House of Representatives

Explanatory Memorandum

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

Chapter 5 - Participating institutions, participating groups and participating jurisdictions

Part 5-1 - Participating institutions

Division 1 - Simplified outline of this Part

Clause 107 provides a simplified outline of Part 5-1.

Division 2 - Institutions participating in the scheme

Subdivision A - Participating institutions

Clause 108 sets out what is a participating institution.

Subclause 108(1) provides that for a person to be eligible for redress for sexual abuse or non-sexual abuse, a participating institution must be responsible for the abuse.

Subclause 108(2) provides that a Commonwealth institution, a participating State institution, a participating Territory institution or a participating non-government institution is a participating institution for the purposes of the scheme.

Subdivision B - Commonwealth institutions

Clause 109 sets out what is a Commonwealth institution. Subclause 109(1) provides that an institution is a Commonwealth institution if it:

(a)

is or was part of the Commonwealth; or

(b)

is or was a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013); or

(c)

is or was a wholly-owned Commonwealth company; or

(d)

is or was a body (whether or not incorporated) established by or under a law of the Commonwealth; or

(e)

it is an institution that is prescribed by the rules as being a Commonwealth institution.

The rule making power in paragraph 109(1)(e) is intended to provide a safety net so that where there is any uncertainty as to whether an institution is covered by paragraphs (a) to (d); the institution may be prescribed as being a Commonwealth institution. This will ensure that the scheme is able to provide redress to as many survivors of abuse as possible.

Subclause 109(2) provides that an institution is not a Commonwealth institution if that institution:

(a)

is a body politic that is a participating Territory, or is or was part of a body politic that is a participating Territory; or

(b)

is or was body corporate (other than a wholly-owned Commonwealth company) that is or was registered under the Corporations Act 2001 (including a body corporate taken to be registered under that Act because of the operation of Chapter 10 of that Act (which is about transitional provisions)); or

(c)

is an institution that is prescribed by the rules as not being a Commonwealth institution.

The rule making power in paragraph 109(2)(c) is intended to be used to exclude an institution where it is more appropriate for that institution to pay redress for a person (rather than the Commonwealth).

Subclause 109(3) provides that rules made for the purposes of paragraph 109(1)(e) or 109(2)(c) may prescribe that an institution is, or is not, a Commonwealth institution in relation to a period specified by the rules. This would, for example, allow an institution to be prescribed as not being a Commonwealth institution for a specific period that it was not under Commonwealth control.

Subdivision C - Participating State institutions

Clause 110 provides that an institution is a participating State institution if it is a State institution and a declaration by the Minister, under subclause 115(2) that the institution is a participating institution is in force. Subclause 115(2) allows the Minister to make declarations about participating institutions.

Clause 111 sets out what is a State institution. Subclause 111(1) provides that an institution is a State institution if it:

(a)

is or was part of a State; or

(b)

is or was a body (whether or not incorporated) established by or under a law of the participating State; or

(c)

is an institution that is prescribed by the rules as being a State institution.

Subclause 111(2) provides that an institution is not a State institution if the rules prescribe that the institution is not a State institution. This rule making power is intended to be used to exclude an institution where it is more appropriate for that institution to pay redress for a person (rather than the State).

Subclause 111(3) provides that rules made for the purposes of paragraph 111(1)(c) or subsection 111(2) may provide that an institution is, or is not, a State institution in relation to a period specified by the rules. This would allow, for example, the rules to prescribe an institution is not a State institution for a specific period that it was not under control of the State government.

Subdivision D - Participating Territory institution

Clause 112 provides that an institution is a participating Territory institution if it is a Territory institution and a declaration by the Minister, under subclause 115(2) that the institution is a participating institution is in force. Subclause 115(2) allows the Minister to make declarations about participating institutions.

Clause 113 sets out what is a Territory institution. Paragraphs 113(1)(a) to (c) provide that an institution is a Territory institution if it:

(a)

is or was part of a participating Territory; or

(b)

is or was a body (whether or not incorporated) established for a public purpose by or under a law of a participating Territory; or

(c)

is an institution that is prescribed by the rules as being a Territory institution.

The rule making power in paragraph 113(1)(c) is intended to provide a safety net so that where there is any uncertainty as to whether an institution is covered by paragraph113(1)(a) or 113(1)(b) the institution may be prescribed as being a Territory institution. This will ensure that the Scheme is able to provide redress to as many survivors of abuse as possible.

