House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)

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

Clause 7 provides a simplified outline of Part 2-1.

Division 2 - Establishment of the Scheme

Clause 8 establishes the National Redress Scheme for Institutional Child Sexual Abuse.

Clause 9 provides that the National Redress Scheme Operator (the Operator) is responsible for operating the Scheme. The Operator is the Secretary of the Department. 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) under the Scheme and enter into a contract, agreement, deed or understanding on behalf of the Commonwealth in relation to the Scheme. The Operator may also vary and administer that contract, agreement, deed or understanding.

The note at the end of subclause 9(3) provides an example of the kind of assistance the Operator may provide.

Clause 10 provides a set of overarching general principles to guide the actions of officers under the Scheme.

Subclause 10(1) provides that principles in clause 10 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.

Subclause 10(2) provides that redress under the Scheme should be survivor-focussed. This subclause links to the key objects of the Scheme (clause 3) which are to recognise and alleviate the impact of past institutional child sexual abuse and related abuse, and to provide justice for survivors of that abuse.

Subclause 10(3) provides additional principles that the Operator and other officers taking action under the Scheme have appropriate regard to when redress is assessed, offered and provided. These principles include:

(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.

Subclause 10(4) provides that redress should be assessed, offered and provided to avoid, as far as possible, further harm or trauma to the survivor. Subclause 10(5) provides that 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

Clause 11 provides a simplified outline of Part 2-2.

Division 2 - Entitlement to redress under the Scheme Clause 12 sets out when a person is entitled to be provided with redress.

Subclause 12(1) provides that a person can only be provided with redress under the Scheme if the person is entitled to redress.

Subclause 12(2) specifies the requirements that must be satisfied for a person to be entitled to redress under the Scheme. These are:

(a)

the person applies for redress under clause 19; and

(b)

the Operator considers that there is a reasonable likelihood that the person is eligible for redress under the Scheme (see clause 13 for eligibility); and

(c)

the Operator approves the application under clause 29; and

(d)

the Operator makes an offer for redress to the person under clause 39; and

(e)

the person accepts the offer in accordance with clause 42.

Reasonable likelihood is defined in clause 6 to mean that the chance of the person being eligible for redress is real and not fanciful or remote.

Example:

Person A makes an application for redress in the approved form and verifies the information provided in the application by statutory declaration. The Operator, after reviewing the application and the statutory declaration, considers that there is a reasonable likelihood that the person is eligible, approves their application and makes an offer of redress. Person A accepts the offer by signing the acceptance document and is therefore entitled to redress.

Subclause 12(3) provides that a person is entitled to redress, or a component of redress, under the Scheme if this Bill or the rules prescribe that the person is entitled to it. The note cross references Part 3-1 which provides for special cases where this Bill prescribes that a person is entitled to redress, or a component of it (for example, where a person dies before accepting their offer of redress, the Bill allows for the redress payment to be made to other persons in certain circumstances).

Subclause 12(4) provides that if this Bill or the rules prescribe that a person is not entitled to redress, or a component of redress, under the Scheme then the person is not entitled to it, despite subclauses (2) and (3). The note cross references Part 3-2 which provides for cases where this Bill prescribes that a person is not entitled to redress, or a component of it (for, example, where a person has a security notice in force against them, they will not be entitled to redress).

Clause 13 sets out when a person is eligible for redress.

Subclause 13(1) provides that a person is eligible for redress under the Scheme if the person was sexually abused, the sexual abuse is within the scope of the Scheme, the sexual abuse that could be payable to the person when worked out under the assessment framework would be more than nil, one or more participating institutions are responsible for the abuse and 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. This eligibility requirement is included to mitigate the risk of fraudulent claims and to maintain the integrity of the Scheme. It would be very difficult to verify the identity of those who are not citizens, permanent residents or within the other classes who may be specified in the rules. Removing citizenship requirements would likely result in a large volume of fraudulent claims that would impact application timeliness and provision of redress to survivors.

Note 1 to subclause 13(1) clarifies that to be eligible for redress, a person must have been sexually abused. It clarifies that redress is for the sexual abuse (which must be present) and any related non-sexual abuse, of the person that is within the scope of the Scheme.

Note 2 to subclause 13(2) cross references subclause 108(2) that sets out which institutions are participating institutions.

Examples of eligibility for subclause 13(1) of the Scheme:

1. Person B is an Australian permanent resident who suffered sexual abuse as a child while in a Commonwealth institution before the Scheme start day. Person B is eligible for redress.

2. Person C is an Australia citizen who suffered physical abuse, but not sexual abuse, as a child while in the care of a participating institution, outside Australia before the Scheme start date. Person C is ineligible for redress as they did not suffer sexual abuse. For non-sexual abuse to be considered under the Scheme, it has to be related to the sexual abuse suffered.

3. Person D is an Australian Citizen who suffered sexual abuse at the age of 19 while in the care of a participating institution, inside Australia before the Scheme start day. Person D is ineligible for redress as the sexual abuse did not occur when Person D was a child.

Subclause 13(2) provides that a person is also eligible for redress if this Bill or the rules prescribe that the person is eligible for redress under the Scheme.

The findings and recommendations of the Royal Commission identified a lengthy period over which instances of child sexual abuse in an institutional context occurred. This means it is not possible, prior to the Scheme commencing, to identify or quantify the range of persons who are or should be eligible for redress. The Scheme therefore needs to have suitable flexibility to analyse each individual application and respond quickly to survivor needs (declare a person eligible) over the life of the Scheme.

The need to respond quickly to survivor needs is a key feature of the Scheme as many survivors have waited decades for recognition and justice. The use of rules rather than regulations provides the necessary flexibility to respond more quickly to unforeseen factual matters as they arise, because rules can be adapted and modified more quickly than regulations or Acts. Prescribing in the Bill or rules that a person is eligible under the Scheme confers a benefit on a survivor to receive redress quickly rather than having to engage in a lengthy civil litigation processes, and additionally receive a direct personal response of acknowledgement and apology from a responsible institution, which would not be available through a litigation process.

Rules made under subclause 13(2) are therefore necessary to ensure that the Scheme can be appropriately flexible. There may be classes of survivors that the Scheme has not, or could not, envisage to include in the Bill, whom can be accommodated via this rule making power. This ensures participating institutions are able to provide redress to all survivors of abuse for which the institution is responsible. Governments and entities who elect to opt in to the Scheme do so to meet the objectives of the Scheme to ensure survivors prescribed under subclause 13(2) receive the same acknowledgement and redress as those eligible under subclause 13(1) where a participating institution is responsible for the abuse and agreed to participate in the Scheme.

Subclause 13(3) provides that despite a person meeting the eligibility requirement in subclauses 13(1) and (2), this Bill or the rules may prescribe that a person is not eligible for redress under the Scheme.

The capacity to prescribe a person is not eligible under the Scheme is required, as prior to commencement of the Scheme and receipt of applications, it is not possible to account for every category of person that should not be eligible for redress under the Scheme. The power under subclause 13(3) is intended to be used for exceptional cases to respond to classes of survivors that apply for redress that the Scheme has not, or could not, envisage would apply and that needed to be specified as not eligible under the Scheme. This may include circumstances where allowing a class of persons to be eligible for redress may bring the Scheme into disrepute or adversely affect public confidence in, or support for, the Scheme.

