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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Victims of Abuse In State Care (Compensation)
Bill 2009
A BILL FOR
An Act to establish a scheme for the determination of claims for payment of
statutory compensation to persons who have suffered abuse or neglect while in
State care.
Contents
1 Short
title
2 Commencement
3 Interpretation
4 Eligibility to make
claim
5 Application for compensation
6 Payment of
compensation
7 Apology
8 Recovery from
claimant
9 Delegation
10 Commissioner for Victims' Rights to assist
claimants
11 Confidentiality
12 Interaction between this Act and other
laws
13 Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Victims of Abuse In State Care
(Compensation) Act 2009.
This Act will come into operation 6 months after the day on which it is
assented to by the Governor or on an earlier day fixed by
proclamation.
In this Act, unless the contrary intention appears—
abuse or neglect, in relation to a child,
means—
(a) sexual abuse of the child; or
(b) physical or emotional abuse of the child, or neglect of the child,
reasonably likely to—
(i) cause the child to suffer physical or psychological injury detrimental
to the child's wellbeing; or
(ii) place the child's physical or psychological development in
jeopardy;
child means a person under the age of 18 years;
child in State care means a child who was, at the relevant
time, a child who had been placed under the guardianship, custody, care or
control of a designated Minister or another public official, or the former body
corporate known as the Children's Welfare and Public Relief Board, under a
relevant Act;
Commissioner for Victims' Rights means the person holding or
acting in the office of Commissioner for Victims' Rights under the Victims of
Crime Act 2001;
designated Minister means a Minister responsible for the
administration of a relevant Act;
relevant Act means the Children's Protection
Act 1993 or a corresponding previous enactment dealing with the
protection of children;
sexual abuse means conduct that would, if proven, constitute
a sexual offence;
sexual offence means a sexual offence within the meaning of
section 4 of the Evidence Act 1929.
A person is eligible to claim statutory compensation under this Act if the
person—
(a) reached the age of 18 years before 1 February 2009;
and
(b) suffered abuse or neglect as a child in State care.
5—Application for
compensation
(1) A person who is eligible to claim statutory compensation under this
Act may, within the application period, apply to the Attorney-General for
statutory compensation.
(2) The following requirements apply to and in relation to the
application:
(a) the application must—
(i) contain the information required by the regulations; and
(ii) be accompanied by any medical reports relevant to the application in
the possession of, or accessible to, the claimant; and
(iii) be accompanied by any further documents required under the
regulations;
(b) the information contained in the application must be verified by
statutory declaration.
(3) A claimant must comply with any reasonable request of the
Attorney-General for further information in relation to the application or
evidence in support of the application.
(4) In this section—
application period means the period commencing on the day on
which this section comes into operation and ending—
(a) on the first anniversary of that day; or
(b) if another day (that does not precede the day referred to in
paragraph (a)) is specified by the Minister by notice in the Gazette for
the purposes of this definition—on that day.
(1) Subject to this section—
(a) if the Attorney-General is satisfied that a claimant suffered abuse or
neglect as a child in State care but is not satisfied that the claimant suffered
significant physical or psychological injury as a result of the abuse or
neglect, the Attorney-General may determine that the claimant is entitled to a
payment of compensation not exceeding $7 000; and
(b) if the Attorney-General is satisfied that a claimant suffered abuse or
neglect as a child in State care and that the abuse or neglect caused
significant physical or psychological injury, the Attorney-General may determine
that the claimant is entitled to a payment of compensation of not less
than $7 000 and not more than $43 000.
(2) The Attorney-General's determination on a claim for statutory
compensation may be based on evidence provided by the claimant or on further
investigations conducted by the Attorney-General (but the Attorney-General is
not obliged to conduct such investigations in respect of a claim).
(3) The Attorney-General may determine that a payment of statutory
compensation cannot be made to a particular claimant in accordance with a
determination under subsection (1) unless the claimant executes a waiver of
other legal rights (in such form as the Attorney-General thinks fit).
(4) A payment of statutory compensation cannot be made in accordance with
a determination under subsection (1) unless a legal practitioner has signed
a certificate in the prescribed form certifying that he or she has explained the
legal implications of the payment to the claimant.
(5) The State is liable to indemnify the claimant for the reasonable costs
of obtaining the legal advice required under subsection (4) up
to—
(a) $500; or
(b) if some other limit (not less than $500) is prescribed by
regulation—that limit.
(6) A determination or purported determination of the Attorney-General
under this section cannot be challenged or called in question before any
court.
(7) If the Attorney-General determines under subsection (1) that a
claimant is entitled to a payment of compensation, the payment is recoverable
from the Crown as a debt due to the claimant.
(1) If the Attorney-General determines under section 6 that a
claimant is entitled to a payment of statutory compensation, the claimant must
also be given a written apology.
(2) An apology must—
(a) refer to the circumstances of the abuse or neglect suffered by the
claimant; and
(b) acknowledge that the abuse or neglect of the claimant occurred because
of a breach of the State's duty of care to the claimant.
If—
(a) in accordance with a determination of the Attorney-General under
section 6, a payment of statutory compensation is made to a claimant;
and
(b) the claimant is subsequently paid compensation or damages under
another Act or by some other person for injury, financial loss or grief caused
by the abuse or neglect for which the payment referred to in paragraph (a)
was made; and
(c) the compensation or damages received from the other source was not
taken into account by the Attorney-General in making the determination or
exceeds the amount taken into account by the Attorney-General,
the Crown may recover from the claimant, as a debt, the amount of the
payment or the amount of the excess (as the case requires) but may not recover
more than the amount received from the other source.
(1) The Attorney-General may, by instrument in writing, delegate to a
specified person, or the holder of a specified position, any of the
Attorney-General's powers or functions under this Act.
(2) A delegation under this section—
(a) may be made subject to conditions or limitations; and
(b) is revocable at will and does not derogate from the power of the
Attorney-General to act in any matter.
10—Commissioner
for Victims' Rights to assist claimants
The Commissioner for Victims' Rights is to support persons eligible to
claim statutory compensation under this Act and, for that purpose, must, where
necessary—
(a) provide such advice and assistance to claimants, and persons
interested in making claims under this Act, as may be reasonably required;
and
(b) arrange for the provision of legal advice to claimants as required
under section 6.
(1) Subject to subsection (2), a person engaged or formerly engaged
in the administration of this Act must not disclose information that could
identify, or lead to the identification of—
(a) a person who has been, or who is alleged to have been, the victim of
abuse or neglect; or
(b) a person who has been responsible for, or is alleged to have been
responsible for, the abuse or neglect of a child,
except to the extent that he or she may be authorised or required to
disclose that information by the Minister.
(2) Subsection (1) does not prevent a person from disclosing
information—
(a) as required by law, or as required for the administration of this Act;
or
(b) at the request, or with the consent, of the person to whom the
information relates or a guardian of the person; or
(c) in accordance with the regulations.
12—Interaction
between this Act and other laws
Subject to section 6(3), this Act does not exclude or derogate from
rights to damages or compensation that exist apart from this Act.
The Governor may make such regulations as are contemplated by, or necessary
or expedient for the purposes of, this Act.