Subclause 113(2) provides that an institution is not a Territory institution if the rules prescribe, that the institution is not a Territory institution. The rule making power may be used to exclude an institution in circumstances where it is more appropriate for that institution to pay redress for a person (rather than the Territory).

Subclause 113(3) provides that rules made for the purposes of paragraph 113(1)(c) or 113(2)(b) may provide that an institution is, or is not, a Territory institution in relation to a period specified in the rules. This would allow, for example, the rules to prescribe an institution is not a Territory institution for a specific period that it was not under control of the Territory government.

Subdivision E - Participating non-government institution

Clause 114 sets out what is a participating non-government institution. Subclause 114(1) provides that an institution is a participating non-government institution if the institution is or was a non-government institution and a declaration is in force under subclause 115(2) that allows the Minister to make declarations about participating institutions.

Subclause 114(2) provides that a non-government institution is an institution that is not a Commonwealth institution, State institution or a Territory institution.

Subclause 114(3) provides that an institution is not a non-government institution if the rules prescribe that the institution is not a non-government institution. This subclause covers the case where an institution was established, but not at the time the abuse occurred (for example, if the institution was established in the ACT, but was then incorporated in NSW at the time of the abuse).

Subclause 114(4) provides that rules made for the purposes of subsection 114(3) may provide that an institution is not a non-government institution in relation to a period specified by the rules. This would for example, allow an institution to be prescribed as not being a non-government institution of a State or Territory for a specific period that it was incorporated in another jurisdiction.

Division 3 - Ministerial declarations about participating institutions

Clause 115 provides for the Minister to make declarations about participating institutions. Subclause 115(1) provides that an institution becomes a participating institution of the Minister makes a declaration under subclause 115(2) in relation to the institution.

Subclause 115(2) provides that the Minister may, by notifiable instrument, declare that an institution is a participating institution.

This declaration will be done by notifiable instrument, rather than by legislative instrument, to allow for greater expediency when adding to or removing the institutions contained in the instrument. This is to allow for the timely processing of applications in the scheme and to ensure survivors have timely, up-to-date information about institutional participation in the scheme.

Note 1 to subclause 115(2) clarifies that an institution may be identified by name, by inclusion in a particular class, or in any other way. This means that, for example, the Minister could declare "all public schools in the state of New South Wales" rather than necessarily listing each individual public school by name.

Note 2 to subclause 115(2) provides that the Minister need not make a declaration under subclause 115(2) for a Commonwealth institution because all Commonwealth institutions are participating institutions automatically. This note also directs the reader to clause 108, which provides that a Commonwealth institution is a participating institution.

Subclause 115(3) provides that the Minister must not make a declaration under subclause 115(2) unless the Minister is satisfied of the following:

(a)

for a State institution - the participating State has agreed, in a way provided for in the State's referral Act or adoption Act, to the institution participating in the Scheme; and

(b)

for a Territory institution - the participating Territory has agreed to the institution participating in the Scheme; and

(c)

for a non-government institution (other than a defunct institution or an unincorporated lone institution) - the institution has agreed to participate in the Scheme; and

(d)

for a non-government institution that is a defunct institution - a person has agreed:

(i)

to the defunct institution participating in the Scheme; and

(ii)

to be the representative for the defunct institution; and

(e)

for a non-government institution that is an unincorporated lone institution:

(i)

the institution has agreed to participate in the Scheme; and

(ii)

the institution has agreed to a person being the representative for the institution; and

(iii)

the person has agreed to being the representative for the institution; and

(f)

in all cases - any requirements prescribed by the rules are satisfied.

A defunct institution is one that no longer exists, which is why there is no requirement for a defunct institution to agree to its own participation in the Scheme.

Note 1 to subclause 115(3) directs the reader to clause 186, which provides for how the agreement of a participating Territory, an institution or a person is given.

Note 2 to subclause 115(3) directs the reader to Divisions 4 and 5, which deal with representatives for defunct institutions and lone institutions.

Subclause 115(4) provides that the Minister must not make a declaration under subclause 115(2) in relation to an institution after the second anniversary of the commencement of the Scheme, or a later day prescribed by the rules, unless the institution is a defunct institution. This might allow, for example, the Minister to prescribe a later day if a number of institutions indicate their willingness to participate in the scheme after the second anniversary of the commencement of the Scheme.

