New South Wales: National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 (NSW)

National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018 No 17 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. Part 1 Preliminary 1 Name and purpose of Act (1) This Act is the National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Act 2018. (2) The main purpose of this Act is to refer certain matters relating to the National Redress Scheme for Institutional Child Sexual Abuse to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth. 2 Commencement This Act commences on the date of assent to this Act. 3 Definitions In this Act, unless the contrary intention appears: amendment reference means the reference under section 4 (2). express amendment of the National Redress Act means the direct amendment of the text of that Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the National Redress Act. initial referred provisions means the scheduled text, to the extent to which that text deals with matters that are included in the legislative powers of the Parliament of the State. National Redress Act means a Commonwealth Act enacted in the terms, or substantially in the terms, of the scheduled text and as in force from time to time. National Redress Scheme means the National Redress Scheme for Institutional Child Sexual Abuse as established by the National Redress Act and as in force from time to time. participating State institution means a participating State institution within the meaning of the National Redress Act. scheduled text means the text of the proposed Bill for a Commonwealth Act, as set out in Schedule 1 to this Act. State institution means a State institution within the meaning of the National Redress Act. text reference means the reference under section 4 (1). Part 2 Reference of matters to Commonwealth Parliament 4 Reference of matters (1) Text reference. Matters to which the initial referred provisions relate are referred to the Parliament of the Commonwealth, but only to the extent of making laws with respect to those matters by including the initial referred provisions in a Commonwealth Act enacted in the terms, or substantially in the terms, set out in the scheduled text. (2) Amendment reference. Matters relating to a redress scheme for institutional child sexual abuse are, except as provided by sections 5 and 6, referred to the Parliament of the Commonwealth, but only to the extent of making laws with respect to those matters by making express amendments of the National Redress Act. (3) The operation of each of subsections (1) and (2) is not affected by the other subsection. (4) The reference of a matter under subsection (1) or (2) has effect only: (a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth), and (b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State. (5) To avoid doubt, it is the intention of the Parliament of the State that the National Redress Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of subsection (1): (a) by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsections (1) and (2), and (b) by provisions of instruments made or issued under the National Redress Act or under provisions referred to in paragraph (a). (6) Despite any other provision of this Act other than section 8 (2), a reference under subsection (1) or (2) has effect for a period: (a) beginning when the subsection under which the reference is made comes into operation, and (b) ending at the beginning of the day fixed under this Part as the day on which the reference is to terminate, but no longer. 5 State redress mechanisms (1) A State redress mechanism is: (a) a scheme, program or arrangement (temporary or otherwise) established (before or after the commencement of this Act) by: (i) the Parliament or government of the State, or (ii) an institution (whether governmental or non-governmental) or other entity, for or in respect of persons who have suffered institutional child sexual abuse in the State (whether applying only to any such persons or applying to any class of victims of crime) and any associated matters, or (b) the jurisdiction of a court or tribunal to grant compensation or support for or in respect of victims of crime (including crime relating to institutional child sexual abuse) and any associated matters. (2) A matter referred by section 4 (2) does not include the matter of making a law to the extent that that law would operate to prevent or limit the power to establish, or to prevent or limit the operation of, any State redress mechanism, whether or not the mechanism deals with the same or similar subject-matters as those dealt with in any aspect of the National Redress Scheme. (3) Subsection (2) does not cover any of the following matters (if they would otherwise be covered by section 4 (2)): (a) any matter to which the initial referred provisions relate, (b) the matter of the release or discharge, in connection with the operation of the National Redress Scheme, of relevant civil liability of institutions or officials, (c) the matter of the disclosure or use of evidence or other information provided or obtained in connection with the operation of the National Redress Scheme, (d) the matter of the making, enforcement or protection (for example, protection against the operation of orders in the nature of garnishee orders) of payments in connection with the operation of the National Redress Scheme. 6 Requirements for agreement of the State A matter referred by section 4 (2) does not include the matter of making a law to the extent that that law would substantively remove or override a provision of the National Redress Act that requires the agreement of the State. 7 Termination of references (1) The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which: (a) the text reference is to terminate, or (b) the amendment reference is to terminate, or both. (2) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 4) never to have been published. (3) A revoking proclamation has effect only if published before the day fixed under subsection (1). (4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection. 