Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Hansard source

The government won't be supporting this amendment, and I think it's important to carefully set out the basis upon which the government does not support the amendment. Consistent with the recommendations of the royal commission, the scheme's legislation defines sexual abuse:

sexual abuse of a person who is a child includes any act which exposes the person to, or involves the person in, sexual processes beyond the person's understanding or contrary to accepted community standards.

That is the definition for the purpose of the operation of the scheme. Of course, the course of conduct that Senator Shoebridge has outlined is—I'm not sure that there are the correct words to describe that course of conduct. It is open of course to the states and territories. Senator Shoebridge referred to the United Kingdom, in its criminal code, providing for a specific reference to this behaviour, so-called virginity testing, as having a special callout and treatment under the criminal law. That is open to the jurisdictions that deal with those kinds of offences in Australia.

But the bill in front of the chamber now is to deal with the operations of the scheme itself. Applications are assessed by independent decision-makers on a case-by-case basis, informed by the definition that I set out just a moment ago. They are considered by those independent decision-makers on a case-by-case basis once the relevant information from both the applicant and the institution is considered. The scheme cannot direct an independent decision-maker to find that an application is eligible.

Importantly, legislating that one category of abuse is automatically considered to be within the definition of sexual abuse fundamentally changes the basis upon which the whole scheme is designed, and it undermines the scheme's current administrative decision-making basis. It would effectively establish a hierarchy of survivors and send a message that one identified subgroup of survivors should receive preferential treatment or different treatment. This would set a precedent, and other survivor groups could be expected to call for similar treatment. Where a person's account of events falls within the description of sexual abuse under the redress act—I listened carefully to Senator Shoebridge's contribution—it is open to an independent decision-maker to determine the abuse as sexual abuse and, where all of the other criteria are met, make an offer of redress for that abuse.

With specific reference to intrusive internal examinations, the scheme provides guidance to independent decision-makers to support such a decision where a purported medical procedure was involved. This guidance was updated in response to a recommendation of the second-anniversary review.