2019-2020-2021

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

TERRITORIES STOLEN GENERATIONS REDRESS SCHEME

(FACILITATION) BILL 2021

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Minister for Indigenous Australians,

the Honourable Ken Wyatt AM MP)

 

TERRITORIES STOLEN GENERATIONS REDRESS SCHEME

(FACILITATION) BILL 2021

GENERAL OUTLINE

1.       This Bill provides for measures to facilitate the operation of certain aspects of the Territories Stolen Generations Redress Scheme (the Scheme).

The Territories Stolen Generations Redress Scheme

2.       The Scheme is for survivors of the Stolen Generations who were removed as children from their families whilst in the Northern Territory or the Australian Capital Territory (prior to their respective self-government), or the Jervis Bay Territory. The Scheme 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.

3.       The Scheme will provide to eligible participants:

a.        a one-off redress payment to recognise the harm caused by forced removal;

b.       a one-off healing assistance payment in recognition that the action required to facilitate healing will be specific to each individual (these two payments are hereafter referred to as the ‘redress payment’);

c.        the opportunity, if they 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.

Some elements of the Scheme

4.       As the redress payment is in recognition of the harm caused by forced removal and is aimed at healing, the objective of the Bill is to ensure that receipt of a redress 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. The Bill also ensures that the redress payment is absolutely inalienable, including in a bankruptcy context.

FINANCIAL IMPACT STATEMENT

5.       The Australian Government has committed $378.6 million over the 2021 to 2026 financial years to establish the Scheme.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

6.       The statement of compatibility with human rights appears at the end of this explanatory memorandum.

 

TERRITORIES STOLEN GENERATIONS REDRESS SCHEME

(FACILITATION) BILL 2021

NOTES ON CLAUSES

Part 1—Preliminary

Clause 1 - Short Title

7.       This clause provides for the Act to be cited as the Territories Stolen Generations Redress Scheme (Facilitation) Act 2021 .  

Clause 2 - Commencement

8.       Subclause 2(1) provides for the whole of the Act to commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day the Act receives the Royal Assent, the Act will commence on the day after the end of that period.

9.       This Bill will commence on a day fixed by Proclamation so that the provisions can come into effect on the same day that the Scheme opens for applications. This is intended to be 1 March 2022. A period of 12 months for the Bill to commence is provided (if a date by proclamation is not fixed) in case there are delays to the date by which the Scheme will open for applications. As the provisions of this Bill will have no practical effect until redress payments are made under the Scheme, a period of 12 months provides an appropriate length of time for the Bill to commence if there are any delays.  

10.   The note following the table in subclause 2(1) confirms that this table relates only to the provisions of this Act as originally enacted. The table will not be amended to deal with any later amendments of this Act.

11.   Subclause 2(2) confirms that any information in column 3 of the table in subclause 2(1) is not part of this Act. Information may be inserted in column 3, or information in it may be edited, in any published version of this Act.

Clause 3 - Definition

12.   Clause 3 confirms that a reference to the ‘Territories Stolen Generations Redress Scheme’ in the Bill means the scheme known as the Territories Stolen Generations Redress Scheme.

 

Part 2—Protection of payments under the Territories Stolen Generations Redress Scheme

Clause 4 - Protection of payments under the Territories Stolen Generations Redress Scheme

13.   Clause 4 sets out the general rules relating to the protection of a redress payment.

Subclause 4(1)

14.   Subclause 4(1) should be understood in conjunction with the provisions of the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 (Consequential Amendments Bill). The Consequential Amendments Bill makes amendments to the Social Security Act 1991 and the Veterans’ Entitlements Act 1986 to ensure that a redress payment is not income for the purposes of those Acts. This has the effect of exempting a redress payment (paid either as a lump sum or by instalments) from the current income tests under those Acts.

15.   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. 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 or Territory.

16.   This subclause also confirms that it applies to any pension, benefit, payment or service under a law of the Commonwealth, however described. This ensures that the protection provided by subclause 4(1) does not require a pension, benefit, payment or service under a law of the Commonwealth to be described in such terms for this subclause to apply in relation to it.

