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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
AMENDMENT (FUNDERS OF LAST RESORT AND OTHER MEASURES) BILL
2021
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families and Social Services, Senator the Hon Anne Ruston)
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
AMENDMENT (FUNDERS OF LAST RESORT AND OTHER MEASURES)
BILL 2021
OUTLINE
The National Redress Scheme for Institutional Child Sexual Abuse Amendment
(Funders of last Resort and Other Measures) Bill 2021 (the Bill) amends the National
Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the Act). The Bill
proposes to modify various aspects of the National Redress Scheme for Institutional
Child Sexual Abuse (the Scheme) to increase access to the Scheme for survivors of
institutional child sexual abuse and to support effective administration. The Bill is a
further response to the independent two-year review of the Scheme that was
conducted in accordance with section 192 of the Act.
Funders of last resort
The funder of last resort arrangements in the Act will be extended to encompass non-
defunct institutions that are unable to participate in the Scheme, and defunct
institutions with which participating jurisdictions do not share responsibility for abuse
and there is no parent institution to take responsibility.
Under the new arrangements, participating jurisdictions can agree to assume funder
of last resort responsibility for individual institutions within these categories. A defunct
institution may be listed for both the existing funder of last resort arrangements and
the expanded arrangements. Institutions may also be listed for multiple participating
jurisdictions. As with existing provisions, for a jurisdiction to be a funder of last resort
for an institution the jurisdiction must agree to the arrangement and the Minister for
Families and Social Services must declare the arrangement through a legislative
instrument. This provides a mechanism for applications naming institutions listed
under the expanded funder of last resort arrangements to be progressed to
determination, enabling affected survivors to have access to redress under the
Scheme. Institutions that can join the Scheme but choose not to are not covered by
these arrangements.
In addition, the new arrangements will introduce the ability for certain institutions to
partly-participate in the Scheme where the Minister for Families and Social Services
has determined that they are unable to meet the requirements to fully participate in the
Scheme. This applies to institutions where there are reasonable grounds to expect
that should they be declared as a participating institution, their obligations under the
Act would not be discharged. It is the choice of an institution as to whether they partly-
participate in the Scheme.
Where an institution is partly-participating, an assessment of their financial viability
would be undertaken at least every 12 months. This means that institutions that might,
in future, become financially viable and able to meet the obligations of a participating
institution, would not remain indefinitely listed for a participating jurisdiction under the
funder of last resort arrangements.
1
In some circumstances, the Minister may otherwise declare an institution as a listed
institution for a participating jurisdiction where a State or Territory agrees.
To support decision-makers make a determination on an application, a
partly-participating institution will participate in the request for information process and
provide the Scheme with information relating to an application to the Scheme and also
provide a Direct Personal Response to those applicants that want one.
The new arrangements also allow jurisdictions to assume funder of last resort for an
institution that the Minister for Families and Social Services determines is unable to
meet the requirements to participate in the Scheme, and either cannot, or does not,
agree to partly-participate. These institutions may be considered as not joining the
Scheme and may be at risk of losing their favourable taxation treatments and the ability
to access future Commonwealth Government grant opportunities.
In agreeing to become a funder of last resort for an institution, a jurisdiction agrees to
take on the institution's financial liability. Non-defunct partly-participating institutions
would not have financial liability for applications and therefore the release of liability
would not apply.
Under the expanded funder of last resort arrangements, the Commonwealth will share
the costs with the relevant funding jurisdiction(s) that is the funder of last resort for the
institution responsible for the abuse.
Independent Decision Makers will determine the appropriate funder of last resort as
part of their decision making. Where an institution is listed for multiple jurisdictions,
the relevant jurisdiction(s) as funder of last resort is determined based on where the
abuse occurred and the connection with the abuse and operations of the institution in
the jurisdiction.
As with the existing arrangement, the declarations for funder of last resort
arrangements would remain a function of the Minister. These powers would remain
delegable to the Scheme Operator or a person who holds a delegated position for this
function within the Department of Social Services.
Disclosing information about non participating institutions
The Bill provides the Scheme Operator with specific authority to disclose protected
information about non-participating institutions who have been named in applications
to the Scheme or which the Scheme has reasonable grounds to believe that the
institution may be connected with the abuse of a person. Protected information can
be disclosed where those institutions have declined to join the Scheme, have not
signified their intent to join, have signified an intent to join but are not yet participating,
or do not meet the statutory requirements to participate in the Scheme.
Public naming of institutions enables survivors to be informed of an institution's
participation status and can help encourage institutions to join the Scheme, improving
applicants' ability to obtain redress.
2
The Bill further extends the Operator's specific authority to disclose protected
information about a non-government institution that is not a participating institution
where that institution has been named in an application to the Scheme or where the
Operator has reasonable grounds to believe that the institution may be connected with
the abuse of a person. A non-participating institution will be afforded a reasonable
amount of time to join the Scheme before any disclosure of protected information
related to their participation in the Scheme occurs.
The Bill also provides the Operator with a number of grounds upon which to lawfully
disclose protected information when publicly disclosing a non-participating or a partly
participating institution. However, the Operator is not permitted to disclose protected
information which would reveal the identity of a person who has applied for redress or
the identity of a person about whom the Operator has reasonable grounds to believe
may have been abused.
Financial impact statement
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES
Funder of Last Resort $22.8 million
Public Naming Nil
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this explanatory
memorandum.
3
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
AMENDMENT BILL 2021
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
• Act means National Redress Scheme for Institutional Child Sexual Abuse Act
2018;
• Operator means National Redress Scheme Operator, as defined in section 6
of the Act;
• Rules means the National Redress Scheme rules, made under section 179 of
the Act;
• Scheme means the National Redress Scheme for Institutional Child Sexual
Abuse established by the Act.
Clause 1 sets out how the new Act is to be cited - that is, as the National Redress
Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last Resort and
Other Measures) Act 2021.
Clause 2 provides a table setting out the commencement date of the whole of the Act.
It provides that the whole of the Act will commence on the day after the Act receives
Royal Assent.
Clause 3 provides that legislation that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule to the Act has
effect according to its terms.
1
Schedule 1 - Funders of Last Resort
Schedule 1 - Amendments
Summary
The National Redress Scheme for Institutional Child Sexual Abuse Amendment
(Funders of Last Resort and Other Measures) Bill 2021 (the Bill) amends the Act to
modify various aspects of the Scheme to provide better outcomes for survivors of
institutional child sexual abuse, as a further response to the two-year review of the
Scheme that was conducted in accordance with section 192 of the Act.