Learnings from past schemes have shown it will be necessary to adjust policy settings to mitigate against unintended outcomes. It is essential that the Scheme is flexible and adaptable to the realities of implementation, which requires some provisions, such as eligibility requirements, to be in the rules. Protections will be in place to balance this flexibility, including governance arrangements, to provide oversight of the operation of the Scheme.

The governance arrangements include a Ministerial Redress Scheme Board (the Board), as set out in the National Redress Scheme Agreement, that will comprise Ministers from participating States and participating Territories. The Board must agree to any legislative or key policy changes required over time, including proposed amendments to the rules.

Clause 14 provides that abuse of a person is within the scope of the Scheme if the abuse occurred when the person was a child while inside a participating State, inside a Territory, or outside Australia and the abuse occurred before the Scheme start day (subclause 14(1)).

A child is defined in clause 6 to mean a person under 18.

Subclause 14(2) provides that this Bill or the rules under the Bill may prescribe that abuse is within the scope of the Scheme.

Subclause 14(3) provides that, despite subclauses (1) and (2), this Bill or the rules may prescribe abuse that is not within the scope of the Scheme.

Allowing the rules to prescribe types of abuse that is, or is not, within the scope of the Scheme makes it clear to potential applicants the instances of abuse that are not covered by the Scheme.

Initially, the rules will prescribe that where a person has received a favourable court award (excluding a settlement) in respect of abuse, that abuse is not within the scope of the Scheme insofar as the relevant participating institution is responsible for the abuse.

Clause 15 sets out when a participating institution is responsible for abuse.

Subclause 15(1) provides that an institution (whether or not a participating institution) is responsible for sexual abuse or non-sexual abuse of a person if the institution is primarily responsible or equally responsible for the abuse.

Subclause 15(2) provides for when an institution will be primarily responsible for sexual abuse and any non-sexual abuse of a person. Responsibility will arise if the institution is solely or primarily responsible for the abuser having contact with the person.

Examples:

1. Person A was abused in a church where the abuser was a priest at the church, and there was otherwise no connection to any other organisation. The church is likely to be considered to be primarily responsible for the abuse.

2. Person B was abused whilst participating in activities at a local sporting club, where the abuser was their coach. The sporting club received Territory government funding. The sporting club is likely to be primarily responsible for the abuse. The Territory only provided funding to the sporting club and is unlikely to be responsible for redress under the Scheme.

The above are illustrative examples only and the Operator of the Scheme is responsible for determining who will be liable to pay redress under the Scheme.

Subclause 15(3) provides for when an institution will be equally responsible with one or more other institutions, for sexual abuse and any non-sexual abuse of a person. Responsibility will arise if one or more institutions are approximately equally responsible for the abuser having contact with the person and no other institution is primarily responsible for the abuse of the person.

Examples:

1. Person A was abused in an orphanage run by a non-government institution, where the child was in the care of a participating State and the government placed the child into the orphanage. The abuser was a volunteer at the orphanage. The non-government institution and the participating State are likely to be considered to be equally responsible for the abuse.

2. A religious institution provided chaplaincy or religious instruction at a State institution, which was a public school, during school hours, and at the invitation of a school. An employee of the religious institution abused Person B on school grounds after the religious instruction class. The religious institution and the State are likely to be considered to be equally responsible for the abuse.

The above are illustrative examples only and the Operator of the Scheme is responsible for determining who will be liable to pay redress under the Scheme.

Subclause 15(4) provides circumstances that may be relevant for determining under subclause 15(2) or (3) whether an institution is primarily responsible or equally responsible for the abuser having contact with the person. The following list of circumstances is non-exhaustive and includes:

(a)

whether the institution was responsible for the day-to-day care and 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 activities of the institution;

(f)

any other circumstances prescribed by the rules.

The note at the end of subclause 15(4) clarifies that when determining the question whether an institution is responsible for abuse of a person, the circumstances listed in this subclause are relevant to that question, but none of them on its own is determinative of that question.

The rule making power in paragraph 15(4)(f) is required so that the Scheme can be responsive to survivors' and participating institutions' needs over the 10 year operation of the Scheme. As applications are processed, further circumstances that are relevant to determine whether an institution is primarily or equally responsible for an abuser having contact with the person are likely to arise. It is important that such circumstances can be included in the rules quickly in order to process applications without delays that an amendment to primary legislation would entail.

Examples:

1. Responsibility of an institution for abuse of a person may be determined where:

•

Person A was a student abused on school grounds, during school hours, by a teacher of the school (the school determined to be responsible).

•

Person B was a cadet abused at a cadet program during program hours, where the abuser was the program leader (the cadet unit determined to be responsible).

•

Person C was abused in a church, where the abuser was a priest at the church (the church determined to be responsible).

Note: for a person to be eligible under the Scheme the abuse had to occur at the time they were a child, defined in clause 6 to be a person under 18.

2. Responsibility of an institution for abuse of a person may not be determined where Person D was a child abused on school grounds, on a weekend, by a person not connected to the school.

Subclause 15(5) provides that, despite subclauses 15(1), (2) and (3), an institution is responsible, primarily responsible or equally responsible for sexual or non-sexual abuse of a person if the rules prescribe circumstances in which an institution is, or should be treated as being, responsible for the abuse of the person.

Initially, the rules will prescribe that a participating government institution will be equally responsible with a non-government institution where the government institution made an arrangement with the non-government institution to have responsibility for the day-to-day care of a child; at the time of the abuse, the government institution had parental responsibility for the child, or the child was a state ward; and the abuse occurred while the child was in the care of the non-government institution

Initially, the rules will also prescribe that a Commonwealth defence institution will be equally responsible with another institution(s) where the abuse occurred on or after 1 January 1977; the abuse was connected with the person's membership of a cadet unit provided for by Commonwealth legislation; and the other institution(s) would ordinarily be primarily or equally responsible (without the Commonwealth defence institution) for the abuse.

Example

In 1985, a child living in the Australian Capital Territory (ACT) (prior to self-government in the Territory) is under the parental responsibility of the Commonwealth government. The child is placed by an agency of the Commonwealth government in the care of an ACT based orphanage, run by a non-government institution. At the orphanage, the child was abused by an employee of the orphanage. In this case, whilst the non-government institution might ordinarily be found primarily responsible for the abuse, the application of this rule would see the Commonwealth and the non-government institution equally responsible for the abuse.

The rule making power in subclause 15(6) will allow the rules to prescribe circumstances in which an institution is not responsible, primarily responsible or equally responsible for abuse, despite subclauses (1), (2) and (3).

Initially, the rules will prescribe that a government institution is not responsible for the abuse of a person where another institution was responsible, and the only connection between the government institution and the abuse is that the government institution regulated the other institution, funded the other institution, or the other institution was established by or under the law of the relevant government.