8 Effect of termination of amendment reference before text reference (1) If the amendment reference terminates before the text reference, the termination of the amendment reference does not affect: (a) laws that were made under that reference before that termination (whether or not they have come into operation before that termination), or (b) the continued operation in the State of the National Redress Act as in operation immediately before that termination or as subsequently amended or affected by: (i) laws referred to in paragraph (a) that come into operation after that termination, or (ii) provisions referred to in section 4 (5). (2) Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless the text reference is terminated. Part 3 Miscellaneous 9 How agreement of the State is given, withdrawn and evidenced (1) The regulations may make provision for or with respect to, or (subject to any relevant provisions of the regulations) the Minister may give directions as to, how the agreement of the State is to be given or withdrawn and may be evidenced for the purposes of, and consistently with, this Act and the National Redress Scheme. (2) Without limitation: (a) the regulations or directions may authorise a person to give agreement on behalf of the State, and (b) the agreement of the State to State institutions participating in the National Redress Scheme may be given in respect of: (i) one or more particular State institutions, or (ii) a class of State institutions, however described. 10 Information sharing (1) In this section: Operator means the Operator within the meaning of the National Redress Act. State agency means the whole or part of a body (whether or not incorporated) established for a public purpose by or under a law of the State, whether or not it is a State institution or participating State institution, and includes a body or class of bodies prescribed by the regulations as being within this definition, but does not include a body or class of bodies prescribed by the regulations as not being within this definition. (2) A participating State institution may give information to the Operator for the purpose of complying with a request made by the Operator to the participating State institution under the National Redress Act to give information in relation to an application under the National Redress Scheme. (3) A State agency may give information to another State agency for the purpose of assisting any participating State institution to comply with a request made by the Operator to the participating State institution under the National Redress Act to give information as referred to in subsection (2). (4) Nothing in a law of the State prevents: (a) a participating State institution from giving information to the Operator as referred to in subsection (2), or (b) a State agency from giving information to another State agency as referred to in subsection (3), unless that law is prescribed by the regulations under this Act. (5) A reference in this section to a participating State institution is a reference to a participating State institution that is, is part of or is connected with the State. 11 Regulations The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. Schedule 1 Scheduled text of the proposed Bill for a Commonwealth 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: Chapter 1 Introduction Part 1-1 Introduction Division 1 Preliminary 1 Short title This Act is the National Redress Scheme for Institutional Child Sexual Abuse Act 2018. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details As follows: 1. The whole of this Act (a) if this Act receives the Royal Assent before 1 July 2018—1 July 2018; (b) if this Act receives the Royal Assent on or after 1 July 2018—a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. Note— This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. Division 2 Objects of this Act 3 Objects of this Act (1) The main objects of this Act are: (a) to recognise and alleviate the impact of past institutional child sexual abuse and related abuse; and (b) to provide justice for the survivors of that abuse. (2) For the purposes of achieving those objects, the objects of this Act are also: (a) to establish the National Redress Scheme for Institutional Child Sexual Abuse; and (b) to provide redress under the scheme which consists of: (i) a monetary payment to survivors as a tangible means of recognising the wrong survivors have suffered; and (ii) a counselling and psychological component which, depending on where the survivor lives, consists of access to counselling and psychological services or a monetary payment; and (iii) a direct personal response to survivors from the participating institutions responsible; and (c) to enable institutions responsible for abuse of survivors to participate in the scheme to provide that redress to those survivors; and (d) to implement the joint response of: (i) the Commonwealth Government; and (ii) the government of each participating State; and (iii) the government of each participating Territory; to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in relation to redress. Division 3 Simplified outline of this Act 4 Simplified outline of this Act This Act establishes the National Redress Scheme for Institutional Child Sexual Abuse to provide redress to survivors of past institutional child sexual abuse. Redress under the scheme is for abuse that is within the scope of the scheme. Abuse of a person is within the scope of the scheme if: (a) it occurred when the person was a child; and (b) it occurred before the scheme start day; and (c) it occurred inside a participating State, inside a Territory, or outside Australia (that is, it did not occur inside a State that is not participating in the scheme). Redress consists of 3 components: (a) a redress payment (of up to $150,000); and (b) a counselling and psychological component which, depending on where the person lives, consists of access to counselling and psychological services or a counselling and psychological services payment (of up to $5,000); and (c) a direct personal response from each participating institution responsible for the abuse. To be entitled to redress, a number of conditions need to be met. First, the person must make an application for redress. Then the person must meet the eligibility criteria. These are that: (a) the person was sexually abused; and (b) the abuse is within the scope of the scheme; and (c) the abuse is of a kind for which the maximum amount of redress payment worked out under the assessment framework would be more than nil; and (d) one or more participating institutions are responsible for the abuse; and (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. Part 1-2 Definitions Division 1 Simplified outline of this Part 5 Simplified outline of this Part Many terms used in this Act are defined to have a particular meaning for this Act. For this reason, this Act has a Dictionary (in section 6). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to the provision that has that definition. Division 2 The Dictionary 6 The Dictionary In this Act: abuse means sexual abuse or non-sexual abuse. abuser: a person is the abuser of another person if the person has abused the other person. acceptance document: see subsection 42(2). acceptance period: see section 40. adoption Act: see subsection 144(9). amendment reference: see subsection 144(3). approved form means a form approved under section 188. assessment framework: see subsection 32(2). assessment framework policy guidelines: see subsection 33(3). assistance nominee means a person who is appointed as an assistance nominee under paragraph 81(1)(a). associate: for when a participating institution is an associate of another participating institution, see subsection 133(3) and 135(5). child means a person under the age of 18. civil penalty provision has the same meaning as in the Regulatory Powers Act. Commonwealth institution: see section 109. component of redress means any of the 3 components of redress referred to in subsection 16(1). counselling and psychological component of redress means: (a) the counselling and psychological services payment; or (b) access to counselling and psychological services under the scheme. counselling and psychological services contribution: see section 160. counselling and psychological services payment means a payment payable under subsection 51(3). declared provider: see subsection 146(2). defunct: an institution is defunct if it is no longer in existence. direct personal response: see subsection 54(2). direct personal response framework: see subsection 55(2). eligible: see section 13. entitled: see subsections 12(2), (3) and (4). equally responsible: for when a participating institution is equally responsible for abuse of a person, see subsections 15(3), (5) and (6). express amendment: see subsection 144(9). financial institution means a body corporate that is an authorised deposit-taking institution for the purposes of the Banking Act 1959. Foreign Affairs Minister means the Minister administering the Australian Passports Act 2005. funder of last resort: for when a participating government institution is the funder of last resort for a defunct institution, see section 163. funding contribution: see section 150. government institution means a Commonwealth institution, State institution or Territory institution. Home Affairs Minister means the Minister administering the Australian Security Intelligence Organisation Act 1979. Human Services Department means the Department administered by the Minister administering the Human Services (Centrelink) Act 1997. incorporated lone institution: see paragraph 124(3)(b). independent decision-maker: see subsection 185(3). initial referred provisions: see subsection 144(9). institution means any body, entity, group of persons or organisation (whether or not incorporated), but does not include a family or an individual. legal nominee means a person who is appointed as a legal nominee under paragraph 81(1)(b). listed: for when a defunct institution is listed for a participating jurisdiction, see subsection 164(1). lone institution: see subsection 124(2). maximum amount: see step 1 of the method statement in subsection 30(2). National Redress Scheme Agreement means the Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse, as in force from time to time. National Redress Scheme Operator: see the definition of Operator. National Service Standards means the National Service Standards set out in the National Redress Scheme Agreement. nominee means an assistance nominee or a legal nominee. non-government institution: see subsections 114(2) and (3). non-participating State means a State that is not a participating State. non-sexual abuse includes physical abuse, psychological abuse and neglect. officer of the scheme means: (a) a person in the Department or the Human Services Department performing duties, or exercising powers or functions, under or in relation to this Act (including the Operator); or (b) an independent decision maker; or (c) a person prescribed by the rules. official of an institution means a person who is or has been an officer, employee, volunteer or agent of the institution. Operator (short for National Redress Scheme Operator) means the person who is the Secretary of the Department, in the person's capacity as Operator of the scheme (as referred to in section 9). original determination: see paragraph 73(1)(b). original version of this Act: see subsection 144(9). participating defunct institution: see section 117. participating government institution means: (a) a Commonwealth institution; or (b) a participating State institution; or (c) a participating Territory institution. participating group: see subsection 133(2). participating incorporated lone institution: see subsection 124(5). participating institution: see subsections 108(2) and 116(7). participating jurisdiction: see section 143. participating lone institution: see subsection 124(1). participating non-government institution: see subsection 114(1). participating State: see section 144. participating State institution: see section 110. participating Territory means the Australian Capital Territory or the Northern Territory. participating Territory institution: see section 112. participating unincorporated lone institution: see subsection 124(4). permitted purpose: see paragraph 97(1)(e). primarily responsible: for when a participating institution is primarily responsible for abuse of a person, see subsections 15(2), (5) and (6). production period: see paragraphs 24(3)(c) and 25(4)(c). protected information: see subsection 92(2). quarter: see subsection 149(2). reasonable likelihood, in relation to a person being eligible for redress, means the chance of the person being eligible is real, is not fanciful or remote and is more than merely plausible. redress: see subsection 16(1). redress element: see section 151. redress payment means a payment payable under section 48 or 60. referral Act: see subsection 144(9). referred national redress scheme matters: see subsections 145(1) and (2). Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. related: non sexual abuse of a person is related to sexual abuse of the person if a participating institution is responsible for both the sexual abuse and the non-sexual abuse of the person. released institution or official: see paragraph 42(2)(c). relevant prior payment: see step 3 of the method statement in subsection 30(2). relevant version of this Act: see subsection 144(9). representative: (a) for a participating defunct institution: see subsections 118(2), (3), (4) and (5) and 120(4); or (b) for a participating lone institution: see subsections 125(2) and (3) and 128(4); or (c) for a participating group: see subsections 136(2), (3), (4) and (5) and 138(4). responsible: for when a participating institution is responsible for abuse of a person, see subsections 15(1), (5) and (6). responsible institution: an institution is a responsible institution in relation to abuse of a person if the Operator has determined under paragraph 29(2)(b) that the institution is responsible for that abuse. review determination: see paragraph 75(2)(b). rules means the rules made by the Minister under section 179. saved amount: (a) for a redress payment: see subsection 50(2); or (b) for a counselling and psychological services payment: see subsection 53(2). scheme means the National Redress Scheme for Institutional Child Sexual Abuse established under section 8. scheme administration element: see subsection 152(1). scheme start day means the day this Act commences. scheme sunset day: see subsection 193(1). security notice: see subsection 65(1). sexual abuse of a person who is a child includes any act which exposes the person to, or involves the person in, sexual processes beyond the person's understanding or contrary to accepted community standards. State institution: see section 111. State redress mechanism: see subsection 145(4). survivor means a person who has suffered sexual abuse that is within the scope of the scheme. Territory means a Territory referred to in section 122 of the Constitution. Note— A participating Territory is a type of Territory, but there are other Territories that are covered by this definition (e.g. the Jervis Bay Territory). Territory institution: see section 113. text reference: see subsection 144(2). this Act includes: (a) the rules; and (b) any other instrument made under this Act. unincorporated lone institution: see paragraph 124(3)(a). wholly-owned Commonwealth company has the same meaning as in the Public Governance, Performance and Accountability Act 2013. within the scope: for when abuse is within the scope of the scheme, see section 14. Chapter 2 The National Redress Scheme for Institutional Child Sexual Abuse Part 2-1 Establishment of the scheme Division 1 Simplified outline of this Part 7 Simplified outline of this Part This Part formally establishes the National Redress Scheme for Institutional Child Sexual Abuse. It provides that the Operator is responsible for operating the scheme. It also sets out general principles that the Operator and other officers of the scheme must take into account, for the benefit and protection of survivors, when taking action under the scheme. Division 2 Establishment of the scheme 8 Establishment of the scheme The National Redress Scheme for Institutional Child Sexual Abuse is established by this Act. 9 The National Redress Scheme Operator (1) The Secretary of the Department is the National Redress Scheme Operator. (2) The Operator is responsible for operating the scheme. (3) The Operator may arrange for support and assistance (including legal assistance) to be provided to a person (including a person who is an applicant, or prospective applicant, for redress) in relation to the doing of things under, or for the purposes of, the scheme. Note— For example, the Operator might arrange for support and assistance to be provided to help prepare a person's application for redress. (4) The Operator may, on behalf of the Commonwealth: (a) enter into a contract, agreement, deed or understanding relating to the provision of support or assistance provided under the scheme; and (b) vary and administer that contract, agreement, deed or understanding. 10 General principles guiding actions of officers under the scheme (1) This section sets out the principles that must be taken into account by the Operator and other officers of the scheme when taking action under, or for the purposes of, the scheme. (2) Redress under the scheme should be survivor-focussed. (3) Redress should be assessed, offered and provided with appropriate regard to: (a) what is known about the nature and impact of child sexual abuse, and institutional child sexual abuse in particular; and (b) the cultural needs of survivors; and (c) the needs of particularly vulnerable survivors. (4) Redress should be assessed, offered and provided so as to avoid, as far as possible, further harming or traumatising the survivor. (5) Redress should be assessed, offered and provided in a way that protects the integrity of the scheme. Part 2-2 Entitlement to redress under the scheme Division 1 Simplified outline of this Part 11 Simplified outline of this Part For a person to be entitled to redress under the scheme, a number of conditions need to be met. First, the person must make an application for redress under the scheme. Then the person must meet the eligibility criteria for redress. These are that the person was sexually abused, the abuse is within the scope of the scheme, the abuse is of a kind for which the amount of redress payment worked out under the assessment framework would be more than nil, one or more participating institutions are responsible for the abuse, and, at the time of the application, the person is an Australian citizen or a permanent resident. If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, the Operator must approve the application and make an offer of redress to the person. The person may accept or decline the offer. (Offers and acceptance of redress are dealt with in Part 2-4.) If the person accepts the offer, then the person becomes entitled to redress under the scheme. The person is required to release particular institutions and officials from all civil liability for the abuse. Those institutions are the participating institutions determined by the Operator to be responsible for the abuse, their officials, their associates and the officials of their associates. The abuser is not released from liability. Once entitled, the person will be provided with redress under the scheme. (Provision of redress is dealt with in Part 2-5.) 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. Division 2 Entitlement to redress under the scheme 12 When is a person entitled to be provided with redress? (1) A person can only be provided with redress under the scheme if the person is entitled to it. (2) A person is entitled to redress under the scheme if: (a) the person applies for redress under section 19; and (b) the Operator considers that there is a reasonable likelihood that the person is eligible for redress under the scheme (see section 13 for eligibility); and (c) the Operator approves the application under section 29; and (d) the Operator makes an offer of redress to the person under section 39; and (e) the person accepts the offer in accordance with section 42. (3) A person is also entitled to redress, or a component of redress, under the scheme if this Act or the rules prescribe that the person is entitled to it. Note— For cases where this Act prescribes that a person is entitled to redress, or a component of redress, under the scheme, see Part 3-1. (4) Despite subsections (2) and (3), a person is not entitled to redress, or a component of redress, under the scheme if this Act or the rules prescribe that the person is not entitled to it. Note— For cases where this Act prescribes that a person is not entitled to redress, or a component of redress, under the scheme, see Part 3-2. 