COMMONWEALTH REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2017

2016-2017

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Commonwealth Redress Scheme for

Institutional Child Sexual Abuse Bill

2017

No. , 2017

(Social Services)

A Bill for an Act to establish the Commonwealth

Redress Scheme for Institutional Child Sexual

Abuse, and for related purposes

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Contents

Chapter 1--Introduction

Part 1-1--Introduction

Division 1--Preliminary

Short title ........................................................................................... 2

Commencement ................................................................................. 2

Division 2--Objects of this Act

Objects of this Act ............................................................................. 3

Division 3--Simplified outline of this Act

Simplified outline of this Act ............................................................ 4

Division 4--Application of this Act

Concurrent operation with State or Territory laws ............................ 6

Extra-territorial application and extension to external

Territories .......................................................................................... 6

Crown to be bound ............................................................................ 6

Part 1-2--Definitions

Division 1--Simplified outline of this Part

Simplified outline of this Part ............................................................ 7

Division 2--The Dictionary

The Dictionary ................................................................................... 8

Chapter 2--The Commonwealth Redress Scheme for

Institutional Child Sexual Abuse

Part 2-1--Establishment of the scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 12

Division 2--Establishment of the scheme

Establishment of the scheme ........................................................... 13

Commonwealth Redress Scheme Operator ..................................... 13

General principles guiding actions of officers under the

scheme ............................................................................................. 13

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Part 2-2--Entitlement to redress under the scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 14

Division 2--Entitlement to redress under the scheme

When can a person be provided with redress? ................................. 15

When is a person eligible for redress? ............................................. 15

When is abuse within the scope of the scheme? .............................. 16

What redress is provided to a person? ............................................. 16

What is redress for? ......................................................................... 16

Part 2-3--Institutions participating in the scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 17

Division 2--Responsibility of institutions for abuse

When is a participating institution responsible for abuse? ............... 18

Division 3--Institutions participating in the scheme

Subdivision A--Participating institutions

What is a participating institution? .................................................. 20

Subdivision B--Commonwealth institutions

What is a Commonwealth institution? ............................................. 20

Subdivision C--Participating Territory institutions

What is a participating Territory institution? ................................... 21

What is a Territory institution? ........................................................ 21

Subdivision D--Participating non-government institutions of a

Territory

What is a participating non-government institution of a

Territory? ......................................................................................... 22

Division 4--Ministerial declarations about participating

institutions

Ministerial declarations about participating institutions .................. 23

Part 2-4--How to obtain redress under the scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 24

Division 2--Application for redress under the scheme

Application for redress .................................................................... 26

Only one application may be made .................................................. 26

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Withdrawal of application ............................................................... 26

Division 3--Operator to determine whether to approve the

application

Operator must make a determination on the application.................. 27

Working out the amount of redress payment and sharing of

costs ................................................................................................. 28

The assessment matrix ..................................................................... 29

Division 4--Notice of determination to applicant

Notice of determination to applicant ............................................... 31

Part 2-5--Offers and acceptance of redress

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 32

Division 2--Offers of redress

Offer of redress ................................................................................ 33

Acceptance period for offers of redress ........................................... 34

Division 3--Acceptance of offers of redress

Acceptance of offers of redress ....................................................... 35

Effect of acceptance on civil liability .............................................. 35

Notice of acceptance of offer to liable participating

institutions ....................................................................................... 36

Declining offers of redress .............................................................. 36

Part 2-6--Provision of redress under the scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 38

Division 2--The redress payment

Operator must pay the redress payment ........................................... 39

Protection of the redress payment--general .................................... 39

Additional protection of the redress payment--garnishee

orders ............................................................................................... 39

Division 3--Counselling and psychological services

Operator must enable access to counselling and

psychological services ..................................................................... 41

Access to counselling and psychological services under the

scheme ............................................................................................. 41

General principles guiding counselling and psychological

services ............................................................................................ 41

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Division 4--Direct personal responses

Direct personal response from liable participating institutions ........ 42

Direct personal responses under the scheme.................................... 42

General principles guiding provision of direct personal

responses ......................................................................................... 43

Chapter 3--Funding

Part 3-1--Liability for funding

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 44

Division 2--Appropriation

Appropriation .................................................................................. 45

Division 3--Funding contributions by participating institutions

Liability for funding contribution .................................................... 46

Funding contribution ....................................................................... 46

Redress component .......................................................................... 46

Scheme administration component .................................................. 47

When funding contribution is due for payment ............................... 47

Late payment penalty ...................................................................... 47

Payment of funding contribution and late payment penalty ............ 48

Waiver of funding contribution and late payment penalty ............... 48

Recovery of funding contribution and late payment penalty ........... 48

Internal review of certain decisions ................................................. 49

Part 3-2--Funders of last resort

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 50

Division 2--Funders of last resort

Commonwealth as funder of last resort ........................................... 51

Self-governing Territory as funder of last resort ............................. 51

Chapter 4--Administrative matters

Part 4-1--Obtaining information for the purposes of the

scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 53

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Division 2--Obtaining information for the purposes of the

scheme

Power to request information from applicants ................................. 54

Power to require information from institutions and others .............. 55

Refusal or failure to comply with requirement ................................ 56

Division 3--Interaction with other laws

Obligations not affected by State or Territory laws ......................... 58

Interaction with Commonwealth laws ............................................. 58

Part 4-2--Protecting information under the scheme

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 59

Division 2--Use and disclosure of information under the scheme

Protected information ...................................................................... 60

Main authorisations for obtaining, recording, disclosing or

using protected information ............................................................. 60

Additional authorisation--disclosure by the Operator in

certain circumstances ....................................................................... 61

Additional authorisation--disclosure for the purposes of law

enforcement or child protection ....................................................... 62

Additional authorisation--insurance purposes etc........................... 64

Additional authorisation--disclosure to the nominee ...................... 64

Offence--unauthorised access to protected information ................. 65

Offence--unauthorised recording, disclosure or use of

protected information ...................................................................... 65

Offence--soliciting disclosure of protected information ................. 65

Offence--offering to supply protected information ........................ 66

Protection of certain documents from production to court etc. ........ 66

Part 4-3--Internal review of determinations

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 67

Division 2--Internal review of determinations

Application for internal review of redress determination ................ 68

Internal review of redress determination ......................................... 68

Withdrawal of application for review .............................................. 69

Date of effect of review determination ............................................ 69

Notice of review determination ....................................................... 69

Interaction between internal review and offer of redress ................. 69

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Part 4-4--Nominees

Division 1--Simplified outline of this Part

Simplified outline of this Part .......................................................... 71

Division 2--Appointment of nominees

Appointment of nominees ............................................................... 72

Suspension and cancellation of nominee appointments ................... 72

Division 3--Duties, functions and responsibilities of nominees

Duty of nominee .............................................................................. 74

Actions of correspondence nominee ................................................ 74

Giving notices to correspondence nominee ..................................... 75

Nominee to inform Operator of matters affecting ability to

act as nominee ................................................................................. 75

100

Statement by payment nominee regarding disposal of money ......... 76

Division 4--Payment to payment nominee

101

Payment of redress payment to payment nominee ........................... 78

Division 5--Other matters relating to nominees

102

Protection of person against liability for actions of nominee ........... 79

103

Protection of nominee against criminal liability .............................. 79

104

Notification to nominee where notice given to person .................... 79

Part 4-5--Debt recovery

Division 1--Simplified outline of this Part

105

Simplified outline of this Part .......................................................... 80

Division 2--Debt recovery

106

Debts due to the Commonwealth ..................................................... 81

107

Legal proceedings ............................................................................ 81

108

Arrangement for payment of debt .................................................... 81

109

Recovery of amounts from financial institutions ............................. 82

Part 4-6--Other administrative matters

Division 1--Simplified outline of this Part

110

Simplified outline of this Part .......................................................... 84

Division 2--Regulatory powers

111

Civil penalty provisions ................................................................... 85

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Chapter 5--Other matters

Part 5-1--Exceptional cases

Division 1--Simplified outline of this Part

112

Simplified outline of this Part .......................................................... 86

Division 2--Death of person before acceptance of redress offer

113

Person dies before determination is made on application for

redress.............................................................................................. 87

114

Person dies before offer of redress is accepted or declined ............. 88

115

Entitlement to redress payment ....................................................... 88

Part 5-2--The Commonwealth Redress Scheme Rules

Division 1--Simplified outline of this Part

116

Simplified outline of this Part .......................................................... 89

Division 2--The Commonwealth Redress Scheme Rules

117

The Commonwealth Redress Scheme Rules ................................... 90

Part 5-3--Other matters

Division 1--Simplified outline of this Part

118

Simplified outline of this Part .......................................................... 91

Division 2--Delegation

119

Delegation by the Minister .............................................................. 92

120

Delegation by the Operator .............................................................. 92

Division 3--Independent decision-makers

121

Engaging persons to be independent decision-makers ..................... 93

Division 4--Reporting to Parliament

122

Annual report on operation of the scheme ....................................... 94

Division 5--Treatment of unincorporated participating

non-government institutions of a Territory

123

Treatment of participating non-government institutions that

are partnerships ................................................................................ 96

124

Treatment of participating non-government institutions that

are unincorporated associations ....................................................... 96

Division 6--Miscellaneous

125

Operator's decisions to be in writing ............................................... 98

126

Method of notification by Operator ................................................. 98

127

Operator not required to make a determination ............................... 98

Chapter 1 Introduction

Part 1-1 Introduction

Division 1 Preliminary

Section 1

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

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Chapter 1--Introduction

Part 1-1--Introduction

Division 1--Preliminary

1 Short title

This Act is the Commonwealth Redress Scheme for Institutional

Child Sexual Abuse Act 2017.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of

this Act

1 July 2018.

1 July 2018

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

Introduction Chapter 1

Introduction Part 1-1

Objects of this Act Division 2

Section 3

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Division 2--Objects of this Act

3 Objects of this Act

(1) The main objects of this Act are to:

(a) recognise and alleviate the impact of past institutional child

sexual abuse and related abuse; and

(b) provide justice for the survivors of that abuse.

(2) For the purposes of achieving those objects, the objects of this Act

are also:

(a) to establish the Commonwealth Redress Scheme for

Institutional Child Sexual Abuse; and

(b) to provide redress under the scheme that includes:

(i) providing a monetary payment to survivors as a tangible

means of recognising the wrong survivors have

suffered; and

(ii) providing access to counselling and psychological

services to survivors; and

(iii) facilitating a direct personal response to survivors from

the participating institutions responsible; and

recommendations of the Royal Commission into Institutional

Responses to Child Sexual Abuse.

Chapter 1 Introduction

Part 1-1 Introduction

Division 3 Simplified outline of this Act

Section 4

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Bill 2017

No. , 2017

Division 3--Simplified outline of this Act

4 Simplified outline of this Act

This Act establishes the Commonwealth Redress Scheme for

Institutional Child Sexual Abuse to provide redress to survivors of

past institutional child sexual abuse.

Redress under the scheme is for abuse that is within the scope of

the scheme. For abuse of a person to be within the scope of the

scheme, it must have occurred when the person was a child, it must

have occurred before the start of the scheme (1 July 2018), and one

or more institutions participating in the scheme must be

responsible for it.

A participating institution is responsible for a person's abuse if the

abuse occurred in circumstances where the participating institution

is, or should be treated as being, primarily or equally responsible

for the abuser having contact with the person. Various

circumstances are relevant to determining that question (e.g.

whether the abuser was an official of the institution).

Abuse is only within the scope of the scheme if at least one

participating institution is responsible for it. The participating

institutions are:

(a)

all Commonwealth institutions; and

(b)

any Territory institution for which there is a Ministerial

declaration in force declaring the institution to be a

participating institution; and

(c)

any non-government institution of a Territory for which

there is a Ministerial declaration in force declaring the

institution to be a participating institution.

So, if another institution is responsible for the abuse, the abuse is

not within the scope of the scheme.

Introduction Chapter 1

Introduction Part 1-1

Simplified outline of this Act Division 3

Section 4

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

While redress is for all abuse of a person that is within the scope of

the scheme (both sexual and non-sexual abuse), to be eligible for

redress a person must have been sexually abused as a child.

Redress under the scheme consists of 3 elements:

(a)

a redress payment (of up to $150,000); and

(b)

access to counselling and psychological services; and

(c)

a direct personal response from each participating

institution responsible for the abuse.

The Commonwealth Redress Scheme Operator is responsible for

the administration of the scheme. To ensure that the scheme is

survivor-focussed, the Operator (and other officers under the

scheme) must take into account general guiding principles when

taking action under the scheme. For example, one of the principles

is that redress must be assessed and provided so as to avoid further

harming or traumatising the person.

Participating institutions that are determined by the Operator to be

responsible for the abuse of a person are liable for the costs of

providing redress to the person. Participating institutions are also

liable for contributing to the administration costs of the scheme.

