Chapter 2 - Background and overview of the Bill
2.1
This chapter provides background on the issue of compensation for the
stolen generation, and briefly outlines the main provisions of the Bill.
Background
2.2
Reparation for the stolen generation has been an issue since the report
of the National Inquiry into the Separation of Aboriginal and Torres Strait
Islander Children from Their Families, entitled Bringing them home,[1]
was tabled in Parliament in May 1997. One of the recommendations in the Bringing
them home report was that reparation should be made to all Indigenous
persons who suffered because of forcible removal policies.[2]
The report recommended that reparation should follow the van Boven principles,[3]
and consist of:
- acknowledgement and apology;
- guarantees against repetition;
- measures of restitution;
- measures of rehabilitation; and
- monetary compensation.[4]
2.3
In December 1997, the Federal Government announced its formal response
to the Bringing them home report. The response included a $63 million
package over four years for practical assistance for those affected by the
former practice of separating Indigenous children from their families. In
February 1998, the former Aboriginal and Torres Strait Islander Commission
(ATSIC) set up the Bringing Them Home Taskforce and funds were provided for
'LinkUp' family tracing and reunion services in each state.[5]
In 2001-02, an additional $53.8 million was provided to continue LinkUp
services, as well as the counselling and parenting elements of the original
package of measures.[6]
Apology
2.4
As has been well-documented, Federal Parliament did not agree to a full
apology under the Howard Government. Instead, as part of a 'Motion of
Reconciliation' on 26 August 1999, Federal Parliament expressed 'deep and
sincere regret' for unspecified injustices under the practices of past
generations and for the 'hurt and trauma that many indigenous people continue
to feel as a consequence of those practices'.[7]
The Opposition Leader at the time, the Hon Kim Beazley MP, moved an amendment
to replace 'deep and sincere regret' with an apology and with specific
reference to the stolen generation. However, that amendment was unsuccessful.[8]
2.5
Since 1997, all state and territory parliaments have passed motions
containing explicit apologies to those affected by past policies of forced
separation.[9]
2.6
On 13 February 2008, the new Rudd Government honoured its election
commitment to apologise unreservedly to the stolen generation in Federal
Parliament:
We apologise for the laws and policies of
successive parliaments and governments that have inflicted profound grief,
suffering and loss on these our fellow Australians.
We apologise especially for the removal of
Aboriginal and Torres Strait Islander children from their families, their
communities and their country.
For the pain, suffering and hurt of these Stolen
Generations, their descendants and for their families left behind, we say
sorry.
To the mothers and the fathers, the brothers and
the sisters, for the breaking up of families and communities, we say sorry.
And for the indignity and degradation thus
inflicted on a proud people and a proud culture, we say sorry.[10]
Compensation
2.7
Many stakeholders[11]
have long sought full implementation of the recommendations in the Bringing
them home report, including implementation of the recommendation about
monetary compensation.
2.8
The question of appropriate compensation was dealt with at length by the
Senate Legal and Constitutional References Committee in an inquiry referred to
it by the Senate in 1999. The inquiry focussed on the Federal Government's
implementation of the recommendations in the Bringing them home report
and the committee's report, Healing: A Legacy of Generations, was tabled
in November 2000.[12]
The committee recommended the establishment of a 'reparations tribunal' to
address the need for an effective process of reparation, including the
provision of individual monetary compensation.[13]
The committee also recommended that the details of the form and operations of
the tribunal be finalised following consultation at a proposed national summit.[14]
2.9
In June 2001, the Howard Government tabled its response to the
committee's recommendations. While accepting that 'the events of the past and
their legacy be acknowledged', it expressly rejected the notion of compensation
and the establishment of a reparations tribunal.[15]
The Howard Government consistently emphasised policies of practical assistance
for the stolen generation: it considered that it was more important to provide
practical measures, such as facilities for family reunions, and health and
counselling services, than provide monetary compensation to those affected by
the policies of forced separation.[16]
2.10
The Public Interest Advocacy Centre (PIAC) submitted a detailed proposal
for a reparations tribunal to the Senate Legal and Constitutional References
Committee's inquiry.[17]
The committee recommended that the tribunal model proposed by PIAC be used as a
general template and that the model should consider the most effective ways to
deal with issues of reparation.[18]
PIAC has continued to advocate such a tribunal as the preferred means for
compensation (including during the current inquiry).[19]
2.11
The Senate Legal and Constitutional References Committee also
recommended independent evaluation of the progress of initiatives implemented
by governments in response to the Bringing them home report.[20]
In response to this recommendation, the Ministerial Council for Aboriginal and
Torres Strait Islander Affairs (MCATSIA) agreed to sponsor an independent
evaluation of government and non-government responses to the Bringing them
home report. MCATSIA's final report, Evaluation of Responses to Bringing
Them Home, was released in December 2003. The report noted that 'the area
of financial compensation remains controversial and unresolved'.[21]
Rudd Government position
2.12
On several occasions, the Prime Minister, the
Deputy Prime Minister and the Minister for Families, Housing, Community
Services and Indigenous Affairs have stated explicitly that the Federal
Government will not be establishing any compensation arrangements or any
compensation fund. For example, on 29 January 2008, Prime Minister Rudd told the Channel 7 Sunrise program that:
We will not be establishing any compensation fund.
