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Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 [and] Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021



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ISSN 1328-8091

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BILLS DIGEST NO. 25, 2021-22 19 OCTOBER 2021

Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 [and] Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 Sally McNicol Social Policy Section

Contents

Commencement ............................................................. 3

Purpose of the Bills ......................................................... 3

Background ..................................................................... 4

Compensation and redress schemes .......................... 6

State schemes ........................................................... 6

The National Redress Scheme for Survivors of Institutional Child Sexual Abuse ................................ 6

The ACT and Jervis Bay .............................................. 7

The Northern Territory .............................................. 7

Lead up to the announcement of the Territories Stolen Generations Redress Scheme .......................... 8

The Territories Stolen Generations Redress Scheme ........................................................................ 9

Committee consideration .............................................. 10

Finance and Public Administration Legislation Committee ................................................................. 10

Additional comments .............................................. 11

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 12

Policy position of non-government parties/independents.................................................... 12

Position of major interest groups................................... 13

The Healing Foundation ............................................ 13

Shine Lawyers (Northern Territory Stolen Generations Class Action) ......................................... 13

Australian Human Rights Commission ...................... 14

Date introduced: 26 August 2021

House: House of Representatives

Portfolio: Indigenous Australians

Commencement: The Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 will commence on the earlier of a day fixed by Proclamation (expected to be 1 March 2022 to coincide with the date the proposed Territories Redress Scheme is scheduled to open), or twelve months after Royal Assent.

Further commencement information can be found on page 3 of this Digest.

Links: The links to the Bills, their Explanatory Memorandum and second reading speeches can be found on the home pages for the Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 and the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2021.

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Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 [and] Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 2

Law Council of Australia ............................................ 14

ANTaR ........................................................................ 15

Financial implications .................................................... 15

Statement of Compatibility with Human Rights.............. 16

Parliamentary Joint Committee on Human Rights ... 16 Key issues and provisions .............................................. 16

Scheme will be largely administrative, with limited legislation ...................................................... 16

Number of people likely to benefit ........................... 17

Protection of Territories Redress Scheme payments ................................................................... 17

Assets tests for pensions and payments ................... 18 Other provisions ........................................................... 19

Appendix A: State compensation and redress schemes .. 20

Tasmania ................................................................. 20

Queensland ............................................................. 20

Western Australia .................................................... 21

South Australia ........................................................ 22

New South Wales .................................................... 23

Victoria .................................................................... 24

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Commencement Part 1 of Schedule 1 of the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 (amendment of the Income Tax Assessment Act 1997) will commence on the first 1 January, 1 April, 1 July or 1 October to occur after the day the Act receives Royal Assent. Part 2 of Schedule 1 of the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 (amendments to other Acts) will commence at the same time as the Territories Stolen Generations Redress Scheme (Facilitation) Act 2021.

Purpose of the Bills This Bills Digest relates to two Bills comprising:

• the Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 (the Facilitation Bill) and

• the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 (the Consequential Amendments Bill).

The Bills relate to a proposed redress scheme for survivors of the Stolen Generations in the Northern Territory, the Australian Capital Territory and the Jervis Bay Territory. Under the proposed Territories Stolen Generations Redress Scheme (the Territories Redress Scheme) the Government has committed to the provision of a one-off payment of $75,000 to survivors as well as a one-off healing payment of $7,000.1

The Bills do not establish the Territories Redress Scheme itself or provide for the authority for the above payments to be provided to eligible applicants. In its submission on the inquiry into these Bills, the National Indigenous Australians Agency (NIAA) advised that the Territories Redress Scheme will be largely administrative.2 It is not clear whether the payments will be made pursuant to subordinate legislation made under the Facilitation Bill or other legislation yet to be introduced. The NIAA, however, has stated that it intends that expenditure for the scheme will be authorised through amendments to the Financial Framework (Supplementary Powers) Regulations 1997.3

The purpose of the Facilitation Bill is, instead, largely to protect any payments made to survivors under the Territories Redress Scheme. This includes by ensuring that other payments and benefits that may be payable to survivors under a law of the Commonwealth will be unaffected and by ensuring that the right to payment cannot be transferred to another person.

The purpose of the Consequential Amendments Bill is to amend the Income Tax Assessment Act 1997, the Bankruptcy Act 1966, the Social Security Act 1991, the Social Security (Administration) Act 1999 and the Veterans’ Entitlements Act 1986 to ensure eligible applicants under the Territories Redress Scheme are not adversely affected in relation to other benefits as well as to enable the implementation of the scheme.

1. S Morrison (Prime Minister) and K Wyatt (Minister for Indigenous Australians), Stolen Generations redress scheme, joint media release, 5 August 2021. 2. National Indigenous Australians Agency (NIAA), Submission to Senate Finance and Public Administration Legislation Committee, Inquiry into Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 and Territories Stolen

Generations Redress Scheme (Consequential Amendments) Bill 2021, 9 September 2021, p. 3. 3. NIAA, Answers to questions on notice (4), Inquiry into the provisions of the Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 and the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021, 24

September 2021, response received 30 September 2021, p. 2.

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Background On 26 May 1997, Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families4 (the Inquiry) was tabled in Parliament.

The key findings of the Inquiry were:

nationally, between one in three and one in ten Indigenous children were forcibly removed from their families and communities between 1910 and 1970

Indigenous children were placed in institutions, church missions, adopted or fostered and were at risk of physical and sexual abuse. Many never received wages for their labour

welfare officials failed in their duty to protect Indigenous wards from abuse

under international law, from approximately 1946 the policies of forcible removal amount to genocide; and from 1950 the continuation of distinct laws for Indigenous children was racially discriminatory and

the removal of Indigenous children continues today. Indigenous children are six times more likely to be removed for child welfare reasons and 21 times more likely to be removed for juvenile detention reasons than non-Indigenous children.5

The Inquiry made 54 recommendations. A key recommendation was that reparation be made to Indigenous people affected by policies of forced removal. Reparation should include:

• an acknowledgement of responsibility and apology from all Australian parliaments, police forces, churches and other non-government agencies which implemented policies of forcible removal

• guarantees against repetition

• restitution and rehabilitation and

• monetary compensation.6

The Howard Government (in office when the Bringing them Home report was tabled) opposed both an apology and a direct compensation scheme on a number of grounds, including that the current generation should not accept responsibility for the actions of previous generations, that previous generations had believed their actions to be lawful and in the best interests of children, and that an apology might expose the government to legal liability.7

Instead, the Government response took the form of a $63 million package emphasising ‘practical assistance’ for those separated from their families, including making records more accessible, family support programs, link-up services for family reunion, support for language and cultural

4. National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, (Commissioner: Ronald Wilson), Bringing them home: report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Human Rights and Equal Opportunity Commission, Sydney, 1997.

5. C Dow, Sorry: the unfinished business of the Bringing Them Home report, Background note, Parliamentary Library, Canberra, 4 February 2008. 6. Bringing Them Home Report, op. cit., Recommendations 3, 4, 5 and 6, pp. 245-253; also accessible on Australian Human Rights Commission website: Appendix 9 (Recommendations), Bringing Them Home Report. 7. Dow, Sorry, op. cit.

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maintenance, counselling, and emotional and social wellbeing.8 While welcomed, this package was overshadowed in public debate by the refusal to apologise or pay reparations.9

In November 2000 the Senate Legal and Constitutional References Committee tabled Healing: A Legacy of Generations,10 an inquiry into Federal government implementation of the recommendations of Bringing Them Home, which again called for an apology and a national reparations tribunal.11 The government response extended the assistance package by $53.9 million over four years, but rejected a reparations tribunal on the grounds that it would duplicate the court system and responsibility primarily rested with States, territories and non-government bodies.12 The government response supported in principle the recommendation to fulfil the Bringing them Home recommendation relating to an apology.13

After the 2007 election, then Prime Minister Kevin Rudd delivered the National Apology to Australia’s Indigenous Peoples, especially the Stolen Generations, on 13 February 2008.14 The new leader of the Opposition, Brendan Nelson, reversed Coalition policy and delivered an apology in his address, supporting Prime Minister Rudd’s motion of Apology.15 In the Senate, the Australian Greens attempted to move an amendment committing to compensation but this was opposed by both Labor and the Coalition.16

The Indigenous Healing Foundation was announced on the first anniversary of the National Apology, ‘to address trauma and healing in Indigenous communities, with a strong focus on the unique needs of Stolen Generations.’17 Following a period of national consultation with Aboriginal and Torres Strait Islander people on the role and structure of the foundation, the Healing Foundation was established on 30 October 2009.18 Since its establishment, the Healing Foundation has advocated for the distinct healing needs of the Stolen Generations, including promoting trauma-aware, healing-informed research and practice. It has supported many locally-run healing projects, and built a body of evidence relating to trauma and its impact on social and health issues in Aboriginal and Torres Strait Islander communities.19

8. J Herron (Minister for Aboriginal and Torres Strait Islander Affairs), Bringing Them Home: Commonwealth initiatives, media release, 16 December 1997. 9. See, for example: A Pratt, Practising reconciliation? The politics of reconciliation in the Australian Parliament, 1991-2000, Australian Parliamentary Fellowship Monograph, Parliamentary Library, Canberra, 2005, pp. 109-115. 10. Senate Legal and Constitutional Affairs References Committee, Healing: a legacy of generations: the report of the inquiry

into the federal government's implementation of recommendations made by the Human Rights and Equal Opportunity Commission in Bringing Them Home, The Senate, Canberra, 2000. 11. Ibid., Recommendations 3 and 7. 12. Federal Government Response to ‘Healing: A Legacy of Generations’, 28 June 2001, pp. 1 and 4-5. 13. Ibid., p. 3.

14. K Rudd, Apology to Australia's Indigenous peoples, speech, House of Representatives, 13 February 2008, pp. 167-171. See also: Australian Government, ‘Apology to Australia's Indigenous Peoples’, australia.gov.au website. 15. B Nelson, Apology to Australia's Indigenous peoples, speech, House of Representatives, Debates, 13 February 2008, pp. 173-176. 16. B Brown, National Apology to the Stolen Generations, Australia, Senate, Journals, 2, 13 February 2008, p. 93. 17. K Rudd (Prime Minister), Healing Foundation for Stolen Generations, media release, 13 February 2009. 18. Indigenous Healing Foundation (IHF), ‘Our history’, IHF website. 19. IHF, Strategic Plan 2018-2023, IHF, n.d., pp. 7-8.

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Compensation and redress schemes

State schemes All states have established reparation or redress funds accessible by survivors of the Stolen Generations, with Tasmania establishing the first scheme (in 2006) and Victoria’s scheme announced last year.20

It should be noted that Western Australia and Queensland’s redress schemes (now closed) covered all children who suffered in state care, not just members of the Stolen Generations.21 The lack of a separate compensation scheme in these states has been criticised in the context of the introduction of the two Bills.

At the joint press conference announcing the Territories Stolen Generations Redress Scheme, Pat Turner, Co-Chair of the Coalition of Peaks, reportedly commented on the situation in Queensland and Western Australia:

I’m quite happy to say to the WA government and the Queensland government: time’s up for redress of the Stolen Generations. You have to follow the other jurisdictions throughout Australia. It's high time that you did the right thing.22

In Western Australia, a third of the surviving Aboriginal and Torres Strait Islander population born before 1972 were removed as children, while in Queensland the ratio is around one in six.23

In response to Pat Turner, a statement by Queensland's Minister for Aboriginal and Torres Strait Islander Partnerships, Craig Crawford, reportedly said the state government would closely consider making new announcements and noted the Queensland Government had announced a $300 million Path to Treaty Fund that includes more than $250 million for stolen wages reparations while WA's Minister for Aboriginal Affairs, Stephen Dawson, reportedly said ‘conversations were continuing with key Aboriginal organisations who work in this policy area.’24

Details of current and previous state schemes, including information (where available) about the number of participants, costs, eligibility requirements, and whether there were any posthumous grants is at Appendix A to this Bills Digest.

The National Redress Scheme for Survivors of Institutional Child Sexual Abuse The National Redress Scheme for Survivors of Institutional Child Sexual Abuse (the National Redress Scheme) was established in 2018 in response to recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse.

This scheme provides redress to eligible survivors of institutional child sexual abuse, comprising three components:

• a monetary payment of up to $150,000

20. Tasmania, Office of the Stolen Generations Assessor, Stolen Generations of Aboriginal Children Act 2006: report of the Stolen Generations Assessor, Tasmanian Department of the Premier and Cabinet, Hobart, 2008, p. 2; T Akerman, ‘$10m to redress “a most evil chapter”’, The Australian, 19 March 2020, p. 8.

21. These schemes are discussed further in Appendix A to this Bills Digest. 22. T Stayner, ‘Time's up': Queensland and WA urged to launch their own reparations for Stolen Generations survivors’, SBS News (online), 5 August 2021. The Coalition of Peaks is a representative body of over 50 Aboriginal and Torres Strait Islander community-controlled peak organisations and members.

23. Australian Institute of Health and Welfare (AIHW), Aboriginal and Torres Strait Islander Stolen Generations aged 50 and over: updated analyses for 2018-19, AIHW, Canberra, 2021, p. 20. 24. T Stayner, ‘Time's up': Queensland and WA urged to launch their own reparations for Stolen Generations survivors’, op. cit.

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• access to counselling and psychological services under the scheme or a payment to access counselling and psychological services of up to $5,000 (depending on location) and

• a direct personal response from the responsible institution(s) (if requested by the survivor).25

To be eligible for redress, applicants need to meet a number of criteria. The Operator of the scheme (the Secretary of the Department of Social Services) must determine there was a reasonable likelihood the applicant was the victim of sexual abuse and one or more participating institutions are responsible for the abuse. The applicant must have been a child at the time of the sexual abuse, an Australian citizen or resident, and the abuse must have occurred prior to the scheme start date (1 July 2018). Applicants can only make one application and must waive their rights to take civil action against responsible institutions and officials (but not the abuser) in order to receive redress.26

The scheme will be in operation for ten years, accepting applications any time before 30 June 2027.27

The ACT and Jervis Bay According to the Bringing Them Home report, ‘[a]fter the Australian Capital Territory was established in 1911 the [Aborigines Protection] Board compelled all Aboriginal people in the Territory … to move to the Egerton Mission Station at Yass … The few Aboriginal children who lived in the ACT came under the control of the NSW Protection Board’28 and ‘[u]nder arrangements with the Commonwealth Government the NSW Board also placed Aboriginal children from the ACT who had been removed from their families under the Neglected Children and Juvenile Offenders Act 1905 (NSW)’29 and ‘[f]rom 1915 the legislation applying in the ACT has also applied to Jervis Bay’.30

The NSW Stolen Generations Reparations Scheme is open to persons who were removed by, committed to or otherwise came to be in the care of the Board up until the Aborigines Protection Act 1909 was repealed on 2 June 1969 without regard to whether the person is currently or was previously a resident of NSW.31 This means that many survivors of the Stolen Generations from the ACT and Jervis Bay would be eligible for reparations under this scheme.

The Northern Territory There is currently no compensation or redress scheme for Stolen Generations members in the Northern Territory.

On 28 April 2021, Shine Lawyers announced that they had launched legal action on behalf of the Stolen Generations of the Northern Territory who were forcibly removed from their families as

25. O Griffiths, National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 [and] National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018, Bills Digest, 120, 2017-18, Parliamentary Library, Canberra, 2018, p. 5.

26. Ibid.

27. Further information on the Scheme is available on the National Redress Scheme website; for information on the enacting legislation, refer to O Griffiths, National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 [and] National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Bill 2018, Bills digest, 120, 2017-18, Parliamentary Library, Canberra, 2018.

28. Bringing Them Home Report, op. cit., pp. 33-34. 29. Ibid., p. 38.

30. Bringing Them Home Report, Appendix 1.2 Australian Capital Territory. 31. New South Wales government, ‘NSW Stolen Generations Reparations Scheme and Funeral Assistance Fund’, Aboriginal Affairs website, n.d.

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children, estimating that around 4,000 to 6,000 Northern Territory members of the Stolen Generations are eligible to register for the class action.32

In 2014, after the extent of past abuse of Aboriginal children at the Retta Dixon Children’s Home in Darwin was revealed by the Royal Commission into Institutional Child Sexual Abuse, a case was brought against the Commonwealth and others by 71 Aboriginal survivors of the Home which claimed compensation for abuse, rather than removal per se. In 2017, after extended mediation, the Commonwealth agreed to pay compensation to survivors of the Home. The amount paid was not revealed but it was described as a ‘positive outcome’ for the survivors.33

In the 1990s there were two legal cases which attempted to establish Commonwealth liability for members of the Stolen Generations in the Northern Territory and the illegality of the policy— Kruger v Commonwealth34 and Cubillo and Gunner v Commonwealth.35 Both cases were unsuccessful.

Lead up to the announcement of the Territories Stolen Generations Redress Scheme On 2 June 2021, the CEO of the Healing Foundation, Fiona Cornforth, launched two publications that present demographic data about where and how Stolen Generations survivors and their families live:

• Make Healing Happen: it's Time to Act (The Healing Foundation)36 and

• Aboriginal and Torres Strait Islander Stolen Generations Aged 50 and Over: Updated Analyses for 2018-19 (Australian Institute of Health and Welfare, commissioned by the Healing Foundation).37

In its media release, the Healing Foundation drew attention to the ‘gap within the gap’ of health and socio-economic disparities between the survivors of the Stolen Generations and Indigenous Australians who were not removed from their families.38

Of particular note is the substantial increase in the estimated number of survivors in the past four years,39 and the fact that all survivors will, by next year, be eligible for aged care:

The AIHW [Australian Institute of Health and Welfare] has estimated that the number of Stolen Generations survivors has more than doubled - from 17,150 in 2014-15 to 33,600 in 2018-19," Ms Cornforth said.

"This dramatic increase points to an urgent need for policy responses from all Australian governments, especially in the areas of health, mental health, aged care, disability, welfare, and wellbeing.

32. Shine Lawyers, Thousands of Indigenous families in the Northern Territory file class action against Commonwealth for Stolen Generation, media release, 28 April 2021. 33. A Dias, ‘Sex abuse royal commission: Former Retta Dixon residents in Darwin attain compensation in Australian first’, ABC News, (online), 15 February 2017. 34. Kruger v Commonwealth (1997) 190 CLR 1, [1997] HCA 27. 35. Cubillo and Gunner v Commonwealth (strike out application) (1999) 89 FCR 528, [1999] FCA 518; Cubillo v Commonwealth

(No. 2) (trial) (2000) 103 FCR I, [2000] FCA 1084; Cubillo and Gunner v Commonwealth (appeal) (2001) 112 FCR 455, [2001] FCA 1213. 36. The Healing Foundation, Make healing happen: it's time to act, The Healing Foundation, Canberra, 2021. 37. Australian Institute of Health and Welfare (AIHW), Aboriginal and Torres Strait Islander Stolen Generations aged 50 and over: updated analyses for 2018-19, AIHW, Canberra, 2021. 38. Healing Foundation, Significant increase in Stolen Generations survivor numbers signals urgent need for Government solutions in health, aged care, and other services, media release, 2 June 2021, p. 2. 39. AIHW, op. cit., p. 2.

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One of the more significant findings is that all Stolen Generations survivors will by next year be eligible for aged care.40

Further, there are approximately another 129,200 Aboriginal and Torres Strait Islander adults aged 18 and over who were descendants of relatives removed in the past (but who are not themselves part of the estimated total Stolen Generations population of 33,600).41 The media release notes:

In some jurisdictions - Victoria, South Australia, Western Australia, and the ACT - between 40 per cent and 60 per cent of Aboriginal and Torres Strait Islander adults are descended from Stolen Generations survivors.

"Intergenerational trauma is real, and the AIHW has provided clear evidence," Ms Cornforth said.42

Making Healing Happen sets out a plan with recommendations to achieve ‘real and lasting healing’ for Stolen Generations survivors, their families and communities, comprising four urgent actions through seven priorities. In particular:

Priority 2 is that ‘The Australian Government urgently addresses reparations for Stolen Generations survivors removed in Commonwealth territories (Northern Territory, ACT, Jervis Bay).’43

The Territories Stolen Generations Redress Scheme The Territories Stolen Generations Redress Scheme was announced on 5 August 2021, with the Government committing $378.6 million ‘for a financial and wellbeing redress scheme for living Stolen Generations members who were removed as children from their families in the Northern Territory and the Australian Capital Territory prior to their respective self-government and the Jervis Bay Territory.’44 These funds were not listed as a 2021-22 Budget measure, however the Budget included ‘$3,815.5 million in spending ‘decisions taken but not yet announced’ across all portfolios, creating potential fiscal scope for future announcements.’45

The media release announcing the scheme described the provisions for eligible applicants as:

- A one-off payment of $75,000 in recognition of the harm caused by forced removal.

- A one-off healing assistance payment of $7,000 in recognition that the action to facilitate healing will be specific to each individual.

- The opportunity, if they choose, for each survivor to confidentially tell their story about the impact of their removal to a senior official within government, have it acknowledged and receive a face-to-face or written apology for their removal and resulting trauma.46

Eligible recipients are:

- Aboriginal and/or Torres Strait Islander people,

40. Ibid., p. 1.

41. AIHW, Aboriginal and Torres Strait Islander Stolen Generations, op. cit., p. 23. 42. Ibid., p. 2.

43. The Healing Foundation, Make healing happen, op. cit., pp. 68-70. See also: Healing Foundation, ‘Make Healing Happen’, Healing Foundation website. 44. Morrison and Wyatt, Stolen Generations redress scheme, op. cit. 45. J Haughton and S McNicol, ‘Indigenous affairs: education, employment and community safety’, Budget review 2021-22,

Research paper, Parliamentary Library, Canberra, May 2021. 46. Morrison and Wyatt, Stolen Generations redress scheme, op. cit.

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- under the age of 18 years at the time they were removed from their family by government bodies (including the police), churches/missions and/or welfare bodies, and in circumstances where their Indigeneity was a factor in their removal, and

- removed whilst living in the Northern Territory or in the Australian Capital Territory prior to their respective self-government or the Jervis Bay Territory.47

The media release noted the scheme will be open for applications from 1 March 2022 and will run until June 2026.48

The National Indigenous Australians Agency (NIAA) will be responsible for the implementation and administration of the scheme.49

The NIAA’s submission to the Senate Standing Committees on Finance and Public Administration inquiry into these Bills states that ‘[t]he Scheme will be largely administrative, with some limited legislation.’50 The submission goes on to say:

The Scheme is modelled on the NSW Scheme which is also administratively based. This model was chosen as it:

- has the minimum of complexity regarding regulation which allows it to be more flexible and able to be changed to benefit applicants, where necessary

- reduces the administration and time to establish the Scheme (ie, the need to draft and pass substantial legislation)

- allows a streamlined application process to enable applications to be processed quickly.51

Committee consideration

Finance and Public Administration Legislation Committee The Bill was referred to the Finance and Public Administration Legislation Committee (the Committee) for inquiry. The Committee published its final report on 14 October 2021, recommending that the Bill be passed.52 Of note in the report:

The committee encourages the NIAA to ensure that it explains particular mechanisms of the bill (for example, relating to the treatment of redress payments in determining the value of assets) in clear, practical terms to avoid unnecessary distress or confusion for the Stolen Generations community.

The committee acknowledges the evidence from submitters in regard to broader elements of the scheme, including the amount of the redress payments, the timeframe of the scheme's operation, the support services on offer, and matters relating to eligibility of participants and accessibility of the application process.

Given that the bills under inquiry do not address such details of the scheme, the committee considers it appropriate to refrain from commenting directly on these matters.

47. Ibid.

48. Ibid.

49. NIAA, ‘Territories Stolen Generations Redress Scheme’, NIAA website, n.d. 50. NIAA, Submission, op. cit., p. 3. 51. Ibid.

52. Senate Finance and Public Administration Legislation Committee, Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 [Provisions] and Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 [Provisions], Senate, Canberra, 14 October 2021, p. 33.

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However, the committee strongly encourages the NIAA as the administering agency to take submitter feedback into consideration in the roll-out of the scheme.

It is reassured by evidence indicating that the NIAA will continue to consult closely with the Healing Foundation and other stakeholders, in particular members of the Stolen Generations.

In summary, the committee is satisfied that the measures provided in the bills will effectively facilitate the operation and implementation of certain aspects of the scheme, and allow the scheme to achieve its goals.

The committee is of the view that the bills support the survivor-focused and trauma-informed approach of the scheme, and that the resulting operation of the scheme will positively impact the health and wellbeing of Stolen Generations survivors, their families and communities.

Additional comments Both Labor and the Greens made additional comments on the Bill, with Labor recommending ‘that the Senate support the bills as soon as practicable.’53 The Greens made 8 recommendations.54

Issues raised in Labor’s additional comments include:

• concerns about the use of delegated legislation for the Territories Redress Scheme, and more generally, (further discussed below in Key issues and provision)55

• specific matters relating to the establishment and operation of the Territories Redress Scheme (noting that these matters do not relate to the Bills under consideration), including opening the scheme up to families of deceased members of the Stolen Generations56 and

• seeking further advice from the government on two matters relating to the Bills:

- whether redress payments will be included in assets tests for pensions and payments (further discussed below in Key issues and provision)57 and - whether applicants will be able to choose the support they receive, and that protections from exploitative practices will be put in place.58 Issues raised in the Greens’ additional comments include:

• seeking a substantial increase of the amount of redress to be offered (from $75,000 to at least $200,000)59

• concerns about the use of delegated legislation for the establishment and operation of the scheme60

• ensuring the scheme is accessible for family of deceased members of the Stolen Generations61

• ensuring that redress payments are not included in assets tests for pensions and payments (further discussed below in Key issues and provision).62

Five organisations made submissions to the Committee. These are discussed below under ‘Position of major interest groups’.

53. Ibid., p.36.

54. Ibid., pp. 43-44. 55. Ibid., p. 35.

56. Ibid.

57. Ibid., p. 36.

58. Ibid.

59. Ibid., 37-38, 44. 60. Ibid., 38-39, 44. 61. Ibid., p. 41, 43. 62. Ibid., pp. 41-43.

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Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bills.63

Policy position of non-government parties/independents Non-government parties and independents do not appear to have commented on the specifics of the Bill at the time of writing.

The Australian Labor Party, the Australian Greens, and independent MP Zali Steggall made comments on the Territories Redress Scheme at the time of its announcement. The comments below were made prior to the Bills being tabled in Parliament.

On 5 August 2021, Shadow Minister for Indigenous Australians, Linda Burney, welcomed the funding in the Government’s announcement for a Territories Stolen Generations Redress Scheme, noting that Labor had offered a reparations package at the last election and again in May this year.64

However, Ms Burney expressed concern that the announced scheme is only for surviving members of the Stolen Generations, not family members of those who have already passed away. Additionally, she commented that it is not known how the Territories Redress Scheme might impact on the class action65 launched earlier this year in the Northern Territory, including whether and how many people might withdraw from that case.66

On 6 August 2021, the National Indigenous Times reported that Australian Greens Senator Lidia Thorpe ‘accused the Government of “throwing crumbs and calling it a victory … This Government needs to be realistic about how effective this money will be towards healing. How much of this compensation is going to have to be spent on mental health services treating transgenerational trauma, that the Australian governments [sic] caused?”’67 On 25 May 2021, Senator Thorpe proposed a national compensation scheme for Stolen Generation survivors. The proposed scheme would provide each survivor with a $200,000 compensation payment and an additional $7,000 payment for funeral expenses, as well as a package to support the emotional and mental health needs of survivors and their families.68

On 5 August 2021, in responding to the release of the Commonwealth’s Closing the Gap Implementation Plan, Zali Steggall ‘particularly welcomed’ the Territories Redress Scheme and commented that ‘[t]here is a lot of work to do and I don’t doubt that more funding and effort will be required’.69

63 Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 14, 2021, The Senate, 1 September 2021, p. 13. 64. L Burney (Shadow Minister for Indigenous Australians), Doorstop interview: Closing the Gap report, Sydney, 5 August 2021. In the leadup to the 2019 election, the Shorten ALP Opposition announced a scheme for removed children in Commonwealth jurisdictions (the NT, ACT and Jervis Bay) modelled upon the NSW compensation scheme, with a $75,000

ex gratia payout for each survivor, $7,000 for funeral expenses, and an additional $10 million for the Healing Foundation. The ALP estimated there were approximately 150 survivors who would benefit from the scheme. The Parliamentary Budget Office costed this scheme at $110.8 million over 3 years (2020-2023). See: J Gibson and N Vanovac, ‘Stolen Generations survivors in NT to get $75k under national compensation scheme if Labor elected’, ABC News (online), 12 February 2018; Parliamentary Budget Office (PBO), 2019 Post-election report, PBO, 2019, Appendix B, pp. 8-9 (Commitment PER330). 65. C Gooley, ’Hundreds of Stolen Generations survivors to sue the federal government for compensation’, ABC News, (online

edition), 28 April 2021. 66 Burney, Doorstop interview: Closing the Gap report, op. cit. 67. R Knowles, ‘Indigenous leaders say Stolen Generations redress scheme must go further’, National Indigenous Times, (online

edition), 6 August 2021. 68. L Thorpe, Sorry Day 2021: Greens plan for a national compensation scheme for Stolen Generation survivors, media release, 25 May 2021. 69. Z Steggall, ‘Zali Steggall welcomes the additional funding for Closing the gap but reiterates calls for more ambition‘,

Parliament Updates, Zali Steggall website, 5 August 2021.

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Position of major interest groups Five submissions were received by the Senate Committee inquiry into the Bills; matters raised that relate to the Bills are discussed below. At the time of writing, no other public commentary on the specifics of the Bills (which deal with only a small aspect of the Territories Redress Scheme) were identified. There has been public commentary on the broader Territories Redress Scheme. As this Scheme is proposed to be largely administrative, much of this commentary is not relevant to the Bills as they stand. The concerns are discussed briefly below.

The Healing Foundation The Healing Foundation report Make Healing Happen: it's Time to Act (launched on 2 June 2021) set out four urgent actions through seven priorities, including:

Priority 2: The Australian Government urgently addresses reparations for Stolen Generations survivors removed in Commonwealth territories (Northern Territory, ACT, Jervis Bay).70

On 5 August 2021, the day of the launch of the Commonwealth’s Closing the Gap Implementation Plan, the CEO for the Healing Foundation, Fiona Cornforth, welcomed the Government’s announcement for a Territories Stolen Generations Redress Scheme, saying that ‘reparations for children who were forcibly removed from their families in Commonwealth-controlled territories - the ACT, Norther Territory, and Jervis Bay - are long overdue’.71

Ms Cornforth also highlighted the importance of reparations processes being ‘embedded in a trauma-aware, healing informed (TAHI) framework’ so that trauma is not re-triggered for survivors and their representatives. She also drew attention to the ‘significantly greater and more complex burden of disadvantage’ borne by Stolen Generations survivors and descendants, commenting that ‘it is essential that redress schemes include investments in collective healing such as healing programs, reunions, and return to country.’72

The Healing Foundation did not provide a submission to the inquiry into the Bills.

Shine Lawyers (Northern Territory Stolen Generations Class Action) Shine Lawyers provided a submission to the inquiry into the Bills.73 The submission does not comment on the Bills specifically, but comment on more general matters include:

• Shine Lawyers supports the redress scheme74

• the need for a general payment on behalf of victims of the Stolen Generations who have passed away75

• advice that 349 people involved in the class action have contacted Shine Lawyers with concerns about the Territories Redress Scheme—these concerns include the perceived dishonour around the exclusion of deceased family members from accessing the scheme, and concerns over the process to apply for redress under the scheme76 and

70 The Healing Foundation, Make Healing Happen, op. cit., pp. 68-70. 71. F Cornforth (CEO, Healing Foundation), Reparations an important major step in the healing journey of Stolen Generations survivors in Commonwealth territories, media release, 5 August 2021. 72. Ibid.

73. Shine Lawyers, Submission to Senate Standing Committees on Finance and Public Administration, Inquiry into Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 and Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021, 10 September 2021.

74. Ibid., p. 1.

75. Ibid., pp. 5 and 7.

76. Ibid., pp. 6-7.

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• recommending that the scheme use an outreach program to address access issues including dispersed clients, lack of internet or communications, low literacy levels and the need to speak directly to people.77

Australian Human Rights Commission The Australian Human Rights Commission (AHCR)78 welcomed the Bills, particularly:

… that the redress payment will not ‘affect a participant’s access to, or eligibility for, any pensions, payments, benefits or services (however described) provided by the Commonwealth or require the repayment of an amount to the Commonwealth’, and that the payment ‘is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise’. The Commission also welcomes clarifications that payments made under the Scheme will not affect payments from the National Redress Scheme or vice versa. This approach is consistent with these payments operating as a standalone redress measure, without qualifications.79

The Commission also provided some ‘high-level comments to guide the design of regulations and the implementation of the Scheme’ including that ‘the regulations should not exclude any sub-category of individual affected by child removal policies, such as prisoners.’80

Law Council of Australia The Law Council of Australia (LCA)81welcomed the announcement of the scheme.82 However the LCA did note 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 subsection 4(3) of the Facilitation Bill.

As a general principle … [the LCA] 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, 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.83

The LCA recommended that the Committee seek further advice from the Government on this issue.84

The LCA offered no proposals for amendments to the Consequential Amendments Bill.

Additionally, the LCA raised the following issues relating to the proposed scheme (not specific to the Bills):

• concerns around the inconsistencies in payments between redress schemes in different jurisdictions and at different times85

77. Ibid., pp. 4-5, 7.

78. Australian Human Rights Commission (AHRC), Submission to Senate Standing Committees on Finance and Public Administration, Inquiry into Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 and Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021, 10 September 2021.

79. Ibid., p. 1.

80. Ibid., pp. 2-3. 81. Law Council of Australia (LCA), Submission to Senate Standing Committees on Finance and Public Administration, Inquiry into Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 and Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021, 17 September 2021.

82. Ibid., p. 1.

83. Ibid., p. 2.

84. Ibid.

85. Ibid., p. 4

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• concerns the proposed one-off redress payment of $75,000 plus the healing assistance payment of $7,000 may be insufficient86

• notes that the amount is in line with the current New South Wales Stolen Generations Reparations Scheme (which was based on the amount paid under the Tasmanian scheme, adjusted for CPI) but it is half the amount paid under the National Redress Scheme87

• recommends that the timeframe for the scheme be extended beyond four years to six to eight years. The LCA notes that the National Redress Scheme in comparison will operate for 10 years88

• recommends that the legislation include a mandatory review every two years ‘to assess its effectiveness and make appropriate improvements’89 and

• states its support for redress for the Stolen Generations in all other jurisdictions given the Territories Redress Scheme is not a national program.90

ANTaR ANTaR (Australians for Native Title and Reconciliation) provided a submission to the inquiry into the Bills.91 The submission raises no specific matters relating to the Bills themselves.

ANTaR commended the work of the Healing Foundation and suggested that the recommendations of the Make Healing Happen Report (2021) be considered and adopted in full.92

Other matters raised in the ANTaR submission relating to the scheme more broadly include:

• considering using the Tasmania scheme, where the Assessor ‘was given discretion to determine the scheme's processes’ to assist in developing a ‘procedural benchmark for how the current proposed scheme can operate’93

• consideration be taken into account for evidentiary issues where people cannot demonstrate ‘communal recognition’ to establishing their Indigeneity94

• like the NSW scheme, the Territories Redress Scheme should allow victims to proceed with claims through both the reparations scheme and also through common law (for example, via class actions)95 and

• that the scheme be extended to family members.96

Financial implications The Explanatory Memorandum states that the Australian Government has committed $378.6 million over the 2021 to 2026 financial years to establish the Territories Redress Scheme.97

86. Ibid.

87. Ibid.

88. Ibid.

89. Ibid.

90. Ibid.

91. ANTaR, Submission to Senate Standing Committees on Finance and Public Administration, Inquiry into Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 and Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021, September 2021.

92. Ibid., p. 4.

93. Ibid., p. 5.

94. Ibid., pp. 6-7.

95. Ibid., pp. 8-9.

96. Ibid., p. 10.

97. Explanatory Memorandum, Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021, p. 1.

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Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.98

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) made no comment in relation to the Bills. The PJCHR makes no comment when a Bill does not engage, or only marginally engages, human rights; promotes human rights; and/or permissibly limits human rights.99

Key issues and provisions

Scheme will be largely administrative, with limited legislation The Bills do not establish the Territories Stolen Generations Redress Scheme. The proposed scheme will be largely administrative, with the National Indigenous Australian’s Agency (NIAA) responsible for both the implementation and administration of the scheme.100

The NIAA’s submission to the current committee inquiry into these Bills states that the Territories Redress Scheme ‘will be largely administrative, with some limited legislation’ as noted previously.101

In terms of administration, the Statement of Compatibility with Human Rights to the Facilitation Bill notes the proposed role of an ‘External Advisory Board’ in the 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.102

Clause 6 of the Facilitation Bill will give Government power to make regulations that are necessary or convenient for carrying out/giving effect to the Facilitation Bill.103

The submission from the LCA expresses concern that the scheme may rely heavily on delegated legislation, stating:

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.104

98. The Statement of Compatibility with Human Rights is at pages 7-11 of the Explanatory Memorandum to the Facilitation Bill and at pages 7-12 of the Explanatory Memorandum to the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 (Consequential Amendments Bill).

99. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 11, 2021, 16 September 2021, pp. 60-61. 100. NIAA, Submission, op. cit., p. 3. 101. Ibid., p. 3. See p. 10 of this Bills Digest. 102. Explanatory Memorandum, Facilitation Bill, p. 11. 103. See delegated legislation in chapter 10, House of Representatives Practice, 7th edition (online). 104. LCA, Submission, op. cit., paragraph 14, p. 3.

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The LCA further recommended:

… 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. 105

However, the Commonwealth still requires legal authority for the expenditure of this public money—this legal authority can be provided by legislation.106

This means that there may need to be future legislation to enable the spending of money for the purposes of the Territories Redress Scheme.

Through the Senate Committee process, the NIAA noted in a response to questions on notice that it intends to use the Financial Framework (Supplementary Powers) Regulations 1997 as the legal mechanism for authorising expenditure, and that it will request amendments to be made to this instrument for the purpose.107 The NIAA also clarified that when it describes the scheme as ‘administrative’, it means that the content will be largely defined outside of legislation and instead in policies, procedures and guidelines.108

Because the Bills do not actually set up the details of the scheme, this means that the Government announcements around the quantum of payments to Stolen Generations survivors are policy commitments rather than legal entitlement. The LCA notes, for example:

While the Australian Government has announced that it intends for the ‘one-off redress payment to recognise the harm caused by forced removal’ to be ‘$75,000’ and the ‘one-off healing assistance payment’ to be ‘$7,000’, there is no legal protection to uphold this promise until it is legislated.109

Number of people likely to benefit The NIAA’s submission to the committee inquiry for the Bill suggested around 3,600 people would be eligible for the Territories Redress Scheme.110 The source for this estimate was a recent Australian Institute of Health and Welfare (AIHW) report, which estimated there to be around 3,200 Stolen Generations survivors in the Northern Territory, and around 400 in the ACT.111

As noted previously, both the Australian Labor Party and the Australian Greens have criticised that the scheme is only for survivors, and not the families of survivors, while the submissions from Shine Lawyers and ANTaR recommended payments for families of survivors.112

Protection of Territories Redress Scheme payments The provisions in the Facilitation Bill are primarily aimed at the protection of payments made under the Territories Redress Scheme. This is done in conjunction with amendments to other

105. Ibid., paragraph 16, p. 3. 106. Williams v Commonwealth (Williams) (2012) 248 CLR 156, [2012] HCA 23; A Twomey, ‘Post-Williams expenditure - when can the Commonwealth and states spend public money without parliamentary authorisation?’, University of Queensland Law Journal, 33(1), 2014, pp. 9-28 (see discussion at pages 9-10 and 12-14).

107. NIAA, Answers to questions on notice (4), Inquiry into the provisions of the Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 and the Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021, 24 September 2021, response received 30 September 2021, p. 2.

108. Ibid., p. 1. 109. LCA, Submission, op. cit., p. 3. 110. NIAA, op. cit., p. 3. 111. AIHW, Aboriginal and Torres Strait Islander Stolen Generations, op. cit., p. 20. 112. For greater detail on these positions, see previous sections in this Bills Digest: Policy position of non-government

parties/independents and Position of major interest groups.

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legislation in the Consequential Amendments Bill (discussed in the Other provisions section below).

The Facilitation Bill provides a general rule that payments made under the Territories Redress Scheme do not affect a person’s eligibility or entitlement for any pension, benefit, payment or service provided under Commonwealth law.113 The Bill also provides that payments under the Territories Redress Scheme are not compensation or damages under Commonwealth laws.114 The Bill notes that this specifically includes compensation or damages for the purposes of the Social Security Act 1991 and the Veterans’ Entitlements Act 1986.115 These protections are in place even if the relevant Commonwealth laws are passed in the future, unless that legislation explicitly provides otherwise.116

The above blanket protections do not apply to state and territory laws. However the Facilitation Bill gives the Government the ability to prescribe through regulations state and territory laws under which Territories Redress Scheme payments cannot be considered damages or compensation.117 The Government notes that this provision is included to prevent adverse effects for recipients and the intention is to consult with the relevant jurisdiction prior to designating any such law.118

Importantly, any payments made under the Territories Redress Scheme are absolutely inalienable, meaning that the payment cannot be provided to another person even due to sale, assignment, charge, execution, bankruptcy or otherwise.119 In effect, the right to receive the payment cannot be transferred, whether voluntarily or by operation of law, thereby ensuring the recipient will receive the full benefit of the payment.120 The Consequential Amendments Bill makes consequential amendments to the Bankruptcy Act 1966 which are explained below.

Assets tests for pensions and payments While payments made under the Territories Redress Scheme are explicitly exempt from being counted as income for the purposes of social security and veterans’ payments, the Facilitation Bill will include redress payments in a person’s assets when considering eligibility to receive social security and veterans’ payments, as per subclause 4(3)). Similar arrangements apply to payments under the National Redress Scheme for those who experienced institutional child sexual abuse.121

How subclause 4(3) might affect redress recipients will depend on a number of factors, including:

- whether they receive a social security or veterans’ payment (or will claim one) and which payment and

- the value of any other assets.

113. Facilitation Bill, subclause 4(1). 114. Facilitation Bill, subclause 4(2)(b). 115. Facilitation Bill, subclause 4(2)(a). 116. Facilitation Bill, subclause 4(5). 117. Facilitation Bill, subclause 4(2)(c). 118. Explanatory Memorandum, Facilitation Bill, p. 4. 119. Facilitation Bill, subclause 4(4). 120. Explanatory Memorandum, Facilitation Bill, p. 5. 121. Australian Government, ‘National Redress Scheme’, Services Australia website, 16 June 2021.

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On its own, a payment of $75,000 would not exceed existing asset test thresholds or limits for social security payments. The redress payment would only affect those with other assets with a combined value close to the relevant asset test threshold or limit.122

However, this could be mitigated, should the Government choose to do so, through subclause 4(6) of the Bill, which provides that regulations can be made under the proposed Act (by the Governor-General on advice from the Executive Council) to prescribe laws which any of subclauses 4(1)-(3) do not apply to. This would enable the regulations to prescribe laws (such as the Social Security Act 1991) under which redress payments would not be assessed as assets. The regulation making power is found at clause 6.

The Explanatory Memorandum to the Facilitation Bill explains:

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.

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. [Emphasis added]123

A recent AIHW report found that around 71 per cent of Stolen Generations aged 50 or over had government payments as their main source of income.124 Assuming there is an even distribution of people reliant on government payments as their main source of income throughout all states and territories, this would suggest around 1,000 individuals (of the approximately 3,600 survivors eligible for the Territories Redress Scheme) have the potential to be impacted by the assets test.

Further information would need to be sought as to whether the government has any estimates/information as to whether any potential redress payment recipients might have their social security or veterans’ payment affected by the proposed scheme.

Other provisions The Consequential Amendments Bill contains consequential amendments relating to the establishment of the Territories Redress Scheme. It consists of one schedule:

• Part 1, items 1-2 amend the Income Tax Assessment Act 1997 to exempt payments made under the Territories Redress Scheme from income tax

• Part 2, item 4 amends the Bankruptcy Act 1966 so that payments made under the Territories Redress Scheme are not available to creditors of the recipient for the purpose of recovering money under bankruptcy proceedings

• Part 2, items 5 and 8 amends social security and veterans’ entitlement legislation (the Social Security Act 1991 and the Veterans' Entitlements Act 1986) to exempt payments made under the Territories Redress Scheme from income tests and

122. See page 42 of the Guide to Australian Government Payments for the current asset test thresholds and limits (1 July 2021-19 September 2021). 123. Explanatory Memorandum, Facilitation Bill, p. 5. 124. AIHW, Aboriginal and Torres Strait Islander Stolen Generations, op. cit., p. 6.

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• Part 2, items 6 and 7 amend the Social Security (Administration) Act 1999 allows persons within the NIAA to access protected social security information for the purposes of the Territories Redress Scheme (for example information that would verify applicants’ identities).125

Similar amendments relating to the Bankruptcy Act 1966, the Social Security Act 1991, the Social Security (Administration) Act 1999 and the Veterans' Entitlements Act 1986 were made under the National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Act 2018 in order to protect payments made under the National Redress Scheme for Institutional Child Sexual Abuse.126

Appendix A: State compensation and redress schemes

Tasmania In Tasmania, the Stolen Generations of Aboriginal Children Act 2006 (the Act) was passed unanimously by both Houses of Parliament in November 2006. The Act made provision for a $5 million fund to provide payments to eligible members of the Stolen Generations and their children.127

Budget and Payments: A budget of $5 million was allocated. A total of 151 claims were received. After assessing each application, the Assessor determined that 106 were eligible to receive an ex-gratia payment. 84 eligible members of the Stolen Generations each received $58,333.33. 22 eligible children of deceased members of the Stolen Generations received either $5,000.00 or $4,000.00 each depending on how many people were within the particular family group.128

Queensland To date, Queensland has not established a redress scheme specific to the Stolen Generations. In August 2021, responding to comments by Pat Turner, Co-Chair of the Coalition of Peaks, that it was time for the WA and Queensland governments to establish redress schemes for the Stolen Generations, a statement by Queensland's Minister for Aboriginal and Torres Strait Islander Partnerships, Craig Crawford, said ‘the [Queensland] government had announced a $300 million Path to Treaty Fund that includes more than $250 million for stolen wages reparations’.129

The Queensland government’s redress scheme focussed upon the experience of abuse in state care rather than the removal of Aboriginal and Torres Strait Islander children per se. As such it was open to both Indigenous and non-Indigenous claimants.

The Queensland Government formally recognised the experiences of Forgotten Australians after the 1998-99 Commission of Inquiry into abuse of children in Queensland institutions, better known as the Forde Inquiry.130 The Forde Inquiry found many children had suffered abuse or neglect in institutional care and these people continue to be affected by these experiences into their adult life.

125. Explanatory Memorandum, Consequential Amendments Bill, p. 5. 126. See Schedules 1, 2 and 4 National Redress Scheme for Institutional Child Sexual Abuse (Consequential Amendments) Act 2018. 127. Stolen Generations Assessor, Stolen Generations of Aboriginal Children Act 2006, op. cit., p. 2. 128. Ibid., p. 2. 129. Stayner, ‘"Time's up”’, op. cit. 130. Commission of Inquiry into Abuse of Children in Queensland Institutions, Report of the Commission of Inquiry into Abuse of

Children in Queensland Institutions, [Department of Families, Youth and Community Care, Brisbane], 1999.

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In May 2007, in response to the recommendations of the Forde Inquiry, the Queensland Government established the $100 million Redress Scheme to acknowledge the abuse or neglect suffered by children placed in Queensland institutions by providing ex-gratia payments to those who were harmed. Queensland also made formal apologies, established memorial, link up and counselling programs, and has a grant scheme to help former residents of state care with medical, educational and work expenses.131

Eligibility: Applications for a payment under the scheme opened 1 October 2007 and closed 30 September 2008. The scheme provided for ex gratia payments of between $7,000 (Level 1) and $40,000 (Level 2). Level 1 payments were open to all who were placed in a detention centre or licensed government or non-government children's institution in Queensland covered by the terms of reference of the Forde Inquiry; and had been released from care, and had turned 18 years of age on or before 31 December 1999; and had experienced institutional abuse or neglect. Level 2 payments were for those who experienced ‘more serious’ abuse and neglect. Applicants had to sign a deed of release which prevented them from making any further claim against the Queensland government. The scheme did not apply to those in foster care, in mental asylums, or other institutions not covered by the Forde Inquiry.132

Budget and results: $100 million was allocated. The scheme received over 10,200 applications between 1 October 2007 and 30 September 2008 (the closing date of the scheme). Of these, over 7,400 were assessed as eligible for a level 1 payment. Approximately 3,500 applicants (of those who received a Level 1 payment) were offered an additional level 2 payment, ranging from $6,000 to $33,000. The scheme was finalised in June 2010.133 According to an article in the Australian Indigenous Law Review, 53% of applicants were Indigenous.134

Western Australia To date, Western Australia has not established a redress scheme specific to the Stolen Generations. In August 2021, responding to comments by Pat Turner, Co-Chair of the Coalition of the Peaks, that it was time for the WA and Queensland governments to establish redress schemes for the Stolen Generations, the WA Minister for Aboriginal Affairs, Stephen Dawson, reportedly said ‘conversations were continuing with key Aboriginal organisations who work in this policy area.’135

Similar to Queensland, the WA scheme focussed upon abuse and neglect in state care rather than the act of removal, and was open to both Indigenous and non-Indigenous Australians.

The Redress WA scheme, announced on 17 December 2007, aimed to provide redress for abuse suffered by children, including Stolen Generations children and Child Migrants (‘the forgotten Australians’) in state care prior to 1 March 2006.136 The scheme was intended as an alternative to the court process, especially where statute of limitations or proof of negligence may be an impediment under law.137 Redress WA provided assistance with preparing applications, acknowledgment and apology for suffering experienced as a child in state care, access to support

131. Queensland Government, ‘Support for Forgotten Australians’, Queensland government website, 7 September 2018; Forde Foundation, ‘Apply for Grant’, Forde Foundation website, 2019. 132. Queensland Government, ‘Support for Forgotten Australians’, op. cit.; Senate Legal and Constitutional Affairs References Committee, Review of government compensation payments, Chapter 2, State Redress Schemes, The Senate, Canberra,

6 December 2010. 133. Ibid.

134. S Winter, ‘Australia’s ex gratia redress’, