National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (NSW)
An Act to refer certain matters relating to the National Redress Scheme for Institutional Child Sexual Abuse to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth; and for other purposes.
This Act is the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018.
The main purpose of this Act is to refer certain matters relating to the National Redress Scheme for Institutional Child Sexual Abuse to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth.
This Act commences on the date of assent to this Act.
In this Act, unless the contrary intention appears:
The operation of each of subsections (1) and (2) is not affected by the other subsection.
The reference of a matter under subsection (1) or (2) has effect only:
(a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth), and
(b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.
To avoid doubt, it is the intention of the Parliament of the State that the National Redress Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of subsection (1):
(a) by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsections (1) and (2), and
(b) by provisions of instruments made or issued under the National Redress Act or under provisions referred to in paragraph (a).
Despite any other provision of this Act other than section 8 (2), a reference under subsection (1) or (2) has effect for a period:
(a) beginning when the subsection under which the reference is made comes into operation, and
(b) ending at the beginning of the day fixed under this Part as the day on which the reference is to terminate,
but no longer.
A
(a) a scheme, program or arrangement (temporary or otherwise) established (before or after the commencement of this Act) by:
(i) the Parliament or government of the State, or
(ii) an institution (whether governmental or non-governmental) or other entity,
for or in respect of persons who have suffered institutional child sexual abuse in the State (whether applying only to any such persons or applying to any class of victims of crime) and any associated matters, or
(b) the jurisdiction of a court or tribunal to grant compensation or support for or in respect of victims of crime (including crime relating to institutional child sexual abuse) and any associated matters.
A matter referred by section 4 (2) does not include the matter of making a law to the extent that that law would operate to prevent or limit the power to establish, or to prevent or limit the operation of, any State redress mechanism, whether or not the mechanism deals with the same or similar subject-matters as those dealt with in any aspect of the National Redress Scheme.
Subsection (2) does not cover any of the following matters (if they would otherwise be covered by section 4 (2)):
(a) any matter to which the initial referred provisions relate,
(b) the matter of the release or discharge, in connection with the operation of the National Redress Scheme, of relevant civil liability of institutions or officials,
(c) the matter of the disclosure or use of evidence or other information provided or obtained in connection with the operation of the National Redress Scheme,
(d) the matter of the making, enforcement or protection (for example, protection against the operation of orders in the nature of garnishee orders) of payments in connection with the operation of the National Redress Scheme.
A matter referred by section 4 (2) does not include the matter of making a law to the extent that that law would substantively remove or override a provision of the National Redress Act that requires the agreement of the State.
The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which:
(a) the text reference is to terminate, or
(b) the amendment reference is to terminate,
or both.
The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 4) never to have been published.
A revoking proclamation has effect only if published before the day fixed under subsection (1).
The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.
If the amendment reference terminates before the text reference, the termination of the amendment reference does not affect:
(a) laws that were made under that reference before that termination (whether or not they have come into operation before that termination), or
(b) the continued operation in the State of the National Redress Act as in operation immediately before that termination or as subsequently amended or affected by:
(i) laws referred to in paragraph (a) that come into operation after that termination, or
(ii) provisions referred to in section 4 (5).
Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless the text reference is terminated.
The regulations may make provision for or with respect to, or (subject to any relevant provisions of the regulations) the Minister may give directions as to, how the agreement of the State is to be given or withdrawn and may be evidenced for the purposes of, and consistently with, this Act and the National Redress Scheme.
Without limitation:
(a) the regulations or directions may authorise a person to give agreement on behalf of the State, and
(b) the agreement of the State to State institutions participating in the National Redress Scheme may be given in respect of:
(i) one or more particular State institutions, or
(ii) a class of State institutions, however described.
In this section:
A participating State institution may give information to the Operator for the purpose of complying with a request made by the Operator to the participating State institution under the National Redress Act to give information in relation to an application under the National Redress Scheme.
A State agency may give information to another State agency for the purpose of assisting any participating State institution to comply with a request made by the Operator to the participating State institution under the National Redress Act to give information as referred to in subsection (2).
Nothing in a law of the State prevents:
(a) a participating State institution from giving information to the Operator as referred to in subsection (2), or
(b) a State agency from giving information to another State agency as referred to in subsection (3),
unless that law is prescribed by the regulations under this Act.
A reference in this section to a participating State institution is a reference to a participating State institution that is, is part of or is connected with the State.
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
A Bill for an Act to establish the National Redress Scheme for Institutional Child Sexual Abuse, and for related purposes
The Parliament of Australia enacts:
This Act is the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this Act | As follows:
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. |
This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
The main objects of this Act are:
(a) to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and
(b) to provide justice for the survivors of that abuse.
For the purposes of achieving those objects, the objects of this Act are also:
(a) to establish the National Redress Scheme for Institutional Child Sexual Abuse; and
(b) to provide redress under the scheme which consists of:
(i) a monetary payment to survivors as a tangible means of recognising the wrong survivors have suffered; and
(ii) a counselling and psychological component which, depending on where the survivor lives, consists of access to counselling and psychological services or a monetary payment; and
(iii) a direct personal response to survivors from the participating institutions responsible; and
(c) to enable institutions responsible for abuse of survivors to participate in the scheme to provide that redress to those survivors; and
(d) to implement the joint response of:
(i) the Commonwealth Government; and
(ii) the government of each participating State; and
(iii) the government of each participating Territory;
to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to redress.
This Act establishes the National Redress Scheme for Institutional Child Sexual Abuse to provide redress to survivors of past institutional child sexual abuse.
Redress under the scheme is for abuse that is within the scope of the scheme. Abuse of a person is within the scope of the scheme if:
(a) it occurred when the person was a child; and
(b) it occurred before the scheme start day; and
(c) it occurred inside a participating State, inside a Territory, or outside Australia (that is, it did not occur inside a State that is not participating in the scheme).
Redress consists of 3 components:
(a) a redress payment (of up to $150,000); and
(b) a counselling and psychological component which, depending on where the person lives, consists of access to counselling and psychological services or a counselling and psychological services payment (of up to $5,000); and
(c) a direct personal response from each participating institution responsible for the abuse.
To be entitled to redress, a number of conditions need to be met. First, the person must make an application for redress. Then the person must meet the eligibility criteria. These are that:
(a) the person was sexually abused; and
(b) the abuse is within the scope of the scheme; and
(c) the abuse is of a kind for which the maximum amount of redress payment worked out under the assessment framework would be more than nil; and
(d) one or more participating institutions are responsible for the abuse; and
(e) at the time of the application, the person is an Australian citizen or a permanent resident.
A participating institution is responsible for abuse of a person if the abuse occurred in circumstances where the participating institution is primarily or equally responsible for the abuser having contact with the person. Various circumstances are relevant to determining that question (e.g. whether the abuser was an official of the institution).
The participating institutions are:
(a) all Commonwealth institutions; and
(b) any State institution that is declared to be a participating institution; and
(c) any Territory institution that is declared to be a participating institution; and
(d) any non-government institution that is declared to be a participating institution.
If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, the Operator must approve the application and make an offer of redress to the person. The person may accept or decline the offer.
If the person accepts the offer, then the person becomes entitled to redress under the scheme. The person is required to release particular institutions and officials from all civil liability for the abuse. Those institutions and officials are the participating institutions determined by the Operator to be responsible for the abuse, their officials, their associates and the officials of their associates. The abuser is not released from liability.
Once entitled, the person will be provided with redress under the scheme.
If the person declines the offer, then the person is not entitled to redress under the scheme. The person is not required to release any institution or official from liability for the abuse.
The Operator is responsible for the administration of the scheme. To ensure that the scheme is survivor-focussed, the Operator (and other officers of the scheme) must take into account general guiding principles when taking action under the scheme. For example, one of the principles is that redress must be assessed and provided so as to avoid further harming or traumatising the person.
