Introduction
2.1
The Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 (the facilitation bill) and the Territories Stolen Generation (Consequential Amendments) Bill 2021 (the consequential amendments bill) were introduced into the House of Representatives on 26 August 2021.
2.2
Together the bills facilitate certain aspects of the operation and implementation of the Territories Stolen Generations Redress Scheme (the scheme).
2.3
Background information on the scheme is set out below.
2.4
Detail on the specific measures and consequential amendments each bill provides for is set out later in this chapter.
Territories Stolen Generations Redress Scheme
2.5
The Prime Minister, the Hon. Scott Morrison MP, announced the scheme on 5 August 2021, as part of the Commonwealth Government's Closing the Gap implementation plan.
2.6
The Minister for Indigenous Australians, the Hon. Ken Wyatt MP noted:
With many stolen generations survivors being of an advanced age and suffering life-threatening illnesses, the imperative to act now has been brought into sharp focus.
2.7
The scheme is for survivors of the Stolen Generations who were removed as children from their families whilst in the Northern Territory (NT) or the Australian Capital Territory (ACT) (prior to their respective self-government), or the Jervis Bay Territory.
2.8
The scheme will be implemented and administered by the National Indigenous Australians Agency (NIAA). It is intended to operate from 1 March 2022 to 30 June 2026, and will be open for applications between 1 March 2022 and 28 February 2026.
2.9
The scheme is underpinned by the principle of ‘do no further harm’. The payments available through the scheme to eligible applicants are in recognition of the harm caused by forced removal and are aimed at healing.
2.10
Specifically, the scheme will provide eligible participants:
(a)
a one-off redress payment of $75 000 to recognise the harm caused by forced removal;
(b)
a one-off healing assistance payment of $7000 in recognition that the action required to facilitate healing will be specific to each individual; and
(c)
the opportunity, if participants choose, to confidentially tell their story about the impact of their removal to a senior official within government and receive a face-to-face or written direct personal response acknowledging the trauma caused by removal.
2.11
To be eligible for the scheme, applicants must be:
an Aboriginal and/or Torres Strait Islander person;
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 NT or the ACT prior to their respective self‑government, or the Jervis Bay Territory.
2.12
If an eligible Stolen Generations member passes away between 5 August 2021 and 1 March 2022, their family or estate will be able to submit an application on their behalf. In addition, legally appointed guardians or Power of Attorneys can apply on an eligible survivor’s behalf.
2.13
According to the NIAA, approximately 3600 people will be eligible for the scheme, with eligibility numbers based on data from an Australian Institute of Health and Wellbeing (AIHW) report in June 2021.
2.14
The NIAA governance arrangements for the scheme will include a small internal advisory board of senior executive staff to guide and monitor the scheme’s establishment and implementation.
2.15
Additionally, an external advisory body will be established to ensure the scheme is delivered in a trauma-informed and culturally sensitive manner. The Healing Foundation will participate as a member on the external advisory body, and the NIAA, in consultation with the Healing Foundation, will seek potential members drawn from key organisations who work to support Stolen Generations survivors.
2.16
In line with best practice approaches established by comparative redress schemes, direct personal responses delivered under the scheme will:
consider involvement by the Minister for Indigenous Australians;
be delivered by a senior government official; and
be delivered at a time, location and venue of the successful applicant’s choice (in relation to face-to-face direct personal responses only).
2.17
Applicants will be able to access free application support, free legal advice and free financial advice from independent scheme-funded support services, and should not need to access private firms or private advisers. Organisations will be funded to support applicants through the application process and will be selected based on their current involvement with Stolen Generations survivors and their current relationship with the NIAA.
2.18
If an applicant has already received relevant compensation or payments from other sources (e.g. existing redress schemes or via claims) in relation to forced removal from family, these payments would be deducted from the amount of the scheme redress payment. However, the applicant would still be eligible to access the healing assistance payment (if one was not part of their previous financial settlement) and the direct personal response.
Scope of the bills
2.19
Numerous details of the scheme outlined in the previous section have been publicly announced by the NIAA but are not addressed in the bills under consideration by the committee. These include details relating to:
the amount of the redress payments;
the timeframe of the scheme's operation;
the support services on offer;
the format of the direct personal responses;
the eligibility of participants; and
2.20
As such, these matters will not be directly examined in this report.