Example

In 2004, a child in the care of a private hospital for an illness is abused by an employee of the hospital. The hospital complies with the regulation of the relevant State/Territory government and the company which owns the hospital is incorporated under the Corporations Act 2001. As the State/Territory government and the Commonwealth government otherwise have no connection to the abuse, the application of this rule means that they are not responsible for the abuse.

The rule making power in subclauses 15(5) and (6) is required so that the Scheme can be responsive to survivors' and participating institutions' needs over its 10 year operation. The rule making power in subclause 15(6) is intended to ensure that institutions that should be responsible, primarily responsible or equally responsible for abuse are held to be responsible for any abuse that occurred.

The rule making power in subclause 15(6) is intended to ensure that institutions are not found primarily responsible or equally responsible in circumstances where it would be unreasonable to hold the institution responsible for abuse that occurred.

Clause 16 sets out the redress that may be provided to a person.

Subclause 16(1) provides that redress consists of the following 3 elements:

(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 person's abuse.

The note to subclause 16(1) cross references subclause 54(2) that specifies what may be contained in a direct personal response from a participating institution.

Subclause 16(2) makes it clear that a person entitled to redress under the Scheme can choose any or all of the three elements of redress.

Subclause 16(3) provides for the giving of direct personal responses where there are two or more participating institutions that are determined to be responsible for the person's abuse. In this situation, if the person chooses to be given a direct personal response, then the person may choose to be given a response from each of those institutions, or from only some of them or one of them.

Clause 17 provides that redress for a person is for the sexual abuse, and related non-sexual abuse, of a person that is within the scope of the Scheme. The note to clause 17 clarifies that while redress is for both 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. The note provides a cross reference with paragraph 13(1)(b) that provides the eligibility criteria for access to redress.

Part 2-3 - How to obtain redress under the Scheme

Division 1 - Simplified outline of this Part

Clause 18 provides a simplified outline of Part 2-3.

Division 2 - Application for redress under the Scheme

Clause 19 sets out the requirements for an application for redress.

Subclause 19(1) provides that a person must make an application to the Operator to obtain redress under the Scheme.

Subclause 19(2) sets out the requirements that must be complied with for an application to be valid, including that it must be in the approved form, specify where the person lives, include any information and be accompanied by any documents required by the Operator and be accompanied by a statutory declaration that verifies the information included in the application.

Subclause 19(3) provides that the Operator is not required to make a determination on an application that is not valid.

Clause 20 provides for when an application cannot be made.

Subclause 20(1) sets out that a person cannot make an application for redress 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); or

(e)

the application is being made in the period of 12 months before the Scheme sunset day.

Subclause 20(2) provides that paragraphs 20(1)(d) and (e) do not apply if the Operator determines there are exceptional circumstances justifying the application being made.

Paragraph 20(1)(b) is included to ensure the Scheme does not accept applications from people who may prejudice the security of Australia or a foreign country.

Paragraph 20(1)(c) is included as the Scheme cannot ensure adequate protections for children considering the significant nature of the statutory release and the potential amount of payments under the Scheme. Child survivors, and their families, including those who are unable to make an application to the Scheme, will be able to access the Scheme's legal support services in order to consider the child's legal rights, particularly if civil litigation may be a viable alternative.

Paragraph 20(1)(d) is included as it would be difficult to secure appropriate redress support services for this environment, and there are risks associated with the confidentiality of applicants in a closed institutional setting.

Subclause 20(2) provides that paragraphs 20(1)(d) and (e) do not apply if the Operator determines there are exceptional circumstances justifying the application being made. Exceptional circumstances may include where a person is in gaol for the last 12 months of the Scheme, or is in gaol for the life of the Scheme (in which case clause 63 will apply to the person).

Subclause 20(3) provides that before making a determination under subclause 20(2), the Operator must comply with any requirements prescribed by the rules.

Examples:

1. Person F experienced sexual abuse as a child in two institutions and submits two applications to the Scheme (one for each institution). One of the applications is valid and the other cannot be accepted as clause 20 provides only one application can be made. In this example, Person F should withdraw both applications and resubmit a new single application that includes both instances of abuse.

2. Person G applies for and receives redress. Five years later, Person G makes another application for a separate instance of institutional child sexual abuse. This application is invalid because Person G has already made an application to the Scheme and clause 20 provides only one application can be made to the Scheme.

3. Person H suffered sexual abuse in two separate instances as a child. Person H makes an application to the Scheme, although only one of the responsible institutions is a participating institution. Person H is advised about the one application only rule (clause 20) that he may benefit from withdrawing his application, and re-submitting once the second responsible institution agrees to participate in the Scheme. Person H chooses to wait and withdraws his application. One year later, the second responsible institution agrees to participate in the Scheme. Person H contacts the Scheme and submits his application in relation to the two separate instances of abuse. Person H's application is valid as he withdrew his initial application in the year prior. Person H receives an offer in relation to both instances of abuse because both responsible institutions are participating in the Scheme and determined responsible for the abuse.

4. Person J applies for redress. However, the Operator determines that Person J is ineligible to apply for redress as the Home Affairs Minister has issued a security notice against Person J. Two years later, the Home Affairs Minister revokes the security notice. Person J then applies for redress again, and has their application accepted and progressed to assessment.

5. Person K is 4 years old. Person K applies for redress under the Scheme, but their application is not accepted as they will not turn 18 before the Scheme sunset day. Person K, and their family, are referred to the Scheme's legal support service to consider whether civil litigation is a viable alternative.

6. Person L is remanded in a custodial centre. Person L applies for redress under the Scheme, but their application is not accepted. Four weeks later Person L is released from remand with no charge and again applies for redress under the Scheme. Person L's application is accepted and progressed to assessment

Clause 21 provides a special process for applications for redress by a child.

Under subclause 21(1), if a person makes an application for redress under the Scheme and 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.

Subclause 21(2) provides that rules made for the purposes of subclause (1) apply despite subsection 29(1) (which requires the Operator to make a determination to approve, or not approve, the application as soon as practicable).

The special process for children applying to the Scheme, as prescribed in the rules, is necessary to ensure there are adequate protections in place for this cohort. Children who will turn 18 throughout the life of the Scheme may apply for redress; however, their application will not be determined until they reach 18 years of age. This will allow the Scheme to request information from the responsible institution(s) at the time of the application to ensure the information is current, especially in the circumstance where the responsible institution may go defunct before the claim can be determined. Once the child reaches 18, the survivor can choose to proceed with their application, withdraw their application and reapply, or withdraw their application completely. Those child survivors who are waiting for their redress application to be determined will have access to the Scheme's support services throughout this period.

Clause 22 provides that a person may withdraw their application at any time before the Operator makes a determination on the application under clause 29. An application that is withdrawn under subsection 21(1) is treated as not having been made (subclause 22(2)).

Clause 23 provides for the Operator to notify participating institutions of the withdrawal of an application. If a person withdraws an application under subclause 22(1) and, before the withdrawal, the Operator had requested a participating institution under clause 25 to provide information that may be relevant to a person's application, then the Operator must give the institution written notice that the person's application has been withdrawn. The notice must also comply with any requirements prescribed by the rules (subclause 23(2)).