Participating institutions that are determined by the Operator to be responsible for the abuse of a person are liable for the costs of providing redress to the person. Those institutions are also liable for contributing to the costs of the administration of the scheme. The Operator is responsible for recovering those costs from those institutions through funding contributions, which those institutions are required to pay on a quarterly basis.
Many terms used in this Act are defined to have a particular meaning for this Act. For this reason, this Act has a Dictionary (in section 6).
The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to the provision that has that definition.
In this Act:
(a) the counselling and psychological services payment; or
(b) access to counselling and psychological services under the scheme.
(a) a person in the Department or the Human Services Department performing duties, or exercising powers or functions, under or in relation to this Act (including the Operator); or
(b) an independent decision maker; or
(c) a person prescribed by the rules.
(a) a Commonwealth institution; or
(b) a participating State institution; or
(c) a participating Territory institution.
(a) for a participating defunct institution: see subsections 118(2), (3), (4) and (5) and 120(4); or
(b) for a participating lone institution: see subsections 125(2) and (3) and 128(4); or
(c) for a participating group: see subsections 136(2), (3), (4) and (5) and 138(4).
(a) for a redress payment: see subsection 50(2); or
(b) for a counselling and psychological services payment: see subsection 53(2).
A participating Territory is a type of Territory, but there are other Territories that are covered by this definition (e.g. the Jervis Bay Territory).
(a) the rules; and
(b) any other instrument made under this Act.
This Part formally establishes the National Redress Scheme for Institutional Child Sexual Abuse. It provides that the Operator is responsible for operating the scheme. It also sets out general principles that the Operator and other officers of the scheme must take into account, for the benefit and protection of survivors, when taking action under the scheme.
The National Redress Scheme for Institutional Child Sexual Abuse is established by this Act.
The Secretary of the Department is the National Redress Scheme Operator.
The Operator is responsible for operating the scheme.
The Operator may arrange for support and assistance (including legal assistance) to be provided to a person (including a person who is an applicant, or prospective applicant, for redress) in relation to the doing of things under, or for the purposes of, the scheme.
For example, the Operator might arrange for support and assistance to be provided to help prepare a person’s application for redress.
The Operator may, on behalf of the Commonwealth:
(a) enter into a contract, agreement, deed or understanding relating to the provision of support or assistance provided under the scheme; and
(b) vary and administer that contract, agreement, deed or understanding.
This section sets out the principles that must be taken into account by the Operator and other officers of the scheme when taking action under, or for the purposes of, the scheme.
Redress under the scheme should be survivor-focussed.
Redress should be assessed, offered and provided with appropriate regard to:
(a) what is known about the nature and impact of child sexual abuse, and institutional child sexual abuse in particular; and
(b) the cultural needs of survivors; and
(c) the needs of particularly vulnerable survivors.
Redress should be assessed, offered and provided so as to avoid, as far as possible, further harming or traumatising the survivor.
Redress should be assessed, offered and provided in a way that protects the integrity of the scheme.
For a person to be entitled to redress under the scheme, a number of conditions need to be met.
First, the person must make an application for redress under the scheme.
Then the person must meet the eligibility criteria for redress. These are that the person was sexually abused, the abuse is within the scope of the scheme, the abuse is of a kind for which the amount of redress payment worked out under the assessment framework would be more than nil, one or more participating institutions are responsible for the abuse, and, at the time of the application, the person is an Australian citizen or a permanent resident.
If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, the Operator must approve the application and make an offer of redress to the person. The person may accept or decline the offer. (Offers and acceptance of redress are dealt with in Part 2-4.)
If the person accepts the offer, then the person becomes entitled to redress under the scheme. The person is required to release particular institutions and officials from all civil liability for the abuse. Those institutions are the participating institutions determined by the Operator to be responsible for the abuse, their officials, their associates and the officials of their associates. The abuser is not released from liability.
Once entitled, the person will be provided with redress under the scheme. (Provision of redress is dealt with in Part 2-5.)
If the person declines the offer, then the person is not entitled to redress under the scheme. The person is not required to release any institution or official from civil liability for the abuse.
A person can only be provided with redress under the scheme if the person is entitled to it.
A person is
(a) the person applies for redress under section 19; and
(b) the Operator considers that there is a reasonable likelihood that the person is eligible for redress under the scheme (see section 13 for eligibility); and
(c) the Operator approves the application under section 29; and
(d) the Operator makes an offer of redress to the person under section 39; and
(e) the person accepts the offer in accordance with section 42.
A person is also
For cases where this Act prescribes that a person is entitled to redress, or a component of redress, under the scheme, see Part 3-1.
Despite subsections (2) and (3), a person is not
For cases where this Act prescribes that a person is not entitled to redress, or a component of redress, under the scheme, see Part 3-2.
A person is eligible for redress under the scheme if:
(a) the person was sexually abused; and
(b) the sexual abuse is within the scope of the scheme (see section 14); and
(c) the sexual abuse is of a kind for which the maximum amount of redress payment that could be payable to the person (as worked out under the assessment framework) would be more than nil; and
(d) one or more participating institutions are responsible for the abuse (see section 15); and
(e) the person is an Australian citizen or a permanent resident (within the meaning of the Australian Citizenship Act 2007) at the time the person applies for redress.
To be eligible for redress, a person must have been sexually abused. However, redress is for the sexual abuse, and related non-sexual abuse, of the person that is within the scope of the scheme.
For which institutions are participating institutions, see subsection 108(2).
A person is also
Despite subsections (1) and (2), a person is not
Abuse of a person is
(a) it occurred when the person was a child; and
(b) it occurred:
(i) inside a participating State; or
(ii) inside a Territory; or
(iii) outside Australia; and
(c) it occurred before the scheme start day.
Abuse of a person is
Despite subsections (1) and (2), abuse of a person is not
An institution (whether or not a participating institution) is
An institution is
An institution is
(a) the institution and one or more other institutions are approximately equally responsible for the abuser having contact with the person; and
(b) no institution is primarily responsible for the abuse of the person.
Without limiting the circumstances that might be relevant for determining under subsection (2) or (3) whether an institution is primarily responsible or equally responsible for the abuser having contact with the person, the following circumstances are relevant:
(a) whether the institution was responsible for the day to day care or custody of the person when the abuse occurred;
(b) whether the institution was the legal guardian of the person when the abuse occurred;
(c) whether the institution was responsible for placing the person into the institution in which the abuse occurred;
(d) whether the abuser was an official of the institution when the abuse occurred;
(e) whether the abuse occurred:
(i) on the premises of the institution; or
(ii) where activities of the institution took place; or
(iii) in connection with the activities of the institution;
(f) any other circumstances that are prescribed by the rules.
When determining the question whether an institution is responsible for abuse of a person, the circumstances listed in this subsection are relevant to that question, but none of them on its own is determinative of that question.
Despite subsections (1), (2) and (3), an institution is
Despite subsections (1), (2) and (3), an institution is not
(a) a redress payment (of up to $150,000); and
(b) a counselling and psychological component which, depending on where the person lives (as stated in the person’s application for redress), consists of:
(i) access to counselling and psychological services provided under the scheme; or
(ii) a payment (of up to $5,000) to enable the person to access counselling and psychological services provided outside of the scheme; and
(c) a direct personal response from each of the participating institutions that are determined by the Operator under paragraph 29(2)(b) to be responsible for the abuse of the person.
Note— For what a direct personal response consists of, see subsection 54(2).
A person who is entitled to redress under the scheme may choose to accept 1, 2 or all 3 of those components of redress.