Purpose of the bills
2.21
The facilitation bill provides for measures to facilitate the operation of certain aspects of the scheme, while the consequential amendments bill provides for consequential amendments to Commonwealth legislation to facilitate the implementation of certain aspects of the scheme.
2.22
Upon the introduction of the bills into the House of Representatives, the Minister for Indigenous Australians stated that together the bills will:
support the survivor-focused and trauma-informed approach of the scheme;
support intergenerational healing;
ensure eligible participants receive the full benefit of their redress payment; and
positively impact the health and wellbeing of Stolen Generations survivors, their families and communities.
Facilitation bill
2.23
The objective of the facilitation bill is to ensure that receipt of the one-off redress payment and the one-off healing assistance payment does not:
(i)
affect a participant's access to, or eligibility for, any pensions, payments, benefits or services (however described) provided by the Commonwealth; or
(ii)
require the repayment of an amount to the Commonwealth.
2.24
The facilitation bill also ensures that the redress payment is 'absolutely inalienable'.
2.25
This is because the redress payment is in recognition of the harm caused by forced removal and is aimed at healing.
Clause 4
2.26
Clause 4 of the facilitation bill relates to the protection of redress payments under the scheme.
Subclause 4(1)
2.27
The overall objective of subclause 4(1) is to ensure that receiving a redress payment will not adversely affect a participant's existing, or future, access to other Commonwealth payments.
2.28
Specifically, subclause 4(1) provides that the payment of a redress payment to a person does not affect the person's eligibility for, or entitlement to, any pension, benefit, payment or service (however described) under a law of the Commonwealth. The explanatory memorandum (EM) noted:
It is intended that this provision will cover any new pensions, benefits, payments or services made or delivered by the Commonwealth under Commonwealth law, and any other pensions, benefits, payments or services under a Commonwealth law not directly or indirectly covered by the Consequential Amendments Bill. This rule will apply to any payments under the Scheme, regardless of whether they are paid in a lump sum or by instalments. Subclause 4(1) does not apply in relation to a law of a State of Territory.
2.29
The EM noted that subclause 4(1) should be understood in conjunction with the provisions of the consequential amendments bill, which makes amendments to the Social Security Act 1991 (Social Security Act) and the Veterans' Entitlements Act 1986 (Veterans' Entitlements Act). Further detail on this is set out later in this chapter.
Subclause 4(2)
2.30
Subclause 4(2) confirms that, for the purposes of the Social Security Act, the Veterans' Entitlements Act and other laws of the Commonwealth, a redress payment is not considered 'compensation or damages'.
2.31
This ensures that receipt of the redress payment (paid either as a lump sum or by instalments) will not engage any recovery, reimbursement or repayment mechanisms under Commonwealth laws that are triggered by the receipt of compensation or damages, such as those set out in the Social Security Act, the Veterans' Entitlements Act, or the Health and Other Services (Compensation) Act 1995.
2.32
The EM noted that this treatment of a redress payment is consistent with the treatment of a redress payment under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.
2.33
However, paragraph 4(2)(c) permits the regulations to prescribe a law of a state or territory for the purposes of the paragraph. The EM explained:
The effect of this would be that, where such a law is prescribed, the redress payment would not be compensation or damages for the purposes of that law. The ability to make such a regulation is intended to prevent any adverse effect, or unintended consequence, for the recipient of the redress payment where a law of a State or Territory may characterise the payment as compensation or damages. It is intended that the relevant State or Territory will be consulted prior to the promulgation of such a regulation. Unless a regulation is promulgated, subclause 4(2) will not apply to a law of a State or Territory.
Subclause 4(3)
2.34
Subclause 4(3) sets out exceptions to subclauses 4(1) and (2). It provides that the rules in subclauses 4(1) and (2) do not apply for the purposes of determining the value of a person's assets under:
the Social Security Act or the Veterans' Entitlements Act; or
any other law of the Commonwealth; or
a law of a state or territory prescribed by the regulations for the purposes of the paragraph.
2.35
This ensures that a redress payment may be considered when determining the value of a person's assets (as opposed to income) where required to do so by law, for example, when determining eligibility for a payment.