17.   Subclause 4(6) provides that the regulations may prescribe laws of the Commonwealth to which subclause 4(1) does not apply. 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.

18.   Prescribing 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 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 this flexibility to deal with any unintended consequences that are identified during the administration of the Scheme.

Subclause 4(2)

19.   Redress payments are intended to recognise that forced removal had an adverse impact on the person’s life and to assist in the healing of this impact. A redress payment is not a payment of compensation or damages. Consequently, subclause 4(2) confirms that, for the purposes of the Social Security Act, the Veterans’ Entitlements Act and any other laws of the Commonwealth, a redress payment is not compensation or damages.

20.   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 Part 3.14 of the Social Security Act , Part IIIC of the Veterans’ Entitlements Act and the Health and Other Services (Compensation) Act 1995 . 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 . 

21.   Paragraph 4(2)(c) permits the regulations to prescribe a law of a State or a Territory for the purposes of this paragraph. 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.

22.   Subclause 4(6) provides that the regulations may prescribe laws of the Commonwealth to which subclause 4(2) does not apply. The ability to prescribe such laws 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 the enactment of subclause 4(2). It is appropriate that there is this flexibility to deal with unintended consequences in administering the Scheme.

Subclause 4(3)

23.   Subclause 4(3) is an exception 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 Veterans’ Entitlements Act, the Social Security Act or any other law of the Commonwealth. It also provides that the rule in subclause 4(2) does not apply for the purposes of determining the value of a person’s assets under a law of a State or Territory prescribed by the regulations. This provision 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.

24.   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.

25.   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.

26.   The ability to prescribe such laws will enable the Commonwealth to adapt the applicability of sub-clause 4(3) where it is necessary to do so. 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. It is appropriate that there is this flexibility to deal with unintended consequences in administering the Scheme.

Subclause 4(4)

27.   Subclause 4(4) provides a redress payment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise. This 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.

28.   This subclause also ensures that, before a redress payment determined under the Scheme is paid out to a participant, it cannot be set-off against any other amount owing to the Commonwealth (see section 64 of the Public Governance, Performance and Accountability Act 2013 ).

Subclause 4(5)

29.   Subclause 4(5) provides that sub-clauses 4(1) to (4) have effect despite anything in a law of a 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. This subclause confirms that the rules set out in clause 4 apply in relation to both existing laws and future laws, unless, in the case of a law of the Commonwealth, a law expressly provides otherwise.

 

Part 3—Miscellaneous

Clause 5 - Act binds the Crown

30.   Clause 5 of this Bill confirms that this Act binds the Crown in each of its capacities.

Clause 6 - Regulations

31.   Clause 6 empowers the Governor-General to make regulations:

a.        required or permitted by this Act to be prescribed; or

b.       necessary or convenient to be prescribed for carrying out or giving effect to this Act.

32.   As discussed earlier in this explanatory memorandum, the regulations may prescribe laws of the Commonwealth to which subclauses 4(1) to (3) do not apply and, laws of States and Territories to which subclauses 4(2) and (3) apply. 

33.   As the Scheme is only intended to operate until 30 June 2026, it is appropriate to prescribe these laws by regulation so that the rules in clause 4 can be adapted, as appropriate, to changing or new circumstances and participants can benefit from these adaptations as soon as possible. Furthermore, if any adverse impacts on, or unintended consequences for, a recipient of a redress payment are identified during the administration of this Bill, being able to adapt the laws ensures that these impacts or consequences can be mitigated. 

34.   Having this flexibility through regulations has three additional benefits:

a.        the prescribing of laws by regulation will be done with the benefit of advice from the Executive Council;

b.       these regulations are subject to disallowance (see section 42 of the Legislation Act 2003 ); and

c.        before making a regulation, the rule-maker must be satisfied that there has been undertaken any consultation that is considered by the rule-maker to be appropriate and reasonably practicable to undertake (see section 17 of the Legislation Act). 

35.   This ensures that the promulgation of any regulations is done following appropriate consultation and subject to Parliamentary scrutiny.