If 2 or more participating institutions are determined to be responsible for the person’s abuse and the person chooses to be given a direct personal response, then the person may choose to be given a direct personal response from each of those institutions, or from only some or one of them.
Redress for a person is for the sexual abuse, and related non sexual abuse, of the person that is within the scope of the scheme.
While redress is for both the sexual and related non-sexual abuse of a person that is within the scope of the scheme, to be eligible for redress in the first place, there must have been sexual abuse within the scope of the scheme (see paragraph 13(1)(b)).
To be entitled to redress under the scheme, a person must make an application for it. To be valid, the application must comply with the requirements set out in section 19 (e.g. it must include any information required by the Operator).
Once the application is made, the Operator can request the person and participating institutions to provide further information to the Operator for the purposes of determining the application (see sections 24 and 25).
A person can make only one application for redress under the scheme. Whether the application is successful or unsuccessful, the person will not be able to make another application for redress under the scheme (unless the person withdraws the application before the Operator makes a determination about whether or not to approve it). There are certain circumstances where a person cannot make an application for redress. These circumstances are set out in section 20.
The Operator must make a determination to approve, or not approve, the application as soon as practicable. If the Operator considers there is a reasonable likelihood that the person is eligible for redress, then the Operator must approve the application and make a number of other important determinations under subsection 29(2). For example, the Operator must make a determination about which participating institutions are responsible for the abuse and therefore liable for providing redress to the person. The Operator must also make a determination about the amount of the redress payment that is payable to the person, as well as the amount of the counselling and psychological component of redress for the person.
The Operator must give the person written notice of the Operator’s determination on the application. The notice must state whether or not the application has been approved, the reasons for the determination and that the person may apply for review of the determination. The Operator must also give written notice of the determination to the participating institutions that are specified in the determination (such as the responsible institutions).
If the Operator has approved the application, the Operator must also give the person an offer of redress with the notice. (Offers and acceptance of redress are dealt with in Part 2-4.)
To obtain redress under the scheme, a person must make an application to the Operator.
To be valid, the application must:
(a) be in the approved form; and
(b) specify where the person lives; and
(c) include any information, and be accompanied by any documents, required by the Operator; and
(d) verify the information included in the application by statutory declaration.
The Operator is not required to make a determination on an application that is not valid.
A person cannot make an application for redress under the scheme if:
(a) the person has already made an application for redress under the scheme; or
(b) a security notice is in force in relation to the person; or
(c) the person is a child who will not turn 18 before the scheme sunset day; or
(d) the person is in gaol (within the meaning of subsection 23(5) of the Social Security Act 1991); or
(e) the application is being made in the period of 12 months before the scheme sunset day.
Paragraphs (1)(d) and (e) do not apply if the Operator determines there are exceptional circumstances justifying the application being made.
Before making a determination under subsection (2), the Operator must comply with any requirements prescribed by the rules.
If:
(a) a person makes an application for redress under the scheme; and
(b) the person is a child who will turn 18 before the scheme sunset day;
then the Operator must deal with the application in accordance with any requirements prescribed by the rules.
Rules made for the purposes of subsection (1) apply despite subsection 29(1) (which requires the Operator to make a determination on the application as soon as practicable).
A person may withdraw an application for redress at any time before the Operator makes a determination on the application under section 29.
If the person withdraws the application under subsection (1), then for the purposes of this Act it is treated as not having been made.
If:
(a) a person withdraws an application under subsection 22(1); and
(b) before the withdrawal, the Operator had requested a participating institution under section 25 to provide information that may be relevant to the application;
then the Operator must give the institution written notice that the person has withdrawn the application.
The notice must also comply with any requirements prescribed by the rules.
If the Operator has reasonable grounds to believe that a person who has applied for redress has information that may be relevant to determining the application, then the Operator may request the person to give the information to the Operator.
The request for information may be accompanied by information that has been disclosed by an institution in relation to the application.
The request must be made by written notice given to the person.
The notice must specify:
(a) the nature of the information that is requested to be given; and
(b) how the person is to give the information to the Operator; and
(c) the period (the
production period ) within which the person is requested to give the information to the Operator; and(d) that the notice is given under this section.
The production period must be at least:
(a) if the Operator considers the application is urgent—4 weeks; and
(b) otherwise—8 weeks;
beginning on the date of the notice.
The Operator may, by written notice to the person, extend the production period if the Operator considers it appropriate to do so.
An extension under subsection (5) may be given:
(a) on the Operator’s own initiative; or
(b) on a request made by the person under subsection (7).
The person may request the Operator to extend the production period. The request must:
(a) be made before the end of the production period; and
(b) comply with any requirements prescribed by the rules.
If a person has applied for redress and either:
(a) the application identifies a particular participating institution as being involved in the abuse of the person; or
(b) the Operator has reasonable grounds to believe that a participating institution may be responsible for the abuse of the person;
then the Operator must request the institution to give any information that may be relevant to the application to the Operator.
The request for information may be accompanied by information that has been disclosed by the applicant or another institution in relation to the application.
If a person has applied for redress and the Operator has reasonable grounds to believe that a participating institution has information that may be relevant to determining the application, then the Operator may request the institution to give the information to the Operator.
The request for information may be accompanied by information that has been disclosed by the applicant or another institution in relation to the application.
The request under subsection (1) or (2) must be made by written notice given to the institution.
The notice must specify:
(a) the nature of the information that is requested to be given; and
(b) how the institution is to give the information to the Operator; and
(c) the period (the
production period ) within which the institution is requested to give the information to the Operator; and(d) that the notice is given under this section.
The production period must be at least:
(a) if the Operator considers the application is urgent—4 weeks; and
(b) otherwise—8 weeks;
beginning on the date of the notice.
The Operator may, by notice to the institution, extend the production period if the Operator considers it appropriate to do so.
An extension under subsection (6) may be given:
(a) on the Operator’s own initiative; or
(b) on a request made by the institution under subsection (8).
The institution may request the Operator to extend the production period. The request must:
(a) be made before the end of the production period; and
(b) comply with any requirements prescribed by the rules.
If:
(a) under section 24, the Operator requests a person who has made an application for redress to provide further information; and
(b) the information requested is not provided in the production period referred to in that section;
then the Operator is not required to make a determination on the application until the information is provided.
If:
(a) under section 25, the Operator requests a participating institution to provide information in relation to an application for redress; and
(b) the information requested is not provided in the production period referred to in that section;
then the Operator may progress the application and make a determination on it on the basis of the information that has been obtained by, or provided to, the Operator.
Nothing in a law of a State or a Territory prevents a person from giving information that the person is requested to give to the Operator for the purposes of the scheme unless that law is prescribed by the rules.
A person must not give information, produce a document or make a statement to an officer of the scheme if the person knows, or is reckless as to whether, the information, document or statement is false or misleading in a material particular.
This section is a civil penalty provision. Conduct prohibited by this section may also be an offence against the Criminal Code (see sections 136.1, 137.1 and 137.2 of the Code).
Civil penalty: 60 penalty units.
If a person makes an application for redress, the Operator must make a determination to approve, or not approve, the application as soon as practicable.