2.36
Further, the EM detailed:
The application of subclause 4(3) to a prescribed law of a State or Territory is included to deal with any unintended consequences to assets testing in State or Territory laws that may arise by prescribing a law of a State or Territory for the purposes of subclause 4(2). It is intended that the relevant State or Territory will be consulted prior to the promulgation of such a regulation. Unless a regulation is promulgated, subclause 4(3) will not apply to a law of a State or Territory.
Subclause 4(4)
2.37
Subclause 4(4) provides that a redress payment made under the scheme is 'absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise'.
2.38
The EM expanded upon this and noted:
This [subclause 4(4)] ensures that the right to receive the payment cannot be transferred to another person, either by voluntary act or by operation of law. Consequently, an eligible participant will receive the full payment determined under the Scheme. This aligns with the intent of the Bill and the Consequential Amendments Bill that a recipient will receive the full benefit of a redress payment.
2.39
Additionally, subclause 4(4) ensures that, before a redress payment under the scheme is paid out to a participant, it cannot be set-off against any other amount owing to the Commonwealth (for example through section 64 of the Public Governance, Performance and Accountability Act 2013).
Subclause 4(5)
2.40
Subclause 4(5) provides that subclauses 4(1) to (4) have effect despite anything in a law of the Commonwealth, a state or a territory (whether passed or made before or after the commencement of clause 4), unless in the case of a law of the Commonwealth, the law expressly provides otherwise.
Subclause 4(6)
2.41
Subclause 4(6) provides that regulations may prescribe laws of the Commonwealth to which one or more of subclauses 4(1) to (3) do not apply.
2.42
The EM advised that this is appropriate to ensure that there is flexibility to deal with 'unintended consequences' when administering the scheme.
2.43
The below section provides further information on how subclause 4(6) would interact with subclauses 4(1) to (3) individually.
In relation to subclause 4(1)
2.44
The ability to prescribe particular Commonwealth laws to which subclause 4(1) does not apply will enable the Commonwealth to adapt the applicability of subclause 4(1) where it is necessary to do so. As the EM set out:
As one of the purposes of subclause 4(1) is to deal with the interactions between a redress payment and Commonwealth laws not in existence at the time of the enactment of subclause 4(1), it is appropriate that there is flexibility to deal with any unintended consequences that are identified during the administration of the scheme.
In relation to subclause 4(2)
2.45
The ability to prescribe particular Commonwealth laws to which subclause 4(2) does not apply will enable the Commonwealth to adapt the applicability of subclause 4(2) where it is necessary to do so, including in relation to laws not in existence at the time of enactment of subclause 4(2). The EM emphasised that this is appropriate in order to allow flexibility to deal with unintended consequences in administering the scheme.
In relation to subclause 4(3)
2.46
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.
2.47
The ability to prescribe particular Commonwealth laws to which subclause 4(3) does not apply will enable the Commonwealth to adapt the applicability of subclause 4(3) where it is necessary to do so. As the EM set out:
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.
Consequential amendments bill
2.48
The objective of the consequential amendments bill is to ensure that eligible participants receive the full benefit of the redress payment and that receipt of the payment does not adversely affect income testing for other Commonwealth payments or benefits. This is because the redress payment is in recognition of the harm caused by forced removal and is aimed at healing.
2.49
The consequential amendments bill achieves this objective by setting out amendments to:
the Bankruptcy Act 1966 (Bankruptcy Act);
the Income Tax Assessment Act 1997 (ITA Act);
the Social Security Act; and
the Veterans' Entitlements Act.
2.50
The consequential amendments bill also sets out amendments to the Social Security (Administration) Act 1999 (Social Security Administration Act) in order to allow for the cross-checking of identity information provided by applicants.
Part 1
2.51
Part 1 contains three items that relate to amendments to the ITA Act.
2.52
Item 1 inserts a new table item referencing the redress payments into the table of ordinary or statutory income which is exempt in section 11–15 of the ITA Act. This new table item refers to the new section 53–30 that is added to the ITA Act by Item 2 of the bill, as set out below.
