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Part 7-3—Other matters

Part 7-3 Other matters

Division 1 Simplified outline of this Part

180   Simplified outline of this Part

A person who applies for redress under the scheme may be required or permitted to notify the Operator of certain matters (e.g. that the person is sentenced to imprisonment for 5 years or longer for an offence). An institution may also be required or permitted to notify the Operator about a matter (see section 181).

The Minister and the Operator may delegate their powers and functions to certain officers of the scheme. 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 29 and 75 (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.

The Minister must cause 2 reviews of the scheme to be conducted—one starting on the second anniversary of the scheme start day and the other starting on the eighth anniversary of that day. The rules can prescribe a later date to start those reviews.

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

This Part also deals with other miscellaneous matters (such as approved forms).

Division 2 Giving notices for the purposes of the scheme

181   Persons or institutions giving notices to the Operator

             (1)  If:

                     (a)  a person makes an application for redress under the scheme; and

                     (b)  after making the application, the person is sentenced to imprisonment for 5 years or longer for an offence against a law of the Commonwealth, a State, a Territory or a foreign country;

then the person must notify the Operator of that fact in accordance with any requirements prescribed by the rules.

             (2)  The rules may prescribe:

                     (a)  circumstances for when a person or a participating institution must or may notify the Operator of a matter; and

                     (b)  requirements relating to the giving of the notice.

182   Operator giving notices to persons or institutions

             (1)  The rules may require or permit the Operator to give a notice to a person or an institution about a matter relating to the operation of this Act.

             (2)  If this Act requires or permits the Operator to give a notice to a person or institution, the Operator may give the notice in any way that the Operator considers appropriate.

Division 3 Delegation

183   Delegation by the Minister

             (1)  The Minister may, in writing, delegate all or any of the Minister’s powers or functions under this Act (other than section 179 or 185) 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 under subsection (1), the delegate must comply with any directions of the Minister.

184   Delegation by the Operator

Powers and functions—general

             (1)  The Operator may, in writing, delegate all or any of the Operator’s powers or functions under this Act (other than sections 29, 75 and 190) 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.

Powers and functions—redress determinations

             (3)  The Operator may, in writing, delegate the Operator’s powers and functions under section 29 or 75 (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 4 Independent decision-makers

185   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 29 or 75 on applications for redress.

             (2)  Before giving an approval under subsection (1), the Minister must consult the appropriate Ministers from the participating States and participating Territories in accordance with the National 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 relating to the use of information and position; and the duty to disclose interests.

Division 5 Miscellaneous

186   Giving agreement

                   A reference in this Act to the Commonwealth, a participating Territory, an institution or a person agreeing to a matter is a reference to the body or person giving agreement in the way (if any) prescribed by the rules.

Note:          For example, paragraph 115(3)(c) provides that the Minister must not make a declaration that a non-government institution is a participating institution unless the institution has agreed to participate in the scheme. Under this section, the way the institution gives its agreement must be the way prescribed by the rules (if the rules prescribe a way).

187   Annual report on 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.

             (2)  Without limiting subsection (1), the annual report must:

                     (a)  include information about any matter prescribed by the rules; and

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

188   Approved forms

                   The Operator may, in writing, approve one or more forms for the purposes of a provision of this Act that provides for something to be done in an approved form.

189   Determinations of the Operator to be in writing

             (1)  A determination by the Operator under this Act must be in writing.

             (2)  A determination by the Operator under this Act is not a legislative instrument.

190   Civil penalty provisions

Enforceable civil penalty provisions

             (1)  Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.

Note:          Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, each of the following persons is an authorised applicant in relation to the civil penalty provisions of this Act:

                     (a)  the Operator;

                     (b)  an SES employee, or an acting SES employee, in the Department or the Human Services Department.

Relevant court

             (3)  For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:

                     (a)  the Federal Court of Australia;

                     (b)  the Federal Circuit Court of Australia.

External Territories

             (4)  Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to every external Territory.

The Crown

             (5)  Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, does not make the Crown in right of the Commonwealth, a State or a Territory liable to a pecuniary penalty.

191   Compensation for acquisition of property

             (1)  If the operation of this Act would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in:

                     (a)  the Federal Court of Australia; or

                     (b)  the Supreme Court of a State or participating Territory;

for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

192   Review of the scheme

Second anniversary review

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

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

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

             (2)  The second anniversary review must consider the following matters:

                     (a)  the extent to which the States, participating Territories and non-government institutions have opted into the scheme, including key facilitators and barriers to opting in;

                     (b)  the extent to which survivors who are eligible for redress under the scheme have applied for redress;

                     (c)  the extent to which redress has been provided to survivors who are entitled to redress under the scheme;

                     (d)  the application, assessment and decision-making process, including user experiences of the process;

                     (e)  redress payments;

                      (f)  access to counselling and psychological services under the scheme;

                     (g)  the extent to which survivors access direct personal responses under the scheme, including factors influencing the uptake and experiences with the direct personal response process;

                     (h)  the availability of, and access to, support services under the scheme;

                      (i)  the implications of the scheme’s design for survivors (including Indigenous and child migrant survivors, as well as survivors who are still children or who have a criminal conviction);

                      (j)  the operation of the scheme’s funding arrangements (including a review of the scheme administration element of funding contribution);

                     (k)  the operation of the funder of last resort provisions;

                      (l)  the extent to which the scheme has been implemented as proposed in the National Redress Scheme Agreement;

                    (m)  the views of key stakeholders on the scheme (including representatives from survivor groups, non-government institutions, advocacy groups, support services provider groups, the Independent Advisory Council, the Commonwealth, the States and the Territories);

                     (n)  the impact and effectiveness of section 37 (which is about the admissibility of certain documents in evidence in civil proceedings);

                     (o)  the question of whether an institution (the first institution ) should be responsible for abuse that occurs in connection with another institution merely because the first institution regulates or funds the other institution or the other institution’s activities;

                     (p)  the administration of this Act and the scheme;

                     (q)  any other matter relevant to the operation of this Act or the scheme.

Eighth anniversary review

             (3)  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 eighth anniversary—that day.

             (4)  The eighth anniversary review must consider the following matters:

                     (a)  the matters referred to in subsection (2);

                     (b)  the results of any other review or evaluation conducted in relation to the operation of the scheme.

193   Sunset of the scheme

             (1)  Subject to this section, this Act ceases to have effect at the end of the day (the scheme 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.

Note:          The fact that the Act ceases to have effect does not affect the operation of section 43 in releasing and discharging an institution or official from civil liability (see section 7 of the Acts Interpretation Act 1901 ).

             (2)  Despite subsection (1), at any time before the first anniversary of the scheme sunset day, rules may be made under section 179 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 (3), the rules may provide that certain provisions of this Act:

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

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

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

             (5)  Subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to rules made for the purposes of this section.

             (6)  All legislative instruments (including the rules) made under this Act are repealed immediately before the first anniversary of the scheme sunset day.

(84/18)