Subclause 115(5) provides that if a State or Territory has agreed to a State or Territory institution participating in the Scheme and the institution is a body corporate, then the institution is taken to have also agreed to participate in the Scheme.

Clause 116 provides for when an institution ceases to be a participating institution. Subclause 116(1) provides that an institution ceases to be a participating institution if the declaration made under subclause 115(2) is revoked under subclause 116(2), (3), (4) or (5).

Subclause 116(2) provides that the Minister may revoke a declaration made under subclause 115(2) in relation to an institution.

The note to subclause 116(2) clarifies that if the declaration is revoked, the institution will cease to be a participating institution, however it will remain a participating institution in relation to an application for redress that is made before the revocation (see subclause 118(7)).

Subclause 116(3) provides that where a participating State, participating Territory or participating non-government institution (other than a defunct institution) requests, in writing, that the Minister revoke a declaration made under subclause 115(2), the Minister must do so as soon as practicable.

Subclause 116(4) provides that if a defunct participating non-government institution ceases to have a representative the Minister must revoke the declaration made under subclause 115(2) as soon as practicable.

As defunct institutions are required to have a representative in order to participate in the Scheme, it is appropriate that should the defunct institution not have a representative, then its own participation in the Scheme is revoked. Should the defunct institution obtain another representative, the declaration of the defunct institution's participation can be re-made.

A defunct institution is one that no longer exists, which is why there is no requirement for a defunct institution to request that a declaration be revoked.

Subclause 116(5) provides that if a participating unincorporated lone institution ceases to have a representative, the Minister must revoke the declaration made under subclause 115(2) as soon as practicable.

As unincorporated lone institutions are required to have a representative in order to participate in the Scheme, it is appropriate that should the unincorporated lone institution not have a representative, then its own participation in the Scheme is revoked. Should the unincorporated lone institution obtain another representative, the declaration of the unincorporated lone institution's participation can be re-made.

Subclause 116(6) provides that despite subclauses 116(2), (3), (4) and (5), the Minister must not revoke a declaration made under subclause 115(2) in relation to an institution unless any requirements prescribed by the rules in relation to the revocation are satisfied.

Subclause 116(7) provides that if the Minister revokes a declaration made under 115(2), then, despite the revocation, the institution continues to be a participating institution in relation to a person who made an application for redress before the revocation, as if the declaration were still in force. This is to ensure that institutions cannot avoid obligations under the Scheme in relation to applications that are ongoing at the time that their participation is revoked.

Example

If the Operator determines that the institution is responsible for the abuse of the person, the institution will still be required to provide a direct personal response to the person (if the person chooses that component of redress) and pay funding contribution in relation to the person.

Division 4 - Participating defunct institutions

Subdivision A - Participating defunct institutions

Clause 117 sets out that a participating defunct institution is a participating institution (either a government or non-government institution) that is defunct. The note clarifies that the institution may be a government or non-government institution.

Subdivision B - Representatives for participating defunct institutions

Clause 118 provides for representatives for participating defunct institutions. Subclause 118(1) provides that a participating defunct institution must have a representative for the institution.

The note to subclause 118(1) clarifies that the Bill applies to the representative as if it were the defunct institution. The note references clauses 121, 122 and 123, which provide for the actions of representatives, giving notices to representatives and the obligations to be discharged by representatives for participating defunct institutions.

Subclauses 118(2), (3) and (4) provide that the representatives for a defunct Commonwealth institution, a defunct participating State institution and a defunct participating Territory institution is the Commonwealth, the participating State and the participating Territory, respectively.

Subclause 118(5) provides that the representative for a defunct participating non-government institution is the person in relation to whom a declaration is in force under clause 119.

Subclause 118(6) provides that a defunct institution may have only one representative. However, subclause 118(7) provides that a person may be the representative for more than one participating defunct institution.

Clause 119 provides for when a person becomes a representative for a defunct non-government institution. Clause 119 sets out that if a defunct non-government institution is declared a participating institution under subclause 115(2), then the Minister must, by notifiable instrument, make a declaration that the person who agreed to be the representative for the institution (as referred to in paragraph 115(3)(d)), is the representative for the institution.

Example

An orphanage closed down in 1980, and an institution wishes to be the representative for that orphanage to enable it to participate in the Scheme. The Minister makes a declaration that the institution is the representative for the orphanage.

Clause 120 provides for when a person ceases to be the representative for a defunct non-government institution.

