Introductory Info
Date introduced: 26 August 2021
House: House of Representatives
Portfolio: Indigenous Australians
Commencement: The Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 will commence on the earlier of a day fixed by Proclamation (expected to be 1 March 2022 to coincide with the date the proposed Territories Redress Scheme is scheduled to open), or twelve months after Royal Assent.
Commencement
Part 1 of Schedule 1 of the Territories Stolen Generations
Redress Scheme (Consequential Amendments) Bill 2021 (amendment of the Income
Tax Assessment Act 1997) will commence on the first 1 January, 1 April, 1
July or 1 October to occur after the day the Act receives Royal Assent. Part 2
of Schedule 1 of the Territories Stolen Generations Redress Scheme
(Consequential Amendments) Bill 2021 (amendments to other Acts) will commence
at the same time as the Territories Stolen Generations Redress Scheme
(Facilitation) Act 2021.
Purpose of
the Bills
This Bills Digest relates to two Bills comprising:
The Bills relate to a proposed redress scheme for survivors
of the Stolen Generations in the Northern Territory, the Australian Capital
Territory and the Jervis Bay Territory. Under the proposed Territories Stolen
Generations Redress Scheme (the Territories Redress Scheme) the Government has
committed to the provision of a one-off payment of $75,000 to survivors as well
as a one-off healing payment of $7,000.[1]
The Bills do not establish the Territories Redress Scheme
itself or provide for the authority for the above payments to be provided to
eligible applicants. In its submission on the inquiry into these Bills, the National
Indigenous Australians Agency (NIAA) advised that the Territories Redress Scheme
will be largely administrative.[2]
It is not clear whether the payments will be made pursuant to subordinate
legislation made under the Facilitation Bill or other legislation yet to be
introduced. The NIAA, however, has stated that it intends that expenditure for
the scheme will be authorised through amendments to the Financial Framework
(Supplementary Powers) Regulations 1997.[3]
The purpose of the Facilitation Bill is, instead, largely
to protect any payments made to survivors under the Territories Redress Scheme.
This includes by ensuring that other payments and benefits that may be payable
to survivors under a law of the Commonwealth will be unaffected and by ensuring
that the right to payment cannot be transferred to another person.
The purpose of the Consequential Amendments Bill is to
amend the Income
Tax Assessment Act 1997, the Bankruptcy Act 1966,
the Social
Security Act 1991, the Social Security
(Administration) Act 1999 and the Veterans’
Entitlements Act 1986 to ensure eligible applicants under the
Territories Redress Scheme are not adversely affected in relation to other
benefits as well as to enable the implementation of the scheme.
Background
On 26 May 1997, Bringing
them Home: Report of the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from Their Families[4]
(the Inquiry) was tabled in Parliament.
The key findings of the Inquiry were:
nationally, between one in three and one in ten Indigenous
children were forcibly removed from their families and communities between 1910
and 1970
Indigenous children were placed in institutions, church
missions, adopted or fostered and were at risk of physical and sexual abuse.
Many never received wages for their labour
welfare officials failed in their duty to protect Indigenous
wards from abuse
under international law, from approximately 1946 the policies
of forcible removal amount to genocide; and from 1950 the continuation of
distinct laws for Indigenous children was racially discriminatory and
the removal of Indigenous children continues today.
Indigenous children are six times more likely to be removed for child welfare
reasons and 21 times more likely to be removed for juvenile detention reasons
than non-Indigenous children.[5]
The Inquiry made 54 recommendations. A key recommendation was
that reparation be made to Indigenous people affected by policies of forced
removal. Reparation should include:
-
an acknowledgement of responsibility and apology from all
Australian parliaments, police forces, churches and other non-government
agencies which implemented policies of forcible removal
- guarantees
against repetition
- restitution
and rehabilitation and
- monetary
compensation.[6]
The Howard Government (in office when the Bringing them
Home report was tabled) opposed both an apology and a direct compensation
scheme on a number of grounds, including that the current generation should not
accept responsibility for the actions of previous generations, that previous
generations had believed their actions to be lawful and in the best interests
of children, and that an apology might expose the government to legal
liability.[7]
Instead, the Government response took the form of a $63 million
package emphasising ‘practical assistance’ for those separated from their
families, including making records more accessible, family support programs, link-up
services for family reunion, support for language and cultural maintenance,
counselling, and emotional and social wellbeing.[8]
While welcomed, this package was overshadowed in public debate by the refusal
to apologise or pay reparations.[9]
In November 2000 the Senate Legal and Constitutional
References Committee tabled Healing:
A Legacy of Generations,[10]
an inquiry into Federal government implementation of the recommendations of Bringing
Them Home, which again called for an apology and a national reparations
tribunal.[11]
The government response extended the assistance package by $53.9 million
over four years, but rejected a reparations tribunal on the grounds that it
would duplicate the court system and responsibility primarily rested with
States, territories and non-government bodies.[12]
The government response supported in principle the recommendation to fulfil the
Bringing them Home recommendation relating to an apology.[13]
After the 2007 election, then Prime Minister Kevin Rudd
delivered the National Apology to Australia’s Indigenous Peoples, especially
the Stolen Generations, on 13 February 2008.[14]
The new leader of the Opposition, Brendan Nelson, reversed Coalition policy and
delivered an apology in his address, supporting Prime Minister Rudd’s motion of
Apology.[15]
In the Senate, the Australian Greens attempted to move an amendment committing
to compensation but this was opposed by both Labor and the Coalition.[16]
The Indigenous Healing Foundation was announced on the
first anniversary of the National Apology, ‘to address trauma and healing in
Indigenous communities, with a strong focus on the unique needs of Stolen
Generations.’[17]
Following a period of national consultation with Aboriginal and Torres Strait
Islander people on the role and structure of the foundation, the Healing
Foundation was established on 30 October 2009.[18]
Since its establishment, the Healing Foundation has advocated for the distinct
healing needs of the Stolen Generations, including promoting trauma-aware,
healing-informed research and practice. It has supported many locally-run healing
projects, and built a body of evidence relating to trauma and its impact on
social and health issues in Aboriginal and Torres Strait Islander communities.[19]
Compensation
and redress schemes
State
schemes
All states have established reparation or redress funds accessible
by survivors of the Stolen Generations, with Tasmania establishing the first
scheme (in 2006) and Victoria’s scheme announced last year.[20]
It should be noted that Western Australia and Queensland’s
redress schemes (now closed) covered all children who suffered in state care,
not just members of the Stolen Generations.[21]
The lack of a separate compensation scheme in these states has been criticised
in the context of the introduction of the two Bills.
