7.7.2 Automatic deeming an institution not responsible
There are some circumstances where the Scheme must deem a participating institution as not responsible, these circumstances are described below.
Court awarded damages
When a participating institution has been ordered by a court to pay compensation or damages for the abuse it is not responsible under the Scheme. This means that a person will not receive redress from the participating institution in such circumstances.
The Scheme will deem an institution as not responsible where:
- a court makes an order (except a consent order) that a participating institution (the defendant institution) pay compensation or damages for abuse of a person to the person or a group (i.e. a class action) that includes the person
- the order is not set aside on appeal, and
- if the order is that the defendant institution pay the group - the person does not choose not to accept the person's share of the payment to the group.
Where this circumstance occurs, a special Method Statement process is used to work out a person's redress payment (see 4.1.1).
Minor links between government & abuse
The Scheme will also deem a government institution (an authority of the Commonwealth, a state or a territory) as not responsible for the abuse of a person where:
- another institution (referred to as the 'other institution' for the purposes of this guidance) satisfies one or more of relevant circumstances (and is therefore likely to be responsible for the abuse of a person), and
- the only connection between the government institution and the abuse is one or more of the following:
- the government institution regulated the other institution or an activity of the other institution
- the government institution funded the other institution or an activity of the other institution
- the other institution was established by or under the law of the jurisdiction that the government institution belongs to.
This ensures that minor/incidental connections between a government institution and an instance of abuse do not result in a finding of responsibility for the government institution, as it would be more appropriate for the 'other institution' to be primarily responsible (or equally responsible with another institution that is not the government institution).
Note: The government institution can be found responsible if it had a minor or incidental connection to the other institution (such as providing funding to it), but there was also another connection between the government institution and the abuse.