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Part 6-2—Funders of last resort

Part 6-2 Funders of last resort

Division 1 Simplified outline of this Part

162   Simplified outline of this Part

In some cases, a participating government institution will be the funder of last resort for a defunct institution that is not participating in the scheme. In those cases, the government institution will be liable to pay the defunct institution’s share of the costs of providing redress to a person, in addition to the government institution’s liability to pay its own share of those costs.

Before a government institution can become the funder of last resort for a defunct institution in relation to abuse of a person, the Operator must first make a determination to that effect (see paragraph 29(2)(i)). The Operator can only make that determination if:

       (a)     the Operator has determined that the government institution is equally responsible with the defunct institution for the abuse; and

      (b)     the defunct institution is listed for the jurisdiction that the government institution belongs to.

Division 2 Funders of last resort

163   Funders of last resort

                   A participating government institution is the funder of last resort for a defunct institution in relation to abuse of a person if a determination of the Operator to that effect is in force under paragraph 29(2)(i).

Note:          The Operator can only make that determination if the participating government institution and the defunct institution are equally responsible for the abuse and the defunct institution is listed for the jurisdiction that the government institution belongs to.

164   Listing defunct institutions

             (1)  A defunct institution is listed for a participating jurisdiction if:

                     (a)  the defunct institution:

                              (i)  is a non-government institution; and

                             (ii)  is not a participating institution; and

                     (b)  a declaration that the defunct institution is listed for the jurisdiction is in force under subsection (2).

             (2)  The Minister may, by notifiable instrument, declare that a defunct institution is listed for one or more participating jurisdictions.

Note:          A defunct institution may be identified by name, by inclusion in a particular class, or in any other way.

             (3)  The Minister must not make a declaration under subsection (2) listing a defunct institution for the Commonwealth or a participating Territory unless the Minister is satisfied that the relevant jurisdiction has agreed, in the way (if any) prescribed by the rules, to the institution being listed for the jurisdiction.

             (4)  The Minister must not make a declaration under subsection (2) listing a defunct institution for a participating State unless the Minister is satisfied that the State has agreed, in a way provided for in the State’s referral Act or adoption Act, to the institution being listed for the State.

             (5)  The Minister may, by notifiable instrument, vary or revoke a declaration made under subsection (2).

             (6)  If:

                     (a)  a declaration is made under subsection (2) that a defunct institution is listed for the Commonwealth or a participating Territory; and

                     (b)  the jurisdiction withdraws its agreement, in the way (if any) prescribed by the rules, to the defunct institution being listed for the jurisdiction;

then, as soon as is practicable, the Minister must, by notifiable instrument, vary or revoke the declaration so that the defunct institution is no longer listed for the jurisdiction.

             (7)  If:

                     (a)  a declaration is made under subsection (2) that a defunct institution is listed for a participating State; and

                     (b)  the State withdraws its agreement, in a way provided for in the State’s referral Act or adoption Act, to the defunct institution being listed for the State;

then, as soon as is practicable, the Minister must, by notifiable instrument, vary or revoke the declaration so that the defunct institution is no longer listed for the State.

Division 3 Special rules for funder of last resort cases

165   Special rules for funder of last resort cases

Effect of government institution being funder of last resort

             (1)  If the Operator determines under paragraph 29(2)(i) that:

                     (a)  a participating government institution is equally responsible with a defunct institution for abuse of a person; and

                     (b)  the government institution is the funder of last resort for the defunct institution in relation to the abuse;

then the government institution is liable, in accordance with this section, for what the defunct institution would have been liable to pay in relation to providing redress to the person, had the defunct institution been a participating institution.

Redress payment

             (2)  When determining under paragraph 29(2)(c) the amount of the redress payment for the person and the amount of the government institution’s share of the costs of that payment, the Operator must:

                     (a)  apply subsection 30(2) as if the defunct institution were also a responsible institution in relation to the abuse; and

                     (b)  add the amount worked out under subsection 30(2) (as applying because of paragraph (a) of this subsection) as the amount of the defunct institution’s share of the costs of the redress payment to what, apart from this section, would have been the government institution’s share of the costs of the redress payment.

Counselling and psychological component

             (3)  When determining under paragraph 29(2)(d) the amount of the government institution’s share of the costs of the counselling and psychological component of redress for the person, the Operator must:

                     (a)  determine, in accordance with section 31, the amount of the defunct institution’s share of those costs as if the defunct institution were also a responsible institution; and

                     (b)  add that amount to what, apart from this section, would have been the amount of the government institution’s share of those costs.

Scheme administration costs

             (4)  When determining under subsection 152(2) the government institution’s contribution to the costs of the administration of the scheme for a quarter, the Operator must:

                     (a)  determine the amount of the defunct institution’s contribution to those costs as if the defunct institution were a participating institution; and

                     (b)  add that amount to what, apart from this section, would have been the amount of the government institution’s contribution to those costs.