13 When is a person eligible for redress? (1) A person is eligible for redress under the scheme if: (a) the person was sexually abused; and (b) the sexual abuse is within the scope of the scheme (see section 14); and (c) the sexual abuse is of a kind for which the maximum amount of redress payment that could be payable to the person (as worked out under the assessment framework) would be more than nil; and (d) one or more participating institutions are responsible for the abuse (see section 15); and (e) the person is an Australian citizen or a permanent resident (within the meaning of the Australian Citizenship Act 2007) at the time the person applies for redress. Note 1— To be eligible for redress, a person must have been sexually abused. However, redress is for the sexual abuse, and related non-sexual abuse, of the person that is within the scope of the scheme. Note 2— For which institutions are participating institutions, see subsection 108(2). (2) A person is also eligible for redress under the scheme if this Act or the rules prescribe that the person is eligible for it. (3) Despite subsections (1) and (2), a person is not eligible for redress under the scheme if this Act or the rules prescribe that the person is not eligible for it. 14 When is abuse within the scope of the scheme? (1) Abuse of a person is within the scope of the scheme if: (a) it occurred when the person was a child; and (b) it occurred: (i) inside a participating State; or (ii) inside a Territory; or (iii) outside Australia; and (c) it occurred before the scheme start day. (2) Abuse of a person is within the scope of the scheme if this Act or the rules prescribe that it is. (3) Despite subsections (1) and (2), abuse of a person is not within the scope of the scheme if this Act or the rules prescribe that it is not. 15 When is an institution responsible for abuse? When is an institution responsible for abuse? (1) An institution (whether or not a participating institution) is responsible for abuse of a person if the institution is primarily responsible or equally responsible for the abuse. When an institution is primarily responsible for abuse (2) An institution is primarily responsible for abuse of a person if the institution is solely or primarily responsible for the abuser having contact with the person. When an institution is equally responsible for abuse (3) An institution is equally responsible for abuse of a person if: (a) the institution and one or more other institutions are approximately equally responsible for the abuser having contact with the person; and (b) no institution is primarily responsible for the abuse of the person. Relevant circumstances for determining responsibility (4) Without limiting the circumstances that might be relevant for determining under subsection (2) or (3) whether an institution is primarily responsible or equally responsible for the abuser having contact with the person, the following circumstances are relevant: (a) whether the institution was responsible for the day to day care or custody of the person when the abuse occurred; (b) whether the institution was the legal guardian of the person when the abuse occurred; (c) whether the institution was responsible for placing the person into the institution in which the abuse occurred; (d) whether the abuser was an official of the institution when the abuse occurred; (e) whether the abuse occurred: (i) on the premises of the institution; or (ii) where activities of the institution took place; or (iii) in connection with the activities of the institution; (f) any other circumstances that are prescribed by the rules. Note— When determining the question whether an institution is responsible for abuse of a person, the circumstances listed in this subsection are relevant to that question, but none of them on its own is determinative of that question. (5) Despite subsections (1), (2) and (3), an institution is responsible, primarily responsible or equally responsible for abuse of a person in the circumstances (if any) prescribed by the rules. (6) Despite subsections (1), (2) and (3), an institution is not responsible, primarily responsible or equally responsible for abuse of a person in the circumstances (if any) prescribed by the rules. 16 What redress is provided to a person? (1) Redress for a person consists of 3 components: (a) a redress payment (of up to $150,000); and (b) a counselling and psychological component which, depending on where the person lives (as stated in the person's application for redress), consists of: (i) access to counselling and psychological services provided under the scheme; or (ii) a payment (of up to $5,000) to enable the person to access counselling and psychological services provided outside of the scheme; and (c) a direct personal response from each of the participating institutions that are determined by the Operator under paragraph 29(2)(b) to be responsible for the abuse of the person. Note— For what a direct personal response consists of, see subsection 54(2). (2) A person who is entitled to redress under the scheme may choose to accept 1, 2 or all 3 of those components of redress. (3) If 2 or more participating institutions are determined to be responsible for the person's abuse and the person chooses to be given a direct personal response, then the person may choose to be given a direct personal response from each of those institutions, or from only some or one of them. 17 What is redress for? Redress for a person is for the sexual abuse, and related non sexual abuse, of the person that is within the scope of the scheme. Note— While redress is for both the sexual and related non-sexual abuse of a person that is within the scope of the scheme, to be eligible for redress in the first place, there must have been sexual abuse within the scope of the scheme (see paragraph 13(1)(b)). Part 2-3 How to obtain redress under the scheme Division 1 Simplified outline of this Part 18 Simplified outline of this Part To be entitled to redress under the scheme, a person must make an application for it. To be valid, the application must comply with the requirements set out in section 19 (e.g. it must include any information required by the Operator). Once the application is made, the Operator can request the person and participating institutions to provide further information to the Operator for the purposes of determining