The Operator is responsible for recovering those costs from

participating institutions through funding contributions, which the

participating institutions are required to pay on a quarterly basis.

Chapter 1 Introduction

Part 1-1 Introduction

Division 4 Application of this Act

Section 5

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Division 4--Application of this Act

5 Concurrent operation with State or Territory laws

This Act does not exclude or limit the operation of a law of a State

or Territory to the extent that the law is capable of operating

concurrently with this Act.

6 Extra-territorial application and extension to external Territories

(1) This Act applies both within and outside Australia.

(2) This Act extends to every external Territory.

7 Crown to be bound

This Act binds the Crown in each of its capacities.

Introduction Chapter 1

Definitions Part 1-2

Simplified outline of this Part Division 1

Section 8

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Part 1-2--Definitions

Division 1--Simplified outline of this Part

8 Simplified outline of this Part

Many terms used in this Act are defined to have a particular

meaning for this Act. For this reason, this Act has a Dictionary (in

section 9).

The Dictionary is a list of every term that is defined in this Act. A

term will either be defined in the Dictionary itself, or in another

provision of this Act. If another provision defines the term, the

Dictionary will have a signpost to the provision that has that

definition.

Chapter 1 Introduction

Part 1-2 Definitions

Division 2 The Dictionary

Section 9

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Bill 2017

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Division 2--The Dictionary

9 The Dictionary

In this Act:

abuse means sexual abuse or non-sexual abuse.

abuser: a person is the abuser of another person if the person

abuses the other person.

acceptance period: see section 38.

assessment matrix: see subsection 34(2).

child means a person under 18.

civil penalty provision has the same meaning as in the Regulatory

Powers Act.

Commonwealth company has the same meaning as in the Public

Governance, Performance and Accountability Act 2013.

Commonwealth institution: see section 23.

Commonwealth Redress Scheme Agreement means the

Intergovernmental Agreement on the Commonwealth Redress

Scheme for Institutional Child Sexual Abuse, as in force from time

to time.

Commonwealth Redress Scheme Operator: see the definition of

Operator.

correspondence nominee means a person who is appointed as a

correspondence nominee under subsection 94(1).

eligible: see section 16.

entitled: see subsection 15(2).

Introduction Chapter 1

Definitions Part 1-2

The Dictionary Division 2

Section 9

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

financial institution means a corporation that is an ADI for the

purposes of the Banking Act 1959.

funder of last resort:

(a) for when the Commonwealth is the funder of last resort for a

non-government institution of a Territory--see section 66;

and

(b) for when a self-governing Territory is the funder of last resort

for a non-government institution of a Territory--see

section 67.

funding contribution: see section 56.

Human Services Department means the Department administered

by the Minister administering the Human Services (Centrelink) Act

1997.

independent decision-maker: see subsection 121(3).

institution means:

(a) any body, entity, group of persons or organisation; or

(b) any combination of bodies, entities, groups of persons or

organisations;

whether or not incorporated, but does not include an individual or a

family.

nominee means a correspondence nominee or a payment nominee.

non-government institution of a Territory: see subsection 26(2).

non-sexual abuse includes physical abuse, psychological abuse

and neglect.

officer of the scheme means a person performing duties, or

exercising powers or functions, under or in relation to this Act.

official of an institution means a person who is or has been an

officer, employee, member, volunteer or agent of the institution.

Chapter 1 Introduction

Part 1-2 Definitions

Division 2 The Dictionary

Section 9

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No. , 2017

Operator (short for Commonwealth Redress Scheme Operator)

means the Secretary of the Department in his or her capacity as

Operator of the scheme (as referred to in section 12).

original determination: see subsection 87(1).

participating institution: see section 22.

participating non-government institution of a Territory: see

subsection 26(1).

participating Territory institution: see section 24.

payment nominee means a person who is appointed as a payment

nominee under subsection 94(2).

protected information: see subsection 75(2).

quarter: see subsection 55(3).

redress: see subsection 18(1).

redress component: see section 57.

redress payment means a payment payable under section 44 or

115.

Regulatory Powers Act means the Regulatory Powers (Standard

Provisions) Act 2014.

related: non-sexual abuse of a person is related to sexual abuse of

the person if a participating institution is responsible for both the

sexual abuse and the non-sexual abuse of the person.

responsible: for when a participating institution is responsible for

abuse of a person, see section 21.

rules means the rules made by the Minister under section 117.

scheme means the Commonwealth Redress Scheme for

Institutional Child Sexual Abuse established under section 11.

scheme administration component: see subsection 58(1).

Introduction Chapter 1

Definitions Part 1-2

The Dictionary Division 2

Section 9

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

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scheme start day means 1 July 2018.

self-governing Territory means the Australian Capital Territory or

the Northern Territory.

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 (e.g. exposing a child to pornography).

sunset day: see subsection 129(1).

survivor means a person who has suffered sexual abuse that is

within the scope of the scheme.

Territory institution: see section 25.

this Act includes:

(a) the rules; and

(b) any other instrument made under this Act.

within the scope: for when abuse is within the scope of the

scheme, see section 17.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-1 Establishment of the scheme

Division 1 Simplified outline of this Part

Section 10

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Chapter 2--The Commonwealth Redress

Scheme for Institutional Child Sexual

Abuse

Part 2-1--Establishment of the scheme

Division 1--Simplified outline of this Part

10 Simplified outline of this Part

This Part formally establishes the Commonwealth Redress Scheme

for Institutional Child Sexual Abuse. It provides that the Operator

is responsible for operating the scheme. It also sets out general

principles that the Operator and other officers of the scheme must

take into account, for the benefit and protection of survivors, when

taking action under the scheme.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Establishment of the scheme Part 2-1

Establishment of the scheme Division 2

Section 11

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Division 2--Establishment of the scheme

11 Establishment of the scheme

The Commonwealth Redress Scheme for Institutional Child Sexual

Abuse is established.

12 Commonwealth Redress Scheme Operator

(1) The Secretary of the Department is the Commonwealth Redress

Scheme Operator.

(2) The Operator is responsible for operating the scheme.

13 General principles guiding actions of officers under the scheme

(1) This section sets out the principles that must be taken into account

by the Operator and other officers when taking action under, or for

the purposes of, the scheme.

(2) Redress under the scheme should be survivor-focussed.

(3) Redress should be assessed, offered and provided with appropriate

regard to:

(a) what is known about the nature and impact of child sexual

abuse, and institutional child sexual abuse in particular; and

(b) the cultural needs of survivors; and

(4) Redress should be assessed, offered and provided so as to avoid

further harming or traumatising the survivor.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-2 Entitlement to redress under the scheme

Division 1 Simplified outline of this Part

Section 14

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No. , 2017

Part 2-2--Entitlement to redress under the scheme

Division 1--Simplified outline of this Part

14 Simplified outline of this Part

For a person to be entitled to redress under the scheme, a number

of conditions need to be met.

First, the person must make an application for redress under the

scheme.

Then, the person must meet the eligibility criteria for redress.

These are that the person was sexually abused, the sexual abuse is

within the scope of the scheme and, at the time of the application,

the person is an Australian citizen or a permanent resident.

If the Operator considers that there is a reasonable likelihood that

the person is eligible for redress, the Operator must approve the

application and make an offer of redress to the person. The person

may accept or decline the offer.

If the person accepts the offer, then the person becomes entitled to

redress under the scheme. The person is also required to release all

the participating institutions determined by the Operator to be

responsible for the abuse from all civil liability for the abuse. Once

entitled, the person will be provided with redress under the scheme.

If the person declines the offer, then the person is not entitled to

redress under the scheme. The person is also not required to release

any institution from civil liability for the abuse.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Entitlement to redress under the scheme Part 2-2

Entitlement to redress under the scheme Division 2

Section 15

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Division 2--Entitlement to redress under the scheme

15 When can a person be provided with redress?

(1) A person can only be provided with redress under the scheme if the

person is entitled to redress.

(2) A person is entitled to redress under the scheme if:

(a) the person applies for redress under section 29; and

(b) the Operator considers that there is a reasonable likelihood

that the person is eligible for redress under the scheme (see

section 16 for eligibility); and

(d) the Operator makes an offer of redress to the person under

section 37; and

(e) the person accepts the offer in accordance with section 39.

16 When is a person eligible for redress?

(1) A person is eligible for redress under the scheme if:

(a) the person was sexually abused; and

(b) the sexual abuse is within the scope of the scheme (see

section 17); and

(within the meaning of the Australian Citizenship Act 2007)

at the time the person applies for redress.

Note:

To be eligible for redress, a person must have been sexually abused.

However, redress is for the sexual abuse, and related non-sexual

abuse, of the person that is within the scope of the scheme.

(2) A person is also eligible for redress under the scheme if this Act or

the rules prescribe that the person is eligible for redress under the

scheme.

(3) Despite subsections (1) and (2), a person is not eligible for redress

under the scheme if the rules prescribe that the person is not

eligible for redress under the scheme.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-2 Entitlement to redress under the scheme

Division 2 Entitlement to redress under the scheme

Section 17

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

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No. , 2017

17 When is abuse within the scope of the scheme?

Abuse of a person is within the scope of the scheme if:

(a) it occurred when the person was a child; and

(b) it occurred inside or outside Australia; and

(d) one or more of the following institutions is responsible for it:

(i) a Commonwealth institution;

(ii) a participating Territory institution;

(iii) a participating non-government institution of a

Territory.

Note:

For when a participating institution is responsible for abuse, see

section 21. For which institutions are participating institutions, see

section 22.

18 What redress is provided to a person?

(1) Redress for a person consists of 3 elements:

(a) a redress payment (of up to $150,000); and

(b) access to counselling and psychological services under the

scheme; and

institutions that are determined by the Operator under

paragraph 32(2)(b) to be responsible for the person's abuse.

Note:

A direct personal response is not available if the institution is no

longer in existence (see subsection 50(2)).

(2) A person who is entitled to redress under the scheme may choose

to accept 1, 2 or all 3 of those elements of redress.

19 What is redress for?

Redress for a person is for the sexual abuse, and related non-sexual

abuse, of the person that is within the scope of the scheme.

Note:

While redress is for both the sexual and related non-sexual abuse of a

person that is within the scope of the scheme, to be eligible for redress

in the first place, there must have been sexual abuse within the scope

of the scheme (see section 16).

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Institutions participating in the scheme Part 2-3

Simplified outline of this Part Division 1

Section 20

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

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Part 2-3--Institutions participating in the scheme

Division 1--Simplified outline of this Part

20 Simplified outline of this Part

For a person to be eligible for redress, at least one participating

institution must be responsible for the abuse of the person.

A participating institution is responsible for the abuse if the abuse

occurred in circumstances where the participating institution is, or

should be treated as being, primarily or equally responsible for the

abuser having contact with the person. Various circumstances are

relevant to determining that question (e.g. whether the abuser was

an official of the institution). Those circumstances are set out in

section 21. The rules can prescribe other circumstances in which a

participating institution is responsible for the abuse of a person.

The rules can also prescribe circumstances in which a participating

institution is not responsible for the abuse of a person.

There are 3 types of institutions that are participating institutions.

These are:

(a)

Commonwealth institutions (such as Commonwealth

Departments and bodies established under

Commonwealth law); and

(b)

Territory institutions (such as Territory Departments and

bodies established under Territory law); and

(c)

non-government institutions of a Territory (such as a

private body that is established in a Territory).

While all Commonwealth institutions are participating institutions,

Territory institutions and non-government institutions of a

Territory are only participating institutions if they opt in to the

scheme and the Minister makes a declaration under section 27 that

they are a participating institution.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-3 Institutions participating in the scheme

Division 2 Responsibility of institutions for abuse

Section 21

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 2--Responsibility of institutions for abuse

21 When is a participating institution responsible for abuse?

(1) For sexual abuse, or non-sexual abuse, of a person to be within the

scope of the scheme, a participating institution must be responsible

for the abuse (see paragraph 17(d)).

(2) A participating institution is responsible for sexual abuse or

non-sexual abuse of a person if the abuse occurred in

circumstances where the participating institution is, or should be

treated as being, primarily or equally responsible for the abuser

having contact with the person.

(3) Without limiting the circumstances that might be relevant for

determining under subsection (2) whether a participating institution

is, or should be treated as being, primarily or equally responsible

for the abuser having contact with the person, the following

circumstances are relevant:

(a) whether the abuse occurred:

(i) on the premises of the participating institution; or

(ii) where activities of the participating institution took

place; or

(iii) in connection with the activities of the participating

institution;

(b) whether the abuser was an official of the participating

institution when the abuse occurred;

care of the person when the abuse occurred;

(d) any other circumstances that are prescribed by the rules.