Division 3 - Obtaining information for the purposes of determining the application

Clause 24 gives the Operator the power to request information from applicants.

Subclause 24(1) provides that the Operator may request a person who applies for redress to give information if the Operator has reasonable grounds to believe that the person has information that may be relevant to determining the person's application. The note at the end of subclause 24(1) clarifies that 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 in writing (subclause 24(2)).

Subclause 24(3) sets out that the notice must specify the matters listed in the subclause, including the period in which the person is requested to give the information. This is referred to as the production period. Subclause 24(3) also requires the notice to specify the nature of the information that is requested to be given, how the person is to give the information and that the notice is given under clause 24.

The production period must be at least 4 weeks if the Operator considers the application is urgent, otherwise 8 weeks beginning on the date of the notice (subclause 24(4)).

Subclause 24(5) provides that the Operator may, by written notice to the person, extend the production period where the Operator considers it appropriate to do so.

Subclause 24(6) makes it clear that an extension may be given on the Operator's own initiative or following a request from the person under subclause 24(7).

Subclause 24(7) sets out how a person can go about requesting an extension of the production period. Any request must be made before the end of the production period and must comply with any requirements specified in the rules.

The consequence of a person failing to comply with a request within the production period is that the Operator may make a decision about the application in the absence of that information.

Clause 25 gives the Operator the power to request information from participating institutions.

Subclause 25(1) provides that if an application for redress is made by a person, the Operator must request a participating institution to give any information that may be relevant to the application to the Operator. The Operator must request the information if the application identifies a participating institution as being involved in the abuse or the Operator has reasonable grounds to believe that the participating institution may be responsible for the abuse of the person.

Subclause 25(2) provides that if an application for redress is made by the person 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 any information that may be relevant to the Operator.

The notes at the end of subclauses 25(1) and (2) clarify that 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 subclause 25(1) or (2) must be made in writing given to the institution (subclause 25(3)).

Subclause 25(4) sets out that the notice must specify the matters listed in the subclause, including the period in which the person is requested to give the information to the Operator. This is referred to as the production period. Subclause 25(4) also requires the notice to specify the nature of the information that is requested to be given, how the institution is to give the information and that the notice is given under clause 25.

The production period must be at least 4 weeks if the Operator considers the application is urgent, otherwise 8 weeks beginning on the date of the notice (subclause 25(5)).

Subclause 25(6) provides that the Operator may, by written notice to the institution, extend the production period where the Operator considers it is appropriate to do so.

Subclause 25(7) makes it clear than an extension may be given on the Operator's own initiative or following a request from the institution under subclause 25(8).

Subclause 25(8) sets out how an institution can go about requesting an extension of the production period. The request must be made before the end of the production period and must comply with any requirements specified in the rules.

The consequence of an institution failing to comply within the required timeframe is that the Operator may make a decision about the application in the absence of that information.

Clause 26 sets out consequences for the applicant or institutions failing to comply with a request.

Subclause 26(1) provides that if, under clause 24, the Operator requests further information from a person who has made an application for redress and the information requested is not provided in the production period, the Operator is not required to make a determination on the application until the information is provided.

Subclause 26(2) provides that if, under clause 25, the Operator requests a participating institution to provide information in relation to an application for redress and the information is not provided in the production period, the Operator may progress the application and make a determination on the basis of the information that has been obtained by, or provided to, the Operator.

Clause 27 clarifies that the obligation for a person to give the requested information to the Operator for the purposes of the Scheme, is not prevented by anything in a law of a State or a Territory unless that law is prescribed by the rules.

Clause 28 provides that 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. The note clarifies that this is a civil penalty provision and that conduct prohibited by this clause may also be an offence against the Criminal Code to make false or misleading statements, give false or misleading information or produces false or misleading documents (see sections 136.1, 127.1 and 137.2 of the Code). The penalty is 60 penalty units.

This civil penalty is justified to ensure that Scheme is adequately protected against the risk of fraudulent applications. Large volumes of false claims from organised groups could overwhelm the Scheme's resources and delay the processing of legitimate applications. The Government is continually undertaking fraud detection activities to ensure the integrity of payments and it is important that the Scheme's policy settings support the integrity and appropriate targeting of payments made under the Scheme. Should the Scheme not safeguard against potential fraud, institutions may choose not to participate, or may seek to leave the Scheme, leaving legitimate survivors unable to access redress from those institutions. The level of the penalty is sufficiently high to support the principle of deterrence, and ensure that applications made to the Scheme are legitimate and appropriate.

Division 4 - The Operator must determine whether to approve the application

Clause 29 sets out how the Operator must make a determination to approve, or not approve, the applications as soon as practicable (subclause 29(1)).

Under subclause 29(2), the Operator must comply with the following requirements if the Operator considers that there is a reasonable likelihood that the person is eligible for redress:

(a)

approve the application; and

(b)

determine each participating institution that is responsible for the abuse and therefore liable for providing redress to the person; and

(c)

determine (in accordance with clause 30 (method for calculating the amount of redress payment and sharing of costs)) the amount of the redress payment for the person and the amount of each responsible institution's share of the costs of the redress payment; and

(d)

determine (in accordance with clause 31 (working out the amount of the counselling and psychological component and sharing of costs)) the amount of the counselling and psychological component of redress for the person and 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 access to the counselling and psychological services that are provided under the scheme or a counselling and psychological services payment; and

(f)

determine that the amount of the payment equals the amount of the counselling and psychological component of redress for the person, if that component of redress for the person consists of a counselling and psychological services payment; 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; and

(i)

determine that the participating government institution is the funder of last resort for the defunct institution in relation to the abuse 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.

Note 1 clarifies the liability for costs if the Operator determines that the participating government institution is the funder of last resort for the defunct institution. In these circumstances the participating government institution will be liable to pay the defunct institution's (hypothetical) share of costs of providing redress to the person (see clause 165 (special rules for funder of last resort cases)). 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 clarifies that only defunct institutions that are both non-government institutions and not participating institutions can be listed for a jurisdiction (see subclause 164(1)).

If the Operator does not consider that there is a reasonable likelihood that the person is eligible for redress, the Operator must make a determination not to approve the application (subclause 29(3)).

Subclause 29(4) provides that the rules may require or permit the Operator to revoke, under this subclause, a determination made under subclause 29(2) or (3).

Subclause 29(5) provides that the Operator cannot revoke a determination made under subclause 29(2) if the person has been given an offer of redress and the person has accepted the offer in accordance with clause 42.

Subclause 29(6) sets out the consequences if the Operator revokes the determination. The effect of a revocation is:

(a)

every determination made under subclause 29(2) or (3) is taken never to have been made; and

(b)

if the person has not accepted or declined an offer that has been made - the offer is taken to be withdrawn; and

(c)

if the person has applied for a review of the determination - the review application is taken to be withdrawn; and

(d)

the Operator may make further requests for information relating to the person's application under clause 24 or 25.

Under subclause 29(7), the Operator must give a written notice to the person and each participating institution that was notified under clause 35 of the determination. The notice must state that the determination has been revoked, that the determination is taken never to have been made, the fact that an offer of redress has been withdrawn under paragraph 29(6)(b), the fact that an application for review of the determination has been withdrawn under paragraph 29(6)(c) and any other matter prescribed by the rules.