Background
Funders of last resort
The funder of last resort arrangements in the Act are extended to encompass non-
defunct institutions that are unable to participate in the Scheme, and defunct
institutions with which participating jurisdictions do not share responsibility for abuse.
Under the new arrangements, participating jurisdictions can agree to assume funder
of last resort responsibility for these institutions, providing a mechanism for
applications for redress to be progressed to determination where these institutions are
named in applications as being responsible for abuse. This measure is likely to
improve applicants' ability to obtain redress in relation to a significant cohort of
institutions that are not currently participating in the Scheme.
Disclosing information about non participating institutions
The protected information provisions of the Act are amended to extend the authority
for the Operator to publicly disclose certain information about institutions. This will
allow the Scheme Operator to publicly disclose the participating status of institution(s)
named applications, providing a stronger, clearer and administratively efficient basis
for the current practice of publicly naming institutions.
Schedules 1 and 2 to commence on the day after the Act receives Royal Assent.
Explanation of the changes
Schedule 1 - Funders of last resort
Main amendments
Items 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,
25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47,
48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70,
71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93,
94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 107.
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Schedule 1 - Funders of Last Resort
Item 1 inserts a new object into the section 3 of the Act to include that a survivor may
receive a direct personal response from a partly participating institution.
Item 2 inserts the phrase '(and in certain circumstances, partly participating
institutions)' into the Simplified outline in section 4 of the Act to broaden the scope of
institutions from which survivors of past institutional child sexual abuse may seek
redress.
Item 3 inserts the phrase '(or certain other institutions)' into the Simplified outline in
section 4 of the Act to broaden the scope of institutions from which survivors of past
institutional child sexual abuse may seek redress.
Item 4 substitutes the phrase 'a participating institution is responsible' for 'an institution
is responsible' into the Simplified outline in section 4 of the Act.
Item 5 substitutes the phrase 'where the participating' for 'where the' into the Simplified
outline in section 4 of the Act to broaden the scope of institutions from which survivors
of past institutional child sexual abuse may seek redress.
Item 6 inserts a new signpost definition into section 6 of the Act for eligible funding
jurisdiction for an institution in relation to abuse. That expression is defined at new
section 164D.
Item 7 repeals the phrase 'a participating' and substitutes 'an' into the definition of
equally responsible in section 6 of the Act.
Item 8 repeals the definition of funder of last resort in section 6 of the Act and inserts
a new definition by reference to new section 163 of the Act.
Item 9 repeals the definition of listed in section 6 of the Act and inserts new definitions
by reference to new subsections 164(1), 164A(1), 164B(1) and 164C(1).
Item 10 repeals the phrase 'subsections 108(2) and' and substitute 'section 108 and
subsection' into section 6 of the Act.
Item 11 inserts a new definition into section 6 of the Act for partly-participating
institution, which means an institution that is listed under section 164B.
Items 12, 13 and 14, repeals the phrase 'a participating' and substitutes the word 'an'
to the definitions of primarily responsible, related and responsible in section 6 of
the Act.
Item 15 repeals the word 'an' and substitutes the phrase 'a participating' to the
definition of responsible institution section 6 of the Act.
Item 16 Inserts the phrase '(or, in certain circumstances, one or more institutions that
are listed for a participating jurisdiction under section 164A, 164B or 164C)' after the
phrase 'one or more participating institutions' in section 11 of the Act.
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Schedule 1 - Funders of Last Resort
Item 17 repeals and substitutes paragraph 13(1)(d). New paragraph 13(1)(d) provides
that a person is eligible for redress under the Scheme if, among other things, one or
more of the following are responsible for the abuse (within the meaning of that
expression at section 15):
• a participating institution;
• an institution that is listed for a participating jurisdiction under sections 164A,
164B or 164C (if a participating jurisdiction is an eligible funding jurisdiction for
the institution in relation to the abuse).
Item 18 repeals 'subsection 108(2)' and substitutes 'section 108' in subsection 13(1)
(note 2) of the Act.
Item 19 repeals and substitutes paragraph 16(1)(c). New paragraph 16(1)(c) provides
that the third component of redress is a direct personal response from:
• each participating institution that is determined by the Operator under
paragraph 29(2)(b) to be responsible for the abuse of the person, and
• each of the partly-participating institutions that are determined by the Operator
under paragraph 29(2)(j) to be responsible for the abuse of the person and for
which the Operator determines under paragraph 29(2)(k) that a participating
jurisdiction is a funder of last resort in relation to the abuse.
Item 20 inserts the phrase 'or partly participating institutions' after the phrase
'participating institutions' in subsection 16(3).
Item 21 inserts a requirement into the Simplified outline in section 18, that where an
application for redress is approved, the Operator must also give written notice to any
funders of last resort that are specified in the determination.
Item 22 repeals the word 'participating' from the heading in section 25.
Items, 23, 24 and 25 after each occurrence of the phrase 'participating institutions',
the phrase 'or partly participating institutions' is inserted to paragraphs 25(1)(a)
and (b), subsection 25(2) and paragraphs 26(2)(a) respectively.
Item 26 inserts the phrase 'under section 164' to the end of subparagraph 29(2)(i)(ii)
Item 27 inserts new paragraphs 29(2)(j), (k), (l) and (m) to describe additional matters
the Operator must determine if the Operator considers there is a reasonable likelihood
that a person is eligible for redress.
New paragraph 29(2)(j) provides that the Operator must determine each of the
following institutions that is responsible for the abuse (with a reference to section 15
of the Act): a defunct institution that is listed for a participating jurisdiction under section
164A and that the Operator does not determine is equally responsible with a
participating government institution for the abuse; a party-participating institution (with
a reference to section 164B); an institution that is listed for a participating jurisdiction
under section 164C. New paragraph 29(2)(k) provides that for each institution
determined under paragraph 29(2)(j) that is responsible for the abuse of a person, the
Operator must determine each participating jurisdiction that is an eligible funding
jurisdiction for the institution in relation to the abuse (with a reference to section 164D),
4
Schedule 1 - Funders of Last Resort
and that each of those eligible funding jurisdictions is a funder of last resort for the
institution in relation to the abuse and therefore liable for providing redress to the
person under the Scheme.