(4) For the purposes of subsection (2), a participating institution is, or

should be treated as being, primarily responsible for the abuser

having contact with the person if the institution is solely,

substantially or primarily responsible for that contact, even if there

are other institutions that, in a minor or tangential way, might also

have responsibility for that contact.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Institutions participating in the scheme Part 2-3

Responsibility of institutions for abuse Division 2

Section 21

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

(5) For the purposes of subsection (2), a participating institution is, or

should be treated as being, equally responsible for the abuser

having contact with the person if the institution is equally

responsible with one or more other institutions for that contact,

even if there are other institutions that, in a minor or tangential

way, might also have responsibility for that contact.

(6) A participating institution is responsible for sexual abuse or

non-sexual abuse of a person if the rules prescribe circumstances in

which a participating institution is, or should be treated as being,

responsible for the abuse of the person.

(7) Despite subsections (2) and (6), a participating institution is not

responsible for the sexual or non-sexual abuse of a person if it

occurs in circumstances prescribed by the rules as being

circumstances in which a participating institution is not, or should

not be treated as being, responsible for the abuse of the person.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-3 Institutions participating in the scheme

Division 3 Institutions participating in the scheme

Section 22

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 3--Institutions participating in the scheme

Subdivision A--Participating institutions

22 What is a participating institution?

Each of the following institutions is a participating institution:

(a) a Commonwealth institution;

(b) a participating Territory institution;

Subdivision B--Commonwealth institutions

23 What is a Commonwealth institution?

(1) An institution is a Commonwealth institution if it:

(a) is the Commonwealth, or is or was part of the

Commonwealth; or

(b) is or was a Commonwealth entity (within the meaning of the

Public Governance, Performance and Accountability Act

2013); or

the meaning of the Public Governance, Performance and

Accountability Act 2013); or

(d) is or was a body (whether or not incorporated) established by

or under a law of the Commonwealth; or

(e) is an institution that is prescribed by the rules as being a

Commonwealth institution.

(2) However, an institution is not a Commonwealth institution if it:

(a) is a body politic that is a self-governing Territory, or is or

was part of that body politic; or

(b) is or was a body corporate (other than a wholly-owned

Commonwealth company) that is or was registered under the

Corporations Act 2001 (including a body corporate taken to

be registered under that Act because of the operation of

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Institutions participating in the scheme Part 2-3

Institutions participating in the scheme Division 3

Section 24

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Chapter 10 of that Act (which is about transitional

provisions)); or

Commonwealth institution.

(3) Rules made for the purposes of paragraph (1)(e) or (2)(c) may

prescribe that an institution is, or is not, a Commonwealth

institution in relation to a period specified by the rules.

Subdivision C--Participating Territory institutions

24 What is a participating Territory institution?

An institution is a participating Territory institution if:

(a) the institution is a Territory institution; and

(b) a declaration is in force under subsection 27(1) that the

institution is a participating institution.

25 What is a Territory institution?

(1) An institution is a Territory institution if it:

(a) is a self-governing Territory, or is or was part of a

self-governing Territory; or

(b) is or was a body (whether or not incorporated) established by

or under a law of a self-governing Territory, or is or was part

of such a body; or

Territory institution.

(2) However, an institution is not a Territory institution if:

(a) the Commonwealth Redress Scheme Agreement specifies; or

(b) the rules prescribe;

that the institution is not a Territory institution.

(3) Rules made for the purposes of paragraph (1)(c) or (2)(b) may

prescribe that an institution is, or is not, a Territory institution in

relation to a period specified by the rules.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-3 Institutions participating in the scheme

Division 3 Institutions participating in the scheme

Section 26

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Subdivision D--Participating non-government institutions of a

Territory

26 What is a participating non-government institution of a

Territory?

(1) An institution is a participating non-government institution of a

Territory if:

(a) the institution is or was a non-government institution of a

Territory; and

(b) a declaration is in force under subsection 27(1) that the

institution is a participating institution.

(2) A non-government institution of a Territory is an institution

(other than a Commonwealth institution or a Territory institution)

that is or was established in a Territory.

(3) However, an institution is not a non-government institution of a

Territory if the rules prescribe that the institution is not a

non-government institution of a Territory.

(4) Rules made for the purposes of subsection (3) may prescribe that

an institution is not a non-government institution of a Territory in

relation to a period specified by the rules.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Institutions participating in the scheme Part 2-3

Ministerial declarations about participating institutions Division 4

Section 27

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 4--Ministerial declarations about participating

institutions

27 Ministerial declarations about participating institutions

(1) The Minister may, before the second anniversary of the scheme

start day or such later day prescribed by the rules, declare, in

writing, that a Territory institution or non-government institution

of a Territory is a participating institution.

(2) However, the Minister must not make a declaration under

subsection (1) unless the Minister is satisfied that:

(a) the institution has opted in to the scheme in accordance with

any requirements prescribed by the rules about how an

institution may opt in to the scheme; and

(b) any other criteria prescribed by the rules in relation to the

institution are met.

(3) For the purposes of paragraph (2)(a), if:

(a) a non-government institution of a Territory is not in

existence; and

(b) the Commonwealth or a self-governing Territory is the

funder of last resort for the institution;

then the rules may prescribe circumstances for when the institution

is taken to have opted in to the scheme.

(4) The Minister may revoke, in writing, a declaration under

subsection (1).

(5) A declaration under subsection (1) and a revocation under

subsection (4) are legislative instruments, but section 42

(disallowance) of the Legislation Act 2003 does not apply to those

instruments.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-4 How to obtain redress under the scheme

Division 1 Simplified outline of this Part

Section 28

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Part 2-4--How to obtain redress under the scheme

Division 1--Simplified outline of this Part

28 Simplified outline of this Part

To be entitled to redress under the scheme, a person must make an

application for it. To be valid, the application must comply with

the requirements set out in section 29 (e.g. it must include any

information required by the Operator).

Once the application is made, the Operator can request the person,

and can require participating institutions and others, to provide

further information to the Operator for the purposes of determining

the application (see sections 69 and 70).

A person can only make one application for redress under the

scheme. Whether the application is successful or unsuccessful, the

person will not be able to make another application for redress

under the scheme (unless the person withdraws the application

before the Operator makes a determination about whether or not to

approve it).

The Operator must make a determination to approve, or not

approve, the application as soon as practicable. If the Operator

considers there is a reasonable likelihood that the person is eligible

for redress, then the Operator must approve the application and

make a number of other important determinations under

subsection 32(2). For example, the Operator must make a

determination about which participating institutions are responsible

for the abuse of the person and therefore liable for providing

redress to the person. The Operator must also make a

determination about the amount of the redress payment that is

payable to the person.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

How to obtain redress under the scheme Part 2-4

Simplified outline of this Part Division 1

Section 28

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

The Operator must give the person written notice of the Operator's

determination on the application. The notice must state whether or

not the application has been approved, the reasons for the

determination and that the person may apply for internal review of

the determination.

If the Operator has approved the application, the Operator must

also give the person an offer of redress with the notice. (Offers and

acceptance of redress are dealt with in Part 2-5.)

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-4 How to obtain redress under the scheme

Division 2 Application for redress under the scheme

Section 29

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 2--Application for redress under the scheme

29 Application for redress

(1) To obtain redress under the scheme, a person must make an

application to the Operator.

(2) The application must:

(a) be in the form (if any) approved by the Operator; and

(b) include any information, and be accompanied by any

documents, required by the Operator; and

declaration.

Note:

The Operator is not required to make a determination on the

application if subsection (2) is not complied with (see

subsection 127(1)).

(3) The application must be made 12 months before the sunset day.

(4) Subsection (3) does not apply if the Operator determines, in

writing, that there are exceptional circumstances justifying the

application being made later.

30 Only one application may be made

A person may only make one application for redress under the

scheme.

31 Withdrawal of application

(1) A person may withdraw an application for redress at any time

before the Operator makes a determination on the application

under section 32.

(2) If the person withdraws the application, then for the purposes of

this Act it is to be treated as not having been made.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

How to obtain redress under the scheme Part 2-4

Operator to determine whether to approve the application Division 3

Section 32

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 3--Operator to determine whether to approve the

application

32 Operator must make a determination on the application

(1) If a person makes an application for redress under section 29, the

Operator must make a determination to approve, or not approve,

the application as soon as practicable.

Note:

If the Operator requests or requires further information for the purpose

of making the determination (see sections 69 and 70), the Operator is

not required to make the determination until the information is

provided (see subsection 127(2)).

(2) If the Operator considers that there is a reasonable likelihood that

the person is eligible for redress, then the Operator must:

(a) approve the application; and

(b) determine which participating institutions are responsible for

the abuse (see section 21) and therefore liable for providing

redress to the person under the scheme; and

(i) the amount of the redress payment for the person; and

(ii) the amount of each liable institution's share of the cost

of the redress payment; and

(d) determine, in accordance with any requirements prescribed

by the rules, the proportion of each liable institution's share

of the cost of providing the person with access to counselling

and psychological services under the scheme; and

(e) for a participating institution that was identified in the

application and is not covered by a determination under

paragraph (b)--determine that the participating institution is

not responsible for the abuse and therefore not liable for

providing redress to the person under the scheme.

(3) Otherwise, the Operator must make a determination not to approve

the application.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-4 How to obtain redress under the scheme

Division 3 Operator to determine whether to approve the application

Section 33

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

33 Working out the amount of redress payment and sharing of costs

(1) This section sets out how the Operator must make a determination

under paragraph 32(2)(c) about:

(a) the amount of the redress payment for a person; and

(b) the amount of each liable institution's share of the cost of the

redress payment.

Note:

This section only applies if the Operator approves the person's

application for redress.

(2) The Operator must first work out, for each liable institution, the

amount that is the institution's share of the cost of the redress

payment by using the following method statement:

Method statement

Step 1. Apply the assessment matrix to work out the maximum

amount of redress payment that could be payable to the

person. The maximum amount must not be more than

$150,000.

Step 2. Work out, in accordance with any requirements

prescribed by the rules, the amount that is the

institution's share of the maximum amount. This amount

is the gross liability amount for the institution.

Step 3. Work out the amount of any payment (a relevant

payment) that was paid by the institution to the person in

relation to the sexual abuse, or related non-sexual abuse,

of the person that is within the scope of the scheme (but

do not include any payment that is prescribed by the rules

as not being a relevant payment). This amount is the

original amount of the relevant payment.

Step 4. Multiply the original amount by the following:





1.019

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

How to obtain redress under the scheme Part 2-4

Operator to determine whether to approve the application Division 3

Section 34

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

where n is the number of whole years since the relevant

payment was paid to the person.

The resulting amount is the adjusted amount of the

relevant payment of the institution.

Note:

The adjustment under this step is broadly to account for inflation.

Step 5. Add together the adjusted amount of each relevant

payment of the institution. This amount is the reduction

amount for the institution.

Step 6. The amount of the institution's share of the cost of the

redress payment is the gross liability amount for the

institution (in step 2) less the reduction amount for the

institution (in step 5). The amount may be nil but not less

than nil.

(3) The Operator must then work out the amount of redress payment

for the person by adding together the amounts of each liable

institution's share of the cost of the redress payment. The amount

may be nil.

Note:

The amount may be nil because the total amount of relevant payments

that were paid to the person by the liable institutions exceeds the

maximum amount of the redress payment that could be payable to the

person (see the method statement in subsection (2)). However, even

though the person may not be paid any redress payment in that case,

the person will still be entitled to the other elements of redress under

the scheme (i.e. access to counselling or psychological services and a

direct personal response).

34 The assessment matrix

(1) The Minister may declare, in writing, a method, or matters to take

into account, for the purposes of working out the amount of redress

payment for a person.

Note:

For variation or revocation of the declaration, see subsection 33(3) of

the Acts Interpretation Act 1901.

(2) The declaration is the assessment matrix.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

How to obtain redress under the scheme Part 2-4

Notice of determination to applicant Division 4

Section 35

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 4--Notice of determination to applicant

35 Notice of determination to applicant

(1) If the Operator makes a determination under section 32 on an

application for redress for a person, the Operator must give the

person written notice of the determination stating:

(a) whether or not the application has been approved; and

(b) the reasons for the determination; and

review of the determination.

(2) If the application has been approved, the notice must also include

the offer of redress to the person under section 37.

(3) The notice must also:

(a) specify the day by which the person may apply for internal

review of the determination (which must be at least 28 days,

but no longer than 90 days, after the date of the notice); and

(b) comply with any matters prescribed by the rules.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-5 Offers and acceptance of redress

Division 1 Simplified outline of this Part

Section 36

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Part 2-5--Offers and acceptance of redress

Division 1--Simplified outline of this Part

36 Simplified outline of this Part

If the Operator approves a person's application for redress, the

Operator must give the person a written offer of redress. The offer

must include the information set out in section 37. The person may

accept or decline the offer.

If the person wishes to accept the offer, he or she must do so by

giving the Operator, within the acceptance period, an acceptance

document that complies with section 39. If the person accepts the

offer, the person releases all the participating institutions

determined by the Operator to be responsible for the abuse from all

civil liability for the abuse. The person will then be provided with

redress under the scheme.