At the joint press conference announcing the Territories
Stolen Generations Redress Scheme, Pat Turner, Co-Chair of the Coalition
of Peaks, reportedly commented on the situation in Queensland and Western Australia:
I’m quite happy to say to the WA government and the
Queensland government: time’s up for redress of the Stolen Generations. You
have to follow the other jurisdictions throughout Australia. It's high time
that you did the right thing.[22]
In Western Australia, a third of the surviving Aboriginal
and Torres Strait Islander population born before 1972 were removed as
children, while in Queensland the ratio is around one in six.[23]
In response to Pat Turner, a statement by Queensland's
Minister for Aboriginal and Torres Strait Islander Partnerships, Craig Crawford,
reportedly said the state government would closely consider making new
announcements and noted the Queensland Government had announced a $300 million
Path to Treaty Fund that includes more than $250 million for stolen wages
reparations while WA's Minister for Aboriginal Affairs, Stephen Dawson, reportedly
said ‘conversations were continuing with key Aboriginal organisations who work
in this policy area.’[24]
Details of current and previous state schemes, including
information (where available) about the number of participants, costs,
eligibility requirements, and whether there were any posthumous grants is at
Appendix A to this Bills Digest.
The National
Redress Scheme for Survivors of Institutional Child Sexual Abuse
The National Redress Scheme for Survivors of Institutional
Child Sexual Abuse (the National Redress Scheme) was established in 2018 in
response to recommendations by the Royal Commission into Institutional
Responses to Child Sexual Abuse.
This scheme provides redress to eligible survivors of
institutional child sexual abuse, comprising three components:
- a
monetary payment of up to $150,000
-
access to counselling and psychological services under the scheme
or a payment to access counselling and psychological services of up to $5,000
(depending on location) and
- a
direct personal response from the responsible institution(s) (if requested by
the survivor).[25]
To be eligible for redress, applicants need to meet a
number of criteria. The Operator of the scheme (the Secretary of the Department
of Social Services) must determine there was a reasonable likelihood the
applicant was the victim of sexual abuse and one or more participating
institutions are responsible for the abuse. The applicant must have been a
child at the time of the sexual abuse, an Australian citizen or resident, and
the abuse must have occurred prior to the scheme start date (1 July 2018).
Applicants can only make one application and must waive their rights to take
civil action against responsible institutions and officials (but not the
abuser) in order to receive redress.[26]
The scheme will be in operation for ten years, accepting applications
any time before 30 June 2027.[27]
The ACT and
Jervis Bay
According to the Bringing Them Home report, ‘[a]fter
the Australian Capital Territory was established in 1911 the [Aborigines
Protection] Board compelled all Aboriginal people in the Territory … to move to
the Egerton Mission Station at Yass … The few Aboriginal children who lived in
the ACT came under the control of the NSW Protection Board’[28]
and ‘[u]nder arrangements with the Commonwealth Government the NSW Board also
placed Aboriginal children from the ACT who had been removed from their
families under the Neglected Children and Juvenile Offenders Act 1905
(NSW)’[29]
and ‘[f]rom 1915 the legislation applying in the ACT has also applied to Jervis
Bay’.[30]
The NSW
Stolen Generations Reparations Scheme is open to persons who were removed by,
committed to or otherwise came to be in the care of the Board up until the Aborigines
Protection Act 1909 was repealed on 2 June 1969 without regard to
whether the person is currently or was previously a resident of NSW.[31]
This means that many survivors of the Stolen Generations from the ACT and
Jervis Bay would be eligible for reparations under this scheme.
The Northern
Territory
There is currently no compensation or redress scheme for
Stolen Generations members in the Northern Territory.
On 28 April 2021, Shine Lawyers announced that they had launched
legal action on behalf of the Stolen Generations of the Northern Territory who were
forcibly removed from their families as children, estimating that around 4,000
to 6,000 Northern Territory members of the Stolen Generations are eligible to
register for the class action.[32]
In 2014, after the extent of past abuse of Aboriginal
children at the Retta Dixon Children’s Home in Darwin was revealed by the Royal
Commission into Institutional Child Sexual Abuse, a case was brought against
the Commonwealth and others by 71 Aboriginal survivors of the Home which
claimed compensation for abuse, rather than removal per se. In 2017, after
extended mediation, the Commonwealth agreed to pay compensation to survivors of
the Home. The amount paid was not revealed but it was described as a ‘positive
outcome’ for the survivors.[33]
In the 1990s there were two legal cases which attempted to
establish Commonwealth liability for members of the Stolen Generations in the
Northern Territory and the illegality of the policy—Kruger v Commonwealth[34] and Cubillo
and Gunner v Commonwealth.[35]
Both cases were unsuccessful.
