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This is a Bill, not an Act. For current law, see the Acts databases.
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
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
i
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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National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
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
Division 6--Effect of determination and admissibility of
evidence in civil proceedings
43
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
iii
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
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
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National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
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
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
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
v
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
82
83
Duty of nominee .............................................................................. 82
84
Actions of assistance nominee ......................................................... 82
85
Actions of legal nominee ................................................................. 83
86
Giving notices to assistance nominee or legal nominee ................... 83
87
Nominee to inform the Operator of matters affecting ability
to act as nominee ............................................................................. 84
Division 4--Other matters relating to nominees
85
88
Protection of person against liability for actions of nominee ........... 85
89
Protection of nominee against criminal liability .............................. 85
90
Informing nominee if notice given to person ................................... 85
Part 4-3--Protecting information under the scheme
86
Division 1--Simplified outline of this Part
86
91
Simplified outline of this Part .......................................................... 86
Division 2--Use and disclosure of protected information
87
92
Protected information ...................................................................... 87
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National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
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93
Main authorisation--obtaining, recording, disclosing or
using protected information ............................................................. 87
94
Additional authorisation--Operator disclosing to nominee ............. 88
95
Additional authorisation--Operator disclosing in public
interest or for another specified purpose .......................................... 88
96
Additional authorisation--Operator disclosing for law
enforcement or child safety or wellbeing ......................................... 89
97
Additional authorisation--disclosing etc. for a permitted
purpose ............................................................................................ 90
98
Additional authorisation--person engaged by participating
institution disclosing etc. for a specified purpose ............................ 92
99
Offence--unauthorised access, recording, disclosure or use
of protected information .................................................................. 92
100
Offence--soliciting disclosure of protected information ................. 93
101
Offence--offering to disclose protected information ...................... 93
Division 3--Use and disclosure of the assessment framework
policy guidelines
95
102
Main authorisation for obtaining, recording, disclosing or
using the assessment framework policy guidelines ......................... 95
103
Additional authorisation--disclosure and use in accordance
with the National Redress Scheme Agreement ................................ 95
104
Offence--unauthorised recording, disclosure or use of
assessment framework policy guidelines ......................................... 95
Division 4--Other matters
97
105
Disclosures to a court or tribunal ..................................................... 97
106
Disclosing information in good faith ............................................... 97
Chapter 5--Participating institutions, participating
groups and participating jurisdictions
99
Part 5-1--Participating institutions
99
Division 1--Simplified outline of this Part
99
107
Simplified outline of this Part .......................................................... 99
Division 2--Institutions participating in the scheme
101
Subdivision A--Participating institutions
101
108
What is a participating institution? ................................................ 101
Subdivision B--Commonwealth institutions
101
109
What is a Commonwealth institution? ........................................... 101
Subdivision C--Participating State institutions
102
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
vii
110
What is a participating State institution? ....................................... 102
111
What is a State institution? ............................................................ 102
Subdivision D--Participating Territory institutions
102
112
What is a participating Territory institution? ................................. 102
113
What is a Territory institution? ...................................................... 103
Subdivision E--Participating non-government institutions
103
114
What is a participating non-government institution? ..................... 103
Division 3--Ministerial declarations about participating
institutions
105
115
Institutions becoming participating institutions ............................. 105
116
Institutions ceasing to be participating institutions ........................ 106
Division 4--Participating defunct institutions
109
Subdivision A--Participating defunct institutions
109
117
What is a participating defunct institution? ................................... 109
Subdivision B--Representatives for participating defunct
institutions
109
118
Representatives for participating defunct institutions .................... 109
119
Becoming the representative for a defunct non-government
institution ....................................................................................... 110
120
Ceasing to be the representative for a defunct
non-government institution ............................................................ 110
121
Actions of the representative for a defunct institution ................... 111
122
Giving notices to the representative for a defunct institution ........ 111
123
Obligations and liabilities of the representative for a defunct
institution ....................................................................................... 111
Division 5--Participating lone institutions
113
Subdivision A--Participating lone institutions
113
124
What is a participating lone institution? ........................................ 113
Subdivision B--Representatives for participating lone institutions
113
125
Representatives for participating lone institutions ......................... 113
126
Becoming the representative for an unincorporated lone
institution ....................................................................................... 114
127
Becoming the representative for an incorporated lone
institution ....................................................................................... 114
128
Ceasing to be the representative for a lone institution ................... 115
129
Actions of the representative for a lone institution ........................ 116
130
Giving notices to the representative for a lone institution ............. 116
viii
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
131
Joint and several liability of the representative for an
unincorporated lone institution for funding contribution ............... 116
Part 5-2--Groups of institutions participating in the scheme
117
Division 1--Simplified outline of this Part
117
132
Simplified outline of this Part ........................................................ 117
Division 2--Participating groups
118
133
Participating groups ....................................................................... 118
134
Institutions becoming members of a participating group ............... 118
135
Institutions ceasing to be members of a participating group .......... 119
Division 3--Representatives for participating groups
121
136
Representatives for participating groups ....................................... 121
137
Becoming the representative for a participating group of
non-government institutions .......................................................... 121
138
Ceasing to be the representative for a participating group of
non-government institutions .......................................................... 122
139
Actions of the representative for a participating group .................. 123
140
Giving notices to the representative for a participating group ....... 123
141
Joint and several liability of the representative for funding
contribution ................................................................................... 123
Part 5-3--Jurisdictions participating in the scheme
124
Division 1--Simplified outline of this Part
124
142
Simplified outline of this Part ........................................................ 124
Division 2--Participating jurisdictions
125
143
What is a participating jurisdiction? .............................................. 125
144
What is a participating State? ........................................................ 125
145
The referred national redress scheme matters ................................ 128
Division 3--Participating jurisdictions providing counselling
and psychological services under the scheme
130
146
Participating jurisdictions that are declared providers ................... 130
147
Ministerial declarations about declared providers ......................... 130
Chapter 6--Financial matters
131
Part 6-1--Liability for funding
131
Division 1--Simplified outline of this Part
131
148
Simplified outline of this Part ........................................................ 131
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
ix
Division 2--Liability of participating institutions for funding
contribution
133
149
Liability for funding contribution .................................................. 133
150
Funding contribution ..................................................................... 133
151
Redress element ............................................................................. 134
152
Scheme administration element ..................................................... 134
153
When funding contribution is due for payment ............................. 134
154
Late payment penalty .................................................................... 135
155
Payment of funding contribution and late payment penalty .......... 135
156
Waiver of funding contribution and late payment penalty ............. 135
157
Review of decision about waiving funding contribution or
penalty ........................................................................................... 136
158
Liability of corporate State or Territory institutions for
funding contribution ...................................................................... 137
Division 3--Liability of the Commonwealth for counselling and
psychological services contribution
138
159
Liability for counselling and psychological services
contribution ................................................................................... 138
160
Counselling and psychological services contribution .................... 138
Division 4--Appropriation
139
161
Appropriation ................................................................................ 139
Part 6-2--Funders of last resort
140
Division 1--Simplified outline of this Part
140
162
Simplified outline of this Part ........................................................ 140
Division 2--Funders of last resort
141
163
Funders of last resort ..................................................................... 141
164
Listing defunct institutions ............................................................ 141
Division 3--Special rules for funder of last resort cases
143
165
Special rules for funder of last resort cases.................................... 143
Part 6-3--Debt recovery
145
Division 1--Simplified outline of this Part
145
166
Simplified outline of this Part ........................................................ 145
Division 2--Debt recovery
146
167
Recovery of amounts (other than funding contribution and
late payment penalty) .................................................................... 146
168
Recovery of funding contribution and late payment penalty ......... 147
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National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
169
Legal proceedings to recover debt ................................................. 147
170
Arrangement for payment of debt .................................................. 147
171
Recovery of amounts from financial institutions ........................... 148
172
Repayment of recovered amount to participating institutions........ 149
Chapter 7--Other matters
150
Part 7-1--Application of this Act
150
Division 1--Simplified outline of this Part
150
173
Simplified outline of this Part ........................................................ 150
Division 2--Application of this Act
151
174
Constitutional basis for this Act .................................................... 151
175
Concurrent operation with State and Territory laws ...................... 152
176
Extraterritorial application and extension to external
Territories ...................................................................................... 152
177
Crown to be bound ........................................................................ 153
Part 7-2--The National Redress Scheme Rules
154
Division 1--Simplified outline of this Part
154
178
Simplified outline of this Part ........................................................ 154
Division 2--The National Redress Scheme Rules
155
179
The National Redress Scheme Rules ............................................. 155
Part 7-3--Other matters
157
Division 1--Simplified outline of this Part
157
180
Simplified outline of this Part ........................................................ 157
Division 2--Giving notices for the purposes of the scheme
159
181
Persons or institutions giving notices to the Operator ................... 159
182
Operator giving notices to persons or institutions ......................... 159
Division 3--Delegation
160
183
Delegation by the Minister ............................................................ 160
184
Delegation by the Operator ............................................................ 160
Division 4--Independent decision-makers
161
185
Engaging persons to be independent decision-makers ................... 161
Division 5--Miscellaneous
162
186
Giving agreement .......................................................................... 162
187
Annual report on operation of the scheme ..................................... 162
188
Approved forms ............................................................................. 162
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
xi
189
Determinations of the Operator to be in writing ............................ 162
190
Civil penalty provisions ................................................................. 163
191
Compensation for acquisition of property ..................................... 164
192
Review of the scheme .................................................................... 164
193
Sunset of the scheme ..................................................................... 166
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
1
A Bill for an Act to establish the National Redress
1
Scheme for Institutional Child Sexual Abuse, and
2
for related purposes
3
The Parliament of Australia enacts:
4
Chapter 1 Introduction
Part 1-1 Introduction
Division 1 Preliminary
Section 1
2
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Chapter 1--Introduction
1
Part 1-1--Introduction
2
Division 1--Preliminary
3
1 Short title
4
This Act is the National Redress Scheme for Institutional Child
5
Sexual Abuse Act 2018.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
As follows:
(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
13
enacted. It will not be amended to deal with any later amendments of
14
this Act.
15
Introduction Chapter 1
Introduction Part 1-1
Preliminary Division 1
Section 2
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
3
(2) Any information in column 3 of the table is not part of this Act.
1
Information may be inserted in this column, or information in it
2
may be edited, in any published version of this Act.
3
Chapter 1 Introduction
Part 1-1 Introduction
Division 2 Objects of this Act
Section 3
4
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Division 2--Objects of this Act
1
3 Objects of this Act
2
(1) The main objects of this Act are:
3
(a) to recognise and alleviate the impact of past institutional
4
child sexual abuse and related abuse; and
5
(b) to provide justice for the survivors of that abuse.
6
(2) For the purposes of achieving those objects, the objects of this Act
7
are also:
8
(a) to establish the National Redress Scheme for Institutional
9
Child Sexual Abuse; and
10
(b) to provide redress under the scheme which consists of:
11
(i) a monetary payment to survivors as a tangible means of
12
recognising the wrong survivors have suffered; and
13
(ii) a counselling and psychological component which,
14
depending on where the survivor lives, consists of
15
access to counselling and psychological services or a
16
monetary payment; and
17
(iii) a direct personal response to survivors from the
18
participating institutions responsible; and
19
(c) to enable institutions responsible for abuse of survivors to
20
participate in the scheme to provide that redress to those
21
survivors; and
22
(d) to implement the joint response of:
23
(i) the Commonwealth Government; and
24
(ii) the government of each participating State; and
25
(iii) the government of each participating Territory;
26
to the recommendations of the Royal Commission into
27
Institutional Responses to Child Sexual Abuse in relation to
28
redress.
29
Introduction Chapter 1
Introduction Part 1-1
Simplified outline of this Act Division 3
Section 4
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
5
Division 3--Simplified outline of this Act
1
4 Simplified outline of this Act
2
This Act establishes the National Redress Scheme for Institutional
3
Child Sexual Abuse to provide redress to survivors of past
4
institutional child sexual abuse.
5
Redress under the scheme is for abuse that is within the scope of
6
the scheme. Abuse of a person is within the scope of the scheme if:
7
(a)
it occurred when the person was a child; and
8
(b)
it occurred before the scheme start day; and
9
(c)
it occurred inside a participating State, inside a
10
Territory, or outside Australia (that is, it did not occur
11
inside a State that is not participating in the scheme).
12
Redress consists of 3 components:
13
(a)
a redress payment (of up to $150,000); and
14
(b)
a counselling and psychological component which,
15
depending on where the person lives, consists of access
16
to counselling and psychological services or a
17
counselling and psychological services payment (of up
18
to $5,000); and
19
(c)
a direct personal response from each participating
20
institution responsible for the abuse.
21
To be entitled to redress, a number of conditions need to be met.
22
First, the person must make an application for redress. Then the
23
person must meet the eligibility criteria. These are that:
24
(a)
the person was sexually abused; and
25
(b)
the abuse is within the scope of the scheme; and
26
(c)
the abuse is of a kind for which the maximum amount of
27
redress payment worked out under the assessment
28
framework would be more than nil; and
29
Chapter 1 Introduction
Part 1-1 Introduction
Division 3 Simplified outline of this Act
Section 4
6
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(d)
one or more participating institutions are responsible for
1
the abuse; and
2
(e)
at the time of the application, the person is an Australian
3
citizen or a permanent resident.
4
A participating institution is responsible for abuse of a person if the
5
abuse occurred in circumstances where the participating institution
6
is primarily or equally responsible for the abuser having contact
7
with the person. Various circumstances are relevant to determining
8
that question (e.g. whether the abuser was an official of the
9
institution).
10
The participating institutions are:
11
(a)
all Commonwealth institutions; and
12
(b)
any State institution that is declared to be a participating
13
institution; and
14
(c)
any Territory institution that is declared to be a
15
participating institution; and
16
(d)
any non-government institution that is declared to be a
17
participating institution.
18
If the Operator considers that there is a reasonable likelihood that
19
the person is eligible for redress, the Operator must approve the
20
application and make an offer of redress to the person. The person
21
may accept or decline the offer.
22
If the person accepts the offer, then the person becomes entitled to
23
redress under the scheme. The person is required to release
24
particular institutions and officials from all civil liability for the
25
abuse. Those institutions and officials are the participating
26
institutions determined by the Operator to be responsible for the
27
abuse, their officials, their associates and the officials of their
28
associates. The abuser is not released from liability.
29
Once entitled, the person will be provided with redress under the
30
scheme.
31
Introduction Chapter 1
Introduction Part 1-1
Simplified outline of this Act Division 3
Section 4
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
7
If the person declines the offer, then the person is not entitled to
1
redress under the scheme. The person is not required to release any
2
institution or official from liability for the abuse.
3
The Operator is responsible for the administration of the scheme.
4
To ensure that the scheme is survivor-focussed, the Operator (and
5
other officers of the scheme) must take into account general
6
guiding principles when taking action under the scheme. For
7
example, one of the principles is that redress must be assessed and
8
provided so as to avoid further harming or traumatising the person.
9
Participating institutions that are determined by the Operator to be
10
responsible for the abuse of a person are liable for the costs of
11
providing redress to the person. Those institutions are also liable
12
for contributing to the costs of the administration of the scheme.
13
The Operator is responsible for recovering those costs from those
14
institutions through funding contributions, which those institutions
15
are required to pay on a quarterly basis.
16
Chapter 1 Introduction
Part 1-2 Definitions
Division 1 Simplified outline of this Part
Section 5
8
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Part 1-2--Definitions
1
Division 1--Simplified outline of this Part
2
5 Simplified outline of this Part
3
Many terms used in this Act are defined to have a particular
4
meaning for this Act. For this reason, this Act has a Dictionary (in
5
section 6).