Subclause 120(1) provides that the Minister may vary or revoke a declaration made under clause 119 in relation to a representative for a defunct non-government institution.

Subclause 120(2) provides that if the representative for a defunct institution requests the Minister in writing to revoke a declaration made under clause 119 the Minster must revoke that declaration as soon as practicable. Any requirements prescribed by the rules in relation to the person ceasing to be the representative must be satisfied prior to the revocation under subclause 120(2).

The note to subclause 120(2) clarifies that if a participating defunct institution does not have a representative, then the Minister must revoke the declaration made under subclause 115(2) that the defunct participating institution is a participating institution. The note references subclause 116(4) which sets out that if a participating defunct non-government institution ceases to have a representative, the Minister must revoke the declaration made under subclause 115(2) as soon as practicable.

Subclause 120(3) provides that despite subclauses 120(1) and (2), the Minister must not vary or revoke a declaration made under clause 119 in relation to an institution unless any requirements prescribed by the rules in relation to the variation or revocation are satisfied.

Subclause 120(4) provides that if:

(a)

the Minister revokes a declaration made under subclause 115(2) in relation to a defunct institution; but

(b)

because of subclause 116(7), the institution continues to be a participating institution in relation to a person who made an application for redress before the revocation;

then the representative for the institution continues to be the representative for the institution in relation to the person (even if the declaration made under clause 119 for the representative have been revoked under this clause).

Clause 121 provides for actions of the representative for a defunct institution.

Subclause 121(1) sets out that any act that may be done by a participating defunct institution under, or for the purposes of, this Bill must be done by the representative for the institution on behalf of the institution. This might include, for example, providing a direct personal response or providing information to the scheme, or paying a funding contribution.

Subclause 121(2) makes it clear that where an act is done by the representative for a participating defunct institution on behalf of the institution, it is taken to have been done by the defunct institution.

Clause 122 states that any notice that the Operator is required or authorised by the Bill to give to a participating defunct institution must be given by the Operator to the representative for the institution.

Clause 123 states that any obligation or liability imposed by the Bill on a participating defunct institution is taken to be imposed instead on the representative for the institution.

Note 1 to clause 123 provides an example of an obligation that may be imposed on the defunct institution, which is the obligation under clause 54 to provide a direct personal response to a person. That obligation will be imposed on the representative.

Note 2 to clause 123 provides an example of a liability that may be imposed on the defunct institution, which is the liability under clause 149 to pay funding contribution. That liability will be imposed on the representative.

Division 5 - Participating lone institutions

Clause 124 sets out what is a participating lone institution. Subclause 124(1) provides that a participating lone institution is a participating institution that is a lone institution. Subclause 124 (2) provides that an institution is a lone institution if it is a non-government institution and is not a member of a participating group and is not defunct.

Subclause 124(3) provides that there are two types of lone institutions:

(a)

a lone institution that is not a legal person (which is an unincorporated lone institution); and

(b)

a lone institution that is a legal person (which is an incorporated lone institution).

Subclause 124(4) provides that a participating unincorporated lone institution is a participating institution that is an unincorporated lone institution.

Subclause 124(5) provides that a participating incorporated lone institution is a participating institution that is an incorporated lone institution.

Subdivision B - Representatives for participating lone institutions

Clause 125 provides for representatives for participating lone institutions. Subclause 125(1) provides that a participating incorporated lone institution may have a representative for the institution; however a participating unincorporated lone institution must have a representative.

The requirement for an unincorporated lone institution to have a representative (which is a legal person) provides the Scheme with a safeguard in the event that the unincorporated institution (which is not a legal person) cannot meet any of its obligations under the Scheme. Without this requirement, it would be difficult for the Scheme to allow the participation of unincorporated institutions. This does not apply to incorporated lone institutions.

Subclause 125(2) provides that the representative for a participating unincorporated lone institution is the person in relation to whom a declaration is in force under clause 126, which provides for when a person becomes a representative for an unincorporated lone institution.

Subclause 125(3) provides that the representative for a participating incorporated lone institution is the person in relation to whom a declaration is in force under subclause 127(1), which provides for when a person becomes a representative for the institution.

Subclause 125(4) provides that a participating lone institution may only have one representative for the institution. However, subclause 125(5) provides that a person may be the representative for more than one participating lone institution.

