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Part 2-3—Institutions participating in the scheme

Part 2-3 Institutions participating in the scheme

Division 1 Simplified outline of this Part

20   Simplified outline of this Part

For a person to be eligible for redress, at least one participating institution must be responsible for the abuse of the person.

A participating institution is responsible for the abuse if the abuse occurred in circumstances where the participating institution is, or should be treated as being, primarily or equally responsible for the abuser having contact with the person. Various circumstances are relevant to determining that question (e.g. whether the abuser was an official of the institution). Those circumstances are set out in section 21. The rules can prescribe other circumstances in which a participating institution is responsible for the abuse of a person. The rules can also prescribe circumstances in which a participating institution is not responsible for the abuse of a person.

There are 3 types of institutions that are participating institutions. These are:

       (a)     Commonwealth institutions (such as Commonwealth Departments and bodies established under Commonwealth law); and

      (b)     Territory institutions (such as Territory Departments and bodies established under Territory law); and

       (c)     non-government institutions of a Territory (such as a private body that is established in a Territory).

While all Commonwealth institutions are participating institutions, Territory institutions and non-government institutions of a Territory are only participating institutions if they opt in to the scheme and the Minister makes a declaration under section 27 that they are a participating institution.

Division 2 Responsibility of institutions for abuse

21   When is a participating institution responsible for abuse?

             (1)  For sexual abuse, or non-sexual abuse, of a person to be within the scope of the scheme, a participating institution must be responsible for the abuse (see paragraph 17(d)).

             (2)  A participating institution is responsible for sexual abuse or non-sexual abuse of a person if the abuse occurred in circumstances where the participating institution is, or should be treated as being, primarily or equally responsible for the abuser having contact with the person.

             (3)  Without limiting the circumstances that might be relevant for determining under subsection (2) whether a participating institution is, or should be treated as being, primarily or equally responsible for the abuser having contact with the person, the following circumstances are relevant:

                     (a)  whether the abuse occurred:

                              (i)  on the premises of the participating institution; or

                             (ii)  where activities of the participating institution took place; or

                            (iii)  in connection with the activities of the participating institution;

                     (b)  whether the abuser was an official of the participating institution when the abuse occurred;

                     (c)  whether the participating institution was responsible for the care of the person when the abuse occurred;

                     (d)  any other circumstances that are prescribed by the rules.

             (4)  For the purposes of subsection (2), a participating institution is, or should be treated as being, primarily responsible for the abuser having contact with the person if the institution is solely, substantially or primarily responsible for that contact, even if there are other institutions that, in a minor or tangential way, might also have responsibility for that contact.

             (5)  For the purposes of subsection (2), a participating institution is, or should be treated as being, equally responsible for the abuser having contact with the person if the institution is equally responsible with one or more other institutions for that contact, even if there are other institutions that, in a minor or tangential way, might also have responsibility for that contact.

             (6)  A participating institution is responsible for sexual abuse or non-sexual abuse of a person if the rules prescribe circumstances in which a participating institution is, or should be treated as being, responsible for the abuse of the person.

             (7)  Despite subsections (2) and (6), a participating institution is not responsible for the sexual or non-sexual abuse of a person if it occurs in circumstances prescribed by the rules as being circumstances in which a participating institution is not, or should not be treated as being, responsible for the abuse of the person.

Division 3 Institutions participating in the scheme

Subdivision A Participating institutions

22   What is a participating institution?

                   Each of the following institutions is a participating institution :

                     (a)  a Commonwealth institution;

                     (b)  a participating Territory institution;

                     (c)  a participating non-government institution of a Territory.

Subdivision B Commonwealth institutions

23   What is a Commonwealth institution?

             (1)  An institution is a Commonwealth institution if it:

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

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

                     (e)  is an institution that is prescribed by the rules as being a Commonwealth institution.

             (2)  However, an institution is not a Commonwealth institution if it:

                     (a)  is a body politic that is a self-governing Territory, or is or was part of that body politic; or

                     (b)  is or was a 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.

             (3)  Rules made for the purposes of paragraph (1)(e) or (2)(c) may prescribe that an institution is, or is not, a Commonwealth institution in relation to a period specified by the rules.

Subdivision C Participating Territory institutions

24   What is a participating Territory institution?

                   An institution is a participating Territory institution if:

                     (a)  the institution is a Territory institution; and

                     (b)  a declaration is in force under subsection 27(1) that the institution is a participating institution.

25   What is a Territory institution?

             (1)  An institution is a Territory institution if it:

                     (a)  is a self-governing Territory, or is or was part of a self-governing Territory; or

                     (b)  is or was a body (whether or not incorporated) established by or under a law of a self-governing Territory, or is or was part of such a body; or

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

             (2)  However, an institution is not a Territory institution if:

                     (a)  the Commonwealth Redress Scheme Agreement specifies; or

                     (b)  the rules prescribe;

that the institution is not a Territory institution.

             (3)  Rules made for the purposes of paragraph (1)(c) or (2)(b) may prescribe that an institution is, or is not, a Territory institution in relation to a period specified by the rules.

Subdivision D Participating non-government institutions of a Territory

26   What is a participating non-government institution of a Territory?

             (1)  An institution is a participating non-government institution of a Territory if:

                     (a)  the institution is or was a non-government institution of a Territory; and

                     (b)  a declaration is in force under subsection 27(1) that the institution is a participating institution.

             (2)  A non-government institution of a Territory is an institution (other than a Commonwealth institution or a Territory institution) that is or was established in a Territory.

             (3)  However, an institution is not a non-government institution of a Territory if the rules prescribe that the institution is not a non-government institution of a Territory.

             (4)  Rules made for the purposes of subsection (3) may prescribe that an institution is not a non-government institution of a Territory in relation to a period specified by the rules.

Division 4 Ministerial declarations about participating institutions

27   Ministerial declarations about participating institutions

             (1)  The Minister may, before the second anniversary of the scheme start day or such later day prescribed by the rules, declare, in writing, that a Territory institution or non-government institution of a Territory is a participating institution.

             (2)  However, the Minister must not make a declaration under subsection (1) unless the Minister is satisfied that:

                     (a)  the institution has opted in to the scheme in accordance with any requirements prescribed by the rules about how an institution may opt in to the scheme; and

                     (b)  any other criteria prescribed by the rules in relation to the institution are met.

             (3)  For the purposes of paragraph (2)(a), if:

                     (a)  a non-government institution of a Territory is not in existence; and

                     (b)  the Commonwealth or a self-governing Territory is the funder of last resort for the institution;

then the rules may prescribe circumstances for when the institution is taken to have opted in to the scheme.

             (4)  The Minister may revoke, in writing, a declaration under subsection (1).

             (5)  A declaration under subsection (1) and a revocation under subsection (4) are legislative instruments, but section 42 (disallowance) of the Legislation Act 2003 does not apply to those instruments.