6
The Dictionary is a list of every term that is defined in this Act. A
7
term will either be defined in the Dictionary itself, or in another
8
provision of this Act. If another provision defines the term, the
9
Dictionary will have a signpost to the provision that has that
10
definition.
11
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
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National Redress Scheme for Institutional Child Sexual Abuse Bill
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9
Division 2--The Dictionary
1
6 The Dictionary
2
In this Act:
3
abuse means sexual abuse or non-sexual abuse.
4
abuser: a person is the abuser of another person if the person has
5
abused the other person.
6
acceptance document: see subsection 42(2).
7
acceptance period: see section 40.
8
adoption Act: see subsection 144(9).
9
amendment reference: see subsection 144(3).
10
approved form means a form approved under section 188.
11
assessment framework: see subsection 32(2).
12
assessment framework policy guidelines: see subsection 33(3).
13
assistance nominee means a person who is appointed as an
14
assistance nominee under paragraph 81(1)(a).
15
associate: for when a participating institution is an associate of
16
another participating institution, see subsection 133(3) and 135(5).
17
child means a person under the age of 18.
18
civil penalty provision has the same meaning as in the Regulatory
19
Powers Act.
20
Commonwealth institution: see section 109.
21
component of redress means any of the 3 components of redress
22
referred to in subsection 16(1).
23
counselling and psychological component of redress means:
24
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
10
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(a) the counselling and psychological services payment; or
1
(b) access to counselling and psychological services under the
2
scheme.
3
counselling and psychological services contribution: see
4
section 160.
5
counselling and psychological services payment means a payment
6
payable under subsection 51(3).
7
declared provider: see subsection 146(2).
8
defunct: an institution is defunct if it is no longer in existence.
9
direct personal response: see subsection 54(2).
10
direct personal response framework: see subsection 55(2).
11
eligible: see section 13.
12
entitled: see subsections 12(2), (3) and (4).
13
equally responsible: for when a participating institution is equally
14
responsible for abuse of a person, see subsections 15(3), (5) and
15
(6).
16
express amendment: see subsection 144(9).
17
financial institution means a body corporate that is an authorised
18
deposit-taking institution for the purposes of the Banking Act 1959.
19
Foreign Affairs Minister means the Minister administering the
20
Australian Passports Act 2005.
21
funder of last resort: for when a participating government
22
institution is the funder of last resort for a defunct institution, see
23
section 163.
24
funding contribution: see section 150.
25
government institution means a Commonwealth institution, State
26
institution or Territory institution.
27
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
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National Redress Scheme for Institutional Child Sexual Abuse Bill
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11
Home Affairs Minister means the Minister administering the
1
Australian Security Intelligence Organisation Act 1979.
2
Human Services Department means the Department administered
3
by the Minister administering the Human Services (Centrelink) Act
4
1997.
5
incorporated lone institution: see paragraph 124(3)(b).
6
independent decision-maker: see subsection 185(3).
7
initial referred provisions: see subsection 144(9).
8
institution means any body, entity, group of persons or
9
organisation (whether or not incorporated), but does not include a
10
family or an individual.
11
legal nominee means a person who is appointed as a legal nominee
12
under paragraph 81(1)(b).
13
listed: for when a defunct institution is listed for a participating
14
jurisdiction, see subsection 164(1).
15
lone institution: see subsection 124(2).
16
maximum amount: see step 1 of the method statement in
17
subsection 30(2).
18
National Redress Scheme Agreement means the
19
Intergovernmental Agreement on the National Redress Scheme for
20
Institutional Child Sexual Abuse, as in force from time to time.
21
National Redress Scheme Operator: see the definition of
22
Operator.
23
National Service Standards means the National Service Standards
24
set out in the National Redress Scheme Agreement.
25
nominee means an assistance nominee or a legal nominee.
26
non-government institution: see subsections 114(2) and (3).
27
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
12
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non-participating State means a State that is not a participating
1
State.
2
non-sexual abuse includes physical abuse, psychological abuse
3
and neglect.
4
officer of the scheme means:
5
(a) a person in the Department or the Human Services
6
Department performing duties, or exercising powers or
7
functions, under or in relation to this Act (including the
8
Operator); or
9
(b) an independent decision-maker; or
10
(c) a person prescribed by the rules.
11
official of an institution means a person who is or has been an
12
officer, employee, volunteer or agent of the institution.
13
Operator (short for National Redress Scheme Operator) means the
14
person who is the Secretary of the Department, in the person's
15
capacity as Operator of the scheme (as referred to in section 9).
16
original determination: see paragraph 73(1)(b).
17
original version of this Act: see subsection 144(9).
18
participating defunct institution: see section 117.
19
participating government institution means:
20
(a) a Commonwealth institution; or
21
(b) a participating State institution; or
22
(c) a participating Territory institution.
23
participating group: see subsection 133(2).
24
participating incorporated lone institution: see subsection 124(5).
25
participating institution: see subsections 108(2) and 116(7).
26
participating jurisdiction: see section 143.
27
participating lone institution: see subsection 124(1).
28
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
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National Redress Scheme for Institutional Child Sexual Abuse Bill
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13
participating non-government institution: see subsection 114(1).
1
participating State: see section 144.
2
participating State institution: see section 110.
3
participating Territory means the Australian Capital Territory or
4
the Northern Territory.
5
participating Territory institution: see section 112.
6
participating unincorporated lone institution: see
7
subsection 124(4).
8
permitted purpose: see paragraph 97(1)(e).
9
primarily responsible: for when a participating institution is
10
primarily responsible for abuse of a person, see subsections 15(2),
11
(5) and (6).
12
production period: see paragraphs 24(3)(c) and 25(4)(c).
13
protected information: see subsection 92(2).
14
quarter: see subsection 149(2).
15
reasonable likelihood, in relation to a person being eligible for
16
redress, means the chance of the person being eligible is real, is not
17
fanciful or remote and is more than merely plausible.
18
redress: see subsection 16(1).
19
redress element: see section 151.
20
redress payment means a payment payable under section 48 or 60.
21
referral Act: see subsection 144(9).
22
referred national redress scheme matters: see subsections 145(1)
23
and (2).
24
Regulatory Powers Act means the Regulatory Powers (Standard
25
Provisions) Act 2014.
26
Chapter 1 Introduction
Part 1-2 Definitions
Division 2 The Dictionary
Section 6
14
National Redress Scheme for Institutional Child Sexual Abuse Bill
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No. , 2018
related: non-sexual abuse of a person is related to sexual abuse of
1
the person if a participating institution is responsible for both the
2
sexual abuse and the non-sexual abuse of the person.
3
released institution or official: see paragraph 42(2)(c).
4
relevant prior payment: see step 3 of the method statement in
5
subsection 30(2).
6
relevant version of this Act: see subsection 144(9).
7
representative:
8
(a) for a participating defunct institution: see subsections 118(2),
9
(3), (4) and (5) and 120(4); or
10
(b) for a participating lone institution: see subsections 125(2) and
11
(3) and 128(4); or
12
(c) for a participating group: see subsections 136(2), (3), (4) and
13
(5) and 138(4).
14
responsible: for when a participating institution is responsible for
15
abuse of a person, see subsections 15(1), (5) and (6).
16
responsible institution: an institution is a responsible institution in
17
relation to abuse of a person if the Operator has determined under
18
paragraph 29(2)(b) that the institution is responsible for that abuse.
19
review determination: see paragraph 75(2)(b).
20
rules means the rules made by the Minister under section 179.
21
saved amount:
22
(a) for a redress payment: see subsection 50(2); or
23
(b) for a counselling and psychological services payment: see
24
subsection 53(2).
25
scheme means the National Redress Scheme for Institutional Child
26
Sexual Abuse established under section 8.
27
scheme administration element: see subsection 152(1).
28
scheme start day means the day this Act commences.
29
Introduction Chapter 1
Definitions Part 1-2
The Dictionary Division 2
Section 6
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2018
15
scheme sunset day: see subsection 193(1).
1
security notice: see subsection 65(1).
2
sexual abuse of a person who is a child includes any act which
3
exposes the person to, or involves the person in, sexual processes
4
beyond the person's understanding or contrary to accepted
5
community standards.
6
State institution: see section 111.
7
State redress mechanism: see subsection 145(4).
8
survivor means a person who has suffered sexual abuse that is
9
within the scope of the scheme.
10
Territory means a Territory referred to in section 122 of the
11
Constitution.
12
Note:
A participating Territory is a type of Territory, but there are other
13
Territories that are covered by this definition (e.g. the Jervis Bay
14
Territory).
15
Territory institution: see section 113.
16
text reference: see subsection 144(2).
17
this Act includes:
18
(a) the rules; and
19
(b) any other instrument made under this Act.
20
unincorporated lone institution: see paragraph 124(3)(a).
21
wholly-owned Commonwealth company has the same meaning as
22
in the Public Governance, Performance and Accountability Act
23
2013.
24
within the scope: for when abuse is within the scope of the
25
scheme, see section 14.
26
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
Section 7
16
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Chapter 2--The National Redress Scheme for
1
Institutional Child Sexual Abuse
2
Part 2-1--Establishment of the scheme
3
Division 1--Simplified outline of this Part
4
7 Simplified outline of this Part
5
This Part formally establishes the National Redress Scheme for
6
Institutional Child Sexual Abuse. It provides that the Operator is
7
responsible for operating the scheme. It also sets out general
8
principles that the Operator and other officers of the scheme must
9
take into account, for the benefit and protection of survivors, when
10
taking action under the scheme.
11
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Establishment of the scheme Part 2-1
Establishment of the scheme Division 2
Section 8
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National Redress Scheme for Institutional Child Sexual Abuse Bill
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17
Division 2--Establishment of the scheme
1
8 Establishment of the scheme
2
The National Redress Scheme for Institutional Child Sexual Abuse
3
is established by this Act.
4
9 The National Redress Scheme Operator
5
(1) The Secretary of the Department is the National Redress Scheme
6
Operator.
7
(2) The Operator is responsible for operating the scheme.
8
(3) The Operator may arrange for support and assistance (including
9
legal assistance) to be provided to a person (including a person
10
who is an applicant, or prospective applicant, for redress) in
11
relation to the doing of things under, or for the purposes of, the
12
scheme.
13
Note:
For example, the Operator might arrange for support and assistance to
14
be provided to help prepare a person's application for redress.
15
(4) The Operator may, on behalf of the Commonwealth:
16
(a) enter into a contract, agreement, deed or understanding
17
relating to the provision of support or assistance provided
18
under the scheme; and
19
(b) vary and administer that contract, agreement, deed or
20
understanding.
21
10 General principles guiding actions of officers under the scheme
22
(1) This section sets out the principles that must be taken into account
23
by the Operator and other officers of the scheme when taking
24
action under, or for the purposes of, the scheme.
25
(2) Redress under the scheme should be survivor-focussed.
26
(3) Redress should be assessed, offered and provided with appropriate
27
regard to:
28
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-1 Establishment of the scheme
Division 2 Establishment of the scheme
Section 10
18
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(a) what is known about the nature and impact of child sexual
1
abuse, and institutional child sexual abuse in particular; and
2
(b) the cultural needs of survivors; and
3
(c) the needs of particularly vulnerable survivors.
4
(4) Redress should be assessed, offered and provided so as to avoid, as
5
far as possible, further harming or traumatising the survivor.
6
(5) Redress should be assessed, offered and provided in a way that
7
protects the integrity of the scheme.
8
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Entitlement to redress under the scheme Part 2-2
Simplified outline of this Part Division 1
Section 11
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2018
19
Part 2-2--Entitlement to redress under the scheme
1
Division 1--Simplified outline of this Part
2
11 Simplified outline of this Part
3
For a person to be entitled to redress under the scheme, a number
4
of conditions need to be met.
5
First, the person must make an application for redress under the
6
scheme.
7
Then the person must meet the eligibility criteria for redress. These
8
are that the person was sexually abused, the abuse is within the
9
scope of the scheme, the abuse is of a kind for which the amount of
10
redress payment worked out under the assessment framework
11
would be more than nil, one or more participating institutions are
12
responsible for the abuse, and, at the time of the application, the
13
person is an Australian citizen or a permanent resident.
14
If the Operator considers that there is a reasonable likelihood that
15
the person is eligible for redress, the Operator must approve the
16
application and make an offer of redress to the person. The person
17
may accept or decline the offer. (Offers and acceptance of redress
18
are dealt with in Part 2-4.)
19
If the person accepts the offer, then the person becomes entitled to
20
redress under the scheme. The person is required to release
21
particular institutions and officials from all civil liability for the
22
abuse. Those institutions are the participating institutions
23
determined by the Operator to be responsible for the abuse, their
24
officials, their associates and the officials of their associates. The
25
abuser is not released from liability.
26
Once entitled, the person will be provided with redress under the
27
scheme. (Provision of redress is dealt with in Part 2-5.)
28
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-2 Entitlement to redress under the scheme
Division 1 Simplified outline of this Part
Section 11
20
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
If the person declines the offer, then the person is not entitled to
1
redress under the scheme. The person is not required to release any
2
institution or official from civil liability for the abuse.
3
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Entitlement to redress under the scheme Part 2-2
Entitlement to redress under the scheme Division 2
Section 12
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National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
21
Division 2--Entitlement to redress under the scheme
1
12 When is a person entitled to be provided with redress?
2
(1) A person can only be provided with redress under the scheme if the
3
person is entitled to it.
4
(2) A person is entitled to redress under the scheme if:
5
(a) the person applies for redress under section 19; and
6
(b) the Operator considers that there is a reasonable likelihood
7
that the person is eligible for redress under the scheme (see
8
section 13 for eligibility); and
9
(c) the Operator approves the application under section 29; and
10
(d) the Operator makes an offer of redress to the person under
11
section 39; and
12
(e) the person accepts the offer in accordance with section 42.
13
(3) A person is also entitled to redress, or a component of redress,
14
under the scheme if this Act or the rules prescribe that the person is
15
entitled to it.
16
Note:
For cases where this Act prescribes that a person is entitled to redress,
17
or a component of redress, under the scheme, see Part 3-1.
18
(4) Despite subsections (2) and (3), a person is not entitled to redress,
19
or a component of redress, under the scheme if this Act or the rules
20
prescribe that the person is not entitled to it.
21
Note:
For cases where this Act prescribes that a person is not entitled to
22
redress, or a component of redress, under the scheme, see Part 3-2.
23
13 When is a person eligible for redress?
24
(1) A person is eligible for redress under the scheme if:
25
(a) the person was sexually abused; and
26
(b) the sexual abuse is within the scope of the scheme (see
27
section 14); and
28
(c) the sexual abuse is of a kind for which the maximum amount
29
of redress payment that could be payable to the person (as
30
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-2 Entitlement to redress under the scheme
Division 2 Entitlement to redress under the scheme
Section 14
22
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2018
No. , 2018
worked out under the assessment framework) would be more
1
than nil; and
2
(d) one or more participating institutions are responsible for the
3
abuse (see section 15); and
4
(e) the person is an Australian citizen or a permanent resident
5
(within the meaning of the Australian Citizenship Act 2007)
6
at the time the person applies for redress.
7
Note 1:
To be eligible for redress, a person must have been sexually abused.
8
However, redress is for the sexual abuse, and related non-sexual
9
abuse, of the person that is within the scope of the scheme.
10
Note 2:
For which institutions are participating institutions, see
11
subsection 108(2).
12
(2) A person is also eligible for redress under the scheme if this Act or
13
the rules prescribe that the person is eligible for it.
14
(3) Despite subsections (1) and (2), a person is not eligible for redress
15
under the scheme if this Act or the rules prescribe that the person is
16
not eligible for it.
17
14 When is abuse within the scope of the scheme?
18
(1) Abuse of a person is within the scope of the scheme if:
19
(a) it occurred when the person was a child; and
20
(b) it occurred:
21
(i) inside a participating State; or
22
(ii) inside a Territory; or
23
(iii) outside Australia; and
24
(c) it occurred before the scheme start day.
