Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    Next Fragment
Part 2-3—How to obtain redress under the scheme

Part 2-3 How to obtain redress under the scheme

Division 1 Simplified outline of this Part

18   Simplified outline of this Part

To be entitled to redress under the scheme, a person must make an application for it. To be valid, the application must comply with the requirements set out in section 19 (e.g. it must include any information required by the Operator).

Once the application is made, the Operator can request the person and participating institutions to provide further information to the Operator for the purposes of determining the application (see sections 24 and 25).

A person can make only one application for redress under the scheme. Whether the application is successful or unsuccessful, the person will not be able to make another application for redress under the scheme (unless the person withdraws the application before the Operator makes a determination about whether or not to approve it). There are certain circumstances where a person cannot make an application for redress. These circumstances are set out in section 20.

The Operator must make a determination to approve, or not approve, the application as soon as practicable. If the Operator considers there is a reasonable likelihood that the person is eligible for redress, then the Operator must approve the application and make a number of other important determinations under subsection 29(2). For example, the Operator must make a determination about which participating institutions are responsible for the abuse and therefore liable for providing redress to the person. The Operator must also make a determination about the amount of the redress payment that is payable to the person, as well as the amount of the counselling and psychological component of redress for the person.

The Operator must give the person written notice of the Operator’s determination on the application. The notice must state whether or not the application has been approved, the reasons for the determination and that the person may apply for review of the determination. The Operator must also give written notice of the determination to the participating institutions that are specified in the determination (such as the responsible institutions).

If the Operator has approved the application, the Operator must also give the person an offer of redress with the notice. (Offers and acceptance of redress are dealt with in Part 2-4.)

Division 2 Application for redress under the scheme

19   Application for redress

             (1)  To obtain redress under the scheme, a person must make an application to the Operator.

             (2)  To be valid, the application must:

                     (a)  be in the approved form; and

                     (b)  specify where the person lives; and

                     (c)  include any information, and be accompanied by any documents, required by the Operator; and

                     (d)  verify the information included in the application by statutory declaration.

             (3)  The Operator is not required to make a determination on an application that is not valid.

20   When an application cannot be made

             (1)  A person cannot make an application for redress under the scheme if:

                     (a)  the person has already made an application for redress under the scheme; or

                     (b)  a security notice is in force in relation to the person; or

                     (c)  the person is a child who will not turn 18 before the scheme sunset day; or

                     (d)  the person is in gaol (within the meaning of subsection 23(5) of the Social Security Act 1991 ); or

                     (e)  the application is being made in the period of 12 months before the scheme sunset day.

             (2)  Paragraphs (1)(d) and (e) do not apply if the Operator determines there are exceptional circumstances justifying the application being made.

             (3)  Before making a determination under subsection (2), the Operator must comply with any requirements prescribed by the rules.

21   Special process for child applicants

             (1)  If:

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

                     (b)  the person is a child who will turn 18 before the scheme sunset day;

then the Operator must deal with the application in accordance with any requirements prescribed by the rules.

             (2)  Rules made for the purposes of subsection (1) apply despite subsection 29(1) (which requires the Operator to make a determination on the application as soon as practicable).

22   Withdrawal of an application

             (1)  A person may withdraw an application for redress at any time before the Operator makes a determination on the application under section 29.

             (2)  If the person withdraws the application under subsection (1), then for the purposes of this Act it is treated as not having been made.

23   Notice of a withdrawal to participating institutions

             (1)  If:

                     (a)  a person withdraws an application under subsection 22(1); and

                     (b)  before the withdrawal, the Operator had requested a participating institution under section 25 to provide information that may be relevant to the application;

then the Operator must give the institution written notice that the person has withdrawn the application.

             (2)  The notice must also comply with any requirements prescribed by the rules.

Division 3 Obtaining information for the purposes of determining the application

24   Power to request information from the applicant

             (1)  If the Operator has reasonable grounds to believe that a person who has applied for redress has information that may be relevant to determining the application, then the Operator may request the person to give the information to the Operator.

Note:          The request for information may be accompanied by information that has been disclosed by an institution in relation to the application.

             (2)  The request must be made by written notice given to the person.

             (3)  The notice must specify:

                     (a)  the nature of the information that is requested to be given; and

                     (b)  how the person is to give the information to the Operator; and

                     (c)  the period (the production period ) within which the person is requested to give the information to the Operator; and

                     (d)  that the notice is given under this section.

             (4)  The production period must be at least:

                     (a)  if the Operator considers the application is urgent—4 weeks; and

                     (b)  otherwise—8 weeks;

beginning on the date of the notice.

             (5)  The Operator may, by written notice to the person, extend the production period if the Operator considers it appropriate to do so.

             (6)  An extension under subsection (5) may be given:

                     (a)  on the Operator’s own initiative; or

                     (b)  on a request made by the person under subsection (7).

             (7)  The person may request the Operator to extend the production period. The request must:

                     (a)  be made before the end of the production period; and

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

25   Power to request information from participating institutions

             (1)  If a person has applied for redress and either:

                     (a)  the application identifies a particular participating institution as being involved in the abuse of the person; or

                     (b)  the Operator has reasonable grounds to believe that a participating institution may be responsible for the abuse of the person;

then the Operator must request the institution to give any information that may be relevant to the application to the Operator.

Note:          The request for information may be accompanied by information that has been disclosed by the applicant or another institution in relation to the application.

             (2)  If a person has applied for redress and the Operator has reasonable grounds to believe that a participating institution has information that may be relevant to determining the application, then the Operator may request the institution to give the information to the Operator.

Note:          The request for information may be accompanied by information that has been disclosed by the applicant or another institution in relation to the application.

             (3)  The request under subsection (1) or (2) must be made by written notice given to the institution.

             (4)  The notice must specify:

                     (a)  the nature of the information that is requested to be given; and

                     (b)  how the institution is to give the information to the Operator; and

                     (c)  the period (the production period ) within which the institution is requested to give the information to the Operator; and

                     (d)  that the notice is given under this section.

             (5)  The production period must be at least:

                     (a)  if the Operator considers the application is urgent—4 weeks; and

                     (b)  otherwise—8 weeks;

beginning on the date of the notice.

             (6)  The Operator may, by notice to the institution, extend the production period if the Operator considers it appropriate to do so.

             (7)  An extension under subsection (6) may be given:

                     (a)  on the Operator’s own initiative; or

                     (b)  on a request made by the institution under subsection (8).

             (8)  The institution may request the Operator to extend the production period. The request must:

                     (a)  be made before the end of the production period; and

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

26   Failure of the applicant or institutions to comply with a request

             (1)  If:

                     (a)  under section 24, the Operator requests a person who has made an application for redress to provide further information; and

                     (b)  the information requested is not provided in the production period referred to in that section;

then the Operator is not required to make a determination on the application until the information is provided.

             (2)  If:

                     (a)  under section 25, the Operator requests a participating institution to provide information in relation to an application for redress; and

                     (b)  the information requested is not provided in the production period referred to in that section;

then the Operator may progress the application and make a determination on it on the basis of the information that has been obtained by, or provided to, the Operator.

27   State or Territory laws do not prevent complying with request

                   Nothing in a law of a State or a Territory prevents a person from giving information that the person is requested to give to the Operator for the purposes of the scheme unless that law is prescribed by the rules.

28   False or misleading information, documents or statements

                   A person must not give information, produce a document or make a statement to an officer of the scheme if the person knows, or is reckless as to whether, the information, document or statement is false or misleading in a material particular.

Note:          This section is a civil penalty provision. Conduct prohibited by this section may also be an offence against the Criminal Code (see sections 136.1, 137.1 and 137.2 of the Code).

Civil penalty:          60 penalty units.

Division 4 The Operator must determine whether to approve the application

29   The Operator must make a determination on the application

Requirement for the Operator to make a determination

             (1)  If a person makes an application for redress, the Operator must make a determination to approve, or not approve, the application as soon as practicable.

Determination to approve application

             (2)  If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, then the Operator must:

                     (a)  approve the application; and

                     (b)  determine each participating institution that is responsible for the abuse (see section 15) and therefore liable for providing redress to the person under the scheme; and

                     (c)  determine, in accordance with section 30:

                              (i)  the amount of the redress payment for the person; and

                             (ii)  the amount of each responsible institution’s share of the costs of the redress payment; and

                     (d)  determine, in accordance with section 31:

                              (i)  the amount of the counselling and psychological component of redress for the person; and

                             (ii)  the amount of each responsible institution’s share of the costs of that component; and

                     (e)  determine whether the counselling and psychological component of redress for the person consists of:

                              (i)  access to the counselling and psychological services that are provided under the scheme; or

                             (ii)  a counselling and psychological services payment; and

                      (f)  if the counselling and psychological component of redress for the person consists of a counselling and psychological services payment—determine that the amount of the payment equals the amount of the counselling and psychological component of redress for the person; and

                     (g)  for each responsible institution that is a member of a participating group—determine each other participating institution that is an associate of the responsible institution at that time; and

                     (h)  for a participating institution that was identified in the application and is not covered by a determination under paragraph (b)—determine that the participating institution is not responsible for the abuse and therefore not liable for providing redress to the person under the scheme; and

                      (i)  if:

                              (i)  the Operator determines, in accordance with section 15, that a participating government institution is equally responsible with a defunct institution for the abuse; and

                             (ii)  the defunct institution is listed for the participating jurisdiction that the participating government institution belongs to;

                            determine that the participating government institution is the funder of last resort for the defunct institution in relation to the abuse.

Note 1:    If the Operator determines that the participating government institution is the funder of last resort for the defunct institution, then the participating government institution will be liable to pay the defunct institution’s (hypothetical) share of the costs of providing redress to the person (see section 165). Those costs are in addition to the participating government institution’s own share of the costs for providing redress to the person. For the funder of last resort provisions, see Part 6-2.

Note 2:    Only defunct institutions that are both non-government institutions and not participating institutions can be listed for a jurisdiction (see subsection 164(1)).

Determination not to approve application

             (3)  Otherwise, the Operator must make a determination not to approve the application.

Revoking a determination

             (4)  The rules may require or permit the Operator to revoke, under this subsection, a determination made under subsection (2) or (3).

             (5)  However, the Operator cannot revoke a determination made under subsection (2) if:

                     (a)  the person has been given an offer of redress; and

                     (b)  the person has accepted the offer in accordance with section 42.

             (6)  If the Operator revokes a determination made under subsection (2) or (3), then:

                     (a)  every determination made under subsection (2) or (3) is taken never to have been made; and

                     (b)  if the person has been given an offer of redress but has not accepted or declined the offer—the offer is taken to be withdrawn; and

                     (c)  if the person has made an application for review of the determination—the review application is taken to be withdrawn; and

                     (d)  the Operator may make further requests under section 24 or 25 for information relating to the person’s application.

             (7)  The Operator must give a written notice to:

                     (a)  the person; and

                     (b)  each participating institution that was notified under section 35 of the determination;

notifying them of the following:

                     (c)  that the determination has been revoked;

                     (d)  that the determination is taken never to have been made;

                     (e)  if an offer of redress has been withdrawn under paragraph (6)(b)—that fact;

                      (f)  if an application for review of the determination has been withdrawn under paragraph (6)(c)—that fact;

                     (g)  any other matter prescribed by the rules.

30   Working out the amount of redress payment and sharing of costs

Working out amounts

             (1)  This section sets out how the Operator must make a determination under paragraph 29(2)(c) about:

                     (a)  the amount of the redress payment for a person; and

                     (b)  the amount of each responsible institution’s share of the costs of the redress payment.

Note:          This section only applies if the Operator approves the person’s application for redress.

Working out share of the costs of redress payment

             (2)  The Operator must first work out, for each responsible institution, the amount that is the institution’s share of the costs of the redress payment by using the following method statement:

Method statement

Step 1.   Apply the assessment framework to work out the maximum amount of redress payment that could be payable to the person. The maximum amount must not be more than $150,000, regardless of the number of responsible institutions. The amount worked out is the maximum amount of the redress payment that could be payable to the person.

Step 2.   Work out, in accordance with any requirements prescribed by the rules, the amount that is the responsible institution’s share of the maximum amount. This amount is the gross liability amount for the responsible institution.

Step 3.   Work out the amount of any payment (a relevant prior payment ) that was paid to the person by, or on behalf of, the responsible institution in relation to abuse for which the institution is responsible (but do not include any payment to the extent that it is prescribed by the rules as not being a relevant prior payment). This amount is the original amount of the relevant prior payment.

Step 4.   Multiply the original amount by the following:

             

              where:

              n is the number of whole years since the relevant prior payment was paid to the person.

              The resulting amount is the adjusted amount of the relevant prior payment of the institution.

Note:       The adjustment under this step is broadly to account for inflation.

Step 5.   Add together the adjusted amount of each relevant prior payment of the institution. If the resulting amount is not a whole number of cents, round the amount up to the next whole number of cents. This amount is the reduction amount for the institution.

Step 6.   The amount of the institution’s share of the costs of the redress payment is the gross liability amount for the institution (in step 2) less the reduction amount for the institution (in step 5). The amount may be nil but not less than nil.

Working out amount of redress payment

             (3)  The Operator must then work out the amount of redress payment for the person by adding together the amounts of each responsible institution’s share of the costs of the redress payment. The amount may be nil, but it must not exceed the maximum amount of the redress payment.

Note 1:       The amount may be nil because the total amount of relevant prior payments that were paid to the person by the responsible institutions exceeds the maximum amount of the redress payment that could be payable to the person. However, even though the person may not be paid any redress payment in that case, the person will still be entitled to the other components of redress under the scheme (i.e. the counselling and psychological component and a direct personal response).

Note 2:       For funder of last resort cases, subsection 165(2) affects how the amount of the redress payment and the share of the costs of the payment are worked out.

31   Working out the amount of the counselling and psychological component and sharing of costs

             (1)  This section sets out how the Operator must make a determination under paragraph 29(2)(d) about:

                     (a)  the amount of the counselling and psychological component of redress for a person; and

                     (b)  the amount of each responsible institution’s share of the costs of that component.

Note:          This section only applies if the Operator approves the person’s application for redress.

             (2)  The Operator must apply the assessment framework to work out the amount of the component. The amount must not be more than $5,000, regardless of the number of responsible institutions.

             (3)  The Operator must work out, in accordance with the rules, the amount that is each responsible institution’s share of the costs of the component.

Note:          For funder of last resort cases, subsection 165(3) affects how the amount of the counselling and psychological component and the share of the costs of the component is worked out.

32   The assessment framework

             (1)  The Minister may declare, in writing, a method, or matters to take into account, for the purposes of working out:

                     (a)  the amount of redress payment for a person; and

                     (b)  the amount of the counselling and psychological component of redress for a person.

Note:          For variation or revocation of the declaration, see subsection 33(3) of the Acts Interpretation Act 1901 .

             (2)  The declaration is the assessment framework .

             (3)  The declaration is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to it.

33   The assessment framework policy guidelines

             (1)  The Operator may take into account the assessment framework policy guidelines when applying the assessment framework for the purposes of sections 30 and 31.

             (2)  The Minister may, in writing, make guidelines for the purposes of applying the assessment framework.

             (3)  The guidelines are the assessment framework policy guidelines .

             (4)  The guidelines are not a legislative instrument.

Division 5 Notice of determination to applicant and participating institutions

34   Notice of determination to applicant

             (1)  If the Operator makes a determination under section 29 on an application for redress for a person, the Operator must give the person written notice of the determination stating:

                     (a)  whether or not the application has been approved; and

                     (b)  the reasons for the determination; and

                     (c)  that the person may apply under section 73 for review of the determination.

             (2)  If the application has been approved, the notice must include the offer of redress to the person under section 39.

             (3)  The notice must also:

                     (a)  specify the day by which the person may apply for review of the determination (which must be at least 28 days, but no longer than 6 months, after the date of the notice) under section 73; and

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

35   Notice of determination to participating institutions

             (1)  If:

                     (a)  the Operator makes a determination under section 29 in relation to a person; and

                     (b)  a participating institution is specified in the determination;

then the Operator must give the institution written notice of the determination in accordance with subsection (2).

             (2)  The notice must state:

                     (a)  whether or not the application has been approved; and

                     (b)  if Operator determined under paragraph 29(2)(b) that the institution is responsible for the abuse and therefore liable for providing redress to the person under the scheme:

                              (i)  that fact; and

                             (ii)  the amount of the redress payment for the person; and

                            (iii)  the amount of the institution’s share of the costs of that payment; and

                            (iv)  the amount of the counselling and psychological component of redress for the person; and

                             (v)  the amount of the institution’s share of the costs of that component; and

                     (c)  if the Operator determined under paragraph 29(2)(g) that the institution is an associate of a responsible institution—that fact; and

                     (d)  if the Operator determined under paragraph 29(2)(h) that the institution is not responsible for the abuse and therefore not liable for providing redress to the person under the scheme—that fact; and

                     (e)  if the Operator determined under paragraph 29(2)(i) that the institution is the funder of last resort for a defunct institution—that fact; and

                      (f)  the reasons for the determination, as they relate to the institution; and

                     (g)  the day by which the person may apply under section 73 for review of the determination.

             (3)  The notice must also comply with any requirements prescribed by the rules.

Division 6 Effect of determination and admissibility of evidence in civil proceedings

36   Effect of determination

             (1)  A determination by the Operator under section 29 has effect only for the purposes of the scheme.

             (2)  In particular, a determination under section 29 that an institution:

                     (a)  is, or is not, responsible for the abuse of a person; or

                     (b)  is, or is not, liable to provide redress to a person;

is not a finding of law or fact made by a court in civil or criminal proceedings.

Note:          The determination is an administrative decision that is made by the Operator on the basis of whether the Operator considers there to be a reasonable likelihood that the person is eligible for redress. It is not a judicial decision made by a court in civil or criminal proceedings on the basis of a higher standard of proof.

             (3)  However, a determination under section 29 that an institution is responsible for abuse of a person and therefore liable to provide redress may result in the imposition of a civil liability on the institution to make payments under the scheme in relation to that redress.

37   Admissibility of documents in evidence in civil proceedings

             (1)  The following documents are not admissible in evidence in civil proceedings in a court or tribunal:

                     (a)  a person’s application for redress;

                     (b)  a document created solely for the purposes of accompanying a person’s application for redress;

                     (c)  a document created solely for the purposes of complying with a request for information made by the Operator under section 24 or 25 in relation to a person’s application for redress.

             (2)  Subsection (1) does not apply if the admission of the document in evidence in civil proceedings is for the purposes of giving effect to this Act.

             (3)  For the purposes of subsection (2) (and without limiting that subsection), if the admission of the document in evidence is in civil proceedings for judicial review of a decision made under this Act, then the admission is for the purposes of giving effect to this Act.

             (4)  Subsection (1) does not apply if the admission of the document in evidence is in civil proceedings under, or arising out of, section 28 (which is about providing false or misleading documents or information to an officer of the scheme).