If the person accepts the offer, the Operator must notify the

participating institutions determined by the Operator to be

responsible for the abuse of the person's acceptance of the offer

(including the elements of redress that the person wishes to

receive).

If the person declines the offer (either by formally declining, or by

doing nothing, in the acceptance period), the person is not required

to release any institution from civil liability for the person's abuse,

but the person will not be provided with redress under the scheme.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Offers and acceptance of redress Part 2-5

Offers of redress Division 2

Section 37

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 2--Offers of redress

37 Offer of redress

(1) If the Operator approves a person's application for redress, the

Operator must give the person a written offer of redress that:

(a) explains the 3 elements of redress (i.e. redress payment,

access to counselling and psychological services, and a direct

personal response); and

(b) specifies the amount of the redress payment; and

Operator under paragraph 32(2)(b) to be responsible for the

person's abuse and therefore liable for providing redress to

the person under the scheme; and

(d) specifies the participating institutions that were identified in

the person's application but determined by the Operator

under paragraph 32(2)(e) not to be responsible for the

person's abuse and therefore not liable for providing redress

to the person under the scheme; and

(e) states the date of the offer; and

(f) specifies the acceptance period for the offer (see section 38);

and

(g) gives information about the opportunity for the person to

access legal services under the scheme for the purposes of

obtaining legal advice about whether to accept the offer; and

(h) gives information about other services available to the person

under the scheme to help the person to decide whether to

accept the offer; and

(i) explains how to accept or decline the offer, should the

applicant decide to do so; and

(j) informs the applicant that the offer expires at the end of the

acceptance period; and

(k) explains the effect of section 40 (which is about the release of

participating institutions from civil liability) should the

applicant accept the offer; and

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-5 Offers and acceptance of redress

Division 2 Offers of redress

Section 38

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

(l) informs the applicant that the applicant does not have to

accept the offer and that, by doing nothing, the offer is taken

to be declined at the end of the acceptance period; and

(m) informs the applicant that the applicant may request an

extension of that period and explains how to make that

request; and

(n) complies with any requirements prescribed by the rules.

(2) The offer expires at the end of the acceptance period.

38 Acceptance period for offers of redress

(1) The acceptance period for an offer of redress to a person is the

period determined by the Operator, which must be at least 90 days,

starting on the date of the offer.

(2) The Operator may, by written notice to the person, extend the

acceptance period if the Operator considers there are exceptional

circumstances that justify the extension.

(3) An extension under subsection (2) may be given:

(a) on the Operator's own initiative; or

(b) on a request made by the person under subsection (4).

(4) The person may request the Operator to extend the acceptance

period. The request must:

(a) be made before the end of the acceptance period; and

(b) comply with any requirements prescribed by the rules.

(5) If the Operator extends the period, the acceptance period is the

original period as extended by the Operator.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Offers and acceptance of redress Part 2-5

Acceptance of offers of redress Division 3

Section 39

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 3--Acceptance of offers of redress

39 Acceptance of offers of redress

(1) If the Operator makes an offer of redress to a person, the person

may accept the offer by complying with this section.

(2) The person must give the Operator an acceptance document that:

(a) is in the form approved by the Operator; and

(b) states that the person accepts the offer; and

participating institutions determined by the Operator under

paragraph 32(2)(b) to be liable for providing redress to the

person from all civil liability for abuse of the person that is

within the scope of the scheme; and

(d) states that the person will not, whether as an individual, a

representative party or a member of a group, bring or

continue any civil claim against those participating

institutions in relation to that abuse; and

(e) states the elements of redress that the person wishes to

receive; and

(f) includes an acknowledgement that the person understands the

effect of accepting the offer; and

(g) is signed by the person; and

(h) complies with any requirements prescribed by the rules.

(3) The person must give the Operator the acceptance document:

(a) before the end of the acceptance period; and

(b) in the manner (if any) prescribed by the rules.

40 Effect of acceptance on civil liability

If a person accepts an offer of redress in accordance with

section 39, then, at the time the person gives the acceptance and by

force of this section:

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-5 Offers and acceptance of redress

Division 3 Acceptance of offers of redress

Section 41

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

(a) the person releases and forever discharges all participating

institutions determined by the Operator under

paragraph 32(2)(b) to be liable for providing redress to the

person from all civil liability for abuse of the person that is

within the scope of the scheme; and

(b) the person cannot, whether as an individual, a representative

party or a member of a group, bring or continue any civil

claim against those participating institutions in relation to

that abuse.

41 Notice of acceptance of offer to liable participating institutions

(1) If a person accepts an offer of redress in accordance with

section 39, then the Operator must give each participating

institution determined by the Operator under paragraph 32(2)(b) to

be liable for providing redress to the person written notice of:

(a) the person's acceptance of the offer; and

(b) the elements of redress that the person wishes to receive

(including whether the person wishes to receive a direct

personal response from the institution); and

(i) the amount of that payment; and

(ii) the amount of the institution's share of the cost of that

payment; and

(d) any matters prescribed by the rules.

(2) The notice must be accompanied by a copy of the person's

acceptance document.

42 Declining offers of redress

(1) If the Operator makes an offer of redress to a person, the person

may decline the offer by giving the Operator, before the end of the

acceptance period, a document that:

(a) is in the form approved by the Operator; and

(b) states that the person declines the offer; and

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Offers and acceptance of redress Part 2-5

Acceptance of offers of redress Division 3

Section 42

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

declining the offer (including that the person will not be able

to make another application for redress under the scheme);

and

(d) is signed by the person; and

(e) complies with any requirements prescribed by the rules.

(2) The person may also decline the offer by not accepting the offer

within the acceptance period.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-6 Provision of redress under the scheme

Division 1 Simplified outline of this Part

Section 43

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Part 2-6--Provision of redress under the scheme

Division 1--Simplified outline of this Part

43 Simplified outline of this Part

If a person has accepts an offer of redress under the scheme, then:

(a)

the Operator must pay the redress payment to the

person; and

(b)

the Operator must enable the person to access

counselling and psychological services under the

scheme; and

(c)

the participating institutions determined by the Operator

to be responsible for the person's abuse must take

reasonable steps to provide the person with a direct

personal response.

However, this does not apply if the person stated in the acceptance

document that he or she does not wish to receive a particular

element of redress (e.g. the person stated that he or she does not

wish to receive a direct personal response from a particular

participating institution).

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Provision of redress under the scheme Part 2-6

The redress payment Division 2

Section 44

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 2--The redress payment

44 Operator must pay the redress payment

(1) If:

(a) a person accepts an offer of redress in accordance with

section 39; and

(b) the person stated in the acceptance document that the person

wishes to be paid the redress payment;

then the Operator must pay the redress payment to the person as

soon as practicable.

(2) The rules may prescribe matters relating to the payment of redress

payments.

45 Protection of the redress payment--general

(1) Despite any law of the Commonwealth, a State or a self-governing

Territory:

(a) a redress payment is not to be treated as being a payment of

compensation or damages; and

(b) a redress payment is absolutely inalienable, whether by way

of, or in consequence of, sale, assignment, charge, execution,

bankruptcy or otherwise; and

(2) Paragraph (1)(b) is subject to Part 4-5 (which is about debt

recovery).

46 Additional protection of the redress payment--garnishee orders

(1) If:

(a) a redress payment is being paid, or has been paid, to the

credit of an account; and

(b) a court order in the nature of a garnishee order comes into

force in relation to the account;

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-6 Provision of redress under the scheme

Division 2 The redress payment

Section 46

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

the court order does not apply to the saved amount (if any) in the

account.

(2) The saved amount is worked out as follows:

Method statement

Step 1. Work out the amount of the redress payment that has

been paid to the credit of the account in the year

immediately before the court order came into force.

Step 2. Subtract from the amount of the redress payment the total

amount withdrawn from the account during that year: the

result is the saved amount.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Provision of redress under the scheme Part 2-6

Counselling and psychological services Division 3

Section 47

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 3--Counselling and psychological services

47 Operator must enable access to counselling and psychological

services

If:

(a) a person accepts an offer of redress in accordance with

section 39; and

(b) the person stated in the acceptance document that the person

wishes to access counselling and psychological services

under the scheme;

then the Operator must enable the person to access those services

as soon as practicable.

48 Access to counselling and psychological services under the

scheme

(1) The rules may prescribe matters about counselling and

psychological services under the scheme.

(2) When making rules for the purposes of this section, the Minister

must have regard to the principles in section 49.

49 General principles guiding counselling and psychological services

(1) Survivors should be empowered to make decisions about their own

need for counselling or psychological services.

(2) Survivors should be supported to maintain existing therapeutic

relationships to ensure continuity of care.

(3) Counselling and psychological services provided through redress

should supplement, and not compete with, existing services.

Chapter 2 The Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Part 2-6 Provision of redress under the scheme

Division 4 Direct personal responses

Section 50

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 4--Direct personal responses

50 Direct personal response from liable participating institutions

(1) If a participating institution is given a notice under section 41 that

advises the institution that a person wishes to be given a direct

personal response from the institution, then the institution must

take reasonable steps to provide the person with a direct personal

response in accordance with the rules.

Note:

If a participating institution does not comply with the request, the

Operator must include details about the non-compliance in the annual

report for the scheme, which the Minister will present to the

Parliament (see section 122).

(2) Subsection (1) does not apply in relation to a participating

institution that was not in existence when it became a participating

institution.

Note:

A non-government institution of a Territory that is not in existence can

become a participating institution if certain conditions are met. One of

those conditions is that the Commonwealth or a self-governing

Territory has agreed to be the funder of last resort for the institution

(see sections 66 and 67).

51 Direct personal responses under the scheme

(1) The rules may prescribe matters about the giving of direct personal

responses by participating institutions under the scheme.

(2) Without limiting subsection (1), the rules may prescribe:

(a) the form and manner in which responses are to be given by

participating institutions; and

(b) timeframes in which responses are to be given.

(3) When making rules for the purposes of this Division, the Minister

must have regard to the principles in section 52.

The Commonwealth Redress Scheme for Institutional Child Sexual Abuse Chapter 2

Provision of redress under the scheme Part 2-6

Direct personal responses Division 4

Section 52

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

52 General principles guiding provision of direct personal responses

(1) Engagement between a survivor and a participating institution

should only occur if, and to the extent, that a survivor desires it.

(2) Participating institutions should make clear what they are willing

to offer and provide by way of direct personal response to

survivors. Institutions should ensure that they are able to provide

the direct personal response that they offer to survivors.

(3) All participating institutions should offer and provide on request by

a survivor:

(a) meaningful recognition of the institution's responsibility by

way of a statement of apology, acknowledgement or regret;

and

(b) an assurance as to steps taken to protect against further abuse.

(4) In offering direct personal responses, participating institutions

should try to be responsive to survivors' needs.

(5) Participating institutions that already offer a broader range of direct

personal responses to survivors and others should consider

continuing to offer those forms of direct personal response.

(6) Direct personal responses should be delivered by people who have

received training about the nature and impact of child sexual abuse

and the needs of survivors, including cultural awareness and

sensitivity training where relevant.

(7) Participating institutions should welcome feedback from survivors

about the direct personal response they offer and provide.

Chapter 3 Funding

Part 3-1 Liability for funding

Division 1 Simplified outline of this Part

Section 53

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Bill 2017

No. , 2017

Chapter 3--Funding

Part 3-1--Liability for funding

Division 1--Simplified outline of this Part

53 Simplified outline of this Part

The Commonwealth is liable to bear the initial costs of paying

redress payments and providing counselling and psychological

services under the scheme, as well as the administration costs of

the scheme. However, participating institutions are liable to pay

funding contribution to reimburse the Commonwealth for their

share of those costs.

Funding contribution is worked out on a quarterly basis and

consists of 2 components:

(a)

the redress component (which covers the total amount of

the institution's share of the cost of providing redress

payments and counselling and psychological services in

the quarter); and

(b)

the scheme administration component (which covers the

total amount of the institution's share of the cost of the

administration of the scheme in the quarter).

The Operator determines the amount of funding contribution that a

participating institution is required to pay for the quarter, and

notifies the institution of the amount and the due date for payment.

The Commonwealth or a self-governing Territory may be the

funder of last resort for a participating institution. In that case, the

Commonwealth or Territory will instead be liable to pay funding

contribution for the participating institution. (For funders of last

resort, see Part 3-2.)

Funding Chapter 3

Liability for funding Part 3-1

Appropriation Division 2

Section 54

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 2--Appropriation

54 Appropriation

The Consolidated Revenue Fund is appropriated to the extent

necessary for the purposes of the payment or discharge of the costs

incurred by the Commonwealth in providing the following

elements of redress under the scheme:

(a) redress payments;

(b) counselling and psychological services.

