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Part 5-3—Other matters

Part 5-3 Other matters

Division 1 Simplified outline of this Part

118   Simplified outline of this Part

The Minister and the Operator may delegate their powers and functions to certain officers. However, the Minister cannot delegate his or her powers and functions to make the rules and the Operator can only delegate his or her powers and functions under sections 32 and 88 (which are about determinations relating to redress applications) to an independent decision-maker.

The Operator may engage a person to be an independent decision-maker to make determinations relating to redress applications.

The Operator must prepare and give an annual report on the operation of the scheme and must include particular information in that report (such as whether participating institutions have complied with requirements to provide information relating to applications for redress during the year).

Unincorporated participating non-government institutions of a Territory are treated as if they were a person for the purposes of this Act, but with particular changes.

The Minister must cause a review of the scheme to be conducted.

The scheme ceases on the sunset day (which ordinarily will be the tenth anniversary of the scheme).

This Part also deals with other miscellaneous matters (such as the methods by which the Operator may give notices under this Act).

Division 2 Delegation

119   Delegation by the Minister

             (1)  The Minister may, in writing, delegate all or any of his or her powers or functions under this Act (other than section 117, which is about the rules) to:

                     (a)  the Operator; or

                     (b)  a person who holds or performs the duties of an SES Band 3 position, or an equivalent position, in the Department.

             (2)  In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Minister.

120   Delegation by the Operator

General powers and functions (other than redress determinations)

             (1)  The Operator may, in writing, delegate all or any of his or her powers or functions under this Act (other than sections 32, 88 and 111) to an officer of the scheme.

             (2)  In exercising a power or performing a function under a delegation under subsection (1), the delegate must comply with any directions of the Operator.

General powers and functions for redress determinations

             (3)  The Operator may, in writing, delegate his or her powers and functions under section 32 or 88 (which are about determinations relating to redress applications) to an independent decision-maker.

             (4)  In exercising a power or performing a function under a delegation under subsection (3), the delegate is not required to comply with any directions of the Operator.

Division 3 Independent decision-makers

121   Engaging persons to be independent decision-makers

             (1)  The Operator may, on behalf of the Commonwealth and with the approval of the Minister, engage a person, under written agreement, to assist in the performance of the functions of the Operator in relation to the making of determinations under section 32 or 88 on applications for redress.

             (2)  Before giving an approval under subsection (1), the Minister must consult the appropriate Ministers from the self-governing Territories in accordance with the Commonwealth Redress Scheme Agreement.

             (3)  A person engaged under subsection (1) is an independent decision-maker .

             (4)  Subdivision A of Division 3 of Part 2-2 of the Public Governance, Performance and Accountability Act 2013 (which deals with general duties of officials), and any rules made under that Act for the purposes of that Subdivision, apply to an independent decision-maker in the same way as they apply to an official (within the meaning of that Act).

Note:          The duties of officials under the Public Governance, Performance and Accountability Act 2013 include the duty of care and diligence; the duty to act honestly, in good faith and for a proper purpose; the duties in relation to the use of information and position; and the duty to disclose interests.

Division 4 Reporting to Parliament

122   Annual report on operation of the scheme

Annual report on the operation of the scheme

             (1)  As soon as practicable after the end of each financial year, the Operator must prepare and give an annual report to the Minister, for presentation to the Parliament, on the operation of the scheme during the year.

Failure of institutions to provide information to the Operator

             (2)  The annual report must include the following information for the year:

                     (a)  the number of requirements for information or documents made by the Operator under section 70 to a participating institution that:

                              (i)  were not complied with at all; or

                             (ii)  were complied with only partially; or

                            (iii)  were complied with (fully or partially) after the day specified in the request;

                     (b)  the name of each of those participating institutions;

                     (c)  the number of requirements to which paragraph (a) applies for each of those participating institutions.

Failure of institutions to give direct personal responses

             (3)  The annual report must also include the following information for the year:

                     (a)  the number of cases where a participating institution:

                              (i)  did not comply with subsection 50(1) (which is about institutions giving direct personal responses) at all; or

                             (ii)  complied with subsection 50(1) only partially;

                     (b)  the name of each of those participating institutions;

                     (c)  the number of cases to which paragraph (a) applies for each of those participating institutions.

             (4)  The annual report must comply with any requirements prescribed by the rules.

Division 5 Treatment of unincorporated participating non-government institutions of a Territory

123   Treatment of participating non-government institutions that are partnerships

             (1)  This Act applies to a participating non-government institution of a Territory that is a partnership as if it were a person, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the institution by this Act is imposed on each partner instead, but may be discharged by any of the partners.

             (3)  An offence against this Act that would otherwise have been committed by the institution is taken to have been committed by each partner in the partnership, at the time the offence was committed, who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission; or

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

124   Treatment of participating non-government institutions that are unincorporated associations

             (1)  This Act applies to a participating non-government institution of a Territory that is an unincorporated association as if it were a person, but with the changes set out in this section.

             (2)  An obligation that would otherwise be imposed on the institution by this Act is imposed on each member of the association’s committee of management instead, but may be discharged by any of the members.

             (3)  An offence against this Act that would otherwise have been committed by the institution is taken to have been committed by each member of the association’s committee of management, at the time the offence was committed, who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission; or

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the member).

Division 6 Miscellaneous

125   Operator’s decisions to be in writing

                   A decision of the Operator under this Act must be in writing.

126   Method of notification by Operator

                   If this Act requires or permits the Operator to notify a person, the Operator may notify the person:

                     (a)  by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Operator; or

                     (b)  by giving the notice to the person personally; or

                     (c)  in any other way the Operator considers appropriate.

127   Operator not required to make a determination

             (1)  If this Act requires an application to be in a form approved by the Operator, the Operator is not required to make a determination on the application if it is not in that form.

             (2)  If this Act permits the Operator to require or request information or documents for the purposes of, or for purposes relating to, making a determination or doing a thing, the Operator is not required to make the determination or do the thing until the information or documents are provided.

128   Review of the scheme

                   The Minister must cause a review of the operation of the scheme to be commenced as soon as possible after:

                     (a)  the eighth anniversary of the scheme start day; or

                     (b)  if, before the eighth anniversary, the rules prescribe a day that is after the second anniversary—that day.

129   Sunset of the scheme

             (1)  Subject to this section, this Act ceases to have effect at the end of the day ( sunset day ) that is:

                     (a)  the tenth anniversary of the scheme start day; or

                     (b)  if, before the tenth anniversary, the rules prescribe a day that is after the tenth anniversary—that day.

             (2)  Despite subsection (1), at any time before the first anniversary of the sunset day, rules may be made under section 117 for the purposes of subsections (3) and (4) of this section.

             (3)  The rules may prescribe matters of a transitional nature (including prescribing any saving or application provisions) relating to this Act ceasing to have effect under subsection (1).

             (4)  Without limiting subsection (2), the rules may provide that certain provisions of this Act:

                     (a)  continue to apply after the sunset day for the purposes set out in the rules; or

                     (b)  continue to apply after the sunset day in a modified way for the purposes set out in the rules.

Those provisions then continue to apply, or continue to apply in the modified way, as set out in the rules.

             (5)  The rules are repealed immediately before the first anniversary of the sunset day.