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Part 5-2—Groups of institutions participating in the scheme

Part 5-2 Groups of institutions participating in the scheme

Division 1 Simplified outline of this Part

132   Simplified outline of this Part

Two or more participating institutions may form a participating group for the purposes of the scheme. There are 2 main features of an institution being a member of a participating group.

The first is that the members of the group will be associates of each other. Some provisions of this Act apply in a special way for associates. For example, if a person accepts an offer of redress, then the person releases the participating institutions determined by the Operator to be responsible for the abuse (and their officials), as well as all of the associates of that institution (and their officials).

The second is that all participating groups must have a representative for the group. The representative may act on behalf of each member of the group (for example, communicate with the Operator). However, the representative will not assume any obligations or liabilities of the members, except for the liability of a member to pay funding contribution.

Division 2 Participating groups

133   Participating groups

             (1)  Two or more participating institutions may form a participating group for the purposes of the scheme.

             (2)  A participating group is a group of participating institutions for which a declaration is force under subsection 134(1).

             (3)  A participating institution that is a member of a participating group is an associate of each other participating institution in the group.

Note:          Particular provisions of this Act apply in a special way for associates (see sections 42 and 43, which are about releasing institutions and officials from civil liability for abuse).

134   Institutions becoming members of a participating group

             (1)  The Minister may, by notifiable instrument, declare that 2 or more participating institutions form a participating group.

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

                     (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 a 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 (see subsection 136(1)); and

                            (iii)  any other requirements prescribed by the rules are satisfied.

Note:          For how the agreement of the Commonwealth, a participating Territory, an institution or a person is given, see section 186.

             (3)  If:

                     (a)  a State or Territory has agreed to a State institution or Territory institution being a member of a participating group; and

                     (b)  the institution is a body corporate;

then the institution is taken to have also agreed to be a member of the participating group.

135   Institutions ceasing to be members of a participating group

             (1)  The Minister may, by notifiable instrument, vary or revoke a declaration made under subsection 134(1).

             (2)  If:

                     (a)  a State requests the Minister in writing to vary or revoke a declaration made under subsection 134(1) in relation to a group of State institutions so that:

                              (i)  the group ceases to be a participating group; or

                             (ii)  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 subsection 134(1) in relation to a group of Territory institutions so that:

                              (i)  the group ceases to be a participating group; or

                             (ii)  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 subsection 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 requests the Minister in writing to vary a declaration made under subsection 134(1) in relation to the institution so that it ceases to be a member of the group;

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

             (3)  If a participating group of non-government institutions ceases to have a representative for the group, then the Minister must revoke the declaration made under subsection 134(1) as soon as practicable.

             (4)  Despite subsections (1), (2) and (3), the Minister must not vary or revoke a declaration made under subsection 134(1) in relation to a participating group unless any requirements prescribed by the rules relating to the variation or revocation are satisfied.

             (5)  If:

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

                     (b)  because of subsection 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 were still a member of the group.

Division 3 Representatives for participating groups

136   Representatives for participating groups

             (1)  A participating group must have a representative for the group.

             (2)  The representative for a participating group of Commonwealth institutions is the Commonwealth.

             (3)  The representative for a participating group of State institutions is the participating State.

             (4)  The representative for a participating group of Territory institutions is the participating Territory.

             (5)  The representative for a participating group of non-government institutions is the person in relation to whom a declaration is force under subsection 137(1).

             (6)  A participating group may have only one representative for the group.

             (7)  However, a person may be the representative for more than one participating group.

137   Becoming the representative for a participating group of non-government institutions

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

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

                     (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 subsection (1) declaring another person to be the representative for the group; and

                     (d)  any other requirements prescribed by the rules are satisfied.

Note:          For how the agreement of an institution or a person is given, see section 186.

138   Ceasing to be the representative for a participating group of non-government institutions

             (1)  The Minister may, by notifiable instrument, revoke a declaration made under subsection 137(1) in relation to a representative for a participating group.

             (2)  The Minister must, by notifiable instrument, revoke a declaration made under subsection 137(1) if:

                     (a)  the representative; or

                     (b)  each of the members of the group (other than the representative, if the representative is a member);

requests the Minister in writing to revoke the declaration.

Note:          If a participating group of non-government institutions does not have a representative, then the Minister must revoke the declaration made under subsection 134(1) that the group is a participating group (see subsection 135(3)).

             (3)  Despite subsections (1) and (2), the Minister must not revoke a declaration made under subsection 137(1) unless any requirements prescribed by the rules in relation to the revocation are satisfied.

             (4)  If:

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

                     (b)  because of subsection 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 the person, as if the institution were still a member of the group.

139   Actions of the representative for a participating group

             (1)  Any act that a participating institution that is a member of a participating group may do under, or for the purposes of, this Act (other than this Division) may be done by the representative for the group on behalf of that institution.

             (2)  Any act that is done by the representative for a participating group on behalf of a participating institution that is a member of the group has effect, for the purposes of this Act (other than this Division) as if it had been done by that institution.

140   Giving notices to the representative for a participating group

             (1)  Any notice that the Operator is required or authorised by this Act to give to a participating institution that is a member of a participating group must be given by the Operator to the representative for the group.

             (2)  A notice given under subsection (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.

141   Joint and several liability of the representative for funding contribution

                   If:

                     (a)  a participating institution is liable to pay funding contribution for a quarter; and

                     (b)  that institution is a member of a participating group;

then that institution and the representative for the group are jointly and severally liable to pay the funding contribution for the quarter.