7.7.1 Automatic deeming an institution responsible

When can an institution be deemed as a responsible institution?

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

Government had parental responsibility & placed child

The Scheme must deem a participating government institution equally responsible 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 that the above arrangement had effect, the only persons or institutions with parental responsibility for the child were the non-government institution, a person who had such responsibility under an order of a court, and the participating government institution, and/or 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 ensures that government institutions are equally responsible in the above circumstances, even where the relevant non-government institution would ordinarily be primarily responsible for the abuse of the person. This means that the relevant non-government institution will also be equally responsible and recognises the governments' unique role in the care and placement of children, and notably includes where children were wards of the state.

Note: Commonwealth government institutions also capture Commonwealth responsibility for children in the territories, prior to those territories' self-government. It does not cover circumstances where a person was an unaccompanied child migrant.

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 the Department of 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 ensures that participating Commonwealth defence institutions are equally responsible in the above circumstances, even where another institution or institutions would ordinarily be primarily or equally responsible for the abuse of the person. The means that the relevant other institution/s will also be equally responsible and recognises the association of the cadet 'brand' with the Commonwealth, regardless of the actual level of involvement between Commonwealth defence institutions and relevant cadet units.

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, such as a non-government institution) for the abuse of a person where as a child:

• the person arrived in Australia before 1984
• 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 1 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 (e.g. 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, where applicable. This does not override any other institution that might be found responsible by the Scheme, for example, a non-government institution where the person was placed as a child migrant and abused. However, if that institution was to be primarily responsible, they would now be equally responsible with the relevant government institution/s.

Note: Please refer to the Method Statement and NRS Rules about sharing liability of the redress payment.