25
(2) Abuse of a person is within the scope of the scheme if this Act or
26
the rules prescribe that it is.
27
(3) Despite subsections (1) and (2), abuse of a person is not within the
28
scope of the scheme if this Act or the rules prescribe that it is not.
29
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Entitlement to redress under the scheme Part 2-2
Entitlement to redress under the scheme Division 2
Section 15
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National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
23
15 When is an institution responsible for abuse?
1
When is an institution responsible for abuse?
2
(1) An institution (whether or not a participating institution) is
3
responsible for abuse of a person if the institution is primarily
4
responsible or equally responsible for the abuse.
5
When an institution is primarily responsible for abuse
6
(2) An institution is primarily responsible for abuse of a person if the
7
institution is solely or primarily responsible for the abuser having
8
contact with the person.
9
When an institution is equally responsible for abuse
10
(3) An institution is equally responsible for abuse of a person if:
11
(a) the institution and one or more other institutions are
12
approximately equally responsible for the abuser having
13
contact with the person; and
14
(b) no institution is primarily responsible for the abuse of the
15
person.
16
Relevant circumstances for determining responsibility
17
(4) Without limiting the circumstances that might be relevant for
18
determining under subsection (2) or (3) whether an institution is
19
primarily responsible or equally responsible for the abuser having
20
contact with the person, the following circumstances are relevant:
21
(a) whether the institution was responsible for the day-to-day
22
care or custody of the person when the abuse occurred;
23
(b) whether the institution was the legal guardian of the person
24
when the abuse occurred;
25
(c) whether the institution was responsible for placing the person
26
into the institution in which the abuse occurred;
27
(d) whether the abuser was an official of the institution when the
28
abuse occurred;
29
(e) whether the abuse occurred:
30
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Division 2 Entitlement to redress under the scheme
Section 16
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No. , 2018
(i) on the premises of the institution; or
1
(ii) where activities of the institution took place; or
2
(iii) in connection with the activities of the institution;
3
(f) any other circumstances that are prescribed by the rules.
4
Note:
When determining the question whether an institution is responsible
5
for abuse of a person, the circumstances listed in this subsection are
6
relevant to that question, but none of them on its own is determinative
7
of that question.
8
(5) Despite subsections (1), (2) and (3), an institution is responsible,
9
primarily responsible or equally responsible for abuse of a person
10
in the circumstances (if any) prescribed by the rules.
11
(6) Despite subsections (1), (2) and (3), an institution is not
12
responsible, primarily responsible or equally responsible for
13
abuse of a person in the circumstances (if any) prescribed by the
14
rules.
15
16 What redress is provided to a person?
16
(1) Redress for a person consists of 3 components:
17
(a) a redress payment (of up to $150,000); and
18
(b) a counselling and psychological component which,
19
depending on where the person lives (as stated in the
20
person's application for redress), consists of:
21
(i) access to counselling and psychological services
22
provided under the scheme; or
23
(ii) a payment (of up to $5,000) to enable the person to
24
access counselling and psychological services provided
25
outside of the scheme; and
26
(c) a direct personal response from each of the participating
27
institutions that are determined by the Operator under
28
paragraph 29(2)(b) to be responsible for the abuse of the
29
person.
30
Note:
For what a direct personal response consists of, see subsection 54(2).
31
(2) A person who is entitled to redress under the scheme may choose
32
to accept 1, 2 or all 3 of those components of redress.
33
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
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Section 17
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National Redress Scheme for Institutional Child Sexual Abuse Bill
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25
(3) If 2 or more participating institutions are determined to be
1
responsible for the person's abuse and the person chooses to be
2
given a direct personal response, then the person may choose to be
3
given a direct personal response from each of those institutions, or
4
from only some or one of them.
5
17 What is redress for?
6
Redress for a person is for the sexual abuse, and related non-sexual
7
abuse, of the person that is within the scope of the scheme.
8
Note:
While redress is for both the sexual and related non-sexual abuse of a
9
person that is within the scope of the scheme, to be eligible for redress
10
in the first place, there must have been sexual abuse within the scope
11
of the scheme (see paragraph 13(1)(b)).
12
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 1 Simplified outline of this Part
Section 18
26
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Part 2-3--How to obtain redress under the scheme
1
Division 1--Simplified outline of this Part
2
18 Simplified outline of this Part
3
To be entitled to redress under the scheme, a person must make an
4
application for it. To be valid, the application must comply with
5
the requirements set out in section 19 (e.g. it must include any
6
information required by the Operator).
7
Once the application is made, the Operator can request the person
8
and participating institutions to provide further information to the
9
Operator for the purposes of determining the application (see
10
sections 24 and 25).
11
A person can make only one application for redress under the
12
scheme. Whether the application is successful or unsuccessful, the
13
person will not be able to make another application for redress
14
under the scheme (unless the person withdraws the application
15
before the Operator makes a determination about whether or not to
16
approve it). There are certain circumstances where a person cannot
17
make an application for redress. These circumstances are set out in
18
section 20.
19
The Operator must make a determination to approve, or not
20
approve, the application as soon as practicable. If the Operator
21
considers there is a reasonable likelihood that the person is eligible
22
for redress, then the Operator must approve the application and
23
make a number of other important determinations under
24
subsection 29(2). For example, the Operator must make a
25
determination about which participating institutions are responsible
26
for the abuse and therefore liable for providing redress to the
27
person. The Operator must also make a determination about the
28
amount of the redress payment that is payable to the person, as
29
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How to obtain redress under the scheme Part 2-3
Simplified outline of this Part Division 1
Section 18
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
27
well as the amount of the counselling and psychological
1
component of redress for the person.
2
The Operator must give the person written notice of the Operator's
3
determination on the application. The notice must state whether or
4
not the application has been approved, the reasons for the
5
determination and that the person may apply for review of the
6
determination. The Operator must also give written notice of the
7
determination to the participating institutions that are specified in
8
the determination (such as the responsible institutions).
9
If the Operator has approved the application, the Operator must
10
also give the person an offer of redress with the notice. (Offers and
11
acceptance of redress are dealt with in Part 2-4.)
12
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 2 Application for redress under the scheme
Section 19
28
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Division 2--Application for redress under the scheme
1
19 Application for redress
2
(1) To obtain redress under the scheme, a person must make an
3
application to the Operator.
4
(2) To be valid, the application must:
5
(a) be in the approved form; and
6
(b) specify where the person lives; and
7
(c) include any information, and be accompanied by any
8
documents, required by the Operator; and
9
(d) verify the information included in the application by statutory
10
declaration.
11
(3) The Operator is not required to make a determination on an
12
application that is not valid.
13
20 When an application cannot be made
14
(1) A person cannot make an application for redress under the scheme
15
if:
16
(a) the person has already made an application for redress under
17
the scheme; or
18
(b) a security notice is in force in relation to the person; or
19
(c) the person is a child who will not turn 18 before the scheme
20
sunset day; or
21
(d) the person is in gaol (within the meaning of subsection 23(5)
22
of the Social Security Act 1991); or
23
(e) the application is being made in the period of 12 months
24
before the scheme sunset day.
25
(2) Paragraphs (1)(d) and (e) do not apply if the Operator determines
26
there are exceptional circumstances justifying the application being
27
made.
28
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
How to obtain redress under the scheme Part 2-3
Application for redress under the scheme Division 2
Section 21
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
29
(3) Before making a determination under subsection (2), the Operator
1
must comply with any requirements prescribed by the rules.
2
21 Special process for child applicants
3
(1) If:
4
(a) a person makes an application for redress under the scheme;
5
and
6
(b) the person is a child who will turn 18 before the scheme
7
sunset day;
8
then the Operator must deal with the application in accordance
9
with any requirements prescribed by the rules.
10
(2) Rules made for the purposes of subsection (1) apply despite
11
subsection 29(1) (which requires the Operator to make a
12
determination on the application as soon as practicable).
13
22 Withdrawal of an application
14
(1) A person may withdraw an application for redress at any time
15
before the Operator makes a determination on the application
16
under section 29.
17
(2) If the person withdraws the application under subsection (1), then
18
for the purposes of this Act it is treated as not having been made.
19
23 Notice of a withdrawal to participating institutions
20
(1) If:
21
(a) a person withdraws an application under subsection 22(1);
22
and
23
(b) before the withdrawal, the Operator had requested a
24
participating institution under section 25 to provide
25
information that may be relevant to the application;
26
then the Operator must give the institution written notice that the
27
person has withdrawn the application.
28
(2) The notice must also comply with any requirements prescribed by
29
the rules.
30
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 3 Obtaining information for the purposes of determining the application
Section 24
30
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Division 3--Obtaining information for the purposes of
1
determining the application
2
24 Power to request information from the applicant
3
(1) If the Operator has reasonable grounds to believe that a person who
4
has applied for redress has information that may be relevant to
5
determining the application, then the Operator may request the
6
person to give the information to the Operator.
7
Note:
The request for information may be accompanied by information that
8
has been disclosed by an institution in relation to the application.
9
(2) The request must be made by written notice given to the person.
10
(3) The notice must specify:
11
(a) the nature of the information that is requested to be given;
12
and
13
(b) how the person is to give the information to the Operator; and
14
(c) the period (the production period) within which the person is
15
requested to give the information to the Operator; and
16
(d) that the notice is given under this section.
17
(4) The production period must be at least:
18
(a) if the Operator considers the application is urgent--4 weeks;
19
and
20
(b) otherwise--8 weeks;
21
beginning on the date of the notice.
22
(5) The Operator may, by written notice to the person, extend the
23
production period if the Operator considers it appropriate to do so.
24
(6) An extension under subsection (5) may be given:
25
(a) on the Operator's own initiative; or
26
(b) on a request made by the person under subsection (7).
27
(7) The person may request the Operator to extend the production
28
period. The request must:
29
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
How to obtain redress under the scheme Part 2-3
Obtaining information for the purposes of determining the application Division 3
Section 25
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
31
(a) be made before the end of the production period; and
1
(b) comply with any requirements prescribed by the rules.
2
25 Power to request information from participating institutions
3
(1) If a person has applied for redress and either:
4
(a) the application identifies a particular participating institution
5
as being involved in the abuse of the person; or
6
(b) the Operator has reasonable grounds to believe that a
7
participating institution may be responsible for the abuse of
8
the person;
9
then the Operator must request the institution to give any
10
information that may be relevant to the application to the Operator.
11
Note:
The request for information may be accompanied by information that
12
has been disclosed by the applicant or another institution in relation to
13
the application.
14
(2) If a person has applied for redress and the Operator has reasonable
15
grounds to believe that a participating institution has information
16
that may be relevant to determining the application, then the
17
Operator may request the institution to give the information to the
18
Operator.
19
Note:
The request for information may be accompanied by information that
20
has been disclosed by the applicant or another institution in relation to
21
the application.
22
(3) The request under subsection (1) or (2) must be made by written
23
notice given to the institution.
24
(4) The notice must specify:
25
(a) the nature of the information that is requested to be given;
26
and
27
(b) how the institution is to give the information to the Operator;
28
and
29
(c) the period (the production period) within which the
30
institution is requested to give the information to the
31
Operator; and
32
(d) that the notice is given under this section.
33
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 3 Obtaining information for the purposes of determining the application
Section 26
32
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(5) The production period must be at least:
1
(a) if the Operator considers the application is urgent--4 weeks;
2
and
3
(b) otherwise--8 weeks;
4
beginning on the date of the notice.
5
(6) The Operator may, by notice to the institution, extend the
6
production period if the Operator considers it appropriate to do so.
7
(7) An extension under subsection (6) may be given:
8
(a) on the Operator's own initiative; or
9
(b) on a request made by the institution under subsection (8).
10
(8) The institution may request the Operator to extend the production
11
period. The request must:
12
(a) be made before the end of the production period; and
13
(b) comply with any requirements prescribed by the rules.
14
26 Failure of the applicant or institutions to comply with a request
15
(1) If:
16
(a) under section 24, the Operator requests a person who has
17
made an application for redress to provide further
18
information; and
19
(b) the information requested is not provided in the production
20
period referred to in that section;
21
then the Operator is not required to make a determination on the
22
application until the information is provided.
23
(2) If:
24
(a) under section 25, the Operator requests a participating
25
institution to provide information in relation to an application
26
for redress; and
27
(b) the information requested is not provided in the production
28
period referred to in that section;
29
then the Operator may progress the application and make a
30
determination on it on the basis of the information that has been
31
obtained by, or provided to, the Operator.
32
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
How to obtain redress under the scheme Part 2-3
Obtaining information for the purposes of determining the application Division 3
Section 27
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
33
27 State or Territory laws do not prevent complying with request
1
Nothing in a law of a State or a Territory prevents a person from
2
giving information that the person is requested to give to the
3
Operator for the purposes of the scheme unless that law is
4
prescribed by the rules.
5
28 False or misleading information, documents or statements
6
A person must not give information, produce a document or make
7
a statement to an officer of the scheme if the person knows, or is
8
reckless as to whether, the information, document or statement is
9
false or misleading in a material particular.
10
Note:
This section is a civil penalty provision. Conduct prohibited by this
11
section may also be an offence against the Criminal Code (see
12
sections 136.1, 137.1 and 137.2 of the Code).
13
Civil penalty:
60 penalty units.
14
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 4 The Operator must determine whether to approve the application
Section 29
34
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Division 4--The Operator must determine whether to
1
approve the application
2
29 The Operator must make a determination on the application
3
Requirement for the Operator to make a determination
4
(1) If a person makes an application for redress, the Operator must
5
make a determination to approve, or not approve, the application as
6
soon as practicable.
7
Determination to approve application
8
(2) If the Operator considers that there is a reasonable likelihood that
9
the person is eligible for redress, then the Operator must:
10
(a) approve the application; and
11
(b) determine each participating institution that is responsible for
12
the abuse (see section 15) and therefore liable for providing
13
redress to the person under the scheme; and
14
(c) determine, in accordance with section 30:
15
(i) the amount of the redress payment for the person; and
16
(ii) the amount of each responsible institution's share of the
17
costs of the redress payment; and
18
(d) determine, in accordance with section 31:
19
(i) the amount of the counselling and psychological
20
component of redress for the person; and
21
(ii) the amount of each responsible institution's share of the
22
costs of that component; and
23
(e) determine whether the counselling and psychological
24
component of redress for the person consists of:
25
(i) access to the counselling and psychological services that
26
are provided under the scheme; or
27
(ii) a counselling and psychological services payment; and
28
(f) if the counselling and psychological component of redress for
29
the person consists of a counselling and psychological
30
services payment--determine that the amount of the payment
31
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
How to obtain redress under the scheme Part 2-3
The Operator must determine whether to approve the application Division 4
Section 29
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
35
equals the amount of the counselling and psychological
1
component of redress for the person; and
2
(g) for each responsible institution that is a member of a
3
participating group--determine each other participating
4
institution that is an associate of the responsible institution at
5
that time; and
6
(h) for a participating institution that was identified in the
7
application and is not covered by a determination under
8
paragraph (b)--determine that the participating institution is
9
not responsible for the abuse and therefore not liable for
10
providing redress to the person under the scheme; and
11
(i) if:
12
(i) the Operator determines, in accordance with section 15,
13
that a participating government institution is equally
14
responsible with a defunct institution for the abuse; and
15
(ii) the defunct institution is listed for the participating
16
jurisdiction that the participating government institution
17
belongs to;
18
determine that the participating government institution is the
19
funder of last resort for the defunct institution in relation to
20
the abuse.
