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Part 5-3—Jurisdictions participating in the scheme

Part 5-3 Jurisdictions participating in the scheme

Division 1 Simplified outline of this Part

142   Simplified outline of this Part

Only participating jurisdictions are part of the scheme. While the Commonwealth and participating Territories are automatically participating jurisdictions, a State is only a participating jurisdiction (and therefore part of the scheme) if it makes a law that gives certain legislative powers to the Commonwealth Parliament for the purposes of paragraph 51(xxxvii) of the Constitution. This is known as a State reference. Section 144 deals with this.

Broadly, if a State is not a participating State, then abuse of a person that occurred inside that State will not be within the scope of the scheme. This means that the person will not be eligible for redress for that abuse.

The Minister may declare that a participating jurisdiction is a declared provider of counselling and psychological services under the scheme if the jurisdiction requests the Minister to do so. If that happens, then that jurisdiction will provide for the delivery of those services to those who are entitled to redress and live in that jurisdiction.

Division 2 Participating jurisdictions

143   What is a participating jurisdiction?

                   Each of the following jurisdictions is a participating jurisdiction :

                     (a)  the Commonwealth;

                     (b)  a participating State;

                     (c)  a participating Territory.

144   What is a participating State?

Participating State

             (1)  A State is a participating State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State:

                     (a)  has, by its referral Act, referred to the Commonwealth Parliament:

                              (i)  the text reference (see subsection (2)); and

                             (ii)  the amendment reference (see subsection (3));

                            before the enactment of this Act; or

                     (b)  has, by its adoption Act:

                              (i)  adopted the relevant version of this Act; and

                             (ii)  referred to the Commonwealth Parliament the amendment reference;

                            after the enactment of this Act.

Text reference

             (2)  Text reference means the matters to which the initial referred provisions relate, to the extent of making laws with respect to those matters by including the initial referred provisions in the original version of this Act.

Amendment reference

             (3)  Amendment reference means the referred national redress scheme matters (as defined in section 145), to the extent of making laws with respect to those matters by making express amendments of this Act.

Certain things do not affect participating State’s status

             (4)  A State is a participating State even if the State’s referral Act or adoption Act provides that:

                     (a)  the reference to the Commonwealth Parliament of the text reference or the amendment reference is to terminate in particular circumstances; or

                     (b)  the adoption of the relevant version of this Act is to terminate in particular circumstances; or

                     (c)  the reference to the Commonwealth Parliament of the text reference or the amendment reference has effect only:

                              (i)  if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference for the purposes of paragraph 51(xxxvii) of the Constitution); or

                             (ii)  if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

Timeframe for becoming a participating State

             (5)  A State is not a participating State if it has not become a participating State before the second anniversary of the scheme start day or a later day prescribed by the rules.

When a State ceases to be a participating State

             (6)  A State ceases to be a participating State if:

                     (a)  in the case where the Parliament of the State has referred to the Commonwealth Parliament the text reference—that reference terminates; or

                     (b)  in the case where the Parliament of the State has adopted the relevant version of this Act—that adoption terminates.

             (7)  A State ceases to be a participating State if:

                     (a)  the State’s amendment reference terminates; and

                     (b)  subsection (8) does not apply to the termination.

             (8)  A State does not cease to be a participating State because of the termination of its amendment reference if:

                     (a)  the termination is effected by the Governor of that State fixing a day by Proclamation as the day on which the reference terminates; and

                     (b)  the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the Proclamation is published; and

                     (c)  that State’s amendment reference, and the amendment reference of every other participating State, terminates on the same day.

Definitions

             (9)  In this Act:

adoption Act , of a State, means the Act of the State that adopts the relevant version of this Act and refers the amendment reference to the Commonwealth Parliament.

express amendment of this Act means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.

initial referred provisions means the original version of this Act, to the extent to which it deals with matters that are included in the legislative powers of the Parliament of the State.

original version of this Act means this Act as originally enacted.

referral Act , of a State, means the Act of the State that refers the text reference and the amendment reference to the Commonwealth Parliament.

relevant version of this Act , in relation to a State’s adoption Act, means the original version of this Act and as subsequently amended by amendments enacted at any time before the enactment of the State’s adoption Act.

145   The referred national redress scheme matters

             (1)  The referred national redress scheme matters are the matters relating to a redress scheme for institutional child sexual abuse.

             (2)  However, the following matters are not referred national redress scheme matters :

                     (a)  the matter of making a law to the extent that that law would operate to prevent or limit the power to establish, or to prevent or limit the operation of, any State redress mechanism, whether or not the mechanism deals with the same or similar subject matters as those dealt with in any aspect of the scheme;

                     (b)  the matter of making a law to the extent that that law would substantively remove or override a provision of this Act that requires the agreement of the State.

             (3)  Paragraph (2)(a) does not cover any of the following matters (if they would otherwise be covered by subsection (1)):

                     (a)  any matter to which the initial referred provisions relate;

                     (b)  the matter of the release or discharge, in connection with the operation of the scheme, of relevant civil liability of institutions or officials;

                     (c)  the matter of the disclosure or use of evidence or other information provided or obtained in connection with the operation of the scheme;

                     (d)  the matter of the making, enforcement or protection (for example, protection against the operation of orders in the nature of garnishee orders) of payments in connection with the operation of the scheme.

             (4)  A State redress mechanism is:

                     (a)  a scheme, program or arrangement (temporary or otherwise) established (before or after the commencement of the State’s referral Act or adoption Act) by:

                              (i)  the Parliament or government of the State; or

                             (ii)  an institution (whether governmental or non-governmental) or other entity;

                            for or in respect of persons who have suffered institutional child sexual abuse in the State (whether applying only to any such persons or applying to any class of victims of crime) and any associated matters; or

                     (b)  the jurisdiction of a court or tribunal to grant compensation or support for or in respect of victims of crime (including crime relating to institutional child sexual abuse) and any associated matters.

Division 3 Participating jurisdictions providing counselling and psychological services under the scheme

146   Participating jurisdictions that are declared providers

             (1)  A participating jurisdiction may notify the Minister, in writing, that:

                     (a)  arrangements are in place in the jurisdiction for the delivery of counselling and psychological services in accordance with the National Service Standards; and

                     (b)  the jurisdiction requests to become a declared provider of counselling and psychological services under the scheme.

             (2)  A participating jurisdiction is a declared provider of counselling and psychological services under the scheme if a declaration to that effect is in force under subsection 147(1).

147   Ministerial declarations about declared providers

             (1)  If the Minister receives a notice under subsection 146(1) from a participating jurisdiction, then the Minister must, by notifiable instrument, declare that the jurisdiction is a declared provider of counselling and psychological services under the scheme.

             (2)  If the participating jurisdiction requests the Minister, in writing, to revoke a declaration made under subsection (1), then the Minister must, by notifiable instrument, revoke the declaration as soon as practicable.