Act operates in the State as a law of the Commonwealth. The adoption gives that Act full force in South Australia, subject to its own terms and to the termination provisions. The amendment reference under s 5 allows the Commonwealth to later amend the National Redress Act, but only by express textual amendments. Those amendments then become part of the adopted law. The effect is that the National Redress Act as amended from time to time (within the limits of the reference) applies in South Australia. The interaction with State laws is most evident in the information‑sharing provisions. Section 12(4) provides that nothing in a law of the State prevents a participating State institution from giving information to the Operator, or a State agency from sharing information with another State agency for the purpose of assisting compliance, unless that law is prescribed by the regulations. This is a direct override of any State law that would otherwise prohibit or restrict such disclosure. It is a classic example of a State referring power to the Commonwealth and then also legislating to remove impediments within its own jurisdiction. However, the override is not absolute: the State can prescribe specific laws that will persist, preserving confidentiality requirements for certain sensitive information (e.g., child protection records, medical privacy laws). The Act does not affect Commonwealth laws generally; it only relates to the National Redress Act. The reference under s 5 also preserves the operation of other Commonwealth laws: s 6 states that it is the intention that the National Redress Act may be amended otherwise - by Commonwealth laws based on other heads of power, or by instruments under the Act - independently of the amendment reference. So the Commonwealth can still amend the scheme using its other constitutional powers (e.g., corporations power, external affairs power) without needing the State’s referral. The Act also interacts with State redress mechanisms. Section 7 ensures that the Commonwealth cannot, through the amendment reference, make a law that would prevent or limit the operation of any State scheme for victims of institutional child sexual abuse. That includes schemes established by the State Parliament or government, and also the jurisdiction of courts or tribunals to grant compensation. However, this protection does not extend to certain matters already regulated by the original National Redress Act: the release of civil liability, disclosure of evidence, and payments under the scheme. Those matters can be amended even if they affect State mechanisms. The State’s own mechanism can therefore be curtailed by Commonwealth amendments on those specific topics. The Act also requires the State’s agreement for any Commonwealth amendment that would substantively remove or override a provision of the National Redress Act that requires the agreement of the State (s 8). If the Commonwealth attempts such an amendment without the State’s agreement, it is outside the reference and would not be covered by the constitutional referral, potentially invalidating that amendment. This creates a layer of negotiated protection: the State can veto certain changes to the scheme.

The Act itself has not been amended since its enactment. The legislative history provided in the source shows only the principal Act: National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018, Act No. 15 of 2018, assented on 27 September 2018 and commenced on 22 November 2018 by Gazette proclamation. No amendment Acts are listed, and the text of the Act as provided does not include any amendments. The Act’s structure is static: it is a single‑purpose referral that does not appear to have been adjusted to reflect any changes in the Commonwealth scheme or in State policy. The absence of amendments may be because the Act’s design is intentionally simple: it gives the Governor power to terminate the adoption or reference by proclamation, so the State can adjust its involvement without legislative amendment. The regulations under s 13 can be made and amended without amending the principal Act, and the regulations can prescribe matters like which State laws are not overridden (s 12(4)), which bodies are State agencies (s 12(1)), and how agreement is given or withdrawn (s 11). So the Act’s practical operation can be varied through subordinate legislation. The amendment reference itself allows the Commonwealth to amend the National Redress Act, and those amendments then apply in South Australia under the original adoption, but the South Australian Act has not needed to be updated to reflect those Commonwealth amendments because the referral mechanism handles them. The Act does not contain a sunset clause; it continues until the Governor terminates it. There is no indication in the source of any proposed or enacted amendments.

The source text does not refer to any litigation, and no cases are cited in the Act. The Act is a piece of State legislation that primarily operates as a constitutional referral, so it is unlikely to generate litigation directly. However, potential areas of dispute may arise, though none are recorded in the provided material. One possible ground for litigation would be whether a Commonwealth amendment exceeds the scope of the amendment reference. For example, if the Commonwealth enacted an amendment that affected a State redress mechanism in a way not covered by the s 7(3) exceptions, a State or a survivor might challenge the validity of that amendment as beyond the referred power. Another area could be whether a Commonwealth law is an “express amendment” as defined; if it is a free‑standing provision with substantive effect outside the text, it might not be covered by the reference and could be invalid if not supported by another head of Commonwealth power. The State’s ability to give or withdraw agreement under s 11 could also lead to administrative law challenges if a particular institution or survivor claims that the agreement was not properly given or evidenced. The information‑sharing override under s 12(4) could be tested if a State agency refuses to disclose information citing a privacy law that has not been prescribed. The court would then need to interpret whether the law is overridden. The termination provisions under s 9 might be challenged if the Governor fixed a day without proper process, though proclamation is a discretionary power. None of these scenarios has produced reported litigation in the source text. The Act is relatively young (enacted 2018) and the National Redress Scheme itself has been subject to public debate and review, but constitutional challenges to referral acts are rare because they are typically negotiated and formally correct. The absence of litigation history suggests the Act has operated without major legal dispute, but that does not preclude future challenges.

