Judgment by Federal Court of Australia quashes determination of the National Redress Scheme and orders a reassessment: Brooks v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2024] FCA 725
By Mathisha Panagoda and Lauren Flint
In an unprecedented judgment, the Federal Court of Australia has quashed a determination by the National Redress Scheme on an applicant's claim for redress.
In brief
In an unprecedented judgment, the Federal Court of Australia (FCA) has quashed a determination by the National Redress Scheme (NRS) on an applicant's claim for redress. The FCA found that the NRS made a jurisdictional error in its original determination of the applicant's ineligibility for redress and ordered that the NRS reassess the applicant's claim afresh.
Judgment
On 5 July 2024, his Honour Justice Logan handed down a public judgment requiring that the NRS revisit and reassess an applicant's claim for redress and ordering that it pay the applicant's costs. This matter was heard "on the papers" ie, without any in person hearing.
The applicant applied to the NRS for redress citing allegations of sexual abuse perpetrated whilst he was a child in the care of a particular institution. To be eligible for redress an applicant must have suffered "sexual" abuse. The NRS determined that the applicant was ineligible for redress on the basis that the abuse he alleged was not "sexual" in nature. The applicant was unsuccessful in his subsequent requests to the NRS for a review of its determination of his ineligibility.
At [15] his Honour provides a brief description of the applicant's allegations:
…[the applicant] "described an act of very particular violence inflicted upon him at the institution concerned by one alleged abuser (the husband of the other) in the presence of another (the wife) and to his belief, based on demeanour, that the abusers may have been getting sexual gratification from that. He also attested, based on his experience of the incident, that the violent abuse was a way for his abusers to “break me down in order to perpetrate further sexual abuse against me”."
The applicant applied to the FCA under section 39B(1) of the Judiciary Act 1903 (Cth) seeking a judicial review of the NRS's determination of ineligibility. The aetiology of the proceeding is not addressed with any specificity in the judgment, nor are the parties' submissions (for protected information purposes), however, it is noted that early attempts at alternative dispute resolution were unsuccessful and that just prior to the hearing date, both parties consented to the following:
-
The NRS's original determination of the applicant's ineligibility be quashed (certiorari);
-
The NRS is to reassess the applicant's application for redress afresh (mandamus); and
-
Orders that the NRS pay the applicant's costs.
His Honour ultimately agreed to these orders and the judgment sets out his reasoning for same.
The focus of the judgment was the applicant's assertion that his abusers, both the husband and wife, had been getting sexual gratification from the infliction of this violent act upon him. This was just one of the reasons the applicant asserted that his alleged abuse was "sexual" in nature.
The jurisdictional error was the NRS only considering, in its written reasons for the applicant's ineligibility, whether the wife gained sexual gratification from the act of violence in question. The NRS failed to address whether the husband gained sexual gratification. See below at [16]:
"… a passage in the reasons given for the Original Determination in which it is patent that the decision-maker has focussed solely upon the wife. It is stated, “I have no doubt from [the applicant]'s account that [the wife] was complicit in the physical abuse meted out by her husband; however, I am unable to find that she gained sexual gratification from observing the mistreatment.” That the violent abuse may have been for the sexual gratification of the husband was not addressed by the decision-maker."
The Court determined that this was a jurisdictional error. The NRS did not discharge its statutory duty to the applicant (to make a determination and approve, or not approve the application) and possibly also did not afford the applicant procedural fairness by failing to consider the whole of his application and the various integers within.
Conclusion
Until recently, applicants and institutions participating in the NRS were not privy to the NRS's reasoning for its determinations. This additional transparency may see more NRS determinations being challenged by both applicants and institutions in the Courts due to actual or perceived errors.