21
Note 1: If the Operator determines that the participating government
22
institution is the funder of last resort for the defunct institution,
23
then the participating government institution will be liable to pay
24
the defunct institution's (hypothetical) share of the costs of
25
providing redress to the person (see section 165). Those costs are
26
in addition to the participating government institution's own
27
share of the costs for providing redress to the person. For the
28
funder of last resort provisions, see Part 6-2.
29
Note 2: Only defunct institutions that are both non-government
30
institutions and not participating institutions can be listed for a
31
jurisdiction (see subsection 164(1)).
32
Determination not to approve application
33
(3) Otherwise, the Operator must make a determination not to approve
34
the application.
35
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 4 The Operator must determine whether to approve the application
Section 29
36
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Revoking a determination
1
(4) The rules may require or permit the Operator to revoke, under this
2
subsection, a determination made under subsection (2) or (3).
3
(5) However, the Operator cannot revoke a determination made under
4
subsection (2) if:
5
(a) the person has been given an offer of redress; and
6
(b) the person has accepted the offer in accordance with
7
section 42.
8
(6) If the Operator revokes a determination made under subsection (2)
9
or (3), then:
10
(a) every determination made under subsection (2) or (3) is taken
11
never to have been made; and
12
(b) if the person has been given an offer of redress but has not
13
accepted or declined the offer--the offer is taken to be
14
withdrawn; and
15
(c) if the person has made an application for review of the
16
determination--the review application is taken to be
17
withdrawn; and
18
(d) the Operator may make further requests under section 24 or
19
25 for information relating to the person's application.
20
(7) The Operator must give a written notice to:
21
(a) the person; and
22
(b) each participating institution that was notified under
23
section 35 of the determination;
24
notifying them of the following:
25
(c) that the determination has been revoked;
26
(d) that the determination is taken never to have been made;
27
(e) if an offer of redress has been withdrawn under
28
paragraph (6)(b)--that fact;
29
(f) if an application for review of the determination has been
30
withdrawn under paragraph (6)(c)--that fact;
31
(g) any other matter prescribed by the rules.
32
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
How to obtain redress under the scheme Part 2-3
The Operator must determine whether to approve the application Division 4
Section 30
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
37
30 Working out the amount of redress payment and sharing of costs
1
Working out amounts
2
(1) This section sets out how the Operator must make a determination
3
under paragraph 29(2)(c) about:
4
(a) the amount of the redress payment for a person; and
5
(b) the amount of each responsible institution's share of the costs
6
of the redress payment.
7
Note:
This section only applies if the Operator approves the person's
8
application for redress.
9
Working out share of the costs of redress payment
10
(2) The Operator must first work out, for each responsible institution,
11
the amount that is the institution's share of the costs of the redress
12
payment by using the following method statement:
13
Method statement
14
Step 1. Apply the assessment framework to work out the
15
maximum amount of redress payment that could be
16
payable to the person. The maximum amount must not be
17
more than $150,000, regardless of the number of
18
responsible institutions. The amount worked out is the
19
maximum amount of the redress payment that could be
20
payable to the person.
21
Step 2. Work out, in accordance with any requirements
22
prescribed by the rules, the amount that is the responsible
23
institution's share of the maximum amount. This amount
24
is the gross liability amount for the responsible
25
institution.
26
Step 3. Work out the amount of any payment (a relevant prior
27
payment) that was paid to the person by, or on behalf of,
28
the responsible institution in relation to abuse for which
29
the institution is responsible (but do not include any
30
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 4 The Operator must determine whether to approve the application
Section 30
38
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
payment to the extent that it is prescribed by the rules as
1
not being a relevant prior payment). This amount is the
2
original amount of the relevant prior payment.
3
Step 4. Multiply the original amount by the following:
4


n
1.019
5
where:
6
n is the number of whole years since the relevant prior
7
payment was paid to the person.
8
The resulting amount is the adjusted amount of the
9
relevant prior payment of the institution.
10
Note:
The adjustment under this step is broadly to account for inflation.
11
Step 5. Add together the adjusted amount of each relevant prior
12
payment of the institution. If the resulting amount is not a
13
whole number of cents, round the amount up to the next
14
whole number of cents. This amount is the reduction
15
amount for the institution.
16
Step 6. The amount of the institution's share of the costs of the
17
redress payment is the gross liability amount for the
18
institution (in step 2) less the reduction amount for the
19
institution (in step 5). The amount may be nil but not less
20
than nil.
21
Working out amount of redress payment
22
(3) The Operator must then work out the amount of redress payment
23
for the person by adding together the amounts of each responsible
24
institution's share of the costs of the redress payment. The amount
25
may be nil, but it must not exceed the maximum amount of the
26
redress payment.
27
Note 1:
The amount may be nil because the total amount of relevant prior
28
payments that were paid to the person by the responsible institutions
29
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
How to obtain redress under the scheme Part 2-3
The Operator must determine whether to approve the application Division 4
Section 31
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
39
exceeds the maximum amount of the redress payment that could be
1
payable to the person. However, even though the person may not be
2
paid any redress payment in that case, the person will still be entitled
3
to the other components of redress under the scheme (i.e. the
4
counselling and psychological component and a direct personal
5
response).
6
Note 2:
For funder of last resort cases, subsection 165(2) affects how the
7
amount of the redress payment and the share of the costs of the
8
payment are worked out.
9
31 Working out the amount of the counselling and psychological
10
component and sharing of costs
11
(1) This section sets out how the Operator must make a determination
12
under paragraph 29(2)(d) about:
13
(a) the amount of the counselling and psychological component
14
of redress for a person; and
15
(b) the amount of each responsible institution's share of the costs
16
of that component.
17
Note:
This section only applies if the Operator approves the person's
18
application for redress.
19
(2) The Operator must apply the assessment framework to work out
20
the amount of the component. The amount must not be more than
21
$5,000, regardless of the number of responsible institutions.
22
(3) The Operator must work out, in accordance with the rules, the
23
amount that is each responsible institution's share of the costs of
24
the component.
25
Note:
For funder of last resort cases, subsection 165(3) affects how the
26
amount of the counselling and psychological component and the share
27
of the costs of the component is worked out.
28
32 The assessment framework
29
(1) The Minister may declare, in writing, a method, or matters to take
30
into account, for the purposes of working out:
31
(a) the amount of redress payment for a person; and
32
(b) the amount of the counselling and psychological component
33
of redress for a person.
34
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 4 The Operator must determine whether to approve the application
Section 33
40
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Note:
For variation or revocation of the declaration, see subsection 33(3) of
1
the Acts Interpretation Act 1901.
2
(2) The declaration is the assessment framework.
3
(3) The declaration is a legislative instrument, but section 42
4
(disallowance) of the Legislation Act 2003 does not apply to it.
5
33 The assessment framework policy guidelines
6
(1) The Operator may take into account the assessment framework
7
policy guidelines when applying the assessment framework for the
8
purposes of sections 30 and 31.
9
(2) The Minister may, in writing, make guidelines for the purposes of
10
applying the assessment framework.
11
(3) The guidelines are the assessment framework policy guidelines.
12
(4) The guidelines are not a legislative instrument.
13
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
How to obtain redress under the scheme Part 2-3
Notice of determination to applicant and participating institutions Division 5
Section 34
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
41
Division 5--Notice of determination to applicant and
1
participating institutions
2
34 Notice of determination to applicant
3
(1) If the Operator makes a determination under section 29 on an
4
application for redress for a person, the Operator must give the
5
person written notice of the determination stating:
6
(a) whether or not the application has been approved; and
7
(b) the reasons for the determination; and
8
(c) that the person may apply under section 73 for review of the
9
determination.
10
(2) If the application has been approved, the notice must include the
11
offer of redress to the person under section 39.
12
(3) The notice must also:
13
(a) specify the day by which the person may apply for review of
14
the determination (which must be at least 28 days, but no
15
longer than 6 months, after the date of the notice) under
16
section 73; and
17
(b) comply with any matters prescribed by the rules.
18
35 Notice of determination to participating institutions
19
(1) If:
20
(a) the Operator makes a determination under section 29 in
21
relation to a person; and
22
(b) a participating institution is specified in the determination;
23
then the Operator must give the institution written notice of the
24
determination in accordance with subsection (2).
25
(2) The notice must state:
26
(a) whether or not the application has been approved; and
27
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 5 Notice of determination to applicant and participating institutions
Section 35
42
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(b) if Operator determined under paragraph 29(2)(b) that the
1
institution is responsible for the abuse and therefore liable for
2
providing redress to the person under the scheme:
3
(i) that fact; and
4
(ii) the amount of the redress payment for the person; and
5
(iii) the amount of the institution's share of the costs of that
6
payment; and
7
(iv) the amount of the counselling and psychological
8
component of redress for the person; and
9
(v) the amount of the institution's share of the costs of that
10
component; and
11
(c) if the Operator determined under paragraph 29(2)(g) that the
12
institution is an associate of a responsible institution--that
13
fact; and
14
(d) if the Operator determined under paragraph 29(2)(h) that the
15
institution is not responsible for the abuse and therefore not
16
liable for providing redress to the person under the scheme--
17
that fact; and
18
(e) if the Operator determined under paragraph 29(2)(i) that the
19
institution is the funder of last resort for a defunct
20
institution--that fact; and
21
(f) the reasons for the determination, as they relate to the
22
institution; and
23
(g) the day by which the person may apply under section 73 for
24
review of the determination.
25
(3) The notice must also comply with any requirements prescribed by
26
the rules.
27
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
How to obtain redress under the scheme Part 2-3
Effect of determination and admissibility of evidence in civil proceedings Division 6
Section 36
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
43
Division 6--Effect of determination and admissibility of
1
evidence in civil proceedings
2
36 Effect of determination
3
(1) A determination by the Operator under section 29 has effect only
4
for the purposes of the scheme.
5
(2) In particular, a determination under section 29 that an institution:
6
(a) is, or is not, responsible for the abuse of a person; or
7
(b) is, or is not, liable to provide redress to a person;
8
is not a finding of law or fact made by a court in civil or criminal
9
proceedings.
10
Note:
The determination is an administrative decision that is made by the
11
Operator on the basis of whether the Operator considers there to be a
12
reasonable likelihood that the person is eligible for redress. It is not a
13
judicial decision made by a court in civil or criminal proceedings on
14
the basis of a higher standard of proof.
15
(3) However, a determination under section 29 that an institution is
16
responsible for abuse of a person and therefore liable to provide
17
redress may result in the imposition of a civil liability on the
18
institution to make payments under the scheme in relation to that
19
redress.
20
37 Admissibility of documents in evidence in civil proceedings
21
(1) The following documents are not admissible in evidence in civil
22
proceedings in a court or tribunal:
23
(a) a person's application for redress;
24
(b) a document created solely for the purposes of accompanying
25
a person's application for redress;
26
(c) a document created solely for the purposes of complying with
27
a request for information made by the Operator under
28
section 24 or 25 in relation to a person's application for
29
redress.
30
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-3 How to obtain redress under the scheme
Division 6 Effect of determination and admissibility of evidence in civil proceedings
Section 37
44
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(2) Subsection (1) does not apply if the admission of the document in
1
evidence in civil proceedings is for the purposes of giving effect to
2
this Act.
3
(3) For the purposes of subsection (2) (and without limiting that
4
subsection), if the admission of the document in evidence is in civil
5
proceedings for judicial review of a decision made under this Act,
6
then the admission is for the purposes of giving effect to this Act.
7
(4) Subsection (1) does not apply if the admission of the document in
8
evidence is in civil proceedings under, or arising out of, section 28
9
(which is about providing false or misleading documents or
10
information to an officer of the scheme).
11
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Offers and acceptance of redress Part 2-4
Simplified outline of this Part Division 1
Section 38
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
45
Part 2-4--Offers and acceptance of redress
1
Division 1--Simplified outline of this Part
2
38 Simplified outline of this Part
3
If the Operator approves a person's application for redress, the
4
Operator must give the person a written offer of redress. The offer
5
must include the information set out in section 39. The person may
6
accept or decline the offer.
7
If the person wishes to accept the offer, he or she must do so by
8
giving the Operator, within the acceptance period, an acceptance
9
document that complies with section 42. If the person accepts the
10
offer, then the person will be provided with redress under the
11
scheme. The person also releases all the participating institutions
12
determined by the Operator to be responsible for the abuse (as well
13
as the officials of those institutions, the associates of those
14
institutions and the officials of the associates of those institutions)
15
from all civil liability for the abuse of the person. However, the
16
abuser is not released from liability for the abuse.
17
If the person accepts the offer, the Operator must notify the
18
participating institutions determined by the Operator to be
19
responsible for the abuse of the person's acceptance of the offer
20
(including the components of redress that the person wishes to
21
receive).
22
If the person declines the offer (either by formally declining, or by
23
doing nothing, in the acceptance period), the person is not required
24
to release any institution or official from civil liability for the abuse
25
of the person, but the person will not be provided with redress
26
under the scheme.
27
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-4 Offers and acceptance of redress
Division 2 Offers of redress
Section 39
46
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Division 2--Offers of redress
1
39 Offer of redress
2
If the Operator approves a person's application for redress, the
3
Operator must give the person a written offer of redress that:
4
(a) explains the 3 components of redress (i.e. redress payment,
5
access to the counselling and psychological component of
6
redress for the person, and direct personal response); and
7
(b) specifies the amount of the redress payment; and
8
(c) specifies whether the counselling and psychological
9
component of redress for the person consists of:
10
(i) access to the counselling and psychological services that
11
are provided under the scheme; or
12
(ii) the counselling and psychological services payment;
13
and
14
(d) if the counselling and psychological component of redress for
15
the person consists of the counselling and psychological
16
services payment--specifies the amount of that payment; and
17
(e) specifies the participating institutions determined by the
18
Operator under paragraph 29(2)(b) to be responsible for the
19
abuse and therefore liable for providing redress to the person
20
under the scheme; and
21
(f) if any of those responsible institutions is a defunct institution
22
that has a representative:
23
(i) specifies the person who is the representative; and
24
(ii) explains that the representative is liable for providing
25
redress to the person under the scheme; and
26
(g) if any of those responsible institutions is a member of a
27
participating group--specifies the participating institutions
28
determined by the Operator under paragraph 29(2)(g) to be
29
associates of any of those responsible institutions; and
30
(h) specifies the participating institutions that were identified in
31
the person's application but determined by the Operator
32
under paragraph 29(2)(h) not to be responsible for the
33
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Offers and acceptance of redress Part 2-4
Offers of redress Division 2
Section 39
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
47
person's abuse and therefore not liable for providing redress
1
to the person under the scheme; and
2
(i) if any of those responsible institutions is a participating
3
government institution that is determined by the Operator
4
under paragraph 29(2)(i) to be the funder of last resort for a
5
defunct institution:
6
(i) specifies the defunct institution; and
7
(ii) explains that the government institution is liable for the
8
defunct institution's (hypothetical) share of the costs of
9
providing redress to the person; and
10
(iii) explains that a direct personal response is not available
11
to the person in relation to the abuse for which the
12
defunct institution is responsible; and
13
(j) states the date of the offer; and
14
(k) specifies the acceptance period for the offer (see section 40);
15
and
16
(l) gives information about the opportunity for the person to
17
access legal services under the scheme for the purposes of
18
obtaining legal advice about whether to accept the offer; and
19
(m) gives information about other services available to the person
20
under the scheme to help the person to decide whether to
21
accept the offer; and
22
(n) explains how to accept or decline the offer, should the person
23
decide to do so; and
24
(o) informs the person that the offer expires at the end of the
25
acceptance period; and
26
(p) explains the effect of section 43 (which is about the release
27
from civil liability of the responsible institutions, their
28
officials, their associates and the officials of their associates)
29
should the person accept the offer; and
30
(q) informs the person that the person does not have to accept the
31
offer and that, by doing nothing, the offer is taken to be
32
declined at the end of the acceptance period; and
33
(r) informs the person that the person will not be able to make
34
another application for redress under the scheme, whether or
35
not the offer is accepted; and
36
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-4 Offers and acceptance of redress
Division 2 Offers of redress
Section 40
48
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(s) informs the person that the person may request an extension
1
of the acceptance period and explains how to make that
2
request; and
3
(t) complies with any requirements prescribed by the rules.
