The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

7.7.1 Automatic deeming an institution responsible

When can an institution be deemed as a responsible institution?

Despite the normal responsibility provisions, there are some circumstances where an institution must be deemed as responsible under the Scheme. These are described below.

Government had parental responsibility & placed child

The Scheme must deem a participating government institution equally responsible with a non-government institution where:

  • the participating government institution made an arrangement with the non-government institution for that institution to have responsibility for the day-to-day care of the child
  • at the time of the abuse, either
    • the participating government institution had parental responsibility for the child because of an order of a court (whether or not another institution or person also had parental responsibility for the child), or
    • the child was a ward of the relevant jurisdiction, and
  • at the same time, the only persons or institutions with parental responsibility for the child were one or more of the following
    • the non-government institution
    • a person who had such responsibility under an order of a court
    • the participating government institution
    • the jurisdiction that the participating government institution belongs to
  • the abuse of the child occurred while they were in the care of the non-government institution, and not in the care of another institution.

This means that government institutions are equally responsible in the above circumstances, even where a non-government institution would otherwise be primarily responsible for the abuse of the person. This recognises the governments' role in the care and placement of children, including wards of the state.

Defence cadets cases

The Scheme must deem a Commonwealth defence institution equally responsible with another institution for the abuse of a person if that person was a cadet. This will apply where:

  • the abuse occurred on or after 1 January 1977
  • the abuse was connected with the person's membership of a unit of a cadet force provided for by Commonwealth legislation
  • the unit was associated with an institution (except a Commonwealth institution that deals with defence), and
  • another institution or institutions (not the Commonwealth defence institution) would ordinarily be primarily or equally responsible for the abuse of the person.

This means that participating Commonwealth defence institutions are equally responsible in the above circumstances, even where another institution or institutions would otherwise be primarily or equally responsible for the abuse of the person. The other institution/s will also be equally responsible. This recognises the association of the cadet 'brand' with the Commonwealth.

Note: The reference to 'Commonwealth legislation' is intended to capture all historical legislation which provided for cadet forces.

Child migrants

This Scheme must also deem a relevant Commonwealth institution and a participating State or Territory institution equally responsible, potentially with another institution, for the abuse of a person where:

  • the person arrived in Australia before 1984 as a child
  • the person arrived in Australia from the United Kingdom or Malta and was sent by an institution without any other members of the person's family in Australia (except one or more children)
  • the person was sent to Australia under a scheme carried out under the Empire Settlement Act 1922 or became a ward under the National Security (Overseas Children) Regulations or the Immigration (Guardianship of Children) Act 1946
  • the person became a ward of a state or territory, and
  • the abuse occurred while the person was a ward of the state or territory (for example, in a non-government institution or a state or territory institution).

This recognises an agreement between the Commonwealth and states and territories to be equally responsible for the abuse of unaccompanied child migrants. Other institutions may also be found responsible, for example, a non-government institution where the person was placed as a child migrant and abused. However, if that institution would otherwise have been primarily responsible, they are instead equally responsible with the relevant government institutions.

Act reference: NRS Rules Part 3 Responsibility of institutions

Policy reference: Redress Guide 7.7 Determining when an institution is responsible, 7.7.2 Automatic deeming an institution not responsible, 5.1.1 Redress payment - method statement

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