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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
National Redress Scheme for Institutional
Child Sexual Abuse (Commonwealth
Powers) Bill 2018
Contents
Page
Part 1 Preliminary
1 Name and purpose of Act 2
2 Commencement 2
3 Definitions 2
Part 2 Reference of matters to Commonwealth Parliament
4 Reference of matters 3
5 State redress mechanisms 3
6 Requirements for agreement of the State 4
7 Termination of references 4
8 Effect of termination of amendment reference before text reference 4
Part 3 Miscellaneous
9 How agreement of the State is given, withdrawn and evidenced 6
10 Information sharing 6
11 Regulations 6
Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act 7
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2018
New South Wales
National Redress Scheme for Institutional
Child Sexual Abuse (Commonwealth
Powers) Bill 2018
Act No , 2018
An Act to refer certain matters relating to the National Redress Scheme for Institutional Child
Sexual Abuse to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of
the Constitution of the Commonwealth; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name and purpose of Act
(1) This Act is the National Redress Scheme for Institutional Child Sexual Abuse
(Commonwealth Powers) Act 2018.
(2) The main purpose of this Act is to refer certain matters relating to the National
Redress Scheme for Institutional Child Sexual Abuse to the Parliament of the
Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the
Commonwealth.
2 Commencement
This Act commences on the date of assent to this Act.
3 Definitions
In this Act, unless the contrary intention appears:
amendment reference means the reference under section 4 (2).
express amendment of the National Redress Act means the direct amendment of the
text of that Act (whether by the insertion, omission, repeal, substitution or relocation
of words or matter) by another Commonwealth Act or by an instrument under a
Commonwealth Act, but does not include the enactment by a Commonwealth Act of
a provision that has or will have substantive effect otherwise than as part of the text
of the National Redress Act.
initial referred provisions means the scheduled text, to the extent to which that text
deals with matters that are included in the legislative powers of the Parliament of the
State.
National Redress Act means a Commonwealth Act enacted in the terms, or
substantially in the terms, of the scheduled text and as in force from time to time.
National Redress Scheme means the National Redress Scheme for Institutional
Child Sexual Abuse as established by the National Redress Act and as in force from
time to time.
participating State institution means a participating State institution within the
meaning of the National Redress Act.
scheduled text means the text of the proposed Bill for a Commonwealth Act, as set
out in Schedule 1 to this Act.
State institution means a State institution within the meaning of the National Redress
Act.
text reference means the reference under section 4 (1).
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Part 2 Reference of matters to Commonwealth Parliament
Part 2 Reference of matters to Commonwealth Parliament
4 Reference of matters
(1) Text reference. Matters to which the initial referred provisions relate are referred to
the Parliament of the Commonwealth, but only to the extent of making laws with
respect to those matters by including the initial referred provisions in a
Commonwealth Act enacted in the terms, or substantially in the terms, set out in the
scheduled text.
(2) Amendment reference. Matters relating to a redress scheme for institutional child
sexual abuse are, except as provided by sections 5 and 6, referred to the Parliament
of the Commonwealth, but only to the extent of making laws with respect to those
matters by making express amendments of the National Redress Act.
(3) The operation of each of subsections (1) and (2) is not affected by the other
subsection.
(4) The reference of a matter under subsection (1) or (2) has effect only:
(a) if and to the extent that the matter is not included in the legislative powers of
the Parliament of the Commonwealth (otherwise than by a reference for the
purposes of section 51 (xxxvii) of the Constitution of the Commonwealth),
and
(b) if and to the extent that the matter is included in the legislative powers of the
Parliament of the State.
(5) To avoid doubt, it is the intention of the Parliament of the State that the National
Redress Act may be expressly amended, or have its operation otherwise affected, at
any time after the commencement of subsection (1):
(a) by provisions of Commonwealth Acts the operation of which is based on
legislative powers that the Parliament of the Commonwealth has apart from
under the references under subsections (1) and (2), and
(b) by provisions of instruments made or issued under the National Redress Act
or under provisions referred to in paragraph (a).
(6) Despite any other provision of this Act other than section 8 (2), a reference under
subsection (1) or (2) has effect for a period:
(a) beginning when the subsection under which the reference is made comes into
operation, and
(b) ending at the beginning of the day fixed under this Part as the day on which
the reference is to terminate,
but no longer.
5 State redress mechanisms
(1) A State redress mechanism is:
(a) a scheme, program or arrangement (temporary or otherwise) established
(before or after the commencement of this Act) by:
(i) the Parliament or government of the State, or
(ii) an institution (whether governmental or non-governmental) or other
entity,
for or in respect of persons who have suffered institutional child sexual abuse
in the State (whether applying only to any such persons or applying to any
class of victims of crime) and any associated matters, or
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Part 2 Reference of matters to Commonwealth Parliament
(b) the jurisdiction of a court or tribunal to grant compensation or support for or
in respect of victims of crime (including crime relating to institutional child
sexual abuse) and any associated matters.
(2) A matter referred by section 4 (2) does not include the matter of making a law to the
extent that that law would operate to prevent or limit the power to establish, or to
prevent or limit the operation of, any State redress mechanism, whether or not the
mechanism deals with the same or similar subject-matters as those dealt with in any
aspect of the National Redress Scheme.
(3) Subsection (2) does not cover any of the following matters (if they would otherwise
be covered by section 4 (2)):
(a) any matter to which the initial referred provisions relate,
(b) the matter of the release or discharge, in connection with the operation of the
National Redress Scheme, of relevant civil liability of institutions or officials,
(c) the matter of the disclosure or use of evidence or other information provided
or obtained in connection with the operation of the National Redress Scheme,
(d) the matter of the making, enforcement or protection (for example, protection
against the operation of orders in the nature of garnishee orders) of payments
in connection with the operation of the National Redress Scheme.
6 Requirements for agreement of the State
A matter referred by section 4 (2) does not include the matter of making a law to the
extent that that law would substantively remove or override a provision of the
National Redress Act that requires the agreement of the State.
7 Termination of references
(1) The Governor may, at any time, by proclamation published on the NSW legislation
website, fix a day as the day on which:
(a) the text reference is to terminate, or
(b) the amendment reference is to terminate,
or both.
(2) The Governor may, by proclamation published on the NSW legislation website,
revoke a proclamation published under subsection (1), in which case the revoked
proclamation is taken (for the purposes of section 4) never to have been published.
(3) A revoking proclamation has effect only if published before the day fixed under
subsection (1).
(4) The revocation of a proclamation published under subsection (1) does not prevent
publication of a further proclamation under that subsection.
8 Effect of termination of amendment reference before text reference
(1) If the amendment reference terminates before the text reference, the termination of
the amendment reference does not affect:
(a) laws that were made under that reference before that termination (whether or
not they have come into operation before that termination), or
(b) the continued operation in the State of the National Redress Act as in operation
immediately before that termination or as subsequently amended or affected
by:
(i) laws referred to in paragraph (a) that come into operation after that
termination, or
(ii) provisions referred to in section 4 (5).
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Part 2 Reference of matters to Commonwealth Parliament
(2) Accordingly, the amendment reference continues to have effect for the purposes of
subsection (1) unless the text reference is terminated.
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Part 3 Miscellaneous
Part 3 Miscellaneous
9 How agreement of the State is given, withdrawn and evidenced
(1) The regulations may make provision for or with respect to, or (subject to any relevant
provisions of the regulations) the Minister may give directions as to, how the
agreement of the State is to be given or withdrawn and may be evidenced for the
purposes of, and consistently with, this Act and the National Redress Scheme.
(2) Without limitation:
(a) the regulations or directions may authorise a person to give agreement on
behalf of the State, and
(b) the agreement of the State to State institutions participating in the National
Redress Scheme may be given in respect of:
(i) one or more particular State institutions, or
(ii) a class of State institutions, however described.
10 Information sharing
(1) In this section:
Operator means the Operator within the meaning of the National Redress Act.
State agency means the whole or part of a body (whether or not incorporated)
established for a public purpose by or under a law of the State, whether or not it is a
State institution or participating State institution, and includes a body or class of
bodies prescribed by the regulations as being within this definition, but does not
include a body or class of bodies prescribed by the regulations as not being within
this definition.
(2) A participating State institution may give information to the Operator for the purpose
of complying with a request made by the Operator to the participating State
institution under the National Redress Act to give information in relation to an
application under the National Redress Scheme.
(3) A State agency may give information to another State agency for the purpose of
assisting any participating State institution to comply with a request made by the
Operator to the participating State institution under the National Redress Act to give
information as referred to in subsection (2).
(4) Nothing in a law of the State prevents:
(a) a participating State institution from giving information to the Operator as
referred to in subsection (2), or
(b) a State agency from giving information to another State agency as referred to
in subsection (3),
unless that law is prescribed by the regulations under this Act.
(5) A reference in this section to a participating State institution is a reference to a
participating State institution that is, is part of or is connected with the State.
11 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
Schedule 1 Scheduled text of the proposed Bill for a
Commonwealth Act
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Redress Scheme for
Institutional Child Sexual Abuse Bill
2018
No. , 2018
(Social Services)
A Bill for an Act to establish the National Redress
Scheme for Institutional Child Sexual Abuse, and
for related purposes
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
Contents
Chapter 1--Introduction 2
Part 1-1--Introduction 2
Division 1--Preliminary 2
1 Short title .............................................................................. 2
2 Commencement .................................................................... 2
Division 2--Objects of this Act 4
3 Objects of this Act ................................................................ 4
Division 3--Simplified outline of this Act 5
4 Simplified outline of this Act ............................................... 5
Part 1-2--Definitions 8
Division 1--Simplified outline of this Part 8
5 Simplified outline of this Part ............................................... 8
Division 2--The Dictionary 9
6 The Dictionary ...................................................................... 9
Chapter 2--The National Redress Scheme for
Institutional Child Sexual Abuse 16
Part 2-1--Establishment of the scheme 16
Division 1--Simplified outline of this Part 16
7 Simplified outline of this Part ............................................. 16
Division 2--Establishment of the scheme 17
8 Establishment of the scheme .............................................. 17
9 The National Redress Scheme Operator ............................. 17
10 General principles guiding actions of officers under the
scheme ................................................................................ 17
Part 2-2--Entitlement to redress under the scheme 19
Division 1--Simplified outline of this Part 19
11 Simplified outline of this Part ............................................. 19
Division 2--Entitlement to redress under the scheme 21
12 When is a person entitled to be provided with redress? ...... 21
13 When is a person eligible for redress? ................................ 21
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14 When is abuse within the scope of the scheme? ................. 22
15 When is an institution responsible for abuse? ..................... 23
16 What redress is provided to a person? ................................ 24
17 What is redress for? ............................................................ 25
Part 2-3--How to obtain redress under the scheme 26
Division 1--Simplified outline of this Part 26
18 Simplified outline of this Part ............................................. 26
Division 2--Application for redress under the scheme 28
19 Application for redress ....................................................... 28
20 When an application cannot be made ................................. 28
21 Special process for child applicants .................................... 29
22 Withdrawal of an application.............................................. 29
23 Notice of a withdrawal to participating institutions ............ 29
Division 3--Obtaining information for the purposes of
determining the application 30
24 Power to request information from the applicant ................ 30
25 Power to request information from participating
institutions .......................................................................... 31
26 Failure of the applicant or institutions to comply with a
request ................................................................................ 32
27 State or Territory laws do not prevent complying with
request ................................................................................ 33
28 False or misleading information, documents or statements 33
Division 4--The Operator must determine whether to approve
the application 34
29 The Operator must make a determination on the
application .......................................................................... 34
30 Working out the amount of redress payment and sharing of
costs .................................................................................... 37
31 Working out the amount of the counselling and
psychological component and sharing of costs ................... 39
32 The assessment framework ................................................. 39
33 The assessment framework policy guidelines..................... 40
Division 5--Notice of determination to applicant and
participating institutions 41
34 Notice of determination to applicant .................................. 41
35 Notice of determination to participating institutions .......... 41
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Division 6--Effect of determination and admissibility of
evidence in civil proceedings 43
36 Effect of determination ....................................................... 43
37 Admissibility of documents in evidence in civil
proceedings......................................................................... 43
Part 2-4--Offers and acceptance of redress 45
Division 1--Simplified outline of this Part 45
38 Simplified outline of this Part ............................................. 45
Division 2--Offers of redress 46
39 Offer of redress ................................................................... 46
40 Acceptance period for offers of redress .............................. 48
41 Notice of offer to participating institutions ......................... 48
Division 3--Accepting or declining offers of redress 49
42 Accepting the offer of redress ............................................. 49
43 Effect of acceptance on civil liability ................................. 50
44 Notice to participating institutions that the offer is
accepted .............................................................................. 51
45 Declining the offer of redress ............................................. 51
46 Notice to participating institutions that the offer is
declined .............................................................................. 52
Part 2-5--Provision of redress under the scheme 53
Division 1--Simplified outline of this Part 53
47 Simplified outline of this Part ............................................. 53
Division 2--The redress payment 54
48 The Operator must pay the redress payment ....................... 54
49 Protection of the redress payment--general ....................... 54
50 Additional protection of the redress payment--garnishee
orders .................................................................................. 55
Division 3--Counselling and psychological component of
redress 56
51 The Operator must enable access to the counselling and
psychological component of redress ................................... 56
52 Protection of the counselling and psychological services
payment--general............................................................... 56
53 Additional protection of the counselling and psychological
services payment--garnishee orders .................................. 57
Division 4--Direct personal responses 59
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54 Direct personal response from responsible institutions....... 59
55 The direct personal response framework ............................ 59
56 General principles guiding provision of direct personal
responses ............................................................................ 60
Chapter 3--Special rules to deal with exceptional
cases 61
Part 3-1--Special rules allowing entitlement to redress 61
Division 1--Simplified outline of this Part 61
57 Simplified outline of this Part ............................................. 61
Division 2--Death of person before acceptance of redress offer 62
58 Person dies before determination is made on application for
redress................................................................................. 62
59 Person dies before offer of redress is accepted, declined or
withdrawn ........................................................................... 63
60 Entitlement to redress payment .......................................... 64
Division 3--Abuse for which a Commonwealth institution or
participating Territory institution is responsible 65
61 Abuse occurring inside a non-participating State ............... 65
Part 3-2--Special rules excluding entitlement to redress 66
Division 1--Simplified outline of this Part 66
62 Simplified outline of this Part ............................................. 66
Division 2--Special assessment of applicants with serious
criminal convictions 67
63 Special assessment of applicants with serious criminal
convictions ......................................................................... 67
Division 3--Security notices 70
Subdivision A--No entitlement to redress while security notice in
force 70
64 Person not entitled to redress while security notice in force 70
Subdivision B--Security notice 70
65 Security notice from the Home Affairs Minister ................ 70
66 Notice from the Foreign Affairs Minister ........................... 71
67 Copy of a security notice to be given to the Operator and the
Human Services Secretary .................................................. 71
68 Period a security notice is in force ...................................... 72
69 Annual review of a security notice ..................................... 72
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70 Revoking a security notice ................................................. 72
Subdivision C--Other matters affected by a security notice 72
71 Other matters affected by a security notice ......................... 72
Chapter 4--Administrative matters 74
Part 4-1--Review of determinations 74
Division 1--Simplified outline of this Part 74
72 Simplified outline of this Part ............................................. 74
Division 2--Review of determinations 75
73 Application for review of determination............................. 75
74 Withdrawal of application for review ................................. 75
75 The review .......................................................................... 75
76 Date of effect of review determination ............................... 76
77 Notice of review determination to applicant ....................... 76
78 Interaction between review and offer of redress ................. 76
79 Notices to participating institutions about review............... 77
Part 4-2--Nominees 78
Division 1--Simplified outline of this Part 78
80 Simplified outline of this Part ............................................. 78
Division 2--Appointment of nominees 79
81 Appointment of nominees .................................................. 79
82 Suspension and revocation of nominee appointments ........ 79
Division 3--Duties, functions and responsibilities of nominees 81
83 Duty of nominee ................................................................. 81
84 Actions of assistance nominee ............................................ 81
85 Actions of legal nominee .................................................... 82
86 Giving notices to assistance nominee or legal nominee ...... 82
87 Nominee to inform the Operator of matters affecting ability
to act as nominee ................................................................ 83
Division 4--Other matters relating to nominees 84
88 Protection of person against liability for actions of
nominee .............................................................................. 84
89 Protection of nominee against criminal liability ................. 84
90 Informing nominee if notice given to person ...................... 84
Part 4-3--Protecting information under the scheme 85
Division 1--Simplified outline of this Part 85
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Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
91 Simplified outline of this Part ............................................. 85
Division 2--Use and disclosure of protected information 86
92 Protected information ......................................................... 86
93 Main authorisation--obtaining, recording, disclosing or
using protected information ................................................ 86
94 Additional authorisation--Operator disclosing to nominee 87
95 Additional authorisation--Operator disclosing in public
interest or for another specified purpose ............................. 87
96 Additional authorisation--Operator disclosing for law
enforcement or child safety or wellbeing............................ 88
97 Additional authorisation--disclosing etc. for a permitted
purpose ............................................................................... 89
98 Additional authorisation--person engaged by participating
institution disclosing etc. for a specified purpose ............... 91
99 Offence--unauthorised access, recording, disclosure or use
of protected information ..................................................... 91
100 Offence--soliciting disclosure of protected information .... 92
101 Offence--offering to disclose protected information ......... 92
Division 3--Use and disclosure of the assessment framework
policy guidelines 94
102 Main authorisation for obtaining, recording, disclosing or
using the assessment framework policy guidelines ............ 94
103 Additional authorisation--disclosure and use in accordance
with the National Redress Scheme Agreement ................... 94
104 Offence--unauthorised recording, disclosure or use of
assessment framework policy guidelines ............................ 94
Division 4--Other matters 96
105 Disclosures to a court or tribunal ........................................ 96
106 Disclosing information in good faith .................................. 96
Chapter 5--Participating institutions, participating
groups and participating jurisdictions 98
Part 5-1--Participating institutions 98
Division 1--Simplified outline of this Part 98
107 Simplified outline of this Part ............................................. 98
Division 2--Institutions participating in the scheme 100
Subdivision A--Participating institutions 100
108 What is a participating institution? ................................... 100
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Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
Subdivision B--Commonwealth institutions 100
109 What is a Commonwealth institution? .............................. 100
Subdivision C--Participating State institutions 101
110 What is a participating State institution? .......................... 101
111 What is a State institution? ............................................... 101
Subdivision D--Participating Territory institutions 101
112 What is a participating Territory institution? .................... 101
113 What is a Territory institution? ......................................... 102
Subdivision E--Participating non-government institutions 102
114 What is a participating non-government institution? ........ 102
Division 3--Ministerial declarations about participating
institutions 104
115 Institutions becoming participating institutions ................ 104
116 Institutions ceasing to be participating institutions ........... 105
Division 4--Participating defunct institutions 108
Subdivision A--Participating defunct institutions 108
117 What is a participating defunct institution? ...................... 108
Subdivision B--Representatives for participating defunct
institutions 108
118 Representatives for participating defunct institutions ....... 108
119 Becoming the representative for a defunct non-government
institution .......................................................................... 109
120 Ceasing to be the representative for a defunct
non-government institution............................................... 109
121 Actions of the representative for a defunct institution ...... 110
122 Giving notices to the representative for a defunct
institution .......................................................................... 110
123 Obligations and liabilities of the representative for a defunct
institution .......................................................................... 110
Division 5--Participating lone institutions 111
Subdivision A--Participating lone institutions 111
124 What is a participating lone institution? ........................... 111
Subdivision B--Representatives for participating lone
institutions 111
125 Representatives for participating lone institutions ............ 111
126 Becoming the representative for an unincorporated lone
institution .......................................................................... 112
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Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
127 Becoming the representative for an incorporated lone
institution .......................................................................... 112
128 Ceasing to be the representative for a lone institution ...... 112
129 Actions of the representative for a lone institution ........... 113
130 Giving notices to the representative for a lone institution 114
131 Joint and several liability of the representative for an
unincorporated lone institution for funding contribution .. 114
Part 5-2--Groups of institutions participating in the scheme 115
Division 1--Simplified outline of this Part 115
132 Simplified outline of this Part ........................................... 115
Division 2--Participating groups 116
133 Participating groups .......................................................... 116
134 Institutions becoming members of a participating group .. 116
135 Institutions ceasing to be members of a participating
group ................................................................................ 117
Division 3--Representatives for participating groups 119
136 Representatives for participating groups .......................... 119
137 Becoming the representative for a participating group of
non-government institutions ............................................. 119
138 Ceasing to be the representative for a participating group of
non-government institutions ............................................. 120
139 Actions of the representative for a participating group ..... 121
140 Giving notices to the representative for a participating
group ................................................................................ 121
141 Joint and several liability of the representative for funding
contribution ...................................................................... 121
Part 5-3--Jurisdictions participating in the scheme 122
Division 1--Simplified outline of this Part 122
142 Simplified outline of this Part ........................................... 122
Division 2--Participating jurisdictions 123
143 What is a participating jurisdiction? ................................. 123
144 What is a participating State? ........................................... 123
145 The referred national redress scheme matters ................... 126
Division 3--Participating jurisdictions providing counselling
and psychological services under the scheme 128
146 Participating jurisdictions that are declared providers ...... 128
147 Ministerial declarations about declared providers ............ 128
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Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
Chapter 6--Financial matters 129
Part 6-1--Liability for funding 129
Division 1--Simplified outline of this Part 129
148 Simplified outline of this Part ........................................... 129
Division 2--Liability of participating institutions for funding
contribution 131
149 Liability for funding contribution ..................................... 131
150 Funding contribution ........................................................ 131
151 Redress element ................................................................ 132
152 Scheme administration element ........................................ 132
153 When funding contribution is due for payment ................ 132
154 Late payment penalty ....................................................... 133
155 Payment of funding contribution and late payment
penalty .............................................................................. 133
156 Waiver of funding contribution and late payment penalty 133
157 Review of decision about waiving funding contribution or
penalty .............................................................................. 134
158 Liability of corporate State or Territory institutions for
funding contribution ......................................................... 135
Division 3--Liability of the Commonwealth for counselling and
psychological services contribution 136
159 Liability for counselling and psychological services
contribution ...................................................................... 136
160 Counselling and psychological services contribution ....... 136
Division 4--Appropriation 137
161 Appropriation ................................................................... 137
Part 6-2--Funders of last resort 138
Division 1--Simplified outline of this Part 138
162 Simplified outline of this Part ........................................... 138
Division 2--Funders of last resort 139
163 Funders of last resort ........................................................ 139
164 Listing defunct institutions ............................................... 139
Division 3--Special rules for funder of last resort cases 141
165 Special rules for funder of last resort cases....................... 141
Part 6-3--Debt recovery 143
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
Division 1--Simplified outline of this Part 143
166 Simplified outline of this Part ........................................... 143
Division 2--Debt recovery 144
167 Recovery of amounts (other than funding contribution and
late payment penalty) ....................................................... 144
168 Recovery of funding contribution and late payment
penalty .............................................................................. 145
169 Legal proceedings to recover debt .................................... 145
170 Arrangement for payment of debt ..................................... 145
171 Recovery of amounts from financial institutions .............. 146
172 Repayment of recovered amount to participating
institutions ........................................................................ 147
Chapter 7--Other matters 148
Part 7-1--Application of this Act 148
Division 1--Simplified outline of this Part 148
173 Simplified outline of this Part ........................................... 148
Division 2--Application of this Act 149
174 Constitutional basis for this Act ....................................... 149
175 Concurrent operation with State and Territory laws ......... 150
176 Extraterritorial application and extension to external
Territories ......................................................................... 150
177 Crown to be bound ........................................................... 150
Part 7-2--The National Redress Scheme Rules 151
Division 1--Simplified outline of this Part 151
178 Simplified outline of this Part ........................................... 151
Division 2--The National Redress Scheme Rules 152
179 The National Redress Scheme Rules ................................ 152
Part 7-3--Other matters 154
Division 1--Simplified outline of this Part 154
180 Simplified outline of this Part ........................................... 154
Division 2--Giving notices for the purposes of the scheme 155
181 Persons or institutions giving notices to the Operator ...... 155
182 Operator giving notices to persons or institutions ............ 155
Division 3--Delegation 156
183 Delegation by the Minister ............................................... 156
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184 Delegation by the Operator............................................... 156
Division 4--Independent decision-makers 157
185 Engaging persons to be independent decision-makers...... 157
Division 5--Miscellaneous 158
186 Giving agreement ............................................................. 158
187 Annual report on operation of the scheme ........................ 158
188 Approved forms ................................................................ 158
189 Determinations of the Operator to be in writing ............... 158
190 Civil penalty provisions .................................................... 159
191 Compensation for acquisition of property ........................ 160
192 Review of the scheme ....................................................... 160
193 Sunset of the scheme ........................................................ 162
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A Bill for an Act to establish the National Redress
Scheme for Institutional Child Sexual Abuse, and
for related purposes
The Parliament of Australia enacts:
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Chapter 1--Introduction
Part 1-1--Introduction
Division 1--Preliminary
1 Short title
This Act is the National Redress Scheme for Institutional Child
Sexual Abuse Act 2018.
