Explanatory Memorandum
(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)Chapter 1 - Introduction
Part 1-1 - Introduction
Division 1 - Preliminary
Clause 1 sets out the short title of the Bill as the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 once it is passed and commences in accordance with clause 2.
Clause 2 provides that the Bill will commence as follows:
- (a)
- if the Bill receives Royal Assent before 1 July 2018 - 1 July 2018; or
- (b)
- if the Bill receives Royal Assent on or after 1 July 2018 - on a single day that is to be specified in a Proclamation instrument.
The clause also provides for a default commencement of the legislation. If paragraph (a) or (b) do not occur, the whole of the Act will commence the first day after a six month period that commences on the day the Bill receives Royal Assent.
Division 2 - Objects of this Bill
Clause 3 sets out the objects of the Bill.
Subclause 3(1) provides that the main objects of the Bill are to recognise and alleviate the impact of past institutional child sexual abuse and related abuse and to provide justice for the survivors of that abuse.
Subclause 3(2) states that for the purpose of achieving the objects mentioned in subclause 3(1) of the Bill, the objects of the Bill are also to: establish a National Redress Scheme for Institutional Child Sexual Abuse; provide redress under the Scheme; enable institutions responsible for abuse of survivors to participate in the Scheme to provide that redress to those survivors; and implement the joint response of the Commonwealth Government, and the government of each participating State and Territory to the recommendations of the Royal Commission in relation to redress.
Subclause 3(2) further specifies that redress consists of: a monetary payment to survivors as a tangible means of recognising the wrong they have suffered; access for the survivor to counselling and psychological services or a monetary payment depending on where the survivor lives; and a direct personal response to survivors from the participating institutions responsible.
Division 3 - Simplified outline of this Bill
Clause 4 provides a simplified outline of the Bill.
Part 1-2 - Definitions
Division 1- Simplified outline of this Part
Clause 5 provides a simplified outline of Part 1-2.
Division 2 - The Dictionary
Clause 6 provides a Dictionary that defines various technical words and phrases used in this Bill. The Dictionary also provides cross references to specific definitions throughout the Bill.
abuse means sexual abuse or non-sexual abuse.
abuser: a person is defined to be the abuser of another person if the person has abused the other person.
acceptance document is defined by a cross reference to subclause 42(2).
acceptance period is defined by a cross reference to clause 40.
adoption Act is defined by a cross reference to subclause 144(9).
amendment reference is defined by a cross reference to subclause 144(3).
approved form is defined to mean a form approved under clause 188.
assessment framework is defined by a cross reference to subclause 32(2).
assessment framework policy guidelines is defined by a cross reference to subclause 33(3).
assistance nominee is defined to mean a person who is appointed as an assistance nominee under paragraph 81(1)(a).
associate: when a participating institution is an associate of another participating institution, is defined by a cross reference to subclauses 133(3) and 135(5).
child is defined to mean a person under the age of 18.
civil penalty provision has the same meaning as in the Regulatory Powers (Standard Provisions) Act 2014.
Commonwealth institution is defined by a cross reference to clause 109.
component of redress means any of the three components of redress referred to in subclause 16(1).
counselling and psychological component of redress is defined to mean:
- (a)
- the counselling and psychological services payment; or
- (b)
- access to counselling and psychological services under the Scheme.
counselling and psychological services contribution is defined by a cross reference to clause 160.
counselling and psychological services payment is defined to mean a payment payable under subclause 51(3).
declared provider of is defined by a cross reference to clause 146(2).
defunct: an institution is defunct if it is no longer in existence.
direct personal response is defined by a cross reference to subclause 54(2).
direct personal response framework is defined by a cross reference to subclause 55(2).
eligible is defined by a cross reference to clause 13.
entitled is defined by a cross reference to subclauses 12(2), (3) and (4).
equally responsible: when a participating institution is equally responsible for abuse of a person, is defined by a cross reference to subclauses 15(3), (5) and (6).
express amendment is defined by a cross reference to subclause 144(9).
financial institution is defined to mean a body corporate that is an authorised deposit-taking institution for the purposes of the Banking Act 1959.
Foreign Affairs Minister is defined to mean the Minister administering the Australian Passports Act 2005.
funder of last resort: when a participating government institution is the funder of last resort for a defunct institution, is defined by a cross reference to clause 163.
funding contribution is defined by a cross reference to clause 150.
government institution is defined to mean a Commonwealth institution, State institution or Territory institution.
Home Affairs Minister is defined to mean the Minister administering the Australian Security Intelligence Organisation Act 1979.
Human Services Department is defined to mean the Department administered by the Minister administering the Human Services (Centrelink) Act 1997.
incorporated lone institution is defined by a cross reference to paragraph 124(3)(b).
independent decision-maker is defined by a cross reference to subclause 185(3).
initial referred provisions is defined by a cross reference to subclause 144(9).
institution is defined to mean: any body, entity, group of persons or organisation (whether or not incorporated), but does not include family or an individual.
legal nominee is defined to mean a person who is appointed as a legal nominee under paragraph 81(1)(b).
listed: when a defunct institution is listed for a participating jurisdiction, is defined by a cross reference to subclause 164(1).
lone institution is defined by a cross reference to subclause 124(2).
maximum amount is defined by a cross reference to step 1 of the method statement in subclause 30(2).
National Redress Scheme Agreement is defined to mean the Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse, as in force from time to time.
