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Part 5-1—Participating institutions

Part 5-1 Participating institutions

Division 1 Simplified outline of this Part

107   Simplified outline of this Part

For a person to be eligible for redress, at least one participating institution must be responsible for the abuse of the person.

There are 4 types of institutions that are participating institutions. These are:

       (a)     Commonwealth institutions (such as Commonwealth Departments and bodies established under Commonwealth law); and

      (b)     State institutions (such as State Departments and certain bodies established under State law); and

       (c)     Territory institutions (such as Territory Departments and certain bodies established under Territory law); and

      (d)     non-government institutions (such as churches or sporting clubs).

While all Commonwealth institutions are participating institutions, State institutions, Territory institutions and non-government institutions are only participating institutions if they agree to participate in the scheme and the Minister makes a declaration under section 115 that they are participating institutions.

A defunct institution (which is a government or non-government institution that no longer exists) can become a participating institution. However, it must have a representative in order to do so. The representative acts on the institution’s behalf and assumes its obligations and liabilities under the scheme (such as the obligation to provide a direct personal response to a person and the liability to pay funding contribution).

A lone institution (which is a non-government institution that is not defunct and is not a member of a participating group) can also become a participating institution.

A lone institution that is not a legal person (called an unincorporated lone institution) must also have a representative to become a participating institution. Its representative may act on its behalf and will assume its liability to pay funding contribution, but will not assume any of its obligations under the scheme.

A lone institution that is a legal person (called an incorporated lone institution) may have a representative, but is not required to have one to become a participating institution. Its representative may act on its behalf, but will not assume any of its obligations or liabilities under the scheme.

Division 2 Institutions participating in the scheme

Subdivision A Participating institutions

108   What is a participating institution?

             (1)  For a person to be eligible for redress for sexual abuse, or non-sexual abuse, of the person, a participating institution must be responsible for the abuse (see paragraph 13(1)(d)).

             (2)  An institution is a participating institution under the scheme if it is:

                     (a)  a Commonwealth institution; or

                     (b)  a participating State institution; or

                     (c)  a participating Territory institution; or

                     (d)  a participating non-government institution.

Subdivision B Commonwealth institutions

109   What is a Commonwealth institution?

             (1)  An institution is a Commonwealth institution if:

                     (a)  it is or was part of the Commonwealth; or

                     (b)  it is or was a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013 ); or

                     (c)  it is or was a wholly-owned Commonwealth company; or

                     (d)  it is or was a body (whether or not incorporated) established by or under a law of the Commonwealth; or

                     (e)  the rules prescribe that it is a Commonwealth institution.

             (2)  However, an institution is not a Commonwealth institution if:

                     (a)  it is a body politic that is a participating Territory, or is or was part of a body politic that is a participating Territory; or

                     (b)  it is or was a body corporate (other than a wholly-owned Commonwealth company) that is or was registered under the Corporations Act 2001 (including a body corporate taken to be registered under that Act because of the operation of Chapter 10 of that Act (which is about transitional provisions)); or

                     (c)  the rules prescribe that it is not a Commonwealth institution.

             (3)  Rules made for the purposes of paragraph (1)(e) or (2)(c) may prescribe that an institution is, or is not, a Commonwealth institution in relation to a period specified by the rules.

Subdivision C Participating State institutions

110   What is a participating State institution?

                   An institution is a participating State institution if:

                     (a)  it is a State institution; and

                     (b)  a declaration is in force under subsection 115(2) that the institution is a participating institution.

111   What is a State institution?

             (1)  An institution is a State institution if:

                     (a)  it is or was part of a State; or

                     (b)  it is or was a body (whether or not incorporated) established for a public purpose by or under a law of a State; or

                     (c)  the rules prescribe that it is a State institution.

             (2)  However, an institution is not a State institution if the rules prescribe that it is not a State institution.

             (3)  Rules made for the purposes of paragraph (1)(c) or subsection (2) may prescribe that an institution is, or is not, a State institution in relation to a period specified by the rules.