Lead up to
the announcement of the Territories Stolen Generations Redress Scheme
On 2 June 2021, the CEO of the Healing Foundation, Fiona
Cornforth, launched two publications that present demographic data about where
and how Stolen Generations survivors and their families live:
In its media release, the Healing Foundation drew
attention to the ‘gap within the gap’ of health and socio-economic disparities
between the survivors of the Stolen Generations and Indigenous Australians who
were not removed from their families.[38]
Of particular note is the substantial increase in the estimated
number of survivors in the past four years,[39]
and the fact that all survivors will, by next year, be eligible for aged care:
The AIHW [Australian Institute of Health and Welfare] has
estimated that the number of Stolen Generations survivors has more than doubled
- from 17,150 in 2014-15 to 33,600 in 2018-19," Ms Cornforth said.
"This dramatic increase points to an urgent need for
policy responses from all Australian governments, especially in the areas of
health, mental health, aged care, disability, welfare, and wellbeing.
One of the more significant findings is that all Stolen
Generations survivors will by next year be eligible for aged care.[40]
Further, there are approximately another 129,200
Aboriginal and Torres Strait Islander adults aged 18 and over who were
descendants of relatives removed in the past (but who are not themselves part
of the estimated total Stolen Generations population of 33,600).[41]
The media release notes:
In some jurisdictions - Victoria, South Australia, Western
Australia, and the ACT - between 40 per cent and 60 per cent of Aboriginal and
Torres Strait Islander adults are descended from Stolen Generations survivors.
"Intergenerational trauma is real, and the AIHW has
provided clear evidence," Ms Cornforth said.[42]
Making Healing Happen sets out a plan with
recommendations to achieve ‘real and lasting healing’ for Stolen Generations
survivors, their families and communities, comprising four urgent actions through
seven priorities. In particular:
Priority 2 is that ‘The Australian Government urgently
addresses reparations for Stolen Generations survivors removed in Commonwealth
territories (Northern Territory, ACT, Jervis Bay).’[43]
The
Territories Stolen Generations Redress Scheme
The Territories Stolen Generations Redress Scheme was
announced on 5 August 2021, with the Government committing $378.6 million ‘for
a financial and wellbeing redress scheme for living Stolen Generations members
who were removed as children from their families in the Northern Territory and
the Australian Capital Territory prior to their respective self-government and
the Jervis Bay Territory.’[44]
These funds were not listed as a 2021–22 Budget measure, however the Budget
included ‘$3,815.5 million in spending ‘decisions taken but not yet
announced’ across all portfolios, creating potential fiscal scope for future
announcements.’[45]
The media release announcing the scheme described the
provisions for eligible applicants as:
-
A one-off payment of $75,000 in recognition of the harm caused by forced
removal.
-
A one-off healing assistance payment of $7,000 in recognition that the
action to facilitate healing will be specific to each individual.
-
The opportunity, if they choose, for each survivor to confidentially
tell their story about the impact of their removal to a senior official within
government, have it acknowledged and receive a face-to-face or written apology
for their removal and resulting trauma.[46]
Eligible recipients are:
-
Aboriginal and/or Torres Strait Islander people,
-
under the age of 18 years at the time they were removed from their
family by government bodies (including the police), churches/missions and/or
welfare bodies, and in circumstances where their Indigeneity was a factor in
their removal, and
-
removed whilst living in the Northern Territory or in the Australian
Capital Territory prior to their respective self-government or the Jervis Bay
Territory.[47]
The media release noted the scheme will be open for
applications from 1 March 2022 and will run until June 2026.[48]
The National Indigenous Australians Agency (NIAA) will be responsible
for the implementation and administration of the scheme.[49]
The NIAA’s submission to the Senate Standing Committees on
Finance and Public Administration inquiry into these Bills states that ‘[t]he
Scheme will be largely administrative,
with some limited legislation.’[50]
The submission goes on to say:
The Scheme is modelled on the NSW Scheme which is also
administratively based. This model was chosen as it:
-
has the minimum of complexity regarding regulation which allows it to be
more flexible and able to be changed to benefit applicants, where necessary
-
reduces the administration and time to establish the Scheme (ie, the
need to draft and pass substantial legislation)
-
allows a streamlined application process to enable applications to be
processed quickly.[51]
Committee
consideration
Finance and
Public Administration Legislation Committee
The Bill was referred to the Finance and Public
Administration Legislation Committee (the Committee) for inquiry. The Committee
published its final report on
14 October 2021, recommending that the Bill be passed.[52]
Of note in the report:
The committee encourages the NIAA to ensure that it explains
particular mechanisms of the bill (for example, relating to the treatment of
redress payments in determining the value of assets) in clear, practical terms
to avoid unnecessary distress or confusion for the Stolen Generations community.
The committee acknowledges the evidence from submitters in
regard to broader elements of the scheme, including the amount of the redress
payments, the timeframe of the scheme's operation, the support services on offer,
and matters relating to eligibility of participants and accessibility of the
application process.
Given that the bills under inquiry do not address such
details of the scheme, the committee considers it appropriate to refrain from commenting
directly on these matters.
However, the committee strongly encourages the NIAA as the
administering agency to take submitter feedback into consideration in the
roll-out of the scheme.
It is reassured by evidence indicating that the NIAA will continue
to consult closely with the Healing Foundation and other stakeholders, in
particular members of the Stolen Generations.
In summary, the committee is satisfied that the measures
provided in the bills will effectively facilitate the operation and implementation
of certain aspects of the scheme, and allow the scheme to achieve its goals.
The committee is of the view that the bills support the
survivor-focused and trauma-informed approach of the scheme, and that the
resulting operation of the scheme will positively impact the health and
wellbeing of Stolen Generations survivors, their families and communities.
