Labor supports the introduction of the Territories Stolen Generations Redress Scheme and agrees with the committee’s recommendation that the bills be passed. Such a scheme is long overdue, and Labor Senators further recommend that the bills be passed as soon as practicable due to the timeliness of the measures.
However, Labor Senators have specific concerns about the structure and functioning of the redress scheme to be noted for the purpose of informing both the parliamentary debate of these bills and in the establishment and operation of the scheme itself.
As noted by several submitters, the Bill’s reliance on delegated legislation regarding the design and operation of the scheme is both unnecessary and inappropriate. This reliance on delegated legislation reflects a larger pattern in the government’s legislative agenda that undermines the role of parliamentary scrutiny.
Labor Senators note the Law Council of Australia’s views that:
many of the concerns raised with this scheme are substantive policy issues rather than matters that are purely technical or administrative in nature and therefore should be included in primary legislation;
a consequence of this exclusion is that there remains no guarantee that these issues would receive 'the proactive and necessary' scrutiny that they deserve; and
the details of comparable redress schemes were included in primary legislation.
While the committee report considers it appropriate to refrain from commenting directly on matters included in delegated legislation, Labor Senators make the following recommendations about the establishment and operation of the scheme:
(a)
that consideration be given to families or estates of deceased members of the Stolen Generation to apply in their stead;
(b)
that applications be made available in language and culturally appropriate support for applicants is provided;
(c)
that the time frame proposed for applications be extended from 1 March 2022 – February 2026, to 1 March 2022 – February 2030 in order to consider:
(i)
remoteness of applicants;
(ii)
lack of access and connectivity in remote communities; and
(iii)
applicants who may be a member of the Territory Stolen Generations who were removed to another State and have lived their life interstate;
(d)
that applicants have access to free and independent legal advice at every stage of the application and review process; and
(e)
that a review mechanism be implemented for claims rejected.
In addition to concerns relating to matters of design and operation that have referred to delegated legislation, Labor Senators seek further clarity around two matters that arise from the primary legislation.
Labor Senators support the Bill’s principle that redress payments must be inalienable, and thus support their exclusion from income tests for government payments, as well as bankruptcy proceedings.
Labor Senators note the Law Council of Australia’s 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 subclause 4(3) of the facilitation bill. Labor Senators support the recommendation that the committee seek further advice from the government on this issue.
While the National Indigenous Australians Agency notes in their submission that applicants should not need to access private firms or private advisers, Labor Senators seek clarity from the government that applicants will be able to choose the support they receive, and that protections from exploitative practices will be put in place.
Recommendation
That the Senate support the bills as soon as practicable.
Senator Tim Ayres
Deputy Chair