4
40 Acceptance period for offers of redress
5
(1) The acceptance period for an offer of redress to a person is the
6
period determined by the Operator, which must be at least 6
7
months, starting on the date of the offer.
8
(2) Before the end of the acceptance period, the Operator may, by
9
written notice to the person, extend the acceptance period if the
10
Operator considers there are exceptional circumstances that justify
11
the extension.
12
(3) An extension under subsection (2) may be given:
13
(a) on the Operator's own initiative; or
14
(b) on a request made by the person under subsection (4).
15
(4) The person may request the Operator to extend the acceptance
16
period. The request must comply with any requirements prescribed
17
by the rules.
18
(5) If the Operator extends the period, the acceptance period is the
19
original period as extended by the Operator.
20
41 Notice of offer to participating institutions
21
(1) If:
22
(a) the Operator gives an offer of redress under section 39; and
23
(b) a participating institution or person referred to in
24
paragraph 39(e), (f) or (g) is specified in the offer;
25
then the Operator must give the institution or person written notice
26
of the offer.
27
(2) The notice must:
28
(a) state the acceptance period for the offer; and
29
(b) comply with any requirements prescribed by the rules.
30
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Offers and acceptance of redress Part 2-4
Accepting or declining offers of redress Division 3
Section 42
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
49
Division 3--Accepting or declining offers of redress
1
42 Accepting the offer of redress
2
(1) A person may accept an offer of redress by complying with this
3
section.
4
(2) The person must give the Operator a document (the acceptance
5
document) that:
6
(a) is in the approved form; and
7
(b) states that the person accepts the offer; and
8
(c) states that the person releases and forever discharges each of
9
the following institutions and officials (a released institution
10
or official) from all civil liability for abuse of the person that
11
is within the scope of the scheme:
12
(i) all participating institutions that are determined by the
13
Operator under paragraph 29(2)(b) to be responsible for
14
the abuse of the person;
15
(ii) all participating institutions that are determined by the
16
Operator under paragraph 29(2)(g) to be associates of
17
those responsible institutions;
18
(iii) all officials of those responsible institutions and
19
associates (other than an official who is an abuser of the
20
person); and
21
(d) states that the person forgoes any entitlement to be paid
22
damages by a released institution or official if the released
23
institution or official were joined as a party to civil
24
proceedings brought or continued by the person against
25
another party in relation to abuse of the person that is within
26
the scope of the scheme; and
27
(e) states that the person will not, whether as an individual, a
28
representative party or a member of a group, bring or
29
continue any civil claim against a released institution or
30
official in relation to abuse of the person that is within the
31
scope of the scheme; and
32
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-4 Offers and acceptance of redress
Division 3 Accepting or declining offers of redress
Section 43
50
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(f) states the components of redress that the person wishes to
1
receive; and
2
(g) if the person wishes to receive a direct personal response--
3
specifies the participating institutions that the person wishes
4
to receive a direct personal response from; and
5
(h) acknowledges that the person understands the effect of
6
accepting the offer; and
7
(i) is signed by the person; and
8
(j) complies with any requirements prescribed by the rules.
9
(3) The person must give the Operator the acceptance document:
10
(a) before the end of the acceptance period; and
11
(b) in the manner (if any) prescribed by the rules.
12
(4) Rules made for the purposes of paragraph (2)(j) must not require
13
the person to enter into a confidentiality agreement.
14
43 Effect of acceptance on civil liability
15
If a person accepts an offer of redress in accordance with
16
section 42, then, at the time the person gives the acceptance and by
17
force of this section:
18
(a) the person releases and forever discharges every released
19
institution or official from civil liability for abuse of the
20
person that is within the scope of the scheme; and
21
(b) the person cannot (whether as an individual, a representative
22
party or a member of a group) bring or continue civil
23
proceedings against a released institution or official in
24
relation to that abuse; and
25
(c) the release and discharge of civil liability of a released
26
institution or official for that abuse does not:
27
(i) release or discharge another institution or person from
28
civil liability for that abuse; and
29
(ii) prevent the person (whether as an individual, a
30
representative party or a member of a group) from
31
bringing or continuing civil proceedings against another
32
institution or person in relation to that abuse; and
33
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Offers and acceptance of redress Part 2-4
Accepting or declining offers of redress Division 3
Section 44
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
51
(d) if a released institution or official would, apart from this
1
section, be liable to make a contribution to another institution
2
or person in relation to damages payable to the person in civil
3
proceedings brought or continued by the person (whether as
4
an individual, a representative party or a member of a group)
5
against the other institution or person in relation to that
6
abuse, then:
7
(i) the released institution or official is released and forever
8
discharged from liability to make that contribution; and
9
(ii) the amount of damages payable to the person in those
10
proceedings is reduced by the amount of that
11
contribution.
12
44 Notice to participating institutions that the offer is accepted
13
(1) If a person accepts an offer of redress in accordance with
14
section 42, then the Operator must give each institution that was
15
notified under section 41 about the offer written notice of:
16
(a) the person's acceptance of the offer; and
17
(b) the components of redress that the person wishes to receive
18
(including whether the person wishes to receive a direct
19
personal response from the institution); and
20
(c) any matters prescribed by the rules.
21
(2) The notice must be accompanied by a copy of the person's
22
acceptance document.
23
45 Declining the offer of redress
24
Declining by taking positive action
25
(1) A person may decline an offer of redress by giving the Operator,
26
before the end of the acceptance period, a document that:
27
(a) is in the approved form; and
28
(b) states that the person declines the offer; and
29
(c) acknowledges that the person understands the effect of
30
declining the offer (including that the person will not be able
31
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-4 Offers and acceptance of redress
Division 3 Accepting or declining offers of redress
Section 46
52
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
to make another application for redress under the scheme);
1
and
2
(d) is signed by the person; and
3
(e) complies with any requirements prescribed by the rules.
4
Declining by not accepting in the acceptance period
5
(2) A person is taken to have declined an offer of redress if the person
6
does not accept the offer in accordance with section 42 before the
7
end of the acceptance period.
8
(3) Subsection (2) does not apply if:
9
(a) the person has applied for review under section 73 of the
10
Operator's determination on the person's application for
11
redress; and
12
(b) the review has not been completed at the end of the
13
acceptance period.
14
46 Notice to participating institutions that the offer is declined
15
(1) If a person declines an offer of redress in accordance with
16
section 45, then the Operator must give each institution that was
17
notified under section 41 of the offer written notice that the person
18
has declined the offer.
19
(2) The notice must comply with any requirements prescribed by the
20
rules.
21
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Provision of redress under the scheme Part 2-5
Simplified outline of this Part Division 1
Section 47
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
53
Part 2-5--Provision of redress under the scheme
1
Division 1--Simplified outline of this Part
2
47 Simplified outline of this Part
3
If a person accepts an offer of redress under the scheme, then:
4
(a)
the Operator must pay the redress payment to the
5
person; and
6
(b)
the Operator must provide the person with the
7
counselling and psychological component of redress
8
which, depending on where the person lives, consists of
9
access to counselling and psychological services or a
10
counselling and psychological services payment; and
11
(c)
the responsible institutions for the abuse must take
12
reasonable steps to provide the person with a direct
13
personal response.
14
However, this does not apply if the person stated in the acceptance
15
document that he or she does not wish to receive a particular
16
component of redress (e.g. the person stated that he or she does not
17
wish to receive a direct personal response from a particular
18
participating institution).
19
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-5 Provision of redress under the scheme
Division 2 The redress payment
Section 48
54
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Division 2--The redress payment
1
48 The Operator must pay the redress payment
2
(1) If:
3
(a) a person is entitled to redress under the scheme (see
4
section 12); and
5
(b) the person stated in the acceptance document that the person
6
wishes to be paid the redress payment;
7
then the Operator must pay the redress payment to the person as
8
soon as practicable.
9
(2) The rules may prescribe matters relating to the payment of redress
10
payments.
11
49 Protection of the redress payment--general
12
(1) A redress payment is a payment of compensation under the
13
scheme. However, for the purposes of:
14
(a) the Social Security Act 1991 and the Veterans' Entitlements
15
Act 1986; and
16
(b) any other legislation of the Commonwealth, a State or a
17
Territory;
18
the payment is not to be treated as being a payment of
19
compensation or damages.
20
Note:
This subsection prevents a redress payment affecting other payments
21
that may be payable to the person under legislation. For example,
22
when determining whether a social security payment is payable, or the
23
amount of such a payment, a redress payment is not to be taken into
24
account.
25
(2) For the purposes of the application of any law of the
26
Commonwealth, a State or a Territory in relation to a redress
27
payment:
28
(a) the payment and the entitlement to the payment are
29
absolutely inalienable, whether by way of, or in consequence
30
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Provision of redress under the scheme Part 2-5
The redress payment Division 2
Section 50
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
55
of, sale, assignment, charge, execution, bankruptcy or
1
otherwise; and
2
(b) no amount may be deducted from the payment.
3
(3) Nothing in this Act prevents a liability insurance contract from
4
treating a redress payment as being a payment of compensation or
5
damages.
6
50 Additional protection of the redress payment--garnishee orders
7
(1) If:
8
(a) a redress payment is being paid, or has been paid, to the
9
credit of an account; and
10
(b) a court order in the nature of a garnishee order comes into
11
force in relation to the account;
12
the court order does not apply to the saved amount (if any) in the
13
account.
14
(2) The saved amount is worked out as follows:
15
Method statement
16
Step 1. Work out the amount of the redress payment that has
17
been paid to the credit of the account in the year
18
immediately before the court order came into force.
19
Step 2. Subtract from the amount of that payment the total
20
amount withdrawn from the account during that year: the
21
result is the saved amount.
22
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-5 Provision of redress under the scheme
Division 3 Counselling and psychological component of redress
Section 51
56
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Division 3--Counselling and psychological component of
1
redress
2
51 The Operator must enable access to the counselling and
3
psychological component of redress
4
(1) This section applies if:
5
(a) a person is entitled to redress under the scheme (see
6
section 12); and
7
(b) the person stated in the acceptance document under
8
section 42 that the person wishes to access the counselling
9
and psychological component of redress.
10
(2) If the place where the person lives (as stated in the person's
11
application) is in a participating jurisdiction that is a declared
12
provider of counselling and psychological services under the
13
scheme, then:
14
(a) the Operator must, as soon as practicable after the person
15
becomes entitled to redress, refer the person to the
16
participating jurisdiction; and
17
(b) the participating jurisdiction must, as soon as practicable
18
after receiving the referral, provide for the delivery of
19
counselling and psychological services under the scheme in
20
accordance with the National Service Standards.
21
(3) If subsection (2) does not apply, then the Operator must, as soon as
22
practicable, pay the counselling and psychological services
23
payment to the person.
24
(4) The rules may prescribe matters relating to the payment of
25
counselling and psychological services payments.
26
52 Protection of the counselling and psychological services
27
payment--general
28
(1) A counselling and psychological services payment is a payment of
29
compensation under the scheme. However, for the purposes of:
30
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Provision of redress under the scheme Part 2-5
Counselling and psychological component of redress Division 3
Section 53
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
57
(a) the Social Security Act 1991 and the Veterans' Entitlements
1
Act 1986; and
2
(b) any other legislation of the Commonwealth, a State or a
3
Territory;
4
the payment is not to be treated as being a payment of
5
compensation or damages.
6
Note:
This subsection prevents a counselling and psychological services
7
payment affecting other payments that may be payable to the person
8
under legislation. For example, when determining whether a social
9
security payment is payable, or the amount of such a payment, a
10
counselling and psychological services payment is not to be taken into
11
account.
12
(2) For the purposes of the application of any law of the
13
Commonwealth, a State or a Territory in relation to a counselling
14
and psychological services payment:
15
(a) the payment and the entitlement to the payment are
16
absolutely inalienable, whether by way of, or in consequence
17
of, sale, assignment, charge, execution, bankruptcy or
18
otherwise; and
19
(b) no amount may be deducted from the payment.
20
(3) Nothing in this Act prevents a liability insurance contract from
21
treating a counselling and psychological services payment as being
22
a payment of compensation or damages.
23
53 Additional protection of the counselling and psychological
24
services payment--garnishee orders
25
(1) If:
26
(a) a counselling and psychological services payment is being
27
paid, or has been paid, to the credit of an account; and
28
(b) a court order in the nature of a garnishee order comes into
29
force in relation to the account;
30
the court order does not apply to the saved amount (if any) in the
31
account.
32
(2) The saved amount is worked out as follows:
33
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-5 Provision of redress under the scheme
Division 3 Counselling and psychological component of redress
Section 53
58
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Method statement
1
Step 1. Work out the amount of the counselling and
2
psychological services payment that has been paid to the
3
credit of the account in the year immediately before the
4
court order came into force.
5
Step 2. Subtract from the amount of that payment the total
6
amount withdrawn from the account during that year: the
7
result is the saved amount.
8
The National Redress Scheme for Institutional Child Sexual Abuse Chapter 2
Provision of redress under the scheme Part 2-5
Direct personal responses Division 4
Section 54
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
59
Division 4--Direct personal responses
1
54 Direct personal response from responsible institutions
2
(1) If a participating institution is given a notice under section 44 that
3
notifies the institution that a person wishes to be given a direct
4
personal response from the institution, then the institution must
5
take reasonable steps to provide the person with a direct personal
6
response.
7
(2) A direct personal response from a participating institution to a
8
person is any one or more of the following:
9
(a) an apology or a statement of acknowledgement or regret;
10
(b) an acknowledgement of the impact of the abuse on the
11
person;
12
(c) an assurance as to the steps the institution has taken, or will
13
take, to prevent abuse occurring again;
14
(d) an opportunity for the person to meet with a senior official of
15
the institution.
16
(3) When providing a direct personal response, the participating
17
institution must take into account the direct personal response
18
framework.
19
55 The direct personal response framework
20
(1) The Minister may declare, in writing, guidelines about how direct
21
personal responses are to be provided under the scheme.
22
Note:
For variation or revocation of the declaration, see subsection 33(3) of
23
the Acts Interpretation Act 1901.
24
(2) The declaration is the direct personal response framework.
25
(3) When making the declaration, the Minister must have regard to the
26
principles in section 56.
27
(4) The declaration is a legislative instrument, but section 42
28
(disallowance) of the Legislation Act 2003 does not apply to it.
29
Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse
Part 2-5 Provision of redress under the scheme
Division 4 Direct personal responses
Section 56
60
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
56 General principles guiding provision of direct personal responses
1
(1) All participating institutions should offer and provide on request by
2
a survivor:
3
(a) meaningful recognition of the institution's responsibility by
4
way of a statement of apology, acknowledgement or regret;
5
and
6
(b) an assurance as to steps taken to protect against further abuse.
7
(2) Engagement between a survivor and a participating institution
8
should occur only if, and to the extent that, a survivor wishes it.
9
(3) Participating institutions should make clear what they are willing
10
to offer and provide by way of a direct personal response to
11
survivors. Institutions should ensure that they are able to provide
12
the direct personal response that they offer to survivors.
13
(4) In offering direct personal responses, participating institutions
14
should be responsive to survivors' needs.
15
(5) Participating institutions that already offer a broader range of direct
16
personal responses to survivors and others should consider
17
continuing to offer those forms of direct personal response.
18
(6) Direct personal responses should be delivered by people who have
19
received training about the nature and impact of child sexual abuse
20
and the needs of survivors, including cultural awareness and
21
sensitivity training where relevant.