Additional
comments
Both Labor and the Greens made additional comments on the
Bill, with Labor recommending ‘that the Senate support the bills as soon as
practicable.’[53]
The Greens made 8 recommendations.[54]
Issues raised in Labor’s additional comments include:
- concerns
about the use of delegated legislation for the Territories Redress Scheme, and
more generally, (further discussed below in Key issues and provision)[55]
- specific
matters relating to the establishment and operation of the Territories Redress
Scheme (noting that these matters do not relate to the Bills under
consideration), including opening the scheme up to families of deceased members
of the Stolen Generations[56]
and
- seeking
further advice from the government on two matters relating to the Bills:
- whether
redress payments will be included in assets tests for pensions and payments (further
discussed below in Key issues and provision)[57]
and
- whether
applicants will be able to choose the support they receive, and that
protections from exploitative practices will be put in place.[58]
Issues raised in the Greens’ additional comments include:
- seeking
a substantial increase of the amount of redress to be offered (from $75,000 to
at least $200,000)[59]
- concerns
about the use of delegated legislation for the establishment and operation of
the scheme[60]
- ensuring
the scheme is accessible for family of deceased members of the Stolen Generations[61]
- ensuring
that redress payments are not included in assets tests for pensions and
payments (further discussed below in Key issues and provision).[62]
Five organisations made submissions to the Committee.
These are discussed below under ‘Position of major interest groups’.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
no comment on the Bills.[63]
Policy position of non-government
parties/independents
Non-government parties and independents do not appear to
have commented on the specifics of the Bill at the time of writing.
The Australian Labor Party, the Australian Greens, and
independent MP Zali Steggall made comments on the Territories Redress Scheme at
the time of its announcement. The comments below were made prior to the Bills
being tabled in Parliament.
On 5 August 2021, Shadow Minister for Indigenous
Australians, Linda Burney, welcomed the funding in the Government’s announcement
for a Territories Stolen Generations Redress Scheme, noting that Labor had
offered a reparations package at the last election and again in May this year.[64]
However, Ms Burney expressed concern that the announced
scheme is only for surviving members of the Stolen Generations, not family
members of those who have already passed away. Additionally, she commented that
it is not known how the Territories Redress Scheme might impact on the class
action[65]
launched earlier this year in the Northern Territory, including whether and how
many people might withdraw from that case.[66]
On 6 August 2021, the National Indigenous Times
reported that Australian Greens Senator Lidia Thorpe ‘accused the Government of
“throwing crumbs and calling it a victory … This Government needs to be
realistic about how effective this money will be towards healing. How much of
this compensation is going to have to be spent on mental health services
treating transgenerational trauma, that the Australian governments [sic] caused?”’[67]
On 25 May 2021, Senator Thorpe proposed a national compensation scheme for
Stolen Generation survivors. The proposed scheme would provide each survivor
with a $200,000 compensation payment and an additional $7,000 payment for
funeral expenses, as well as a package to support the emotional and mental
health needs of survivors and their families.[68]
On 5 August 2021, in responding to the release of the
Commonwealth’s Closing the Gap Implementation Plan, Zali Steggall ‘particularly
welcomed’ the Territories Redress Scheme and commented that ‘[t]here is a lot
of work to do and I don’t doubt that more funding and effort will be required’.[69]
Position of major interest groups
Five submissions were received by the Senate Committee
inquiry into the Bills; matters raised that relate to the Bills are discussed
below. At the time of writing, no other public commentary on the specifics of
the Bills (which deal with only a small aspect of the Territories Redress
Scheme) were identified. There has been public commentary on the broader Territories
Redress Scheme. As this Scheme is proposed to be largely administrative, much
of this commentary is not relevant to the Bills as they stand. The concerns are
discussed briefly below.
The Healing
Foundation
The Healing Foundation report Make Healing Happen:
it's Time to Act (launched on 2 June 2021) set out four urgent actions
through seven priorities, including:
Priority 2: The Australian Government urgently addresses
reparations for Stolen Generations survivors removed in Commonwealth
territories (Northern Territory, ACT, Jervis Bay).[70]
On 5 August 2021, the day of the launch of the
Commonwealth’s Closing the Gap Implementation Plan, the CEO for the Healing
Foundation, Fiona Cornforth, welcomed the Government’s announcement for a
Territories Stolen Generations Redress Scheme, saying that ‘reparations for
children who were forcibly removed from their families in
Commonwealth-controlled territories – the ACT, Norther Territory, and Jervis
Bay – are long overdue’.[71]
Ms Cornforth also highlighted the importance of
reparations processes being ‘embedded in a trauma-aware, healing informed
(TAHI) framework’ so that trauma is not re-triggered for survivors and their
representatives. She also drew attention to the ‘significantly greater and more
complex burden of disadvantage’ borne by Stolen Generations survivors and
descendants, commenting that ‘it is essential that redress schemes include
investments in collective healing such as healing programs, reunions, and
return to country.’[72]
The Healing Foundation did not provide a submission to the
inquiry into the Bills.
Shine
Lawyers (Northern Territory Stolen Generations Class Action)
Shine Lawyers provided a submission to the inquiry into
the Bills.[73]
The submission does not comment on the Bills specifically, but comment on more
general matters include:
- Shine
Lawyers supports the redress scheme[74]
-
the need for a general payment on behalf of victims of the Stolen
Generations who have passed away[75]
-
advice that 349 people involved in the class action have contacted
Shine Lawyers with concerns about the Territories Redress Scheme—these concerns
include the perceived dishonour around the exclusion of deceased family members
from accessing the scheme, and concerns over the process to apply for redress
under the scheme[76]
and
-
recommending that the scheme use an outreach program to address
access issues including dispersed clients, lack of internet or communications,
low literacy levels and the need to speak directly to people.[77]
Australian
Human Rights Commission
The Australian Human Rights Commission (AHCR)[78]
welcomed the Bills, particularly:
… that the redress payment will not ‘affect a participant’s
access to, or eligibility for, any pensions, payments, benefits or services
(however described) provided by the Commonwealth or require the repayment of an
amount to the Commonwealth’, and that the payment ‘is absolutely inalienable,
whether by way of, or in consequence of, sale, assignment, charge, execution,
bankruptcy or otherwise’. The Commission also welcomes clarifications that
payments made under the Scheme will not affect payments from the National
Redress Scheme or vice versa. This approach is consistent with these payments
operating as a standalone redress measure, without qualifications.[79]
The Commission also provided some ‘high-level comments to
guide the design of regulations and the implementation of the Scheme’ including
that ‘the regulations should not exclude any sub‑category of individual
affected by child removal policies, such as prisoners.’[80]
Law Council
of Australia
The Law Council of Australia (LCA)[81]welcomed
the announcement of the scheme.[82]
However the LCA did note concerns:
… that redress payments may be included for the purposes of
determining the value of a person’s assets under the range of legislation set
out under subsection 4(3) of the Facilitation Bill.