the application (see sections 24 and 25). A person can make only one application for redress under the scheme. Whether the application is successful or unsuccessful, the person will not be able to make another application for redress under the scheme (unless the person withdraws the application before the Operator makes a determination about whether or not to approve it). There are certain circumstances where a person cannot make an application for redress. These circumstances are set out in section 20. The Operator must make a determination to approve, or not approve, the application as soon as practicable. If the Operator considers there is a reasonable likelihood that the person is eligible for redress, then the Operator must approve the application and make a number of other important determinations under subsection 29(2). For example, the Operator must make a determination about which participating institutions are responsible for the abuse and therefore liable for providing redress to the person. The Operator must also make a determination about the amount of the redress payment that is payable to the person, as well as the amount of the counselling and psychological component of redress for the person. 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.) Division 2 Application for redress under the scheme 19 Application for redress (1) To obtain redress under the scheme, a person must make an application to the Operator. (2) To be valid, the application must: (a) be in the approved form; and (b) specify where the person lives; and (c) include any information, and be accompanied by any documents, required by the Operator; and (d) verify the information included in the application by statutory declaration. (3) The Operator is not required to make a determination on an application that is not valid. 20 When an application cannot be made (1) A person cannot make an application for redress under the scheme if: (a) the person has already made an application for redress under the scheme; or (b) a security notice is in force in relation to the person; or (c) the person is a child who will not turn 18 before the scheme sunset day; or (d) the person is in gaol (within the meaning of subsection 23(5) of the Social Security Act 1991); or (e) the application is being made in the period of 12 months before the scheme sunset day. (2) Paragraphs (1)(d) and (e) do not apply if the Operator determines there are exceptional circumstances justifying the application being made. (3) Before making a determination under subsection (2), the Operator must comply with any requirements prescribed by the rules. 21 Special process for child applicants (1) If: (a) a person makes an application for redress under the scheme; and (b) the person is a child who will turn 18 before the scheme sunset day; then the Operator must deal with the application in accordance with any requirements prescribed by the rules. (2) Rules made for the purposes of subsection (1) apply despite subsection 29(1) (which requires the Operator to make a determination on the application as soon as practicable). 22 Withdrawal of an application (1) A person may withdraw an application for redress at any time before the Operator makes a determination on the application under section 29. (2) If the person withdraws the application under subsection (1), then for the purposes of this Act it is treated as not having been made. 23 Notice of a withdrawal to participating institutions (1) If: (a) a person withdraws an application under subsection 22(1); and (b) before the withdrawal, the Operator had requested a participating institution under section 25 to provide information that may be relevant to the application; then the Operator must give the institution written notice that the person has withdrawn the application. (2) The notice must also comply with any requirements prescribed by the rules. Division 3 Obtaining information for the purposes of determining the application 24 Power to request information from the applicant (1) If the Operator has reasonable grounds to believe that a person who has applied for redress has information that may be relevant to determining the application, then the Operator may request the person to give the information to the Operator. Note— The request for information may be accompanied by information that has been disclosed by an institution in relation to the application. (2) The request must be made by written notice given to the person. (3) The notice must specify: (a) the nature of the information that is requested to be given; and (b) how the person is to give the information to the Operator; and (c) the period (the production period) within which the person is requested to give the information to the Operator; and (d) that the notice is given under this section. (4) The production period must be at least: (a) if the Operator considers the application is urgent—4 weeks; and (b) otherwise—8 weeks; beginning on the date of the notice. (5) The Operator may, by written notice to the person, extend the production period if the Operator considers it appropriate to do so. (6) An extension under subsection (5) may be given: (a) on the Operator's own initiative; or (b) on a request made by the person under subsection (7). (7) The person may request the Operator to extend the production period. The request must: (a) be made before the end of the production period; and (b) comply with any requirements prescribed by the rules. 25 Power to request information from participating institutions (1) If a person has applied for redress and either: (a) the application identifies a particular participating institution as being involved in the abuse of the person; or (b) the Operator has reasonable grounds to believe that a participating institution may be responsible for the abuse of the person; then the Operator must request the institution to give any information that may be relevant to the application to the Operator. Note— The request for information may be accompanied by information that has been disclosed by the applicant or another institution in relation to the application. (2) If a person has applied for redress and the Operator has reasonable grounds to believe that a participating institution has information that may be relevant to determining the application, then the Operator may request the institution to give the information to the Operator. Note— The request for information may be accompanied by information that has been disclosed by the applicant or another institution in relation to the application. (3) The request under subsection (1) or (2) must be made by written notice given to the institution. (4) The notice must specify: (a) the nature of the information that is requested to be given; and (b) how the institution is to give the information to the Operator; and (c) the period (the production period) within which the institution is requested to give the information to the Operator; and (d) that the notice is given under this section. (5) The production period must be at least: (a) if the Operator considers the application is urgent—4 weeks; and (b) otherwise—8 weeks; beginning on the date of the notice. (6) The Operator may, by notice to the institution, extend the production period if the Operator considers it appropriate to do so. (7) An extension under subsection (6) may be given: (a) on the Operator's own initiative; or (b) on a request made by the institution under subsection (8). (8) The institution may request the Operator to extend the production period. The request must: (a) be made before the end of the production period; and (b) comply with any requirements prescribed by the rules. 