Clause 126 provides for when a person becomes a representative for an unincorporated lone institution. Clause 126 sets out that if an unincorporated lone institution is declared a participating institution under subclause 115(2), then the Minister must, by notifiable instrument, make a declaration that the person that agreed to be the representative for the institution (as referred to in paragraph 115(3)(e)), is the representative for the institution.

Clause 127 provides for when a person becomes the representative for an incorporated lone institution. Subclause 127(1) provides that the Minister may make a declaration that a person is the representative for a participating incorporated lone institution.

Subclause 127(2) provides that the Minister must not make a declaration under subclause 127(1) unless the Minister is satisfied that:

(a)

the institution has agreed to the person being the representative for the institution; and

(b)

the person has agreed to being the representative for the institution.

The clause reflects the intent that institutions (where incorporated and not in a participating group) may not want a representative and they may instead prefer to engage with the Scheme directly.

The note to subclause 127(23) directs the reader to clause 186, which provides for how the agreement of the institution or the person is given.

Clause 128 provides for when a person ceases to be the representative for a lone institution.

Subclause 128(1) provides that the Minister may vary or revoke a declaration made under clause 126 or 127 in relation to a representative for a lone institution.

Subclause 128(2) provides that if the institution or the representative requests the Minister in writing to revoke a declaration made under clause 126 or 127 the Minster must revoke that declaration as soon as practicable. Any requirements prescribed by the rules in relation to the person ceasing to be the representative must be satisfied prior to the revocation under subclause 128(2).

The note to subclause 128(2) clarifies that if a participating unincorporated lone institution does not have a representative then the Minister must revoke the declaration made under subclause 115(2) that the lone institution is a participating institution. The note references subclause 116(5) which sets out that if a participating lone institution ceases to have a representative, the Minister must revoke the declaration made under subclause 115(2) as soon as practicable.

Subclause 128(3) provides that despite subclauses 128(1) and (2), the Minister must not vary or revoke a declaration made under clause 126 or 127 in relation to an institution unless any requirements prescribed by the rules in relation to the variation or revocation are satisfied.

Subclause 128(4) provides that if:

(a)

the Minister revokes a declaration made under subclause 115(2) in relation to an unincorporated lone institution; but

(b)

because of subclause 116(7), the institution continues to be a participating institution in relation to a person who made an application for redress before the revocation;

then the representative for the institution continues to be the representative for the institution in relation to the person (even if the declaration made under clause 126 for the representative have been revoked under this clause).

Clause 129 provides for actions of the representative for a lone institution.

Subclause 129(1) sets out that the representative for the lone institution may do any act that may be done by a participating lone institution under, or for the purposes of, this Bill. This might include, for example, providing a direct personal response, providing information to the scheme, or paying a funding contribution.

Subclause 129(2) makes it clear that where an act is done by the representative for a participating lone institution on behalf of the institution it is taken to have been done by the institution.

Clause 130 states that any notice that the Operator is required or authorised by the Act to give to a participating lone institution must be given by the Operator to the representative for the institution (subclause 130(1)). Subclause 130(2) provides that a notice given under subclause 30(1) must, in every respect, be in the same form and in the same terms, as if it were being given to the institution.

Clause 131 provides that if a participating unincorporated lone institution is liable to pay funding contribution for a quarter, then the institution and the representative for the institution are jointly and severally liable to pay the funding contribution. This requirement provides the Scheme with a safeguard, in the event that the participating unincorporated lone institution is not be able to pay a funding contribution.

Part 5-2 - Groups of institutions participating in the Scheme

Division 1 - Simplified outline of this Part

Clause 132 provides a simplified outline of Part 5-2.

Division 2 - Participating groups

Clause 133 provides for how participating groups are formed. Subclause 133(1) provides that two or more participating institutions may form a participating group for the purposes of the Scheme.

Subclause 133(2) provides that a participating group is a group of participating institutions for which a declaration is in force under subclause 134(1). Subclause 133(3) provides that a participating institution that is a member of a participating group is an associate of each other member of the group.

The note to subclause 133(3) clarifies that particular provisions of this Bill apply in a special way for associates, and refers the reader to clauses 42 and 43, which are about releasing institutions and officials from civil liability for abuse.

Clause 134 provides for how institutions become members of a participating group.

Subclause 134(1) provides for the declaration that two or more participating institutions form a participating group by the Minister, in the form of a notifiable instrument.