If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, then the Operator must:
(a) approve the application; and
(b) determine each participating institution that is responsible for the abuse (see section 15) and therefore liable for providing redress to the person under the scheme; and
(c) determine, in accordance with section 30:
(i) the amount of the redress payment for the person; and
(ii) the amount of each responsible institution’s share of the costs of the redress payment; and
(d) determine, in accordance with section 31:
(i) the amount of the counselling and psychological component of redress for the person; and
(ii) the amount of each responsible institution’s share of the costs of that component; and
(e) determine whether the counselling and psychological component of redress for the person consists of:
(i) access to the counselling and psychological services that are provided under the scheme; or
(ii) a counselling and psychological services payment; and
(f) if the counselling and psychological component of redress for the person consists of a counselling and psychological services payment—determine that the amount of the payment equals the amount of the counselling and psychological component of redress for the person; and
(g) for each responsible institution that is a member of a participating group—determine each other participating institution that is an associate of the responsible institution at that time; and
(h) for a participating institution that was identified in the application and is not covered by a determination under paragraph (b)—determine that the participating institution is not responsible for the abuse and therefore not liable for providing redress to the person under the scheme; and
(i) if:
(i) the Operator determines, in accordance with section 15, that a participating government institution is equally responsible with a defunct institution for the abuse; and
(ii) the defunct institution is listed for the participating jurisdiction that the participating government institution belongs to;
determine that the participating government institution is the funder of last resort for the defunct institution in relation to the abuse.
Note 1— If the Operator determines that the participating government institution is the funder of last resort for the defunct institution, then the participating government institution will be liable to pay the defunct institution’s (hypothetical) share of the costs of providing redress to the person (see section 165). Those costs are in addition to the participating government institution’s own share of the costs for providing redress to the person. For the funder of last resort provisions, see Part 6-2.
Note 2— Only defunct institutions that are both non-government institutions and not participating institutions can be listed for a jurisdiction (see subsection 164(1)).
Otherwise, the Operator must make a determination not to approve the application.
The rules may require or permit the Operator to revoke, under this subsection, a determination made under subsection (2) or (3).
However, the Operator cannot revoke a determination made under subsection (2) if:
(a) the person has been given an offer of redress; and
(b) the person has accepted the offer in accordance with section 42.
If the Operator revokes a determination made under subsection (2) or (3), then:
(a) every determination made under subsection (2) or (3) is taken never to have been made; and
(b) if the person has been given an offer of redress but has not accepted or declined the offer—the offer is taken to be withdrawn; and
(c) if the person has made an application for review of the determination—the review application is taken to be withdrawn; and
(d) the Operator may make further requests under section 24 or 25 for information relating to the person’s application.
The Operator must give a written notice to:
(a) the person; and
(b) each participating institution that was notified under section 35 of the determination;
notifying them of the following:
(c) that the determination has been revoked;
(d) that the determination is taken never to have been made;
(e) if an offer of redress has been withdrawn under paragraph (6)(b)—that fact;
(f) if an application for review of the determination has been withdrawn under paragraph (6)(c)—that fact;
(g) any other matter prescribed by the rules.
This section sets out how the Operator must make a determination under paragraph 29(2)(c) about:
(a) the amount of the redress payment for a person; and
(b) the amount of each responsible institution’s share of the costs of the redress payment.
This section only applies if the Operator approves the person’s application for redress.
The Operator must first work out, for each responsible institution, the amount that is the institution’s share of the costs of the redress payment by using the following method statement:
Method statement | |
Step 1. | Apply the assessment framework to work out the maximum amount of redress payment that could be payable to the person. The maximum amount must not be more than $150,000, regardless of the number of responsible institutions. The amount worked out is the |
Step 2. | Work out, in accordance with any requirements prescribed by the rules, the amount that is the responsible institution’s share of the maximum amount. This amount is the |
Step 3. | Work out the amount of any payment (a |
Step 4. | Multiply the original amount by the following: where: The resulting amount is the The adjustment under this step is broadly to account for inflation. |
Step 5. | Add together the adjusted amount of each relevant prior payment of the institution. If the resulting amount is not a whole number of cents, round the amount up to the next whole number of cents. This amount is the |
Step 6. | The amount of the institution’s share of the costs of the redress payment is the gross liability amount for the institution (in step 2) less the reduction amount for the institution (in step 5). The amount may be nil but not less than nil. |
The Operator must then work out the amount of redress payment for the person by adding together the amounts of each responsible institution’s share of the costs of the redress payment. The amount may be nil, but it must not exceed the maximum amount of the redress payment.
The amount may be nil because the total amount of relevant prior payments that were paid to the person by the responsible institutions exceeds the maximum amount of the redress payment that could be payable to the person. However, even though the person may not be paid any redress payment in that case, the person will still be entitled to the other components of redress under the scheme (i.e. the counselling and psychological component and a direct personal response).
For funder of last resort cases, subsection 165(2) affects how the amount of the redress payment and the share of the costs of the payment are worked out.
This section sets out how the Operator must make a determination under paragraph 29(2)(d) about:
(a) the amount of the counselling and psychological component of redress for a person; and
(b) the amount of each responsible institution’s share of the costs of that component.
This section only applies if the Operator approves the person’s application for redress.
The Operator must apply the assessment framework to work out the amount of the component. The amount must not be more than $5,000, regardless of the number of responsible institutions.
The Operator must work out, in accordance with the rules, the amount that is each responsible institution’s share of the costs of the component.
For funder of last resort cases, subsection 165(3) affects how the amount of the counselling and psychological component and the share of the costs of the component is worked out.
The Minister may declare, in writing, a method, or matters to take into account, for the purposes of working out:
(a) the amount of redress payment for a person; and
(b) the amount of the counselling and psychological component of redress for a person.
For variation or revocation of the declaration, see subsection 33(3) of the Acts Interpretation Act 1901.
The declaration is the
The declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to it.
The Operator may take into account the assessment framework policy guidelines when applying the assessment framework for the purposes of sections 30 and 31.
The Minister may, in writing, make guidelines for the purposes of applying the assessment framework.
The guidelines are the
The guidelines are not a legislative instrument.
If the Operator makes a determination under section 29 on an application for redress for a person, the Operator must give the person written notice of the determination stating:
(a) whether or not the application has been approved; and
(b) the reasons for the determination; and
(c) that the person may apply under section 73 for review of the determination.
If the application has been approved, the notice must include the offer of redress to the person under section 39.
The notice must also:
(a) specify the day by which the person may apply for review of the determination (which must be at least 28 days, but no longer than 6 months, after the date of the notice) under section 73; and
(b) comply with any matters prescribed by the rules.
If:
(a) the Operator makes a determination under section 29 in relation to a person; and
(b) a participating institution is specified in the determination;
then the Operator must give the institution written notice of the determination in accordance with subsection (2).
The notice must state:
(a) whether or not the application has been approved; and
(b) if Operator determined under paragraph 29(2)(b) that the institution is responsible for the abuse and therefore liable for providing redress to the person under the scheme:
(i) that fact; and
(ii) the amount of the redress payment for the person; and
(iii) the amount of the institution’s share of the costs of that payment; and
(iv) the amount of the counselling and psychological component of redress for the person; and
(v) the amount of the institution’s share of the costs of that component; and
(c) if the Operator determined under paragraph 29(2)(g) that the institution is an associate of a responsible institution—that fact; and
(d) if the Operator determined under paragraph 29(2)(h) that the institution is not responsible for the abuse and therefore not liable for providing redress to the person under the scheme—that fact; and
(e) if the Operator determined under paragraph 29(2)(i) that the institution is the funder of last resort for a defunct institution—that fact; and
(f) the reasons for the determination, as they relate to the institution; and
(g) the day by which the person may apply under section 73 for review of the determination.
The notice must also comply with any requirements prescribed by the rules.
A determination by the Operator under section 29 has effect only for the purposes of the scheme.
In particular, a determination under section 29 that an institution:
(a) is, or is not, responsible for the abuse of a person; or
(b) is, or is not, liable to provide redress to a person;
is not a finding of law or fact made by a court in civil or criminal proceedings.
The determination is an administrative decision that is made by the Operator on the basis of whether the Operator considers there to be a reasonable likelihood that the person is eligible for redress. It is not a judicial decision made by a court in civil or criminal proceedings on the basis of a higher standard of proof.