Subdivision D Participating Territory institutions

112   What is a participating Territory institution?

                   An institution is a participating Territory institution if:

                     (a)  the institution is a Territory institution; and

                     (b)  a declaration is in force under subsection 115(2) that the institution is a participating institution.

113   What is a Territory institution?

             (1)  An institution is a Territory institution if:

                     (a)  it is or was part of a participating Territory; or

                     (b)  it is or was a body (whether or not incorporated) established for a public purpose by or under a law of a participating Territory; or

                     (c)  the rules prescribe that it is a Territory institution.

             (2)  However, an institution is not a Territory institution if the rules prescribe that it is not a Territory institution.

             (3)  Rules made for the purposes of paragraph (1)(c) or subsection (2) may prescribe that an institution is, or is not, a Territory institution in relation to a period specified by the rules.

Subdivision E Participating non-government institutions

114   What is a participating non-government institution?

             (1)  An institution is a participating non-government institution if:

                     (a)  the institution is or was a non-government institution; and

                     (b)  a declaration is in force under subsection 115(2) that the institution is a participating institution.

             (2)  An institution is a non-government institution if it is not a Commonwealth institution, a State institution or a Territory institution.

             (3)  However, an institution is not a non-government institution if the rules prescribe that the institution is not a non-government institution.

             (4)  Rules made for the purposes of subsection (3) may prescribe that an institution is not a non-government institution in relation to a period specified by the rules.

Division 3 Ministerial declarations about participating institutions

115   Institutions becoming participating institutions

             (1)  An institution becomes a participating institution if the Minister makes a declaration under subsection (2) in relation to the institution.

             (2)  The Minister may, by notifiable instrument, declare that an institution is a participating institution.

Note 1:       An institution may be identified by name, by inclusion in a particular class, or in any other way.

Note 2:       The Minister need not make a declaration under this subsection for a Commonwealth institution because all Commonwealth institutions are participating institutions automatically (see section 108).

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

                     (a)  for a State institution—the participating State has agreed, in a way provided for in the State’s referral Act or adoption Act, to the institution participating in the scheme; and

                     (b)  for a Territory institution—the participating Territory has agreed to the institution participating in the scheme; and

                     (c)  for a non-government institution (other than a defunct institution or an unincorporated lone institution)—the institution has agreed to participate in the scheme; and

                     (d)  for a non-government institution that is a defunct institution—a person has agreed:

                              (i)  to the defunct institution participating in the scheme; and

                             (ii)  to be the representative for the defunct institution; and

                     (e)  for a non-government institution that is an unincorporated lone institution:

                              (i)  the institution has agreed to participate in the scheme; and

                             (ii)  the institution has agreed to a person being the representative for the institution; and

                            (iii)  the person has agreed to being the representative for the institution; and

                      (f)  in all cases—any requirements prescribed by the rules are satisfied.

Note 1:       For how the agreement of a participating Territory, an institution or a person is given, see section 186.

Note 2:       For representatives for defunct institutions and lone institutions, see Divisions 4 and 5.

             (4)  The Minister must not make a declaration under subsection (2) in relation to an institution after:

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

                     (b)  a later day prescribed by the rules;

unless the institution is a defunct institution.

             (5)  If:

                     (a)  a State or Territory has agreed to a State institution or Territory institution participating in the scheme; and

                     (b)  the institution is a body corporate;

then the institution is taken to have also agreed to participate in the scheme.

116   Institutions ceasing to be participating institutions

Revoking the declaration

             (1)  An institution ceases to be a participating institution if the declaration made under subsection 115(2) in relation to the institution is revoked under subsection (2), (3), (4) or (5) of this section.

             (2)  The Minister may, by notifiable instrument, revoke a declaration made under subsection 115(2) in relation to an institution.

Note:          If the declaration is revoked, the institution will cease to be a participating institution. However, it will still be a participating institution in relation to a person who made an application for redress before the declaration is revoked (see subsection (7)).