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 As follows:
this Act (a) if this Act receives the Royal Assent
before 1 July 2018--1 July 2018;
(b) if this Act receives the Royal Assent on
or after 1 July 2018--a single day to be
fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
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.
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(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.
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Division 2--Objects of this Act
3 Objects of this Act
(1) The main objects of this Act are:
(a) to recognise and alleviate the impact of past institutional
child sexual abuse and related abuse; and
(b) to 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 National Redress Scheme for Institutional
Child Sexual Abuse; and
(b) to provide redress under the scheme which consists of:
(i) a monetary payment to survivors as a tangible means of
recognising the wrong survivors have suffered; and
(ii) a counselling and psychological component which,
depending on where the survivor lives, consists of
access to counselling and psychological services or a
monetary payment; and
(iii) a direct personal response to survivors from the
participating institutions responsible; and
(c) to enable institutions responsible for abuse of survivors to
participate in the scheme to provide that redress to those
survivors; and
(d) to implement the joint response of:
(i) the Commonwealth Government; and
(ii) the government of each participating State; and
(iii) the government of each participating Territory;
to the recommendations of the Royal Commission into
Institutional Responses to Child Sexual Abuse in relation to
redress.
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Division 3--Simplified outline of this Act
4 Simplified outline of this Act
This Act establishes the National 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. 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 before the scheme start day; and
(c) it occurred inside a participating State, inside a
Territory, or outside Australia (that is, it did not occur
inside a State that is not participating in the scheme).
Redress consists of 3 components:
(a) a redress payment (of up to $150,000); and
(b) a counselling and psychological component which,
depending on where the person lives, consists of access
to counselling and psychological services or a
counselling and psychological services payment (of up
to $5,000); and
(c) a direct personal response from each participating
institution responsible for the abuse.
To be entitled to redress, a number of conditions need to be met.
First, the person must make an application for redress. Then the
person must meet the eligibility criteria. These are that:
(a) the person was sexually abused; and
(b) the abuse is within the scope of the scheme; and
(c) the abuse is of a kind for which the maximum amount of
redress payment worked out under the assessment
framework would be more than nil; and
(d) one or more participating institutions are responsible for
the abuse; and
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(e) at the time of the application, the person is an Australian
citizen or a permanent resident.
A participating institution is responsible for abuse of a person if the
abuse occurred in circumstances where the participating institution
is 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).
The participating institutions are:
(a) all Commonwealth institutions; and
(b) any State institution that is declared to be a participating
institution; and
(c) any Territory institution that is declared to be a
participating institution; and
(d) any non-government institution that is declared to be a
participating institution.
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 required to release
particular institutions and officials from all civil liability for the
abuse. Those institutions and officials are the participating
institutions determined by the Operator to be responsible for the
abuse, their officials, their associates and the officials of their
associates. The abuser is not released from liability.
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 not required to release any
institution or official from liability for the abuse.
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The Operator is responsible for the administration of the scheme.
To ensure that the scheme is survivor-focussed, the Operator (and
other officers of 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. Those institutions are also liable
for contributing to the costs of the administration of the scheme.
The Operator is responsible for recovering those costs from those
institutions through funding contributions, which those institutions
are required to pay on a quarterly basis.
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Part 1-2--Definitions
Division 1--Simplified outline of this Part
5 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 6).
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.
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Division 2--The Dictionary
6 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 has
abused the other person.
acceptance document: see subsection 42(2).
acceptance period: see section 40.
adoption Act: see subsection 144(9).
amendment reference: see subsection 144(3).
approved form means a form approved under section 188.
assessment framework: see subsection 32(2).
assessment framework policy guidelines: see subsection 33(3).
assistance nominee means a person who is appointed as an
assistance nominee under paragraph 81(1)(a).
associate: for when a participating institution is an associate of
another participating institution, see subsection 133(3) and 135(5).
child means a person under the age of 18.
civil penalty provision has the same meaning as in the Regulatory
Powers Act.
Commonwealth institution: see section 109.
component of redress means any of the 3 components of redress
referred to in subsection 16(1).
counselling and psychological component of redress means:
(a) the counselling and psychological services payment; or
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(b) access to counselling and psychological services under the
scheme.
counselling and psychological services contribution: see
section 160.
counselling and psychological services payment means a payment
payable under subsection 51(3).
declared provider: see subsection 146(2).
defunct: an institution is defunct if it is no longer in existence.
direct personal response: see subsection 54(2).
direct personal response framework: see subsection 55(2).
eligible: see section 13.
entitled: see subsections 12(2), (3) and (4).
equally responsible: for when a participating institution is equally
responsible for abuse of a person, see subsections 15(3), (5) and
(6).
express amendment: see subsection 144(9).
financial institution means a body corporate that is an authorised
deposit-taking institution for the purposes of the Banking Act 1959.
Foreign Affairs Minister means the Minister administering the
Australian Passports Act 2005.
funder of last resort: for when a participating government
institution is the funder of last resort for a defunct institution, see
section 163.
funding contribution: see section 150.
government institution means a Commonwealth institution, State
institution or Territory institution.
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Home Affairs Minister means the Minister administering the
Australian Security Intelligence Organisation Act 1979.
Human Services Department means the Department administered
by the Minister administering the Human Services (Centrelink) Act
1997.
incorporated lone institution: see paragraph 124(3)(b).
independent decision-maker: see subsection 185(3).
initial referred provisions: see subsection 144(9).
institution means any body, entity, group of persons or
organisation (whether or not incorporated), but does not include a
family or an individual.
legal nominee means a person who is appointed as a legal nominee
under paragraph 81(1)(b).
listed: for when a defunct institution is listed for a participating
jurisdiction, see subsection 164(1).
lone institution: see subsection 124(2).
maximum amount: see step 1 of the method statement in
subsection 30(2).
National Redress Scheme Agreement means the
Intergovernmental Agreement on the National Redress Scheme for
Institutional Child Sexual Abuse, as in force from time to time.
National Redress Scheme Operator: see the definition of
Operator.
National Service Standards means the National Service Standards
set out in the National Redress Scheme Agreement.
nominee means an assistance nominee or a legal nominee.
non-government institution: see subsections 114(2) and (3).
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non-participating State means a State that is not a participating
State.
non-sexual abuse includes physical abuse, psychological abuse
and neglect.
officer of the scheme means:
(a) a person in the Department or the Human Services
Department performing duties, or exercising powers or
functions, under or in relation to this Act (including the
Operator); or
(b) an independent decision-maker; or
(c) a person prescribed by the rules.
official of an institution means a person who is or has been an
officer, employee, volunteer or agent of the institution.
Operator (short for National Redress Scheme Operator) means the
person who is the Secretary of the Department, in the person's
capacity as Operator of the scheme (as referred to in section 9).
original determination: see paragraph 73(1)(b).
original version of this Act: see subsection 144(9).
participating defunct institution: see section 117.
participating government institution means:
(a) a Commonwealth institution; or
(b) a participating State institution; or
(c) a participating Territory institution.
participating group: see subsection 133(2).
participating incorporated lone institution: see subsection 124(5).
participating institution: see subsections 108(2) and 116(7).
participating jurisdiction: see section 143.
participating lone institution: see subsection 124(1).
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participating non-government institution: see subsection 114(1).
participating State: see section 144.
participating State institution: see section 110.
participating Territory means the Australian Capital Territory or
the Northern Territory.
participating Territory institution: see section 112.
participating unincorporated lone institution: see
subsection 124(4).
permitted purpose: see paragraph 97(1)(e).
primarily responsible: for when a participating institution is
primarily responsible for abuse of a person, see subsections 15(2),
(5) and (6).
production period: see paragraphs 24(3)(c) and 25(4)(c).
protected information: see subsection 92(2).
quarter: see subsection 149(2).
reasonable likelihood, in relation to a person being eligible for
redress, means the chance of the person being eligible is real, is not
fanciful or remote and is more than merely plausible.
redress: see subsection 16(1).
redress element: see section 151.
redress payment means a payment payable under section 48 or 60.
referral Act: see subsection 144(9).
referred national redress scheme matters: see subsections 145(1)
and (2).
Regulatory Powers Act means the Regulatory Powers (Standard
Provisions) Act 2014.
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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.
released institution or official: see paragraph 42(2)(c).
relevant prior payment: see step 3 of the method statement in
subsection 30(2).
relevant version of this Act: see subsection 144(9).
representative:
(a) for a participating defunct institution: see subsections 118(2),
(3), (4) and (5) and 120(4); or
(b) for a participating lone institution: see subsections 125(2) and
(3) and 128(4); or
(c) for a participating group: see subsections 136(2), (3), (4) and
(5) and 138(4).
responsible: for when a participating institution is responsible for
abuse of a person, see subsections 15(1), (5) and (6).
responsible institution: an institution is a responsible institution in
relation to abuse of a person if the Operator has determined under
paragraph 29(2)(b) that the institution is responsible for that abuse.
review determination: see paragraph 75(2)(b).
rules means the rules made by the Minister under section 179.
saved amount:
(a) for a redress payment: see subsection 50(2); or
(b) for a counselling and psychological services payment: see
subsection 53(2).
scheme means the National Redress Scheme for Institutional Child
Sexual Abuse established under section 8.
scheme administration element: see subsection 152(1).
scheme start day means the day this Act commences.
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scheme sunset day: see subsection 193(1).
security notice: see subsection 65(1).
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.
State institution: see section 111.
State redress mechanism: see subsection 145(4).
survivor means a person who has suffered sexual abuse that is
within the scope of the scheme.
Territory means a Territory referred to in section 122 of the
Constitution.
Note: A participating Territory is a type of Territory, but there are other
Territories that are covered by this definition (e.g. the Jervis Bay
Territory).
Territory institution: see section 113.
text reference: see subsection 144(2).
this Act includes:
(a) the rules; and
(b) any other instrument made under this Act.
unincorporated lone institution: see paragraph 124(3)(a).
wholly-owned Commonwealth company has the same meaning as
in the Public Governance, Performance and Accountability Act
2013.
within the scope: for when abuse is within the scope of the
scheme, see section 14.
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Chapter 2--The National Redress Scheme for
Institutional Child Sexual Abuse
Part 2-1--Establishment of the scheme
Division 1--Simplified outline of this Part
7 Simplified outline of this Part
This Part formally establishes the National 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.
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Division 2--Establishment of the scheme
8 Establishment of the scheme
The National Redress Scheme for Institutional Child Sexual Abuse
is established by this Act.
9 The National Redress Scheme Operator
(1) The Secretary of the Department is the National Redress Scheme
Operator.
(2) The Operator is responsible for operating the scheme.
(3) The Operator may arrange for support and assistance (including
legal assistance) to be provided to a person (including a person
who is an applicant, or prospective applicant, for redress) in
relation to the doing of things under, or for the purposes of, the
scheme.
Note: For example, the Operator might arrange for support and assistance to
be provided to help prepare a person's application for redress.
(4) The Operator may, on behalf of the Commonwealth:
(a) enter into a contract, agreement, deed or understanding
relating to the provision of support or assistance provided
under the scheme; and
(b) vary and administer that contract, agreement, deed or
understanding.
10 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 of the scheme 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:
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(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
(c) the needs of particularly vulnerable survivors.
(4) Redress should be assessed, offered and provided so as to avoid, as
far as possible, further harming or traumatising the survivor.
(5) Redress should be assessed, offered and provided in a way that
protects the integrity of the scheme.
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Part 2-2--Entitlement to redress under the scheme
Division 1--Simplified outline of this Part
11 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 abuse is within the
scope of the scheme, the abuse is of a kind for which the amount of
redress payment worked out under the assessment framework
would be more than nil, one or more participating institutions are
responsible for the abuse, 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. (Offers and acceptance of redress
are dealt with in Part 2-4.)
If the person accepts the offer, then the person becomes entitled to
redress under the scheme. The person is required to release
particular institutions and officials from all civil liability for the
abuse. Those institutions are the participating institutions
determined by the Operator to be responsible for the abuse, their
officials, their associates and the officials of their associates. The
abuser is not released from liability.
Once entitled, the person will be provided with redress under the
scheme. (Provision of redress is dealt with in Part 2-5.)
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If the person declines the offer, then the person is not entitled to
redress under the scheme. The person is not required to release any
institution or official from civil liability for the abuse.
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Division 2--Entitlement to redress under the scheme
12 When is a person entitled to be provided with redress?
(1) A person can only be provided with redress under the scheme if the
person is entitled to it.
(2) A person is entitled to redress under the scheme if:
(a) the person applies for redress under section 19; and
(b) the Operator considers that there is a reasonable likelihood
that the person is eligible for redress under the scheme (see
section 13 for eligibility); and
(c) the Operator approves the application under section 29; and
(d) the Operator makes an offer of redress to the person under
section 39; and
(e) the person accepts the offer in accordance with section 42.
(3) A person is also entitled to redress, or a component of redress,
under the scheme if this Act or the rules prescribe that the person is
entitled to it.
Note: For cases where this Act prescribes that a person is entitled to redress,
or a component of redress, under the scheme, see Part 3-1.
(4) Despite subsections (2) and (3), a person is not entitled to redress,
or a component of redress, under the scheme if this Act or the rules
prescribe that the person is not entitled to it.
Note: For cases where this Act prescribes that a person is not entitled to
redress, or a component of redress, under the scheme, see Part 3-2.
13 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 14); and
(c) the sexual abuse is of a kind for which the maximum amount
of redress payment that could be payable to the person (as
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worked out under the assessment framework) would be more
than nil; and
(d) one or more participating institutions are responsible for the
abuse (see section 15); and
(e) the person is an Australian citizen or a permanent resident
(within the meaning of the Australian Citizenship Act 2007)
at the time the person applies for redress.
Note 1: 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.
Note 2: For which institutions are participating institutions, see
subsection 108(2).
