Discussion of whether the Child Sex Abuse (Justice for Survivors) Act 2016 (Cth) is constitutionally valid

The Commonwealth Government believes that the evidence presented to the Royal Commission into Institutional Responses to Child Sex Abuse is shocking. The Royal Commission is ongoing and is not due to present its Final Report for several more months. Based on the evidence to the Royal Commission revealed so far, the Commonwealth Government has formed the view that there is a national crisis relating to the cover up of extensive child sex abuse by churches and other institutions such as charities, orphanages and sporting associations. A report from the Commonwealth Treasury has found that the emotional and psychological trauma experienced by the survivors of child sex abuse and the fact that many victims take their own lives causes a significant reduction in the productivity of the Australian workforce. This harms the Australian economy. The economic cost of lost productivity is estimated at about $100 million per year. The Commonwealth Government believes that some of the emotional and psychological trauma experienced by survivors may be alleviated if the institutions involved in the cover ups face harsh consequences. The Commonwealth Government believes that this will reduce losses in workforce productivity. The Commonwealth Parliament enacts the Child Sex Abuse (Justice for Survivors) Act 2016, which provides: 1. This Act may be cited as the Child Sex Abuse (Justice for Survivors) Act 2016. 2. The object of this Act is to implement measures to ensure that institutions involved in the cover up of child sex abuse face serious consequences in order to: a. provide justice to the survivors of child sex abuse, and b. address the national crisis such cover ups have caused to the mental health of Australians and to the Australian economy. 3. The Prime Minister may appoint a person to be the Officer for Cover Up Redress if, and only if: a. The person is a judge of the Federal Circuit Court of Australia, and b. The person consents to his or her appointment as Officer for Cover Up Redress. 4. The Officer for Cover Up Redress holds office at the pleasure of the Prime Minister. 5. The Officer for Cover Up Redress is not subject to direction in the performance of his or functions as Officer for Cover Up Redress. 6. The functions of the Officer for Cover Up Redress are: 4 a. To investigate, at the request of the Prime Minister, any allegation that an institution, organisation or association has participated in the cover up of child sex abuse. The conduct of the investigation shall be by such methods as the Officer for Cover Up Redress thinks fit and is not subject to the rules of evidence. b. To publish a report at the completion of an investigation setting out findings in relation to any allegation. The content of the report must be limited to: i. stating whether or not in the opinion of the Officer for Cover Up Redress an institution, organisation or association has participated in the cover up of child sex abuse, and ii. making recommendations about changes to laws, policies or practices that may, in the opinion of the Office for Cover Up Redress, be conducive to preventing the covering up of child sex abuse in the future. c. Determine the quantum, not exceeding $1 million, of a redress payment an institution, organisation or association that has participated in the cover up of child sex abuse is to pay to the Commonwealth. The Officer for Cover Up Redress shall made this determination on the basis of an assessment of the seriousness of the cover up of child sex abuse. 7. A redress payment payable by an institution, organisation or association is a civil debt and is payable to the Commonwealth within three months of the determination. 8. In this Act: a. “child sex abuse” means any sexual or indecent activity involving a child that is an offence under a law of the Commonwealth, a State or a Territory. b. “cover up” means any action or inaction intended or likely to result in the existence of child sex abuse not coming to the attention of law enforcement authorities. Meanwhile, the New South Wales Government thinks the Commonwealth legislation is flawed because only the Prime Minister can initiate an investigation. The New South Wales Parliament enacts the Consequences for Cover Ups Act 2016, which provides: 1. This Act may be cited as the Consequences for Cover Ups Act 2016. 2. The object of this Act is to implement measures to ensure that institutions involved in the cover up of child sex abuse face serious consequences in order to: a. provide justice to the survivors of child sex abuse, and b. address the national crisis such cover ups have caused to the mental health of Australians and to the New South Wales economy. 5 3. The Premier may file a statement in the registry of the Supreme Court of New South Wales alleging that an institution, organisation or association has participated in the cover up of child sex abuse that has occurred within New South Wales. 4. The Supreme Court has the following functions in relation to an allegation filed under section 3: a. Determining, on the balance of probabilities, whether the allegation is true. b. Publishing the determination made under sub-section (a). That determination must not include any matter or material other than a statement as to whether the allegation is proved or not proved, as the case may be. 5. This section applies to proceedings in the Supreme Court in relation to an allegation filed in accordance with section 3. a. The Supreme Court may receive evidence certified by the Premier or the Commissioner of the New South Wales Police Force as confidential information, and must not disclose the substance of that information to any person. 6. Any person who was a member with authority of an institution, organisation or association that is determined under section 4 to have engaged in cover up of child sex abuse is guilty of an offence. Maximum penalty: $50,000 fine 7. In this Act: a. “child sex abuse” means any sexual or indecent activity involving a child that is an offence under a law of the Commonwealth, a State or a Territory. b. “cover up” means any action or inaction intended or likely to result in the existence of child sex abuse not coming to the attention of law enforcement authorities. c. “member with authority” means any person possessing executive level authority within an institution, organisation or association. You are a barrister specialising in constitutional law. Solicitors for a religious organisation, which fears it may be subject to the new legislation, seek your opinion in relation to: 1. Whether the Child Sex Abuse (Justice for Survivors) Act 2016 (Cth) is constitutionally valid, and 2. Whether the Consequences for Cover Ups Act 2016 (NSW) is constitutionally valid. Provide written legal advice.