Clause 30 deals with working out the amount of the redress payment to the person and each responsible institution's share of the costs of that payment. Subclause 30(1) sets out how the Operator must make a determination under paragraph 29(2)(c) with respect to those amounts. The note clarifies that this clause only applies if the Operator approves the person's application for redress.

Subclause 30(2) provides the method for working out the share of costs. The subclause provides that the Operator must first work out, for each responsible institution, the amount of that institution's share of the costs of the redress payment by using the following method statement:

•

Step 1 - Apply the assessment framework to work out the maximum amount of the 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 the amount that is the responsible institution's share of the maximum amount (in accordance with the rules). 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 by the institution to the person by, or on behalf of, the responsible institution in relation to abuse for which the institution is responsible. Any payment that is prescribed by the rules as not being a relevant payment is not to be included. This will allow certain payments (for example, statutory entitlements under veterans' legislation) to be disregarded so that they do not need to be offset against the redress payment amount. This amount is the original amount of the relevant prior payment.

•

Step 4 - Multiply the original amount by (1.019)n where n is the number of whole years since the relevant prior payment was paid to the person. The resulting amount is the adjusted amount of the relevant prior payment of the institution. The note to step 4 clarifies that the adjustment is broadly to account for inflation.

•

Step 5 - Add together the adjusted amount of each relevant prior payment of the institution. This amount is the reduction amount for the institution. The resulting amount should be rounded up if it is not a whole number of cents.

•

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.

Subclause 30(3) provides that the Operator must then work out the amount of the 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 must not exceed the maximum amount of the redress payment (that is, $150,000).

Note 1 to subclause 30(3) clarifies that the amount of the redress payment 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. The note goes on to provide that while a 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, such as access to the counselling or psychological component and a direct personal response (see clause 16).

Note 2 to subclause 30(3) alerts the reader that where a funder of last resort is liable for the costs of redress, subclause 165(2) provides how the amount of the redress payment and share of the costs of the payment are worked out.

Examples:

1. Person X applies for redress on 3 September 2019. On 21 September 2019 the Operator considers that there is a reasonable likelihood that Person X is eligible so must determine the amount of the redress payment and the amount of each liable institution's share of the costs of the redress payment. Person X suffered abuse in two separate instances. Institutions H and J are equally responsible for the first instance of abuse and Institution L is primarily responsible for the second instance of abuse.

The Operator steps each institution through the method statement:

Step 1 & 2 - under the assessment framework the maximum amount payable to Person X is $140,000. The gross liability amounts are:

Institution H - $50,000

Institution J - $50,000

Institution L - $40,000

Step 3 - Person X has not received a relevant payment from Institution H, although Person X received a prior redress payment of $5,000 from Institution J on 31 October 2015 and received a prior ex-gratia payment of $700 from Institution L on 1 July 1999. Therefore the original amounts are:

Institution H - N/A

Institution J - $5,000

Institution L - $700

Step 4 - Institution J - It has been three full years since the original amount was received, therefore the sum is:

5,000 * (1.019)3 = 5,290.45


Therefore the adjusted amount for Institution J is $5,290.45

Institution L - It has been 19 full years since the original amount was received, therefore the sum is:

700 * (1.019)19 = 1,000.94


Therefore the adjusted amount for Institution L is $1,000.94

Step 5 - As Institutions J and L each only made one relevant payment, the reduction amounts are the adjusted amounts in step 4.

Step 6 - Each institution's shares are:

Institution H - $50,000

Institution J - $50,000 - $5,290.45 = $44,709.55

Institution L - $40,000 - $1,000.94 = $38,999.06

2. Person Y applies for redress on 7 July 2018. On 21 July 2018 the Operator considers that there is a reasonable likelihood that Person Y is eligible for redress and must determine the amount of the redress payment and the amount of each liable institution's share of the costs of the redress payment. Institution K is primarily responsible for the abuse.

The Operator steps Institution K through the method statement:

Step 1 & 2 - under the assessment framework the maximum amount payable to Person Y is $45,000. The gross liability amount from Institution K is $45,000.

Step 3 - Person Y received two relevant payments from Institution K, including:

a settlement payment of $25,000 on 1 June 1991; and

an ex-gratia payment of $5,000 on 1 November 2015.

Therefore the original amounts are $25,000 and $5,000.

Step 4 - It has been 27 full years since the settlement payment, therefore the sum is:

25,000 * (1.019)27 = 41,556.88


Therefore the adjusted amount for the settlement payment is $41,556.88

It has been two full years since the ex-gratia payment, therefore the sum is:

5,000 * (1.019)2 = 5,191.81


Therefore the adjusted amount for the ex-gratia payment is $5,191.81

Step 5 - the reduction amount is the sum of Institution K's adjusted amounts:

$41,556.88 + $5,191.81 = $46,748.69 (reduction amount)


Step 6 - Subtract the reduction amount of $46,748.69 from the gross liability amount of $45,000. As the reduction amount is greater than Institution K's gross liability of $45,000 and subclause 29(2) Step 6 provides that the amount may be nil but not less than nil, the result for Institution K is nil and the institution's share of the costs of the redress payment for Person Y is nil. Institution K will still have to pay for the costs of other elements of redress (access to counselling or psychological services and a direct personal response) if Person Y would like to receive them.

3. Person Q applies for redress on 5 September 2018. On 20 September 2018 the Operator considers that there is a reasonable likelihood that Person Q is eligible to receive redress, so must determine the amount of the redress payment and the amount of each liable institution's share of the costs of the redress payment. Person Q suffered abuse in two separate instances. Institution V is primarily responsible for the first instance of abuse and Institution D is primarily responsible for the second instance of abuse.

The Operator steps each institution through the method statement:

Step 1 & 2 - under the assessment framework the maximum amount payable to Person Q is $120,000. The gross liability amounts are:

Institution V - $100,000

Institution D - $20,000

Step 3 - Person Q has not received a relevant payment from institution V, although received a prior ex-gratia payment of $35,000 from Institution D on 30 June 2016. Therefore the original amounts are:

Institution V - N/A

Institution D - $35,000

Step 4 - It has been two full years since the original amount was received, therefore the sum is:

35,000 * (1.019)2 = 36,342.64


Therefore the adjusted amount for Institution D is $36,342.64

Step 5 - As Institution D only made one relevant payment, the reduction amount is the adjusted amount in step 4.

Step 6 - Subtract the reduction amount of $36,342.64 from Institution D's gross liability amount of $20,000. As the reduction amount is greater than Institution D's gross liability of $20,000 and subclause 33(2) Step 6 provides that the amount may be nil but not less than nil, the result for institution is nil, therefore the institution's share of the cost of the redress payment are:

Institution V - $100,000

Institution D - nil

Clause 31 deals with working out the amount of the counselling and psychological component of redress and the amount of each responsible institution's share of costs of that component. Subclause 31(1) sets out how the Operator must make a determination under paragraph 29(2)(d) with respect to those amounts. The note clarifies that this clause only applies if the Operator approves the person's application for redress.

