7.1 Participating institutions
For a person to be eligible for redress, at least 1 participating institution must be responsible for the sexual abuse (and if applicable, related non-sexual abuse) of that person. That is, the abuse occurred in circumstances where an institution that is participating in the Scheme is primarily or equally responsible for the abuse.
What is a participating institution?
For the purposes of the Scheme, a participating institution includes any of the following:
- a Commonwealth institution
- a participating State institution, where the state responsible for the institution has agreed to participate in the Scheme
- a participating Territory institution
- a participating non-government institution, which has voluntarily agreed to participate in the Scheme.
What if an institution has not joined the Scheme?
If an institution has not joined the Scheme they are not a participating institution. However, this will not prevent a person from applying for redress. Although, a person's application cannot be assessed until the relevant institution/s has joined the Scheme. The Scheme will contact the person to inform them of their options to either withdraw or place their application on hold.
Institutions are able to join the Scheme within the first 2 years of its commencement. This means that institutions can join the Scheme up to and including 30 June 2020 (the second anniversary date). The Minister for Families and Social Services may also provide an extension to this period to allow an institution to join the Scheme.
The Scheme will encourage and enable institutions to join the Scheme, and will work closely with participating institutions to take responsibility for applicable defunct institutions (either as a representative, or as a funder of last resort).
If an institution no longer exists (defunct government or defunct non-government institution), the Scheme may:
- undertake research on the named institution, and
- investigate if another participating institution will agree to be its representative, or
- provide advice that a Commonwealth, state or territory government is likely to be equally responsible and therefore is able to provide redress as the funder of last resort on behalf of the institution.
Declarations of participating institutions are available from the Federal Register of Legislation. A list of institutions covered by the Scheme is also available from nationalredress.gov.au. The Scheme's online list is not exhaustive and is subject to change.
How do institutions join the Scheme?
To join the Scheme, the Minister must be satisfied the institution agrees to join the Scheme and is able to meet its liabilities and obligations required by the Scheme. The Minister must then declare in writing, by way of notifiable instrument, that the institution is a participating institution.
An institution is participating in the Scheme from the date the relevant notifiable instrument commences on the Federal Register of Legislation, following the Minister's declaration. Declarations must not be made after the second anniversary of the Scheme's commencement, unless the institution no longer exists.
Declarations made by the Minister are not subject to disallowance and therefore cannot be overturned through a motion moved in the Australian Parliament.
The Minister does not need to make declarations for Commonwealth institutions because they are automatically included in the Scheme.
What are the requirements for institutions to join the scheme?
There are certain steps that need to be completed by institutions (or groups of institutions) before being declared as participating in the Scheme.
Each State, Territory or non-government institution will need to:
- agree in writing that they will join the Scheme, and
- provide assurance to the Commonwealth that they can meet their financial liabilities and direct personal response obligations as required by the Scheme and it is reasonably likely they can do so for the duration of the Scheme.
In addition to the points above, for non-government institutions that are also forming a participating group when joining the Scheme, all proposed members of a participating group, and the proposed representative for the group, must agree to the group arrangement in writing.
When joining the Scheme, there are limits on who can be a representative, to prevent there being multiple different representatives with powers, functions, duties, or other responsibilities, relating to a particular institution. For example, it is not possible for a representative of a lone institution to itself have a representative through a participating group arrangement.
How does a participating institution leave the Scheme?
A participating institution may exit the Scheme by writing to the Minister requesting that the declaration to participate in the Scheme is revoked.
As soon as practicable, the Minister must revoke the declaration, by notifiable instrument, where the request is made by a:
- participating State
- participating Territory, or
- participating non-government institution (other than a defunct institution).
Revocations made by the Minister are not subject to disallowance and therefore cannot be overturned through a motion moved in the Australian Parliament.
When a revocation is made by the Minister for an institution, the institution will continue to be a participating institution for the purpose of any applications in progress before the revocation declaration came into effect. This means that people applying 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.
Act reference: NRSAct Part 5-1 Participating institutions, Part 5-2 Groups of institutions participating in the scheme
NRS Rules Part 12 Participating institutions and participating groups
Legislation Act 2003 section 42 Disallowance of legislative instruments