However, a determination under section 29 that an institution is responsible for abuse of a person and therefore liable to provide redress may result in the imposition of a civil liability on the institution to make payments under the scheme in relation to that redress.
The following documents are not admissible in evidence in civil proceedings in a court or tribunal:
(a) a person’s application for redress;
(b) a document created solely for the purposes of accompanying a person’s application for redress;
(c) a document created solely for the purposes of complying with a request for information made by the Operator under section 24 or 25 in relation to a person’s application for redress.
Subsection (1) does not apply if the admission of the document in evidence in civil proceedings is for the purposes of giving effect to this Act.
For the purposes of subsection (2) (and without limiting that subsection), if the admission of the document in evidence is in civil proceedings for judicial review of a decision made under this Act, then the admission is for the purposes of giving effect to this Act.
Subsection (1) does not apply if the admission of the document in evidence is in civil proceedings under, or arising out of, section 28 (which is about providing false or misleading documents or information to an officer of the scheme).
If the Operator approves a person’s application for redress, the Operator must give the person a written offer of redress. The offer must include the information set out in section 39. The person may accept or decline the offer.
If the person wishes to accept the offer, he or she must do so by giving the Operator, within the acceptance period, an acceptance document that complies with section 42. If the person accepts the offer, then the person will be provided with redress under the scheme. The person also releases all the participating institutions determined by the Operator to be responsible for the abuse (as well as the officials of those institutions, the associates of those institutions and the officials of the associates of those institutions) from all civil liability for the abuse of the person. However, the abuser is not released from liability for the abuse.
If the person accepts the offer, the Operator must notify the participating institutions determined by the Operator to be responsible for the abuse of the person’s acceptance of the offer (including the components of redress that the person wishes to receive).
If the person declines the offer (either by formally declining, or by doing nothing, in the acceptance period), the person is not required to release any institution or official from civil liability for the abuse of the person, but the person will not be provided with redress under the scheme.
If the Operator approves a person’s application for redress, the Operator must give the person a written offer of redress that:
(a) explains the 3 components of redress (i.e. redress payment, access to the counselling and psychological component of redress for the person, and direct personal response); and
(b) specifies the amount of the redress payment; and
(c) specifies whether the counselling and psychological component of redress for the person consists of:
(i) access to the counselling and psychological services that are provided under the scheme; or
(ii) the counselling and psychological services payment; and
(d) if the counselling and psychological component of redress for the person consists of the counselling and psychological services payment—specifies the amount of that payment; and
(e) specifies the participating institutions determined by the Operator under paragraph 29(2)(b) to be responsible for the abuse and therefore liable for providing redress to the person under the scheme; and
(f) if any of those responsible institutions is a defunct institution that has a representative:
(i) specifies the person who is the representative; and
(ii) explains that the representative is liable for providing redress to the person under the scheme; and
(g) if any of those responsible institutions is a member of a participating group—specifies the participating institutions determined by the Operator under paragraph 29(2)(g) to be associates of any of those responsible institutions; and
(h) specifies the participating institutions that were identified in the person’s application but determined by the Operator under paragraph 29(2)(h) not to be responsible for the person’s abuse and therefore not liable for providing redress to the person under the scheme; and
(i) if any of those responsible institutions is a participating government institution that is determined by the Operator under paragraph 29(2)(i) to be the funder of last resort for a defunct institution:
(i) specifies the defunct institution; and
(ii) explains that the government institution is liable for the defunct institution’s (hypothetical) share of the costs of providing redress to the person; and
(iii) explains that a direct personal response is not available to the person in relation to the abuse for which the defunct institution is responsible; and
(j) states the date of the offer; and
(k) specifies the acceptance period for the offer (see section 40); and
(l) gives information about the opportunity for the person to access legal services under the scheme for the purposes of obtaining legal advice about whether to accept the offer; and
(m) gives information about other services available to the person under the scheme to help the person to decide whether to accept the offer; and
(n) explains how to accept or decline the offer, should the person decide to do so; and
(o) informs the person that the offer expires at the end of the acceptance period; and
(p) explains the effect of section 43 (which is about the release from civil liability of the responsible institutions, their officials, their associates and the officials of their associates) should the person accept the offer; and
(q) informs the person that the person does not have to accept the offer and that, by doing nothing, the offer is taken to be declined at the end of the acceptance period; and
(r) informs the person that the person will not be able to make another application for redress under the scheme, whether or not the offer is accepted; and
(s) informs the person that the person may request an extension of the acceptance period and explains how to make that request; and
(t) complies with any requirements prescribed by the rules.
The
Before the end of the acceptance period, the Operator may, by written notice to the person, extend the acceptance period if the Operator considers there are exceptional circumstances that justify the extension.
An extension under subsection (2) may be given:
(a) on the Operator’s own initiative; or
(b) on a request made by the person under subsection (4).
The person may request the Operator to extend the acceptance period. The request must comply with any requirements prescribed by the rules.
If the Operator extends the period, the
If:
(a) the Operator gives an offer of redress under section 39; and
(b) a participating institution or person referred to in paragraph 39(e), (f) or (g) is specified in the offer;
then the Operator must give the institution or person written notice of the offer.
The notice must:
(a) state the acceptance period for the offer; and
(b) comply with any requirements prescribed by the rules.
A person may accept an offer of redress by complying with this section.
The person must give the Operator a document (the
(a) is in the approved form; and
(b) states that the person accepts the offer; and
(c) states that the person releases and forever discharges each of the following institutions and officials (a
released institution or official ) from all civil liability for abuse of the person that is within the scope of the scheme:(i) all participating institutions that are determined by the Operator under paragraph 29(2)(b) to be responsible for the abuse of the person;
(ii) all participating institutions that are determined by the Operator under paragraph 29(2)(g) to be associates of those responsible institutions;
(iii) all officials of those responsible institutions and associates (other than an official who is an abuser of the person); and
(d) states that the person forgoes any entitlement to be paid damages by a released institution or official if the released institution or official were joined as a party to civil proceedings brought or continued by the person against another party in relation to abuse of the person that is within the scope of the scheme; and
(e) states that the person will not, whether as an individual, a representative party or a member of a group, bring or continue any civil claim against a released institution or official in relation to abuse of the person that is within the scope of the scheme; and
(f) states the components of redress that the person wishes to receive; and
(g) if the person wishes to receive a direct personal response—specifies the participating institutions that the person wishes to receive a direct personal response from; and
(h) acknowledges that the person understands the effect of accepting the offer; and
(i) is signed by the person; and
(j) complies with any requirements prescribed by the rules.
The person must give the Operator the acceptance document:
(a) before the end of the acceptance period; and
(b) in the manner (if any) prescribed by the rules.
Rules made for the purposes of paragraph (2)(j) must not require the person to enter into a confidentiality agreement.
If a person accepts an offer of redress in accordance with section 42, then, at the time the person gives the acceptance and by force of this section:
(a) the person releases and forever discharges every released institution or official from civil liability for abuse of the person that is within the scope of the scheme; and
(b) the person cannot (whether as an individual, a representative party or a member of a group) bring or continue civil proceedings against a released institution or official in relation to that abuse; and
(c) the release and discharge of civil liability of a released institution or official for that abuse does not:
(i) release or discharge another institution or person from civil liability for that abuse; and
(ii) prevent the person (whether as an individual, a representative party or a member of a group) from bringing or continuing civil proceedings against another institution or person in relation to that abuse; and
(d) if a released institution or official would, apart from this section, be liable to make a contribution to another institution or person in relation to damages payable to the person in civil proceedings brought or continued by the person (whether as an individual, a representative party or a member of a group) against the other institution or person in relation to that abuse, then:
(i) the released institution or official is released and forever discharged from liability to make that contribution; and
(ii) the amount of damages payable to the person in those proceedings is reduced by the amount of that contribution.