There are several traps for the unwary practitioner or institution. The adoption is limited to the “relevant version” of the National Redress Act. That version is the Act as originally enacted plus amendments made before the assent day (27 September 2018). Any amendments made by the Commonwealth after that date but before the commencement of this Act (22 November 2018) are included only if enacted before the assent day. So the adoption is frozen as at 27 September 2018. Later amendments (post‑27 September 2018 but pre‑commencement) are not automatically adopted; they would need to be covered by the amendment reference. This creates a gap: if the Commonwealth amended the National Redress Act between 27 September and 22 November 2018, those amendments are not part of the “relevant version” unless the amendment reference picks them up. The amendment reference only covers future amendments (after commencement), so there could be a period where the adopted Act is out of sync with the Commonwealth Act. The amendment reference only covers express amendments. The Commonwealth cannot, under this reference, enact a provision that deals with redress but is not part of the National Redress Act’s text. If the Commonwealth wants to create a related scheme in a separate Act, it would need a different referral or another head of power. The protection for State redress mechanisms has loopholes. Section 7(2) says the amendment reference does not include making a law that would prevent or limit a State redress mechanism. However, s 7(3) carves out several matters: any matter to which the original National Redress Act relates, the release of civil liability, disclosure of information, and payments. If the Commonwealth amends the National Redress Act to, say, require that survivors who accept a Commonwealth payment are barred from applying to a State scheme (a matter relating to the original Act’s scope), that amendment would be within the reference and could limit the State mechanism. The protection is not absolute. The State’s agreement requirement is limited. Section 8 excludes from the amendment reference any law that would “substantively remove or override” a provision of the National Redress Act that requires the State’s agreement. But “substantively remove or override” is not defined, and the provision does not cover procedural changes or minor modifications. The State might lose control if the Commonwealth makes technical amendments that erode the agreement requirement. Information‑sharing overrides may have unintended consequences. Section 12(4) overrides any State law unless that law is prescribed by regulations. If the regulations do not prescribe a particular privacy law, then that law is overridden. A State agency may inadvertently disclose personal information that should have been protected because the list of prescribed laws is incomplete or because the regulations have not been updated. Conversely, if the regulations prescribe too many laws, the Operator may not get the information needed, potentially breaching the scheme’s requirements. The definition of State agency is flexible. It includes any body prescribed by regulations as within the definition, and excludes any prescribed as not within. This means the government can enlarge or shrink the class of entities subject to information‑sharing obligations without amending the Act, creating uncertainty for bodies that could be added or removed. Termination of the amendment reference does not undo past changes. If the State terminates the amendment reference, laws already made under that reference continue to operate (s 10(1)(a)). The National Redress Act as amended by those laws remains in force in South Australia. The State cannot retroactively undo amendments it later dislikes; it can only prevent future amendments. The Act does not create a private right of action. Survivors cannot sue a State institution under this Act for failing to cooperate with the Operator. Their only remedy would be under the Commonwealth Act, which may have limited enforcement mechanisms.

Compliance with this Act is largely passive and administrative for the State government and its agencies. For participating State institutions, the key obligation is to respond to information requests from the Commonwealth Operator made under the National Redress Act. The institution must have mechanisms in place to identify such requests, retrieve the relevant information, and provide it to the Operator within the timeframes set by the Commonwealth scheme. The Act overrides any State law that would block that disclosure, but only if that law is not prescribed by the regulations. Institutions should check the current regulations under this Act to see which, if any, State secrecy or privacy laws are preserved. If a law is preserved, the institution cannot disclose the information unless an exception under that law applies. If no law is prescribed, the institution must disclose despite any contrary State law. The institution should also ensure it only provides information in relation to an application under the scheme, not for any other purpose. State agencies that are not participating State institutions may receive requests from other agencies to share information to assist a participating institution’s compliance. They should cooperate, but only if the disclosure is for that purpose. They must also check the regulations for any preserved laws. The State government should periodically review the regulations to ensure that the list of prescribed laws (laws that are not overridden) reflects current policy, balancing the need for information flow against legitimate privacy and confidentiality concerns. The government should also maintain a register of State institutions that have been given agreement to participate, and ensure that the agreement is properly evidenced under s 11. The Minister may give directions on how agreement is given or withdrawn; those directions must be followed. If the government decides to terminate the adoption or reference, the Governor must issue a proclamation fixing a day for termination and publish it. A revoking proclamation can be issued before that day if circumstances change. The government should also be aware that termination of the amendment reference does not affect existing laws under that reference, so it cannot use termination to undo past amendments. Survivors and their representatives do not need to comply with this Act, but they should understand its limitations. The Act does not create any duty on the State to provide redress; it only enables the Commonwealth scheme and preserves State schemes. Survivors should apply through the National Redress Scheme and also check if any State redress mechanism exists. They cannot use the Act to compel disclosure of information from a State institution. Legal practitioners advising institutions should review the National Redress Act for additional obligations (like reporting requirements, audits, or conditions of participation) and advise their clients to maintain records and respond promptly to Operator requests. They should also monitor any changes to the regulations under this Act, as the list of preserved laws can change.