 

 

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

1.     This Bill provides for measures to facilitate the operation of certain aspects of the Territories Stolen Generations Redress Scheme (the Scheme).

The Territories Stolen Generations Redress Scheme

2.       The Scheme is for survivors of the Stolen Generations who were removed as children from their families whilst in the Northern Territory or the Australian Capital Territory (prior to their respective self-government), or the Jervis Bay Territory. The Scheme is intended to operate from 1 March 2022 to 30 June 2026, and to be open for applications between 1 March 2022 and 28 February 2026.

3.       The Scheme will provide to eligible participants:

a.        a one-off redress payment to recognise the harm caused by forced removal;

b.       a one-off healing assistance payment in recognition that the action required to facilitate healing will be specific to each individual (these two payments are hereafter referred to as the redress payment);

c.        the opportunity, if they 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.

Some aspects of the Scheme

4.       As the redress payment is in recognition of the harm caused by forced removal and is aimed at healing, the objective of the Bill is to ensure that receipt of a redress payment does not (i) affect a participant’s access to, or eligibility for, any pensions, payments, benefits or services provided by the Commonwealth or (ii) require the repayment of an amount to the Commonwealth. The Bill also ensures that the redress payment is absolutely inalienable.

Human rights implications

5.       This Bill engages the following human rights:

a.        Right to social security: Article 9 of the International Covenant on Economic, Social and Cultural Rights ( ICESCR );

b.       Right to an adequate standard of living: Article 11(1) of the ICESCR;

c.        Right to health: Article 12(1) of the ICESCR;

d.       Right to protection and assistance for the family: Article 10(1) of the ICESCR;

e.        Rights of equality and non-discrimination: Article 2 of the ICESCR, Articles 2, 3, 16 and 26 of the International Covenant on Civil and Political Rights ( ICCPR ) and Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination ( CERD ); and

f.        Right to self-determination: Article 1 of the ICCPR and Article 1 of the ICESCR.

Right to social security and right to an adequate standard of living

6.       Article 9 of the ICESCR recognises the right of everyone to social security, including social insurance. Article 11(1) of the ICESCR recognises the right of everyone to have an adequate standard of living for themselves and their families.

 

7.       The United Nations Committee on Economic, Social and Cultural Rights (the ESCR Committee) has stated that the right to social security is of ‘central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights’. [1] The ESCR Committee further noted that the right to social security encompasses the right to access and maintain benefits, and must be sufficient to afford an adequate standard of living. [2]

 

8.       This Bill advances the right to social security by providing that receipt of a redress payment does not affect a participant’s access to, or eligibility for, any future payments, benefits or services provided by the Commonwealth. This ensures that participation in the Scheme will not adversely affect a participant’s access to other Commonwealth benefits. The Bill also advances the right to an adequate standard of living by ensuring that a recipient of a redress payment receives the full benefit of the payment. This is achieved by ensuring that the redress payment is absolutely inalienable and that receipt of a redress payment does not require the repayment of an amount to the Commonwealth.

Right to health

9.       Article 12(1) recognises the right of everyone to enjoy the highest attainable standard of physical and mental health. The ESCR Committee has interpreted this to encompass the right to enjoy a variety of facilities, goods, services and conditions necessary for the realisation of the highest attainable standard of health. [3]

10.   By ensuring that a redress payment is inalienable and that receipt of it does not require the repayment of an amount to the Commonwealth, this Bill advances the right to health by ensuring that participants in the Scheme receive the full benefit of payments under the Scheme. By having access to the full amount of the healing assistance payment, participants in the Scheme will be able to advance their physical and mental health in a manner of their choosing. This could include utilising the healing assistance payment for services such as counselling, or traditional healing approaches.

Right to protection and assistance for the family

11.   Article 10(1) of the ICESCR guarantees the widest possible protection and assistance to the family. The Scheme provides for payments (including a healing assistance payment) in recognition of the harm caused by past policies of forced removals which damaged family connections. Recipients may choose to utilise payments under the Scheme to assist in repairing or reestablishing those family connections. This Bill will help to ensure the full amount of payments under the Scheme will be available to recipients if they choose to utilise the payments for these purposes.