I said that before the election, I say it again. And since the Stolen Generation
report came out years and years ago, it has been open for any individual,
Aboriginal person affected by that to engage their own legal actions through
the courts of their State or Territory. That's fine. But at the level of
national Government, we will not be establishing any compensation fund.[22]
2.13
In a covering letter to a submission to this
inquiry, the Secretary of the Department of Families, Housing, Community
Services and Indigenous Affairs (FaHCSIA) reiterated that the Federal
Government's position on compensation to the stolen generation is 'clear and
unambiguous'.[23]
2.14
FaHCSIA provided the committee with a further
explanation of the Federal Government's position on the apology and the issue
of compensation. In particular, FaHCSIA noted that:
A theme in a range of submissions to the B[ringing]T[hem]H[ome]
inquiry was that people were seeking recognition of their pain and suffering
and that compensation would provide some tangible evidence of that recognition.
However, most submissions acknowledged that monetary compensation could never
make up for the loss, grief and trauma experienced by Aboriginal people as a
result of past removal policies, laws and practices.
The Government offered the apology on 13 February 2008 in a spirit of respect, acknowledgement and recognition of the past mistreatment of
Indigenous peoples, and particularly the profound grief, suffering and loss
inflicted on the Stolen Generations. This is in keeping with relevant elements
of the B[ringing]T[hem]H[ome] recommendation around reparations.[24]
2.15
FaHCSIA advised that the Federal Government is
focussed on making restitution by closing the 17-year gap in life expectancy
between Indigenous and non-Indigenous Australians, within a generation:
This will be achieved by setting concrete targets and timeframes
for meeting those targets, including within a decade: to halve the gap in
mortality rates for Indigenous children under five; to halve the gap in
Indigenous employment outcomes; and halve the gap in literacy, numeracy and
reading achievements for Indigenous children. This will restore the same life
chances and opportunities available to other Australians to all Indigenous
Australians, including the Stolen Generations.[25]
2.16
FaHCSIA's submission also informed the committee
that the Federal Government recognises that the stolen generation is 'in need
of additional initiatives aimed at restoration and rehabiliation, such as
critical services to help trace and reconnect their families'.[26]
2.17
The Rudd Government recently committed an
additional $15.7 million over four years to further ensure that LinkUp
services, family history programs and Bringing Them Home Counsellors are
adequately resourced to meet demand.[27]
In an answer to a question on notice, FaHCSIA explained that this additional
funding would enable 1000 members of the stolen generation to be reunited with
their families through LinkUp, and would fund an extra 20 Bringing Them Home
Counsellors.[28]
Further, the states and territories 'are being asked to fund another 20
counsellors and focus these in areas of need',[29]
such as male health, and remote and rural health.[30] The Department of Health and
Ageing's submission to this inquiry noted that the implementation of such
measures 'will further strengthen and expand current service delivery to
members of the Stolen Generations'.[31]
2.18
FaHCSIA also advised the committee of progress and
developments since the apology:
Prior to the apology the Government engaged with representatives
of the two national Stolen Generations organisations [that is, the National
Sorry Day Committee and the Stolen Generations Alliance] to ensure the apology
reflected their priorities. The Government has continued that engagement after
the apology, to ascertain their priorities on what their members believe are
the initiatives needed to address their specific needs around restitution and
rehabilitation.
