Commonwealth Consolidated Acts Commonwealth Consolidated ActsRequirement for the Operator to make a determination
(1) If a person makes an application for redress, the Operator must make a determination to approve, or not approve, the application as soon as practicable.
Determination to approve application
(2) If the Operator considers that there is a reasonable likelihood that the person is eligible for redress, then the Operator must:
(a) approve the application; and
(b) determine each participating institution that is responsible for the abuse (see section 15) and therefore liable for providing redress to the person under the scheme; and
(c) determine, in accordance with section 30:
(i) the amount of the redress payment for the person; and
(ii) the amount of each responsible institution's share of the costs of the redress payment; and
(iii) the amount of the Commonwealth's share of the costs of the redress payment; and
(d) determine, in accordance with section 31:
(i) the amount of the counselling and psychological component of redress for the person; and
(ii) the amount of each responsible institution's share of the costs of that component; and
(e) determine whether the counselling and psychological component of redress for the person consists of:
(i) access to the counselling and psychological services that are provided under the scheme; or
(ii) a counselling and psychological services payment; and
(f) if the counselling and psychological component of redress for the person consists of a counselling and psychological services payment--determine that the amount of the payment equals the amount of the counselling and psychological component of redress for the person; and
(g) for each responsible institution--determine the participating group (if any) of which the responsible institution is a member at that time; and
(h) for a participating institution that was identified in the application and is not covered by a determination under paragraph (b)--determine that the participating institution is not responsible for the abuse and therefore not liable for providing redress to the person under the scheme; and
(i) if:
(i) the Operator determines, in accordance with section 15, that a participating government institution is equally responsible with a defunct institution for the abuse; and
(ii) the defunct institution is listed for the participating jurisdiction that the participating government institution belongs to under section 164;
determine that the participating government institution is a funder of last resort for the defunct institution in relation to the abuse; and
(j) determine each of the following institutions that is responsible for the abuse (see section 15):
(i) 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;
(ii) a partly - participating institution (see section 164B);
(iii) an institution that is listed for a participating jurisdiction under section 164C;
(k) for each institution that is covered by a determination under paragraph (j)--determine:
(i) each participating jurisdiction that is an eligible funding jurisdiction for the institution in relation to the abuse (see section 164D); and
(ii) 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; and
(l) if the Operator determines under paragraph (k) that one or more funders of last resort are liable for providing redress to the person under the scheme--determine, in accordance with section 165A:
(i) the amount of each of those funders of last resort's (other than the Commonwealth's) share of the costs of the redress payment for the person; and
(ii) the amount of each of those funders of last resort's (other than the Commonwealth's) share of the costs of the counselling and psychological component of redress for the person; and
(iii) the amount of the Commonwealth's share of the costs of the counselling and psychological component of redress for the person (whether or not the Commonwealth is determined to be a funder of last resort under paragraph (k)); and
(m) for each institution:
(i) that was identified in the application; and
(ii) to which subparagraph (j)(i), (ii) or (iii) applies; and
(iii) that is not covered by a determination under paragraph (j) of this section;
determine that the institution is not responsible for the abuse.
Note 1: Subparagraph (c)(iii)--if the Operator determines under paragraph (k) that one or more funders of last resort are liable for providing redress to the person under the scheme, the amount of the Commonwealth's share of the costs of the redress payment for the person will be affected by section 165A.
Note 2: Paragraph (g)--if the Operator determines that a responsible institution is a member of a participating group, then all other members of the participating group at that time will be associates of the responsible institution, see subsection 133(3). To find the membership of a participating group at a particular time, see the declaration of the participating group under subsection 134(1) that is in force at that time.
Note 3: Paragraph (i)--only defunct institutions that are both non - government institutions and not participating institutions can be listed under section 164 (see subsection 164(1)).
Note 4: Paragraph (i)--if the Operator determines that one or more participating government institutions are a funder of last resort for a defunct institution under paragraph (i), then those participating government institutions will be liable to pay the defunct institution's (hypothetical) share of the costs of providing redress to the person (see section 165). Those costs are in addition to the participating government institution's own share of the costs for providing redress to the person.
Note 5: Paragraph (j)--only institutions that are both non - government institutions and not participating institutions can be listed under section 164A, 164B or 164C (see subsections 164A(1), 164B(1) and 164C(1)).
Note 6: Paragraphs (k) and (l)--if the Operator determines that one or more participating jurisdictions are a funder of last resort for an institution under paragraph (k), then those participating jurisdictions (and the Commonwealth) will be liable to pay the institution's (hypothetical) share of the costs of providing redress to the person (see section 165A).
Note 7: Paragraph (l)--the amount of the Commonwealth's share of the costs of the redress payment for the person is determined under subparagraph (c)(iii).
Note 8: For the funder of last resort provisions, see Part 6 - 2.
Determination not to approve application
(3) Otherwise, the Operator must make a determination not to approve the application.
Revoking a determination
(4) The rules may require or permit the Operator to revoke, under this subsection, a determination made under subsection (2) or (3).
Note: A provision of this Act may also require or permit the Operator to revoke a determination made under subsection (2) or (3) (see, for example, paragraph 71S(3)(d) and subsection 71S(4)).
(5) However, the Operator cannot revoke a determination made under subsection (2) if:
(a) the person has been given an offer of redress; and
(b) the person has accepted the offer in accordance with section 42.
(6) If the Operator revokes a determination made under subsection (2) or (3) (including under paragraph 71S(3)(d) or subsection 71S(4)), then:
(a) every determination made under subsection (2) or (3) is taken never to have been made; and
(b) if the person has been given an offer of redress but has not accepted or declined the offer--the offer is taken to be withdrawn; and
(c) if the person has made an application for review of the determination--the review application is taken to be withdrawn; and
(d) the Operator may make further requests under section 24 or 25 for information relating to the person's application.
(7) The Operator must give a written notice to:
(a) the person; and
(b) each participating institution, participating jurisdiction or representative for a participating group that was notified under section 35 or 35A of the determination;
notifying them of the following:
(c) that the determination has been revoked;
(d) that the determination is taken never to have been made;
(e) if an offer of redress has been withdrawn under paragraph (6)(b)--that fact;
(f) if an application for review of the determination has been withdrawn under paragraph (6)(c)--that fact;
(g) any other matter prescribed by the rules.