Minister must revoke on request

             (3)  If:

                     (a)  a participating State requests the Minister in writing to revoke a declaration made under subsection 115(2) in relation to a State institution; or

                     (b)  a participating Territory requests the Minister in writing to revoke a declaration made under subsection 115(2) in relation to a Territory institution; or

                     (c)  a participating non-government institution (other than a defunct institution) requests the Minister in writing to revoke a declaration made under subsection 115(2) in relation to the institution;

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

Minister must revoke if no representative

             (4)  If a defunct participating non-government institution ceases to have a representative, then the Minister must revoke the declaration made under subsection 115(2) in relation to the institution as soon as practicable.

             (5)  If a participating unincorporated lone institution ceases to have a representative, then the Minister must revoke the declaration made under subsection 115(2) in relation to the institution as soon as practicable.

No revocation unless requirements in rules satisfied

             (6)  Despite subsections (2), (3), (4) and (5), the Minister must not revoke a declaration made under subsection 115(2) in relation to an institution unless any requirements prescribed by the rules in relation to the revocation are satisfied.

Institution continues to be participating institution for limited time

             (7)  If the Minister revokes a declaration made under subsection 115(2) in relation to an institution, then, despite the revocation, the institution continues to be a participating institution in relation to a person who made an application for redress before the revocation, as if the declaration were still in force.

Example:    If the Operator determines that the institution is responsible for the abuse of the person, the institution will still be required to provide a direct personal response to the person (if the person chooses that component of redress) and pay funding contribution in relation to the person.

Division 4 Participating defunct institutions

Subdivision A Participating defunct institutions

117   What is a participating defunct institution?

                   A participating defunct institution is a participating institution that is defunct.

Note:          The institution may be a government institution or a non-government institution.

Subdivision B Representatives for participating defunct institutions

118   Representatives for participating defunct institutions

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

Note:          This Act applies to the representative for a participating defunct institution as if it were the defunct institution (see sections 121, 122 and 123).

             (2)  The representative for a defunct Commonwealth institution is the Commonwealth.

             (3)  The representative for a defunct participating State institution is the participating State.

             (4)  The representative for a defunct participating Territory institution is the participating Territory.

             (5)  The representative for a defunct participating non-government institution is the person in relation to whom a declaration is force under section 119.

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

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

119   Becoming the representative for a defunct non-government institution

                   If a defunct non-government institution is declared to be a participating institution under subsection 115(2), then the Minister must, by notifiable instrument, make a declaration that the person who agreed to be the representative for the institution (as referred to in paragraph 115(3)(d)) is the representative for the institution.

120   Ceasing to be the representative for a defunct non-government institution

             (1)  The Minister may, by notifiable instrument, vary or revoke a declaration made under section 119 in relation to a representative for a defunct non-government institution.

             (2)  If:

                     (a)  the representative for a defunct institution requests the Minister in writing to revoke the declaration made under section 119 in relation to the representative; and

                     (b)  any requirements prescribed by the rules in relation to the person ceasing to be the representative are satisfied;

then the Minister must, by notifiable instrument, revoke the declaration made under section 119 as soon as practicable.

Note:          If a participating defunct non-government institution does not have a representative, then the Minister must revoke the declaration made under subsection 115(2) that the defunct institution is a participating institution (see subsection 116(4)).

             (3)  Despite subsections (1) and (2), the Minister must not vary or revoke a declaration made under section 119 in relation to an institution unless any requirements prescribed by the rules in relation to the variation or revocation are satisfied.

             (4)  If:

                     (a)  the Minister revokes a declaration made under subsection 115(2) in relation to a defunct institution; 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 institution continues to be the representative for the institution in relation to the person (even if the declaration made under section 119 for the representative has been revoked under this section).

121   Actions of the representative for a defunct institution

             (1)  Any act that may be done by a participating defunct institution under, or for the purposes of, this Act must be done by the representative for the institution on behalf of the institution.

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

122   Giving notices to the representative for a defunct institution

                   Any notice that the Operator is required or authorised by this Act to give to a participating defunct institution must be given by the Operator to the representative for the institution.