New paragraph 29(2)(l) provides that if the Operator determines that one or more
funders of last resort are liable for providing redress under paragraph 29(2)(k), the
Operator must determine, in accordance with section 165A, those funders of last
resorts' respective shares of the redress payment and counselling and psychological
services component of redress for the person, and the Commonwealth's share of the
redress payment and counselling and psychological services component of redress
for the person, whether or not the Commonwealth is determined to be a funder of last
resort.
New paragraph 29(2)(m) provides that for each institution that was identified in the
application, to which subparagraph 29(2)(j)(i), (ii) or (iii) applies, and is not covered by
a determination under paragraph (j), the Operator must determine that the institution
is not responsible for the abuse. This ensures that where an institution is named in an
application but is not determined to be responsible for the abuse of the person, the
funder of last resort will not be liable for providing redress to the person under the
scheme. This aligns with current paragraph 29(2)(h) in relation to participating
institutions.
Item 28 repeals and substitutes the legislative notes at subsection 29(2) to address
the new funder of last resort arrangements and direct the reader to the relevant
provisions in Part 6-2 of the Act.
Item 29 inserts the phrase 'participating jurisdiction' after the phrase 'participating
institution' in paragraph 29(7)(b)' to ensure the Operator provides a written notice to
the relevant jurisdiction.
Item 30 inserts reference to the new notice of determination to funders of last resort
at 35A after the phrase 'section 35' into paragraph 29(7)(b).
Item 31 repeals reference to subsection 165(2) in subsection 30(5) (note 2) and inserts
the phrase 'section 165 or 165A' to reference the special rules for funder of last resort
cases or participating jurisdiction.
Item 32 repeals reference to subsection 165(3) in subsection 31(3) (note 2) and inserts
the phrase 'section 165 or 165A' to reference the special rules for funder of last resort
cases or participating jurisdiction.
Item 33 repeals the part of the heading 'and participating institutions' in Division 5 of
Part 2-3 and inserts the phrase 'participating institutions and funders of last resort'.
Item 34 inserts section 35A at the end of Division 5 of Part 2-3. Section 35A provides
the Operator the framework within which they must issue a notice to the participating
jurisdiction and what that notice must contain. This provision is analogous to existing
section 35, except it relates to a notice of determination to funders of last resort.
Item 35 repeals 'an institution' from subsection 36(2).
5
Schedule 1 - Funders of Last Resort
Item 36 inserts 'an institution' before the phrase 'is or is not' in paragraph 36(2)(a).
Item 38 repeals and substitutes subsection 36(3) of the Act, which is about the effect
of a determination. New subsection 36(3) confirms that where an institution is
responsible for abuse and liable for providing redress, or where a funder of last resort
is liable to provide redress, this may result in the imposition of a civil liability on the
institution or the funder of last resort to make payments under the Scheme in relation
to that redress.
Item 39 repeals the following part in the Simplified outline in section 38: 'If the person
accepts the offer, the Operator must notify the participating institutions determined by
the Operator to be responsible for the abuse of the person's acceptance of the offer
(including the components of redress that the person wishes to receive)' and inserts
the following part:
If the person accepts the offer, the Operator must notify the participating institutions
determined by the Operator to be responsible for the abuse of the person's acceptance
of the offer (including the components of redress that the person wishes to receive). If
the Operator has determined that one or more funders of last resort for one or more
institutions are liable for providing redress, the Operator must also notify:
(a) those funders of last resort; and
(b) if any of those institutions are partly-participating institutions--those
partly-participating institutions.
Item 40 inserts new paragraphs 39(ia) and (ib) providing for additional requirements
as to the contents of an offer of redress. The written offer of redress must also:
• specify the institutions determined under paragraph 29(2)(j) to be responsible
for the abuse,
• specify the participating jurisdictions determined to be funders of last resort for
those institutions, explain that those funders of last resort and the
Commonwealth are liable for the institutions' hypothetical shares of the costs
of providing redress,
• where an institution is defunct - explains that a direct personal response is not
available to the person, and
• for any institutions determined to be responsible for the abuse but for which the
Operator determined there is no funder of last resort - explains that there is no
funder of last resort for those institutions.
The written offer of redress must also specify the institutions that were identified in the
person's application but determined by the Operator not to be responsible for the
abuse.
Item 41 inserts '(if any)' after the phrase 'responsible institutions' at paragraph 39(p).
Item 42 inserts new section 41A into Division 2 of Part 2-4 of the Act. This is a new
notice provision arising out of the new funder of last resort arrangements. Subsection
41A(1) provides that where the Operator gives an offer of redress and a participating
jurisdiction has been determined to be a funder of last resort in new subparagraph
6
Schedule 1 - Funders of Last Resort
39(ia)(ii), but not the Commonwealth, the Operator must give the participating
jurisdiction a written notice of the offer.
Subsection 41A(2) specifies that the written notice of offer must state the acceptance
period for the offer and comply with any of the requirements prescribed by the rules.
Item 43 inserts the phrase 'and partly participating institutions' after the phrase
'participating institutions' in paragraph 42(2)(g) of the Act.
Item 44 inserts new section 44A. This is a new notice provision arising out of the new
funder of last resort arrangements. New section 44A provides where a person accepts
an offer of redress in accordance with section 42 of the Act, the Operator must give
each applicable participating jurisdiction that had been previously notified under new
section 41A written notice about the person's acceptance of the offer and any matters
prescribed by the rules,
Item 45 inserts new sections 46A and 46B into Division 3 of Part 2-4 of the Act. These
are new notice requirements for funders of last resort and partly-participating
institutions in relation to offers of redress.
Section 46A provides that the Operator must give a written notice to a funder of last
resort if the institution was specified in the offer of redress and the person declines the
offer. Subsection 46A(2) provides that the notice must also comply with any
requirements prescribed by the rules.
Section 46B provides that the Operator must give a written notice to a partly-
participating institution if a person accepted or declined an offer of redress in which
the participating jurisdiction was specified as a funder of last resort for the partly-
participating institution or institutions under subparagraph 39(ia)(ii).
Subsection 46B(2) provides that the notice must state that the Operator has
determined that the institution was responsible for the abuse, the reasons for the
determination, whether the person has accepted or declined the offer, and, if the
person has accepted the offer, whether the person seeks a direct personal response
from the institution. Subsection 46B(3) provides that the notice must also comply with
any requirements prescribed by the rules.