As a general principle … [the LCA] considers that it is
inappropriate for redress payments to be assessed as part of an assets test.
This is because the purpose of a redress payment is to recognise the harm of
forced removal and facilitate healing, which ought to be a standalone purpose
and not impede the assessment of a person’s eligibility for other types of
government payments or assistance.[83]
The LCA recommended that the Committee seek further advice
from the Government on this issue.[84]
The LCA offered no proposals for amendments to the
Consequential Amendments Bill.
Additionally, the LCA raised the following issues relating
to the proposed scheme (not specific to the Bills):
-
concerns around the inconsistencies in payments between redress
schemes in different jurisdictions and at different times[85]
-
concerns the proposed one-off redress payment of $75,000 plus the
healing assistance payment of $7,000 may be insufficient[86]
-
notes that the amount is in line with the current New South Wales
Stolen Generations Reparations Scheme (which was based on the amount paid under
the Tasmanian scheme, adjusted for CPI) but it is half the amount paid under the
National Redress Scheme[87]
-
recommends that the timeframe for the scheme be extended beyond
four years to six to eight years. The LCA notes that the National Redress
Scheme in comparison will operate for 10 years[88]
-
recommends that the legislation include a mandatory review every
two years ‘to assess its effectiveness and make appropriate improvements’[89]
and
-
states its support for redress for the Stolen Generations in all other
jurisdictions given the Territories Redress Scheme is not a national program.[90]
ANTaR
ANTaR (Australians for Native Title and Reconciliation)
provided a submission to the inquiry into the Bills.[91]
The submission raises no specific matters relating to the Bills themselves.
ANTaR commended the work of the Healing Foundation and
suggested that the recommendations of the Make Healing Happen Report
(2021) be considered and adopted in full.[92]
Other matters raised in the ANTaR submission relating to
the scheme more broadly include:
-
considering using the Tasmania scheme, where the Assessor ‘was
given discretion to determine the scheme's processes’ to assist in developing a
‘procedural benchmark for how the current proposed scheme can operate’[93]
-
consideration be taken into account for evidentiary issues where
people cannot demonstrate ‘communal recognition’ to establishing their
Indigeneity[94]
-
like the NSW scheme, the Territories Redress Scheme should allow
victims to proceed with claims through both the reparations scheme and also
through common law (for example, via class actions)[95]
and
-
that the scheme be extended to family members.[96]
Financial
implications
The Explanatory Memorandum states that the Australian
Government has committed $378.6 million over the 2021 to 2026 financial
years to establish the Territories Redress Scheme.[97]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[98]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR)
made no comment in relation to the Bills. The PJCHR makes no comment when a
Bill does not engage, or only marginally engages, human rights; promotes human
rights; and/or permissibly limits human rights.[99]
Key issues
and provisions
Scheme will be largely administrative, with
limited legislation
The Bills do not establish the Territories Stolen
Generations Redress Scheme. The proposed scheme will be largely administrative,
with the National Indigenous Australian’s Agency (NIAA) responsible for both the
implementation and administration of the scheme.[100]
The NIAA’s submission to the current committee inquiry
into these Bills states that the Territories Redress Scheme ‘will be largely
administrative, with some limited legislation’ as noted previously.[101]
In terms of administration, the Statement of Compatibility
with Human Rights to the Facilitation Bill notes the proposed role of an
‘External Advisory Board’ in the scheme:
The Scheme will have an External Advisory Board to monitor
and advise on the establishment and implementation phases and critically to ensure
the Scheme is delivered in a trauma-informed and culturally sensitive manner.
Key Indigenous organisations, such as The Healing Foundation and Link Up
Services, and trauma specialists will be invited to participate. The Healing
Foundation, in its role in partnering with Stolen Generations survivors and
organisations to address the ongoing trauma caused by forced removal of
children from their families, is well placed to ensure the Scheme operates to
best meet the needs of Stolen Generations survivors.[102]
Clause 6 of the Facilitation Bill will give Government
power to make regulations that are necessary or convenient for carrying
out/giving effect to the Facilitation Bill.[103]
The submission from the LCA expresses concern that the
scheme may rely heavily on delegated legislation, stating:
It is the general position of the Law Council that
significant matters, such as those dealing with substantive policy issues
rather than matters that are purely technical or administrative in nature,
should be included in primary legislation rather than delegated legislation. It
considers it an important responsibility of the Australian Parliament to
safeguard against the unnecessary delegation of unfettered law-making authority
to the Executive.[104]
The LCA further recommended:
… the key details of this scheme should be outlined in the
primary legislation. Given the sheer volume of delegated legislation –
approximately ‘half of the law of the Commonwealth by volume consists of
delegated legislation rather than acts of Parliament’ – it is not guaranteed
that regulations will receive the proactive and necessary scrutiny. [105]
However, the Commonwealth still requires legal authority
for the expenditure of this public money—this legal authority can be
provided by legislation.[106]
This means that there may need to be future legislation to
enable the spending of money for the purposes of the Territories Redress
Scheme.