Subclause 134(2) provides that the Minister must not make a declaration under subclause 134(1) unless the Minister is satisfied of the following:

(a)

for a group of Commonwealth institutions - the Commonwealth has agreed to each Commonwealth institution being a member of the group; and

(b)

for a group of State institutions - the participating State has agreed, in a way provided for in the State's referral Act or adoption Act, to each State institution being a member of the group; and

(c)

for a group of Territory institutions - the participating Territory has agreed to each Territory institution being a member of the group; and

(d)

for a group of non-government institutions:

(i)

each institution has agreed to be a member of the group and to each other institution being a member of the group; and

(ii)

there is sufficient connection between each institution in the group; and

(e)

in all cases:

(i)

each institution is not a member of another participating group; and

(ii)

there is a representative for the group (as provided for in subclause 136(1)); and

(iii)

any other requirements prescribed by the rules are satisfied.

The note to subclause 134(2) directs the reader to clause 186, which provides for how the agreement of the Commonwealth, a participating territory, an institution or a person is given.

Because of the implications of clauses 42 and 43, which is that all associates of a group are released from civil liability where one associate is liable, it is appropriate, particularly in relation to non-government institutions, that there is a sufficient connection between each institution in the group, and that each institution is only a member of one participating group.

Subclause 134(3) provides that if a State or Territory has agreed to a State or Territory institution being a member of a participating group, and that institution is a body corporate, then the institution is taken to have also agreed to be a member of the participating group.

Clause 135 provides for when institutions cease to be members of a participating group.

Subclause 135(1) provides that the Minister may vary or revoke a declaration made under subclause 134(1).

Subclause 135(2) provides that if:

(a)

a State requests the Minister in writing to vary or revoke a declaration made under subclause 134(1) in relation to a group of State institutions so that the group ceases to be a participating group; or a State institution ceases to be a member of the group; or

(b)

a participating Territory requests the Minister in writing to vary or revoke a declaration made under subclause 134(1) in relation to a group of Territory institutions so that the group ceases to be a participating group; or a Territory institution ceases to be a member of the group; or

(c)

all of the non-government institutions that are members of a participating group request the Minister in writing to revoke a declaration made under subclause 134(1) in relation to the group so that it ceases to be a participating group; or

(d)

a participating non-government institution that is a member of a participating group request the Minister in writing to vary a declaration made under subclause 134(1) in relation to the institution so that it ceases to be a member of the group;

then the Minster must, by notifiable instrument, vary or revoke the declaration as requested as soon as practicable.

Subclause 135(3) provides that if a participating group of non-government institutions ceases to have a representative, then the Minister must revoke the declaration made under subclause 134(1) as soon as practicable.

As participating groups are required to have a representative in order to exist in the Scheme, it is appropriate that should the group not have a representative, then the declaration that the institutions form a participating group is revoked. For clarity, this does not have the effect of revoking each institution's participation in the Scheme. Should the institutions appoint another representative, the declaration that the institutions are a participating group can be re-made.

Subclause 135(4) provides that despite subclauses 135(1), (2) and (3), the Minister must not vary or revoke a declaration made under clause 134(1) in relation to a participating group unless any requirements prescribed by the rules in relation to the variation or revocation are satisfied.

Subclause 135(5) provides that if:

(a)

the Minister revokes a declaration made under subclause 115(2) in relation to a participating institution that is a member of a participating group immediately before the revocation; but

(b)

because of subclause 116(7), the institution continues to be a participating institution in relation to a person who made an application for redress before the revocation;

then each of the associates of the institution continues to be an associate of the institution in relation to the person, as if the institution was still a member of the group.

Division 3 - Representatives for participating groups

Clause 136 provides for representatives for participating groups. Subclause 135(1) provides that a participating group must have a representative for the group.

Subclauses 136(2), (3) and (4) provide that the representative for a participating group of Commonwealth, State and Territory institutions is the Commonwealth, participating State or participating Territory respectively.

Subclause 136(5) provides that the representative for a participating group of non-government institutions is the person in relation to whom a declaration is in force under subclause 137(1)

Subclause 136(6) provides that a participating group may only have one representative for the group. However, subclause 136(7) provides that a person may be the representative for more than one participating group.

Clause 137 provides for a person becoming the representative for a participating group of non-government institutions. Subclause 137(1) provides that the Minister may, by notifiable instrument, declare that a person is the representative for a participating group of non-government institutions.