26 Failure of the applicant or institutions to comply with a request (1) If: (a) under section 24, the Operator requests a person who has made an application for redress to provide further information; and (b) the information requested is not provided in the production period referred to in that section; then the Operator is not required to make a determination on the application until the information is provided. (2) If: (a) under section 25, the Operator requests a participating institution to provide information in relation to an application for redress; and (b) the information requested is not provided in the production period referred to in that section; then the Operator may progress the application and make a determination on it on the basis of the information that has been obtained by, or provided to, the Operator. 27 State or Territory laws do not prevent complying with request Nothing in a law of a State or a Territory prevents a person from giving information that the person is requested to give to the Operator for the purposes of the scheme unless that law is prescribed by the rules. 28 False or misleading information, documents or statements A person must not give information, produce a document or make a statement to an officer of the scheme if the person knows, or is reckless as to whether, the information, document or statement is false or misleading in a material particular. Note— This section is a civil penalty provision. Conduct prohibited by this section may also be an offence against the Criminal Code (see sections 136.1, 137.1 and 137.2 of the Code). Civil penalty: 60 penalty units. Division 4 The Operator must determine whether to approve the application 29 The Operator must make a determination on the application Requirement for the Operator to make a determination (1) If a person makes an application for redress, the Operator must make a determination to approve, or not approve, the application as soon as practicable. Determination to approve application (2) If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, then the Operator must: (a) approve the application; and (b) determine each participating institution that is responsible for the abuse (see section 15) and therefore liable for providing redress to the person under the scheme; and (c) determine, in accordance with section 30: (i) the amount of the redress payment for the person; and (ii) the amount of each responsible institution's share of the costs of the redress payment; and (d) determine, in accordance with section 31: (i) the amount of the counselling and psychological component of redress for the person; and (ii) the amount of each responsible institution's share of the costs of that component; and (e) determine whether the counselling and psychological component of redress for the person consists of: (i) access to the counselling and psychological services that are provided under the scheme; or (ii) a counselling and psychological services payment; and (f) if the counselling and psychological component of redress for the person consists of a counselling and psychological services payment—determine that the amount of the payment equals the amount of the counselling and psychological component of redress for the person; and (g) for each responsible institution that is a member of a participating group—determine each other participating institution that is an associate of the responsible institution at that time; and (h) for a participating institution that was identified in the application and is not covered by a determination under paragraph (b)—determine that the participating institution is not responsible for the abuse and therefore not liable for providing redress to the person under the scheme; and (i) if: (i) the Operator determines, in accordance with section 15, that a participating government institution is equally responsible with a defunct institution for the abuse; and (ii) the defunct institution is listed for the participating jurisdiction that the participating government institution belongs to; determine that the participating government institution is the funder of last resort for the defunct institution in relation to the abuse. Note 1— If the Operator determines that the participating government institution is the funder of last resort for the defunct institution, then the participating government institution will be liable to pay the defunct institution's (hypothetical) share of the costs of providing redress to the person (see section 165). Those costs are in addition to the participating government institution's own share of the costs for providing redress to the person. For the funder of last resort provisions, see Part 6-2. Note 2— Only defunct institutions that are both non-government institutions and not participating institutions can be listed for a jurisdiction (see subsection 164(1)). Determination not to approve application (3) Otherwise, the Operator must make a determination not to approve the application. Revoking a determination (4) The rules may require or permit the Operator to revoke, under this subsection, a determination made under subsection (2) or (3). (5) However, the Operator cannot revoke a determination made under subsection (2) if: (a) the person has been given an offer of redress; and (b) the person has accepted the offer in accordance with section 42. (6) If the Operator revokes a determination made under subsection (2) or (3), then: (a) every determination made under subsection (2) or (3) is taken never to have been made; and (b) if the person has been given an offer of redress but has not accepted or declined the offer—the offer is taken to be withdrawn; and (c) if the person has made an application for review of the determination—the review application is taken to be withdrawn; and (d) the Operator may make further requests under section 24 or 25 for information relating to the person's application. (7) The Operator must give a written notice to: (a) the person; and (b) each participating institution that was notified under section 35 of the determination; notifying them of the following: (c) that the determination has been revoked; (d) that the determination is taken never to have been made; (e) if an offer of redress has been withdrawn under paragraph (6)(b)—that fact; (f) if an application for review of the determination has been withdrawn under paragraph (6)(c)—that fact; (g) any other matter prescribed by the rules. 