Most recently a working group of Stolen Generation
representatives from both national bodies has been established by the
Department of Families, Housing, Community Services and Indigenous Affairs to
move this partnership forward.
One of the main issues that has arisen through this engagement
with the Stolen Generations organisations to date has been the critical need
for healing services to restore a sense of worth and hope. The Canadian Healing
Foundation is cited as a model that Australia should follow. The Commonwealth
Government is looking at this suggestion, along with others, in considering how
to respond most effectively to the identified needs for Stolen Generations
members and their families. Any response will be based on evidence of what
works in the Australian context.[32]
2.19
In a speech on 26 May 2008, the tenth anniversary of the first National
Sorry Day, Prime Minister Rudd emphasised the 'process of closing the gap
between Aboriginal and Non Aboriginal Australia' and spoke of specific Federal
Government initiatives which have been announced since the apology:
$100 million for Indigenous maternal and child
health services; $56 million over four years to improve literacy and numeracy
for every Indigenous child; $100 million to employ 200 new teachers in the
Northern Territory; $90 million to create 300 jobs for indigenous rangers. And
we recently announced $647 million in Housing funding in partnership with the
Northern Territory Government, which will deliver around 750 new houses and
over 2500 upgrades over the next 5 years and beyond. All part of a $1.6 billion
Indigenous housing program.[33]
2.20
The Prime Minister spoke also of the work of the stolen generation
working group and the Federal Government's commitment to the ongoing healing of
the stolen generation:
Prior to the apology the Government engaged with
representatives of the two national Stolen Generations organisations to ensure
that the apology reflected their aspirations. The Government has continued this
engagement. I would like to applaud the growing partnership between the
National Sorry Day Committee and the Stolen Generations Alliance.
...
A number of [the practical measures highlighted in
the Bringing Them Home report] merge with our national priorities for a
modern Australia, including the national child protection framework, and giving
children the best start in life through early childhood and parenting programs.
The Government is committed to working with Stolen Generations to make sure
their voices are heard in the design of these policies and programs, and to
bring forward some concrete outcomes by this time next year.
Today the Australian Government continues its
commitment to the ongoing healing of our Stolen Generations. It is so important
that we build on the goodwill and opportunities that were opened up by the
apology. One of the main concerns that has arisen through our engagement with
the stolen generations has been the critical need for healing services to help individuals
and families with their own healing.[34]
2.21
Prime Minister Rudd also announced that, at the end
of June, members of the stolen generation, professionals in men's health,
trauma, child safety, mental health, suicide prevention, family reunion
services and government departments 'will come together to meet to map out the
way forward, together'. Mr Rudd stated that this group will consider evidence
which 'might include information about experience in other jurisdictions and
other parts of Australia', research led most recently by Dr Fiona Stanley, the
head of the Telethon Institute for Child Health Research, as well as ideas
presented at the 2020 summit.[35]
2.22
Further:
As a first step, the Department of Health and
Ageing, with advice from the Stolen Generations working group, will develop a
training program for mainstream health services to improve their ability to
care for the Stolen Generations, their families and others who were affected.
As part of improving access to services, we will develop information materials
to promote options for care available to members of the Stolen Generation.[36]
State government
compensation initiatives
2.23
To date, the Tasmanian Government is the only government
to offer specific compensation to Indigenous people affected by policies of
forced separation. The Stolen Generations of Aboriginal
Children Act 2006 (Tas) created a $5 million fund to provide payments to
eligible members of the stolen generation and their children. An independent
Office of the Stolen Generations Assessor was also established with
responsibility for assessing the eligibility of applicants.[37]
2.24
During the current inquiry, the Tasmanian Premier advised the committee
that a total of 151 claims were received under its compensation scheme.
