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Part 2-4—Offers and acceptance of redress

Part 2-4 Offers and acceptance of redress

Division 1 Simplified outline of this Part

38   Simplified outline of this Part

If the Operator approves a person’s application for redress, the Operator must give the person a written offer of redress. The offer must include the information set out in section 39. The person may accept or decline the offer.

If the person wishes to accept the offer, he or she must do so by giving the Operator, within the acceptance period, an acceptance document that complies with section 42. If the person accepts the offer, then the person will be provided with redress under the scheme. The person also releases all the participating institutions determined by the Operator to be responsible for the abuse (as well as the officials of those institutions, the associates of those institutions and the officials of the associates of those institutions) from all civil liability for the abuse of the person. However, the abuser is not released from liability for the abuse.

If the person accepts the offer, the Operator must notify the participating institutions determined by the Operator to be responsible for the abuse of the person’s acceptance of the offer (including the components of redress that the person wishes to receive).

If the person declines the offer (either by formally declining, or by doing nothing, in the acceptance period), the person is not required to release any institution or official from civil liability for the abuse of the person, but the person will not be provided with redress under the scheme.

Division 2 Offers of redress

39   Offer of redress

                   If the Operator approves a person’s application for redress, the Operator must give the person a written offer of redress that:

                     (a)  explains the 3 components of redress (i.e. redress payment, access to the counselling and psychological component of redress for the person, and direct personal response); and

                     (b)  specifies the amount of the redress payment; and

                     (c)  specifies 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—specifies the amount of that payment; and

                     (e)  specifies the participating institutions determined by the Operator under paragraph 29(2)(b) to be responsible for the abuse and therefore liable for providing redress to the person under the scheme; and

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

                              (i)  specifies the person who is the representative; and

                             (ii)  explains 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—specifies the participating institutions determined by the Operator under paragraph 29(2)(g) to be associates of any of those responsible institutions; and

                     (h)  specifies the participating institutions that were identified in the person’s application but determined by the Operator under paragraph 29(2)(h) not to be responsible for the person’s abuse and therefore not liable for providing redress to the person under the scheme; and

                      (i)  if 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:

                              (i)  specifies the defunct institution; and

                             (ii)  explains that the government institution is liable for the defunct institution’s (hypothetical) share of the costs of providing redress to the person; and

                            (iii)  explains 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)  states the date of the offer; and

                     (k)  specifies the acceptance period for the offer (see section 40); and

                      (l)  gives 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)  gives information about other services available to the person under the scheme to help the person to decide whether to accept the offer; and

                     (n)  explains how to accept or decline the offer, should the person decide to do so; and

                     (o)  informs the person that the offer expires at the end of the acceptance period; and

                     (p)  explains the effect of section 43 (which is about the release from civil liability of the responsible institutions, their officials, their associates and the officials of their associates) should the person accept the offer; and

                     (q)  informs the person that the person does not have to accept the offer and that, by doing nothing, the offer is taken to be declined at the end of the acceptance period; and

                      (r)  informs the person that the person will not be able to make another application for redress under the scheme, whether or not the offer is accepted; and

                      (s)  informs the person that the person may request an extension of the acceptance period and explains how to make that request; and

                      (t)  complies with any requirements prescribed by the rules.

40   Acceptance period for offers of redress

             (1)  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.

             (2)  Before the end of the acceptance period, the Operator may, by written notice to the person, extend the acceptance period if the Operator considers there are exceptional circumstances that justify the extension.

             (3)  An extension under subsection (2) may be given:

                     (a)  on the Operator’s own initiative; or

                     (b)  on a request made by the person under subsection (4).

             (4)  The person may request the Operator to extend the acceptance period. The request must comply with any requirements prescribed by the rules.

             (5)  If the Operator extends the period, the acceptance period is the original period as extended by the Operator.

41   Notice of offer to participating institutions

             (1)  If:

                     (a)  the Operator gives an offer of redress under section 39; and

                     (b)  a participating institution or person referred to in paragraph 39(e), (f) or (g) is specified in the offer;

then the Operator must give the institution or person written notice of the offer.

             (2)  The notice must:

                     (a)  state the acceptance period for the offer; and

                     (b)  comply with any requirements prescribed by the rules.

Division 3 Accepting or declining offers of redress

42   Accepting the offer of redress

             (1)  A person may accept an offer of redress by complying with this section.

             (2)  The person must give the Operator a document (the acceptance document ) that:

                     (a)  is in the approved form; 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 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 and associates (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 against another party in relation to abuse of 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 abuse of the person that is within the scope of the scheme; and

                      (f)  states the components of 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 direct personal 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.

             (3)  The person must give the Operator the acceptance document:

                     (a)  before the end of the acceptance period; and

                     (b)  in the manner (if any) prescribed by the rules.

             (4)  Rules made for the purposes of paragraph (2)(j) must not require the person to enter into a confidentiality agreement.

43   Effect of acceptance on civil liability

                   If a person accepts an offer of redress in accordance with section 42, then, at the time the person gives the acceptance and by force of this section:

                     (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 a released institution or official in relation to that abuse; and

                     (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 section, 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.

44   Notice to participating institutions that the offer is accepted

             (1)  If a person accepts an offer of redress in accordance with section 42, then the Operator must give each institution that was notified under section 41 about the offer written notice of:

                     (a)  the person’s acceptance of the offer; and

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

                     (c)  any matters prescribed by the rules.

             (2)  The notice must be accompanied by a copy of the person’s acceptance document.

45   Declining the offer of redress

Declining by taking positive action

             (1)  A person may decline an offer of redress by giving the Operator, before the end of the acceptance period, a document that:

                     (a)  is in the approved form; and

                     (b)  states that 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); and

                     (d)  is signed by the person; and

                     (e)  complies with any requirements prescribed by the rules.

Declining by not accepting in the acceptance period

             (2)  A person is taken to have declined an offer of redress if the person does not accept the offer in accordance with section 42 before the end of the acceptance period.

             (3)  Subsection (2) does not apply if:

                     (a)  the person has applied for review under section 73 of the Operator’s determination on the person’s application for redress; and

                     (b)  the review has not been completed at the end of the acceptance period.

46   Notice to participating institutions that the offer is declined

             (1)  If a person declines an offer of redress in accordance with section 45, then the Operator must give each institution that was notified under section 41 of the offer written notice that the person has declined the offer.

             (2)  The notice must comply with any requirements prescribed by the rules.