Subclause 31(2) provides that the Operator must apply the assessment framework to work out the amount of the component, which must not be more than $5,000, regardless of the number of responsible institutions.

Subclause 31(3) provides that the Operator must work out the amount that is each responsible institution's share of the cost of the component in accordance with the rules. The note cross references that for funder of last resort cases, subclause 165(3) affects how the amount of the counselling and psychological component and the share of costs of the component is worked out.

Clause 32 provides for a Ministerial declaration which is referred to as the assessment framework.

Subclause 32(1) provides that the Minister may declare, in writing, a method, or matters to take into account, for the purposes of working out the amount of the redress payment for a person and the amount of the counselling and psychological component of redress for a person. The note to subclause 32(1) notifies the reader that a declaration made under subclause 32(1) may be varied or revoked as provided for in subsection 33(3) of the Acts Interpretation Act 1901.

Subclause 32(2) provides that the declaration is the assessment framework.

Subclause 32(3) provides that a declaration under subclause 32(1) is a legislative instrument, but is exempt from section 42 of the Legislation Act 2003, which provides for disallowance. It is necessary to exempt this Ministerial declaration from disallowance so that the method or matters to be taken into account for the purpose of working out the amount of redress payment for a person are certain for applicants to the Scheme and decision-makers. This declaration would ordinarily be of an administrative character and would not be a legislative instrument without this provision. However, in order to ensure certainty and transparency it is appropriate to make this declaration a legislative instrument.

Clause 33 provides for the assessment framework policy guidelines. Clause 33 provides that, when applying the assessment framework for the purposes of clauses 30 and 31, the Operator may take into account the assessment framework policy guidelines (subclause 33(1)) which may be made by the Minister, in writing (subclause 33(2)). The guidelines are the assessment framework policy guidelines (subclause 33(3)).

Subclause 33(4) provides that the guidelines are not a legislative instrument. These guidelines are of an administrative character, the content of which will not be provided in a legislative instrument. The reason for omitting detailed guidelines is to mitigate the risk of fraudulent applications. Providing for detailed guidelines would enable people to understand how payments are attributed and calculated, and risks the possibility of fraudulent or enhanced applications designed to receive the maximum redress payment under the Scheme being submitted. The Scheme has a low evidentiary threshold and is based on a 'reasonable likelihood' test. These aspects of the Scheme are important and provide recognition and redress to survivors who may not be able or may not want to access damages through civil litigation.

Division 5 - Notice of determination to applicant and participating institutions

Clause 34 sets out the requirement for the Operator to notify the applicant about a determination under clause 29. Subclause 34(1) provides that the Operator must give a written notice to a person who has applied for redress, if the Operator makes a determination under clause 29 about the application. The notice must state:

(a)

whether or not the application has been approved; and

(b)

the reasons for the determination; and

(c)

that the person may apply for an internal review of the determination (clause 73 deals with internal reviews).

Subclause 34(2) provides that if the application has been approved, the notice mentioned in subclause 34(1) must include the offer of redress to the person under clause 39 (deals with the content of the offer of redress).

Subclause 34(3) provides that the notice must specify a day, which must be at least 28 days but no longer than 6 months after the date of the notice, by which the person may apply for review of the determination under clause 73. Subclause 34(3) also provides that the notice must comply with any matters prescribed by the rules.

Clause 35 applies if the Operator makes a determination under clause 29 in relation to a person and a participating institution is specified in the determination, the Operator must give the institution written notice of the determination in accordance with subclause 35(2) (subclause 35(1)).

Subclause 35(2) provides that the Operator must give the institution written notice of the determination stating:

(a)

whether or not the application has been approved; and

(b)

if the 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)

the fact that the institution is an associate of a responsible institution, if determined by the Operator under paragraph 29(2)(g); and

(d)

the fact that the institution is not responsible for the abuse under the scheme, if determined by the Operator under paragraph 29(2)(h); and

(e)

the fact that the institution is the funder of last resort for a defunct institution, if determined by the Operator under paragraph 29(2)(i); and

(f)

the reasons for the determination as they relate to the institution; and

(g)

the day by which the person may apply under clause 73 for review of the determination.

Subclause 35(3) provides that the notice must also comply with any requirements prescribed by the rules.

Division 6 - Effect of the determination and admissibility of evidence in civil proceedings

Clause 36 sets out the effect of a determination by the Operator. A determination under clause 29 has effect only for the purposes of the Scheme (subclause 36(1)). Subclause 36(2) provides that, in particular, a determination under clause 29 that an institution is, or is not, responsible for the abuse of, or 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 note clarifies that a determination under clause 29 is an administrative decision based on 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 which requires a higher standard of proof.

Subclause 36(3) provides that a determination under clause 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. In other words, an institution's obligation to make payments under the Scheme may be enforced through the civil courts.

Clause 37 provides for the admissibility of documents in evidence in civil proceedings. Subclause 37(1) provides a list of documents that are not admissible in evidence in civil proceedings in a court or tribunal. These are a person's application for redress, a document created solely for the purposes of accompanying a person's application or a document created solely for the purposes of complying with a request for information made by the Operator under clause 24 or 25 in relation to the person's application.

Subclause 37(2) provides that subclause 37(1) does not apply if the admission of the document in evidence in civil proceedings is for the purposes of giving effect to this Bill.

Subclause 37(3) provides that, for the purposes of subclause 37(2) (and without limiting that subclause), if the admission of the document in evidence is in civil proceedings for judicial review of a decision made under this Bill, then the admission is for the purposes of giving effect to this Bill.

Subclause 37(4) provides that subclause 37(1) does not apply if the admission of the document in evidence is in civil proceedings under, or arising out of, clause 28 (which is about providing false or misleading document or information to an officer of the Scheme).

Part 2-4 - Offers and acceptance of redress

Division 1 - Simplified outline of this Part

Clause 38 provides a simplified outline of Part 2-4.

Division 2 - Offers of redress

Clause 39 sets out the matters that must be addressed in the written offer of redress to a person, where the Operator has approved a person's application for redress under subclause 29(2). These are to:

(a)

provide an explanation of the 3 components of redress (that is, the redress payment, access to the counselling and psychological component, and the direct personal response); and

(b)

specify the amount of the redress payment; and

(c)

specify 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, specify the amount of that payment; and

(e)

specify the participating institutions that the Operator has determined under paragraph 29(2)(b) to be responsible for the abuse and therefore liable for providing redress to the person under the Scheme. Although the Operator may determine that an institution is responsible for a person's abuse, the institution may not be liable for redress if the funder of last resort provisions under Part 6- 2 apply; and

(f)

if any of those responsible institutions is a defunct institution that has a representative:

(i)

specify the person who is the representative; and

(ii)

explain 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, specify the participating institutions determined by the Operator under paragraph 29(2)(g) to be associates of any of those responsible institutions; and

(h)

specify the participating institutions identified by the person in their application but determined by the Operator as not responsible for the person's abuse (see subclause 29(2)(h)) and therefore not liable to provide redress to the person under the Scheme; and

(i)

provide that where 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 the offer of redress specifies the defunct institution, and explains that the participating government institution is liable for the defunct institution's (hypothetical) share of the costs of providing redress to the person. The offer must also explain 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)

state the date of the offer; and

(k)

specify the acceptance period in which the offer may be accepted (see clause 40); and

(l)

give 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)

give information about other services available under the Scheme to help the person decide whether to accept the offer; and

(n)

explain how to accept or decline the offer, should the person decide to do so; and

(o)

inform the person that the offer expires at the end of the acceptance period; and

(p)

explain the effect of releasing responsible institutions, their officials, their associates and the officials of their associates from civil liability (clause 43), should the person accept the offer; and

(q)

inform the person that the person is not obligated to accept the offer and that by doing nothing the person is taken to decline the offer at the end of the acceptance period; and

(r)

inform the person that he or she cannot make another application for redress under the Scheme, whether or not the offer is accepted; and

(s)

inform the applicant they may request an extension of the acceptance period and how to make that application; and

(t)

comply with any other requirements that are prescribed by the rules.