If a person accepts an offer of redress in accordance with section 42, then the Operator must give each institution that was notified under section 41 about the offer written notice of:
(a) the person’s acceptance of the offer; and
(b) the components of redress that the person wishes to receive (including whether the person wishes to receive a direct personal response from the institution); and
(c) any matters prescribed by the rules.
The notice must be accompanied by a copy of the person’s acceptance document.
A person may decline an offer of redress by giving the Operator, before the end of the acceptance period, a document that:
(a) is in the approved form; and
(b) states that the person declines the offer; and
(c) acknowledges that the person understands the effect of declining the offer (including that the person will not be able to make another application for redress under the scheme); and
(d) is signed by the person; and
(e) complies with any requirements prescribed by the rules.
A person is taken to have declined an offer of redress if the person does not accept the offer in accordance with section 42 before the end of the acceptance period.
Subsection (2) does not apply if:
(a) the person has applied for review under section 73 of the Operator’s determination on the person’s application for redress; and
(b) the review has not been completed at the end of the acceptance period.
If a person declines an offer of redress in accordance with section 45, then the Operator must give each institution that was notified under section 41 of the offer written notice that the person has declined the offer.
The notice must comply with any requirements prescribed by the rules.
If a person accepts an offer of redress under the scheme, then:
(a) the Operator must pay the redress payment to the person; and
(b) the Operator must provide the person with the counselling and psychological component of redress which, depending on where the person lives, consists of access to counselling and psychological services or a counselling and psychological services payment; and
(c) the responsible institutions for the abuse must take reasonable steps to provide the person with a direct personal response.
However, this does not apply if the person stated in the acceptance document that he or she does not wish to receive a particular component of redress (e.g. the person stated that he or she does not wish to receive a direct personal response from a particular participating institution).
If:
(a) a person is entitled to redress under the scheme (see section 12); and
(b) the person stated in the acceptance document that the person wishes to be paid the redress payment;
then the Operator must pay the redress payment to the person as soon as practicable.
The rules may prescribe matters relating to the payment of redress payments.
A redress payment is a payment of compensation under the scheme. However, for the purposes of:
(a) the Social Security Act 1991 and the Veterans’ Entitlements Act 1986; and
(b) any other legislation of the Commonwealth, a State or a Territory;
the payment is not to be treated as being a payment of compensation or damages.
This subsection prevents a redress payment affecting other payments that may be payable to the person under legislation. For example, when determining whether a social security payment is payable, or the amount of such a payment, a redress payment is not to be taken into account.
For the purposes of the application of any law of the Commonwealth, a State or a Territory in relation to a redress payment:
(a) the payment and the entitlement to the payment are absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise; and
(b) no amount may be deducted from the payment.
Nothing in this Act prevents a liability insurance contract from treating a redress payment as being a payment of compensation or damages.
If:
(a) a redress payment is being paid, or has been paid, to the credit of an account; and
(b) a court order in the nature of a garnishee order comes into force in relation to the account;
the court order does not apply to the saved amount (if any) in the account.
The
Method statement | |
Step 1. | Work out the amount of the redress payment that has been paid to the credit of the account in the year immediately before the court order came into force. |
Step 2. | Subtract from the amount of that payment the total amount withdrawn from the account during that year: the result is the |
This section applies if:
(a) a person is entitled to redress under the scheme (see section 12); and
(b) the person stated in the acceptance document under section 42 that the person wishes to access the counselling and psychological component of redress.
If the place where the person lives (as stated in the person’s application) is in a participating jurisdiction that is a declared provider of counselling and psychological services under the scheme, then:
(a) the Operator must, as soon as practicable after the person becomes entitled to redress, refer the person to the participating jurisdiction; and
(b) the participating jurisdiction must, as soon as practicable after receiving the referral, provide for the delivery of counselling and psychological services under the scheme in accordance with the National Service Standards.
If subsection (2) does not apply, then the Operator must, as soon as practicable, pay the counselling and psychological services payment to the person.
The rules may prescribe matters relating to the payment of counselling and psychological services payments.
A counselling and psychological services payment is a payment of compensation under the scheme. However, for the purposes of:
(a) the Social Security Act 1991 and the Veterans’ Entitlements Act 1986; and
(b) any other legislation of the Commonwealth, a State or a Territory;
the payment is not to be treated as being a payment of compensation or damages.
This subsection prevents a counselling and psychological services payment affecting other payments that may be payable to the person under legislation. For example, when determining whether a social security payment is payable, or the amount of such a payment, a counselling and psychological services payment is not to be taken into account.
For the purposes of the application of any law of the Commonwealth, a State or a Territory in relation to a counselling and psychological services payment:
(a) the payment and the entitlement to the payment are absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise; and
A participating government institution is the
The Operator can only make that determination if the participating government institution and the defunct institution are equally responsible for the abuse and the defunct institution is listed for the jurisdiction that the government institution belongs to.
A defunct institution is
(a) the defunct institution:
(i) is a non-government institution; and
(ii) is not a participating institution; and
(b) a declaration that the defunct institution is listed for the jurisdiction is in force under subsection (2).
The Minister may, by notifiable instrument, declare that a defunct institution is listed for one or more participating jurisdictions.
A defunct institution may be identified by name, by inclusion in a particular class, or in any other way.
The Minister must not make a declaration under subsection (2) listing a defunct institution for the Commonwealth or a participating Territory unless the Minister is satisfied that the relevant jurisdiction has agreed, in the way (if any) prescribed by the rules, to the institution being listed for the jurisdiction.
The Minister must not make a declaration under subsection (2) listing a defunct institution for a participating State unless the Minister is satisfied that the State has agreed, in a way provided for in the State’s referral Act or adoption Act, to the institution being listed for the State.
The Minister may, by notifiable instrument, vary or revoke a declaration made under subsection (2).
If:
(a) a declaration is made under subsection (2) that a defunct institution is listed for the Commonwealth or a participating Territory; and
(b) the jurisdiction withdraws its agreement, in the way (if any) prescribed by the rules, to the defunct institution being listed for the jurisdiction;
then, as soon as is practicable, the Minister must, by notifiable instrument, vary or revoke the declaration so that the defunct institution is no longer listed for the jurisdiction.
If:
(a) a declaration is made under subsection (2) that a defunct institution is listed for a participating State; and
(b) the State withdraws its agreement, in a way provided for in the State’s referral Act or adoption Act, to the defunct institution being listed for the State;
then, as soon as is practicable, the Minister must, by notifiable instrument, vary or revoke the declaration so that the defunct institution is no longer listed for the State.
If the Operator determines under paragraph 29(2)(i) that:
(a) a participating government institution is equally responsible with a defunct institution for abuse of a person; and
(b) the government institution is the funder of last resort for the defunct institution in relation to the abuse;
then the government institution is liable, in accordance with this section, for what the defunct institution would have been liable to pay in relation to providing redress to the person, had the defunct institution been a participating institution.
When determining under paragraph 29(2)(c) the amount of the redress payment for the person and the amount of the government institution’s share of the costs of that payment, the Operator must:
(a) apply subsection 30(2) as if the defunct institution were also a responsible institution in relation to the abuse; and
(b) add the amount worked out under subsection 30(2) (as applying because of paragraph (a) of this subsection) as the amount of the defunct institution’s share of the costs of the redress payment to what, apart from this section, would have been the government institution’s share of the costs of the redress payment.
When determining under paragraph 29(2)(d) the amount of the government institution’s share of the costs of the counselling and psychological component of redress for the person, the Operator must:
(a) determine, in accordance with section 31, the amount of the defunct institution’s share of those costs as if the defunct institution were also a responsible institution; and
(b) add that amount to what, apart from this section, would have been the amount of the government institution’s share of those costs.