Through the Senate Committee process, the NIAA noted in a
response to questions on notice that it intends to use the Financial Framework
(Supplementary Powers) Regulations 1997 as the legal mechanism for
authorising expenditure, and that it will request amendments to be made to this
instrument for the purpose.[107]
The NIAA also clarified that when it describes the scheme as ‘administrative’,
it means that the content will be largely defined outside of legislation and
instead in policies, procedures and guidelines.[108]
Because the Bills do not actually set up the details of
the scheme, this means that the Government announcements around the quantum of
payments to Stolen Generations survivors are policy commitments rather than legal
entitlement. The LCA notes, for example:
While the Australian Government has announced that it intends
for the ‘one-off redress payment to recognise the harm caused by forced
removal’ to be ‘$75,000’ and the ‘one-off healing assistance payment’ to be
‘$7,000’, there is no legal protection to uphold this promise until it is
legislated.[109]
Number of
people likely to benefit
The NIAA’s submission to the committee inquiry for the
Bill suggested around 3,600 people would be eligible for the Territories
Redress Scheme.[110]
The source for this estimate was a recent Australian Institute of Health and
Welfare (AIHW) report, which estimated there to be around 3,200 Stolen
Generations survivors in the Northern Territory, and around 400 in the ACT.[111]
As noted previously, both the Australian Labor Party and
the Australian Greens have criticised that the scheme is only for survivors,
and not the families of survivors, while the submissions from Shine Lawyers and
ANTaR recommended payments for families of survivors.[112]
Protection
of Territories Redress Scheme payments
The provisions in the Facilitation Bill are primarily
aimed at the protection of payments made under the Territories Redress Scheme.
This is done in conjunction with amendments to other legislation in the Consequential
Amendments Bill (discussed in the Other provisions section below).
The Facilitation Bill provides a general rule that
payments made under the Territories Redress Scheme do not affect a person’s
eligibility or entitlement for any pension, benefit, payment or service
provided under Commonwealth law.[113]
The Bill also provides that payments under the Territories Redress Scheme are
not compensation or damages under Commonwealth laws.[114]
The Bill notes that this specifically includes compensation or damages for the
purposes of the Social
Security Act 1991 and the Veterans’
Entitlements Act 1986.[115]
These protections are in place even if the relevant Commonwealth laws are
passed in the future, unless that legislation explicitly provides otherwise.[116]
The above blanket protections do not apply to state and
territory laws. However the Facilitation Bill gives the Government the ability
to prescribe through regulations state and territory laws under which
Territories Redress Scheme payments cannot be considered damages or
compensation.[117]
The Government notes that this provision is included to prevent adverse effects
for recipients and the intention is to consult with the relevant jurisdiction
prior to designating any such law.[118]
Importantly, any payments made under the Territories
Redress Scheme are absolutely inalienable, meaning that the payment
cannot be provided to another person even due to sale, assignment, charge,
execution, bankruptcy or otherwise.[119]
In effect, the right to receive the payment cannot be transferred, whether
voluntarily or by operation of law, thereby ensuring the recipient will receive
the full benefit of the payment.[120]
The Consequential Amendments Bill makes consequential amendments to the Bankruptcy Act 1966
which are explained below.
Assets tests
for pensions and payments
While payments made under the Territories Redress Scheme
are explicitly exempt from being counted as income for the purposes of social
security and veterans’ payments, the Facilitation Bill will include redress
payments in a person’s assets when considering eligibility to receive social
security and veterans’ payments, as per subclause 4(3)). Similar
arrangements apply to payments under the National Redress Scheme for those who experienced
institutional child sexual abuse.[121]
How subclause 4(3) might affect redress recipients
will depend on a number of factors, including:
-
whether they receive a social security or veterans’ payment (or will
claim one) and which payment and
-
the value of any other assets.
On its own, a payment of $75,000 would not exceed existing
asset test thresholds or limits for social security payments. The redress
payment would only affect those with other assets with a combined value close
to the relevant asset test threshold or limit.[122]
However, this could be mitigated, should the Government
choose to do so, through subclause 4(6) of the Bill, which provides that
regulations can be made under the proposed Act (by the Governor‑General
on advice from the Executive Council) to prescribe laws which any of subclauses
4(1)–(3) do not apply to. This would enable the regulations to prescribe
laws (such as the Social Security Act 1991) under which redress payments
would not be assessed as assets. The regulation making power is found at clause
6.
The Explanatory
Memorandum to the Facilitation Bill explains:
Subclause 4(6) provides that the regulations may prescribe
laws of the Commonwealth to which subclause 4(3) does not apply. The
combined effect of prescribing a law by such a regulation and subclause 4(1)
would be that, where eligibility for a Commonwealth payment or service in the
prescribed law is assets-tested, a redress payment could not be considered in
determining the value of a person’s assets.
The ability to prescribe such laws will enable the
Commonwealth to adapt the applicability of sub-clause 4(3) where it is
necessary to do so. For example, a law of a Commonwealth could be prescribed
where it is appropriate that a redress payment not be considered in determining
the value of a person’s asset for the purpose of any assets testing. It is
appropriate that there is this flexibility to deal with unintended consequences
in administering the Scheme. [Emphasis added][123]
A recent AIHW report found that around 71 per cent of
Stolen Generations aged 50 or over had government payments as their main source
of income.[124]
Assuming there is an even distribution of people reliant on government payments
as their main source of income throughout all states and territories, this
would suggest around 1,000 individuals (of the approximately 3,600 survivors
eligible for the Territories Redress Scheme) have the potential to be impacted
by the assets test.
Further information would need to be sought as to whether
the government has any estimates/information as to whether any potential
redress payment recipients might have their social security or veterans’
payment affected by the proposed scheme.
Other provisions
The Consequential Amendments Bill contains consequential
amendments relating to the establishment of the Territories Redress Scheme. It consists
of one schedule:
- Part 1, items 1-2 amend the Income Tax
Assessment Act 1997 to exempt payments made under the Territories
Redress Scheme from income tax
- Part 2, item 4 amends the Bankruptcy Act 1966
so that payments made under the Territories Redress Scheme are not available to
creditors of the recipient for the purpose of recovering money under bankruptcy
proceedings
- Part 2, items 5 and 8 amends social security and veterans’
entitlement legislation (the Social Security Act
1991 and the Veterans'
Entitlements Act 1986) to exempt payments made under the Territories
Redress Scheme from income tests and
- Part 2, items 6 and 7 amend the Social Security
(Administration) Act 1999 allows persons within the NIAA to access
protected social security information for the purposes of the Territories
Redress Scheme (for example information that would verify applicants’
identities).[125]
Similar amendments relating to the Bankruptcy Act 1966,
the Social Security Act 1991, the Social Security (Administration)
Act 1999 and the Veterans' Entitlements Act 1986 were made
under the National
Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments)
Act 2018 in order to protect payments made under the National Redress
Scheme for Institutional Child Sexual Abuse.[126]
Appendix A: State
compensation and redress schemes
Tasmania
In Tasmania, the Stolen
Generations of Aboriginal Children Act 2006 (the Act) was passed
unanimously by both Houses of Parliament in November 2006. The Act made
provision for a $5 million fund to provide payments to eligible members of
the Stolen Generations and their children.[127]
Budget and Payments: A budget of $5 million was
allocated. A total of 151 claims were received. After assessing each
application, the Assessor determined that 106 were eligible to receive an ex‑gratia
payment. 84 eligible members of the Stolen Generations each received
$58,333.33. 22 eligible children of deceased members of the Stolen Generations
received either $5,000.00 or $4,000.00 each depending on how many people were
within the particular family group.[128]
Queensland
To date, Queensland has not established a redress scheme
specific to the Stolen Generations. In August 2021, responding to comments by
Pat Turner, Co-Chair of the Coalition of Peaks, that it was time for the WA and
Queensland governments to establish redress schemes for the Stolen Generations,
a statement by Queensland's Minister for Aboriginal and Torres Strait Islander
Partnerships, Craig Crawford, said ‘the [Queensland] government had announced a
$300 million Path to Treaty Fund that includes more than $250 million for
stolen wages reparations’.[129]
The Queensland government’s redress scheme focussed upon
the experience of abuse in state care rather than the removal of Aboriginal and
Torres Strait Islander children per se. As such it was open to both
Indigenous and non-Indigenous claimants.
The Queensland Government formally recognised the
experiences of Forgotten Australians after the 1998-99 Commission of Inquiry
into abuse of children in Queensland institutions, better known as the Forde
Inquiry.[130]
The Forde Inquiry found many children had suffered abuse or neglect in
institutional care and these people continue to be affected by these
experiences into their adult life.
In May 2007, in response to the recommendations of the
Forde Inquiry, the Queensland Government established the $100 million Redress
Scheme to acknowledge the abuse or neglect suffered by children placed in
Queensland institutions by providing ex-gratia payments to those who were
harmed. Queensland also made formal apologies, established memorial, link up
and counselling programs, and has a grant scheme to help former residents of
state care with medical, educational and work expenses.[131]
Eligibility: Applications for a payment under the scheme
opened 1 October 2007 and closed 30 September 2008. The scheme
provided for ex gratia payments of between $7,000 (Level 1) and $40,000 (Level
2). Level 1 payments were open to all who were placed in a detention
centre or licensed government or non‑government children's institution in
Queensland covered by the terms of reference of the Forde Inquiry; and had been
released from care, and had turned 18 years of age on or before 31 December
1999; and had experienced institutional abuse or neglect. Level 2 payments were
for those who experienced ‘more serious’ abuse and neglect. Applicants had to sign
a deed of release which prevented them from making any further claim against
the Queensland government. The scheme did not apply to those in foster care, in
mental asylums, or other institutions not covered by the Forde Inquiry.[132]
Budget and results: $100 million was allocated. The scheme
received over 10,200 applications between 1 October 2007 and 30 September 2008
(the closing date of the scheme). Of these, over 7,400 were assessed as
eligible for a level 1 payment. Approximately 3,500 applicants (of those who
received a Level 1 payment) were offered an additional level 2 payment, ranging
from $6,000 to $33,000. The scheme was finalised in June 2010.[133] According to an article in
the Australian Indigenous Law Review, 53% of applicants were Indigenous.[134]
Western
Australia
To date, Western Australia has not established a redress
scheme specific to the Stolen Generations. In August 2021, responding to
comments by Pat Turner, Co-Chair of the Coalition of the Peaks, that it was time
for the WA and Queensland governments to establish redress schemes for the
Stolen Generations, the WA Minister for Aboriginal Affairs, Stephen Dawson, reportedly
said ‘conversations were continuing with key Aboriginal organisations who work
in this policy area.’[135]
Similar to Queensland, the WA scheme focussed upon abuse
and neglect in state care rather than the act of removal, and was open to both
Indigenous and non-Indigenous Australians.