Clause 40 provides for information about the acceptance period for offers of redress.

Subclause 40(1) provides that the acceptance period for an offer of redress to a person is the period determined by the Operator, which must be at least 6 months, starting on the date of the offer.

Subclause 40(2) provides the Operator with the power to extend the acceptance period before the end of that period, by written notice to a person, if the Operator considers there are exceptional circumstances that justify the extension.

Subclause 40(3) specifies that the extension may be given on the Operator's own initiative or on request of the person made under subclause 40(4).

Subclause 40(4) allows for a person to request the Operator to extend the acceptance period. The request must comply with any requirements prescribed by the rules.

Subclause 40(5) provides that, if the Operator extends the period, the acceptance period is the original period as extended by the Operator. These provisions mean that the acceptance period cannot be extended once that period has expired, and can only be extended before the acceptance period ends. As an extension can be given on the Operator's own initiative, or on a request made by the person, it will usually be incumbent on the person to request that the Operator extend the acceptance period, or to provide the Operator with information pertaining to the exceptional circumstances, before the end of the acceptance period. Without limiting what an exceptional circumstance is, an example of exceptional circumstances might be where a survivor has been hospitalised for ill health and is unable to presently consider the offer of redress.

Example:

Person K applies for redress, is found eligible by the Operator and receives an offer. Person K has 6 months to accept her offer. Person K provides her acceptance in writing seven months after she received the offer. As her acceptance period has expired, Person K was taken to have declined her offer after the 6 month period had expired. Person K is not entitled to redress.

Clause 41 provides for the Operator to give a notice of an offer to participating institutions. Subclause 41(1) provides that the Operator must give the institution or person written notice of the offer if the Operator gives an offer of redress under clause 39 and a participating institution or person referred to in paragraph 39(e), (f), or (g) is specified in the offer.

Subclause 41(2) provides that the notice must state the acceptance period for the offer and comply with any requirements prescribed by the rules.

Division 3 - Accepting or declining offers of redress

Clause 42 provides that a person may accept an offer of redress made by the Operator by complying with this clause (subclause 42(1)).

Subclause 42(2) provides that the person must give the Operator an acceptance document that:

(a)

is in the form approved by the Operator; 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 sexual abuse, or related non-sexual 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 (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 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 that abuse; and

(f)

states the components of the 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 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 acceptance document must be given to the Operator before the end of the acceptance period and in the manner (if any) prescribed by the rules (subclause 42(3)).

Subclause 42(4) provides that the rules made for the purposes of paragraph 42(2)(j) must not require the person to enter into a confidentiality agreement.

Clause 43 outlines the consequences in relation to civil liability of accepting an offer of redress under clause 42. From the time of giving the acceptance and by force of clause 43:

(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 participating released institution or official in relation to that abuse;

(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 clause, 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.

Clause 44 requires a notice to be given to participating institutions that the offer has been accepted. Subclause 44(1) provides that where a person accepts an offer of redress according to the requirements of clause 42, the Operator must give each institution that was notified under clause 41 about the offer, a written notice that specifies the following information:

(a)

the person's acceptance of the offer; and

(b)

the components of redress that the person has elected to receive (including whether the person wishes to receive a direct personal response from the institution); and

(c)

any matters prescribed by the rules.

Subclause 44(2) provides that the notice must be accompanied by a copy of the person's acceptance document.

Clause 45 provides for a person to decline an offer of redress. Subclause 45(1) provides that where an Operator makes an offer of redress to a person, the person may decline the offer before the end of the acceptance period by providing the Operator with a document that:

(a)

is in the approved form; and

(b)

states 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);

(d)

is signed by the person; and

(e)

complies with any requirements prescribed by the rules.

Subclause 45(2) provides that if the person does not accept the offer in accordance with clause 42 within the acceptance period, the offer is deemed to have been declined by the person. This is an automatic ending of the claim to ensure all processes in relation to an application are able to be completed by a direct refusal of the offer of redress or termination of the claim through inaction.

Subclause 45(3) provides that subclause 45(2) does not apply if the person has applied for a review of the Operator's determination on their application for redress under clause 73 and the review has not been completed at the end of the acceptance period.

Example:

Person L applies for redress, is found eligible by the Operator and receives an offer. Person L decides to decline the offer of redress, and advises the Operator of this in the form approved one month into the acceptance period. Person L's acceptance period ends five months early. Person L changes her mind three weeks after rejecting her offer. However, her acceptance period has ended, so she is not entitled to redress.

Clause 46 requires a notice to be given to participating institutions that the offer is declined. Subclause 46(1) provides that the Operator must give each institution that was notified under clause 41 of the offer, written notice that the person has declined the offer in accordance with clause 45.

Subclause 45(2) provides that the notice must comply with any requirements prescribed by the rules.

Part 2-5 - Provision of redress under the Scheme

Division 1 - Simplified outline of this Part

Clause 47 provides a simplified outline of Part 2-5.

Division 2 - The redress payment

Clause 48 specifies that the Operator must pay the redress payment. Subclause 48(1) provides that if a person is entitled to redress (see clause 12) and the person has stated in the acceptance document that the person wishes to be paid the redress payment, then the Operator must pay the payment to the person as soon as practicable.

Subclause 48(2) permits the rules to prescribe matters relating to the making of redress payments.

Clause 49 sets out the general rules relating to the protection of the redress payment. Subclause 49(1) provides that a redress payment is a payment of compensation under the Scheme. However, for the purposes of the Social Security Act, the Veterans' Entitlements Act and any other Commonwealth, State or Territory legislation, the payment is not to be treated as being a payment of compensation or damages. The note clarifies that this subclause 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, the redress payment is not to be taken into account).

Subclause 49(2) provides that for the purposes of any law of the Commonwealth, a State or a self-governing Territory, in relation to a redress payment 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 no amount may be deducted from the payment.

