The Australian Greens wish to thank all submitters and witnesses contributing to this inquiry and acknowledge that this process may have not been easy considering the substantial trauma the Stolen Generations have experienced and continue to experience to this day.
The Australian Greens acknowledge that this trauma is intergenerational and that there can never be a real redress for the pain and generational consequences that have been caused by the removal of these children. We extend our heartfelt best wishes to all members of the Stolen Generations and their families.
Whilst the Australian Greens are very supportive of a redress scheme for Stolen Generation members, we believe the current scheme, and the legislation and planned regulations to implement it, could and should be improved in line with the evidence provided by community and stakeholders in this inquiry.
The community sentiment around the scheme, as portrayed in the public hearing during this inquiry, is that the scheme as currently proposed is far from ideal but redress is long overdue and members of the Stolen Generations cannot wait any longer for it, as the majority have already deceased without ever seeing any attempt of justice.
Mrs Eileen Cummings, Chairperson of the Northern Territory Stolen Generations Aboriginal Corporation, told the committee:
… most of our members, the elder ones, have said: 'Look, we'll just accept it. We don't want to keep on fighting. We've been fighting for 30-odd years, or even longer, and something to help us through the last bit of our lifetime—we'll accept it, because we don't want to keep fighting.' And that is what they're saying: they don't want to keep going, fighting against the government and everybody else to try and get more. A lot of people said that wasn't enough, and we know that it isn't enough, but the thing is: many of our people, particularly the eldest, have said, 'Well, we'll just accept it'.
One of the key shortcomings of the proposed scheme, according to members of the Stolen Generations and stakeholders, is the amount of redress offered, which with $75,000 and a $7,000 one-off healing assistance falls far short of acknowledging the extent of suffering the child removals have caused over many generations.
Mrs Maisie Austin, CEO of the Northern Territory Stolen Generations Aboriginal Corporation, explained:
There are people being rewarded huge sums of money as other compensation for whatever, and it just doesn't fit right. Our stolen generations people have been suffering for years, not just while they were in institutions but outside of the institutions during their whole lives; they're still suffering this trauma. We get emotional every time we talk about it. I notice that some of the payments under the National Redress Scheme have been around about the $150,000 mark. So why is it that our people, who have suffered—they lost their identity, they lost their country, they sometimes weren't reunited with their mothers—can't be assessed even at that rate of $150,000?
When I say we have to accept the $75,000, that's because we've waited so long and fought for so long for recognition and compensation that they're at a late stage of their lives—a lot of them are dying—and $75,000 can do a lot for them in their final years in such a short space. As I said, we're losing people on a regular basis, and they're all saying, 'We're never going to live to see any compensation.' So $75,000 is really a pittance, but it's something.
During the course of the inquiry, the committee heard concerns with important parts of the scheme being left to regulations and not forming part of the legislation, such as details of the eligibility, application processes, the precise form of redress, including the amount of financial redress provided and the processes to engage with the government on the personal apology.
The Law Council of Australia noted that:
… neither the Facilitation Bill nor the Consequential Amendments Bill set out the specific details of the scheme, including the amount that is to be paid to survivors.
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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.
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The Law Council recommends that 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.
Leaving key aspects of the scheme to be laid out in delegated legislation leaves stakeholders uncertain if the scheme will actually operate as currently designed, or might still be subject to profound change. Whilst it is understood that the intent of leaving such details to regulations is to put the scheme into place as quickly as possible, legislative instruments are often not subject to parliamentary scrutiny in the same way legislation is, and it would be much more preferable to provide stakeholders with more certainty on the details of the scheme.
The scheme is currently intended to operate for four years, which some stakeholders regard as an insufficient timeframe to ensure all those who should be able to access the redress will be able to:
The Law Council considers that the proposed timeframe for the scheme may be too short. It understands that the scheme is to run for four years and will be open for applications between 1 March 2022 and 28 February 2026. The Law Council considers that a timeframe of six to eight years would be more appropriate. The National Redress Scheme for people who have experienced institutional child sexual abuse has a much longer period of operation of a notional 10 years, between 1 July 2018 and 2028.