The Redress WA scheme, announced on 17 December
2007, aimed to provide redress for abuse suffered by children, including Stolen
Generations children and Child Migrants (‘the forgotten Australians’) in state
care prior to 1 March 2006.[136]
The scheme was intended as an alternative to the court process, especially
where statute of limitations or proof of negligence may be an impediment under
law.[137]
Redress WA provided assistance with preparing applications,
acknowledgment and apology for suffering experienced as a child in state care,
access to support services including psychological and financial counselling
and ex gratia payment to approved applicants.[138]
There was provision for expedited payments to applicants with terminal
illnesses, and to the heirs of those who died while their applications were
being processed.[139]
Eligibility: Adults, including Child migrants and Stolen
Generation children, who were abused or neglected as children in institutional
and non-institutional state care, prior to 1 March 2006. The scheme ran from
2008 to 31 December 2011.[140]
Budget and payments: WA initially budgeted $114 million
for the scheme, and subsequently added an additional $30 million.[141]
Initially a maximum payout of $80,000 was advertised by the Labor Government
which introduced the scheme, but this was reduced to maximum of $45,000 by a
subsequently elected Liberal Government, causing considerable anger and a sense
of betrayal in applicants.[142]
Payment was to be determined by the level of abuse or neglect.[143] There were 5,333 eligible
claimants who received payments.[144]
According to an article in the Redress WA Newsletter, 50% of applicants
were members of the Stolen Generation.[145]
In 2013 the Supreme Court of Western Australia rejected a
claim for compensation against the WA Government in that state’s first Stolen Generations
case.[146]
The court, while acknowledging the deep harms caused by the separations, did
not accept that there were any relevant fiduciary duties between the State and
the plaintiffs, and that even if such duties existed, no breach had been
established.
South
Australia
South Australia flagged that it would create a
compensation scheme for members of the Stolen Generation after the successful
compensation suit of Bruce Trevorrow in 2007, confirmed by appeal in 2010,
resulted in a payout of $775,000 to Mr Trevorrow’s estate (the Trevorrow case
is discussed in more detail below).[147]
However the Next Steps – Stolen Generations Reparation Scheme was not
set up until 2015, and opened for applications on 31 March 2016, remaining open
for a year.[148]
Eligibility: To be eligible for this scheme, applicants
had to be an Aboriginal person who was removed from their family as a child
prior to 31 December 1975 without a court order, and when they were removed
their normal place of residence was South Australia, or they were removed by
South Australian authorities.[149]
The emphasis on ‘without a court order’ reflects that in the case of Mr
Trevorrow, the court had found that he had been removed illegally.
Budget and results: South Australia budgeted $11 million
for this scheme, of which $6 million was for ex gratia compensation, estimated
in advance at up to $50,000 each for 300 claimants, and $5 million was for
‘whole-of-community reparations’, such as memorials, counselling and support
programs, scholarships and exhibitions telling the stories of the Stolen
Generations, which was also open for applications from community groups.[150] Upon
closure of the scheme it had received more than 350 applications; slightly
higher than estimated.[151]
343 of the 449 applicants were found eligible by the Independent Assessor,
including 28 who were removed from the Northern Territory and brought to South
Australia.[152]
On the advice of the Independent Assessor, rather than assessing the level of
harm that had been caused to individuals, the Minister agreed that all
successful applicants would be treated equally.[153]
Applicants received an initial $20,000 payment, with a further $10,000 being
paid in 2019 as a result of a $3 million underspend in the Stolen Generations Community
Reparations Fund.[154]
Accepting compensation required signing a Deed of Agreement releasing the SA
government from any further legal liability.[155]
New South
Wales
Following a NSW Parliamentary Inquiry into the Stolen
Generations in NSW, and subsequent report, Unfinished Business: Reparations
for the Stolen Generations in NSW, which was released in June 2016,[156]
the NSW Government announced in December 2016 that it would establish a $73 million
compensation fund.[157]
As well as direct compensation, this included funding of $5 million for
Stolen Generations organisations, healing and commemorative places and
services, and funding of $7,000 per funeral for funerals of Stolen Generations
members.[158]
More detail about the proposed fund became available when the NSW government
tabled their response to the Unfinished Business report in February
2017.[159]
The Scheme commenced on 1 July 2017 and runs for five years (applications must
be submitted by 30 June 2022).[160]
Eligibility: The scheme is open to all Aboriginal and
Torres Strait Islander individuals removed by the Aboriginal Protection Board
between 1925 and 1969 (when the Board was abolished).[161]
There were 1,079 known documented Aboriginal child removals during that period,
of which it was estimated that around 730 were still alive.[162]
The response noted that many cases were poorly documented and some estimates
have up to 1,350 children removed. Notably, compensation is to be paid for the
act of removal which was legal under the law of the day, not on the basis of
abuse or neglect suffered in care as was the case for the Queensland and WA
schemes or illegal removal as was the case in South Australia.[163]
The response noted that there may be other legal avenues
for members of the stolen generation who suffered abuse or neglect to seek
compensation (thus implying, although it does not state explicitly, that
recipients will not be expected to waive other claims).[164]
In fact, payments were fast-tracked for 118 Stolen Generations survivors who
had received settlements in a Stolen Generations legal action taken in 2014-15.[165]
Budget: The NSW Government has committed $73 million for
individual and collective reparations to Stolen Generations survivors under the
six themes: recognition, acknowledgement and apology; monetary reparations; collective
healing; tailored supports; guarding against repetition; and cultural renewal.[166]
The scheme provides a $75,000 compensation payment and a
$7,000 Funeral Assistance Payment to eligible applicants. The compensation
amount is based upon the amount paid in Tasmania plus CPI.[167]
Victoria
On 18 March 2020, the Victorian Government announced a $10 million
redress scheme for Stolen Generation survivors—the scheme will include a range
of redress options, such as payments, counselling and a funeral fund.[168]
About 1,200 Victorians are expected to be eligible for the scheme. Further
details of the scheme have yet to be announced.
In July 2018, the Victorian Government legislated to
remove the criminal records of those Victorians who had received them when as children
and babies they were taken into state care.[169]
Before 1989, the Victorian legal system did not distinguish between children in
need of protection and young people who were offending against the criminal
law. Not only did the Court buildings and the Court processes and outcomes not
make any clear distinction between these two classes of children, the
institutions in which they were placed were often the same. Babies, children
and young persons before the Court were charged with being in need of protection
and if this charge was found proved it would appear on a police criminal
history sheet. This situation was amended in 1989 by the Children
and Young Persons Act 1989 (Vic) which clearly separated the protection
and criminal parts of the law.[170]