123   Obligations and liabilities of the representative for a defunct institution

                   Any obligation or liability imposed by this Act on a participating defunct institution is taken to be imposed instead on the representative for the institution.

Note 1:       An example of an obligation that may be imposed on the defunct institution is the obligation under section 54 to provide a direct personal response to a person. That obligation will be imposed instead on the representative.

Note 2:       An example of a liability that may be imposed on the defunct institution is the liability under section 149 to pay funding contribution. That liability will be imposed instead on the representative.

Division 5 Participating lone institutions

Subdivision A Participating lone institutions

124   What is a participating lone institution?

             (1)  A participating lone institution is a participating institution that is a lone institution.

             (2)  An institution is a lone institution if it:

                     (a)  is a non-government institution; and

                     (b)  is not a member of a participating group; and

                     (c)  is not defunct.

             (3)  There are 2 types of lone institutions:

                     (a)  a lone institution that is not a legal person (which is an unincorporated lone institution ); and

                     (b)  a lone institution that is a legal person (which is an incorporated lone institution ).

             (4)  A participating unincorporated lone institution is a participating institution that is an unincorporated lone institution.

             (5)  A participating incorporated lone institution is a participating institution that is an incorporated lone institution.

Subdivision B Representatives for participating lone institutions

125   Representatives for participating lone institutions

             (1)  A participating incorporated lone institution may have a representative for the institution. However, a participating unincorporated lone institution must have a representative for the institution.

             (2)  The representative for a participating unincorporated lone institution is the person in relation to whom a declaration is in force under section 126.

             (3)  The representative for a participating incorporated lone institution is the person in relation to whom a declaration is in force under subsection 127(1).

             (4)  A participating lone institution may have only one representative for the institution.

             (5)  However, a person may be the representative for more than one participating lone institution.

126   Becoming the representative for an unincorporated lone institution

                   If an unincorporated lone institution is declared to be a participating institution under subsection 115(2), then the Minister must, by notifiable instrument, make a declaration that the person who agreed to be the representative for the institution (as referred to in paragraph 115(3)(e)) is the representative for the institution.

127   Becoming the representative for an incorporated lone institution

             (1)  The Minister may, by notifiable instrument, make a declaration that a person is the representative for a participating incorporated lone institution.

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

                     (a)  the institution has agreed to the person being the representative for the institution; and

                     (b)  the person has agreed to being the representative for the institution.

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

128   Ceasing to be the representative for a lone institution

             (1)  The Minister may, by notifiable instrument, vary or revoke a declaration made under section 126 or 127 in relation to a representative for a lone institution.

             (2)  If:

                     (a)  the institution or the representative requests the Minister in writing to revoke a declaration made under section 126 or 127; and

                     (b)  any requirements prescribed by the rules in relation to the person ceasing to be the representative are satisfied;

then the Minister must, by notifiable instrument, revoke the declaration made under section 126 or 127 as soon as practicable.

Note:          If a participating unincorporated lone institution does not have a representative, then the Minister must revoke the declaration made under subsection 115(2) that the lone institution is a participating institution (see subsection 116(5)).

             (3)  Despite subsections (1) and (2), the Minister must not revoke a declaration made under section 126 or 127 in relation to an institution unless any requirements prescribed by the rules in relation to the variation or revocation are satisfied.

             (4)  If:

                     (a)  the Minister revokes a declaration made under subsection 115(2) in relation to an unincorporated lone institution; 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 institution continues to be the representative for the institution in relation to the person (even if the declaration made under section 126 for the representative has been revoked under this section).

129   Actions of the representative for a lone institution

             (1)  Any act that may be done by a participating lone institution under, or for the purposes of, this Act may be done by the representative for the institution on behalf of the institution.

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

130   Giving notices to the representative for a lone institution

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

             (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 institution.

131  Joint and several liability of the representative for an unincorporated lone institution for funding contribution

                   If a participating unincorporated lone institution is liable to pay funding contribution for a quarter, then the institution and the representative for the institution are jointly and severally liable to pay the funding contribution for the quarter.