Given the needs for survivors to learn about the scheme, receive information, advice and trauma-informed support, the Law Council considers that a notional window should be provided for between 2022 and 2030. Further, it considers a longer time period would ease concern about potential delays with the scheme, which may be either unforeseen or associated with the COVID-19 pandemic.
During the course of the inquiry, stakeholders stressed the importance of full accessibility to the scheme by community members. For example, Shine Lawyers, in their submission, noted that:
Schemes of this nature have historically had issues regarding accessibility. That is to say that the people that the scheme was created for can have difficulty accessing the scheme for a range of reasons. This has the impact of further disenfranchising victims while undermining the purpose of the scheme itself.
Shine Lawyers, in their submission, put forward a number of aspects to ensure accessibility of the scheme. The Australian Greens also support the advice provided by the Healing Foundation on how to best ensure such accessibility:
Stolen Generations organisations must be an integral voice in co-designing and operating the scheme. This means that they must be properly resourced (with additional, ongoing resources) to:
contribute to scheme co-design, monitoring and review
reach survivors and families who are not already associated with an organisation
support survivors and families to learn about and understand the scheme
support survivors and their families during the application and assessment process including enabling access to financial counselling and legal advice
support the ongoing healing journeys of survivors and their families.
Eligibility criteria and requirements must encourage survivors and families to apply rather than creating barriers or anxiety. This means:
plausibility rather than ‘proof’ is sufficient for eligibility. This recognises that records about removed children were often scant, incomplete, inaccurate, or non-existent; and that in the case of the Northern Territory (in particular) may have deteriorated beyond repair or have been destroyed when Darwin was bombed or in Cyclone Tracey.
survivors and their families should not be required to re-tell their stories if these have already been documented for other purposes
the scheme recognises the range of legislative/regulatory regimes under which children were removed. […]
contemporary circumstances are not a barrier to successful applications eg payments should not be counted towards asset tests; people who are in the justice or health systems should be eligible
applications should be assessed and payments made quickly; with priority given to elderly, frail and/or chronically ill applicants.
All elements of the scheme must be transparent and readily understood including:
a transparent and rapid review process is available for unsuccessful applicants
availability of advice and support from trusted advisors
how apology processes will work
how individuals, families and communities can access support for healing.
The Australian Greens recommend that two provisions in the scheme, which were of major concern to those who participated in the inquiry, should be addressed as a priority.
Firstly, while submitters share the stated objective of redress payments to not affect any other payments or benefits eligible applicants currently receive, so that they can receive the full benefit of the redress, the current provision in subclause 4(3) counts redress payments towards a person’s assets and might therefore tip them over asset thresholds in the asset tests for receiving social security payments or other benefits.
In its submission to the inquiry, the Law Council of Australia noted that it was:
… concerned 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, it 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,4 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.
Prima facie, it seems to make little sense for the Facilitation Bill to make a distinction between the treatment of redress payments in income testing versus assets testing.
Secondly, stakeholders stressed the importance of making the scheme accessible to families of those members of the Stolen Generations already deceased, or who might be passing during the operational time of the scheme:
The Australian Human Rights Commission, in their submission to the inquiry, notes that:
… if an eligible applicant passes away between 5 August 2021 and 1 March 2022, their family or estate may apply in their stead. The Commission considers that if an applicant passes away at any time throughout the length of the Scheme their families/estates should be able to apply. Some applicants will not be aware of the existence of the Scheme or their eligibility, and if they pass away during the operation of the Scheme before they apply, they/their families may be arbitrarily denied redress that would otherwise have been provided.
Shine Lawyers stress the ‘dishonour’ some community members feel in deceased Stolen Generation members being excluded from the scheme, and state the following in their submission to the inquiry:
Due to the period of time that Stolen Generations practices occurred, a large number of people impacted by the Stolen Generations will have passed away to date. The Australian Institute of Health and Welfare estimated that between 2002 and 2018, the cohort of surviving members of the Stolen Generations reduced by approximately 20%, with this trend to continue as the surviving cohort continue to age.
