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Stolen Generations Reparations Tribunal Bill 2010

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Stolen Generations Reparations Tribunal Bill 2010

 

Explanatory Memorandum

 

Senator Rachel Siewert

 

This bill was introduced by the Australian Greens in the 42 nd Parliament. The following explanatory memorandum reflects the debate at the time of the bill’s original introduction.

 

Background

This Bill establishes a Stolen Generations Reparations Tribunal to provide a process for members of the Stolen Generations to receive reparation and/or an ex gratia payment by way of redressing the historical injustice of the forcible removal of Aboriginal and Torres Strait Islander people from their families.

 

The main provisions in the Bill are as follows:

 

Clauses 1 - 3 - Commencement and definitions

These provisions deal with the commencement of the Act and with the interpretations of key definitions in the Act.

 

Clause 4 - Establishment of Tribunal

This provision establishes the Stolen Generations Reparations Tribunal.

 

Clause 5 - The Principles

This provisions detail the principles which are to guide the functions of the Tribunal. The principles are:

  • Acknowledgment that forcible removal policies were racist and caused emotional, physical and cultural harm to the Stolen Generations;
  • Indigenous children should not, as a matter of general policy, be separated from their families;
  • The distinct identity of the Stolen Generations and that they should have a say in shaping reparation; and
  • Indigenous persons affected by removal policies should be given information to facilitate their access to the Tribunal and other options for redress;
  • Reparation for the effects of forcible removals should be guided by the van Boven Principles.

 

Clauses 6 - 20 - Appointment and functions of the Stolen Generations Reparations Tribunal

These provisions deal with the conditions of appointment and specifically with the methods of appointment of the Stolen Generations Reparations Tribunal and the merit selection pertaining to it. It also specifies the functions and powers of the Tribunal. As well as determining appropriate reparation and/or ex gratia payments, the functions of the Tribunal include the provision of a forum and process for truth and reconciliation, to consider proposed legislation according to the Principles and to inquire into prejudicial policies and practices, both past and present, of Australian government, government agencies and church organisations. The Tribunal's functions that relate to examining proposed legislation and inquiring into prejudicial policies and practices of government and church organisations are limited to legislation and policies and practices that are contrary to, or inconsistent, with the Principles mentioned above. The Tribunal's functions are thereby limited to matters related to the Stolen Generations and the forcible removal of Aboriginal and Torres Strait Islander children from their families.

 

Clauses 21 - 27 - Entitlement and claims for reparation and ex gratia payments

These provisions provide that the Tribunal must award reparation if the claimant is eligible. They also specify the form of claim, and procedures of the Tribunal in hearing a claim. A claim must be made within 10 years of the commencement of the Act. This ensures that adequate time is made available to claimants and that information can be disseminated throughout Australia and overseas. Claimants can be represented at the Tribunal by another person. The Tribunal can determine its own procedures. Hearings are to be conducted with as little formality as possible and the Tribunal is not bound by the rules of evidence.

 

Clause 28 - Forms of reparation

This provision allows for the Tribunal to award reparation to Aboriginal and Torres Strait Islander persons forcibly removed from their families as children. Reparation can be made in a number of forms, including funding for healing centres, community education projects, community genealogy projects, and funding for access to counselling services, health services, language and culture training. It also provides for monetary compensation in circumstances where claimants can prove that they have suffered particular types of harm, such as sexual or physical assault. Monetary compensation under this provision is not considered an ex gratia payment. The focus for reparation is on group rather than individual reparation and more than one form of reparation may be awarded in response to a claim. 

 

Clause 29 - Ex gratia payments

This provision sets out the payment of compensation to individual Aboriginal and Torres Strait Islander persons removed from their families as children under previous government policies as $20 000 as common experience payment and an additional $3000 payment for each year of institutionalisation.

 

Clause 30 - Eligibility criteria for an ex gratia payment or reparation

This provision deals with the eligibility criteria for persons to be eligible for reparation and and/or an ex gratia payment. The criteria are designed to ensure that claimants only have to demonstrate that the act of removal occurred:

·          under legislation that applied specifically to Aboriginal and Torres Strait Islander people; or

·          prior to 31 December 1975, where the removal was carried out, directed or condoned by an Australia government or agent of an Australian government.

 

Eligibility is also extended to children of deceased persons who were removed as outlined above and relatives, family members or descendants of a person who was removed and who the Tribunal is satisfied suffered or was harmed as a consequence of that removal from their family.

 

The Tribunal is also required to have regard for statements by community and other organisations such as Link Up and Aboriginal and Islander Child Care Agencies in determining eligibility.

 

Clause 31 - Time for completion of assessment of claims

The Tribunal is required to decide a claim within 12 months of receiving a claim.

 

Clause 32 - Judicial review if Tribunal decisions

This provision allows decisions made by the Tribunal subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 . Judicial review may be sought by the claimants or by a government, church or non-government body that is subject to a recommendation.

 

Clause 33 - Establishment of Stolen Generations Fund

This provision establishes the Stolen Generations Fund. Reparation and ex gratia payments are to be funded from the Fund.

 

Clauses 34 - 40 - Organisation and administration of Tribunal

These provisions deal with the management and staff arrangements for the Tribunal.

 

Clause 41 - Protection from liability

This provision ensures Tribunal members do not incur personal liability for the actions of the Tribunal done in good faith in the exercise of its functions or powers.

 

Clause 42 - Confidentiality

This provision requires Tribunal members to not divulge information obtained under the Bill, unless it is necessary to do so to carry out a function or exercise a power under the Bill.

 

Clause 43 - Annual reports

This provision requires the Tribunal to prepare an annual report and provide it to the Attorney-General.

 

Clause 44 - Death of claimant

This provision provides that the application for reparation and/or an ex gratia payment does not lapse should the claimant die before their application is decided.

 

Clause 45 - Regulations

This provision provides for the making of regulations.