2.53
Item 2 inserts a new section 53–30 into Division 53 of the ITA Act. The new section provides that redress payments made under the scheme (either in a lump sum or in instalments) to a person will be exempt from income tax. This in turn excludes the payment from being assessable income or being subject to capital gains tax.
2.54
This amendment also has the consequential effect of preventing a redress payment from being considered in determining eligibility for some other Commonwealth payments and benefits. As the EM described:
For example, by being exempt from income tax, a redress payment will also not be considered as part of a person's taxable income under the A New Tax System (Family Assistance) Act 1999.
2.55
Item 3 provides that the amendments made by Items 1 and 2 apply to assessments for the 2021–22 income year and later income years. The EM clarified:
Although the amendments can apply from 1 July 2021 and accordingly have retrospective effect, it is intended that no payments will be made until after the Bill has commenced.
Part 2
2.56
Part 2 contains eight items that relate to amendments to:
the Social Security Administration Act; and
the Veterans' Entitlements Act.
Bankruptcy Act 1966
2.57
Item 4 inserts new paragraph (gb) into subsection 116(2) of the Bankruptcy Act. This provides that a redress payment under the scheme is not available to creditors of the recipient for the purpose of recovering money under bankruptcy proceedings, regardless of whether the redress payment was received before or after the recipient became a bankrupt.
2.58
The EM clarified that, regardless of whether a redress payment was paid to a recipient as a lump sum or in instalments, it would not be divisible amongst the bankrupt's creditors.
2.59
The EM also observed that this amendment was included to ensure that the recipient will receive the full benefit of the payment in circumstances where the recipient is bankrupt.
Social Security Act 1991
2.60
Item 5 inserts new paragraph (jd) into subsection 8(8) of the Social Security Act. This means that redress payments made to a person under the scheme are not 'income' in relation to that person for the purposes of:
legislative provisions or instruments that rely on the definition of 'income' in the Social Security Act.
2.61
The EM set out the impact of this item:
This will have the effect of exempting the redress payments from the applicable income test under the Social Security Act and ensuring the receipt of the redress payments will not reduce payments under that Act because of any income test.
Social Security (Administration) Act 1999
2.62
To verify the identity of applicants to the scheme, it may be necessary to
cross-check identity information provided by applicants with information held by the Department of Social Services or Services Australia. For example, where an applicant provides a Centrelink customer reference number as a personal identifier. To facilitate such cross-checking, Items 6 and 7 amend the Social Security Administration Act.
2.63
Item 6 inserts a new paragraph (i) into subsection 202(1) of the Social Security Administration Act. It provides that a person may obtain protected information if the information is obtained for the purposes of the scheme.
2.64
Item 7 inserts a new paragraph (df) into subsection 202(2) of the Social Security Administration Act. It provides that a person may make a record of, disclosure or otherwise use such protected information for the purposes for the scheme.
2.65
The EM provided further detail on the need for this amendment:
The Scheme is survivor-focused and trauma-informed, and applying for a redress payment is intended to be as simple as possible. Some applicants, as a result of their forced removal from family, may be, or have been, known by different names or may not have ready access to identity documentation. The amendments made by items 6 and 7 will permit a person within the agency administering the Scheme to obtain protected information for the purposes of the Scheme. This could include obtaining information to verify applicants' identities to progress their applications without the need for applicants' to provide extensive documentation to prove their identities.
2.66
Additionally, the EM noted that the existing protections applying to social security protected information (including criminal penalties for unauthorised obtaining, recording, disclosure, or use of protected information) would continue to apply to the information.
2.67
The EM confirmed that the use of protected information for the purposes of the scheme would be limited to:
identity verification for the applicant; and
undertaking 'any necessary investigations' to allow the application to be decided.
2.68
The EM emphasised that the uses are not anticipated to be broader than the limited uses to which social security protected information may already be put under social security law. It reiterated that this approach would ensure that all aspects of the scheme's ability to share and gather social security information would be underpinned by law.
Veterans' Entitlements Act 1986
2.69
Item 8 inserts new paragraph (mc) into subsection 5H(8) of the Veterans' Entitlements Act. It provides that redress payments made to a person under the scheme are not 'income' in relation to that person for the purposes of that Act.
2.70
This will have the effect of exempting the redress payments from the applicable income test under the Veterans' Entitlements Act.