Item 46 repeals the reference to 'responsible institutions' and to insert the phrase
'participating institutions, and certain partly-participating institutions, that are
responsible' to section 47 of the Act.
Item 47 omits the word 'participating' from section 47 of the Act.
Items 48 and 49 insert the phrase 'or partly participating institution' after the phrase
'participating institution' in to both the heading of section 54 and subsection 54(1) of
the Act.
Item 50 inserts reference to new section 46B of the Act.
Item 51 removes the reference to participating in subsection 54(2) of the Act.
7
Schedule 1 - Funders of Last Resort
Item 52 removes the reference to participating in subsection 54(3) of the Act.
Items 53 to 57 inserts references to partly participating institutions in subsections
56(1), 56(2), 56(3), 56(4), 56(5) and 56(7) of the Act.
Item 58 inserts new paragraphs 58(3)(d) and (e), which apply when a person has died
before a determination is made on an application for redress. Current
subsection 58(2) provides that the Operator must continue to deal with the application
as if the person had not died. New paragraphs 58(3)(d) and (e) provide that, if the
Operator approves the application, the Operator must also determine the institutions
responsible for the abuse, the participating jurisdictions that are funders of last resort
for those institutions, and the participating jurisdictions' shares of the costs of the
redress payment.
Item 59 repeals reference to 'or a participating institution' and substitutes the phrase
', a participating institution, a partly-participating institution or a funder of last resort' to
subsection 58(3) and 59(3) of the Act.
Item 60 repeals reference to 'participating institutions', and substitutes the phrase
'institutions and funders of last resort' in section 72 of the Act.
Items 61 and 62 repeals references to 'participating institutions', and substitutes the
phrase 'institutions and funders of last resort' in the heading of section 79 and in
subsection 79(1) of the Act.
Item 63 inserts reference to new notice of determination sections 35A or 46B to
subsection 79(1) of the Act.
Items 64, 65, 66, 67, 68, 69, 73, 74 and 75 are consequential amendments to take
into account the new funder of last resort arrangements. These amendments extend
the protected information provisions, but only to the extent that they capture partly
participating institutions to obtain, record, disclose or use protected information.
Item 70 inserts reference to ', or at least one institution listed for a participating
jurisdiction under section 164A, 164B or 164C,' to the Simplified outline in section 107
of the Act.
Item 71 repeals subsection 108(1) to account for the new funder of last resort, under
which a person may be eligible for redress even where there is no participating
institution responsible for the abuse.
Item 72 removes the redundant subsection number '(2)'.
Item 73 inserts a note at the end of subsection 108(2) of the Act to reference that a
partly-participating institution is not a participating institution (see
paragraph 164B(1)(b)).
Item 74 repeals the last paragraph in the Simplified outline in section 148 of the Act
which provides 'One or more participating government institutions may be a funder of
8
Schedule 1 - Funders of Last Resort
last resort for a defunct institution. In that case, those government institutions will be
liable to pay the defunct institution's (hypothetical) share of the costs of providing
redress to the person, which will increase the amount of funding contribution the
government institutions will be liable to pay. (For the funder of last resort provisions,
see Part 6-2.)' and substitutes the following: 'One or more participating government
institutions or participating jurisdictions may be a funder of last resort for a
non-government institution that is not fully participating in the scheme. In that case,
those government institutions or jurisdictions will be liable to pay the non-government
institution's (hypothetical) share of the costs of providing redress to the person, which
will increase the amount of funding contribution the government institutions or
jurisdictions will be liable to pay. (For the funder of last resort provisions, see Part 6-2.)'
This substitution provides guidance in respect of liability for funding where one or more
participating government institutions or participating jurisdictions may be a funder of
last resort for a non-government institution that is not fully participating in the scheme.
Item 75 repeals and substitutes subsection 149(1). The existing legislative notes are
not repealed. New subsection 149(1) is in similar terms to existing subsection 149(1)
but also provides that each participating jurisdiction that is determined to be a funder
of last resort for an institution that is determined by the Operator to be responsible for
abuse of a person is liable to pay funding contribution for a quarter.
Item 76 repeals and replaces section 150 to provide that a participating institution's
funding contribution and a funder of last resort's funding contribution for a quarter
comprises both the redress element for the institution or the funder of last resort, and
the scheme administration element for the institution or the funder of last resort.
Items 77 and 78 include reference to funder of last resort into section 151 and
paragraphs 151 (a) and (b) of the Act.
Item 79 repeals the legislative note at section 151 and substitutes it with three notes.
Note 1 is in the same terms as the existing note. Note 2 directs the reader to
section 165 which is about a funder of last resort paying for a defunct institution's
hypothetical share of the costs of providing redress to the person. Note 3 directs the
reader to section 165A which is about the new funder of last resort arrangements.
Items 80 to 86 insert references to funder of last resort to existing provisions152(1)
and (2), 153(1) and 153(1)(a), 153(2), 154(1), 154(3), 156(1), 157(1) and 157(6) of the
Act.
Item 87 repeals and substitutes section 162 of the Act, the Simplified outline in relation
to funders of last resort. The new Simplified outline explains the process where:
• a participating government institution can be a funder of last resort for an
institution where it is defunct, the government institution is equally responsible
for the abuse and the defunct institution is listed for the jurisdiction that the
government institution belongs to; and
• a participating jurisdiction can become a funder of last resort for a
non-government institution in relation to the abuse of a person where the
institution is listed for the participating jurisdiction and the jurisdiction is an
eligible funding jurisdiction in relation to the abuse.
9
Schedule 1 - Funders of Last Resort
A jurisdiction is an eligible funding jurisdiction in relation to the abuse of a person if the
institution operated in the jurisdiction and the Operator considers it appropriate for the
jurisdiction to be the funder of last resort given the jurisdiction in which the institution
carried out its operations and the institutions responsibility for the abuse.
New section 162 also explains that new section 164A is to be used when listing defunct
institutions, new section 164B is used when listing institutions (partly participating
institutions) that agree to provide a direct personal response if required, and that new
section 164C is to be used for listing other institutions.
Item 88 inserts '(l)' before the phrase 'A participating' in section 163 of the Act.
Item 89 inserts the phrase 'under section 164' at the end of the note in section 163 of
the Act.
Item 90 inserts new subsection 163(2) into the Act to insert a second definition of
funder of last resort. It provides that a participating jurisdiction is a funder of last
resort for an institution in relation to abuse of a person if a determination is in force
under paragraph 29(2)(k). Item 96 also inserts a legislative note to direct the reader
to the requirement that the institution is also listed under section 164A, 164B or 164C.