(2) A person is also eligible for redress under the scheme if this Act or
the rules prescribe that the person is eligible for it.
(3) Despite subsections (1) and (2), a person is not eligible for redress
under the scheme if this Act or the rules prescribe that the person is
not eligible for it.
14 When is abuse within the scope of the scheme?
(1) 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:
(i) inside a participating State; or
(ii) inside a Territory; or
(iii) outside Australia; and
(c) it occurred before the scheme start day.
(2) Abuse of a person is within the scope of the scheme if this Act or
the rules prescribe that it is.
(3) Despite subsections (1) and (2), abuse of a person is not within the
scope of the scheme if this Act or the rules prescribe that it is not.
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15 When is an institution responsible for abuse?
When is an institution responsible for abuse?
(1) An institution (whether or not a participating institution) is
responsible for abuse of a person if the institution is primarily
responsible or equally responsible for the abuse.
When an institution is primarily responsible for abuse
(2) An institution is primarily responsible for abuse of a person if the
institution is solely or primarily responsible for the abuser having
contact with the person.
When an institution is equally responsible for abuse
(3) An institution is equally responsible for abuse of a person if:
(a) the institution and one or more other institutions are
approximately equally responsible for the abuser having
contact with the person; and
(b) no institution is primarily responsible for the abuse of the
person.
Relevant circumstances for determining responsibility
(4) Without limiting the circumstances that might be relevant for
determining under subsection (2) or (3) whether an institution is
primarily responsible or equally responsible for the abuser having
contact with the person, the following circumstances are relevant:
(a) whether the institution was responsible for the day-to-day
care or custody of the person when the abuse occurred;
(b) whether the institution was the legal guardian of the person
when the abuse occurred;
(c) whether the institution was responsible for placing the person
into the institution in which the abuse occurred;
(d) whether the abuser was an official of the institution when the
abuse occurred;
(e) whether the abuse occurred:
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(i) on the premises of the institution; or
(ii) where activities of the institution took place; or
(iii) in connection with the activities of the institution;
(f) any other circumstances that are prescribed by the rules.
Note: When determining the question whether an institution is responsible
for abuse of a person, the circumstances listed in this subsection are
relevant to that question, but none of them on its own is determinative
of that question.
(5) Despite subsections (1), (2) and (3), an institution is responsible,
primarily responsible or equally responsible for abuse of a person
in the circumstances (if any) prescribed by the rules.
(6) Despite subsections (1), (2) and (3), an institution is not
responsible, primarily responsible or equally responsible for
abuse of a person in the circumstances (if any) prescribed by the
rules.
16 What redress is provided to a person?
(1) Redress for a person consists of 3 components:
(a) a redress payment (of up to $150,000); and
(b) a counselling and psychological component which,
depending on where the person lives (as stated in the
person's application for redress), consists of:
(i) access to counselling and psychological services
provided under the scheme; or
(ii) a payment (of up to $5,000) to enable the person to
access counselling and psychological services provided
outside of the scheme; and
(c) a direct personal response from each of the participating
institutions that are determined by the Operator under
paragraph 29(2)(b) to be responsible for the abuse of the
person.
Note: For what a direct personal response consists of, see subsection 54(2).
(2) A person who is entitled to redress under the scheme may choose
to accept 1, 2 or all 3 of those components of redress.
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(3) If 2 or more participating institutions are determined to be
responsible for the person's abuse and the person chooses to be
given a direct personal response, then the person may choose to be
given a direct personal response from each of those institutions, or
from only some or one of them.
17 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 paragraph 13(1)(b)).
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Part 2-3--How to obtain redress under the scheme
Division 1--Simplified outline of this Part
18 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 19 (e.g. it must include any
information required by the Operator).
Once the application is made, the Operator can request the person
and participating institutions to provide further information to the
Operator for the purposes of determining the application (see
sections 24 and 25).
A person can make only 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). There are certain circumstances where a person cannot
make an application for redress. These circumstances are set out in
section 20.
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 29(2). For example, the Operator must make a
determination about which participating institutions are responsible
for the abuse 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, as
well as the amount of the counselling and psychological
component of redress for the person.
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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 review of the
determination. The Operator must also give written notice of the
determination to the participating institutions that are specified in
the determination (such as the responsible institutions).
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 2-4.)
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Division 2--Application for redress under the scheme
19 Application for redress
(1) To obtain redress under the scheme, a person must make an
application to the Operator.
(2) To be valid, the application must:
(a) be in the approved form; and
(b) specify where the person lives; and
(c) include any information, and be accompanied by any
documents, required by the Operator; and
(d) verify the information included in the application by statutory
declaration.
(3) The Operator is not required to make a determination on an
application that is not valid.
20 When an application cannot be made
(1) A person cannot make an application for redress under the scheme
if:
(a) the person has already made an application for redress under
the scheme; or
(b) a security notice is in force in relation to the person; or
(c) the person is a child who will not turn 18 before the scheme
sunset day; or
(d) the person is in gaol (within the meaning of subsection 23(5)
of the Social Security Act 1991); or
(e) the application is being made in the period of 12 months
before the scheme sunset day.
(2) Paragraphs (1)(d) and (e) do not apply if the Operator determines
there are exceptional circumstances justifying the application being
made.
(3) Before making a determination under subsection (2), the Operator
must comply with any requirements prescribed by the rules.
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21 Special process for child applicants
(1) If:
(a) a person makes an application for redress under the scheme;
and
(b) the person is a child who will turn 18 before the scheme
sunset day;
then the Operator must deal with the application in accordance
with any requirements prescribed by the rules.
(2) Rules made for the purposes of subsection (1) apply despite
subsection 29(1) (which requires the Operator to make a
determination on the application as soon as practicable).
22 Withdrawal of an application
(1) A person may withdraw an application for redress at any time
before the Operator makes a determination on the application
under section 29.
(2) If the person withdraws the application under subsection (1), then
for the purposes of this Act it is treated as not having been made.
23 Notice of a withdrawal to participating institutions
(1) If:
(a) a person withdraws an application under subsection 22(1);
and
(b) before the withdrawal, the Operator had requested a
participating institution under section 25 to provide
information that may be relevant to the application;
then the Operator must give the institution written notice that the
person has withdrawn the application.
(2) The notice must also comply with any requirements prescribed by
the rules.
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Division 3--Obtaining information for the purposes of
determining the application
24 Power to request information from the applicant
(1) If the Operator has reasonable grounds to believe that a person who
has applied for redress has information that may be relevant to
determining the application, then the Operator may request the
person to give the information to the Operator.
Note: The request for information may be accompanied by information that
has been disclosed by an institution in relation to the application.
(2) The request must be made by written notice given to the person.
(3) The notice must specify:
(a) the nature of the information that is requested to be given;
and
(b) how the person is to give the information to the Operator; and
(c) the period (the production period) within which the person is
requested to give the information to the Operator; and
(d) that the notice is given under this section.
(4) The production period must be at least:
(a) if the Operator considers the application is urgent--4 weeks;
and
(b) otherwise--8 weeks;
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 it appropriate to do so.
(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).
(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
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(b) comply with any requirements prescribed by the rules.
25 Power to request information from participating institutions
(1) If a person has applied for redress and either:
(a) the application identifies a particular participating institution
as being involved in the abuse of the person; or
(b) the Operator has reasonable grounds to believe that a
participating institution may be responsible for the abuse of
the person;
then the Operator must request the institution to give any
information that may be relevant to the application to the Operator.
Note: The request for information may be accompanied by information that
has been disclosed by the applicant or another institution in relation to
the application.
(2) If a person has applied for redress and the Operator has reasonable
grounds to believe that a participating institution has information
that may be relevant to determining the application, then the
Operator may request the institution to give the information to the
Operator.
Note: The request for information may be accompanied by information that
has been disclosed by the applicant or another institution in relation to
the application.
(3) The request under subsection (1) or (2) must be made by written
notice given to the institution.
(4) The notice must specify:
(a) the nature of the information that is requested to be given;
and
(b) how the institution is to give the information to the Operator;
and
(c) the period (the production period) within which the
institution is requested to give the information to the
Operator; and
(d) that the notice is given under this section.
(5) The production period must be at least:
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(a) if the Operator considers the application is urgent--4 weeks;
and
(b) otherwise--8 weeks;
beginning on the date of the notice.
(6) The Operator may, by notice to the institution, extend the
production period if the Operator considers it appropriate to do so.
(7) An extension under subsection (6) may be given:
(a) on the Operator's own initiative; or
(b) on a request made by the institution under subsection (8).
(8) The institution 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.
26 Failure of the applicant or institutions to comply with a request
(1) If:
(a) under section 24, the Operator requests a person who has
made an application for redress to provide further
information; and
(b) the information requested is not provided in the production
period referred to in that section;
then the Operator is not required to make a determination on the
application until the information is provided.
(2) If:
(a) under section 25, the Operator requests a participating
institution to provide information in relation to an application
for redress; and
(b) the information requested is not provided in the production
period referred to in that section;
then the Operator may progress the application and make a
determination on it on the basis of the information that has been
obtained by, or provided to, the Operator.
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27 State or Territory laws do not prevent complying with request
Nothing in a law of a State or a Territory prevents a person from
giving information that the person is requested to give to the
Operator for the purposes of the scheme unless that law is
prescribed by the rules.
28 False or misleading information, documents or statements
A person must not give information, produce a document or make
a statement to an officer of the scheme if the person knows, or is
reckless as to whether, the information, document or statement is
false or misleading in a material particular.
Note: This section is a civil penalty provision. Conduct prohibited by this
section may also be an offence against the Criminal Code (see
sections 136.1, 137.1 and 137.2 of the Code).
Civil penalty: 60 penalty units.
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Division 4--The Operator must determine whether to
approve the application
29 The Operator must make a determination on the application
Requirement for the Operator to make a determination
(1) If a person makes an application for redress, the Operator must
make a determination to approve, or not approve, the application as
soon as practicable.
Determination to approve application
(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 each participating institution that is responsible for
the abuse (see section 15) and therefore liable for providing
redress to the person under the scheme; and
(c) determine, in accordance with section 30:
(i) the amount of the redress payment for the person; and
(ii) the amount of each responsible institution's share of the
costs of the redress payment; and
(d) determine, in accordance with section 31:
(i) the amount of the counselling and psychological
component of redress for the person; and
(ii) the amount of each responsible institution's share of the
costs of that component; and
(e) determine whether the counselling and psychological
component of redress for the person consists of:
(i) access to the counselling and psychological services that
are provided under the scheme; or
(ii) a counselling and psychological services payment; and
(f) if the counselling and psychological component of redress for
the person consists of a counselling and psychological
services payment--determine that the amount of the payment
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equals the amount of the counselling and psychological
component of redress for the person; and
(g) for each responsible institution that is a member of a
participating group--determine each other participating
institution that is an associate of the responsible institution at
that time; and
(h) 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; and
(i) if:
(i) the Operator determines, in accordance with section 15,
that a participating government institution is equally
responsible with a defunct institution for the abuse; and
(ii) the defunct institution is listed for the participating
jurisdiction that the participating government institution
belongs to;
determine that the participating government institution is the
funder of last resort for the defunct institution in relation to
the abuse.
Note 1: If the Operator determines that the participating government
institution is the funder of last resort for the defunct institution,
then the participating government institution will be liable to pay
the defunct institution's (hypothetical) share of the costs of
providing redress to the person (see section 165). Those costs are
in addition to the participating government institution's own
share of the costs for providing redress to the person. For the
funder of last resort provisions, see Part 6-2.
Note 2: Only defunct institutions that are both non-government
institutions and not participating institutions can be listed for a
jurisdiction (see subsection 164(1)).
Determination not to approve application
(3) Otherwise, the Operator must make a determination not to approve
the application.
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Revoking a determination
(4) The rules may require or permit the Operator to revoke, under this
subsection, a determination made under subsection (2) or (3).
(5) However, the Operator cannot revoke a determination made under
subsection (2) if:
(a) the person has been given an offer of redress; and
(b) the person has accepted the offer in accordance with
section 42.
(6) If the Operator revokes a determination made under subsection (2)
or (3), then:
(a) every determination made under subsection (2) or (3) is taken
never to have been made; and
(b) if the person has been given an offer of redress but has not
accepted or declined the offer--the offer is taken to be
withdrawn; and
(c) if the person has made an application for review of the
determination--the review application is taken to be
withdrawn; and
(d) the Operator may make further requests under section 24 or
25 for information relating to the person's application.
(7) The Operator must give a written notice to:
(a) the person; and
(b) each participating institution that was notified under
section 35 of the determination;
notifying them of the following:
(c) that the determination has been revoked;
(d) that the determination is taken never to have been made;
(e) if an offer of redress has been withdrawn under
paragraph (6)(b)--that fact;
(f) if an application for review of the determination has been
withdrawn under paragraph (6)(c)--that fact;
(g) any other matter prescribed by the rules.
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30 Working out the amount of redress payment and sharing of costs
Working out amounts
(1) This section sets out how the Operator must make a determination
under paragraph 29(2)(c) about:
(a) the amount of the redress payment for a person; and
(b) the amount of each responsible institution's share of the costs
of the redress payment.
Note: This section only applies if the Operator approves the person's
application for redress.
Working out share of the costs of redress payment
(2) The Operator must first work out, for each responsible institution,
the amount that is the institution's share of the costs of the redress
payment by using the following method statement:
Method statement
Step 1. Apply the assessment framework 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, regardless of the number of
responsible institutions. The amount worked out is the
maximum amount of the redress payment that could be
payable to the person.
Step 2. Work out, in accordance with any requirements
prescribed by the rules, the amount that is the responsible
institution's share of the maximum amount. This amount
is the gross liability amount for the responsible
institution.
Step 3. Work out the amount of any payment (a relevant prior
payment) that was paid to the person by, or on behalf of,
the responsible institution in relation to abuse for which
the institution is responsible (but do not include any
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payment to the extent that it is prescribed by the rules as
not being a relevant prior payment). This amount is the
original amount of the relevant prior payment.
Step 4. Multiply the original amount by the following:
n
1 .0 1 9
where:
n is the number of whole years since the relevant prior
payment was paid to the person.
The resulting amount is the adjusted amount of the
relevant prior 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 prior
payment of the institution. If the resulting amount is not a
whole number of cents, round the amount up to the next
whole number of cents. This amount is the reduction
amount for the institution.
Step 6. The amount of the institution's share of the costs 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.
Working out amount of redress payment
(3) The Operator must then work out the amount of redress payment
for the person by adding together the amounts of each responsible
institution's share of the costs of the redress payment. The amount
may be nil, but it must not exceed the maximum amount of the
redress payment.
Note 1: The amount may be nil because the total amount of relevant prior
payments that were paid to the person by the responsible institutions
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exceeds the maximum amount of the redress payment that could be
payable to the person. However, even though the person may not be
paid any redress payment in that case, the person will still be entitled
to the other components of redress under the scheme (i.e. the
counselling and psychological component and a direct personal
response).
Note 2: For funder of last resort cases, subsection 165(2) affects how the
amount of the redress payment and the share of the costs of the
payment are worked out.
31 Working out the amount of the counselling and psychological
component and sharing of costs
(1) This section sets out how the Operator must make a determination
under paragraph 29(2)(d) about:
(a) the amount of the counselling and psychological component
of redress for a person; and
(b) the amount of each responsible institution's share of the costs
of that component.
Note: This section only applies if the Operator approves the person's
application for redress.
(2) The Operator must apply the assessment framework to work out
the amount of the component. The amount must not be more than
$5,000, regardless of the number of responsible institutions.
(3) The Operator must work out, in accordance with the rules, the
amount that is each responsible institution's share of the costs of
the component.
Note: For funder of last resort cases, subsection 165(3) affects how the
amount of the counselling and psychological component and the share
of the costs of the component is worked out.
32 The assessment framework
(1) The Minister may declare, in writing, a method, or matters to take
into account, for the purposes of working out:
(a) the amount of redress payment for a person; and
(b) the amount of the counselling and psychological component
of redress for a person.
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Note: For variation or revocation of the declaration, see subsection 33(3) of
the Acts Interpretation Act 1901.
(2) The declaration is the assessment framework.
(3) The declaration is a legislative instrument, but section 42
(disallowance) of the Legislation Act 2003 does not apply to it.
33 The assessment framework policy guidelines
(1) The Operator may take into account the assessment framework
policy guidelines when applying the assessment framework for the
purposes of sections 30 and 31.
(2) The Minister may, in writing, make guidelines for the purposes of
applying the assessment framework.
(3) The guidelines are the assessment framework policy guidelines.
(4) The guidelines are not a legislative instrument.
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Division 5--Notice of determination to applicant and
participating institutions
34 Notice of determination to applicant
(1) If the Operator makes a determination under section 29 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
(c) that the person may apply under section 73 for review of the
determination.
(2) If the application has been approved, the notice must include the
offer of redress to the person under section 39.
(3) The notice must also:
(a) specify the day by which the person may apply for review of
the determination (which must be at least 28 days, but no
longer than 6 months, after the date of the notice) under
section 73; and
(b) comply with any matters prescribed by the rules.
35 Notice of determination to participating institutions
(1) If:
(a) the Operator makes a determination under section 29 in
relation to a person; and
(b) a participating institution is specified in the determination;
then the Operator must give the institution written notice of the
determination in accordance with subsection (2).
(2) The notice must state:
(a) whether or not the application has been approved; and
(b) if Operator determined under paragraph 29(2)(b) that the
institution is responsible for the abuse and therefore liable for
providing redress to the person under the scheme:
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(i) that fact; and
(ii) the amount of the redress payment for the person; and
(iii) the amount of the institution's share of the costs of that
payment; and
(iv) the amount of the counselling and psychological
component of redress for the person; and
(v) the amount of the institution's share of the costs of that
component; and
(c) if the Operator determined under paragraph 29(2)(g) that the
institution is an associate of a responsible institution--that
fact; and
(d) if the Operator determined under paragraph 29(2)(h) that the
institution is not responsible for the abuse and therefore not
liable for providing redress to the person under the scheme--
that fact; and
(e) if the Operator determined under paragraph 29(2)(i) that the
institution is the funder of last resort for a defunct
institution--that fact; and
(f) the reasons for the determination, as they relate to the
institution; and
(g) the day by which the person may apply under section 73 for
review of the determination.
(3) The notice must also comply with any requirements prescribed by
the rules.
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Division 6--Effect of determination and admissibility of
evidence in civil proceedings
36 Effect of determination
(1) A determination by the Operator under section 29 has effect only
for the purposes of the scheme.
(2) In particular, a determination under section 29 that an institution:
(a) is, or is not, responsible for the abuse of a person; or
(b) is, or is not, liable to provide redress to a person;
is not a finding of law or fact made by a court in civil or criminal
proceedings.
Note: The determination is an administrative decision that is made by the
Operator on the basis of whether the Operator considers there to be a
reasonable likelihood that the person is eligible for redress. It is not a
judicial decision made by a court in civil or criminal proceedings on
the basis of a higher standard of proof.
(3) However, a determination under section 29 that an institution is
responsible for abuse of a person and therefore liable to provide
redress may result in the imposition of a civil liability on the
institution to make payments under the scheme in relation to that
redress.
37 Admissibility of documents in evidence in civil proceedings
(1) The following documents are not admissible in evidence in civil
proceedings in a court or tribunal:
(a) a person's application for redress;
(b) a document created solely for the purposes of accompanying
a person's application for redress;
(c) a document created solely for the purposes of complying with
a request for information made by the Operator under
section 24 or 25 in relation to a person's application for
redress.
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(2) Subsection (1) does not apply if the admission of the document in
evidence in civil proceedings is for the purposes of giving effect to
this Act.
(3) For the purposes of subsection (2) (and without limiting that
subsection), if the admission of the document in evidence is in civil
proceedings for judicial review of a decision made under this Act,
then the admission is for the purposes of giving effect to this Act.
(4) Subsection (1) does not apply if the admission of the document in
evidence is in civil proceedings under, or arising out of, section 28
(which is about providing false or misleading documents or
information to an officer of the scheme).
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Part 2-4--Offers and acceptance of redress
Division 1--Simplified outline of this Part
38 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 39. 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 42. If the person accepts the
offer, then the person will be provided with redress under the
scheme. The person also releases all the participating institutions
determined by the Operator to be responsible for the abuse (as well
as the officials of those institutions, the associates of those
institutions and the officials of the associates of those institutions)
from all civil liability for the abuse of the person. However, the
abuser is not released from liability for the abuse.
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 components 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 or official from civil liability for the abuse
of the person, but the person will not be provided with redress
under the scheme.
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Division 2--Offers of redress
39 Offer of redress
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 components of redress (i.e. redress payment,
access to the counselling and psychological component of
redress for the person, and direct personal response); and
(b) specifies the amount of the redress payment; and
(c) specifies whether the counselling and psychological
component of redress for the person consists of:
(i) access to the counselling and psychological services that
are provided under the scheme; or
(ii) the counselling and psychological services payment;
and
(d) if the counselling and psychological component of redress for
the person consists of the counselling and psychological
services payment--specifies the amount of that payment; and
(e) specifies the participating institutions determined by the
Operator under paragraph 29(2)(b) to be responsible for the
abuse and therefore liable for providing redress to the person
under the scheme; and
(f) if any of those responsible institutions is a defunct institution
that has a representative:
(i) specifies the person who is the representative; and
(ii) explains that the representative is liable for providing
redress to the person under the scheme; and
(g) if any of those responsible institutions is a member of a
participating group--specifies the participating institutions
determined by the Operator under paragraph 29(2)(g) to be
associates of any of those responsible institutions; and
(h) specifies the participating institutions that were identified in
the person's application but determined by the Operator
under paragraph 29(2)(h) not to be responsible for the
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person's abuse and therefore not liable for providing redress
to the person under the scheme; and
(i) if any of those responsible institutions is a participating
government institution that is determined by the Operator
under paragraph 29(2)(i) to be the funder of last resort for a
defunct institution:
(i) specifies the defunct institution; and
(ii) explains that the government institution is liable for the
defunct institution's (hypothetical) share of the costs of
providing redress to the person; and
(iii) explains that a direct personal response is not available
to the person in relation to the abuse for which the
defunct institution is responsible; and
(j) states the date of the offer; and
(k) specifies the acceptance period for the offer (see section 40);
and
(l) 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
(m) gives information about other services available to the person
under the scheme to help the person to decide whether to
accept the offer; and
(n) explains how to accept or decline the offer, should the person
decide to do so; and
(o) informs the person that the offer expires at the end of the
acceptance period; and
(p) explains the effect of section 43 (which is about the release
from civil liability of the responsible institutions, their
officials, their associates and the officials of their associates)
should the person accept the offer; and
(q) informs the person that the person 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
(r) informs the person that the person will not be able to make
another application for redress under the scheme, whether or
not the offer is accepted; and
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(s) informs the person that the person may request an extension
of the acceptance period and explains how to make that
request; and
(t) complies with any requirements prescribed by the rules.
40 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 6
months, starting on the date of the offer.
(2) Before the end of the acceptance period, 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 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.
41 Notice of offer to participating institutions
(1) If:
(a) the Operator gives an offer of redress under section 39; and
(b) a participating institution or person referred to in
paragraph 39(e), (f) or (g) is specified in the offer;
then the Operator must give the institution or person written notice
of the offer.
(2) The notice must:
(a) state the acceptance period for the offer; and
(b) comply with any requirements prescribed by the rules.
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Division 3--Accepting or declining offers of redress
42 Accepting the offer of redress
(1) A person may accept an offer of redress by complying with this
section.
(2) The person must give the Operator a document (the acceptance
document) that:
(a) is in the approved form; and
(b) states that the person accepts the offer; and
(c) states that the person releases and forever discharges each of
the following institutions and officials (a released institution
or official) from all civil liability for abuse of the person that
is within the scope of the scheme:
(i) all participating institutions that are determined by the
Operator under paragraph 29(2)(b) to be responsible for
the abuse of the person;
(ii) all participating institutions that are determined by the
Operator under paragraph 29(2)(g) to be associates of
those responsible institutions;
(iii) all officials of those responsible institutions and
associates (other than an official who is an abuser of the
person); and
(d) states that the person forgoes any entitlement to be paid
damages by a released institution or official if the released
institution or official were joined as a party to civil
proceedings brought or continued by the person against
another party in relation to abuse of the person that is within
the scope of the scheme; and
(e) 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 a released institution or
official in relation to abuse of the person that is within the
scope of the scheme; and
(f) states the components of redress that the person wishes to
receive; and
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(g) if the person wishes to receive a direct personal response--
specifies the participating institutions that the person wishes
to receive a direct personal response from; and
(h) acknowledges that the person understands the effect of
accepting the offer; and
(i) is signed by the person; and
(j) 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.
(4) Rules made for the purposes of paragraph (2)(j) must not require
the person to enter into a confidentiality agreement.
43 Effect of acceptance on civil liability
If a person accepts an offer of redress in accordance with
section 42, then, at the time the person gives the acceptance and by
force of this section:
(a) the person releases and forever discharges every released
institution or official from 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 civil
proceedings against a released institution or official in
relation to that abuse; and
(c) the release and discharge of civil liability of a released
institution or official for that abuse does not:
(i) release or discharge another institution or person from
civil liability for that abuse; and
(ii) prevent the person (whether as an individual, a
representative party or a member of a group) from
bringing or continuing civil proceedings against another
institution or person in relation to that abuse; and
(d) if a released institution or official would, apart from this
section, be liable to make a contribution to another institution
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or person in relation to damages payable to the person in civil
proceedings brought or continued by the person (whether as
an individual, a representative party or a member of a group)
against the other institution or person in relation to that
abuse, then:
(i) the released institution or official is released and forever
discharged from liability to make that contribution; and
(ii) the amount of damages payable to the person in those
proceedings is reduced by the amount of that
contribution.
44 Notice to participating institutions that the offer is accepted
(1) If a person accepts an offer of redress in accordance with
section 42, then the Operator must give each institution that was
notified under section 41 about the offer written notice of:
(a) the person's acceptance of the offer; and
(b) the components of redress that the person wishes to receive
(including whether the person wishes to receive a direct
personal response from the institution); and
(c) any matters prescribed by the rules.
(2) The notice must be accompanied by a copy of the person's
acceptance document.
45 Declining the offer of redress
Declining by taking positive action
(1) A person may decline an offer of redress by giving the Operator,
before the end of the acceptance period, a document that:
(a) is in the approved form; and
(b) states that the person declines the offer; and
(c) acknowledges that the person understands the effect of
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
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(e) complies with any requirements prescribed by the rules.
Declining by not accepting in the acceptance period
(2) A person is taken to have declined an offer of redress if the person
does not accept the offer in accordance with section 42 before the
end of the acceptance period.
(3) Subsection (2) does not apply if:
(a) the person has applied for review under section 73 of the
Operator's determination on the person's application for
redress; and
(b) the review has not been completed at the end of the
acceptance period.
46 Notice to participating institutions that the offer is declined
(1) If a person declines an offer of redress in accordance with
section 45, then the Operator must give each institution that was
notified under section 41 of the offer written notice that the person
has declined the offer.
(2) The notice must comply with any requirements prescribed by the
rules.
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Part 2-5--Provision of redress under the scheme
Division 1--Simplified outline of this Part
47 Simplified outline of this Part
If a person 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 provide the person with the
counselling and psychological component of redress
which, depending on where the person lives, consists of
access to counselling and psychological services or a
counselling and psychological services payment; and
(c) the responsible institutions for the 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
component 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).
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Division 2--The redress payment
48 The Operator must pay the redress payment
(1) If:
(a) a person is entitled to redress under the scheme (see
section 12); 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.
49 Protection of the redress payment--general
(1) A redress payment is a payment of compensation under the
scheme. However, for the purposes of:
(a) the Social Security Act 1991 and the Veterans' Entitlements
Act 1986; and
(b) any other legislation of the Commonwealth, a State or a
Territory;
the payment is not to be treated as being a payment of
compensation or damages.
Note: This subsection prevents a redress payment affecting other payments
that may be payable to the person under legislation. For example,
when determining whether a social security payment is payable, or the
amount of such a payment, a redress payment is not to be taken into
account.
(2) For the purposes of the application of any law of the
Commonwealth, a State or a Territory in relation to a redress
payment:
(a) the payment and the entitlement to the payment are
absolutely inalienable, whether by way of, or in consequence
of, sale, assignment, charge, execution, bankruptcy or
otherwise; and
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(b) no amount may be deducted from the payment.
(3) Nothing in this Act prevents a liability insurance contract from
treating a redress payment as being a payment of compensation or
damages.
50 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;
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 that payment the total
amount withdrawn from the account during that year: the
result is the saved amount.
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Division 3--Counselling and psychological component of
redress
51 The Operator must enable access to the counselling and
psychological component of redress
(1) This section applies if:
(a) a person is entitled to redress under the scheme (see
section 12); and
(b) the person stated in the acceptance document under
section 42 that the person wishes to access the counselling
and psychological component of redress.
(2) If the place where the person lives (as stated in the person's
application) is in a participating jurisdiction that is a declared
provider of counselling and psychological services under the
scheme, then:
(a) the Operator must, as soon as practicable after the person
becomes entitled to redress, refer the person to the
participating jurisdiction; and
(b) the participating jurisdiction must, as soon as practicable
after receiving the referral, provide for the delivery of
counselling and psychological services under the scheme in
accordance with the National Service Standards.
(3) If subsection (2) does not apply, then the Operator must, as soon as
practicable, pay the counselling and psychological services
payment to the person.
(4) The rules may prescribe matters relating to the payment of
counselling and psychological services payments.
52 Protection of the counselling and psychological services
payment--general
(1) A counselling and psychological services payment is a payment of
compensation under the scheme. However, for the purposes of:
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(a) the Social Security Act 1991 and the Veterans' Entitlements
Act 1986; and
(b) any other legislation of the Commonwealth, a State or a
Territory;
the payment is not to be treated as being a payment of
compensation or damages.
Note: This subsection prevents a counselling and psychological services
payment affecting other payments that may be payable to the person
under legislation. For example, when determining whether a social
security payment is payable, or the amount of such a payment, a
counselling and psychological services payment is not to be taken into
account.
(2) For the purposes of the application of any law of the
Commonwealth, a State or a Territory in relation to a counselling
and psychological services payment:
(a) the payment and the entitlement to the payment are
absolutely inalienable, whether by way of, or in consequence
of, sale, assignment, charge, execution, bankruptcy or
otherwise; and
(b) no amount may be deducted from the payment.
(3) Nothing in this Act prevents a liability insurance contract from
treating a counselling and psychological services payment as being
a payment of compensation or damages.
53 Additional protection of the counselling and psychological
services payment--garnishee orders
(1) If:
(a) a counselling and psychological services 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;
the court order does not apply to the saved amount (if any) in the
account.
(2) The saved amount is worked out as follows:
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Method statement
Step 1. Work out the amount of the counselling and
psychological services 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 that payment the total
amount withdrawn from the account during that year: the
result is the saved amount.
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Division 4--Direct personal responses
54 Direct personal response from responsible institutions
(1) If a participating institution is given a notice under section 44 that
notifies 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.
(2) A direct personal response from a participating institution to a
person is any one or more of the following:
(a) an apology or a statement of acknowledgement or regret;
(b) an acknowledgement of the impact of the abuse on the
person;
(c) an assurance as to the steps the institution has taken, or will
take, to prevent abuse occurring again;
(d) an opportunity for the person to meet with a senior official of
the institution.
(3) When providing a direct personal response, the participating
institution must take into account the direct personal response
framework.
55 The direct personal response framework
(1) The Minister may declare, in writing, guidelines about how direct
personal responses are to be provided under the scheme.
Note: For variation or revocation of the declaration, see subsection 33(3) of
the Acts Interpretation Act 1901.
(2) The declaration is the direct personal response framework.
(3) When making the declaration, the Minister must have regard to the
principles in section 56.
(4) The declaration is a legislative instrument, but section 42
(disallowance) of the Legislation Act 2003 does not apply to it.
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56 General principles guiding provision of direct personal responses
(1) 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.
(2) Engagement between a survivor and a participating institution
should occur only if, and to the extent that, a survivor wishes it.
(3) Participating institutions should make clear what they are willing
to offer and provide by way of a direct personal response to
survivors. Institutions should ensure that they are able to provide
the direct personal response that they offer to survivors.
(4) In offering direct personal responses, participating institutions
should 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 responses the institutions offer and
provide.
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Chapter 3--Special rules to deal with
exceptional cases
Part 3-1--Special rules allowing entitlement to
redress
Division 1--Simplified outline of this Part
57 Simplified outline of this Part
This Part deals with a number of special cases to provide
exemptions to the general rules of entitlement to redress in
Chapter 2 (particularly section 12). Under this Part, a person who
would not be entitled to redress under the general rules may
nevertheless be entitled to redress because of the application of the
exemptions in 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. Division 2 deals with that case and
allows for a redress payment to be paid to other persons in certain
circumstances.
If abuse of a person occurred inside a non-participating State, the
person would not be eligible (and therefore not entitled) to redress
because the abuse is not within the scope of the scheme (see
sections 13 and 14). However, if a Commonwealth institution or a
participating Territory institution is primarily responsible for the
abuse, the person may be entitled to redress. Division 3 deals with
that case.
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Division 2--Death of person before acceptance of redress
offer
58 Person dies before determination is made on application for
redress
(1) This section applies if:
(a) a person makes an application for redress under section 19;
and
(b) the person dies before a determination on the application is
made under section 29.
(2) The Operator must continue to deal with the application as if the
person had not died.
(3) If the Operator approves the application under paragraph 29(2)(a),
then the Operator must:
(a) determine, under paragraph 29(2)(b), each participating
institution that is responsible for the abuse; and
(b) determine, under paragraph 29(2)(c):
(i) the amount of the redress payment for the person; and
(ii) the amount of each responsible institution's share of the
costs of the redress payment; and
(c) if paragraph 29(2)(i) applies to a participating government
institution and a defunct institution--determine, under that
paragraph, that the participating government institution is the
funder of last resort for the defunct institution.
(4) The redress payment for the person is payable in accordance with
section 60.
(5) The rules may prescribe matters relating to the giving of notices to
a person or a participating institution in relation to the operation of
this section.
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59 Person dies before offer of redress is accepted, declined or
withdrawn
(1) This section applies if:
(a) a person makes an application for redress under section 19;
and
(b) the Operator makes a determination under section 29
approving the application; and
(c) the Operator gives the person an offer of redress under
section 39; and
(d) the person dies before the offer is accepted, declined or
withdrawn.
(2) The offer is taken to be withdrawn immediately after the person
dies.
(3) If, before the person died:
(a) the person had not made an application under section 73 for
review of the determination; or
(b) the person had made such an application but the review had
been completed;
then the redress payment for the person is payable in accordance
with section 60.
(4) If, before the person died:
(a) the person had made an application under section 73 for
review of the determination; and
(b) the review had not been completed;
then:
(c) the application for review continues as if the person had not
died; and
(d) if the review determination approves the person's application
for redress--the redress payment for the person specified in
the review determination is payable in accordance with
section 60.
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(5) The rules may prescribe matters relating to the giving of notices to
a person or a participating institution in relation to the operation of
this section.
60 Entitlement to redress payment
(1) This section applies if under subsection 58(4) or 59(3) or
paragraph 59(4)(d) 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 may 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.
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Division 3--Abuse for which a Commonwealth institution
or participating Territory institution is
responsible
61 Abuse occurring inside a non-participating State
(1) For the purposes of subsection 13(2), a person is eligible for
redress under the scheme if:
(a) the person would be eligible under subsection 13(1) apart
from the fact that the person does not meet the condition in
paragraph 13(1)(b) because the sexual abuse of the person
occurred inside a non-participating State (disregarding
subsection (2) of this section); and
(b) a Commonwealth institution or a participating Territory
institution is primarily responsible for the abuse of the
person.
(2) For the purposes of subsection 14(2), if a person is eligible for
redress under the scheme because of subsection (1) of this section,
then the abuse of the person is within the scope of the scheme.
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Part 3-2--Special rules excluding entitlement to
redress
Division 1--Simplified outline of this Part
62 Simplified outline of this Part
This Part deals with a number of special cases to provide
exclusions to the general rules of entitlement to redress in
Chapter 2. Under this Part, a person who would otherwise be
entitled to redress under the general rules may nevertheless not be
entitled to redress because of the application of the exclusions in
this Part.
If a person is sentenced to imprisonment for 5 years or longer for
an offence against the law of the Commonwealth, a State, a
Territory or a foreign country, the person will not be entitled to
redress unless the Operator makes a determination under
subsection 63(5). Division 2 deals with that case.
A person is also not entitled to redress under the scheme while a
security notice is in force in relation to the person. Division 3 deals
with that case.
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Division 2--Special assessment of applicants with serious
criminal convictions
63 Special assessment of applicants with serious criminal convictions
(1) This section applies if:
(a) a person makes an application under section 19 for redress
for abuse of the person; and
(b) before or after making the application, the person is
sentenced to imprisonment for 5 years or longer for an
offence against a law of the Commonwealth, a State, a
Territory or a foreign country.
(2) For the purposes of subsection 12(4), the person is not entitled to
redress under the scheme unless there is a determination in force
under subsection (5) of this section that the person is not prevented
from being entitled to redress.
(3) As soon as practicable after becoming aware of the person's
sentence, the Operator must:
(a) consider whether to make a determination under
subsection (5); and
(b) give a written notice under subsection (4) to each of the
following (a specified advisor):
(i) if the abuse of the person occurred inside a participating
State or a participating Territory--the Attorney-General
of the State or Territory, or another person nominated
by that Attorney-General in writing;
(ii) if the abuse of the person occurred outside a
participating State or a participating Territory--the
Commonwealth Attorney-General;
(iii) if the offence was against a law of a participating State
or a participating Territory--the Attorney-General of
the State or Territory, or another person nominated by
that Attorney-General in writing;
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(iv) if the offence was against a law not covered by
subparagraph (iii)--the Commonwealth
Attorney-General.
(4) The notice must:
(a) request the specified advisor to provide advice about whether
the Operator should make a determination under
subsection (5); and
(b) include sufficient information to enable the specified advisor
to provide that advice; and
(c) specify the period (which must be at least 28 days starting on
the date of the notice) in which the specified advisor may
provide that advice.
(5) The Operator may determine that the person is not prevented from
being entitled to redress under the scheme if the Operator is
satisfied that providing redress to the person under the scheme
would not:
(a) bring the scheme into disrepute; or
(b) adversely affect public confidence in, or support for, the
scheme.
(6) When making a determination under subsection (5), the Operator
must take into account:
(a) any advice given by a specified advisor in the period referred
to in the notice; and
(b) the nature of the offence; and
(c) the length of the sentence of imprisonment; and
(d) the length of time since the person committed the offence;
and
(e) any rehabilitation of the person; and
(f) any other matter that the Operator considers is relevant.
(7) When taking into account the matters set out in subsection (6), the
Operator must give greater weight to any advice that:
(a) is given by a specified advisor from the jurisdiction in which
the abuse of the person occurred; and
(b) is given in the period referred to in the notice;
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than to any other matter.
(8) The rules may prescribe matters relating to the giving of notices to
a person or a participating institution in relation to a determination
under subsection (5).
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Division 3--Security notices
Subdivision A--No entitlement to redress while security notice
in force
64 Person not entitled to redress while security notice in force
For the purposes of subsection 12(4), a person is not entitled to
redress under the scheme while a security notice is in force in
relation to the person.
Subdivision B--Security notice
65 Security notice from the Home Affairs Minister
(1) The Home Affairs Minister may give the Minister a written notice
(a security notice) requiring that this Division apply in relation to a
specified person if:
(a) the Foreign Affairs Minister gives the Home Affairs Minister
a notice under subsection 66(1) in relation to the person; or
(b) the person's visa is cancelled under section 116 or 128 of the
Migration Act 1958 because of an assessment by the
Australian Security Intelligence Organisation that the person
is directly or indirectly a risk to security (within the meaning
of section 4 of the Australian Security Intelligence
Organisation Act 1979); or
(c) the person's visa is cancelled under section 134B of the
Migration Act 1958 (emergency cancellation on security
grounds) and the cancellation has not been revoked because
of subsection 134C(3) of that Act; or
(d) the person's visa is cancelled under section 501 of the
Migration Act 1958 and there is an assessment by the
Australian Security Intelligence Organisation that the person
is directly or indirectly a risk to security (within the meaning
of section 4 of the Australian Security Intelligence
Organisation Act 1979).
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(2) Before giving a security notice, the Home Affairs Minister must
have regard to the extent (if any) that any payments to the person
under the scheme have been or may be used for a purpose that
might prejudice the security of Australia or a foreign country, if the
Home Affairs Minister is aware of that extent.
(3) Subsection (2) does not limit the matters to which regard may be
had when giving a security notice.
(4) A security notice is not a legislative instrument.
66 Notice from the Foreign Affairs Minister
(1) If:
(a) either:
(i) under subsection 14(2) of the Australian Passports Act
2005, the Foreign Affairs Minister refuses to issue a
person an Australian travel document; or
(ii) under section 22 of that Act, the Foreign Affairs
Minister cancels a person's Australian travel document;
and
(b) the refusal or cancellation was because of a
refusal/cancellation request made in relation to the person
under subsection 14(1) of that Act; and
(c) the request was made on the basis of the circumstance
mentioned in subparagraph 14(1)(a)(i) of that Act;
the Foreign Affairs Minister may give the Home Affairs Minister a
written notice setting out those matters.
(2) A notice under subsection (1) is not a legislative instrument.
67 Copy of a security notice to be given to the Operator and the
Human Services Secretary
The Minister must give a copy of a security notice to:
(a) the Operator; and
(b) the Secretary of the Human Services Department.
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68 Period a security notice is in force
A security notice comes into force on the day it is given to the
Minister, and remains in force until it is revoked.
69 Annual review of a security notice
Before the end of the following periods, the Home Affairs Minister
must consider whether to revoke a security notice (if it has not
already been revoked):
(a) 12 months after it came into force;
(b) 12 months after the Home Affairs Minister last considered
whether to revoke it.
70 Revoking a security notice
(1) The Home Affairs Minister may, by written notice given to the
Minister, revoke a security notice.
(2) The revocation takes effect on the day it is made.
(3) The Minister must give a copy of a notice under subsection (1) to:
(a) the Operator; and
(b) the Secretary of the Human Services Department.
Subdivision C--Other matters affected by a security notice
71 Other matters affected by a security notice
(1) If at the time a security notice comes into force in relation to a
person:
(a) the person has made an application for redress under
section 19; and
(b) either:
(i) a determination has not been made in relation to the
application under section 29; or
(ii) an offer of redress has not been given to the person
under section 39;
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then, at that time, the application is taken to have been withdrawn
by the person under subsection 22(1).
(2) If at the time a security notice comes into force in relation to a
person:
(a) the person has made an application for redress under
section 19; and
(b) an offer of redress has been given to the person under
section 39; and
(c) the offer has not been accepted, declined or withdrawn;
then, at that time:
(d) the offer is taken to be withdrawn; and
(e) the determination made under subsection 29(2) on the
application is taken to be revoked by the Operator under
subsection 29(4); and
(f) the application is taken to have been withdrawn by the person
under subsection 22(1).
(3) The rules may prescribe matters relating to the giving of notices to
a person or a participating institution in relation to the operation of
this Division in relation to the person's entitlement to redress.
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Chapter 4--Administrative matters
Part 4-1--Review of determinations
Division 1--Simplified outline of this Part
72 Simplified outline of this Part
A person may apply for review of a determination of the Operator
under section 29 in relation to the person's application for redress
under the scheme.
There are a number of determinations under section 29 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 34.
If, on review, a determination under subsection 29(2) is varied or
substituted, the Operator must withdraw the offer of redress and
give the person a new offer in accordance with section 39. If the
determination is affirmed, the Operator must extend the acceptance
period for the original offer for an additional 2 months.
The Operator must notify the person who applied for review, and
certain participating institutions, about the outcome of the review.
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Division 2--Review of determinations
73 Application for review of determination
(1) If:
(a) a person has made an application for redress; and
(b) the Operator has made a determination (the original
determination) on the application under section 29;
then the person may apply to the Operator for review of the
original determination.
(2) The application for review must:
(a) be made before the day specified in the notice of the
determination given under section 34; and
(b) be in the approved form.
74 Withdrawal of application for review
(1) The person may withdraw an application for review, by giving oral
or written notice to the Operator, at any time before the review has
been completed.
(2) An application for review that is withdrawn under subsection (1) is
taken never to have been made.
75 The review
(1) If an application is made under section 73, 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) make a determination (the review determination) doing one
of the following:
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(i) affirming the original determination;
(ii) varying the original determination;
(iii) setting the original determination aside and substituting
a new determination.
(3) When reviewing the original determination, the person may have
regard only to the information and documents that were available
to the person who made the original determination.
76 Date of effect of review determination
(1) This section applies if the review determination:
(a) varies the original determination; or
(b) sets aside the original determination and substitutes a new
determination.
(2) The review determination takes effect on the day specified in the
review determination.
(3) From the day the review determination takes effect, the original
determination as varied or substituted is taken to be the
determination made by the Operator under section 29.
77 Notice of review determination to applicant
The Operator must give the applicant written notice of the review
determination, stating the reasons for it.
78 Interaction between review and offer of redress
(1) This section applies if:
(a) a person is given an offer of redress under section 39; and
(b) the person applies for review of the original determination.
(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.
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(3) If, on review, the original determination 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 39.
(4) If:
(a) on review, the original determination is affirmed; and
(b) the determination as affirmed approves the application for
redress; and
(c) the person has been given an offer of redress under
section 39;
then the Operator must extend the acceptance period under
subsection 40(2) for an additional 2 months.
79 Notices to participating institutions about review
(1) If:
(a) a person makes an application for review under section 73; or
(b) a person withdraws an application for review under
subsection 74(1); or
(c) a review determination is made under subsection 75(2);
then the Operator must give each participating institution that was
notified under section 35 written notice of that fact.
(2) The notice must comply with any requirements prescribed by the
rules.
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Part 4-2--Nominees
Division 1--Simplified outline of this Part
80 Simplified outline of this Part
If a person makes an application, or proposes to make an
application, for redress under the scheme, the Operator may
appoint someone else to be the person's nominee. If a nominee is
appointed, then the nominee can act on behalf of the person for the
purposes of the scheme.
There are 2 types of nominees:
(a) assistance nominees; and
(b) legal nominees.
While both types of nominees may act on behalf of the person for
the purposes of the scheme (for example, communicate with the
Operator), there are some matters for which only the legal nominee
(and not the assistance nominee) may act on behalf of the person.
Those matters are set out in sections 84 and 85. Importantly, the
assistance nominee may not make the application for redress, or
accept or decline an offer of redress, on behalf of the person (but
the legal nominee may do that on behalf of the person).
This Part deals with the appointment of nominees, their functions,
duties and responsibilities, and other consequences of being a
nominee for the purposes of the scheme.
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Division 2--Appointment of nominees
81 Appointment of nominees
(1) If a person (the applicant) makes an application for redress under
the scheme, or proposes to make such an application, the Operator
may, in writing, appoint another person to be:
(a) the assistance nominee of the applicant; or
(b) the legal nominee of the applicant.
Note: The assistance nominee and legal nominee may be a body corporate.
(2) The Operator must not appoint a person to be the assistance
nominee of the applicant unless both the person and the applicant
give written consent to the appointment.
(3) The Operator must not appoint a person to be the legal nominee of
the applicant unless:
(a) under a law of the Commonwealth, a State or a Territory the
person has power to make decisions for the applicant in all
matters that are relevant to the duties of a legal nominee; and
(b) the person gives written consent to the appointment; and
(c) the Operator has taken into account any wishes of the
applicant regarding the making of such an appointment.
Note: A person who may be eligible to be the legal nominee of the applicant
is a person who, under a guardianship order or power of attorney, has
power to make decisions for the applicant in all relevant matters.
(4) The Operator must give a copy of an appointment under this
section to:
(a) the nominee; and
(b) the applicant.
82 Suspension and revocation of nominee appointments
(1) If:
(a) an assistance nominee or a legal nominee appointed under
section 81 requests the Operator, in writing, to revoke the
appointment; or
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(b) the applicant requests the Operator, in writing, to revoke the
appointment of the applicant's assistance nominee;
then the Operator must revoke the appointment as soon as
practicable.
(2) If:
(a) the Operator gives a nominee a notice under section 87; 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 87(1)(b);
then the Operator may suspend or revoke the nominee's
appointment.
(3) If:
(a) the Operator gives a nominee a notice under section 87; and
(b) the nominee does not comply with a requirement of the
notice;
then the Operator may suspend or revoke the nominee's
appointment.
(4) While an appointment is suspended, the appointment has no effect
for the purposes of this Act.
(5) The Operator may, at any time, revoke the suspension of an
appointment under subsection (2) or (3).
(6) The suspension or revocation of an appointment, and the
revocation of such a suspension, must be in writing.
(7) The revocation of an appointment has effect on and from such day,
being later than the day of the revocation, as is specified in the
revocation.
(8) The Operator must give the nominee and the applicant a copy of:
(a) a suspension of the nominee's appointment; or
(b) a revocation of the nominee's appointment; or
(c) a revocation of a suspension of the nominee's appointment.
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Division 3--Duties, functions and responsibilities of
nominees
83 Duty of nominee
(1) It is the duty of an assistance nominee or a legal 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.
84 Actions of assistance nominee
(1) If a person has an assistance nominee, then any act that may be
done by the person under, or for the purposes of, this Act may be
done by that assistance nominee.
(2) However, subsection (1) does not authorise a person's assistance
nominee to do any of the following on behalf of the person:
(a) make an application for redress under section 19;
(b) accept an offer of redress under section 42;
(c) decline an offer of redress under section 45;
(d) do an act for the purposes of Division 2;
(e) do an act prescribed by the rules.
(3) If under a provision of this Act the Operator gives a notice to a
person who has an assistance nominee, subsection (1) does not
extend to an act that is required by the notice to be done by the
person.
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(4) Any act done by a person's assistance 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.
85 Actions of legal nominee
(1) If a person has a legal nominee, then any act that may be done by
the person under, or for the purposes of, this Act may be done by
that legal nominee.
(2) Without limiting subsection (1):
(a) an application that may be made by the person under this Act
may be made by that legal nominee on behalf of the person;
and
(b) an application so made is taken to be made by the person;
and
(c) an offer of redress that may be accepted under section 42 or
declined under section 45 by the person may be accepted or
declined in accordance with the relevant provision by that
legal nominee on behalf of the person; and
(d) an offer so accepted or declined is taken to have been done so
by the person.
(3) Any act done by a person's legal 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.
86 Giving notices to assistance nominee or legal nominee
(1) If a person has an assistance nominee or a legal nominee, then 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 nominee.
(2) A notice given under subsection (1) must, in every respect, be in
the same form, and in the same terms, as if it were being given to
the person.
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87 Nominee to inform the 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 assistance
nominee or legal 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) must specify how, and the period within which, the nominee
is to inform the Operator.
(3) A notice under subsection (1) is not ineffective just because it does
not comply with paragraph (2)(b).
(4) The period specified under paragraph (2)(b) 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.
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Division 4--Other matters relating to nominees
88 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.
89 Protection of nominee against criminal liability
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.
90 Informing nominee if 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 nominee,
the Operator may inform the nominee of the giving of the notice
and of the terms of the notice.
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Part 4-3--Protecting information under the scheme
Division 1--Simplified outline of this Part
91 Simplified outline of this Part
Certain information about a person or an institution is protected
information and can only be obtained, recorded, disclosed or used
if this Act authorises that to happen. Broadly, protected
information is information about a person or an institution that was
obtained by an officer of the scheme 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. An example of protected information about an
institution is information that the institution provides in compliance
with a request for information made by the Operator under
section 25.
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.
This Part also protects information contained in the assessment
framework policy guidelines and sets out when a person is
authorised to obtain, record, disclose or use that information.
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Division 2--Use and disclosure of protected information
92 Protected information
(1) This Division deals with how protected information may be
obtained, recorded, disclosed or used under this Act.
(2) Protected information is:
(a) information about a person or an institution that:
(i) was provided to, or obtained by, an officer of the
scheme for the purposes of the scheme; and
(ii) is or was held in the records of the Department or the
Human Services Department; or
(b) information to the effect that there is no information about a
person or an institution held in the records of a Department
referred to in subparagraph (a)(ii).
93 Main authorisation--obtaining, recording, disclosing or using
protected information
(1) A person may:
(a) obtain protected information; or
(b) make a record of protected information; or
(c) disclose protected information to another person; or
(d) use protected information;
if:
(e) the obtaining, recording, disclosure or use of the information
by the person is done:
(i) for the purposes of the scheme; or
(ii) with the express or implied consent of the person or
institution to which the information relates; or
(f) the person believes on reasonable grounds that the obtaining,
recording, 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.
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(2) 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 or institution.
94 Additional authorisation--Operator disclosing to nominee
The Operator may disclose protected information provided by a
person who has applied for redress to the nominee of the person.
95 Additional authorisation--Operator disclosing in public interest
or for another specified purpose
(1) The Operator may disclose protected information that was
provided to, or obtained by, an officer of the scheme for the
purposes of the scheme if:
(a) the Operator certifies that the disclosure is necessary in the
public interest 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 a person who is expressly or impliedly authorised
by the person or institution to which the information
relates to obtain it; or
(ii) is to the Chief Executive Centrelink for the purposes of
a centrelink program (within the meaning of the Human
Services (Centrelink) Act 1997); or
(iii) is to the Chief Executive Medicare for the purposes of a
medicare program (within the meaning of the Human
Services (Medicare) Act 1973); or
(iv) is to the head (however described) of a government
institution, for the purposes of that institution.
(2) A person to whom protected information is disclosed under
subsection (1) may:
(a) obtain the information; or
(b) make a record of the information; or
(c) disclose the information to another person; or
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(d) use the information;
if the person does so for the purpose for which the information was
disclosed to the person under subsection (1).
(3) In certifying for the purposes of paragraph (1)(a) or disclosing
information for the purposes of subparagraph (1)(b)(iv), the
Operator must act in accordance with any rules made for the
purposes of subsection (4).
(4) 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)(iv) to
disclose information to the head of a government institution.
(5) If a certificate or determination under paragraph (1)(a) is given or
made in writing, the certificate or determination is not a legislative
instrument.
96 Additional authorisation--Operator disclosing for law
enforcement or child safety or wellbeing
When this section applies
(1) This section applies if the Operator is satisfied that disclosure of
protected information is reasonably necessary for either of the
following purposes (a relevant purpose):
(a) the enforcement of the criminal law;
(b) the safety or wellbeing of children.
Disclosure by Operator
(2) The Operator may disclose the information to a government
institution that has functions that relate to the relevant purpose.
(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.
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Disclosure, use etc. by government official
(4) If information is disclosed to a government institution under
subsection (2), then an employee or officer of the institution (the
government official) may:
(a) obtain the information; or
(b) make a record of the information; or
(c) disclose the information to a person; or
(d) use the information;
but only if the government official does so for a relevant purpose in
the official's capacity as an employee or officer of the government
institution.
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 (within the meaning of the
Criminal Code); and
(c) the person's conduct breaches the condition.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(7) An instrument under subsection (5) is not a legislative instrument.
97 Additional authorisation--disclosing etc. for a permitted purpose
Disclosure, use etc. by a government official
(1) If protected information is disclosed to a government institution,
then an employee or officer of the institution (the government
official) may:
(a) obtain the information; or
(b) make a record of the information; or
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(c) disclose the information to a person; or
(d) use the information;
if:
(e) the government official does so for any of the following
purposes (a permitted purpose):
(i) the enforcement of the criminal law;
(ii) the safety or wellbeing of children;
(iii) investigatory, disciplinary or employment processes
related to the safety or wellbeing of children;
(iv) a purpose prescribed by the rules; and
(f) the government official does so in the official's capacity as
an employee or officer of the government institution; and
(g) a law of the Commonwealth (other than this Part), or of a
State or a Territory, does not prohibit the government official
from doing so.
Disclosure by a person to a government institution
(2) If:
(a) a person is satisfied that disclosure of protected information
is reasonably necessary for a permitted purpose; and
(b) a law of the Commonwealth, a State or a Territory requires or
permits the person to disclose the information to a
government institution that has functions that relate to the
permitted purpose;
then the person may disclose the information to the government
institution for that purpose.
(3) Subsection (2) does not apply if the person is:
(a) an officer of the scheme; or
(b) an employee or officer of a government institution.
Officers of government institutions
(4) The rules may prescribe that specified persons are officers of a
government institution for the purposes of subsection (1) or
paragraph (3)(b).
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98 Additional authorisation--person engaged by participating
institution disclosing etc. for a specified purpose
(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
(c) disclose protected information to another person; or
(d) 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
request under section 25 to provide information;
(b) the purpose of the participating institution providing a direct
personal response to a person under section 54;
(c) the purpose of the participating institution facilitating a claim
under an insurance policy;
(d) the purpose of the participating institution undertaking
internal investigation and disciplinary procedures.
(3) However, before the 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.
99 Offence--unauthorised access, recording, disclosure or use of
protected information
(1) A person commits an offence if:
(a) the person:
(i) obtains information; or
(ii) makes a record of information; or
(iii) discloses information to another person; or
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(iv) uses information; and
(b) the person is not authorised or required by or under this Act:
(i) to obtain the information; or
(ii) to make the record of the information; or
(iii) to disclose the information; or
(iv) to use the information; and
(c) the information is protected information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) Subsection (1) does not apply if:
(a) the person did not obtain the information under, for the
purposes of, or in connection with, the scheme; or
(b) the person had already obtained the information before the
person obtained the information under, for the purposes of, or
in connection with, the scheme.
Note: A defendant bears an evidential burden in relation to the matter in this
subsection (see subsection 13.3(3) of the Criminal Code).
100 Offence--soliciting disclosure of protected information
(1) A person commits an offence if:
(a) the person solicits the disclosure of information from an
officer of the scheme or another person; and
(b) the disclosure would be in contravention of this Division; and
(c) the information is protected information.
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.
101 Offence--offering to disclose protected information
(1) A person commits an offence if:
(a) the person offers to disclose (whether to a particular person
or otherwise) information about another person or an
institution; and
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(b) the disclosure would be in contravention of this Division; and
(c) 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
disclose (whether to a particular person or otherwise)
information about another person or an institution; and
(b) the disclosure would be in contravention of this Division; and
(c) the information is protected information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
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Division 3--Use and disclosure of the assessment
framework policy guidelines
102 Main authorisation for obtaining, recording, disclosing or using
the assessment framework policy guidelines
An officer of the scheme may obtain, make a record of, disclose to
another officer of the scheme or use information that is contained
in the assessment framework policy guidelines if the officer does
so for the purposes of the scheme.
103 Additional authorisation--disclosure and use in accordance
with the National Redress Scheme Agreement
(1) The Minister or the Operator may disclose information contained
in the assessment framework policy guidelines to a person in
accordance with the requirements set out in the National Redress
Scheme Agreement.
(2) A person to whom information is disclosed under subsection (1)
may obtain, make a record of, disclose to another person or use that
information in accordance with the requirements set out in the
National Redress Scheme Agreement.
104 Offence--unauthorised recording, disclosure or use of
assessment framework policy guidelines
A person commits an offence if:
(a) the person:
(i) obtains information; or
(ii) makes a record of information; or
(iii) discloses information to another person; or
(iv) uses information; and
(b) the person is not authorised or required by or under this Act:
(i) to obtain the information; or
(ii) to make the record of the information; or
(iii) to disclose the information; or
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(iv) to use the information; and
(c) the information is contained in the assessment framework
policy guidelines.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
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Division 4--Other matters
105 Disclosures to a court or tribunal
(1) A person must not be required to disclose to a court or tribunal in
any civil proceedings:
(a) protected information; or
(b) information that is contained in the assessment framework
policy guidelines.
(2) Subsection (1) does not apply if the disclosure of the information is
for the purposes of giving effect to this Act.
(3) For the purposes of subsection (2) (and without limiting that
subsection), if the disclosure of the information is in civil
proceedings for judicial review of a decision made under this Act,
then the disclosure is for the purposes of giving effect to this Act.
(4) Subsection (1) does not apply if the disclosure of the information is
in civil proceedings under, or arising out of, section 28 (which is
about giving false or misleading information, documents or
statements to an officer of the scheme).
(5) Subsection (1) does not apply if:
(a) the person did not obtain the information under, for the
purposes of, or in connection with, the scheme; or
(b) the person had already obtained the information before the
person obtained the information under, for the purposes of, or
in connection with, the scheme.
(6) Protected information and information that is contained in the
assessment framework policy guidelines are not to be published by
any person, court or tribunal.
106 Disclosing information in good faith
(1) This section applies if a person, acting in good faith, discloses
information for the purposes of the scheme.
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(2) The person is not liable to any civil or criminal proceedings, or any
disciplinary action, for disclosing the information.
(3) In disclosing the information, the person cannot be held to have
breached any code of professional etiquette or ethics or departed
from any accepted standards of professional conduct.
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Chapter 5--Participating institutions,
participating groups and participating
jurisdictions
Part 5-1--Participating institutions
Division 1--Simplified outline of this Part
107 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.
There are 4 types of institutions that are participating institutions.
These are:
(a) Commonwealth institutions (such as Commonwealth
Departments and bodies established under
Commonwealth law); and
(b) State institutions (such as State Departments and certain
bodies established under State law); and
(c) Territory institutions (such as Territory Departments and
certain bodies established under Territory law); and
(d) non-government institutions (such as churches or
sporting clubs).
While all Commonwealth institutions are participating institutions,
State institutions, Territory institutions and non-government
institutions are only participating institutions if they agree to
participate in the scheme and the Minister makes a declaration
under section 115 that they are participating institutions.
A defunct institution (which is a government or non-government
institution that no longer exists) can become a participating
institution. However, it must have a representative in order to do
so. The representative acts on the institution's behalf and assumes
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its obligations and liabilities under the scheme (such as the
obligation to provide a direct personal response to a person and the
liability to pay funding contribution).
A lone institution (which is a non-government institution that is not
defunct and is not a member of a participating group) can also
become a participating institution.
A lone institution that is not a legal person (called an
unincorporated lone institution) must also have a representative to
become a participating institution. Its representative may act on its
behalf and will assume its liability to pay funding contribution, but
will not assume any of its obligations under the scheme.
A lone institution that is a legal person (called an incorporated lone
institution) may have a representative, but is not required to have
one to become a participating institution. Its representative may act
on its behalf, but will not assume any of its obligations or liabilities
under the scheme.
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Division 2--Institutions participating in the scheme
Subdivision A--Participating institutions
108 What is a participating institution?
(1) For a person to be eligible for redress for sexual abuse, or
non-sexual abuse, of the person, a participating institution must be
responsible for the abuse (see paragraph 13(1)(d)).
(2) An institution is a participating institution under the scheme if it
is:
(a) a Commonwealth institution; or
(b) a participating State institution; or
(c) a participating Territory institution; or
(d) a participating non-government institution.
Subdivision B--Commonwealth institutions
109 What is a Commonwealth institution?
(1) An institution is a Commonwealth institution if:
(a) it is or was part of the Commonwealth; or
(b) it is or was a Commonwealth entity (within the meaning of
the Public Governance, Performance and Accountability Act
2013); or
(c) it is or was a wholly-owned Commonwealth company; or
(d) it is or was a body (whether or not incorporated) established
by or under a law of the Commonwealth; or
(e) the rules prescribe that it is a Commonwealth institution.
(2) However, an institution is not a Commonwealth institution if:
(a) it is a body politic that is a participating Territory, or is or
was part of a body politic that is a participating Territory; or
(b) it 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
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be registered under that Act because of the operation of
Chapter 10 of that Act (which is about transitional
provisions)); or
(c) the rules prescribe that it is not a 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 State institutions
110 What is a participating State institution?
An institution is a participating State institution if:
(a) it is a State institution; and
(b) a declaration is in force under subsection 115(2) that the
institution is a participating institution.
111 What is a State institution?
(1) An institution is a State institution if:
(a) it is or was part of a State; or
(b) it is or was a body (whether or not incorporated) established
for a public purpose by or under a law of a State; or
(c) the rules prescribe that it is a State institution.
(2) However, an institution is not a State institution if the rules
prescribe that it is not a State institution.
(3) Rules made for the purposes of paragraph (1)(c) or subsection (2)
may prescribe that an institution is, or is not, a State institution in
relation to a period specified by the rules.
Subdivision D--Participating Territory institutions
112 What is a participating Territory institution?
An institution is a participating Territory institution if:
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(a) the institution is a Territory institution; and
(b) a declaration is in force under subsection 115(2) that the
institution is a participating institution.
113 What is a Territory institution?
(1) An institution is a Territory institution if:
(a) it is or was part of a participating Territory; or
(b) it is or was a body (whether or not incorporated) established
for a public purpose by or under a law of a participating
Territory; or
(c) the rules prescribe that it is a Territory institution.
(2) However, an institution is not a Territory institution if the rules
prescribe that it is not a Territory institution.
(3) Rules made for the purposes of paragraph (1)(c) or subsection (2)
may prescribe that an institution is, or is not, a Territory institution
in relation to a period specified by the rules.
Subdivision E--Participating non-government institutions
114 What is a participating non-government institution?
(1) An institution is a participating non-government institution if:
(a) the institution is or was a non-government institution; and
(b) a declaration is in force under subsection 115(2) that the
institution is a participating institution.
(2) An institution is a non-government institution if it is not a
Commonwealth institution, a State institution or a Territory
institution.
(3) However, an institution is not a non-government institution if the
rules prescribe that the institution is not a non-government
institution.
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(4) Rules made for the purposes of subsection (3) may prescribe that
an institution is not a non-government institution in relation to a
period specified by the rules.
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Division 3--Ministerial declarations about participating
institutions
115 Institutions becoming participating institutions
(1) An institution becomes a participating institution if the Minister
makes a declaration under subsection (2) in relation to the
institution.
(2) The Minister may, by notifiable instrument, declare that an
institution is a participating institution.
Note 1: An institution may be identified by name, by inclusion in a particular
class, or in any other way.
Note 2: The Minister need not make a declaration under this subsection for a
Commonwealth institution because all Commonwealth institutions are
participating institutions automatically (see section 108).
(3) The Minister must not make a declaration under subsection (2)
unless the Minister is satisfied that:
(a) for a State institution--the participating State has agreed, in a
way provided for in the State's referral Act or adoption Act,
to the institution participating in the scheme; and
(b) for a Territory institution--the participating Territory has
agreed to the institution participating in the scheme; and
(c) for a non-government institution (other than a defunct
institution or an unincorporated lone institution)--the
institution has agreed to participate in the scheme; and
(d) for a non-government institution that is a defunct
institution--a person has agreed:
(i) to the defunct institution participating in the scheme;
and
(ii) to be the representative for the defunct institution; and
(e) for a non-government institution that is an unincorporated
lone institution:
(i) the institution has agreed to participate in the scheme;
and
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(ii) the institution has agreed to a person being the
representative for the institution; and
(iii) the person has agreed to being the representative for the
institution; and
(f) in all cases--any requirements prescribed by the rules are
satisfied.
Note 1: For how the agreement of a participating Territory, an institution or a
person is given, see section 186.
Note 2: For representatives for defunct institutions and lone institutions, see
Divisions 4 and 5.
(4) The Minister must not make a declaration under subsection (2) in
relation to an institution after:
(a) the second anniversary of the scheme start day; or
(b) a later day prescribed by the rules;
unless the institution is a defunct institution.
(5) If:
(a) a State or Territory has agreed to a State institution or
Territory institution participating in the scheme; and
(b) the institution is a body corporate;
then the institution is taken to have also agreed to participate in the
scheme.
116 Institutions ceasing to be participating institutions
Revoking the declaration
(1) An institution ceases to be a participating institution if the
declaration made under subsection 115(2) in relation to the
institution is revoked under subsection (2), (3), (4) or (5) of this
section.
(2) The Minister may, by notifiable instrument, revoke a declaration
made under subsection 115(2) in relation to an institution.
Note: If the declaration is revoked, the institution will cease to be a
participating institution. However, it will still be a participating
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institution in relation to a person who made an application for redress
before the declaration is revoked (see subsection (7)).
Minister must revoke on request
(3) If:
(a) a participating State requests the Minister in writing to
revoke a declaration made under subsection 115(2) in
relation to a State institution; or
(b) a participating Territory requests the Minister in writing to
revoke a declaration made under subsection 115(2) in
relation to a Territory institution; or
(c) a participating non-government institution (other than a
defunct institution) requests the Minister in writing to revoke
a declaration made under subsection 115(2) in relation to the
institution;
then the Minister must, by notifiable instrument, revoke the
declaration as soon as practicable.
Minister must revoke if no representative
(4) If a defunct participating non-government institution ceases to have
a representative, then the Minister must revoke the declaration
made under subsection 115(2) in relation to the institution as soon
as practicable.
(5) If a participating unincorporated lone institution ceases to have a
representative, then the Minister must revoke the declaration made
under subsection 115(2) in relation to the institution as soon as
practicable.
No revocation unless requirements in rules satisfied
(6) Despite subsections (2), (3), (4) and (5), the Minister must not
revoke a declaration made under subsection 115(2) in relation to an
institution unless any requirements prescribed by the rules in
relation to the revocation are satisfied.
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Institution continues to be participating institution for limited time
(7) If the Minister revokes a declaration made under subsection 115(2)
in relation to an institution, then, despite the revocation, the
institution continues to be a participating institution in relation to
a person who made an application for redress before the
revocation, as if the declaration were still in force.
Example: If the Operator determines that the institution is responsible for the
abuse of the person, the institution will still be required to provide a
direct personal response to the person (if the person chooses that
component of redress) and pay funding contribution in relation to the
person.
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Division 4--Participating defunct institutions
Subdivision A--Participating defunct institutions
117 What is a participating defunct institution?
A participating defunct institution is a participating institution that
is defunct.
Note: The institution may be a government institution or a non-government
institution.
Subdivision B--Representatives for participating defunct
institutions
118 Representatives for participating defunct institutions
(1) A participating defunct institution must have a representative for
the institution.
Note: This Act applies to the representative for a participating defunct
institution as if it were the defunct institution (see sections 121, 122
and 123).
(2) The representative for a defunct Commonwealth institution is the
Commonwealth.
(3) The representative for a defunct participating State institution is
the participating State.
(4) The representative for a defunct participating Territory institution
is the participating Territory.
(5) The representative for a defunct participating non-government
institution is the person in relation to whom a declaration is force
under section 119.
(6) A participating defunct institution may have only one
representative for the institution.
(7) However, a person may be the representative for more than one
participating defunct institution.
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119 Becoming the representative for a defunct non-government
institution
If a defunct non-government institution is declared to be a
participating institution under subsection 115(2), then the Minister
must, by notifiable instrument, make a declaration that the person
who agreed to be the representative for the institution (as referred
to in paragraph 115(3)(d)) is the representative for the institution.
120 Ceasing to be the representative for a defunct non-government
institution
(1) The Minister may, by notifiable instrument, vary or revoke a
declaration made under section 119 in relation to a representative
for a defunct non-government institution.
(2) If:
(a) the representative for a defunct institution requests the
Minister in writing to revoke the declaration made under
section 119 in relation to the representative; and
(b) any requirements prescribed by the rules in relation to the
person ceasing to be the representative are satisfied;
then the Minister must, by notifiable instrument, revoke the
declaration made under section 119 as soon as practicable.
Note: If a participating defunct non-government institution does not have a
representative, then the Minister must revoke the declaration made
under subsection 115(2) that the defunct institution is a participating
institution (see subsection 116(4)).
(3) Despite subsections (1) and (2), the Minister must not vary or
revoke a declaration made under section 119 in relation to an
institution unless any requirements prescribed by the rules in
relation to the variation or revocation are satisfied.
(4) If:
(a) the Minister revokes a declaration made under
subsection 115(2) in relation to a defunct institution; but
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(b) because of subsection 116(7), the institution continues to be a
participating institution in relation to a person who made an
application for redress before the revocation;
then the representative for the institution continues to be the
representative for the institution in relation to the person (even if
the declaration made under section 119 for the representative has
been revoked under this section).
121 Actions of the representative for a defunct institution
(1) Any act that may be done by a participating defunct institution
under, or for the purposes of, this Act must be done by the
representative for the institution on behalf of the institution.
(2) Any act that is done by the representative for a participating
defunct institution on behalf of the institution has effect, for the
purposes of this Act, as if it had been done by the institution.
122 Giving notices to the representative for a defunct institution
Any notice that the Operator is required or authorised by this Act
to give to a participating defunct institution must be given by the
Operator to the representative for the institution.
123 Obligations and liabilities of the representative for a defunct
institution
Any obligation or liability imposed by this Act on a participating
defunct institution is taken to be imposed instead on the
representative for the institution.
Note 1: An example of an obligation that may be imposed on the defunct
institution is the obligation under section 54 to provide a direct
personal response to a person. That obligation will be imposed instead
on the representative.
Note 2: An example of a liability that may be imposed on the defunct
institution is the liability under section 149 to pay funding
contribution. That liability will be imposed instead on the
representative.
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Division 5--Participating lone institutions
Subdivision A--Participating lone institutions
124 What is a participating lone institution?
(1) A participating lone institution is a participating institution that is
a lone institution.
(2) An institution is a lone institution if it:
(a) is a non-government institution; and
(b) is not a member of a participating group; and
(c) is not defunct.
(3) There are 2 types of lone institutions:
(a) a lone institution that is not a legal person (which is an
unincorporated lone institution); and
(b) a lone institution that is a legal person (which is an
incorporated lone institution).
(4) A participating unincorporated lone institution is a participating
institution that is an unincorporated lone institution.
(5) A participating incorporated lone institution is a participating
institution that is an incorporated lone institution.
Subdivision B--Representatives for participating lone
institutions
125 Representatives for participating lone institutions
(1) A participating incorporated lone institution may have a
representative for the institution. However, a participating
unincorporated lone institution must have a representative for the
institution.
(2) The representative for a participating unincorporated lone
institution is the person in relation to whom a declaration is in
force under section 126.
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(3) The representative for a participating incorporated lone institution
is the person in relation to whom a declaration is in force under
subsection 127(1).
(4) A participating lone institution may have only one representative
for the institution.
(5) However, a person may be the representative for more than one
participating lone institution.
126 Becoming the representative for an unincorporated lone
institution
If an unincorporated lone institution is declared to be a
participating institution under subsection 115(2), then the Minister
must, by notifiable instrument, make a declaration that the person
who agreed to be the representative for the institution (as referred
to in paragraph 115(3)(e)) is the representative for the institution.
127 Becoming the representative for an incorporated lone institution
(1) The Minister may, by notifiable instrument, make a declaration
that a person is the representative for a participating incorporated
lone institution.
(2) The Minister must not make a declaration under subsection (1)
unless the Minister is satisfied that:
(a) the institution has agreed to the person being the
representative for the institution; and
(b) the person has agreed to being the representative for the
institution.
Note: For how the agreement of the institution or person is given, see
section 186.
128 Ceasing to be the representative for a lone institution
(1) The Minister may, by notifiable instrument, vary or revoke a
declaration made under section 126 or 127 in relation to a
representative for a lone institution.
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(2) If:
(a) the institution or the representative requests the Minister in
writing to revoke a declaration made under section 126 or
127; and
(b) any requirements prescribed by the rules in relation to the
person ceasing to be the representative are satisfied;
then the Minister must, by notifiable instrument, revoke the
declaration made under section 126 or 127 as soon as practicable.
Note: If a participating unincorporated lone institution does not have a
representative, then the Minister must revoke the declaration made
under subsection 115(2) that the lone institution is a participating
institution (see subsection 116(5)).
(3) Despite subsections (1) and (2), the Minister must not revoke a
declaration made under section 126 or 127 in relation to an
institution unless any requirements prescribed by the rules in
relation to the variation or revocation are satisfied.
(4) If:
(a) the Minister revokes a declaration made under
subsection 115(2) in relation to an unincorporated lone
institution; but
(b) because of subsection 116(7), the institution continues to be a
participating institution in relation to a person who made an
application for redress before the revocation;
then the representative for the institution continues to be the
representative for the institution in relation to the person (even if
the declaration made under section 126 for the representative has
been revoked under this section).
129 Actions of the representative for a lone institution
(1) Any act that may be done by a participating lone institution under,
or for the purposes of, this Act may be done by the representative
for the institution on behalf of the institution.
(2) Any act that is done by the representative for a participating lone
institution on behalf of the institution has effect, for the purposes of
this Act, as if it had been done by the institution.
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130 Giving notices to the representative for a lone institution
(1) Any notice that the Operator is required or authorised by this Act
to give to a participating lone institution must be given by the
Operator to the representative for the institution.
(2) A notice given under subsection (1) must, in every respect, be in
the same form, and in the same terms, as if it were being given to
the institution.
131 Joint and several liability of the representative for an
unincorporated lone institution for funding contribution
If a participating unincorporated lone institution is liable to pay
funding contribution for a quarter, then the institution and the
representative for the institution are jointly and severally liable to
pay the funding contribution for the quarter.
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Part 5-2--Groups of institutions participating in
the scheme
Division 1--Simplified outline of this Part
132 Simplified outline of this Part
Two or more participating institutions may form a participating
group for the purposes of the scheme. There are 2 main features of
an institution being a member of a participating group.
The first is that the members of the group will be associates of each
other. Some provisions of this Act apply in a special way for
associates. For example, if a person accepts an offer of redress,
then the person releases the participating institutions determined by
the Operator to be responsible for the abuse (and their officials), as
well as all of the associates of that institution (and their officials).
The second is that all participating groups must have a
representative for the group. The representative may act on behalf
of each member of the group (for example, communicate with the
Operator). However, the representative will not assume any
obligations or liabilities of the members, except for the liability of
a member to pay funding contribution.
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Division 2--Participating groups
133 Participating groups
(1) Two or more participating institutions may form a participating
group for the purposes of the scheme.
(2) A participating group is a group of participating institutions for
which a declaration is force under subsection 134(1).
(3) A participating institution that is a member of a participating group
is an associate of each other participating institution in the group.
Note: Particular provisions of this Act apply in a special way for associates
(see sections 42 and 43, which are about releasing institutions and
officials from civil liability for abuse).
134 Institutions becoming members of a participating group
(1) The Minister may, by notifiable instrument, declare that 2 or more
participating institutions form a participating group.
(2) The Minister must not make a declaration under subsection (1)
unless the Minister is satisfied that:
(a) for a group of Commonwealth institutions--the
Commonwealth has agreed to each Commonwealth
institution being a member of the group; and
(b) for a group of State institutions--the participating State has
agreed, in a way provided for in the State's referral Act or
adoption Act, to each State institution being a member of the
group; and
(c) for a group of Territory institutions--the participating
Territory has agreed to each Territory institution being a
member of the group; and
(d) for a group of non-government institutions:
(i) each institution has agreed to be a member of the group
and to each other institution being a member of the
group; and
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(ii) there is a sufficient connection between each institution
in the group; and
(e) in all cases:
(i) each institution is not a member of another participating
group; and
(ii) there is a representative for the group (see
subsection 136(1)); and
(iii) any other requirements prescribed by the rules are
satisfied.
Note: For how the agreement of the Commonwealth, a participating
Territory, an institution or a person is given, see section 186.
(3) If:
(a) a State or Territory has agreed to a State institution or
Territory institution being a member of a participating group;
and
(b) the institution is a body corporate;
then the institution is taken to have also agreed to be a member of
the participating group.
135 Institutions ceasing to be members of a participating group
(1) The Minister may, by notifiable instrument, vary or revoke a
declaration made under subsection 134(1).
(2) If:
(a) a State requests the Minister in writing to vary or revoke a
declaration made under subsection 134(1) in relation to a
group of State institutions so that:
(i) the group ceases to be a participating group; or
(ii) a State institution ceases to be a member of the group;
or
(b) a participating Territory requests the Minister in writing to
vary or revoke a declaration made under subsection 134(1) in
relation to a group of Territory institutions so that:
(i) the group ceases to be a participating group; or
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(ii) a Territory institution ceases to be a member of the
group; or
(c) all of the non-government institutions that are members of a
participating group request the Minister in writing to revoke a
declaration made under subsection 134(1) in relation to the
group so that it ceases to be a participating group; or
(d) a participating non-government institution that is a member
of a participating group requests the Minister in writing to
vary a declaration made under subsection 134(1) in relation
to the institution so that it ceases to be a member of the
group;
then the Minister must, by notifiable instrument, vary or revoke the
declaration as requested as soon as practicable.
(3) If a participating group of non-government institutions ceases to
have a representative for the group, then the Minister must revoke
the declaration made under subsection 134(1) as soon as
practicable.
(4) Despite subsections (1), (2) and (3), the Minister must not vary or
revoke a declaration made under subsection 134(1) in relation to a
participating group unless any requirements prescribed by the rules
relating to the variation or revocation are satisfied.
(5) If:
(a) the Minister revokes a declaration made under
subsection 115(2) in relation to a participating institution that
is a member of a participating group immediately before the
revocation; but
(b) because of subsection 116(7), the institution continues to be a
participating institution in relation to a person who made an
application for redress before the revocation;
then each of the associates of the institution continues to be an
associate of the institution in relation to the person, as if the
institution were still a member of the group.
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Division 3--Representatives for participating groups
136 Representatives for participating groups
(1) A participating group must have a representative for the group.
(2) The representative for a participating group of Commonwealth
institutions is the Commonwealth.
(3) The representative for a participating group of State institutions is
the participating State.
(4) The representative for a participating group of Territory
institutions is the participating Territory.
(5) The representative for a participating group of non-government
institutions is the person in relation to whom a declaration is force
under subsection 137(1).
(6) A participating group may have only one representative for the
group.
(7) However, a person may be the representative for more than one
participating group.
137 Becoming the representative for a participating group of
non-government institutions
(1) The Minister may, by notifiable instrument, declare that a person is
the representative for a participating group of non-government
institutions.
(2) The Minister must not make a declaration under subsection (1)
unless the Minister is satisfied that:
(a) the person has agreed to be the representative for the group;
and
(b) each participating institution that is a member of the group
has agreed to the person being the representative for the
group; and
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(c) there is not a declaration in force under subsection (1)
declaring another person to be the representative for the
group; and
(d) any other requirements prescribed by the rules are satisfied.
Note: For how the agreement of an institution or a person is given, see
section 186.
138 Ceasing to be the representative for a participating group of
non-government institutions
(1) The Minister may, by notifiable instrument, revoke a declaration
made under subsection 137(1) in relation to a representative for a
participating group.
(2) The Minister must, by notifiable instrument, revoke a declaration
made under subsection 137(1) if:
(a) the representative; or
(b) each of the members of the group (other than the
representative, if the representative is a member);
requests the Minister in writing to revoke the declaration.
Note: If a participating group of non-government institutions does not have a
representative, then the Minister must revoke the declaration made
under subsection 134(1) that the group is a participating group (see
subsection 135(3)).
(3) Despite subsections (1) and (2), the Minister must not revoke a
declaration made under subsection 137(1) unless any requirements
prescribed by the rules in relation to the revocation are satisfied.
(4) If:
(a) the Minister revokes a declaration made under
subsection 115(2) in relation to a participating institution that
is a member of a participating group immediately before the
revocation; but
(b) because of subsection 116(7), the institution continues to be a
participating institution in relation to a person who made an
application for redress before the revocation;
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then the representative for the participating group continues to be
the representative for the group in relation to the person, as if the
institution were still a member of the group.
139 Actions of the representative for a participating group
(1) Any act that a participating institution that is a member of a
participating group may do under, or for the purposes of, this Act
(other than this Division) may be done by the representative for the
group on behalf of that institution.
(2) Any act that is done by the representative for a participating group
on behalf of a participating institution that is a member of the
group has effect, for the purposes of this Act (other than this
Division) as if it had been done by that institution.
140 Giving notices to the representative for a participating group
(1) Any notice that the Operator is required or authorised by this Act
to give to a participating institution that is a member of a
participating group must be given by the Operator to the
representative for the group.
(2) A notice given under subsection (1) must, in every respect, be in
the same form, and in the same terms, as if it were being given to
the participating institution concerned.
141 Joint and several liability of the representative for funding
contribution
If:
(a) a participating institution is liable to pay funding contribution
for a quarter; and
(b) that institution is a member of a participating group;
then that institution and the representative for the group are jointly
and severally liable to pay the funding contribution for the quarter.
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Part 5-3--Jurisdictions participating in the scheme
Division 1--Simplified outline of this Part
142 Simplified outline of this Part
Only participating jurisdictions are part of the scheme. While the
Commonwealth and participating Territories are automatically
participating jurisdictions, a State is only a participating
jurisdiction (and therefore part of the scheme) if it makes a law that
gives certain legislative powers to the Commonwealth Parliament
for the purposes of paragraph 51(xxxvii) of the Constitution. This
is known as a State reference. Section 144 deals with this.
Broadly, if a State is not a participating State, then abuse of a
person that occurred inside that State will not be within the scope
of the scheme. This means that the person will not be eligible for
redress for that abuse.
The Minister may declare that a participating jurisdiction is a
declared provider of counselling and psychological services under
the scheme if the jurisdiction requests the Minister to do so. If that
happens, then that jurisdiction will provide for the delivery of those
services to those who are entitled to redress and live in that
jurisdiction.
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Division 2--Participating jurisdictions
143 What is a participating jurisdiction?
Each of the following jurisdictions is a participating jurisdiction:
(a) the Commonwealth;
(b) a participating State;
(c) a participating Territory.
144 What is a participating State?
Participating State
(1) A State is a participating State if, for the purposes of
paragraph 51(xxxvii) of the Constitution, the Parliament of the
State:
(a) has, by its referral Act, referred to the Commonwealth
Parliament:
(i) the text reference (see subsection (2)); and
(ii) the amendment reference (see subsection (3));
before the enactment of this Act; or
(b) has, by its adoption Act:
(i) adopted the relevant version of this Act; and
(ii) referred to the Commonwealth Parliament the
amendment reference;
after the enactment of this Act.
Text reference
(2) Text reference means the matters to which the initial referred
provisions relate, to the extent of making laws with respect to those
matters by including the initial referred provisions in the original
version of this Act.
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Amendment reference
(3) Amendment reference means the referred national redress scheme
matters (as defined in section 145), to the extent of making laws
with respect to those matters by making express amendments of
this Act.
Certain things do not affect participating State's status
(4) A State is a participating State even if the State's referral Act or
adoption Act provides that:
(a) the reference to the Commonwealth Parliament of the text
reference or the amendment reference is to terminate in
particular circumstances; or
(b) the adoption of the relevant version of this Act is to terminate
in particular circumstances; or
(c) the reference to the Commonwealth Parliament of the text
reference or the amendment reference has effect only:
(i) if and to the extent that the matter is not included in the
legislative powers of the Commonwealth Parliament
(otherwise than by a reference for the purposes of
paragraph 51(xxxvii) of the Constitution); or
(ii) if and to the extent that the matter is included in the
legislative powers of the Parliament of the State.
Timeframe for becoming a participating State
(5) A State is not a participating State if it has not become a
participating State before the second anniversary of the scheme
start day or a later day prescribed by the rules.
When a State ceases to be a participating State
(6) A State ceases to be a participating State if:
(a) in the case where the Parliament of the State has referred to
the Commonwealth Parliament the text reference--that
reference terminates; or
(b) in the case where the Parliament of the State has adopted the
relevant version of this Act--that adoption terminates.
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(7) A State ceases to be a participating State if:
(a) the State's amendment reference terminates; and
(b) subsection (8) does not apply to the termination.
(8) A State does not cease to be a participating State because of the
termination of its amendment reference if:
(a) the termination is effected by the Governor of that State
fixing a day by Proclamation as the day on which the
reference terminates; and
(b) the day fixed is no earlier than the first day after the end of
the period of 6 months beginning on the day on which the
Proclamation is published; and
(c) that State's amendment reference, and the amendment
reference of every other participating State, terminates on the
same day.
Definitions
(9) In this Act:
adoption Act, of a State, means the Act of the State that adopts the
relevant version of this Act and refers the amendment reference to
the Commonwealth Parliament.
express amendment of this Act means the direct amendment of the
text of this Act (whether by the insertion, omission, repeal,
substitution or relocation of words or matter) by another
Commonwealth Act or by an instrument under a Commonwealth
Act, but does not include the enactment by a Commonwealth Act
of a provision that has, or will have, substantive effect otherwise
than as part of the text of this Act.
initial referred provisions means the original version of this Act,
to the extent to which it deals with matters that are included in the
legislative powers of the Parliament of the State.
original version of this Act means this Act as originally enacted.
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referral Act, of a State, means the Act of the State that refers the
text reference and the amendment reference to the Commonwealth
Parliament.
relevant version of this Act, in relation to a State's adoption Act,
means the original version of this Act and as subsequently
amended by amendments enacted at any time before the enactment
of the State's adoption Act.
145 The referred national redress scheme matters
(1) The referred national redress scheme matters are the matters
relating to a redress scheme for institutional child sexual abuse.
(2) However, the following matters are not referred national redress
scheme matters:
(a) the matter of making a law to the extent that that law would
operate to prevent or limit the power to establish, or to
prevent or limit the operation of, any State redress
mechanism, whether or not the mechanism deals with the
same or similar subject matters as those dealt with in any
aspect of the scheme;
(b) the matter of making a law to the extent that that law would
substantively remove or override a provision of this Act that
requires the agreement of the State.
(3) Paragraph (2)(a) does not cover any of the following matters (if
they would otherwise be covered by subsection (1)):
(a) any matter to which the initial referred provisions relate;
(b) the matter of the release or discharge, in connection with the
operation of the scheme, of relevant civil liability of
institutions or officials;
(c) the matter of the disclosure or use of evidence or other
information provided or obtained in connection with the
operation of the scheme;
(d) the matter of the making, enforcement or protection (for
example, protection against the operation of orders in the
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nature of garnishee orders) of payments in connection with
the operation of the scheme.
(4) A State redress mechanism is:
(a) a scheme, program or arrangement (temporary or otherwise)
established (before or after the commencement of the State's
referral Act or adoption Act) by:
(i) the Parliament or government of the State; or
(ii) an institution (whether governmental or
non-governmental) or other entity;
for or in respect of persons who have suffered institutional
child sexual abuse in the State (whether applying only to any
such persons or applying to any class of victims of crime)
and any associated matters; or
(b) the jurisdiction of a court or tribunal to grant compensation
or support for or in respect of victims of crime (including
crime relating to institutional child sexual abuse) and any
associated matters.
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Division 3--Participating jurisdictions providing
counselling and psychological services under the
scheme
146 Participating jurisdictions that are declared providers
(1) A participating jurisdiction may notify the Minister, in writing,
that:
(a) arrangements are in place in the jurisdiction for the delivery
of counselling and psychological services in accordance with
the National Service Standards; and
(b) the jurisdiction requests to become a declared provider of
counselling and psychological services under the scheme.
(2) A participating jurisdiction is a declared provider of counselling
and psychological services under the scheme if a declaration to that
effect is in force under subsection 147(1).
147 Ministerial declarations about declared providers
(1) If the Minister receives a notice under subsection 146(1) from a
participating jurisdiction, then the Minister must, by notifiable
instrument, declare that the jurisdiction is a declared provider of
counselling and psychological services under the scheme.
(2) If the participating jurisdiction requests the Minister, in writing, to
revoke a declaration made under subsection (1), then the Minister
must, by notifiable instrument, revoke the declaration as soon as
practicable.
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Chapter 6--Financial matters
Part 6-1--Liability for funding
Division 1--Simplified outline of this Part
148 Simplified outline of this Part
The Commonwealth is liable to bear the initial costs of paying
redress payments and the counselling and psychological
component of redress under the scheme, as well as the
administration 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 elements:
(a) the redress element (which covers the total amount of
the institution's share of the costs of redress payments
and the counselling and psychological component of
redress in the quarter); and
(b) the scheme administration element (which covers the
total amount of the institution's contribution to the costs
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 is liable to pay counselling and psychological
services contribution to a participating jurisdiction that is a
declared provider of counselling and psychological services under
the scheme. The Commonwealth must pay the contribution to the
jurisdiction for a quarter if the jurisdiction became liable in that
quarter to provide for the delivery of counselling and psychological
services to a person.
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A participating government institution may be the funder of last
resort for a defunct institution. In that case, the government
institution will be liable to pay the defunct institution's
(hypothetical) share of the costs of providing redress to the person,
which will increase the amount of funding contribution the
government institution will be liable to pay. (For funders of last
resort, see Part 6-2.)
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Division 2--Liability of participating institutions for
funding contribution
149 Liability for funding contribution
(1) If, in a quarter, a person becomes entitled to redress for abuse of
the person, then each participating institution that is determined by
the Operator under paragraph 29(2)(b) to be responsible for the
abuse is liable to pay funding contribution for that quarter.
Note 1: If the responsible institution is a defunct institution, its representative
will be liable to pay the funding contribution (see section 123).
Note 2: If the responsible institution is an unincorporated lone institution, its
representative will be jointly and severally liable with the institution to
pay the funding contribution (see section 131).
Note 3: If the responsible institution is a member of a participating group, the
representative for the group will be jointly and severally liable with
the institution to pay the funding contribution (see section 141).
(2) A quarter is a period of 3 months beginning on 1 July, 1 October,
1 January or 1 April.
(3) Subsection (1) does not apply to a Commonwealth institution.
(4) The rules may provide for the application of this Part to a
Commonwealth institution.
150 Funding contribution
Funding contribution for a participating institution for a quarter
consists of:
(a) the redress element for the institution for the quarter; and
(b) the scheme administration element for the institution for the
quarter.
Note: If the Operator determines under paragraph 29(2)(i) that a
participating government institution is the funder of last resort for a
defunct institution in relation to abuse of a person, the government
institution will be liable for the defunct institution's (hypothetical)
share of the costs of providing redress to the person (see section 165).
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151 Redress element
The redress element of funding contribution for a participating
institution for a quarter is the amount equal to the sum of the
following amounts for each person who is entitled to redress:
(a) the amount of the institution's share of the costs of the
redress payment to the person in the quarter;
(b) the amount of the institution's share of the costs of the
counselling and psychological component of redress for the
person in the quarter.
Note: The Operator determines the amount of an institution's share of the
costs of the redress payment under paragraph 29(2)(c) and the amount
of an institution's share of the costs of the counselling and
psychological component of redress for the person under
paragraph 29(2)(d).
152 Scheme administration element
(1) The scheme administration element of funding contribution for a
participating institution for a quarter is the amount equal to the
institution's contribution to the costs of the administration 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 contribution to the costs of the
administration of the scheme for the quarter.
153 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.
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154 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, for that calendar month, a penalty worked out using the
following formula:
A m o u n t o f f u n d in g c o n tr ib u tio n 0 .1
u n p a id a t th e s ta r t o f th e c a le n d a r m o n th 12
(2) Late payment penalty for a calendar month is due and payable at
the end of the calendar month.
(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.
155 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.
156 Waiver of funding contribution and late payment penalty
(1) The Operator may, on behalf of the Commonwealth, waive the
payment of all or 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 the Operator's own initiative or on
written application by a person in the approved form.
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157 Review of decision about waiving funding contribution or
penalty
(1) A participating institution that is affected by a decision of the
Operator under section 156 about waiving the payment of all or
part of funding contribution or late payment penalty 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 approved form
within:
(i) the period of 21 days after the day of the 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 that result.
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158 Liability of corporate State or Territory institutions for funding
contribution
If:
(a) a State institution or a Territory institution is a body
corporate; and
(b) the institution is taken to have agreed to participate in the
scheme (see subsection 115(5)); and
(c) the imposition of a liability on the institution to pay funding
contribution under section 149 would impermissibly:
(i) impose taxation on the institution; or
(ii) acquire property of the institution otherwise than on just
terms;
then section 149 is taken to impose the liability on the relevant
State or Territory instead.
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Division 3--Liability of the Commonwealth for counselling
and psychological services contribution
159 Liability for counselling and psychological services contribution
The Commonwealth is liable to pay counselling and psychological
services contribution to a participating jurisdiction for a quarter if:
(a) the jurisdiction is a declared provider of counselling and
psychological services under the scheme; and
(b) in that quarter the jurisdiction becomes required under
paragraph 51(2)(b) to provide for the delivery of those
services to a person.
160 Counselling and psychological services contribution
Counselling and psychological services contribution for a
participating jurisdiction for a quarter is the amount equal to the
sum of the amounts of the counselling and psychological
component of redress for each person in relation to whom the
jurisdiction becomes required under paragraph 51(2)(b) in the
quarter to provide for the delivery of counselling and psychological
services.
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Division 4--Appropriation
161 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 making the following payments:
(a) redress payments;
(b) counselling and psychological services payments;
(c) counselling and psychological services contribution.
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Part 6-2--Funders of last resort
Division 1--Simplified outline of this Part
162 Simplified outline of this Part
In some cases, a participating government institution will be the
funder of last resort for a defunct institution that is not participating
in the scheme. In those cases, the government institution will be
liable to pay the defunct institution's share of the costs of
providing redress to a person, in addition to the government
institution's liability to pay its own share of those costs.
Before a government institution can become the funder of last
resort for a defunct institution in relation to abuse of a person, the
Operator must first make a determination to that effect (see
paragraph 29(2)(i)). The Operator can only make that
determination if:
(a) the Operator has determined that the government
institution is equally responsible with the defunct
institution for the abuse; and
(b) the defunct institution is listed for the jurisdiction that
the government institution belongs to.
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Division 2--Funders of last resort
163 Funders of last resort
A participating government institution is the funder of last resort
for a defunct institution in relation to abuse of a person if a
determination of the Operator to that effect is in force under
paragraph 29(2)(i).
Note: The Operator can only make that determination if the participating
government institution and the defunct institution are equally
responsible for the abuse and the defunct institution is listed for the
jurisdiction that the government institution belongs to.
164 Listing defunct institutions
(1) A defunct institution is listed for a participating jurisdiction if:
(a) the defunct institution:
(i) is a non-government institution; and
(ii) is not a participating institution; and
(b) a declaration that the defunct institution is listed for the
jurisdiction is in force under subsection (2).
(2) The Minister may, by notifiable instrument, declare that a defunct
institution is listed for one or more participating jurisdictions.
Note: A defunct institution may be identified by name, by inclusion in a
particular class, or in any other way.
(3) The Minister must not make a declaration under subsection (2)
listing a defunct institution for the Commonwealth or a
participating Territory unless the Minister is satisfied that the
relevant jurisdiction has agreed, in the way (if any) prescribed by
the rules, to the institution being listed for the jurisdiction.
(4) The Minister must not make a declaration under subsection (2)
listing a defunct institution for a participating State unless the
Minister is satisfied that the State has agreed, in a way provided for
in the State's referral Act or adoption Act, to the institution being
listed for the State.
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(5) The Minister may, by notifiable instrument, vary or revoke a
declaration made under subsection (2).
(6) If:
(a) a declaration is made under subsection (2) that a defunct
institution is listed for the Commonwealth or a participating
Territory; and
(b) the jurisdiction withdraws its agreement, in the way (if any)
prescribed by the rules, to the defunct institution being listed
for the jurisdiction;
then, as soon as is practicable, the Minister must, by notifiable
instrument, vary or revoke the declaration so that the defunct
institution is no longer listed for the jurisdiction.
(7) If:
(a) a declaration is made under subsection (2) that a defunct
institution is listed for a participating State; and
(b) the State withdraws its agreement, in a way provided for in
the State's referral Act or adoption Act, to the defunct
institution being listed for the State;
then, as soon as is practicable, the Minister must, by notifiable
instrument, vary or revoke the declaration so that the defunct
institution is no longer listed for the State.
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Division 3--Special rules for funder of last resort cases
165 Special rules for funder of last resort cases
Effect of government institution being funder of last resort
(1) If the Operator determines under paragraph 29(2)(i) that:
(a) a participating government institution is equally responsible
with a defunct institution for abuse of a person; and
(b) the government institution is the funder of last resort for the
defunct institution in relation to the abuse;
then the government institution is liable, in accordance with this
section, for what the defunct institution would have been liable to
pay in relation to providing redress to the person, had the defunct
institution been a participating institution.
Redress payment
(2) When determining under paragraph 29(2)(c) the amount of the
redress payment for the person and the amount of the government
institution's share of the costs of that payment, the Operator must:
(a) apply subsection 30(2) as if the defunct institution were also
a responsible institution in relation to the abuse; and
(b) add the amount worked out under subsection 30(2) (as
applying because of paragraph (a) of this subsection) as the
amount of the defunct institution's share of the costs of the
redress payment to what, apart from this section, would have
been the government institution's share of the costs of the
redress payment.
Counselling and psychological component
(3) When determining under paragraph 29(2)(d) the amount of the
government institution's share of the costs of the counselling and
psychological component of redress for the person, the Operator
must:
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(a) determine, in accordance with section 31, the amount of the
defunct institution's share of those costs as if the defunct
institution were also a responsible institution; and
(b) add that amount to what, apart from this section, would have
been the amount of the government institution's share of
those costs.
Scheme administration costs
(4) When determining under subsection 152(2) the government
institution's contribution to the costs of the administration of the
scheme for a quarter, the Operator must:
(a) determine the amount of the defunct institution's contribution
to those costs as if the defunct institution were a participating
institution; and
(b) add that amount to what, apart from this section, would have
been the amount of the government institution's contribution
to those costs.
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Part 6-3--Debt recovery
Division 1--Simplified outline of this Part
166 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.
This Part also allows for funding contribution or late payment
penalty that is payable by an institution or a person to be
recoverable as a debt due to the Commonwealth.
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Division 2--Debt recovery
167 Recovery of amounts (other than funding contribution and late
payment penalty)
(1) If an amount has been paid to a person or an institution (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 institution; or
(b) the amount exceeds the amount payable to the recipient;
then the amount paid, or 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) If:
(a) the recipient was required under section 181 to notify the
Operator about a matter; and
(b) the recipient did not comply with the requirement; and
(c) had the Operator been notified as required, the amount that
was paid to the recipient would not have been payable;
then an amount equal to so much of the amount paid as is
attributable to the failure to comply with the requirement is a debt
due to the Commonwealth by the recipient.
(5) 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.
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168 Recovery of funding contribution and late payment penalty
The following amounts may be recovered by the Commonwealth
from an institution or a person as debts due to the Commonwealth:
(a) funding contribution that is due and payable by the institution
or person;
(b) late payment penalty that is due and payable by the
institution or person.
Note: For cases where a person may be liable to pay funding contribution,
see sections 123, 131 and 141.
169 Legal proceedings to recover debt
A debt due to the Commonwealth under this Part is recoverable by
the Commonwealth in a court of competent jurisdiction.
170 Arrangement for payment of debt
(1) The Operator may enter into an arrangement with a person or an
institution under which the person or institution is to pay a debt,
owed by the person or institution to the Commonwealth under this
Part, 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
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 request of the person or institution; or
(b) after giving 28 days' notice to the person or institution of the
proposed termination or alteration; or
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(c) without notice, if the Operator is satisfied that the person or
institution has failed to disclose material information about
the person's or institution's true capacity to repay the debt.
171 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 financial 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 financial institution to pay to the
Commonwealth, within 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 financial institution.
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.
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Note: A defendant bears a legal burden in relation to the matter in this
subsection (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 167(1) (as it relates to paragraph 167(2)(a)).
172 Repayment of recovered amount to participating institutions
If:
(a) the Commonwealth recovers an amount under this Part (other
than paragraph 167(2)(a)); and
(b) all or part of the amount relates to either or both of the
following payments:
(i) a redress payment;
(ii) a counselling and psychological services payment; and
(c) a participating institution has paid funding contribution in
relation to that payment;
then the Commonwealth must repay the institution so much of that
funding contribution as the Operator considers relates to the
amount recovered.
Note: For the appropriation for the refund, see section 77 of the Public
Governance, Performance and Accountability Act 2013.
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Chapter 7--Other matters
Part 7-1--Application of this Act
Division 1--Simplified outline of this Part
173 Simplified outline of this Part
This Act can only give an entitlement to redress if the
Commonwealth has legislative power to provide that redress. This
Part sets out the constitutional basis for providing redress and also
deals with other aspects of the application of this Act.
The main constitutional basis for redress is based on the place
where the abuse occurred, which broadly is as follows:
• If the abuse occurred inside a State that has given a reference
to the Commonwealth or made an adoption for the purposes of
paragraph 51(xxxvii) of the Constitution (i.e. a participating
State), then the reference or adoption by the State provides the
constitutional basis for the redress.
• If the abuse occurred inside a Territory (such as the Australian
Capital Territory, the Northern Territory or an external
Territory), then section 122 of the Constitution provides the
constitutional basis for the redress.
• If the abuse occurred outside Australia, then
paragraph 51(xxix) of the Constitution provides the
constitutional basis for the redress.
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Division 2--Application of this Act
174 Constitutional basis for this Act
What this section is about
(1) This section sets out the constitutional basis of this Act.
Application in a participating State
(2) The application of this Act in relation to sexual abuse, and any
related non-sexual abuse, of a person that occurred inside a
participating State is based on:
(a) the legislative powers that the Commonwealth Parliament has
under the Constitution (other than paragraph 51(xxxvii)); and
(b) the legislative powers that the Commonwealth Parliament has
because of a reference or an adoption by the Parliaments of
the participating States for the purposes of
paragraph 51(xxxvii) of the Constitution.
Application in a non-participating State
(3) The application of this Act in relation to sexual abuse, and any
related non-sexual abuse, of a person that occurred inside a
non-participating State is based on:
(a) the legislative powers that the Commonwealth Parliament has
under section 51 (other than paragraph 51(xxxvii)) and
section 122 of the Constitution; and
(b) the other legislative powers that the Commonwealth
Parliament has under the Constitution.
Application in a Territory
(4) The application of this Act in relation to sexual abuse, and any
related non-sexual abuse, of a person that occurred inside a
Territory is based on:
(a) the legislative powers that the Commonwealth Parliament has
under section 122 of the Constitution to make laws for the
government of a Territory; and
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(b) the other legislative powers that the Commonwealth
Parliament has under the Constitution.
Despite section 2H of the Acts Interpretation Act 1901, this Act as
applying in the Territory is a law of the Commonwealth.
Application outside Australia
(5) The application of this Act in relation to sexual abuse, and any
related non-sexual abuse, of a person that occurred outside
Australia is based on:
(a) the legislative power the Commonwealth Parliament has
under paragraph 51(xxix) of the Constitution; and
(b) the legislative powers that the Commonwealth Parliament has
under section 122 of the Constitution to make laws for the
government of a Territory; and
(c) the other legislative powers that the Commonwealth
Parliament has under the Constitution.
175 Concurrent operation with State and Territory laws
(1) 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.
(2) Without limiting subsection (1), this Act does not exclude or limit
the concurrent operation of a law of a State or Territory merely
because that law provides for redress (however described) to be
provided to a person for abuse suffered by the person.
176 Extraterritorial application and extension to external
Territories
(1) This Act applies both within and outside Australia.
(2) This Act extends to every external Territory.
177 Crown to be bound
This Act binds the Crown in each of its capacities.
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Part 7-2--The National Redress Scheme Rules
Division 1--Simplified outline of this Part
178 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 giving effect to this Act.
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Division 2--The National Redress Scheme Rules
179 The National 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 provide for the following:
(a) matters relating to an institution ceasing to be a participating
institution;
(b) matters relating to a participating group ceasing to be a
participating group;
(c) matters relating to a participating State ceasing to be a
participating State;
(d) matters relating to a person becoming, being or ceasing to be
a representative for a defunct institution, a lone institution or
a participating group;
(e) overriding, for the purposes of the scheme, any provisions of
settlement agreements or deeds that:
(i) relate to confidentiality; or
(ii) would inhibit access to, or the operation of, the scheme.
(3) Despite section 14 of the Legislation Act 2003, the rules may
apply, adopt or incorporate any matter contained in the assessment
framework as in force or existing from time to time.
(4) The provisions of this Act that provide for the rules to deal with
matters do not limit each other.
(5) 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
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(ii) entry, search or seizure;
(c) impose a tax;
(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.
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Part 7-3--Other matters
Division 1--Simplified outline of this Part
180 Simplified outline of this Part
A person who applies for redress under the scheme may be
required or permitted to notify the Operator of certain matters (e.g.
that the person is sentenced to imprisonment for 5 years or longer
for an offence). An institution may also be required or permitted to
notify the Operator about a matter (see section 181).
The Minister and the Operator may delegate their powers and
functions to certain officers of the scheme. 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 29 and 75 (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.
The Minister must cause 2 reviews of the scheme to be
conducted--one starting on the second anniversary of the scheme
start day and the other starting on the eighth anniversary of that
day. The rules can prescribe a later date to start those reviews.
The scheme ceases on the scheme sunset day (which ordinarily will
be the tenth anniversary of the scheme start day).
This Part also deals with other miscellaneous matters (such as
approved forms).
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Division 2--Giving notices for the purposes of the scheme
181 Persons or institutions giving notices to the Operator
(1) If:
(a) a person makes an application for redress under the scheme;
and
(b) after making the application, the person is sentenced to
imprisonment for 5 years or longer for an offence against a
law of the Commonwealth, a State, a Territory or a foreign
country;
then the person must notify the Operator of that fact in accordance
with any requirements prescribed by the rules.
(2) The rules may prescribe:
(a) circumstances for when a person or a participating institution
must or may notify the Operator of a matter; and
(b) requirements relating to the giving of the notice.
182 Operator giving notices to persons or institutions
(1) The rules may require or permit the Operator to give a notice to a
person or an institution about a matter relating to the operation of
this Act.
(2) If this Act requires or permits the Operator to give a notice to a
person or institution, the Operator may give the notice in any way
that the Operator considers appropriate.
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Division 3--Delegation
183 Delegation by the Minister
(1) The Minister may, in writing, delegate all or any of the Minister's
powers or functions under this Act (other than section 179 or 185)
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
under subsection (1), the delegate must comply with any directions
of the Minister.
184 Delegation by the Operator
Powers and functions--general
(1) The Operator may, in writing, delegate all or any of the Operator's
powers or functions under this Act (other than sections 29, 75 and
190) 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.
Powers and functions--redress determinations
(3) The Operator may, in writing, delegate the Operator's powers and
functions under section 29 or 75 (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.
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Division 4--Independent decision-makers
185 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 29 or 75 on applications for redress.
(2) Before giving an approval under subsection (1), the Minister must
consult the appropriate Ministers from the participating States and
participating Territories in accordance with the National 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
relating to the use of information and position; and the duty to disclose
interests.
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Division 5--Miscellaneous
186 Giving agreement
A reference in this Act to the Commonwealth, a participating
Territory, an institution or a person agreeing to a matter is a
reference to the body or person giving agreement in the way (if
any) prescribed by the rules.
Note: For example, paragraph 115(3)(c) provides that the Minister must not
make a declaration that a non-government institution is a participating
institution unless the institution has agreed to participate in the
scheme. Under this section, the way the institution gives its agreement
must be the way prescribed by the rules (if the rules prescribe a way).
187 Annual report on 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.
(2) Without limiting subsection (1), the annual report must:
(a) include information about any matter prescribed by the rules;
and
(b) comply with any requirements prescribed by the rules.
188 Approved forms
The Operator may, in writing, approve one or more forms for the
purposes of a provision of this Act that provides for something to
be done in an approved form.
189 Determinations of the Operator to be in writing
(1) A determination by the Operator under this Act must be in writing.
(2) A determination by the Operator under this Act is not a legislative
instrument.
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190 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.
External Territories
(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation
to the civil penalty provisions of this Act, extends to every external
Territory.
The Crown
(5) Part 4 of the Regulatory Powers Act, as that Part applies in relation
to the civil penalty provisions of this Act, does not make the
Crown in right of the Commonwealth, a State or a Territory liable
to a pecuniary penalty.
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191 Compensation for acquisition of property
(1) If the operation of this Act would result in an acquisition of
property (within the meaning of paragraph 51(xxxi) of the
Constitution) from a person otherwise than on just terms (within
the meaning of that paragraph), the Commonwealth is liable to pay
a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount
of the compensation, the person may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Supreme Court of a State or participating Territory;
for the recovery from the Commonwealth of such reasonable
amount of compensation as the court determines.
192 Review of the scheme
Second anniversary review
(1) The Minister must cause a review of the operation of the scheme to
be commenced as soon as possible after:
(a) the second anniversary of the scheme start day; or
(b) if, before the second anniversary, the rules prescribe a day
that is after the second anniversary--that day.
(2) The second anniversary review must consider the following
matters:
(a) the extent to which the States, participating Territories and
non-government institutions have opted into the scheme,
including key facilitators and barriers to opting in;
(b) the extent to which survivors who are eligible for redress
under the scheme have applied for redress;
(c) the extent to which redress has been provided to survivors
who are entitled to redress under the scheme;
(d) the application, assessment and decision-making process,
including user experiences of the process;
(e) redress payments;
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(f) access to counselling and psychological services under the
scheme;
(g) the extent to which survivors access direct personal responses
under the scheme, including factors influencing the uptake
and experiences with the direct personal response process;
(h) the availability of, and access to, support services under the
scheme;
(i) the implications of the scheme's design for survivors
(including Indigenous and child migrant survivors, as well as
survivors who are still children or who have a criminal
conviction);
(j) the operation of the scheme's funding arrangements
(including a review of the scheme administration element of
funding contribution);
(k) the operation of the funder of last resort provisions;
(l) the extent to which the scheme has been implemented as
proposed in the National Redress Scheme Agreement;
(m) the views of key stakeholders on the scheme (including
representatives from survivor groups, non-government
institutions, advocacy groups, support services provider
groups, the Independent Advisory Council, the
Commonwealth, the States and the Territories);
(n) the impact and effectiveness of section 37 (which is about the
admissibility of certain documents in evidence in civil
proceedings);
(o) the question of whether an institution (the first institution)
should be responsible for abuse that occurs in connection
with another institution merely because the first institution
regulates or funds the other institution or the other
institution's activities;
(p) the administration of this Act and the scheme;
(q) any other matter relevant to the operation of this Act or the
scheme.
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Eighth anniversary review
(3) 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 eighth anniversary--that day.
(4) The eighth anniversary review must consider the following
matters:
(a) the matters referred to in subsection (2);
(b) the results of any other review or evaluation conducted in
relation to the operation of the scheme.
193 Sunset of the scheme
(1) Subject to this section, this Act ceases to have effect at the end of
the day (the scheme 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.
Note: The fact that the Act ceases to have effect does not affect the operation
of section 43 in releasing and discharging an institution or official
from civil liability (see section 7 of the Acts Interpretation Act 1901).
(2) Despite subsection (1), at any time before the first anniversary of
the scheme sunset day, rules may be made under section 179 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 (3), the rules may provide that certain
provisions of this Act:
(a) continue to apply after the scheme sunset day for the
purposes set out in the rules; or
(b) continue to apply after the scheme sunset day in a modified
way for the purposes set out in the rules.
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National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018 [NSW]
Schedule 1 Scheduled text of the proposed Bill for a Commonwealth Act
Those provisions continue to apply, or continue to apply in the
modified way, as set out in the rules.
(5) Subsection 12(2) (retrospective application of legislative
instruments) of the Legislation Act 2003 does not apply in relation
to rules made for the purposes of this section.
(6) All legislative instruments (including the rules) made under this
Act are repealed immediately before the first anniversary of the
scheme sunset day.
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