30 Working out the amount of redress payment and sharing of costs Working out amounts (1) This section sets out how the Operator must make a determination under paragraph 29(2)(c) about: (a) the amount of the redress payment for a person; and (b) the amount of each responsible institution's share of the costs of the redress payment. Note— This section only applies if the Operator approves the person's application for redress. Working out share of the costs of redress payment (2) The Operator must first work out, for each responsible institution, the amount that is the institution's share of the costs of the redress payment by using the following method statement: Method statement Step 1. Apply the assessment framework to work out the maximum amount of redress payment that could be payable to the person. The maximum amount must not be more than $150,000, regardless of the number of responsible institutions. The amount worked out is the maximum amount of the redress payment that could be payable to the person. Step 2. Work out, in accordance with any requirements prescribed by the rules, the amount that is the responsible institution's share of the maximum amount. This amount is the gross liability amount for the responsible institution. Step 3. Work out the amount of any payment (a relevant prior payment) that was paid to the person by, or on behalf of, the responsible institution in relation to abuse for which the institution is responsible (but do not include any payment to the extent that it is prescribed by the rules as not being a relevant prior payment). This amount is the original amount of the relevant prior payment. Multiply the original amount by the following: where: n is the number of whole years since the relevant prior payment was paid to the person. Step 4. The resulting amount is the adjusted amount of the relevant prior payment of the institution. Note— The adjustment under this step is broadly to account for inflation. Step 5. Add together the adjusted amount of each relevant prior payment of the institution. If the resulting amount is not a whole number of cents, round the amount up to the next whole number of cents. This amount is the reduction amount for the institution. Step 6. The amount of the institution's share of the costs of the redress payment is the gross liability amount for the institution (in step 2) less the reduction amount for the institution (in step 5). The amount may be nil but not less than nil. Working out amount of redress payment (3) The Operator must then work out the amount of redress payment for the person by adding together the amounts of each responsible institution's share of the costs of the redress payment. The amount may be nil, but it must not exceed the maximum amount of the redress payment. Note 1— The amount may be nil because the total amount of relevant prior payments that were paid to the person by the responsible institutions exceeds the maximum amount of the redress payment that could be payable to the person. However, even though the person may not be paid any redress payment in that case, the person will still be entitled to the other components of redress under the scheme (i.e. the counselling and psychological component and a direct personal response). Note 2— For funder of last resort cases, subsection 165(2) affects how the amount of the redress payment and the share of the costs of the payment are worked out. 31 Working out the amount of the counselling and psychological component and sharing of costs (1) This section sets out how the Operator must make a determination under paragraph 29(2)(d) about: (a) the amount of the counselling and psychological component of redress for a person; and (b) the amount of each responsible institution's share of the costs of that component. Note— This section only applies if the Operator approves the person's application for redress. (2) The Operator must apply the assessment framework to work out the amount of the component. The amount must not be more than $5,000, regardless of the number of responsible institutions. (3) The Operator must work out, in accordance with the rules, the amount that is each responsible institution's share of the costs of the component. Note— For funder of last resort cases, subsection 165(3) affects how the amount of the counselling and psychological component and the share of the costs of the component is worked out. 32 The assessment framework (1) The Minister may declare, in writing, a method, or matters to take into account, for the purposes of working out: (a) the amount of redress payment for a person; and (b) the amount of the counselling and psychological component of redress for a person. Note— For variation or revocation of the declaration, see subsection 33(3) of the Acts Interpretation Act 1901. (2) The declaration is the assessment framework. (3) The declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to it. 33 The assessment framework policy guidelines (1) The Operator may take into account the assessment framework policy guidelines when applying the assessment framework for the purposes of sections 30 and 31. (2) The Minister may, in writing, make guidelines for the purposes of applying the assessment framework. (3) The guidelines are the assessment framework policy guidelines. (4) The guidelines are not a legislative instrument. Division 5 Notice of determination to applicant and participating institutions 34 Notice of determination to applicant (1) If the Operator makes a determination under section 29 on an application for redress for a person, the Operator must give the person written notice of the determination stating: (a) whether or not the application has been approved; and (b) the reasons for the determination; and (c) that the person may apply under section 73 for review of the determination. (2) If the application has been approved, the notice must include the offer of redress to the person under section 39. (3) The notice must also: (a) specify the day by which