Item 91 inserts '--listing relating only to abuse for which participating
government institution is equally responsible' at the end of the heading in section
164 of the Act.
Item 92 inserts the phrase 'under this section' after the phrase 'a participating
institution' in subsection 164(1) of the Act.
Item 93 inserts a legislative note at subsection 164(1) to direct the reader to
paragraph 29(2)(i).
Items 94 to 99 insert the phrase 'under this section' at the end of each of the following
subsections: 164(2), 164(3), 164(4), 164(6), 164(7), and the following paragraphs:
164(6)(b) and 164(7)(b).
Item 100 inserts new sections 164A, 164B and 164C to establish the new funder of
last resort arrangements. These sections are in addition to existing funder of last
resort arrangements in section 164 and an institution may be listed in more than one
of these categories.
New section 164A is about listing defunct institutions for a participating jurisdiction
where a government institution is not equally responsible for abuse of a person. This
builds on existing funder of last resort arrangements to also cover applications that
name an institution that is defunct but a government was not equally responsible for
the abuse.
Subsection 164A(1) provides that a defunct institution is listed for a participating
jurisdiction if the institution is a non-government institution, it is not already a
participating institution, and a declaration is in force under subsection 164A(2) that the
10
Schedule 1 - Funders of Last Resort
institution is listed for the participating jurisdiction. A legislative note at
subsection 164A(1) clarifies that this section is relevant for the purposes of
paragraphs 29(2)(j) to (m) of the Act which, unlike paragraph 29(2)(i), does not require
a government institution to be equally responsible with the defunct institution for the
abuse.
Subsection 164A(2) confers a power on the Minister to declare that a defunct
institution is listed for one of more participating jurisdictions under section 164A. A
legislative note clarifies that the institution may be identified by name, by class, or in
any other way. Subsection 164A(3) requires the Minister to be satisfied that the
Commonwealth or a participating Territory has agreed (in the way prescribed by the
rules, if any) to the listing before making a declaration under subsection 164A(2) in
relation to that jurisdiction. Subsection 164A(4) requires the Minister to be satisfied
that a participating State has agreed (in a way provided by the State's referral Act or
adoption Act) to the listing before making a declaration under subsection 164A(2) in
relation to that jurisdiction. Subsection 164A(5) provides that the Minister may vary or
revoke a declaration made under subsection 164A(2).
Subsections 164A(6) and (7) provide for the Commonwealth, a Territory or a State to
withdraw their agreement to a listing (in a way prescribed by the rules, or in a way
provided by the State's referral Act or adoption Act, as the case may be). If the
Commonwealth, a Territory or a State withdraws its agreement, then the Minister must
vary or revoke the declaration as soon as practicable so that the defunct institution is
no longer listed for the jurisdiction under section 164A.
Section 164B provides for listing partly-participating institutions. These are institutions
that will have certain obligations imposed on them as they are not defunct. The
obligations include providing information through the request for information process
under section 25 and providing a direct personal response under section 54. These
obligations would ordinarily attach to participating institutions.
Subsection 164B(1) provides that an institution is listed for a participating jurisdiction
under section 164B if the institution is a non-government institution, it is not a
participating institution, it is not a defunct institution, and a declaration that the
institution is listed for the participating jurisdiction is in force under subsection 164B(2).
Legislative notes at subsection 164B(1) clarify that listing under section 164B is
relevant for paragraphs 29(2)(j) to (m), and that a partly-participating institution can be
required to provide a person with a direct personal response, unlike an institution listed
under section 164C.
Subsection 164B(2) confers a power on the Minister to declare that an institution
(other than a defunct institution) is listed for one or more participating jurisdictions
under section 164B. A legislative note clarifies that the institution may be identified by
name, by class, or in any other way.
Subsection 164B(3) requires the Minister to be satisfied that the Commonwealth or a
participating Territory has agreed (in the way prescribed by the rules, if any) to the
listing before making a declaration under subsection 164B(2) in relation to that
jurisdiction. Subsection 164B(4) requires the Minister to be satisfied that a
11
Schedule 1 - Funders of Last Resort
participating State has agreed (in a way provided by the State's referral Act or adoption
Act) to the listing before making a declaration under subsection 164B(2) in relation to
that jurisdiction. In both cases, the Minister must also be satisfied that the institution
has agreed to being listed under the section, and that the institution would not be able
to meet its liabilities under the Act and its obligations under section 54 (about providing
a direct personal response) if the institution were declared to be a participating
institution under subsection 115(2). This provides the institution with the choice as to
whether they partly-participate in the Scheme.
Subsection 164B(5) provides that the Minister may vary or revoke a declaration made
under subsection 164B(2).
Subsections 164B(6) and (7) provide for the Commonwealth, a Territory or a State to
withdraw their agreement to a listing (in a way prescribed by the rules, or in a way
provided by the State's referral Act or adoption Act, as the case may be). If the
Commonwealth, a Territory or a State withdraws its agreement, then the Minister must
vary or revoke the declaration as soon as practicable so that the institution is no longer
listed for the jurisdiction under section 164B. The Minister must also vary or revoke
the declaration as soon as practicable if the institution requests the Minister in writing
to vary or revoke it so that the institution is no longer so listed, or if the Minister
becomes satisfied that, if the institution were declared to be a participating institution
under subsection 115(2) of the Act, its liabilities under the Act and its obligations under
section 54 (about providing a direct personal response) would be discharged.
Subsection 164B(8) imposes a positive obligation on the Minister to consider, at least
every 12 months, whether institutions listed under section 164B would be able to
discharge their liabilities under the Act and their obligations under section 54 would be
discharged if they were to be declared a participating institution under
subsection 115(2). This means that institutions that might, in future, become
financially viable and able to meet the obligations of a participating institution, would
not remain indefinitely listed for a participating jurisdiction under section 164B.
Institutions that can join the Scheme but choose not to may be at risk of losing any
favourable taxation treatments and their ability to access future Commonwealth
government grant opportunities.
Section 164C is about listing non-defunct institutions other than partly-participating
institutions. Subsection 164C(1) provides that an institution is listed for a participating
jurisdiction under section 164C if the institution is a non-government institution, it is
not a participating institution, it is not a defunct institution, and a declaration that the
institution is listed for the participating jurisdiction is in force under subsection 164C(2).
