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.

7.7.2 Automatic deeming an institution not responsible

Summary

In some circumstances, the Scheme Operator must deem a participating institution as not responsible for the abuse.

Court awarded damages

Under the scheme, a person will not receive redress for a participating institution that is not responsible for abuse. A participating institution that has been ordered by a court to pay compensation or damages to the person for the abuse is deemed as not responsible.

The Scheme Operator must deem a participating institution as not responsible where:

  • a court makes an order (except a consent order) that a participating institution (the defendant institution) must pay compensation or damages for the abuse of a person to

    • said person, or
    • a group which includes the person, such as a class action
  • 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 a participating institution is deemed as not responsible, a special calculation is used to work out the person's redress payment (5.1.1).

Minor links between government & the institution in which the abuse occurred

A government authority (an authority of the Commonwealth, a state or a territory) can be deemed as not responsible for abuse 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) if

    • the abuse occurred while another institution was responsible for the day-to-day care or custody of the person or was the legal guardian of the person
    • the abuse was carried out by a person who was an official of another institution at the time of abuse, or
    • occurred
      • on the premises of another institution
      • where the activities of another institution took place, or
      • in connection with the activities of another institution, and
  • the only connection between the government authority and the abuse is one or more of the following
    • the government authority regulated the other institution or an activity of the other institution
    • the government authority funded the other institution or an activity of the other institution
    • the other institution was established by, or under the law of the Commonwealth, a State or a Territory that the authority 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 authority, 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 authority).

Note: The government authority 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 authority and the abuse (including any of the circumstances outlines in subclause 15(4) of the Act).

Act reference: NRSAct Part 2-2 Entitlement to redress under the scheme, section 15 When is an institution responsible for abuse?

NRS Rules Part 3 Responsibility of institutions

Policy reference: Redress Guide 7.7 Determining when an institution is responsible

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