Subclause 137(2) provides that the Minister must not make a declaration under subclause 137(1) unless the Minister is satisfied of the following:

(a)

the person has agreed to be the representative for the group; and

(b)

each participating institution that is a member of the group has agreed to the person being the representative for the group; and

(c)

there is not a declaration in force under subclause 137 (1) declaring another person to be the representative for the group; and

(d)

any other requirements prescribed by the rules are satisfied.

The note to subclause 137(2) directs the reader to clause 186, which provides for how the agreement of an institution or a person is given.

Clause 138 provides for when a representative ceases to be the representative for a participating group of non-government institutions.

Subclause 138(1) provides that the Minister may revoke a declaration made under clause 137(1) in relation to a representative for a participating group.

Subclause 138(2) provides that if the representative or each of the members of the group (other than the representative, where the representative is a member) requests the Minister in writing to revoke a declaration made under subclause 137(1), the Minster must revoke that declaration.

The note to subclause 138(2) clarifies that if a participating group of non-government institutions does not have a representative then the Minister must revoke the declaration made under subclause 134(1) that the group is a participating group. The note references subclause 135(3) which sets out that if a participating group ceases to have a representative, the Minister must revoke the declaration made under subclause 134(1) as soon as practicable.

Subclause 138(3) provides that despite subclauses 138(1) and (2) the Minister must not revoke a declaration made under subclause 137(1) unless any requirements prescribed by the rules in relation to the revocation are satisfied.

Subclause 138(4) provides that if:

(a)

the Minister revokes a declaration made under subclause 115(2) in relation to a participating institution that is a member of a participating group immediately before the revocation; but

(b)

because of subclause 116(7), the institution continues to be a participating institution in relation to a person who made an application for redress before the revocation;

then the representative for the participating group continues to be the representative for the group in relation to that person, as if the institution was still a member of the group.

Clause 139 provides for the actions of the representatives for participating groups.

Subclause 139(1) provides that any act that a participating institution that is a member of a participating group may do under, or for the purposes of, this Bill may be done by the representative on behalf of that institution. This might include, for example, providing a direct personal response, providing information to the scheme, or paying a funding contribution.

Subclause 139(2) makes it clear that where an act is done by a representative for a participating group on behalf of participating institution that is a member of the group it is taken to have been done by that institution.

Clause 140 provides for giving notices to representatives for participating groups.

Subclause 140(1) states that the Operator must give a representative for a participating group a notice that the Operator is required or authorised to give to a participating institution that is member of the group.

Subclause 140(2) states that the notice given under subclause 140 (1) must, in every respect, be in the same form, and in the same terms, as if it were being given to the participating institution concerned.

Clause 141 provides that if a participating institution is liable to pay funding contribution for a quarter, and the institution is a member of a participating group, then that institution and the representative are jointly and severally liable to pay the funding contribution for the quarter.

Part 5-3 - Jurisdictions participating in the Scheme

Division 1 - Simplified outline of this Part

Clause 142 provides a simplified outline of Part 5-3.

Division 2 - Participating jurisdictions

Clause 143 provides that a jurisdiction is a participating jurisdiction if it is the Commonwealth, a participating State, or a participating Territory.

Clause 144 provides for when a State is a participating State for the purposes of the Scheme.

Subclause 144(1) provides a State is a participating State if the Parliament of a State has, for the purposes of paragraph 51(xxxvii) of the Constitution, either:

(a)

by a referral Act, referred to the Commonwealth Parliament the text reference and amendment reference, specified in subclause 144(2) and 144(3) respectively, before the commencement of this Bill; or

(b)

by an adoption Act, adopted the relevant version of this Bill and referred to the Commonwealth Parliament the amendment reference, specified in subclause 144(3), after the enactment of this Bill.

Subclause 144(2) provides that text reference means the matters to which the initial referred provisions relate, to the extent of making laws with respect to those matters, by including the initial referred provisions in the original version of this Bill, once enacted.

Subclause 144(3) provides that amendment reference means the referred national redress scheme matters, as defined in clause 145, to the extent of making laws with respect to those matters by making express amendments to this Bill, once enacted.

Subclause 144(4) sets out matters that do not affect a State's status as a participating State for the purposes of the Scheme. These include provisions in a State's referral Act or adoption Act:

(a)

allowing the text reference or the amendment reference to terminate in particular circumstances; or

(b)

(c)

allowing the adoption of the relevant version of the legislation to terminate in particular circumstances; or

(d)

providing that the reference to the Commonwealth Parliament of the text reference or the amendment reference only has effect if the matter is not included in the legislative powers of the Commonwealth Parliament, or if and to the extent the matter is included in the legislative powers of the Parliament of the State.

