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Part 7-1—Application of this Act

Part 7-1 Application of this Act

Division 1 Simplified outline of this Part

173   Simplified outline of this Part

This Act can only give an entitlement to redress if the Commonwealth has legislative power to provide that redress. This Part sets out the constitutional basis for providing redress and also deals with other aspects of the application of this Act.

The main constitutional basis for redress is based on the place where the abuse occurred, which broadly is as follows:

•      If the abuse occurred inside a State that has given a reference to the Commonwealth or made an adoption for the purposes of paragraph 51(xxxvii) of the Constitution (i.e. a participating State), then the reference or adoption by the State provides the constitutional basis for the redress.

•      If the abuse occurred inside a Territory (such as the Australian Capital Territory, the Northern Territory or an external Territory), then section 122 of the Constitution provides the constitutional basis for the redress.

•      If the abuse occurred outside Australia, then paragraph 51(xxix) of the Constitution provides the constitutional basis for the redress.

Division 2 Application of this Act

174   Constitutional basis for this Act

What this section is about

             (1)  This section sets out the constitutional basis of this Act.

Application in a participating State

             (2)  The application of this Act in relation to sexual abuse, and any related non-sexual abuse, of a person that occurred inside a participating State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under the Constitution (other than paragraph 51(xxxvii)); and

                     (b)  the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the participating States for the purposes of paragraph 51(xxxvii) of the Constitution.

Application in a non-participating State

             (3)  The application of this Act in relation to sexual abuse, and any related non-sexual abuse, of a person that occurred inside a non-participating State is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and

                     (b)  the other legislative powers that the Commonwealth Parliament has under the Constitution.

Application in a Territory

             (4)  The application of this Act in relation to sexual abuse, and any related non-sexual abuse, of a person that occurred inside a Territory is based on:

                     (a)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

                     (b)  the other legislative powers that the Commonwealth Parliament has under the Constitution.

Despite section 2H of the Acts Interpretation Act 1901 , this Act as applying in the Territory is a law of the Commonwealth.

Application outside Australia

             (5)  The application of this Act in relation to sexual abuse, and any related non-sexual abuse, of a person that occurred outside Australia is based on:

                     (a)  the legislative power the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

                     (b)  the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

                     (c)  the other legislative powers that the Commonwealth Parliament has under the Constitution.

175   Concurrent operation with State and Territory laws

             (1)  This Act does not exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

             (2)  Without limiting subsection (1), this Act does not exclude or limit the concurrent operation of a law of a State or Territory merely because that law provides for redress (however described) to be provided to a person for abuse suffered by the person.

176   Extraterritorial application and extension to external Territories

             (1)  This Act applies both within and outside Australia.

             (2)  This Act extends to every external Territory.

177   Crown to be bound

                   This Act binds the Crown in each of its capacities.