National Redress Scheme Operator is defined by a cross reference to the definition of Operator.
National Service Standards is defined to mean the National Service Standards set out in the National Redress Scheme Agreement.
nominee is defined to mean an assistance nominee or a legal nominee.
non-government institution is defined by a cross reference to subclauses 114(2) and (3).
non-participating State is defined to mean a State that is not a participating State.
non-sexual abuse includes physical abuse, psychological abuse and neglect.
officer of the scheme is defined to mean
- (a)
- a person in the Department or the Human Services Department performing duties, or exercising powers or functions, under or in relation to this Bill (including the Operator); or
- (b)
- an independent decision-maker; or
- (c)
- a person prescribed by the rules.
official of an institution is defined to mean a person who is or has been an officer, employee, volunteer or agent of the institution.
Operator (short for National Redress Scheme Operator) is defined to mean the person who is the Secretary of the Department in the person's capacity as Operator of the Scheme (as referred to in clause 9).
original determination is defined by a cross reference to paragraph 73(1)(b).
original version of this Act is defined by a cross reference to subclause 144(9).
participating defunct institution is defined by a cross reference to clause 117.
participating government institution is defined to mean:
- (a)
- a Commonwealth institution; or
- (b)
- a participating State institution; or
- (c)
- a participating Territory institution.
participating group is defined by a cross reference to clause 133(2).
participating incorporated lone institution is defined by a cross reference to subclause 124(5).
participating institution is defined by a cross reference to subclauses 108(2) and 116(7).
participating jurisdiction is defined by a cross reference to subclause 143.
participating lone institution is defined by a cross reference to subclause 124(1).
participating non-government institution is defined by a cross reference to subclause 114(1).
participating State is defined by a cross reference to clause 144.
participating State institution: is defined by a cross reference to clause 110.
participating Territory is defined to mean the Australian Capital Territory or the Northern Territory.
participating Territory institution is defined by a cross reference to clause 112.
participating unincorporated lone institution is defined by a cross reference to subclause 124(4).
Permitted purpose is defined by a cross reference to paragraph 97(1)(e).
primarily responsible: when a participating institution is primarily responsible for abuse of a person is defined by a cross reference to subclauses 15(2),(5) and (6).
production period is defined by a cross reference to paragraphs 24(3)(c) and 25(4)(c).
protected information is defined by a cross reference to subclause 92(2).
quarter is defined by a cross reference to subclause 149(2).
reasonable likelihood in relation to a person being eligible for redress is defined to mean the chance of the person being eligible is real, is not fanciful or remote and is more than merely plausible.
redress is defined by a cross reference to subclause 16(1).
redress element is defined by a cross reference to clause 151.
redress payment is defined to mean a payment payable under clause 48 or 60.
referral Act is defined by a cross reference to subclause 144(9).
referred national redress scheme matters is defined by a cross reference to subclauses 145(1) and (2).
Regulatory Powers Act is defined to mean the Regulatory Powers (Standard Provisions) Act 2014.
related: non-sexual abuse, is defined to mean non-sexual abuse that is related to the sexual abuse of a person if a participating institution is responsible for both the sexual abuse and the non-sexual abuse of the person.
released institution or official is defined by a cross reference to paragraph 42(2)(c).
relevant prior payment is defined by a cross reference to step 3 of the method statement in subclause 30(2).
relevant version of this Act is defined by a cross reference to subclause 144(9).
representative for:
- (a)
- a participating defunct institution is defined by a cross reference to subclauses 118(2), (3), (4) and (5) and 120(4); or
- (b)
- a participating lone institution is defined by a cross reference to subclauses 125(2) and (3) and 128(4); or
- (c)
- a participating group is defined by a cross reference to subclauses 136(2), (3), (4) and (5) and 138(4).
responsible: when a participating institution is responsible for abuse of a person is defined by a cross reference to subclauses 15(1), (5) and (6).
responsible institution means 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 is defined by a cross reference to paragraph 75(2)(b).
rules is defined to mean the rules made by the Minister under clause 179.
saved amount is defined by a cross reference to subclause 50(2) for a redress payment or subclause 53(2) for a counselling and psychological services payment.
scheme is defined to mean the National Redress Scheme for Institutional Child Sexual Abuse established under clause 8.
scheme administration element is defined by a cross reference to subclause 152(1).
scheme start day is defined to mean the day this Act commences.
scheme sunset day is defined by a cross reference to subclause 193(1).
security notice is defined by a cross reference to subclause 65(1).
sexual abuse of a person who is a child is defined to include 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 is defined by a cross reference to clause 111.
State redress mechanism is defined by a cross reference to subclause 145(4).
survivor is defined to mean a person who has suffered sexual abuse that is within the scope of the Scheme.
Territory is defined to mean a Territory referred to in clause 122 of the Constitution. The note clarifies that a participating Territory is a type of Territory, but there are other Territories that are covered by this definition (for example, the Jervis Bay Territory).
Territory institution is defined by a cross reference to clause 113.
text reference is defined by a cross reference to clause 144(2).
this Act is defined to include the rules and any other instrument made under this Act.
unincorporated lone institution is defined by a cross reference to paragraph 124(3)(a).
wholly-owned Commonwealth company is defined as having the same meaning as in the Public Governance, Performance and Accountability Act 2013.
within the scope: when abuse is within the scope of the Scheme is defined by a cross reference to clause 14.