22
(7) Participating institutions should welcome feedback from survivors
23
about the direct personal responses the institutions offer and
24
provide.
25
Special rules to deal with exceptional cases Chapter 3
Special rules allowing entitlement to redress Part 3-1
Simplified outline of this Part Division 1
Section 57
No. , 2018
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2018
61
Chapter 3--Special rules to deal with
1
exceptional cases
2
Part 3-1--Special rules allowing entitlement to
3
redress
4
Division 1--Simplified outline of this Part
5
57 Simplified outline of this Part
6
This Part deals with a number of special cases to provide
7
exemptions to the general rules of entitlement to redress in
8
Chapter 2 (particularly section 12). Under this Part, a person who
9
would not be entitled to redress under the general rules may
10
nevertheless be entitled to redress because of the application of the
11
exemptions in this Part.
12
If a person makes an application for redress, but dies before
13
accepting an offer of redress, the person (or the person's estate)
14
will not be entitled to redress. Division 2 deals with that case and
15
allows for a redress payment to be paid to other persons in certain
16
circumstances.
17
If abuse of a person occurred inside a non-participating State, the
18
person would not be eligible (and therefore not entitled) to redress
19
because the abuse is not within the scope of the scheme (see
20
sections 13 and 14). However, if a Commonwealth institution or a
21
participating Territory institution is primarily responsible for the
22
abuse, the person may be entitled to redress. Division 3 deals with
23
that case.
24
Chapter 3 Special rules to deal with exceptional cases
Part 3-1 Special rules allowing entitlement to redress
Division 2 Death of person before acceptance of redress offer
Section 58
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No. , 2018
Division 2--Death of person before acceptance of redress
1
offer
2
58 Person dies before determination is made on application for
3
redress
4
(1) This section applies if:
5
(a) a person makes an application for redress under section 19;
6
and
7
(b) the person dies before a determination on the application is
8
made under section 29.
9
(2) The Operator must continue to deal with the application as if the
10
person had not died.
11
(3) If the Operator approves the application under paragraph 29(2)(a),
12
then the Operator must:
13
(a) determine, under paragraph 29(2)(b), each participating
14
institution that is responsible for the abuse; and
15
(b) determine, under paragraph 29(2)(c):
16
(i) the amount of the redress payment for the person; and
17
(ii) the amount of each responsible institution's share of the
18
costs of the redress payment; and
19
(c) if paragraph 29(2)(i) applies to a participating government
20
institution and a defunct institution--determine, under that
21
paragraph, that the participating government institution is the
22
funder of last resort for the defunct institution.
23
(4) The redress payment for the person is payable in accordance with
24
section 60.
25
(5) The rules may prescribe matters relating to the giving of notices to
26
a person or a participating institution in relation to the operation of
27
this section.
28
Special rules to deal with exceptional cases Chapter 3
Special rules allowing entitlement to redress Part 3-1
Death of person before acceptance of redress offer Division 2
Section 59
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
63
59 Person dies before offer of redress is accepted, declined or
1
withdrawn
2
(1) This section applies if:
3
(a) a person makes an application for redress under section 19;
4
and
5
(b) the Operator makes a determination under section 29
6
approving the application; and
7
(c) the Operator gives the person an offer of redress under
8
section 39; and
9
(d) the person dies before the offer is accepted, declined or
10
withdrawn.
11
(2) The offer is taken to be withdrawn immediately after the person
12
dies.
13
(3) If, before the person died:
14
(a) the person had not made an application under section 73 for
15
review of the determination; or
16
(b) the person had made such an application but the review had
17
been completed;
18
then the redress payment for the person is payable in accordance
19
with section 60.
20
(4) If, before the person died:
21
(a) the person had made an application under section 73 for
22
review of the determination; and
23
(b) the review had not been completed;
24
then:
25
(c) the application for review continues as if the person had not
26
died; and
27
(d) if the review determination approves the person's application
28
for redress--the redress payment for the person specified in
29
the review determination is payable in accordance with
30
section 60.
31
Chapter 3 Special rules to deal with exceptional cases
Part 3-1 Special rules allowing entitlement to redress
Division 2 Death of person before acceptance of redress offer
Section 60
64
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No. , 2018
(5) The rules may prescribe matters relating to the giving of notices to
1
a person or a participating institution in relation to the operation of
2
this section.
3
60 Entitlement to redress payment
4
(1) This section applies if under subsection 58(4) or 59(3) or
5
paragraph 59(4)(d) a redress payment for a deceased person is
6
payable in accordance with this section.
7
(2) The Operator must:
8
(a) determine who should be paid the redress payment; and
9
(b) pay the redress payment to that person or those persons as
10
soon as practicable.
11
(3) In determining who should be paid the redress payment, the
12
Operator may consider the people who are entitled to the property
13
of the deceased person under:
14
(a) the deceased person's will; and
15
(b) the law relating to the disposition of the property of deceased
16
persons.
17
(4) The Operator may pay the redress payment without requiring:
18
(a) production of probate of the will of the deceased person; or
19
(b) letters of administration of the estate of the deceased person.
20
(5) The rules may prescribe matters relating to the payment of redress
21
payments under this section.
22
Special rules to deal with exceptional cases Chapter 3
Special rules allowing entitlement to redress Part 3-1
Abuse for which a Commonwealth institution or participating Territory institution is
responsible Division 3
Section 61
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
65
Division 3--Abuse for which a Commonwealth institution
1
or participating Territory institution is
2
responsible
3
61 Abuse occurring inside a non-participating State
4
(1) For the purposes of subsection 13(2), a person is eligible for
5
redress under the scheme if:
6
(a) the person would be eligible under subsection 13(1) apart
7
from the fact that the person does not meet the condition in
8
paragraph 13(1)(b) because the sexual abuse of the person
9
occurred inside a non-participating State (disregarding
10
subsection (2) of this section); and
11
(b) a Commonwealth institution or a participating Territory
12
institution is primarily responsible for the abuse of the
13
person.
14
(2) For the purposes of subsection 14(2), if a person is eligible for
15
redress under the scheme because of subsection (1) of this section,
16
then the abuse of the person is within the scope of the scheme.
17
Chapter 3 Special rules to deal with exceptional cases
Part 3-2 Special rules excluding entitlement to redress
Division 1 Simplified outline of this Part
Section 62
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No. , 2018
Part 3-2--Special rules excluding entitlement to
1
redress
2
Division 1--Simplified outline of this Part
3
62 Simplified outline of this Part
4
This Part deals with a number of special cases to provide
5
exclusions to the general rules of entitlement to redress in
6
Chapter 2. Under this Part, a person who would otherwise be
7
entitled to redress under the general rules may nevertheless not be
8
entitled to redress because of the application of the exclusions in
9
this Part.
10
If a person is sentenced to imprisonment for 5 years or longer for
11
an offence against the law of the Commonwealth, a State, a
12
Territory or a foreign country, the person will not be entitled to
13
redress unless the Operator makes a determination under
14
subsection 63(5). Division 2 deals with that case.
15
A person is also not entitled to redress under the scheme while a
16
security notice is in force in relation to the person. Division 3 deals
17
with that case.
18
Special rules to deal with exceptional cases Chapter 3
Special rules excluding entitlement to redress Part 3-2
Special assessment of applicants with serious criminal convictions Division 2
Section 63
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
67
Division 2--Special assessment of applicants with serious
1
criminal convictions
2
63 Special assessment of applicants with serious criminal convictions
3
(1) This section applies if:
4
(a) a person makes an application under section 19 for redress
5
for abuse of the person; and
6
(b) before or after making the application, the person is
7
sentenced to imprisonment for 5 years or longer for an
8
offence against a law of the Commonwealth, a State, a
9
Territory or a foreign country.
10
(2) For the purposes of subsection 12(4), the person is not entitled to
11
redress under the scheme unless there is a determination in force
12
under subsection (5) of this section that the person is not prevented
13
from being entitled to redress.
14
(3) As soon as practicable after becoming aware of the person's
15
sentence, the Operator must:
16
(a) consider whether to make a determination under
17
subsection (5); and
18
(b) give a written notice under subsection (4) to each of the
19
following (a specified advisor):
20
(i) if the abuse of the person occurred inside a participating
21
State or a participating Territory--the Attorney-General
22
of the State or Territory, or another person nominated
23
by that Attorney-General in writing;
24
(ii) if the abuse of the person occurred outside a
25
participating State or a participating Territory--the
26
Commonwealth Attorney-General;
27
(iii) if the offence was against a law of a participating State
28
or a participating Territory--the Attorney-General of
29
the State or Territory, or another person nominated by
30
that Attorney-General in writing;
31
Chapter 3 Special rules to deal with exceptional cases
Part 3-2 Special rules excluding entitlement to redress
Division 2 Special assessment of applicants with serious criminal convictions
Section 63
68
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(iv) if the offence was against a law not covered by
1
subparagraph (iii)--the Commonwealth
2
Attorney-General.
3
(4) The notice must:
4
(a) request the specified advisor to provide advice about whether
5
the Operator should make a determination under
6
subsection (5); and
7
(b) include sufficient information to enable the specified advisor
8
to provide that advice; and
9
(c) specify the period (which must be at least 28 days starting on
10
the date of the notice) in which the specified advisor may
11
provide that advice.
12
(5) The Operator may determine that the person is not prevented from
13
being entitled to redress under the scheme if the Operator is
14
satisfied that providing redress to the person under the scheme
15
would not:
16
(a) bring the scheme into disrepute; or
17
(b) adversely affect public confidence in, or support for, the
18
scheme.
19
(6) When making a determination under subsection (5), the Operator
20
must take into account:
21
(a) any advice given by a specified advisor in the period referred
22
to in the notice; and
23
(b) the nature of the offence; and
24
(c) the length of the sentence of imprisonment; and
25
(d) the length of time since the person committed the offence;
26
and
27
(e) any rehabilitation of the person; and
28
(f) any other matter that the Operator considers is relevant.
29
(7) When taking into account the matters set out in subsection (6), the
30
Operator must give greater weight to any advice that:
31
(a) is given by a specified advisor from the jurisdiction in which
32
the abuse of the person occurred; and
33
(b) is given in the period referred to in the notice;
34
Special rules to deal with exceptional cases Chapter 3
Special rules excluding entitlement to redress Part 3-2
Special assessment of applicants with serious criminal convictions Division 2
Section 63
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
69
than to any other matter.
1
(8) The rules may prescribe matters relating to the giving of notices to
2
a person or a participating institution in relation to a determination
3
under subsection (5).
4
Chapter 3 Special rules to deal with exceptional cases
Part 3-2 Special rules excluding entitlement to redress
Division 3 Security notices
Section 64
70
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Division 3--Security notices
1
Subdivision A--No entitlement to redress while security notice
2
in force
3
64 Person not entitled to redress while security notice in force
4
For the purposes of subsection 12(4), a person is not entitled to
5
redress under the scheme while a security notice is in force in
6
relation to the person.
7
Subdivision B--Security notice
8
65 Security notice from the Home Affairs Minister
9
(1) The Home Affairs Minister may give the Minister a written notice
10
(a security notice) requiring that this Division apply in relation to a
11
specified person if:
12
(a) the Foreign Affairs Minister gives the Home Affairs Minister
13
a notice under subsection 66(1) in relation to the person; or
14
(b) the person's visa is cancelled under section 116 or 128 of the
15
Migration Act 1958 because of an assessment by the
16
Australian Security Intelligence Organisation that the person
17
is directly or indirectly a risk to security (within the meaning
18
of section 4 of the Australian Security Intelligence
19
Organisation Act 1979); or
20
(c) the person's visa is cancelled under section 134B of the
21
Migration Act 1958 (emergency cancellation on security
22
grounds) and the cancellation has not been revoked because
23
of subsection 134C(3) of that Act; or
24
(d) the person's visa is cancelled under section 501 of the
25
Migration Act 1958 and there is an assessment by the
26
Australian Security Intelligence Organisation that the person
27
is directly or indirectly a risk to security (within the meaning
28
of section 4 of the Australian Security Intelligence
29
Organisation Act 1979).
30
Special rules to deal with exceptional cases Chapter 3
Special rules excluding entitlement to redress Part 3-2
Security notices Division 3
Section 66
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
71
(2) Before giving a security notice, the Home Affairs Minister must
1
have regard to the extent (if any) that any payments to the person
2
under the scheme have been or may be used for a purpose that
3
might prejudice the security of Australia or a foreign country, if the
4
Home Affairs Minister is aware of that extent.
5
(3) Subsection (2) does not limit the matters to which regard may be
6
had when giving a security notice.
7
(4) A security notice is not a legislative instrument.
8
66 Notice from the Foreign Affairs Minister
9
(1) If:
10
(a) either:
11
(i) under subsection 14(2) of the Australian Passports Act
12
2005, the Foreign Affairs Minister refuses to issue a
13
person an Australian travel document; or
14
(ii) under section 22 of that Act, the Foreign Affairs
15
Minister cancels a person's Australian travel document;
16
and
17
(b) the refusal or cancellation was because of a
18
refusal/cancellation request made in relation to the person
19
under subsection 14(1) of that Act; and
20
(c) the request was made on the basis of the circumstance
21
mentioned in subparagraph 14(1)(a)(i) of that Act;
22
the Foreign Affairs Minister may give the Home Affairs Minister a
23
written notice setting out those matters.
24
(2) A notice under subsection (1) is not a legislative instrument.
25
67 Copy of a security notice to be given to the Operator and the
26
Human Services Secretary
27
The Minister must give a copy of a security notice to:
28
(a) the Operator; and
29
(b) the Secretary of the Human Services Department.
30
Chapter 3 Special rules to deal with exceptional cases
Part 3-2 Special rules excluding entitlement to redress
Division 3 Security notices
Section 68
72
National Redress Scheme for Institutional Child Sexual Abuse Bill
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No. , 2018
68 Period a security notice is in force
1
A security notice comes into force on the day it is given to the
2
Minister, and remains in force until it is revoked.
3
69 Annual review of a security notice
4
Before the end of the following periods, the Home Affairs Minister
5
must consider whether to revoke a security notice (if it has not
6
already been revoked):
7
(a) 12 months after it came into force;
8
(b) 12 months after the Home Affairs Minister last considered
9
whether to revoke it.
10
70 Revoking a security notice
11
(1) The Home Affairs Minister may, by written notice given to the
12
Minister, revoke a security notice.
13
(2) The revocation takes effect on the day it is made.
14
(3) The Minister must give a copy of a notice under subsection (1) to:
15
(a) the Operator; and
16
(b) the Secretary of the Human Services Department.
17
Subdivision C--Other matters affected by a security notice
18
71 Other matters affected by a security notice
19
(1) If at the time a security notice comes into force in relation to a
20
person:
21
(a) the person has made an application for redress under
22
section 19; and
23
(b) either:
24
(i) a determination has not been made in relation to the
25
application under section 29; or
26
(ii) an offer of redress has not been given to the person
27
under section 39;
28
Special rules to deal with exceptional cases Chapter 3
Special rules excluding entitlement to redress Part 3-2
Security notices Division 3
Section 71
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
73
then, at that time, the application is taken to have been withdrawn
1
by the person under subsection 22(1).
2
(2) If at the time a security notice comes into force in relation to a
3
person:
4
(a) the person has made an application for redress under
5
section 19; and
6
(b) an offer of redress has been given to the person under
7
section 39; and
8
(c) the offer has not been accepted, declined or withdrawn;
9
then, at that time:
10
(d) the offer is taken to be withdrawn; and
11
(e) the determination made under subsection 29(2) on the
12
application is taken to be revoked by the Operator under
13
subsection 29(4); and
14
(f) the application is taken to have been withdrawn by the person
15
under subsection 22(1).