Right of equality and non-discrimination

12.   The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against. Of particular relevance, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements this prohibition in Australian domestic law.

13.   The Scheme is designed for the benefit of Indigenous Australians who meet eligibility criteria, which includes being a member of the Stolen Generations from a relevant territory. As such, the Scheme, and the Bill which complements the Scheme, raise the issue of racial discrimination.

14.   Article 1(4) of the CERD provides:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

15.   Where a special measure is taken, it is deemed not to be racial discrimination. The Bill operates as part of a special measure in the context of Article 1(4), complementing the Scheme by ensuring that recipients of payments under the Scheme obtain the full benefit of those payments and that receipt of a payment does not affect access to other Commonwealth benefits or services. The Scheme and this Bill should be considered as a package with the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021.

16.      The Scheme and the Bill are designed to address de facto inequalities resulting from historical circumstances that continue to deny Stolen Generations survivors the advantages essential for the full development of human personality. [4] The purpose of the Scheme is to address the impact of past policies as presently felt by the Stolen Generations. It aims to achieve a meaningful recognition of, and healing from, the harm caused by the forced removal of these people from their family, community, culture and surroundings.

 

17.      The Scheme confers benefits on this group of Indigenous peoples through monetary payments and, importantly, by providing access to non-monetary redress such as an opportunity for survivors to tell their story and receive a direct personal response. This latter form of redress offers an acknowledgement of the harm caused and has proven, at least in other like contexts, to play a meaningful role in the healing process. In these ways, the Scheme seeks to recognise and address the harm suffered.

 

18.      The Scheme will assist in extending equal enjoyment and exercise of human rights and fundamental freedoms to relevant Stolen Generations survivors because:

a.        the Scheme is designed to help address the harm caused to this group by past practices;

b.       that harm may have been felt across a whole range of areas, affecting survivors’ enjoyment of a variety of human rights and freedoms (political, economic, social, and, importantly, cultural) in the past and on an ongoing basis; and

c.        redress is intended to help to heal that past and ongoing harm (with recipients free to apply payments however most benefits them), thereby helping survivors to enjoy their relevant rights and freedoms on an equal basis with others.

19.   The Bill complements the Scheme by ensuring that:

a.        the recipients receive the full benefit of the payments (by providing that the payments are inalienable and receipt of the payments do not require the repayment of any amount to the Commonwealth); and

b.       receipt of the payments will not adversely affect a payment recipient’s access to other Commonwealth pensions, benefits, payments or services.

20.   The Bill will operate to the extent that, and for as long as, it applies to monetary payments made under the Scheme. As the Scheme is intended to be open for applications from 1 March 2022 to 28 February 2026, the Bill and the Scheme will only maintain separate rights for Stolen Generations survivors for a finite period.

 

21.   By complementing the Scheme, the Bill advances the rights to equality and non-discrimination by being part of a special measure.

Right to self-determination

22.   Article 1 of the ICCPR and Article 1 of the ICESCR recognise that:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

23.   The Scheme responds to calls by Indigenous community stakeholders for the establishment of a redress scheme. The Scheme will have an External Advisory Board to monitor and advise on the establishment and implementation phases and critically to ensure the Scheme is delivered in a trauma-informed and culturally sensitive manner. Key Indigenous organisations, such as The Healing Foundation and Link Up Services, and trauma specialists will be invited to participate. The Healing Foundation, in its role in partnering with Stolen Generations survivors and organisations to address the ongoing trauma caused by forced removal of children from their families, is well placed to ensure the Scheme operates to best meet the needs of Stolen Generations survivors.

 

24.   This Bill, in ensuring that participants in the Scheme receive the full benefit of their redress payment, will assist participating Stolen Generations members in pursuing their economic, social and cultural development.

Conclusion

25.   This Bill is compatible with human rights because it promotes the protection of the rights to social security, adequate standard of living, health, protection and assistance for the family, equality and non-discrimination, and self-determination.