Chapter 3 Funding

Part 3-1 Liability for funding

Division 3 Funding contributions by participating institutions

Section 55

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Bill 2017

No. , 2017

Division 3--Funding contributions by participating

institutions

55 Liability for funding contribution

(1) An institution that is a participating institution at any time during a

quarter is liable to pay funding contribution for that quarter.

(2) However, if:

(a) the participating institution is a non-government institution of

a Territory; and

(b) the Commonwealth or a self-governing Territory is the

funder of last resort for the institution;

then the body that is the funder of last resort (and not the

institution) is liable to pay funding contribution for that quarter.

(3) A quarter is a period of 3 months beginning on 1 July, 1 October,

1 January or 1 April.

56 Funding contribution

Funding contribution for a participating institution for a quarter

consists of:

(a) the redress component for the institution for the quarter; and

(b) the scheme administration component for the institution for

the quarter.

57 Redress component

The redress component of funding contribution for a participating

institution for a quarter is the amount equal to the sum of the

following amounts:

(a) the amount of the institution's share of the cost of a redress

payment that is payable to a person in the quarter;

(b) the amount that represents the proportion of the institution's

share of the cost of providing access to counselling and

psychological services to a person in the quarter.

Funding Chapter 3

Liability for funding Part 3-1

Funding contributions by participating institutions Division 3

Section 58

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Note:

The Operator determines the amount of an institution's share of the

cost of a redress payment under paragraph 32(2)(c) and the proportion

of an institution's share of the cost of the person accessing counselling

and psychological services under paragraph 32(2)(d).

58 Scheme administration component

(1) The scheme administration component of funding contribution for

a participating institution for a quarter is the amount equal to the

institution's share of the administration costs of the scheme for the

quarter.

(2) For the purposes of subsection (1), the Operator must, in

accordance with any requirements prescribed by the rules,

determine the institution's share of the administration costs of the

scheme for the quarter.

59 When funding contribution is due for payment

Funding contribution that is payable by a participating institution is

due and payable on a business day that is:

(a) specified in a notice that the Operator gives to the

participating institution; and

(b) not earlier than 30 days after the date of the notice.

60 Late payment penalty

(1) If any funding contribution payable by a participating institution

remains unpaid at the start of a calendar month after the funding

contribution became due for payment, the institution is liable to

pay the Commonwealth, for that calendar month, a penalty worked

out using the following formula:

0.2

Amount of funding contribution

unpaid at the start of the calendar month



(2) Late payment penalty for a calendar month is due and payable at

the end of the calendar month.

Chapter 3 Funding

Part 3-1 Liability for funding

Division 3 Funding contributions by participating institutions

Section 61

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Bill 2017

No. , 2017

(3) However, the Operator may, by written notice given to the

participating institution before, on or after the day on which late

payment penalty would be due and payable apart from this

subsection, specify a later day as the day on which the late

payment penalty is due and payable. The notice has effect, and is

taken always to have had effect, according to its terms.

61 Payment of funding contribution and late payment penalty

Each of the following are payable to the Operator on behalf of the

Commonwealth:

(a) funding contribution;

(b) late payment penalty.

62 Waiver of funding contribution and late payment penalty

(1) The Operator may, on behalf of the Commonwealth, waive the

payment of the whole or a part of funding contribution or late

payment penalty payable by a participating institution, if the

Operator is satisfied that there are exceptional circumstances

justifying the waiver.

(2) The Operator may do so on his or her own initiative or on written

application by a person.

(3) Applications must be in the form approved by the Operator.

63 Recovery of funding contribution and late payment penalty

The following amounts may be recovered by the Commonwealth

from a participating institution as debts due to the Commonwealth:

(a) funding contribution that is due and payable by the

institution;

(b) late payment penalty that is due and payable by the

institution.

Funding Chapter 3

Liability for funding Part 3-1

Funding contributions by participating institutions Division 3

Section 64

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

64 Internal review of certain decisions

(1) A participating institution that is affected by a decision of the

Operator under section 62 may, if dissatisfied with the decision,

request the Operator to reconsider the decision.

(2) The request must:

(a) be made by notice given to the Operator in the form approved

by the Operator within:

(i) the period of 21 days after the day on which the

participating institution first receives notice of the

decision; or

(ii) any further period that the Operator allows; and

(b) set out the reasons for making the request.

(3) After receiving the request, the Operator must review the decision

or cause the decision to be reviewed by a person:

(a) to whom the Operator's power under this section is

delegated; and

(b) who was not involved in the making of the decision.

(4) Within 30 business days after receiving the request or such longer

period as the Operator determines in writing (the review period),

the person reviewing the decision must:

(a) reconsider the decision; and

(b) confirm, revoke or vary the decision, as the person thinks fit.

(5) If the person reviewing the decision does not confirm, revoke or

vary the decision within the review period, he or she is taken to

have confirmed the decision under subsection (4) immediately after

the end of that period.

(6) The person reviewing the decision must give a notice in writing to

the participating institution that made the request that sets out the

result of the reconsideration of the decision and gives the reasons

for his or her decision.

Chapter 3 Funding

Part 3-2 Funders of last resort

Division 1 Simplified outline of this Part

Section 65

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Bill 2017

No. , 2017

Part 3-2--Funders of last resort

Division 1--Simplified outline of this Part

65 Simplified outline of this Part

The Commonwealth or a self-governing Territory may be the

funder of last resort for a participating non-government institution

of a Territory. If that is the case, then it (and not the institution)

will be liable to pay funding contribution for the participating

institution.

Funding Chapter 3

Funders of last resort Part 3-2

Funders of last resort Division 2

Section 66

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Bill 2017

Division 2--Funders of last resort

66 Commonwealth as funder of last resort

When the Commonwealth is funder of last resort

(1) The Commonwealth is the funder of last resort for a

non-government institution of a Territory if a declaration under

subsection (2) is in force to that effect.

Declaration

(2) The Minister may declare, in writing, that the Commonwealth is

the funder of last resort for a specified non-government institution

of a Territory.

(3) The Minister may only make a declaration under subsection (2) in

accordance with the Commonwealth Redress Scheme Agreement.

Revocation of declaration

(4) The Minister may revoke, in writing, a declaration under

subsection (2).

Declarations and revocations are legislative instruments

(5) A declaration under subsection (2), and a revocation under

subsection (4), are legislative instruments, but section 42

(disallowance) of the Legislation Act 2003 does not apply to those

instruments.

67 Self-governing Territory as funder of last resort

When a self-governing Territory is funder of last resort

(1) A self-governing Territory is the funder of last resort for a

non-government institution of a Territory if a declaration under

subsection (2) is in force to that effect.

Chapter 3 Funding

Part 3-2 Funders of last resort

Division 2 Funders of last resort

Section 67

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Bill 2017

No. , 2017

Declaration

(2) The Minister may declare, in writing, that a self-governing

Territory is the funder of last resort for a specified non-government

institution of a Territory.

(3) The Minister may only make a declaration under subsection (2) in

accordance with the Commonwealth Redress Scheme Agreement.

Revocation of declaration

(4) The Minister may revoke, in writing, a declaration under

subsection (2).

Declarations and revocations are legislative instruments

(5) A declaration under subsection (2), and a revocation under

subsection (4), are legislative instruments, but section 42

(disallowance) of the Legislation Act 2003 does not apply to those

instruments.

Administrative matters Chapter 4

Obtaining information for the purposes of the scheme Part 4-1

Simplified outline of this Part Division 1

Section 68

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Chapter 4--Administrative matters

Part 4-1--Obtaining information for the purposes

of the scheme

Division 1--Simplified outline of this Part

68 Simplified outline of this Part

The Operator may obtain information for the purposes of

determining whether to approve an application for redress.

Information is required to be provided in the application under

section 29.

This Part allows the Operator to request the person, and require

participating institutions and others, to provide further information

to the Operator for the purposes of determining the application.

Chapter 4 Administrative matters

Part 4-1 Obtaining information for the purposes of the scheme

Division 2 Obtaining information for the purposes of the scheme

Section 69

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 2--Obtaining information for the purposes of the

scheme

69 Power to request information from applicants

(1) If:

(a) an application for redress is made by a person; and

(b) the Operator has reasonable grounds to believe that the

person has information, or has custody or control of a

document, that may be relevant to determining the

application;

then the Operator may request the person to give the information,

or produce the document, to the Operator.

(2) The request must be made by written notice given to the person.

(3) The notice must specify:

(a) the nature of the information or document that is requested to

be given or produced; and

(b) how the person is to give the information or produce the

document; and

to give the information or produce the document to the

Operator; and

(d) that the notice is given under this section.

(4) The production period must be at least 14 days beginning on the

date of the notice.

(5) The Operator may, by written notice to the person, extend the

production period if the Operator considers there are exceptional

circumstances that justify the extension.

(6) An extension under subsection (5) may be given:

(a) on the Operator's own initiative; or

(b) on a request made by the person under subsection (7).

Administrative matters Chapter 4

Obtaining information for the purposes of the scheme Part 4-1

Obtaining information for the purposes of the scheme Division 2

Section 70

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Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

(7) The person may request the Operator to extend the production

period. The request must:

(a) be made before the end of the production period; and

(b) comply with any requirements prescribed by the rules.

70 Power to require information from institutions and others

(1) If:

(a) an application for redress is made by a person; and

(b) the Operator has reasonable grounds to believe that a

participating institution or another person has information, or

has custody or control of a document, that may be relevant to

determining the application;

then the Operator may require the institution or other person to

give the information, or produce the document, to the Operator.

(2) The requirement must be made by written notice given to the

institution or other person.

(3) The notice must specify:

(a) the nature of the information or document that is required to

be given or produced; and

(b) how the institution or other person is to give the information

or produce the document; and

institution or other person is to give the information or

produce the document to the Operator; and

(d) that the notice is given under this section.

(4) The production period must be at least 14 days beginning on the

date of the notice.

(5) The Operator may, by written notice to the institution or other

person, extend the production period if the Operator considers

there are exceptional circumstances that justify the extension.

(6) An extension under subsection (5) may be given:

(a) on the Operator's own initiative; or

Chapter 4 Administrative matters

Part 4-1 Obtaining information for the purposes of the scheme

Division 2 Obtaining information for the purposes of the scheme

Section 71

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Bill 2017

No. , 2017

(b) on a request made by the institution or other person under

subsection (7).

(7) The institution or other person may request the Operator to extend

the production period. The request must:

(a) be made before the end of the production period; and

(b) comply with any requirements prescribed by the rules.

71 Refusal or failure to comply with requirement

(1) A participating institution or person must not refuse or fail to

comply with a requirement under section 70.

Note:

If a participating institution does not comply with the requirement, the

Operator must include details about the non-compliance in the annual

report for the scheme, which the Minister will present to the

Parliament (see section 122). This reporting requirement is in addition

to the participating institution's liability to a civil penalty.

Civil penalty:

100 penalty units.

(2) Subsection (1) does not apply if the institution or person has a

reasonable excuse.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection: see subsection 13.3(3) of the Criminal Code.

(3) A person is not excused from giving information, or producing a

document, under section 70 on the ground that the giving of the

information or the production of the document might tend to

incriminate the individual or expose the individual to a penalty.

(4) However:

(a) the information given or document produced; and

(b) giving the information or producing the document; and

indirect consequence of giving the information or producing

the document;

are not admissible in evidence against the individual in any

criminal proceedings, other than proceedings under section 137.1

Chapter 4 Administrative matters

Part 4-1 Obtaining information for the purposes of the scheme

Division 3 Interaction with other laws

Section 72

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Bill 2017

No. , 2017

Division 3--Interaction with other laws

72 Obligations not affected by State or Territory laws

(1) Nothing in a law of a State or a self-governing Territory prevents a

person from:

(a) giving information; or

(b) producing a document; or

that the person is required to give or produce to the Operator or an

officer for the purposes of the scheme.

(2) However, a person is not required to give information, produce a

document or give evidence to the Operator or an officer for the

purposes of the scheme if:

(a) the person would, apart from subsection (1), be prevented

from doing so under a law of a State or self-governing

Territory; and

(b) the law of the State or Territory is:

(i) specified in the Commonwealth Redress Scheme

Agreement; or

(ii) prescribed by the rules.

73 Interaction with Commonwealth laws

This Part does not require a person to give information or produce

a document to the extent that in doing so the person would

contravene a law of the Commonwealth.

Administrative matters Chapter 4

Protecting information under the scheme Part 4-2

Simplified outline of this Part Division 1

Section 74

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Bill 2017

Part 4-2--Protecting information under the scheme

Division 1--Simplified outline of this Part

74 Simplified outline of this Part

Certain information about a person is protected information and

can only be obtained, recorded, disclosed or used by a person if

this Act authorises that to happen. Broadly, protected information

is information about a person that was obtained by an officer for

the purposes of the scheme and is held in the records of the

Department or the Human Services Department. An example of

protected information about a person is information that the person

gives in his or her application for redress.

This Part sets out when a person is authorised to obtain, record,

disclose or use protected information. It also has offences for when

a person obtains, records, discloses or uses protected information

without authorisation under this Act.

Chapter 4 Administrative matters

Part 4-2 Protecting information under the scheme

Division 2 Use and disclosure of information under the scheme

Section 75

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Division 2--Use and disclosure of information under the

scheme

75 Protected information

(1) This Part deals with how protected information about a person may

be obtained, recorded, disclosed or used under this Act.

(2) Protected information is:

(a) information about a person that was obtained by an officer

for the purposes of the scheme and is or was held in the

records of:

(i) the Department; or

(ii) the Human Services Department; or

(b) information to the effect that there is no information about a

person held in the records of a Department referred to in

paragraph (a).

76 Main authorisations for obtaining, recording, disclosing or using

protected information

(1) A person may obtain protected information for the purposes of the

scheme.

(2) A person may:

(a) make a record of protected information; or

(b) disclose such information to any person; or

if:

(d) the making of the record, or the disclosure or use of the

information, by the person is made:

(i) for the purposes of the scheme; or

(ii) for the purpose for which the information was disclosed

to the person under section 77 or 78; or

(iii) with the express or implied consent of the person to

whom the information relates; or

Administrative matters Chapter 4

Protecting information under the scheme Part 4-2

Use and disclosure of information under the scheme Division 2

Section 77

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Bill 2017

(e) the person believes on reasonable grounds that the making of

the record, or the disclosure or use of the information, by the

person is necessary to prevent or lessen a serious threat to an

individual's life, health or safety.

(3) A person may use protected information to produce information in

an aggregated form that does not disclose, either directly or

indirectly, information about a particular person.

77 Additional authorisation--disclosure by the Operator in certain

circumstances

(1) The Operator may disclose protected information that was acquired

by an officer in the performance of his or her functions or duties or

in the exercise of his or her powers under this Act if:

(a) the Operator certifies that the disclosure is necessary in the

public interest to do so in a particular case or class of cases

and the disclosure is to such persons and for such purposes as

the Operator determines; or

(b) the disclosure:

(i) is to the Secretary of a Department of State of the

Commonwealth, or to the head of an authority of the

Commonwealth, for the purposes of that Department or

authority; or

(ii) is to a person who is expressly or impliedly authorised

by the person to whom the information relates to obtain

it; or

(iii) is to the Chief Executive Centrelink for the purposes of

a centrelink program (within the meaning of the Human

Services (Centrelink) Act 1997); or

(iv) is to the Chief Executive Medicare for the purposes of a

medicare program (within the meaning of the Human

Services (Medicare) Act 1973); or

(v) is to the chief executive (however described) of a

Department of State of a State or self-governing

Territory, or to the head of an authority of a State or

Territory, for the purposes of that Department or

authority.

Chapter 4 Administrative matters

Part 4-2 Protecting information under the scheme

Division 2 Use and disclosure of information under the scheme

Section 78

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(2) In certifying for the purposes of paragraph (1)(a) or disclosing

information for the purposes of subparagraph (1)(b)(i) or (v), the

Operator must act in accordance with any rules made for the

purposes of subsection (3).

(3) The rules may make provision for and in relation to the exercise of

either or both of the following:

(a) the Operator's power to certify for the purposes of

paragraph (1)(a);

(b) the Operator's power under subparagraph (1)(b)(i) or (v) to

disclose information to a person.

(4) If a certificate or determination under paragraph (1)(a) is given or

made in writing, the certificate or determination is not a legislative

instrument.

78 Additional authorisation--disclosure for the purposes of law

enforcement or child protection

Scope

(1) This section applies if the Operator is satisfied that disclosure of

protected information is reasonably necessary for the enforcement

of the criminal law or for the purposes of child protection.

Disclosure

(2) The Operator may disclose the protected information to one or

more of the following agencies (an enforcement or protection

agency):

(a) the Australian Federal Police;

(b) a police force or police service of a State or self-governing

Territory;

(d) a Department of State, an agency or an authority of a State or

self-governing Territory;

Administrative matters Chapter 4

Protecting information under the scheme Part 4-2

Use and disclosure of information under the scheme Division 2

Section 78

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but only if the agency's functions include enforcement of the

criminal law or child protection and only for the purposes of that

enforcement or protection.

(3) However, before disclosing protected information that relates to a

person who has applied for redress, the Operator must have regard

to the impact the disclosure might have on the person.

Other disclosure and use

(4) A person commits an offence if:

(a) the person is, or has been, an employee or officer of an

enforcement or protection agency; and

(b) protected information has been disclosed under

subsection (2) to the agency; and

capacity as an employee or officer of the agency; and

(d) the person:

(i) discloses the information to another person; or

(ii) uses the information; and

(e) the disclosure or use is not:

(i) with the consent of the Operator; or

(ii) for the purposes of enforcing the criminal law or child

protection.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Conditions

(5) The Operator may, in writing, impose conditions to be complied

with in relation to protected information disclosed under

subsection (2).

(6) A person commits an offence if:

(a) the person is subject to a condition under subsection (5); and

(b) the person engages in conduct; and

Chapter 4 Administrative matters

Part 4-2 Protecting information under the scheme

Division 2 Use and disclosure of information under the scheme

Section 79

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Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(7) An instrument under subsection (5) is not a legislative instrument.

79 Additional authorisation--insurance purposes etc.

(1) A person engaged (whether as an employee or otherwise) by a

participating institution may:

(a) obtain protected information; or

(b) make a record of protected information; or

(d) otherwise use protected information;

if the person believes, on reasonable grounds, that the obtaining,

recording, disclosure or use that is proposed to be made of the

information by the person is reasonably necessary for one or more

of the purposes specified in subsection (2).

(2) The purposes for which the person may obtain, record, disclose or

use protected information are as follows:

(a) the purpose of the participating institution complying with a

requirement under section 70 to provide information;

(b) the purpose of the participating institution providing a direct

personal response to a person under section 50;

under an insurance policy;

(d) the purpose of the participating institution undertaking

internal investigation and disciplinary procedures.

(3) However, before a person discloses information that relates to

another person who has applied for redress, the person must have

regard to the impact the disclosure might have on the other person.

80 Additional authorisation--disclosure to the nominee

The Operator may disclose protected information provided by a

person who has applied for redress to the nominee of the person.

Administrative matters Chapter 4

Protecting information under the scheme Part 4-2

Use and disclosure of information under the scheme Division 2

Section 81

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81 Offence--unauthorised access to protected information

A person commits an offence if:

(a) the person obtains information; and

(b) the person is not authorised under this Act to obtain the

information; and

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

82 Offence--unauthorised recording, disclosure or use of protected

information

A person commits an offence if:

(a) the person:

(i) makes a record of information; or

(ii) discloses information to any other person; or

(iii) otherwise makes use of information; and

(b) the person is not authorised or required by or under this Act:

(i) to make the record of the information; or

(ii) to disclose or use the information; and

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

83 Offence--soliciting disclosure of protected information

(1) A person commits an offence if:

(a) the person solicits the disclosure of information from an

officer or another person; and

(b) the disclosure would be in contravention of this Division; and

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2) A person may commit an offence under subsection (1) whether or

not any protected information is actually disclosed.

Chapter 4 Administrative matters

Part 4-2 Protecting information under the scheme

Division 2 Use and disclosure of information under the scheme

Section 84

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84 Offence--offering to supply protected information

(1) A person commits an offence if:

(a) the person offers to supply (whether to a particular person or

otherwise) information about another person; and

(b) the information is protected information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2) A person commits an offence if:

(a) the person holds himself or herself out as being able to

supply (whether to a particular person or otherwise)

information about another person; and

(b) the information is protected information.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(3) Subsections (1) and (2) do not apply to an officer acting in the

performance or exercise of his or her powers, duties or functions

under this Act.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

85 Protection of certain documents from production to court etc.

Except where it is necessary to do so for the purposes of giving

effect to this Act, a person is not to be required:

(a) to produce to a court or tribunal any document in his or her

possession because of the performance or exercise of his or

her duties, functions or powers under this Act; or

(b) to disclose to a court or tribunal any matter or thing of which

he or she had notice because of the performance or exercise

of such duties, functions or powers.

Administrative matters Chapter 4

Internal review of determinations Part 4-3

Simplified outline of this Part Division 1

Section 86

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Part 4-3--Internal review of determinations

Division 1--Simplified outline of this Part

86 Simplified outline of this Part

A person may apply for internal review of a determination of the

Operator under section 32 in relation to an application for redress

under the scheme.

There are a number of determinations under section 32 that the

person may seek to be reviewed. For example, if the Operator

approved the application, the person may seek review of the

amount of the redress payment. If the Operator did not approve the

application, the person may seek review of that determination.

An application for review must be made within the period specified

in the notice of determination given by the Operator to the person

under section 35.

Chapter 4 Administrative matters

Part 4-3 Internal review of determinations

Division 2 Internal review of determinations

Section 87

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Division 2--Internal review of determinations

87 Application for internal review of redress determination

(1) A person may apply to the Operator to review a determination (the

original determination) made in relation to the person under

section 32 (which is about determinations on applications for

redress).

(2) The application must:

(a) be made before the day specified in the notice of the

determination given under section 35; and

(b) be in the form (if any) approved by the Operator.

88 Internal review of redress determination

(1) If an application is made under section 87, the Operator must

review the original determination or cause the original

determination to be reviewed by an independent decision-maker:

(a) to whom the Operator's power under this section is

delegated; and

(b) who was not involved in the making of the determination.

(2) The person reviewing the original determination must:

(a) reconsider the determination; and

(b) do one of the following:

(i) affirm the determination;

(ii) vary the determination;

(iii) set the determination aside and substitute a new

determination.

(3) When reviewing the original determination, the person may only

have regard to the information and documents that were available

to the person who made the original determination.

Administrative matters Chapter 4

Internal review of determinations Part 4-3

Internal review of determinations Division 2

Section 89

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89 Withdrawal of application for review

(1) A person who has applied to the Operator for review under

section 87 may withdraw the application at any time before the

review has been completed.

(2) If an application for review is withdrawn, the application is taken

never to have been made.

(3) An application may be withdrawn orally or in writing or in any

other manner approved by the Operator.

90 Date of effect of review determination

A determination under paragraph 88(2)(b):

(a) to vary an original determination; or

(b) to set aside an original determination and substitute a new

determination;

takes effect on the day specified in the review determination.

91 Notice of review determination

(1) If a person makes a determination under paragraph 88(2)(b) in

relation to an original determination, the Operator must give

written notice of the review determination to the applicant.

(2) The notice must include a statement that:

(a) sets out the reasons for the review determination; and

(b) sets out the findings by the decision-maker on material

questions of fact; and

findings were based.

92 Interaction between internal review and offer of redress

(1) This section applies if:

(a) a person is given an offer of redress under section 37; and

(b) the person applies for review of a determination made under

subsection 32(2).

Chapter 4 Administrative matters

Part 4-3 Internal review of determinations

Division 2 Internal review of determinations

Section 92

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(2) If the person accepts or declines the offer in the acceptance period

for the offer but before the review has been completed, then the

application for review is taken to have been withdrawn

immediately before the person accepted or declined the offer.

(3) If, apart from this subsection, the acceptance period would end

before the review is completed, then the Operator must extend the

acceptance period under section 38 so that it ends on a day after the

review is completed.

(4) If, on review, the determination under subsection 32(2) is varied or

substituted, then the Operator must:

(a) withdraw the offer and notify the person in writing of that

withdrawal; and

(b) if the determination as varied or substituted approves the

application for redress--give the person a new written offer

of redress in accordance with section 37.

Administrative matters Chapter 4

Nominees Part 4-4

Simplified outline of this Part Division 1

Section 93

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Part 4-4--Nominees

Division 1--Simplified outline of this Part

93 Simplified outline of this Part

A person may be appointed as a nominee to act on behalf of

another person for the purposes of the scheme.

There are 2 types of nominees:

(a)

correspondence nominees (who can receive notices on

behalf of a person for the purposes of the scheme); and

(b)

payment nominees (who can receive a redress payment

on behalf of a person for the purposes of the scheme).

This Part deals with the appointment of nominees, their functions,

duties and responsibilities, and other consequences of being a

nominee for a person for the purposes of the scheme.

Chapter 4 Administrative matters

Part 4-4 Nominees

Division 2 Appointment of nominees

Section 94

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Division 2--Appointment of nominees

94 Appointment of nominees

Correspondence nominee

(1) The Operator may, in writing, appoint a person (including a body

corporate) to be the correspondence nominee of another person for

the purposes of the scheme.

Payment nominee

(2) The Operator may, in writing:

(a) appoint a person (including a body corporate) to be the

payment nominee of another person for the purposes of the

scheme; and

(b) direct that the whole or a specified part of a redress payment

payable by the Operator to the other person under section 44

or 115 be paid to the nominee.

Note:

A person may be appointed as both the correspondence nominee and

the payment nominee of the same person.

(3) The Operator must not appoint a nominee for a person (the

principal) under this section except:

(a) with the written consent of the person to be appointed; and

(b) after taking into consideration the wishes (if any) of the

principal regarding the making of such an appointment.

(4) The Operator must give a copy of an appointment under this

section to:

(a) the nominee; and

(b) the principal.

95 Suspension and cancellation of nominee appointments

(1) If a nominee appointed under section 94 informs the Operator in

writing that he or she no longer wishes to be a nominee under that

Administrative matters Chapter 4

Nominees Part 4-4

Appointment of nominees Division 2

Section 95

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appointment, the Operator must, as soon as practicable, cancel the

appointment.

(2) If:

(a) the Operator gives a nominee a notice under section 99; and

(b) the nominee informs the Operator that:

(i) an event or change of circumstances has happened or is

likely to happen; and

(ii) the event or change of circumstances is likely to have an

effect referred to in paragraph 99(1)(b);

then the Operator may suspend or cancel the nominee's

appointment, or each of the nominee's appointments.

(3) If:

(a) the Operator gives a nominee a notice under

section 99 or

100; and

(b) the nominee does not comply with a requirement of the

notice;

then the Operator may suspend or cancel the nominee's

appointment, or each of the nominee's appointments.

(4) While an appointment is suspended, the appointment has no effect

for the purposes of this Act.

(5) The Operator may, at any time, cancel the suspension of an

appointment under subsection (2) or (3).

(6) The suspension or cancellation of an appointment, and the

cancellation of such a suspension, must be in writing.

(7) The cancellation of an appointment has effect on and from such

day, being later than the day of the cancellation, as is specified in

the cancellation.

(8) The Operator must give the nominee and the person for which he

or she is a nominee a copy of:

(a) a suspension of the nominee's appointment; or

(b) a cancellation of the nominee's appointment; or

Chapter 4 Administrative matters

Part 4-4 Nominees

Division 3 Duties, functions and responsibilities of nominees

Section 96

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Bill 2017

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Division 3--Duties, functions and responsibilities of

nominees

96 Duty of nominee

(1) It is the duty of a correspondence or payment nominee of a person

to act in the best interests of the person at all times.

(2) A nominee does not commit a breach of the duty imposed by

subsection (1) by doing an act if, when the act is done, the nominee

reasonably believes that it is in the best interests of the person that

the act be done.

(3) A nominee does not commit a breach of the duty imposed by

subsection (1) by refraining from doing an act if, at the relevant

time, the nominee reasonably believes that it is in the best interests

of the person that the act not be done.

97 Actions of correspondence nominee

(1) If a person has a correspondence nominee, any act that may be

done by the person under, or for the purposes of, this Act (other

than Division 2 or this Division) may be done by that

correspondence nominee.

(2) Without limiting subsection (1), if a person has a correspondence

nominee, an application that may be made by a person under this

Act may be made by that correspondence nominee on behalf of the

person, and an application so made is taken to be made by the

person.

(3) However, if under a provision of this Act the Operator gives a

notice to a person who has a correspondence nominee,

subsection (1) does not extend to an act that is required by the

notice to be done by the person.

(4) An act done by a person's correspondence nominee under this

section has effect, for the purposes of this Act (other than this

Part), as if it had been done by the person.

Administrative matters Chapter 4

Nominees Part 4-4

Duties, functions and responsibilities of nominees Division 3

Section 98

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98 Giving notices to correspondence nominee

(1) If a person has a correspondence nominee, any notice that the

Operator is required or authorised by this Act to give to the person

may be given by the Operator to that correspondence nominee.

(2) A notice given under subsection (1):

(a) must, in every respect, be in the same form, and in the same

terms, as if it were being given to the person; and

(b) may be given to the correspondence nominee personally or

by post or by any other means approved by the Operator.

99 Nominee to inform Operator of matters affecting ability to act as

nominee

(1) The Operator may give a nominee of a person a notice that requires

the nominee to inform the Operator if:

(a) either:

(i) an event or change of circumstances happens; or

(ii) the nominee becomes aware that an event or change of

circumstances is likely to happen; and

(b) the event or change of circumstances is likely to affect:

(i) the ability of the nominee to act as the correspondence

nominee or payment nominee of the person; or

(ii) the ability of the Operator to give notices to the nominee

under this Act; or

(iii) the ability of the nominee to comply with notices given

to the nominee by the Operator under this Act.

(2) A notice under subsection (1):

(a) must be in writing; and

(b) may be given personally or by post or by any other means

approved by the Operator; and

the Operator; and

(d) must specify the period within which the nominee is to give

the information to the Operator.

Chapter 4 Administrative matters

Part 4-4 Nominees

Division 3 Duties, functions and responsibilities of nominees

Section 100

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Bill 2017

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(3) A notice under subsection (1) is not ineffective just because it does

not comply with paragraph (2)(c).

(4) The period specified under paragraph (2)(d) must not end earlier

than 14 days after:

(a) the day on which the event or change of circumstances

happens; or

(b) the day on which the nominee becomes aware that the event

or change of circumstances is likely to happen.

(5) Subsection (4) does not apply to a requirement in a notice for a

nominee to inform the Operator of any proposal by the nominee to

leave Australia.

100 Statement by payment nominee regarding disposal of money

(1) The Operator may give the payment nominee of a person a notice

that requires the nominee to give the Operator a statement about a

matter relating to the disposal by the nominee of a redress payment

paid to the nominee on behalf of the person.

(2) A notice under subsection (1):

(a) must be in writing; and

(b) may be given personally or by post or by any other means

approved by the Operator; and

Operator; and

(d) must specify the period within which the nominee is to give

the statement to the Operator.

(3) A notice under subsection (1) is not ineffective just because it does

not comply with paragraph (2)(c).

(4) The period specified under paragraph (2)(d) must not end earlier

than 14 days after the date of the notice.

(5) A statement given in response to a notice under subsection (1)

must be in writing and in accordance with a form approved by the

Operator.

Administrative matters Chapter 4

Nominees Part 4-4

Duties, functions and responsibilities of nominees Division 3

Section 100

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(6) A person commits an offence if:

(a) the person is a nominee; and

(b) the person refuses or fails to comply with a notice under

subsection (1).

Penalty: 30 penalty units.

(7) Subsection (6) does not apply if the person has a reasonable

excuse.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (7) (see subsection 13.3(3) of the Criminal Code).

(8) An offence against subsection (6) is an offence of strict liability.

Chapter 4 Administrative matters

Part 4-4 Nominees

Division 4 Payment to payment nominee

Section 101

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Bill 2017

No. , 2017

Division 4--Payment to payment nominee

101 Payment of redress payment to payment nominee

(1) If:

(a) a person has a payment nominee; and

(b) a redress payment is payable to the person; and

payment under paragraph 94(2)(b);

then the redress payment must be paid in accordance with the

direction.

(2) A redress payment paid to the payment nominee of a person:

(a) is paid to the payment nominee on behalf of the person; and

(b) is taken, for the purposes of this Act (other than this Part), to

have been paid to the person and to have been so paid when it

was paid to the nominee.

(3) A redress payment that is to be paid to the payment nominee of a

person must be paid to the credit of a bank account nominated and

maintained by the nominee.

(4) The Operator may direct that the whole or a part of a redress

payment that is to be paid to a payment nominee be paid to the

payment nominee in a different way from that provided for by

subsection (3). If the Operator gives such a direction, the redress

payment must be paid in accordance with the direction.

(5) A direction given under subsection (4) is not a legislative

instrument.

Administrative matters Chapter 4

Nominees Part 4-4

Other matters relating to nominees Division 5

Section 102

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Division 5--Other matters relating to nominees

102 Protection of person against liability for actions of nominee

A person is not to be taken, because of the operation of this Part, to

have committed an offence against this Act in relation to any act or

omission of the person's nominee.

103 Protection of nominee against criminal liability

(1) A nominee of a person is not subject to any criminal liability under

this Act in relation to:

(a) any act or omission of the person; or

(b) anything done, in good faith, by the nominee in his or her

capacity as nominee.

(2) This section has effect subject to section 100 (which deals with a

statement by a payment nominee regarding the disposal of money).

104 Notification to nominee where notice given to person

If, under a provision of this Act (other than a provision of this

Part), the Operator gives a notice to a person who has a

correspondence nominee, the Operator may inform the

correspondence nominee of the giving of the notice and of the

terms of the notice.

Chapter 4 Administrative matters

Part 4-5 Debt recovery

Division 1 Simplified outline of this Part

Section 105

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Part 4-5--Debt recovery

Division 1--Simplified outline of this Part

105 Simplified outline of this Part

Certain amounts paid under the scheme may become a debt due to

the Commonwealth. For example, if a redress payment is paid to

the wrong person, that payment is a debt due to the Commonwealth

and may be recovered under this Part.

Administrative matters Chapter 4

Debt recovery Part 4-5

Debt recovery Division 2

Section 106

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Division 2--Debt recovery

106 Debts due to the Commonwealth

(1) If an amount has been paid to a person (the recipient) under this

Act, the amount is a debt due to the Commonwealth only to the

extent expressly provided for by this section.

(2) If the amount paid to the recipient was not payable because:

(a) the amount was paid to the wrong person; or

(b) the amount exceeds the amount payable to the recipient;

then the amount paid, or the amount of the excess, is a debt due to

the Commonwealth by the recipient.

(3) If the amount paid to the recipient was paid wholly or partly

because of a false or misleading statement, or a misrepresentation,

by the recipient or another person, then an amount equal to so

much of the amount paid as is attributable to the false or

misleading statement, or the misrepresentation, is a debt due to the

Commonwealth by the recipient.

(4) A debt due by the recipient under this section in relation to an

amount arises at the time the amount was paid to the recipient.

107 Legal proceedings

A debt due to the Commonwealth under this Act is recoverable by

the Commonwealth in a court of competent jurisdiction.

108 Arrangement for payment of debt

(1) The Operator may enter into an arrangement with a person under

which the person is to pay a debt, owed by the person to the

Commonwealth under this Act, or the outstanding amount of such

a debt, in a way set out in the arrangement.

(2) An arrangement entered into under subsection (1) has effect, or is

taken to have had effect, on and after the day specified in the

Chapter 4 Administrative matters

Part 4-5 Debt recovery

Division 2 Debt recovery

Section 109

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Bill 2017

No. , 2017

arrangement as the day the arrangement commences (whether that

day is the day the arrangement is entered into or an earlier or later

day).

(3) If an arrangement entered into under subsection (1) does not

specify a day as mentioned in subsection (2), it has effect on and

after the day on which it is entered into.

(4) The Operator may terminate or alter an arrangement entered into

under subsection (1):

(a) at the person's request; or

(b) after giving 28 days' notice to the person of the proposed

termination or alteration; or

failed to disclose material information about his or her true

capacity to repay the debt.

109 Recovery of amounts from financial institutions

Payment into wrong account

(1) This section applies if:

(a) an amount is paid under this Act to a financial institution for

the credit of an account kept with the institution; and

(b) the Operator is satisfied that the payment was intended to be

made to someone who was not the person or one of the

persons in whose name or names the account was kept.

Notice to financial institution requiring repayment

(2) The Operator may give a written notice to the financial institution

setting out the relevant matters referred to in paragraphs (1)(a) and

(b) and requiring the institution to pay to the Commonwealth,

within a period (being a reasonable period) stated in the notice, the

lesser of the following amounts:

(a) the amount of the payment, as stated in the notice;

(b) the amount standing to the credit of the account when the

notice is given to the institution.

Administrative matters Chapter 4

Debt recovery Part 4-5

Debt recovery Division 2

Section 109

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Offence for contravening notice

(3) A financial institution must comply with a notice given to it under

subsection (2).

Penalty: 300 penalty units.

(4) It is a defence to a prosecution of a financial institution for failing

to comply with a notice given to it under subsection (2) if the

financial institution proves that it was incapable of complying with

the notice.

Note:

A defendant bears a legal burden in relation to the matter in

subsection (4). See section 13.4 of the Criminal Code.

Amount recovered reduces debt

(5) Any amount recovered by the Commonwealth from a financial

institution under this section reduces the amount of a debt referred

to in subsection 106(1) (as it relates to paragraph 106(2)(a)).

Administrative matters Chapter 4

Other administrative matters Part 4-6

Regulatory powers Division 2

Section 111

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Division 2--Regulatory powers

111 Civil penalty provisions

Enforceable civil penalty provisions

(1) Each civil penalty provision of this Act is enforceable under Part 4

of the Regulatory Powers Act.

Note:

Part 4 of the Regulatory Powers Act allows a civil penalty provision to

be enforced by obtaining an order for a person to pay a pecuniary

penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers Act, each of

the following persons is an authorised applicant in relation to the

civil penalty provisions of this Act:

(a) the Operator;

(b) an SES employee, or an acting SES employee, in the

Department or the Human Services Department.