16
(3) The rules may prescribe matters relating to the giving of notices to
17
a person or a participating institution in relation to the operation of
18
this Division in relation to the person's entitlement to redress.
19
Chapter 4 Administrative matters
Part 4-1 Review of determinations
Division 1 Simplified outline of this Part
Section 72
74
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Chapter 4--Administrative matters
1
Part 4-1--Review of determinations
2
Division 1--Simplified outline of this Part
3
72 Simplified outline of this Part
4
A person may apply for review of a determination of the Operator
5
under section 29 in relation to the person's application for redress
6
under the scheme.
7
There are a number of determinations under section 29 that the
8
person may seek to be reviewed. For example, if the Operator
9
approved the application, the person may seek review of the
10
amount of the redress payment. If the Operator did not approve the
11
application, the person may seek review of that determination.
12
An application for review must be made within the period specified
13
in the notice of determination given by the Operator to the person
14
under section 34.
15
If, on review, a determination under subsection 29(2) is varied or
16
substituted, the Operator must withdraw the offer of redress and
17
give the person a new offer in accordance with section 39. If the
18
determination is affirmed, the Operator must extend the acceptance
19
period for the original offer for an additional 2 months.
20
The Operator must notify the person who applied for review, and
21
certain participating institutions, about the outcome of the review.
22
Administrative matters Chapter 4
Review of determinations Part 4-1
Review of determinations Division 2
Section 73
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
75
Division 2--Review of determinations
1
73 Application for review of determination
2
(1) If:
3
(a) a person has made an application for redress; and
4
(b) the Operator has made a determination (the original
5
determination) on the application under section 29;
6
then the person may apply to the Operator for review of the
7
original determination.
8
(2) The application for review must:
9
(a) be made before the day specified in the notice of the
10
determination given under section 34; and
11
(b) be in the approved form.
12
74 Withdrawal of application for review
13
(1) The person may withdraw an application for review, by giving oral
14
or written notice to the Operator, at any time before the review has
15
been completed.
16
(2) An application for review that is withdrawn under subsection (1) is
17
taken never to have been made.
18
75 The review
19
(1) If an application is made under section 73, the Operator must
20
review the original determination or cause the original
21
determination to be reviewed by an independent decision-maker:
22
(a) to whom the Operator's power under this section is
23
delegated; and
24
(b) who was not involved in the making of the determination.
25
(2) The person reviewing the original determination must:
26
(a) reconsider the determination; and
27
Chapter 4 Administrative matters
Part 4-1 Review of determinations
Division 2 Review of determinations
Section 76
76
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(b) make a determination (the review determination) doing one
1
of the following:
2
(i) affirming the original determination;
3
(ii) varying the original determination;
4
(iii) setting the original determination aside and substituting
5
a new determination.
6
(3) When reviewing the original determination, the person may have
7
regard only to the information and documents that were available
8
to the person who made the original determination.
9
76 Date of effect of review determination
10
(1) This section applies if the review determination:
11
(a) varies the original determination; or
12
(b) sets aside the original determination and substitutes a new
13
determination.
14
(2) The review determination takes effect on the day specified in the
15
review determination.
16
(3) From the day the review determination takes effect, the original
17
determination as varied or substituted is taken to be the
18
determination made by the Operator under section 29.
19
77 Notice of review determination to applicant
20
The Operator must give the applicant written notice of the review
21
determination, stating the reasons for it.
22
78 Interaction between review and offer of redress
23
(1) This section applies if:
24
(a) a person is given an offer of redress under section 39; and
25
(b) the person applies for review of the original determination.
26
(2) If the person accepts or declines the offer in the acceptance period
27
for the offer but before the review has been completed, then the
28
Administrative matters Chapter 4
Review of determinations Part 4-1
Review of determinations Division 2
Section 79
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
77
application for review is taken to have been withdrawn
1
immediately before the person accepted or declined the offer.
2
(3) If, on review, the original determination is varied or substituted,
3
then the Operator must:
4
(a) withdraw the offer and notify the person in writing of that
5
withdrawal; and
6
(b) if the determination as varied or substituted approves the
7
application for redress--give the person a new written offer
8
of redress in accordance with section 39.
9
(4) If:
10
(a) on review, the original determination is affirmed; and
11
(b) the determination as affirmed approves the application for
12
redress; and
13
(c) the person has been given an offer of redress under
14
section 39;
15
then the Operator must extend the acceptance period under
16
subsection 40(2) for an additional 2 months.
17
79 Notices to participating institutions about review
18
(1) If:
19
(a) a person makes an application for review under section 73; or
20
(b) a person withdraws an application for review under
21
subsection 74(1); or
22
(c) a review determination is made under subsection 75(2);
23
then the Operator must give each participating institution that was
24
notified under section 35 written notice of that fact.
25
(2) The notice must comply with any requirements prescribed by the
26
rules.
27
Chapter 4 Administrative matters
Part 4-2 Nominees
Division 1 Simplified outline of this Part
Section 80
78
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Part 4-2--Nominees
1
Division 1--Simplified outline of this Part
2
80 Simplified outline of this Part
3
If a person makes an application, or proposes to make an
4
application, for redress under the scheme, the Operator may
5
appoint someone else to be the person's nominee. If a nominee is
6
appointed, then the nominee can act on behalf of the person for the
7
purposes of the scheme.
8
There are 2 types of nominees:
9
(a)
assistance nominees; and
10
(b)
legal nominees.
11
While both types of nominees may act on behalf of the person for
12
the purposes of the scheme (for example, communicate with the
13
Operator), there are some matters for which only the legal nominee
14
(and not the assistance nominee) may act on behalf of the person.
15
Those matters are set out in sections 84 and 85. Importantly, the
16
assistance nominee may not make the application for redress, or
17
accept or decline an offer of redress, on behalf of the person (but
18
the legal nominee may do that on behalf of the person).
19
This Part deals with the appointment of nominees, their functions,
20
duties and responsibilities, and other consequences of being a
21
nominee for the purposes of the scheme.
22
Administrative matters Chapter 4
Nominees Part 4-2
Appointment of nominees Division 2
Section 81
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
79
Division 2--Appointment of nominees
1
81 Appointment of nominees
2
(1) If a person (the applicant) makes an application for redress under
3
the scheme, or proposes to make such an application, the Operator
4
may, in writing, appoint another person to be:
5
(a) the assistance nominee of the applicant; or
6
(b) the legal nominee of the applicant.
7
Note:
The assistance nominee and legal nominee may be a body corporate.
8
(2) The Operator must not appoint a person to be the assistance
9
nominee of the applicant unless both the person and the applicant
10
give written consent to the appointment.
11
(3) The Operator must not appoint a person to be the legal nominee of
12
the applicant unless:
13
(a) under a law of the Commonwealth, a State or a Territory the
14
person has power to make decisions for the applicant in all
15
matters that are relevant to the duties of a legal nominee; and
16
(b) the person gives written consent to the appointment; and
17
(c) the Operator has taken into account any wishes of the
18
applicant regarding the making of such an appointment.
19
Note:
A person who may be eligible to be the legal nominee of the applicant
20
is a person who, under a guardianship order or power of attorney, has
21
power to make decisions for the applicant in all relevant matters.
22
(4) The Operator must give a copy of an appointment under this
23
section to:
24
(a) the nominee; and
25
(b) the applicant.
26
82 Suspension and revocation of nominee appointments
27
(1) If:
28
Chapter 4 Administrative matters
Part 4-2 Nominees
Division 2 Appointment of nominees
Section 82
80
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(a) an assistance nominee or a legal nominee appointed under
1
section 81 requests the Operator, in writing, to revoke the
2
appointment; or
3
(b) the applicant requests the Operator, in writing, to revoke the
4
appointment of the applicant's assistance nominee;
5
then the Operator must revoke the appointment as soon as
6
practicable.
7
(2) If:
8
(a) the Operator gives a nominee a notice under section 87; and
9
(b) the nominee informs the Operator that:
10
(i) an event or change of circumstances has happened or is
11
likely to happen; and
12
(ii) the event or change of circumstances is likely to have an
13
effect referred to in paragraph 87(1)(b);
14
then the Operator may suspend or revoke the nominee's
15
appointment.
16
(3) If:
17
(a) the Operator gives a nominee a notice under
section 87; and
18
(b) the nominee does not comply with a requirement of the
19
notice;
20
then the Operator may suspend or revoke the nominee's
21
appointment.
22
(4) While an appointment is suspended, the appointment has no effect
23
for the purposes of this Act.
24
(5) The Operator may, at any time, revoke the suspension of an
25
appointment under subsection (2) or (3).
26
(6) The suspension or revocation of an appointment, and the
27
revocation of such a suspension, must be in writing.
28
(7) The revocation of an appointment has effect on and from such day,
29
being later than the day of the revocation, as is specified in the
30
revocation.
31
(8) The Operator must give the nominee and the applicant a copy of:
32
Administrative matters Chapter 4
Nominees Part 4-2
Appointment of nominees Division 2
Section 82
No. , 2018
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2018
81
(a) a suspension of the nominee's appointment; or
1
(b) a revocation of the nominee's appointment; or
2
(c) a revocation of a suspension of the nominee's appointment.
3
Chapter 4 Administrative matters
Part 4-2 Nominees
Division 3 Duties, functions and responsibilities of nominees
Section 83
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2018
No. , 2018
Division 3--Duties, functions and responsibilities of
1
nominees
2
83 Duty of nominee
3
(1) It is the duty of an assistance nominee or a legal nominee of a
4
person to act in the best interests of the person at all times.
5
(2) A nominee does not commit a breach of the duty imposed by
6
subsection (1) by doing an act if, when the act is done, the nominee
7
reasonably believes that it is in the best interests of the person that
8
the act be done.
9
(3) A nominee does not commit a breach of the duty imposed by
10
subsection (1) by refraining from doing an act if, at the relevant
11
time, the nominee reasonably believes that it is in the best interests
12
of the person that the act not be done.
13
84 Actions of assistance nominee
14
(1) If a person has an assistance nominee, then any act that may be
15
done by the person under, or for the purposes of, this Act may be
16
done by that assistance nominee.
17
(2) However, subsection (1) does not authorise a person's assistance
18
nominee to do any of the following on behalf of the person:
19
(a) make an application for redress under section 19;
20
(b) accept an offer of redress under section 42;
21
(c) decline an offer of redress under section 45;
22
(d) do an act for the purposes of Division 2;
23
(e) do an act prescribed by the rules.
24
(3) If under a provision of this Act the Operator gives a notice to a
25
person who has an assistance nominee, subsection (1) does not
26
extend to an act that is required by the notice to be done by the
27
person.
28
Administrative matters Chapter 4
Nominees Part 4-2
Duties, functions and responsibilities of nominees Division 3
Section 85
No. , 2018
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2018
83
(4) Any act done by a person's assistance nominee under this section
1
has effect, for the purposes of this Act (other than this Part), as if it
2
had been done by the person.
3
85 Actions of legal nominee
4
(1) If a person has a legal nominee, then any act that may be done by
5
the person under, or for the purposes of, this Act may be done by
6
that legal nominee.
7
(2) Without limiting subsection (1):
8
(a) an application that may be made by the person under this Act
9
may be made by that legal nominee on behalf of the person;
10
and
11
(b) an application so made is taken to be made by the person;
12
and
13
(c) an offer of redress that may be accepted under section 42 or
14
declined under section 45 by the person may be accepted or
15
declined in accordance with the relevant provision by that
16
legal nominee on behalf of the person; and
17
(d) an offer so accepted or declined is taken to have been done so
18
by the person.
19
(3) Any act done by a person's legal nominee under this section has
20
effect, for the purposes of this Act (other than this Part), as if it had
21
been done by the person.
22
86 Giving notices to assistance nominee or legal nominee
23
(1) If a person has an assistance nominee or a legal nominee, then any
24
notice that the Operator is required or authorised by this Act to
25
give to the person may be given by the Operator to that nominee.
26
(2) A notice given under subsection (1) must, in every respect, be in
27
the same form, and in the same terms, as if it were being given to
28
the person.
29
Chapter 4 Administrative matters
Part 4-2 Nominees
Division 3 Duties, functions and responsibilities of nominees
Section 87
84
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
87 Nominee to inform the Operator of matters affecting ability to
1
act as nominee
2
(1) The Operator may give a nominee of a person a notice that requires
3
the nominee to inform the Operator if:
4
(a) either:
5
(i) an event or change of circumstances happens; or
6
(ii) the nominee becomes aware that an event or change of
7
circumstances is likely to happen; and
8
(b) the event or change of circumstances is likely to affect:
9
(i) the ability of the nominee to act as the assistance
10
nominee or legal nominee of the person; or
11
(ii) the ability of the Operator to give notices to the nominee
12
under this Act; or
13
(iii) the ability of the nominee to comply with notices given
14
to the nominee by the Operator under this Act.
15
(2) A notice under subsection (1):
16
(a) must be in writing; and
17
(b) must specify how, and the period within which, the nominee
18
is to inform the Operator.
19
(3) A notice under subsection (1) is not ineffective just because it does
20
not comply with paragraph (2)(b).
21
(4) The period specified under paragraph (2)(b) must not end earlier
22
than 14 days after:
23
(a) the day on which the event or change of circumstances
24
happens; or
25
(b) the day on which the nominee becomes aware that the event
26
or change of circumstances is likely to happen.
27
(5) Subsection (4) does not apply to a requirement in a notice for a
28
nominee to inform the Operator of any proposal by the nominee to
29
leave Australia.
30
Administrative matters Chapter 4
Nominees Part 4-2
Other matters relating to nominees Division 4
Section 88
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
85
Division 4--Other matters relating to nominees
1
88 Protection of person against liability for actions of nominee
2
A person is not to be taken, because of the operation of this Part, to
3
have committed an offence against this Act in relation to any act or
4
omission of the person's nominee.
5
89 Protection of nominee against criminal liability
6
A nominee of a person is not subject to any criminal liability under
7
this Act in relation to:
8
(a) any act or omission of the person; or
9
(b) anything done, in good faith, by the nominee in his or her
10
capacity as nominee.
11
90 Informing nominee if notice given to person
12
If, under a provision of this Act (other than a provision of this
13
Part), the Operator gives a notice to a person who has a nominee,
14
the Operator may inform the nominee of the giving of the notice
15
and of the terms of the notice.
16
Chapter 4 Administrative matters
Part 4-3 Protecting information under the scheme
Division 1 Simplified outline of this Part
Section 91
86
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Part 4-3--Protecting information under the scheme
1
Division 1--Simplified outline of this Part
2
91 Simplified outline of this Part
3
Certain information about a person or an institution is protected
4
information and can only be obtained, recorded, disclosed or used
5
if this Act authorises that to happen. Broadly, protected
6
information is information about a person or an institution that was
7
obtained by an officer of the scheme for the purposes of the
8
scheme and is held in the records of the Department or the Human
9
Services Department. An example of protected information about a
10
person is information that the person gives in his or her application
11
for redress. An example of protected information about an
12
institution is information that the institution provides in compliance
13
with a request for information made by the Operator under
14
section 25.
15
This Part sets out when a person is authorised to obtain, record,
16
disclose or use protected information. It also has offences for when
17
a person obtains, records, discloses or uses protected information
18
without authorisation under this Act.
19
This Part also protects information contained in the assessment
20
framework policy guidelines and sets out when a person is
21
authorised to obtain, record, disclose or use that information.
22
Administrative matters Chapter 4
Protecting information under the scheme Part 4-3
Use and disclosure of protected information Division 2
Section 92
No. , 2018
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2018
87
Division 2--Use and disclosure of protected information
1
92 Protected information
2
(1) This Division deals with how protected information may be
3
obtained, recorded, disclosed or used under this Act.
