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Part 2-2—Entitlement to redress under the scheme

Part 2-2 Entitlement to redress under the scheme

Division 1 Simplified outline of this Part

11   Simplified outline of this Part

For a person to be entitled to redress under the scheme, a number of conditions need to be met.

First, the person must make an application for redress under the scheme.

Then the person must meet the eligibility criteria for redress. These are that the person was sexually abused, the abuse is within the scope of the scheme, the abuse is of a kind for which the amount of redress payment worked out under the assessment framework would be more than nil, one or more participating institutions are responsible for the abuse, and, at the time of the application, the person is an Australian citizen or a permanent resident.

If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, the Operator must approve the application and make an offer of redress to the person. The person may accept or decline the offer. (Offers and acceptance of redress are dealt with in Part 2-4.)

If the person accepts the offer, then the person becomes entitled to redress under the scheme. The person is required to release particular institutions and officials from all civil liability for the abuse. Those institutions are the participating institutions determined by the Operator to be responsible for the abuse, their officials, their associates and the officials of their associates. The abuser is not released from liability.

Once entitled, the person will be provided with redress under the scheme. (Provision of redress is dealt with in Part 2-5.)

If the person declines the offer, then the person is not entitled to redress under the scheme. The person is not required to release any institution or official from civil liability for the abuse.

Division 2 Entitlement to redress under the scheme

12   When is a person entitled to be provided with redress?

             (1)  A person can only be provided with redress under the scheme if the person is entitled to it.

             (2)  A person is entitled to redress under the scheme if:

                     (a)  the person applies for redress under section 19; and

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

                     (c)  the Operator approves the application under section 29; and

                     (d)  the Operator makes an offer of redress to the person under section 39; and

                     (e)  the person accepts the offer in accordance with section 42.

             (3)  A person is also entitled to redress, or a component of redress, under the scheme if this Act or the rules prescribe that the person is entitled to it.

Note:          For cases where this Act prescribes that a person is entitled to redress, or a component of redress, under the scheme, see Part 3-1.

             (4)  Despite subsections (2) and (3), a person is not entitled to redress, or a component of redress, under the scheme if this Act or the rules prescribe that the person is not entitled to it.

Note:          For cases where this Act prescribes that a person is not entitled to redress, or a component of redress, under the scheme, see Part 3-2.

13   When is a person eligible for redress?

             (1)  A person is eligible for redress under the scheme if:

                     (a)  the person was sexually abused; and

                     (b)  the sexual abuse is within the scope of the scheme (see section 14); and

                     (c)  the sexual abuse is of a kind for which the maximum amount of redress payment that could be payable to the person (as worked out under the assessment framework) would be more than nil; and

                     (d)  one or more participating institutions are responsible for the abuse (see section 15); and

                     (e)  the person is an Australian citizen or a permanent resident (within the meaning of the Australian Citizenship Act 2007 ) at the time the person applies for redress.

Note 1:       To be eligible for redress, a person must have been sexually abused. However, redress is for the sexual abuse, and related non-sexual abuse, of the person that is within the scope of the scheme.

Note 2:       For which institutions are participating institutions, see subsection 108(2).

             (2)  A person is also eligible for redress under the scheme if this Act or the rules prescribe that the person is eligible for it.

             (3)  Despite subsections (1) and (2), a person is not eligible for redress under the scheme if this Act or the rules prescribe that the person is not eligible for it.

14   When is abuse within the scope of the scheme?

             (1)  Abuse of a person is within the scope of the scheme if:

                     (a)  it occurred when the person was a child; and

                     (b)  it occurred:

                              (i)  inside a participating State; or

                             (ii)  inside a Territory; or

                            (iii)  outside Australia; and

                     (c)  it occurred before the scheme start day.

             (2)  Abuse of a person is within the scope of the scheme if this Act or the rules prescribe that it is.

             (3)  Despite subsections (1) and (2), abuse of a person is not within the scope of the scheme if this Act or the rules prescribe that it is not.

15   When is an institution responsible for abuse?

When is an institution responsible for abuse?

             (1)  An institution (whether or not a participating institution) is responsible for abuse of a person if the institution is primarily responsible or equally responsible for the abuse.

When an institution is primarily responsible for abuse

             (2)  An institution is primarily responsible for abuse of a person if the institution is solely or primarily responsible for the abuser having contact with the person.

When an institution is equally responsible for abuse

             (3)  An institution is equally responsible for abuse of a person if:

                     (a)  the institution and one or more other institutions are approximately equally responsible for the abuser having contact with the person; and

                     (b)  no institution is primarily responsible for the abuse of the person.

Relevant circumstances for determining responsibility

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

                     (a)  whether the institution was responsible for the day-to-day care or custody of the person when the abuse occurred;

                     (b)  whether the institution was the legal guardian of the person when the abuse occurred;

                     (c)  whether the institution was responsible for placing the person into the institution in which the abuse occurred;

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

                     (e)  whether the abuse occurred:

                              (i)  on the premises of the institution; or

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

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

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

Note:          When determining the question whether an institution is responsible for abuse of a person, the circumstances listed in this subsection are relevant to that question, but none of them on its own is determinative of that question.

             (5)  Despite subsections (1), (2) and (3), an institution is responsible , primarily responsible or equally responsible for abuse of a person in the circumstances (if any) prescribed by the rules.

             (6)  Despite subsections (1), (2) and (3), an institution is not responsible , primarily responsible or equally responsible for abuse of a person in the circumstances (if any) prescribed by the rules.

16   What redress is provided to a person?

             (1)  Redress for a person consists of 3 components:

                     (a)  a redress payment (of up to $150,000); and

                     (b)  a counselling and psychological component which, depending on where the person lives (as stated in the person’s application for redress), consists of:

                              (i)  access to counselling and psychological services provided under the scheme; or

                             (ii)  a payment (of up to $5,000) to enable the person to access counselling and psychological services provided outside of the scheme; and

                     (c)  a direct personal response from each of the participating institutions that are determined by the Operator under paragraph 29(2)(b) to be responsible for the abuse of the person.

Note:          For what a direct personal response consists of, see subsection 54(2).

             (2)  A person who is entitled to redress under the scheme may choose to accept 1, 2 or all 3 of those components of redress.

             (3)  If 2 or more participating institutions are determined to be responsible for the person’s abuse and the person chooses to be given a direct personal response, then the person may choose to be given a direct personal response from each of those institutions, or from only some or one of them.

17   What is redress for?

                   Redress for a person is for the sexual abuse, and related non-sexual abuse, of the person that is within the scope of the scheme.

Note:          While redress is for both the sexual and related non-sexual abuse of a person that is within the scope of the scheme, to be eligible for redress in the first place, there must have been sexual abuse within the scope of the scheme (see paragraph 13(1)(b)).