Relevant court

(3) For the purposes of Part 4 of the Regulatory Powers Act, each of

the following courts is a relevant court in relation to the civil

penalty provisions of this Act:

(a) the Federal Court of Australia;

(b) the Federal Circuit Court of Australia.

Chapter 5 Other matters

Part 5-1 Exceptional cases

Division 1 Simplified outline of this Part

Section 112

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Bill 2017

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Chapter 5--Other matters

Part 5-1--Exceptional cases

Division 1--Simplified outline of this Part

112 Simplified outline of this Part

If a person makes an application for redress, but dies before

accepting an offer of redress, the person (or the person's estate)

will not be entitled to redress (see section 15). This Part deals with

that situation and allows for a redress payment to be paid to other

persons in certain circumstances.

Other matters Chapter 5

Exceptional cases Part 5-1

Death of person before acceptance of redress offer Division 2

Section 113

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Division 2--Death of person before acceptance of redress

offer

113 Person dies before determination is made on application for

redress

(1) This section applies if:

(a) a person applies for redress under section 29; and

(b) the person dies at any time after the application is made and

before a determination on the application is made under

section 32.

(2) The Operator must continue with the application as if the person

had not died.

(3) If the Operator approves the application under paragraph 32(2)(a),

then the Operator must:

(a) make a determination under paragraph 32(2)(b) in relation to

the participating institutions liable for providing redress to

the person; and

(b) make a determination under paragraph 32(2)(c) about:

(i) the amount of the redress payment for the person; and

(ii) the amount of each liable institution's share of the cost

of the redress payment.

(4) If the Operator makes a determination under section 32 on the

application, the Operator must give written notice of the

determination stating:

(a) whether or not the application has been approved; and

(b) the reasons for the determination; and

payment;

to the person who the Operator considers is the most appropriate

person to give the notice to.

(5) The redress payment for the person is payable in accordance with

section 115.

Chapter 5 Other matters

Part 5-1 Exceptional cases

Division 2 Death of person before acceptance of redress offer

Section 114

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Bill 2017

No. , 2017

114 Person dies before offer of redress is accepted or declined

(1) This section applies if:

(a) a person applies for redress under section 29; and

(b) the person dies at any time after an offer of redress is made

under section 37 and before the offer is accepted or declined.

(2) At the time of the person's death:

(a) the offer is taken to be withdrawn; and

(b) any application for internal review under section 87 is taken

to be withdrawn.

(3) However, the redress payment for the person is payable in

accordance with section 115.

115 Entitlement to redress payment

(1) This section applies if under subsection 113(5) or 114(3) a redress

payment for a deceased person is payable in accordance with this

section.

(2) The Operator must:

(a) determine who should be paid the redress payment; and

(b) pay the redress payment to that person or those persons as

soon as practicable.

(3) In determining who should be paid the redress payment, the

Operator must consider the people who are entitled to the property

of the deceased person under:

(a) the deceased person's will; and

(b) the law relating to the disposition of the property of deceased

persons.

(4) The Operator may pay the redress payment without requiring:

(a) production of probate of the will of the deceased person; or

(b) letters of administration of the estate of the deceased person.

(5) The rules may prescribe matters relating to the payment of redress

payments under this section.

Other matters Chapter 5

The Commonwealth Redress Scheme Rules Part 5-2

Simplified outline of this Part Division 1

Section 116

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Bill 2017

Part 5-2--The Commonwealth Redress Scheme

Rules

Division 1--Simplified outline of this Part

116 Simplified outline of this Part

The Minister may make rules for the purposes of the scheme. They

are subordinate legislation and may deal with matters that this Act

requires or permits the rules to deal with, or that are necessary or

convenient for the rules to deal with.

Chapter 5 Other matters

Part 5-2 The Commonwealth Redress Scheme Rules

Division 2 The Commonwealth Redress Scheme Rules

Section 117

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 2--The Commonwealth Redress Scheme Rules

117 The Commonwealth Redress Scheme Rules

(1) The Minister may, by legislative instrument, make rules

prescribing matters:

(a) required or permitted by this Act to be prescribed by the

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) The rules may prescribe matters about the following:

(a) the provision of legal services under the scheme;

(b) the provision of support services under the scheme;

(d) whether or how Part 3-1 (about liability to pay funding

contribution) applies to participating institutions that are

Commonwealth institutions;

(e) repaying participating institutions in relation to debts

recovered from a person under section 106.

(3) The provisions of this Act that provide for the rules to deal with

matters do not limit each other.

(4) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

Other matters Chapter 5

Other matters Part 5-3

Simplified outline of this Part Division 1

Section 118

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Part 5-3--Other matters

Division 1--Simplified outline of this Part

118 Simplified outline of this Part

The Minister and the Operator may delegate their powers and

functions to certain officers. However, the Minister cannot delegate

his or her powers and functions to make the rules and the Operator

can only delegate his or her powers and functions under

sections 32 and 88 (which are about determinations relating to

redress applications) to an independent decision-maker.

The Operator may engage a person to be an independent

decision-maker to make determinations relating to redress

applications.

The Operator must prepare and give an annual report on the

operation of the scheme and must include particular information in

that report (such as whether participating institutions have

complied with requirements to provide information relating to

applications for redress during the year).

Unincorporated participating non-government institutions of a

Territory are treated as if they were a person for the purposes of

this Act, but with particular changes.

The Minister must cause a review of the scheme to be conducted.

The scheme ceases on the sunset day (which ordinarily will be the

tenth anniversary of the scheme).

This Part also deals with other miscellaneous matters (such as the

methods by which the Operator may give notices under this Act).

Chapter 5 Other matters

Part 5-3 Other matters

Division 2 Delegation

Section 119

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 2--Delegation

119 Delegation by the Minister

(1) The Minister may, in writing, delegate all or any of his or her

powers or functions under this Act (other than section 117, which

is about the rules) to:

(a) the Operator; or

(b) a person who holds or performs the duties of an SES Band 3

position, or an equivalent position, in the Department.

(2) In exercising a power or performing a function under a delegation,

the delegate must comply with any directions of the Minister.

120 Delegation by the Operator

General powers and functions (other than redress determinations)

(1) The Operator may, in writing, delegate all or any of his or her

powers or functions under this Act (other than sections 32, 88 and

111) to an officer of the scheme.

(2) In exercising a power or performing a function under a delegation

under subsection (1), the delegate must comply with any directions

of the Operator.

General powers and functions for redress determinations

(3) The Operator may, in writing, delegate his or her powers and

functions under section 32 or 88 (which are about determinations

relating to redress applications) to an independent decision-maker.

(4) In exercising a power or performing a function under a delegation

under subsection (3), the delegate is not required to comply with

any directions of the Operator.

Other matters Chapter 5

Other matters Part 5-3

Independent decision-makers Division 3

Section 121

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

Division 3--Independent decision-makers

121 Engaging persons to be independent decision-makers

(1) The Operator may, on behalf of the Commonwealth and with the

approval of the Minister, engage a person, under written

agreement, to assist in the performance of the functions of the

Operator in relation to the making of determinations under

section 32 or 88 on applications for redress.

(2) Before giving an approval under subsection (1), the Minister must

consult the appropriate Ministers from the self-governing

Territories in accordance with the Commonwealth Redress Scheme

Agreement.

(3) A person engaged under subsection (1) is an independent

decision-maker.

(4) Subdivision A of Division 3 of Part 2-2 of the Public Governance,

Performance and Accountability Act 2013 (which deals with

general duties of officials), and any rules made under that Act for

the purposes of that Subdivision, apply to an independent

decision-maker in the same way as they apply to an official (within

the meaning of that Act).

Note:

The duties of officials under the Public Governance, Performance and

Accountability Act 2013 include the duty of care and diligence; the

duty to act honestly, in good faith and for a proper purpose; the duties

in relation to the use of information and position; and the duty to

disclose interests.

Chapter 5 Other matters

Part 5-3 Other matters

Division 4 Reporting to Parliament

Section 122

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 4--Reporting to Parliament

122 Annual report on operation of the scheme

Annual report on the operation of the scheme

(1) As soon as practicable after the end of each financial year, the

Operator must prepare and give an annual report to the Minister,

for presentation to the Parliament, on the operation of the scheme

during the year.

Failure of institutions to provide information to the Operator

(2) The annual report must include the following information for the

year:

(a) the number of requirements for information or documents

made by the Operator under section 70 to a participating

institution that:

(i) were not complied with at all; or

(ii) were complied with only partially; or

(iii) were complied with (fully or partially) after the day

specified in the request;

(b) the name of each of those participating institutions;

for each of those participating institutions.

Failure of institutions to give direct personal responses

(3) The annual report must also include the following information for

the year:

(a) the number of cases where a participating institution:

(i) did not comply with subsection 50(1) (which is about

institutions giving direct personal responses) at all; or

(ii) complied with subsection 50(1) only partially;

(b) the name of each of those participating institutions;

Chapter 5 Other matters

Part 5-3 Other matters

Division 5 Treatment of unincorporated participating non-government institutions of a

Territory

Section 123

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 5--Treatment of unincorporated participating

non-government institutions of a Territory

123 Treatment of participating non-government institutions that are

partnerships

(1) This Act applies to a participating non-government institution of a

Territory that is a partnership as if it were a person, but with the

changes set out in this section.

(2) An obligation that would otherwise be imposed on the institution

by this Act is imposed on each partner instead, but may be

discharged by any of the partners.

(3) An offence against this Act that would otherwise have been

committed by the institution is taken to have been committed by

each partner in the partnership, at the time the offence was

committed, who:

(a) did the relevant act or made the relevant omission; or

(b) aided, abetted, counselled or procured the relevant act or

omission; or

relevant act or omission (whether directly or indirectly and

whether by any act or omission of the partner).

124 Treatment of participating non-government institutions that are

unincorporated associations

(1) This Act applies to a participating non-government institution of a

Territory that is an unincorporated association as if it were a

person, but with the changes set out in this section.

(2) An obligation that would otherwise be imposed on the institution

by this Act is imposed on each member of the association's

committee of management instead, but may be discharged by any

of the members.

Other matters Chapter 5

Other matters Part 5-3

Treatment of unincorporated participating non-government institutions of a Territory

Division 5

Section 124

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

(3) An offence against this Act that would otherwise have been

committed by the institution is taken to have been committed by

each member of the association's committee of management, at the

time the offence was committed, who:

(a) did the relevant act or made the relevant omission; or

(b) aided, abetted, counselled or procured the relevant act or

omission; or

relevant act or omission (whether directly or indirectly and

whether by any act or omission of the member).

Chapter 5 Other matters

Part 5-3 Other matters

Division 6 Miscellaneous

Section 125

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

No. , 2017

Division 6--Miscellaneous

125 Operator's decisions to be in writing

A decision of the Operator under this Act must be in writing.

126 Method of notification by Operator

If this Act requires or permits the Operator to notify a person, the

Operator may notify the person:

(a) by sending the notice by prepaid post addressed to the person

at his or her postal address last known to the Operator; or

(b) by giving the notice to the person personally; or

127 Operator not required to make a determination

(1) If this Act requires an application to be in a form approved by the

Operator, the Operator is not required to make a determination on

the application if it is not in that form.

(2) If this Act permits the Operator to require or request information or

documents for the purposes of, or for purposes relating to, making

a determination or doing a thing, the Operator is not required to

make the determination or do the thing until the information or

documents are provided.

128 Review of the scheme

The Minister must cause a review of the operation of the scheme to

be commenced as soon as possible after:

(a) the eighth anniversary of the scheme start day; or

(b) if, before the eighth anniversary, the rules prescribe a day

that is after the second anniversary--that day.

Other matters Chapter 5

Other matters Part 5-3

Miscellaneous Division 6

Section 129

No. , 2017

Commonwealth Redress Scheme for Institutional Child Sexual Abuse

Bill 2017

129 Sunset of the scheme

(1) Subject to this section, this Act ceases to have effect at the end of

the day (sunset day) that is:

(a) the tenth anniversary of the scheme start day; or

(b) if, before the tenth anniversary, the rules prescribe a day that

is after the tenth anniversary--that day.

(2) Despite subsection (1), at any time before the first anniversary of

the sunset day, rules may be made under section 117 for the

purposes of subsections (3) and (4) of this section.

(3) The rules may prescribe matters of a transitional nature (including

prescribing any saving or application provisions) relating to this

Act ceasing to have effect under subsection (1).

(4) Without limiting subsection (2), the rules may provide that certain

provisions of this Act:

(a) continue to apply after the sunset day for the purposes set out

in the rules; or

(b) continue to apply after the sunset day in a modified way for

the purposes set out in the rules.

Those provisions then continue to apply, or continue to apply in the

modified way, as set out in the rules.

(5) The rules are repealed immediately before the first anniversary of

the sunset day.

Commonwealth of Australia Bills

COMMONWEALTH REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE BILL 2017