4
(2) Protected information is:
5
(a) information about a person or an institution that:
6
(i) was provided to, or obtained by, an officer of the
7
scheme for the purposes of the scheme; and
8
(ii) is or was held in the records of the Department or the
9
Human Services Department; or
10
(b) information to the effect that there is no information about a
11
person or an institution held in the records of a Department
12
referred to in subparagraph (a)(ii).
13
93 Main authorisation--obtaining, recording, disclosing or using
14
protected information
15
(1) A person may:
16
(a) obtain protected information; or
17
(b) make a record of protected information; or
18
(c) disclose protected information to another person; or
19
(d) use protected information;
20
if:
21
(e) the obtaining, recording, disclosure or use of the information
22
by the person is done:
23
(i) for the purposes of the scheme; or
24
(ii) with the express or implied consent of the person or
25
institution to which the information relates; or
26
(f) the person believes on reasonable grounds that the obtaining,
27
recording, disclosure or use of the information by the person
28
is necessary to prevent or lessen a serious threat to an
29
individual's life, health or safety.
30
Chapter 4 Administrative matters
Part 4-3 Protecting information under the scheme
Division 2 Use and disclosure of protected information
Section 94
88
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No. , 2018
(2) A person may use protected information to produce information in
1
an aggregated form that does not disclose, either directly or
2
indirectly, information about a particular person or institution.
3
94 Additional authorisation--Operator disclosing to nominee
4
The Operator may disclose protected information provided by a
5
person who has applied for redress to the nominee of the person.
6
95 Additional authorisation--Operator disclosing in public interest
7
or for another specified purpose
8
(1) The Operator may disclose protected information that was
9
provided to, or obtained by, an officer of the scheme for the
10
purposes of the scheme if:
11
(a) the Operator certifies that the disclosure is necessary in the
12
public interest in a particular case or class of cases and the
13
disclosure is to such persons and for such purposes as the
14
Operator determines; or
15
(b) the disclosure:
16
(i) is to a person who is expressly or impliedly authorised
17
by the person or institution to which the information
18
relates to obtain it; or
19
(ii) is to the Chief Executive Centrelink for the purposes of
20
a centrelink program (within the meaning of the Human
21
Services (Centrelink) Act 1997); or
22
(iii) is to the Chief Executive Medicare for the purposes of a
23
medicare program (within the meaning of the Human
24
Services (Medicare) Act 1973); or
25
(iv) is to the head (however described) of a government
26
institution, for the purposes of that institution.
27
(2) A person to whom protected information is disclosed under
28
subsection (1) may:
29
(a) obtain the information; or
30
(b) make a record of the information; or
31
(c) disclose the information to another person; or
32
Administrative matters Chapter 4
Protecting information under the scheme Part 4-3
Use and disclosure of protected information Division 2
Section 96
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
89
(d) use the information;
1
if the person does so for the purpose for which the information was
2
disclosed to the person under subsection (1).
3
(3) In certifying for the purposes of paragraph (1)(a) or disclosing
4
information for the purposes of subparagraph (1)(b)(iv), the
5
Operator must act in accordance with any rules made for the
6
purposes of subsection (4).
7
(4) The rules may make provision for and in relation to the exercise of
8
either or both of the following:
9
(a) the Operator's power to certify for the purposes of
10
paragraph (1)(a);
11
(b) the Operator's power under subparagraph (1)(b)(iv) to
12
disclose information to the head of a government institution.
13
(5) If a certificate or determination under paragraph (1)(a) is given or
14
made in writing, the certificate or determination is not a legislative
15
instrument.
16
96 Additional authorisation--Operator disclosing for law
17
enforcement or child safety or wellbeing
18
When this section applies
19
(1) This section applies if the Operator is satisfied that disclosure of
20
protected information is reasonably necessary for either of the
21
following purposes (a relevant purpose):
22
(a) the enforcement of the criminal law;
23
(b) the safety or wellbeing of children.
24
Disclosure by Operator
25
(2) The Operator may disclose the information to a government
26
institution that has functions that relate to the relevant purpose.
27
(3) However, before disclosing protected information that relates to a
28
person who has applied for redress, the Operator must have regard
29
to the impact the disclosure might have on the person.
30
Chapter 4 Administrative matters
Part 4-3 Protecting information under the scheme
Division 2 Use and disclosure of protected information
Section 97
90
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
Disclosure, use etc. by government official
1
(4) If information is disclosed to a government institution under
2
subsection (2), then an employee or officer of the institution (the
3
government official) may:
4
(a) obtain the information; or
5
(b) make a record of the information; or
6
(c) disclose the information to a person; or
7
(d) use the information;
8
but only if the government official does so for a relevant purpose in
9
the official's capacity as an employee or officer of the government
10
institution.
11
Conditions
12
(5) The Operator may, in writing, impose conditions to be complied
13
with in relation to protected information disclosed under
14
subsection (2).
15
(6) A person commits an offence if:
16
(a) the person is subject to a condition under subsection (5); and
17
(b) the person engages in conduct (within the meaning of the
18
Criminal Code); and
19
(c) the person's conduct breaches the condition.
20
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
21
(7) An instrument under subsection (5) is not a legislative instrument.
22
97 Additional authorisation--disclosing etc. for a permitted purpose
23
Disclosure, use etc. by a government official
24
(1) If protected information is disclosed to a government institution,
25
then an employee or officer of the institution (the government
26
official) may:
27
(a) obtain the information; or
28
(b) make a record of the information; or
29
Administrative matters Chapter 4
Protecting information under the scheme Part 4-3
Use and disclosure of protected information Division 2
Section 97
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
91
(c) disclose the information to a person; or
1
(d) use the information;
2
if:
3
(e) the government official does so for any of the following
4
purposes (a permitted purpose):
5
(i) the enforcement of the criminal law;
6
(ii) the safety or wellbeing of children;
7
(iii) investigatory, disciplinary or employment processes
8
related to the safety or wellbeing of children;
9
(iv) a purpose prescribed by the rules; and
10
(f) the government official does so in the official's capacity as
11
an employee or officer of the government institution; and
12
(g) a law of the Commonwealth (other than this Part), or of a
13
State or a Territory, does not prohibit the government official
14
from doing so.
15
Disclosure by a person to a government institution
16
(2) If:
17
(a) a person is satisfied that disclosure of protected information
18
is reasonably necessary for a permitted purpose; and
19
(b) a law of the Commonwealth, a State or a Territory requires or
20
permits the person to disclose the information to a
21
government institution that has functions that relate to the
22
permitted purpose;
23
then the person may disclose the information to the government
24
institution for that purpose.
25
(3) Subsection (2) does not apply if the person is:
26
(a) an officer of the scheme; or
27
(b) an employee or officer of a government institution.
28
Officers of government institutions
29
(4) The rules may prescribe that specified persons are officers of a
30
government institution for the purposes of subsection (1) or
31
paragraph (3)(b).
32
Chapter 4 Administrative matters
Part 4-3 Protecting information under the scheme
Division 2 Use and disclosure of protected information
Section 98
92
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
98 Additional authorisation--person engaged by participating
1
institution disclosing etc. for a specified purpose
2
(1) A person engaged (whether as an employee or otherwise) by a
3
participating institution may:
4
(a) obtain protected information; or
5
(b) make a record of protected information; or
6
(c) disclose protected information to another person; or
7
(d) use protected information;
8
if the person believes, on reasonable grounds, that the obtaining,
9
recording, disclosure or use that is proposed to be made of the
10
information by the person is reasonably necessary for one or more
11
of the purposes specified in subsection (2).
12
(2) The purposes for which the person may obtain, record, disclose or
13
use protected information are as follows:
14
(a) the purpose of the participating institution complying with a
15
request under section 25 to provide information;
16
(b) the purpose of the participating institution providing a direct
17
personal response to a person under section 54;
18
(c) the purpose of the participating institution facilitating a claim
19
under an insurance policy;
20
(d) the purpose of the participating institution undertaking
21
internal investigation and disciplinary procedures.
22
(3) However, before the person discloses information that relates to
23
another person who has applied for redress, the person must have
24
regard to the impact the disclosure might have on the other person.
25
99 Offence--unauthorised access, recording, disclosure or use of
26
protected information
27
(1) A person commits an offence if:
28
(a) the person:
29
(i) obtains information; or
30
(ii) makes a record of information; or
31
(iii) discloses information to another person; or
32
Administrative matters Chapter 4
Protecting information under the scheme Part 4-3
Use and disclosure of protected information Division 2
Section 100
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
93
(iv) uses information; and
1
(b) the person is not authorised or required by or under this Act:
2
(i) to obtain the information; or
3
(ii) to make the record of the information; or
4
(iii) to disclose the information; or
5
(iv) to use the information; and
6
(c) the information is protected information.
7
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
8
(2) Subsection (1) does not apply if:
9
(a) the person did not obtain the information under, for the
10
purposes of, or in connection with, the scheme; or
11
(b) the person had already obtained the information before the
12
person obtained the information under, for the purposes of, or
13
in connection with, the scheme.
14
Note:
A defendant bears an evidential burden in relation to the matter in this
15
subsection (see subsection 13.3(3) of the Criminal Code).
16
100 Offence--soliciting disclosure of protected information
17
(1) A person commits an offence if:
18
(a) the person solicits the disclosure of information from an
19
officer of the scheme or another person; and
20
(b) the disclosure would be in contravention of this Division; and
21
(c) the information is protected information.
22
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
23
(2) A person may commit an offence under subsection (1) whether or
24
not any protected information is actually disclosed.
25
101 Offence--offering to disclose protected information
26
(1) A person commits an offence if:
27
(a) the person offers to disclose (whether to a particular person
28
or otherwise) information about another person or an
29
institution; and
30
Chapter 4 Administrative matters
Part 4-3 Protecting information under the scheme
Division 2 Use and disclosure of protected information
Section 101
94
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(b) the disclosure would be in contravention of this Division; and
1
(c) the information is protected information.
2
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
3
(2) A person commits an offence if:
4
(a) the person holds himself or herself out as being able to
5
disclose (whether to a particular person or otherwise)
6
information about another person or an institution; and
7
(b) the disclosure would be in contravention of this Division; and
8
(c) the information is protected information.
9
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
10
Administrative matters Chapter 4
Protecting information under the scheme Part 4-3
Use and disclosure of the assessment framework policy guidelines Division 3
Section 102
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
95
Division 3--Use and disclosure of the assessment
1
framework policy guidelines
2
102 Main authorisation for obtaining, recording, disclosing or using
3
the assessment framework policy guidelines
4
An officer of the scheme may obtain, make a record of, disclose to
5
another officer of the scheme or use information that is contained
6
in the assessment framework policy guidelines if the officer does
7
so for the purposes of the scheme.
8
103 Additional authorisation--disclosure and use in accordance
9
with the National Redress Scheme Agreement
10
(1) The Minister or the Operator may disclose information contained
11
in the assessment framework policy guidelines to a person in
12
accordance with the requirements set out in the National Redress
13
Scheme Agreement.
14
(2) A person to whom information is disclosed under subsection (1)
15
may obtain, make a record of, disclose to another person or use that
16
information in accordance with the requirements set out in the
17
National Redress Scheme Agreement.
18
104 Offence--unauthorised recording, disclosure or use of
19
assessment framework policy guidelines
20
A person commits an offence if:
21
(a) the person:
22
(i) obtains information; or
23
(ii) makes a record of information; or
24
(iii) discloses information to another person; or
25
(iv) uses information; and
26
(b) the person is not authorised or required by or under this Act:
27
(i) to obtain the information; or
28
(ii) to make the record of the information; or
29
Chapter 4 Administrative matters
Part 4-3 Protecting information under the scheme
Division 3 Use and disclosure of the assessment framework policy guidelines
Section 104
96
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
No. , 2018
(iii) to disclose the information; or
1
(iv) to use the information; and
2
(c) the information is contained in the assessment framework
3
policy guidelines.
4
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
5
Administrative matters Chapter 4
Protecting information under the scheme Part 4-3
Other matters Division 4
Section 105
No. , 2018
National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
97
Division 4--Other matters
1
105 Disclosures to a court or tribunal
2
(1) A person must not be required to disclose to a court or tribunal in
3
any civil proceedings:
4
(a) protected information; or
5
(b) information that is contained in the assessment framework
6
policy guidelines.
7
(2) Subsection (1) does not apply if the disclosure of the information is
8
for the purposes of giving effect to this Act.
9
(3) For the purposes of subsection (2) (and without limiting that
10
subsection), if the disclosure of the information is in civil
11
proceedings for judicial review of a decision made under this Act,
12
then the disclosure is for the purposes of giving effect to this Act.
13
(4) Subsection (1) does not apply if the disclosure of the information is
14
in civil proceedings under, or arising out of, section 28 (which is
15
about giving false or misleading information, documents or
16
statements to an officer of the scheme).
17
(5) Subsection (1) does not apply if:
18
(a) the person did not obtain the information under, for the
19
purposes of, or in connection with, the scheme; or
20
(b) the person had already obtained the information before the
21
person obtained the information under, for the purposes of, or
22
in connection with, the scheme.
23
(6) Protected information and information that is contained in the
24
assessment framework policy guidelines are not to be published by
25
any person, court or tribunal.
26
106 Disclosing information in good faith
27
(1) This section applies if a person, acting in good faith, discloses
28
information for the purposes of the scheme.
29
Chapter 4 Administrative matters
Part 4-3 Protecting information under the scheme
Division 4 Other matters
Section 106
98
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(2) The person is not liable to any civil or criminal proceedings, or any
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disciplinary action, for disclosing the information.
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(3) In disclosing the information, the person cannot be held to have
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breached any code of professional etiquette or ethics or departed
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from any accepted standards of professional conduct.
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Participating institutions, participating groups and participating jurisdictions Chapter 5
Participating institutions Part 5-1
Simplified outline of this Part Division 1
Section 107
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National Redress Scheme for Institutional Child Sexual Abuse Bill
2018
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Chapter 5--Participating institutions,
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participating groups and participating
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jurisdictions
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Part 5-1--Participating institutions
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Division 1--Simplified outline of this Part
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107 Simplified outline of this Part
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For a person to be eligible for redress, at least one participating
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institution must be responsible for the abuse of the person.
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There are 4 types of institutions that are participating institutions.
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These are:
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(a)
Commonwealth institutions (such as Commonwealth
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Departments and bodies established under
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Commonwealth law); and
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(b)
State institutions (such as State Departments and certain
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bodies established under State law); and
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(c)
Territory institutions (such as Territory Departments and
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certain bodies established under Territory law); and
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(d)
non-government institutions (such as churches or
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sporting clubs).
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While all Commonwealth institutions are participating institutions,
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State institutions, Territory institutions and non-government
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institutions are only participating institutions if they agree to
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participate in the scheme and the Minister makes a declaration
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under section 115 that they are participating institutions.
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A defunct institution (which is a government or non-government
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institution that no longer exists) can become a participating
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institution. However, it must have a representative in order to do
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so. The representative acts on the institution's behalf and assumes
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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
Section 107
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No. , 2018
its obligations and liabilities under the scheme (such as the
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obligation to provide a direct personal response to a person and the
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liability to pay funding contribution).
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A lone institution (which is a non-government institution that is not
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defunct and is not a member of a participating group) can also
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become a participating institution.
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A lone institution that is not a legal person (called an
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unincorporated lone institution) must also have a representative to
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become a participating institution. Its representative may act on its
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behalf and will assume its liability to pay funding contribution, but
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will not assume any of its obligations under the scheme.
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A lone institution that is a legal person (called an incorporated lone
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institution) may have a representative, but is not required to have
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one to become a participating institution. Its representative may act
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on its behalf, but will not assume any of its obligations or liabilities
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under the scheme.
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Participating institutions, participating groups and participating jurisdictions Chapter 5
Participating institutions Part 5-1
Institutions participating in the scheme Division 2
Section 108