When determining under subsection 152(2) the government institution’s contribution to the costs of the administration of the scheme for a quarter, the Operator must:
(a) determine the amount of the defunct institution’s contribution to those costs as if the defunct institution were a participating institution; and
(b) add that amount to what, apart from this section, would have been the amount of the government institution’s contribution to those costs.
Certain amounts paid under the scheme may become a debt due to the Commonwealth. For example, if a redress payment is paid to the wrong person, that payment is a debt due to the Commonwealth and may be recovered under this Part.
This Part also allows for funding contribution or late payment penalty that is payable by an institution or a person to be recoverable as a debt due to the Commonwealth.
If an amount has been paid to a person or an institution (the
If the amount paid to the recipient was not payable because:
(a) the amount was paid to the wrong person or institution; or
(b) the amount exceeds the amount payable to the recipient;
then the amount paid, or the excess, is a debt due to the Commonwealth by the recipient.
If the amount paid to the recipient was paid wholly or partly because of a false or misleading statement, or a misrepresentation, by the recipient or another person, then an amount equal to so much of the amount paid as is attributable to the false or misleading statement, or the misrepresentation, is a debt due to the Commonwealth by the recipient.
If:
(a) the recipient was required under section 181 to notify the Operator about a matter; and
(b) the recipient did not comply with the requirement; and
(c) had the Operator been notified as required, the amount that was paid to the recipient would not have been payable;
then an amount equal to so much of the amount paid as is attributable to the failure to comply with the requirement is a debt due to the Commonwealth by the recipient.
A debt due by the recipient under this section in relation to an amount arises at the time the amount was paid to the recipient.
The following amounts may be recovered by the Commonwealth from an institution or a person as debts due to the Commonwealth:
(a) funding contribution that is due and payable by the institution or person;
(b) late payment penalty that is due and payable by the institution or person.
For cases where a person may be liable to pay funding contribution, see sections 123, 131 and 141.
A debt due to the Commonwealth under this Part is recoverable by the Commonwealth in a court of competent jurisdiction.
The Operator may enter into an arrangement with a person or an institution under which the person or institution is to pay a debt, owed by the person or institution to the Commonwealth under this Part, or the outstanding amount of such a debt, in a way set out in the arrangement.
An arrangement entered into under subsection (1) has effect, or is taken to have had effect, on and after the day specified in the arrangement as the day the arrangement commences (whether that day is the day the arrangement is entered into or an earlier or later day).
If an arrangement entered into under subsection (1) does not specify a day as mentioned in subsection (2), it has effect on and after the day on which it is entered into.
The Operator may terminate or alter an arrangement entered into under subsection (1):
(a) at the request of the person or institution; or
(b) after giving 28 days’ notice to the person or institution of the proposed termination or alteration; or
(c) without notice, if the Operator is satisfied that the person or institution has failed to disclose material information about the person’s or institution’s true capacity to repay the debt.
This section applies if:
(a) an amount is paid under this Act to a financial institution for the credit of an account kept with the financial institution; and
(b) the Operator is satisfied that the payment was intended to be made to someone who was not the person or one of the persons in whose name or names the account was kept.
The Operator may give a written notice to the financial institution setting out the relevant matters referred to in paragraphs (1)(a) and (b) and requiring the financial institution to pay to the Commonwealth, within a reasonable period stated in the notice, the lesser of the following amounts:
(a) the amount of the payment, as stated in the notice;
(b) the amount standing to the credit of the account when the notice is given to the financial institution.
A financial institution must comply with a notice given to it under subsection (2).
Penalty: 300 penalty units.
It is a defence to a prosecution of a financial institution for failing to comply with a notice given to it under subsection (2) if the financial institution proves that it was incapable of complying with the notice.
A defendant bears a legal burden in relation to the matter in this subsection (see section 13.4 of the Criminal Code).
Any amount recovered by the Commonwealth from a financial institution under this section reduces the amount of a debt referred to in subsection 167(1) (as it relates to paragraph 167(2)(a)).
If:
(a) the Commonwealth recovers an amount under this Part (other than paragraph 167(2)(a)); and
(b) all or part of the amount relates to either or both of the following payments:
(i) a redress payment;
(ii) a counselling and psychological services payment; and
(c) a participating institution has paid funding contribution in relation to that payment;
then the Commonwealth must repay the institution so much of that funding contribution as the Operator considers relates to the amount recovered.
For the appropriation for the refund, see section 77 of the Public Governance, Performance and Accountability Act 2013.
This Act can only give an entitlement to redress if the Commonwealth has legislative power to provide that redress. This Part sets out the constitutional basis for providing redress and also deals with other aspects of the application of this Act.
The main constitutional basis for redress is based on the place where the abuse occurred, which broadly is as follows:
• If the abuse occurred inside a State that has given a reference to the Commonwealth or made an adoption for the purposes of paragraph 51(xxxvii) of the Constitution (i.e. a participating State), then the reference or adoption by the State provides the constitutional basis for the redress.
• If the abuse occurred inside a Territory (such as the Australian Capital Territory, the Northern Territory or an external Territory), then section 122 of the Constitution provides the constitutional basis for the redress.
• If the abuse occurred outside Australia, then paragraph 51(xxix) of the Constitution provides the constitutional basis for the redress.
This section sets out the constitutional basis of this Act.
The application of this Act in relation to sexual abuse, and any related non-sexual abuse, of a person that occurred inside a participating State is based on:
(a) the legislative powers that the Commonwealth Parliament has under the Constitution (other than paragraph 51(xxxvii)); and
(b) the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the participating States for the purposes of paragraph 51(xxxvii) of the Constitution.
The application of this Act in relation to sexual abuse, and any related non-sexual abuse, of a person that occurred inside a non-participating State is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
The application of this Act in relation to sexual abuse, and any related non-sexual abuse, of a person that occurred inside a Territory is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
Despite section 2H of the Acts Interpretation Act 1901, this Act as applying in the Territory is a law of the Commonwealth.
The application of this Act in relation to sexual abuse, and any related non-sexual abuse, of a person that occurred outside Australia is based on:
(a) the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and
(b) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and
(c) the other legislative powers that the Commonwealth Parliament has under the Constitution.
This Act does not exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.
Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory merely because that law provides for redress (however described) to be provided to a person for abuse suffered by the person.
This Act applies both within and outside Australia.
This Act extends to every external Territory.
This Act binds the Crown in each of its capacities.
The Minister may make rules for the purposes of the scheme. They are subordinate legislation and may deal with matters that this Act requires or permits the rules to deal with, or that are necessary or convenient for giving effect to this Act.
The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Act to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
The rules may provide for the following:
(a) matters relating to an institution ceasing to be a participating institution;
(b) matters relating to a participating group ceasing to be a participating group;
(c) matters relating to a participating State ceasing to be a participating State;
(d) matters relating to a person becoming, being or ceasing to be a representative for a defunct institution, a lone institution or a participating group;
(e) overriding, for the purposes of the scheme, any provisions of settlement agreements or deeds that:
(i) relate to confidentiality; or
(ii) would inhibit access to, or the operation of, the scheme.
Despite section 14 of the Legislation Act 2003, the rules may apply, adopt or incorporate any matter contained in the assessment framework as in force or existing from time to time.
The provisions of this Act that provide for the rules to deal with matters do not limit each other.
To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
A person who applies for redress under the scheme may be required or permitted to notify the Operator of certain matters (e.g. that the person is sentenced to imprisonment for 5 years or longer for an offence). An institution may also be required or permitted to notify the Operator about a matter (see section 181).
