HMB24 v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2025] FCA 278 (Link to JADE)
In August 2020, the applicant applied to the respondent for redress under the Scheme. 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 applicant applied for a review of the original determination. On 7 February 2023, a delegate affirmed the original determination (review determination).
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.
Longbottom J was satisfied that the Court had jurisdiction, and it was appropriate to make the orders promoted by the parties for the reasons that follow.
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”. 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.
As stated at [23]:
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.
Various orders were made, including an order such that the redress application be returned, for determination according to law.
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