Subclause 144(5) provides that a State is not a participating State if it has not become a participating State before the second anniversary of the Scheme start day or a later day prescribed by the rules. The subclause has been included to ensure each State elects to opt in to the scheme early in the 10-year duration of the Scheme, to enable redress be provided to survivors in a timely manner.

Subclause 144(6) provides that a State ceases to be participating State if, in the case where the State has referred the text reference, that reference terminates; or, in the case where the State has adopted the relevant version of the legislation, that adoption terminates.

Subclause 144(7) provides that a State ceases to be a participating State if the State's amendment reference terminates, subject to subclause 144(8).

Subclause 144(8) creates an exception to subclause 144(7) that allows States to continue as participating States despite the termination of their amendment references, if all States agree to do so on the same day and give more than 6 months' notice of that termination. In those circumstances, the Scheme will continue as in force on the date of the termination of the amendment references, and the States will continue to be participating States.

If the amendment references are terminated as envisaged by this subclause, the Commonwealth would not be able to amend the Act relying on the amendment references from the States. State referral or adoption Acts may contain complementary provisions making it clear that if the amendment reference terminates but the text reference or adoption do not terminate, then that termination does not affect the continuing operation of the Commonwealth Act, including provisions previously enacted in reliance on the amendment reference.

These mechanisms allow the future of the Scheme to be determined by the participating States and the Commonwealth in an orderly manner, without undue detriment to survivors, by permitting the Scheme to continue despite the termination of the amendment references.

Subclause 144(9) provides for definitions relevant to clause 144 that are contained in the Dictionary (clause 6).

Clause 145 provides for the referred national redress scheme matters. Subclause 145(1) provides that referred national redress matters are the matters relating to a redress scheme for institutional child sexual abuse.

Subclause 145(2) provides for matters that are not referred national redress matters. These matters include:

(a)

the making of a law to the extent that that law would operate to prevent or limit the operation of, any State redress mechanism, whether or not the mechanism deals with the same or similar subject matters as those dealt with in any aspect of the Scheme;

(b)

the making of a law to the extent that that law would substantively remove or override a provision of this Bill once enacted that requires the agreement of the State.

Subclause 145(3) provides that paragraph 145(2)(a) does not cover certain matters, if they would otherwise be covered by subclause 145(1). These matters include:

(a)

any matter to which the initial referred provisions relate;

(b)

the matters of the release or discharge, in connection with the operation of the scheme, of relevant civil liability of institutions or officials;

(c)

the matter of the disclosure or use of evidence or other information provided or obtained in connection with the operation of the Scheme;

(d)

the matter of making, enforcement or protection (for example, protection against the operation of orders in the nature of garnishee orders) of payments in connection with the operation of the Scheme.

Subclause 145(4) provides that a State redress mechanism is the following:

(a)

a scheme, program or arrangement (temporary or otherwise) established (before or after the commencement of the State's referral Act or adoption Act) by:

(i)

the Parliament or government of the State; or

(ii)

an institution (whether governmental or non-governmental) or other entity;

for or in respect of persons who have suffered institutional child sexual abuse in the State (whether applying only to any such persons or applying to any class of victims of crime) and any associated matters; or

(b)

the jurisdiction of a court or tribunal to grant compensation or support for or in respect of victims of crime (including crime relating to institutional child sexual abuse) and any associated matters.

Division 3 - Participating jurisdictions providing counselling and psychological services under the Scheme

Clause 146 provides for participating jurisdictions to request, by notifying the Minister in writing, to become a declared provider of counselling and psychological services under the Scheme, where there are arrangements in place in that jurisdiction to deliver those services in accordance with the National Service Standards set out in the National Redress Scheme Agreement. Subclause 146(2) provides that a participating jurisdiction is a declared provider of counselling and psychological services if a declaration to that effect is in force under subclause 147(1).

Clause 147 provides for Ministerial declarations about declared providers. Subclause 147(1) provides that if the Minister receives a notice under subclause 146(1) from a participating jurisdiction, the Minister must, by notifiable instrument, declare that the jurisdiction is a declared provider of counselling and psychological services under the Scheme. Subclause 147(2) provides that the Minister must, as soon as practicable, revoke the declaration made under subclause 147(1) if a participating jurisdiction request the Minister to do so.