Legislative notes at subsection 164C(1) clarify that listing under section 164C is
relevant for paragraphs 29(2)(j) to (m), and that listing under section 164C does not
make an institution a partly-participating institution. An institution that is not a
participating institution and not a partly-participating institution cannot be required to
provide a person with a direct personal response.
Subsection 164C(2) confers a power on the Minister to declare that an institution
(other than a defunct institution) is listed for one of more participating jurisdictions
under section 164C. A legislative note clarifies that the institution may be identified by
name, by class, or in any other way.
12
Schedule 1 - Funders of Last Resort
Subsection 164C(3) requires the Minister to be satisfied that the Commonwealth or a
participating Territory has agreed (in the way prescribed by the rules, if any) to the
listing before making a declaration under subsection 164C(2) in relation to that
jurisdiction. Subsection 164C(4) requires the Minister to be satisfied that a
participating State has agreed (in a way provided by the State's referral Act or adoption
Act) to the listing before making a declaration under subsection 164C(2) in relation to
that jurisdiction. In both cases, the Minister must also be satisfied that the institution
would not be able to meet its liabilities under the Act and its obligations under
section 54 (about providing a direct personal response) if the institution were declared
to be a participating institution under subsection 115(2).
In both cases, the Minister must also be satisfied either that the institution has not
agreed to be listed for the participating jurisdiction under section 164B, or the
institution cannot be listed because of paragraphs 164B(3)(d) or 164B(4)(d) in that it
would not be able to provide a direct personal response should it be listed under 164B.
Finally, in both cases, the Minister must be satisfied there are exceptional
circumstances justifying the institution being listed for the jurisdiction for this section
164C. The existence of exceptional circumstances will ensure that an institution should
become a partly-participating institution where practical and section 164C is only
utilised where exceptional circumstances exists.
Subsection 164C(5) provides that the Minister may vary or revoke a declaration made
under subsection 164C(2).
Subsections 164C(6) and (7) provide for the Commonwealth, a Territory or a State to
withdraw their agreement to a listing (in a way prescribed by the rules, or in a way
provided by the State's referral Act or adoption Act, as the case may be). If the
Commonwealth, a Territory or a State withdraws its agreement, then the Minister must
vary or revoke the declaration as soon as practicable so that the institution is no longer
listed for the jurisdiction under section 164C. The Minister must also vary or revoke
the declaration as soon as practicable if the Minister becomes satisfied that: if the
institution were declared to be a participating institution under subsection 115(2) of the
Act, its liabilities under the Act and its obligations under section 54 (about providing a
direct personal response) would be discharged; that the institution has agreed to be
listed under section 164B and neither paragraph 164B(3)(d) nor 164B(4)(d) prevents
the listing; or there are exceptional circumstances that no longer justify the institution
being listed for the jurisdiction under this section 164C.
Subsection 164C(8) imposes a positive obligation on the Minister to consider, at least
every 12 months, whether institutions listed under section 164C would be able to
discharge their liabilities under the Act and their obligations under section 54 would be
discharged if they were to be declared a participating institution under
subsection 115(2). This means that institutions that might, in future, become
financially viable and able to meet the obligations of a participating institution, or
institutions that choose to participate in the Scheme, would not remain indefinitely
listed for a participating jurisdiction under section 164C.
Section 164D inserts a new definition of an eligible funding jurisdiction.
13
Schedule 1 - Funders of Last Resort
Subsection 164D(1) provides that the Commonwealth is an eligible funding jurisdiction
for an institution in relation to abuse if the institution is listed for the Commonwealth
under section 164A, 164B or 164C, and subsection 164D(2) or (3) applies. Those
subsections apply in the following circumstances:
• subsection 164D(2) applies if the institution operated solely in a territory, the
Australian Capital Territory or the Northern Territory pre self-government as
mentioned in subsection 164D(4);
• subsection 164D(3) applies if the institution did not operate solely in only one
State, the Australian Capital Territory (ACT) or the Northern Territory (NT) when
the abuse occurred, and the Operator or Independent Decision Maker
considers it appropriate for the Commonwealth to be a funder of last resort,
given the connection between the institution's operations carried out in a place
mentioned in subsection 164D(4) (a Territory, the Australian Capital Territory
or the Northern Territory pre self-government) and the institution's responsibility
for the abuse.
Subsection 164D(4) provides that for the purposes of subsections 164D(2) and (3),
the places are: inside a Territory other than the ACT and the NT, inside the ACT and
the NT before they were self-governing, and outside Australia.
Subsection 164D(5) provides that a participating State or a participating Territory is an
eligible funding jurisdiction for an institution in relation to abuse if the institution is listed
for the State or Territory under section 164A, 164B or 164C and subsection 164D(6)
or (7) applies. Those subsections apply in the following circumstances:
• subsection 164D(6) applies if the institution operated solely in the State or
Territory when the abuse occurred; or
• subsection 164D(7) applies if the institution did not operate solely in only one
State, the ACT or the NT when the abuse occurred, and the Operator or
Independent Decision Maker considers it appropriate for the State or Territory
to be a funder of last resort, given the connection between the institution's
operations carried out in the State or Territory and the institution's responsibility
for the abuse.
Subsection 164D(8) further provides that the ACT and NT are not eligible funding
jurisdictions for abuse that occurred before those Territories were self-governing.
Subsections 164D(9) and (10) provide that the rules may prescribe circumstances in
which a participating jurisdiction is, or is not, an eligible funding jurisdiction for an
institution in relation to abuse. A legislative note at subsection 164D(10) reiterates the
requirement to make a determination under paragraph 29(2)(k) in certain
circumstances.
Item 101 inserts new section 165A at the end of Division 3 of Part 6-2 of the Act,
setting out how to calculate each participating jurisdiction's respective liability for
providing redress to a person under the new funder of last resort arrangements.
Subsection 165A(1) sets out the effect of a participating jurisdiction being a funder of
last resort where the Operator determines under paragraph 29(2)(j) that an institution
is responsible for abuse of a person, and determines under paragraph 29(2)(k) that
one or more participating jurisdictions are the funder of last resort for the institution in
14
Schedule 1 - Funders of Last Resort
relation to the abuse. In these circumstances, each of the jurisdictions are
proportionally liable for half of what the institution would have been liable to pay if it
had been a participating institution. The Commonwealth bears the other half of the
liability.
