7.1.1 Ministerial declarations
Declaration that an institution is participating in the Scheme
For an institution to participate in the Scheme, the Minister for Families and Social Services must make a declaration, by way of notifiable instrument. The Minister may also vary or revoke a declaration as required.
To make a declaration that an institution is a participating institution, the Minister must be satisfied that:
- for a State institution - the participating State has agreed by way of that state's referral Act or adoption Act to the institution participating in the Scheme
- for a Territory institution - the participating Territory has agreed to the institution participating in the scheme
- for a non-government institution (other than a defunct institution or unincorporated lone institution) - the institution has agreed to participate in the Scheme and is able to meet its liability and obligations under the Scheme
- for a defunct non-government institution, a participating institution has agreed to be the representative of the institution and is able to meet its liability and obligations under the Scheme
- for an unincorporated lone institution, it has agreed to participate, it has agreed to a person being a representative and that person has agreed to be the representative of the institution.
The Minister cannot make a declaration that an institution is a participating institution after:
- the second anniversary of the Scheme start day, 1 July 2020, or
- a later day (if permitted by the NRS Rules); unless the institution is a defunct institution.
If a state or territory has agreed to a State or Territory institution participating in the Scheme and the institution is a body corporate, then the institution is taken to have also agreed to participate in the scheme. A body corporate is a separate legal entity. It can also be referred to as association, company, government, government agency, corporation, corporate body or corporate entity.
Varying or revoking the declaration
The Minister may, by notifiable instrument, vary or revoke a declaration.
The Minister must not vary or revoke a declaration made in relation to an institution unless a request is made in writing by the relevant participating institution or jurisdiction to the variation or revocation.
Where it is requested, the Minister must vary or revoke the declaration as soon as practicable.
Variations and revocations made by the Minister are not subject to disallowance and therefore cannot be overturned through a motion moved in the Australian Parliament.
However, when the Minister makes a revocation, the institution will continue to be a participating institution for the purpose of any applications in progress before the declaration came into effect. This means that people who have previously applied for redress who are found eligible under the Scheme can access redress and the institution is still liable for the funding of redress and to provide a direct personal response if requested.