Shine Lawyers submits that, by excluding Deceased Survivors, the Proposed Scheme will fail to properly recognise the harm caused by the forcible removal of Aboriginal Australians. The impact of Stolen Generations practices has not been limited to those directly involved but has impacted subsequent generations, ultimately contributing to the societal disadvantage still faced by many Indigenous Australians.
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In addition to financial compensation, the Proposed Scheme offers survivors the opportunity to tell their story and receive a personal apology from a government representative. Shine Lawyers believes this should also be extended to the families of Deceased Survivors and while living survivors should be prioritised, those families of Deceased Survivors should have an opportunity after living survivors to engage in this process.
Finally, the Australian Greens support the call for a national redress scheme for members of the Stolen Generations which was put forward by stakeholders during the inquiry, and was a recommendation of the Bringing them Home Report in 1997 in the form of a National Compensation Fund, which was intended to operate to provide redress in a more comprehensive and inclusive form than the state and territory schemes available in the past and present.
As the Law Council of Australia notes:
Part of the reasoning behind recommending a National Compensation Fund was in response to the concern expressed by the Australian Government at the time ‘that different jurisdictions would be likely to differ in their decisions on compensation, thus causing inequity between claimants’.
The Law Council reiterates the point it was making at the hearing in reference to these recommendations of the Bringing Them Home Report: that the fact these recommendations have gone without action for almost twenty-five years speaks to the importance of facilitating the widest possible application and reach of the scheme now proposed, such as extending the scheme to deceased estates.
In this respect, the Law Council notes the Bringing Them Home Report anticipated the National Compensation Fund as a scheme of the widest possible application, stating, ‘Everyone who can establish forcible removal and everyone who can establish harm or loss resulting from the forcible removal of any person should be entitled to claim monetary compensation regardless of the date of removal’.
The call for a national program is further supported by Shine Lawyers:
We would submit that there is certainly an opportunity to at least explore and for there to be an inquiry, frankly, as to whether a national scheme is appropriate and a mechanism by which we can ensure that a greater number of people are able to access justice in relation to these issues.
Mr Joshua Creamer of Shine Lawyers told the committee that:
It was not until I started working on this case that I realised the extent to which children were sent across Australia. I don't know the final numbers, but I would imagine that at least half of this group would have been sent across to other states, and for that reason it makes sense that this would be a national scheme.
Following the considerations outlined in the course of this inquiry, the Australian Greens recommend the following for the Territories Stolen Generations Redress Scheme:
Recommendation
The Australian Government begin the process of negotiating a Treaty or treaties with First Nations people, including a truth telling process and healing. A Treaty will create a unified national identity that celebrates what unites us, protects the rights of First Nations people and their cultures while also acknowledging the ongoing and historical injustices of colonisation, including child removals.
Recommendation
That the current provision for the family or an estate of Stolen Generation members deceased between August 5, 2021 and March 1, 2022 to make applications on behalf of the deceased be extended to the full operational timeframe of the scheme, and for provisions to be included in the scheme for families of members of the Stolen Generations who passed away before August 2021.
Recommendation
The Territories Stolen Generation Redress Scheme (Facilitation) Bill be amended so as to omit the provision for redress payments to be counted for the purposes of determining a person’s assets as outlined in section 4 subclause (3).
Recommendation
The Australian government raise the amount of the redress payment provided under the scheme to at least $200,000 (plus the one-off healing assistance payment of $7000).
Recommendation
The Australian government ensure accessibility to the scheme in accordance with the recommendations of the Healing Foundation, as outlined above.
Recommendation
The Australian government consider including key aspects of the scheme in the primary legislation rather than leaving it to be subject to delegated legislation.
Recommendation
The Australian government consider extending the operational timeframe of the scheme.
Recommendation
The Australian Government consider implementing a national redress scheme, as proposed in the Bringing them Home Report through the National Compensation Fund, for members of the Stolen Generations and their families, to ensure consistency across all jurisdictions and an equitable access to redress.
Senator Lidia Thorpe
Greens Senator for Victoria