Subsection 165A(2) provides for determining the amount of the redress payment. It
provides that when determining the amount of a redress payment under
paragraph 29(2)(c) of the Act, the Operator must apply subsection 30(2) of the Act
(which sets out the method statement for determining the amount of the redress
payment and sharing of costs) as if each institution that the Operator determines under
paragraph 29(2)(j) is responsible for the abuse, and for which the Operator determines
under paragraph 29(2)(k) that a participating jurisdiction is a funder of last resort, were
also a responsible institution in relation to the abuse.
Subsections 165A(3) to (5) are about working out a participating jurisdiction's share of
the redress payment for the purposes of subparagraph 29(2)(l)(i). For the purposes
of working out the participating jurisdiction's share of the redress payment,
subsections 165A(3) to (5) refer to the jurisdiction as the funding jurisdiction. A
legislative note at subsection 165A(3) directs the reader to subsections 165A(6) to (8)
to work out the Commonwealth's share of the redress payment.
Subsection 165A(4) provides that, to work out a funding jurisdiction's share of the
redress payment, for each institution, the Operator must first halve the amount worked
out under subsection 30(2) as the amount of an institution's share of the costs of the
redress payment. The Operator must then divide that half by the number of
participating jurisdictions that are funders of last resort for the institution. A legislative
note at subsection 165A(4) provides that if there is only one funder of last resort, the
amount worked out here will be the same as half the institution's share of the costs of
the redress payment). A second legislative note provides that if there is more than
one funder of last resort for the institution in relation to the abuse and one of those is
the Commonwealth, then the Commonwealth is included in the number of funders of
last resort among which to divide half of the institution's share for the purposes of
paragraph 165A(4)(b). (Otherwise, subsections 165A(6) to (8) set out how to
determine the Commonwealth's share.)
Subsection 165A(5) states that the funding jurisdiction's share of the costs of the
redress payment is the sum of amounts worked out under subsection 165A(4) for each
institution.
Subsections 165A(6) to (8) are about working out the Commonwealth's share of the
costs of the redress payment for the purposes of subparagraph 29(2)(l)(ii).
Subsection 165A(7) provides that, to work out the Commonwealth's share of the
redress payment, for each institution, the Operator must first halve the amount worked
out under subsection 30(2) as the amount of an institution's share of the costs of the
redress payment. If the Operator determines that the Commonwealth is a funder of
last resort for the institution in relation to the abuse, the Operator must then divide that
half by the number of participating jurisdictions that are funders of last resort for the
institution, and add half of the amount worked out under subsection 30(2) to the
amount worked out by dividing the other half among the participating institutions that
15
Schedule 1 - Funders of Last Resort
are funders of last resort. A legislative note at subsection 165A(7) provides that if the
Commonwealth is the only funder of last resort for an institution, then the
Commonwealth's share of the redress payment for that institution will be the whole of
the amount worked out under subsection 30(2).
Subsection 165A(8) states that the Commonwealth's share of the costs of the redress
payment is the sum of amounts worked out under subsection 165A(7) for each
institution.
Subsections 165A(9) to (11) are about working out a participating institution's share of
the counselling and psychological component of redress. Subsections 165A(12) to
(14) are about working out the Commonwealth's share of the counselling and
psychological component of redress. These provisions use essentially the same
formula as those in subsections 165A(3) to (5) (for funding jurisdictions) and
subsections 165A(6) to (8) (for the Commonwealth) respectively, with an institution's
notional share of the counselling and psychological component of redress being
worked out in accordance with section 31 of the Act, as if the institution were a
participating institution.
Subsection 165A(15) is about working out a funding jurisdiction's contribution to the
costs of administration of the Scheme for a quarter (scheme administration costs). For
each institution for which the Operator determines under paragraph 29(2)(k) that a
participating jurisdiction is the funder of last resort in relation to abuse, the Operator
must determine the institution's share of the scheme administration costs under
subsection 152(2) as if the institution were a participating institution, halve that
amount, divide that half by the number of participating jurisdictions determined to be
funders of last resort for the institution in relation to the abuse, and add that amount to
what would otherwise have been the funding jurisdiction's contribution to those costs.
Items 102 and 103 insert the phrase ', State, Territory' after the phrase 'an institution'
in section 166 and 168 of the Act.
Item 104 inserts the phrase ', State, Territory' after the phrase 'the institution' in
paragraphs 168(a) and 168(b) of the Act.
Item 105 inserts 'and participating jurisdictions' at the end of the heading in
section 172.
Item 106 inserts the phrase 'or participating jurisdiction' after the phrase ' participating
institution' in paragraph 172 (c) of the Act.
Item 107 inserts 'or jurisdiction' after the phrase 'the institution' in section 172 of the
Act.
Schedule 2 - Disclosing information about non-participating institutions
Item 1 inserts a new section 95A to Division 2 of Part 4-3 of the Act, to authorise the
Operator to disclose that an institution is not participating in the Scheme where the
institution has been named in an application for redress, or the Operator has
reasonable grounds to believe that the institution may be connected with the abuse
of a person within the scope of the scheme.
16
Schedule 3 - Application and transitional provisions
Subsection 95A(1) provides explicit authority to the Operator to publicly disclose that
a non-government institution is not a participating institution in circumstances where
that institution has been named in an application for redress as being involved in the
abuse of that person or where the Operator has reasonable grounds to believe that
the institution may be connected with abuse of a person that is within the scope of the
scheme, or both circumstances apply. Further, the Operator may only publicly disclose
that a non-government institution is not a participating institution if that institution is not
a participating institution or a partly-participating institution.
Subsection 95A(2) sets out the circumstances in which a non-participating institution
may be named. The circumstances include where an application for redress under the
scheme identifies the institution as being involved in abuse, that the Operator has
reasonable grounds to believe that the institution may be connected with abuse, that
the Operator has contacted the institution about participating in the scheme and the
institution has not responded to the Operator despite having had a reasonable time to
do so, that the institution has informed the Operator that the institution intends to agree
to participate in the scheme, that the institution has informed the Operator that the
institution does not intend to agree to participate in the scheme, that the institution has
informed the Operator that the institution intends to agree to being listed under
section 164B (partly-participating institutions), that the institution has informed the
Operator that the institution does not intend to agree to being listed under section 164B
(partly-participating institutions) and that there are not reasonable grounds for
expecting that, if the institution were declared to be a participating institution under
section 115, its liabilities under this Act would be discharged. Paragraph 95A(2)(i)
provides that additional circumstances may be prescribed by the rules.