The Minister and the Operator may delegate their powers and functions to certain officers of the scheme. However, the Minister cannot delegate his or her powers and functions to make the rules, and the Operator can only delegate his or her powers and functions under sections 29 and 75 (which are about determinations relating to redress applications) to an independent decision-maker.
The Operator may engage a person to be an independent decision-maker to make determinations relating to redress applications.
The Operator must prepare and give an annual report on the operation of the scheme and must include particular information in that report.
The Minister must cause 2 reviews of the scheme to be conducted—one starting on the second anniversary of the scheme start day and the other starting on the eighth anniversary of that day. The rules can prescribe a later date to start those reviews.
The scheme ceases on the scheme sunset day (which ordinarily will be the tenth anniversary of the scheme start day).
This Part also deals with other miscellaneous matters (such as approved forms).
If:
(a) a person makes an application for redress under the scheme; and
(b) after making the application, the person is sentenced to imprisonment for 5 years or longer for an offence against a law of the Commonwealth, a State, a Territory or a foreign country;
then the person must notify the Operator of that fact in accordance with any requirements prescribed by the rules.
The rules may prescribe:
(a) circumstances for when a person or a participating institution must or may notify the Operator of a matter; and
(b) requirements relating to the giving of the notice.
The rules may require or permit the Operator to give a notice to a person or an institution about a matter relating to the operation of this Act.
If this Act requires or permits the Operator to give a notice to a person or institution, the Operator may give the notice in any way that the Operator considers appropriate.
The Minister may, in writing, delegate all or any of the Minister’s powers or functions under this Act (other than section 179 or 185) to:
(a) the Operator; or
(b) a person who holds or performs the duties of an SES Band 3 position, or an equivalent position, in the Department.
In exercising a power or performing a function under a delegation under subsection (1), the delegate must comply with any directions of the Minister.
The Operator may, in writing, delegate all or any of the Operator’s powers or functions under this Act (other than sections 29, 75 and 190) to an officer of the scheme.
In exercising a power or performing a function under a delegation under subsection (1), the delegate must comply with any directions of the Operator.
The Operator may, in writing, delegate the Operator’s powers and functions under section 29 or 75 (which are about determinations relating to redress applications) to an independent decision-maker.
In exercising a power or performing a function under a delegation under subsection (3), the delegate is not required to comply with any directions of the Operator.
The Operator may, on behalf of the Commonwealth and with the approval of the Minister, engage a person, under written agreement, to assist in the performance of the functions of the Operator in relation to the making of determinations under section 29 or 75 on applications for redress.
Before giving an approval under subsection (1), the Minister must consult the appropriate Ministers from the participating States and participating Territories in accordance with the National Redress Scheme Agreement.
A person engaged under subsection (1) is an
Subdivision A of Division 3 of Part 2-2 of the Public Governance, Performance and Accountability Act 2013 (which deals with general duties of officials), and any rules made under that Act for the purposes of that Subdivision, apply to an independent decision-maker in the same way as they apply to an official (within the meaning of that Act).
The duties of officials under the Public Governance, Performance and Accountability Act 2013 include: the duty of care and diligence; the duty to act honestly, in good faith and for a proper purpose; the duties relating to the use of information and position; and the duty to disclose interests.
A reference in this Act to the Commonwealth, a participating Territory, an institution or a person agreeing to a matter is a reference to the body or person giving agreement in the way (if any) prescribed by the rules.
For example, paragraph 115(3)(c) provides that the Minister must not make a declaration that a non-government institution is a participating institution unless the institution has agreed to participate in the scheme. Under this section, the way the institution gives its agreement must be the way prescribed by the rules (if the rules prescribe a way).
As soon as practicable after the end of each financial year, the Operator must prepare and give an annual report to the Minister, for presentation to the Parliament, on the operation of the scheme during the year.
Without limiting subsection (1), the annual report must:
(a) include information about any matter prescribed by the rules; and
(b) comply with any requirements prescribed by the rules.
The Operator may, in writing, approve one or more forms for the purposes of a provision of this Act that provides for something to be done in an approved form.
A determination by the Operator under this Act must be in writing.
A determination by the Operator under this Act is not a legislative instrument.
Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
For the purposes of Part 4 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the civil penalty provisions of this Act:
(a) the Operator;
(b) an SES employee, or an acting SES employee, in the Department or the Human Services Department.
For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia.
Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to every external Territory.
Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, does not make the Crown in right of the Commonwealth, a State or a Territory liable to a pecuniary penalty.
If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Supreme Court of a State or participating Territory;
for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
The Minister must cause a review of the operation of the scheme to be commenced as soon as possible after:
(a) the second anniversary of the scheme start day; or
(b) if, before the second anniversary, the rules prescribe a day that is after the second anniversary—that day.
The second anniversary review must consider the following matters:
(a) the extent to which the States, participating Territories and non-government institutions have opted into the scheme, including key facilitators and barriers to opting in;
(b) the extent to which survivors who are eligible for redress under the scheme have applied for redress;
(c) the extent to which redress has been provided to survivors who are entitled to redress under the scheme;
(d) the application, assessment and decision-making process, including user experiences of the process;
(e) redress payments;
(f) access to counselling and psychological services under the scheme;
(g) the extent to which survivors access direct personal responses under the scheme, including factors influencing the uptake and experiences with the direct personal response process;
(h) the availability of, and access to, support services under the scheme;
(i) the implications of the scheme’s design for survivors (including Indigenous and child migrant survivors, as well as survivors who are still children or who have a criminal conviction);
(j) the operation of the scheme’s funding arrangements (including a review of the scheme administration element of funding contribution);
(k) the operation of the funder of last resort provisions;
(l) the extent to which the scheme has been implemented as proposed in the National Redress Scheme Agreement;
(m) the views of key stakeholders on the scheme (including representatives from survivor groups, non-government institutions, advocacy groups, support services provider groups, the Independent Advisory Council, the Commonwealth, the States and the Territories);
(n) the impact and effectiveness of section 37 (which is about the admissibility of certain documents in evidence in civil proceedings);
(o) the question of whether an institution (the
first institution ) should be responsible for abuse that occurs in connection with another institution merely because the first institution regulates or funds the other institution or the other institution’s activities;(p) the administration of this Act and the scheme;
(q) any other matter relevant to the operation of this Act or the scheme.
The Minister must cause a review of the operation of the scheme to be commenced as soon as possible after:
(a) the eighth anniversary of the scheme start day; or
(b) if, before the eighth anniversary, the rules prescribe a day that is after the eighth anniversary—that day.
The eighth anniversary review must consider the following matters:
(a) the matters referred to in subsection (2);
(b) the results of any other review or evaluation conducted in relation to the operation of the scheme.
Subject to this section, this Act ceases to have effect at the end of the day (the
(a) the tenth anniversary of the scheme start day; or
(b) if, before the tenth anniversary, the rules prescribe a day that is after the tenth anniversary—that day.
The fact that the Act ceases to have effect does not affect the operation of section 43 in releasing and discharging an institution or official from civil liability (see section 7 of the Acts Interpretation Act 1901).
Despite subsection (1), at any time before the first anniversary of the scheme sunset day, rules may be made under section 179 for the purposes of subsections (3) and (4) of this section.
The rules may prescribe matters of a transitional nature (including prescribing any saving or application provisions) relating to this Act ceasing to have effect under subsection (1).
Without limiting subsection (3), the rules may provide that certain provisions of this Act:
(a) continue to apply after the scheme sunset day for the purposes set out in the rules; or
(b) continue to apply after the scheme sunset day in a modified way for the purposes set out in the rules.
Those provisions continue to apply, or continue to apply in the modified way, as set out in the rules.
Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to rules made for the purposes of this section.
All legislative instruments (including the rules) made under this Act are repealed immediately before the first anniversary of the scheme sunset day.
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