The effect of paragraph 49(2)(a) is to specifically exclude payments under the Scheme from the definition of 'compensation' or 'damages' for the purposes of any Commonwealth, State or self-governing Territory law so that benefits received under the Scheme will not be used to repay amounts paid under other regimes or schemes. For example, redress payments will not be compensation for the purposes of the Health and Other Services (Compensation) Act 1995, the Social Security Act or the Veterans Entitlements Act. The intention of the redress payment is to acknowledge harm. It is not intended to compensate for loss or provide damages.

Paragraph 49(2)(b) makes it clear that a redress payment cannot be used to offset any other debt to the Commonwealth.

Subclause 49(3) provides that nothing in this this Bill prevents a liability insurance contract from treating a redress payment as being a payment of compensation or damages. This subclause facilitates the insurers of participating non-government institutions to treat redress payments as compensation or damages under liability contracts. This allows non-government institutions to be assisted by insurers to meet their liability for redress under existing insurance contracts.

Clause 50 provides additional protection for redress payments from garnishee orders.

Subclause 50(1) specifies that if a redress payment is going to be, or has been, paid to the credit of an account and 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.

Subclause 50(2) provides the following method statement to work out the saved amount:

•

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 the redress payment the total amount withdrawn from the account during that year. The result is the saved amount.

Division 3 - Counselling and psychological component of redress

Clause 51 deals with providing access to the counselling and psychological component of redress. Subclause 51(1) applies if a person is entitled to redress under the Scheme (see clause 12) and the person stated in the acceptance documents (under clause 42) that the person wishes to access the counselling and psychological component of redress.

Subclause 51(2) applies to the provision of counselling and psychological services if the person lives (as stated in their application) in a participating jurisdiction that is a declared provider of these services under the Scheme. In these circumstances:

(a)

the Operator must refer the person to the participating jurisdiction as soon as practicable after the person becomes entitled to redress; and

(b)

the participating jurisdiction must provide for the delivery of counselling and psychological services under the Scheme in accordance with the National Service Standards as soon as practicable after receiving the referral.

Subclause 51(3) provides that, if subclause 51(2) does not apply, then the Operator must pay the person a counselling and psychological services payment as soon as practicable after the referral. Subclause 51(4) provides that the rules may prescribe matters relating to the payment of counselling and psychological services payments.

Clause 52 provides general rules for the protection of the counselling and psychological services payment. Subclause 52(1) provides that a counselling and psychological services payment is a payment of compensation under the Scheme. However, for the purposes of the Social Security Act, the Veterans' Entitlements Act and any other Commonwealth, State or Territory legislation, the payment is not to be treated as being a payment of compensation or damages. The note clarifies that this subclause 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).

Subclause 52(2) provides that for the purposes of any law of the Commonwealth, a State or a Territory, 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

(b)

no amount may be deducted from a counselling and psychological services payment.

Subclause 52(3) provides that this Bill does not prevent a counselling and psychological services payment being treated as a payment of compensation or damages under a liability insurance contract.

This subclause facilitates the insurers of participating non-government institutions to treat counselling and psychological services payments as compensation or damages under liability contracts. This allows non-government institutions to be assisted by insurers to meet their liability for redress under existing insurance contracts.

The effect of paragraph 52(2)(a) is to specifically exclude payments under the Scheme from the definition of 'compensation' or 'damages' for the purposes of any Commonwealth, State or self-governing Territory law so that benefits received under the Scheme will not be used to repay amounts paid under other regimes or schemes. For example, redress payments will not be compensation for the purposes of the Health and Other Services (Compensation) Act 1995, the Social Security Act or the Veterans Entitlements Act. The intention of the redress payment is to acknowledge harm. It is not intended to compensate for loss or provide damages.

Paragraph 52(2)(b) makes it clear that a counselling and psychological services payment cannot be used to offset any other debt to the Commonwealth.

Clause 53 provides additional protection for counselling and psychological services payments from garnishee orders.

Subclause 53(1) specifies that if a counselling and psychological services payment is going to be or has been paid to the credit of an account and 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.

Subclause 53(2) provides the following method statement to work out the saved amount:

•

Step 1 - Work out the amount of the counselling and psychological services 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 the counselling and psychological services payment the total amount withdrawn from the account during that year. The result is the saved amount.

Division 4 - Direct personal response

Clause 54 provides for a direct personal response to be given from responsible institutions. Subclause 54(1) provides that a participating institution must take reasonable steps to provide a direct personal response to a person who has expressed a wish, when accepting the offer of redress, to be given a direct personal response from the institution as part of their redress. The participating institution would have received a notice under clause 44 that indicated the components of redress the person wished to receive, including a direct personal response (paragraph 44(1)(b)).

Subclause 54(2) sets out what constitutes a direct personal response from a participating institution. These are:

(a)

an apology or a statement of acknowledgement or regret;

(b)

an acknowledgement of the impact of the abuse on the person;

(c)

an assurance as to the steps the institution has taken, or will take, to prevent abuse occurring again;

(d)

an opportunity for the person to meet with a senior official of the institution.

Subclause 54(3) provides that the participating institution must take into account the direct personal response framework when providing a direct personal response.

Clause 55 provides for the direct personal response framework. Subclause 55(1) provides that the Minister may declare, in writing, guidelines about how direct personal responses are to be provided under the Scheme. The note clarifies that a declaration made under subclause 55(1) may be varied or revoked as provided for in subsection 33(3) of the Acts Interpretation Act 1901.

Subclause 55(2) provides that the declaration is the direct personal response framework.

Subclause 55(4) provides that when making the declaration, the Minister must have regard to the principles in clause 56.

Subclause 55(4) provides that a declaration under subclause 55(1) is a legislative instrument, but is exempt from section 42 of the Legislation Act 2003, which provides for disallowance. It is necessary to exempt this Ministerial declaration from disallowance so that the method or matters to be taken into account for the purpose of ensuring that institutions provide a consistent approach to giving direct personal responses to survivors. This declaration would ordinarily be of an administrative character and would not be a legislative instrument without this provision. However, in order to ensure certainty and transparency it is appropriate to make this declaration a legislative instrument.

Clause 56 outlines the general principles which guide the way in which a direct personal response is provided to a person under the Scheme.

Subclause 56(1) provides that all participating institutions should offer and provide on request by a survivor meaningful recognition of the institution's responsibility by way of a statement of apology, acknowledgement or regret and an assurance as to steps taken to protect against further abuse.

Subclause 56(2) provides that engagement between a participating institution and a survivor (being an applicant under the Scheme) should occur only if, and to the extent, a survivor desires it.

Subclause 56(3) requires participating institutions to be clear about what they are willing to offer and provide by way of a direct personal response to survivors. It also requires institutions to ensure they are able to provide the direct personal response that they offer to the survivor.

Subclause 56(4) requires participating institutions to be responsive to survivors' needs in offering a direct personal response.

Subclause 56(5) encourages participating institutions that already provide a broader range of direct personal responses to survivors should consider continuing this approach when participating in the Scheme.

Subclause 56(6) provides that direct personal responses should be delivered by people who have suitable training about the nature and impact of child sexual abuse and the needs of survivors (including cultural awareness and sensitivity training as required).

Subclause 56(7) provides that participating institutions should welcome feedback from survivors about the direct personal responses the institutions offer and provide.