Subsection 95A(3) explicitly provides the Operator with the authority to disclose
protected information under the section.
Subsection 95A(4) explicitly provides that the Operator must not disclose protected
information that identifies a person who may have applied for redress under the
scheme or in a circumstance where the Operator has reasonable grounds to believe
that person may have been abused.
Schedule 3 - Application and transitional provisions
Division 2 - Application and transitional provisions
Item 1 inserts new Part 8-4 in the appropriate position in Chapter 8 of the Act, setting
out the application and transitional provisions pertaining to the amendments. Part 8-4
includes new sections 206, 207 and 208.
Section 206 sets out the definitions for amending Act, defined as the National
Redress Scheme for Institutional Child Sexual Abuse Amendment (Funders of Last
Resort and Other Measures) Act 2021, and application, defined as an application for
redress.
17
Schedule 3 - Application and transitional provisions
Section 207 provides that the amendments made by Schedule 1 of the amending Act
apply in relation to an application made on or after the commencement of section 207,
or an application made before commencement, where it was not withdrawn before
commencement, and the Operator has not made a determination on the application
before commencement.
Section 208 specifies that, for the purposes of the amendments made by Schedule 2
of the amending Act, it does not matter whether the application was made before, on
or after commencement.
18
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
NATIONAL REDRESS SCHEME FOR INSTITUTIONAL CHILD SEXUAL ABUSE
(FUNDERS OF LAST RESORT AND OTHER MEASURES) BILL 2021
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
This Bill makes amendments to the National Redress Scheme for Institutional Child
Sexual Abuse Act 2018 to ensure the ongoing improvement of the National Redress
Scheme for Institutional Child Sexual Abuse (the Scheme) and to enhance a survivor's
access to redress. The amendments are in response to the Final Report of the Second
Year Review of the National Redress Scheme for Institutional Child Sexual Abuse (the
Review), undertaken by Ms Robyn Kruk AO, and the Government's commitment to
ongoing improvement of the Scheme.
The amendments made by the Bill will:
• Expand Funder of Last Resort (FOLR) arrangements to provide that
governments can be a FOLR for :
o defunct institutions that have no parent institution to take responsibility,
and a state institution was not also responsible for the abuse; and
o non-defunct institutions that are unable to participate in the Scheme as
they are not able to meet their redress liabilities and obligations.
• Provide explicit authorisation for the Scheme Operator to publicly name
relevant institutions that have not joined the Scheme.
Human rights implications
The Bill does not introduce any limitations on human rights, but rather positively
engages several human rights conventions.
The Bill introduces a number of changes to the Scheme, which are survivor focussed.
The Review undertook consultations with survivors and other stakeholders and the
recommendations reflect these discussions.
This Bill engages the following rights:
• Convention on the Rights of the Child (CRC)
o article 39 - state supported recovery for child victims of neglect,
exploitation and abuse
• International Covenant on Civil and Political Right (ICCPR)
o article 2(3) - right to an effective remedy
The Scheme currently provides an effective remedy to people and supports the
recovery of people who have experienced institutional child sexual abuse by enabling
recognition of past abuse and providing access to redress, including a redress
payment, a direct personal response from the responsible institution and access to
counselling and psychological care services. This Bill further promotes these rights by
increasing survivor's ability to access redress and outcomes under the Scheme.
Funders of Last Resort
The Bill expands the Funder of Last Resort arrangements to allow state and territory
governments to be a Funder of Last Resort in a further two circumstances. These
circumstances are in addition to the existing Funder of Last Resort arrangements
provided for the in the Act.
Firstly, the Bill provides that a government can be a Funder of Last Resort for
institutions that are named in applications to the Scheme that no longer exist, there is
no overarching organisation to take responsibility for the institution, and a government
had no involvement in the abuse.
Secondly, the Bill provides that a government can also be a Funder of Last Resort for
an institution that is unable to meet the legislative requirements to participate in the
Scheme. An institution cannot participate in the Scheme unless there are reasonable
ground to expect it can discharge its redress liabilities.
Expanding Funder of Last Resort arrangements will ensure survivors naming these
institutions in their applications have an avenue to access redress under the Scheme.
Given the nature of the institutions involved, these applicants may not be able to
pursue civil litigation as an alternative to the Scheme.
Where an institution is still operating but is unable to join the Scheme, the Bill provides
the option for the institution to partly participate in the Scheme. Although unable to
fund their redress liability, partly participating institutions can provide a Direct Personal
Response; this could be in the form of an apology. This recognises that many
institutions want to do the right thing by survivors and do what they can to ensure a
survivor can access all three parts of redress available through the Scheme.
Expanding Funder of Last Resort arrangements is in response to recommendation 5.1
of the Review and is supported by states and territory governments.
The Commonwealth Government has agreed to a 50:50 cost-shared model with the
states and territories for any redress paid under the expanded Funder of Last Resort
categories. This demonstrates the Commonwealth Government's commitment to
increase access to redress for survivors of institutional child sexual abuse.
These arrangements will not expand FOLR arrangements to cover the costs of
providing redress to survivors for institutions that can join the Scheme but choose not
to. Institutions that can join the Scheme but choose not to will continued to be
encouraged to join the Scheme and take responsibility for past abuse, and will be
subject to financial consequences should they not join.
Public Naming Institutions that do not join the Scheme
Institutions named in applications to the Scheme that have not joined within a
reasonable timeframe are publicly named on the Scheme's website. Publicly naming
institutions provides survivors who have applied for redress, and those considering
applying for redress, with information on the institutions' participation in the Scheme
and is a lever to further encourage institutions to join the Scheme.
The Bill provides that institutions named in applications to the Scheme, or institutions
the Scheme Operator has a reasonable belief has a connection with the abuse of the
person, can be publicly named if they do not join.
This measure does not change the existing naming practice. It provides a stronger
and more administratively efficient basis to publicly name institutions, as well as
making it clear to institutions that they will be publicly named should they be able to
join the Scheme, but choose not to.
This measure will support increased institutional participation in the Scheme, which in
turn will allow more survivors to access redress and help survivors make informed
decisions.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human
rights and does not introduce any limitations on human rights.
[Circulated by the authority of the Minister for Families and Social Services,
Senator the Hon Anne Ruston]