Following assessment of all applications, it was determined that 106 were
eligible to receive an ex gratia payment. 84 eligible living members of the
stolen generation each received $58,333.33 and 22 eligible children of deceased
members of the stolen generation received either $5,000 or $4,000 each,
depending on how many people were within the particular family group. These ex
gratia payments were made on 8 February 2008.[38]
2.25
In December 2007, the Western Australian Government announced a $114
million redress scheme, to be known as Redress WA, for all children who were
abused while in state care, including members of the stolen generation.[39]
In a submission to this inquiry, the Premier of Western Australia advised that
applications to Redress WA opened for 12 months from 1 May 2008 and must be lodged by 30 April 2009. Eligible individuals will be able to apply for an ex gratia
redress payment. Members of the stolen generation who were removed from their
families as children and were subsequently abused or neglected while in the
care of the state are eligible to apply for an ex gratia payment of up to
$10,000 if they show they experienced abuse while in state care; or up to a
maximum of $80,000 where there is medical or psychological evidence of loss or
injury as a result of that abuse. Counselling and a range of other support
services will also be made available to applicants under the scheme.[40]
2.26
The Queensland Government has also established a $100 million
compensation scheme to provide redress for past mistreatment of children in
state care, which includes members of the stolen generation.[41]
The Premier of Queensland informed the committee that, through that scheme,
payments will be made to people who experienced abuse or neglect as children in
a detention centre or licensed institution in Queensland, as covered by the
terms of reference of the Forde Inquiry into the Abuse of Children in
Queensland Institutions.[42]
2.27
Some individuals have also sought compensation through the court system.
Mr Bruce Trevorrow has been the only successful plaintiff to obtain monetary
compensation to date, receiving around $700,000 (including interest). The
Supreme Court of South Australia found that the state of South Australia was
liable for injury suffered by Mr Trevorrow, resulting from removal from his
family as a child without their knowledge or consent.[43]
The decision is now the subject of appeal by the South Australian Government to
the Full Court of the Supreme Court of South Australia.
Main provisions of the Bill
2.28
The main provisions of the Bill are set out below.
Definitions – proposed section 3
2.29
Proposed section 3 sets out the definitions of various terms used in the
Bill. The terms 'Aboriginal or Torres Strait Islander person', 'eligibility
criteria', 'ex gratia payment', 'stolen generations' and 'Stolen Generations
Tribunal' are defined as follows:
- 'Aboriginal or Torres Strait Islander person' – any person who
identifies as an Aboriginal or Torres Strait Islander descendant as defined in
the Aboriginal and Torres Strait Islander Act 2005;
- 'eligibility criteria' – the criteria set out in proposed section
5 of the Bill which determines whether an applicant for an ex gratia payment is
eligible for such a payment;
- 'ex gratia payment' – a payment referred to in proposed section 9
of the Bill;
- 'stolen generations' – persons eligible for ex gratia payments
under the Bill;
- 'Stolen Generations Tribunal' – a group of six persons, half or
more of those persons being of Aboriginal or Torres Strait Islander descent.
Entitlement to ex gratia payment –
proposed section 4
2.30
Proposed subsection 4(1) deals with the appropriation of funds by the
Parliament for an ex gratia payment to an applicant who satisfies the
eligibility criteria in proposed section 5.
2.31
Proposed subsection 4(2) provides that if a person makes an application
for an ex gratia payment under the eligibility criteria and the Stolen
Generations Tribunal determines that the person satisfies one or more of the
eligibility criteria, the person will be entitled to receive one ex gratia
payment.
2.32
Proposed subsection 4(3) precludes a person who has already received a
payment under state or territory stolen generation (or similar) legislation from
being eligible for an ex gratia payment under the Bill.
Eligibility criteria for ex gratia
payment – proposed section 5
2.33
Proposed section 5 sets out the eligibility criteria for ex gratia
payments. Eligibility for an ex gratia payment is open to an Aboriginal and
Torres Strait Islander person who:
- was subject to the Commonwealth Aboriginals Ordinance (1911 or
1918)[44]
and was removed from their family;
- was not subject to the Commonwealth Aboriginals Ordinance (1911
or 1918) but was subject to similar legislation which resulted in them being
forcibly removed from their family prior to 31 December 1975;
- was removed from their family before 31 December 1975 and was
under the age of 21 at the time of their removal, and who the Stolen
Generations Tribunal is satisfied was subject to duress by a state agency
because of, in whole or in part, race-based policies operating at the time;
-
was subject to the Commonwealth Aboriginals Ordinance (1911 or
1918) or similar legislation which permitted forcible removal of children from
their families; or
- is a living descendant of a deceased person who would have
satisfied one of the above criteria.
Applications for ex gratia payment
– proposed section 6
2.34
Proposed section 6 states that an application for an ex gratia payment
must be made to the Secretary of the relevant Department. An application may be
presented through oral evidence to the Stolen Generations Tribunal by the
applicant(s) either in person 'or by other means necessary'.
2.35
An application must be made within a period of seven years of the
commencement of the Bill. According to the Explanatory Memorandum (EM) to the Bill,
this will ensure that 'information can be disseminated throughout Australia and
overseas to locate the Stolen Generations and to provide time for sufficient
resources to be gathered to make adequate applications'.[45]
Referral of application to Stolen
Generations Tribunal – proposed section 7
2.36
Proposed section 7 states that the Secretary of the Department, on
receipt of an application under proposed section 6, is to forward the application
to the Stolen Generations Tribunal.
Time for completion of assessments
– proposed section 8
2.37
Proposed section 8 provides that the Stolen Generations Tribunal must
make its decision in relation to eligibility for an ex gratia payment within 12
months after receiving an application.
Establishment of Stolen Generations
Fund – proposed section 10
2.38
Proposed section 10 establishes an account to be known as the 'Stolen
Generations Fund' to disburse funds to claimants found to be eligible for
compensation under the Bill. The Stolen Generations Fund is to be administered
by the Department.
Amount of ex gratia payment –
proposed section 11
2.39
Under proposed section 11, if a person makes an application for an ex
gratia payment under the eligibility criteria set out in proposed section 5 and
the Stolen Generations Tribunal determines that the person satisfies one or
more of the eligibility criteria, the person will be entitled to receive one ex
gratia payment in an amount not exceeding $20,000 as 'common experience
payment' and $3,000 for each year of institutionalisation.
2.40
Proposed section 11 sets the amount of an ex gratia payment in respect
of an individual Aboriginal and Torres Strait Islander applicant at these
amounts.
Review of Stolen Generations
Tribunal decisions – proposed section 13
2.41
Under proposed section 13, all decisions made by the Stolen Generations
Tribunal are eligible for judicial review.
Appointment and functions of Stolen
Generations Tribunal – proposed sections 14-20
2.42
Proposed sections 14-20 provide for the methods of appointment of the
Stolen Generations Tribunal and procedures for merit selection of appointments
under the Bill. These proposed sections also specify the powers and procedures
pertaining to the Stolen Generations Tribunal.
2.43
Proposed subsection 17(1) gives the Stolen Generations Tribunal 'power
to do all things necessary or convenient to be done to perform [its] functions',
including power to obtain information from departments and agencies, and power
to obtain further information from the applicant if required. Under proposed
subsection 17(2), the Stolen Generations Tribunal will be able to exercise its
powers, notwithstanding any other legislation relating to the confidentiality
or privacy of information.
2.44
Proposed section 20 provides that the Stolen Generations Tribunal must
give the Minister a report on the performance of its functions within 30 days
after the day on which it makes a decision on the final application for an ex
gratia payment. The Minister must then table the report in both Houses of
Parliament within five days of receiving it.
Death of applicant – proposed
section 21
2.45
Proposed section 21 provides that an application for an ex gratia
payment does not lapse because the applicant dies before the application is
decided. If an applicant for an ex gratia payment dies before the application
is decided, an ex gratia payment (if payable on the application), must be paid
to the estate of the deceased applicant.
Additional support – proposed
section 22
2.46
Proposed section 22 provides for the establishment of other support
services, including funding to be allocated for 'healing centres and services
of assistance for people in receipt of compensation as a result of removal from
their families', and for a 'Funeral Trust Fund for the provision of funeral
services for the deceased'.
Provisions relating to the Stolen
Generations Tribunal – Schedule 1
2.47
Schedule 1 contains provisions relating to the remuneration, conditions
of appointment, and removal from office of members of the Stolen Generations
Tribunal.
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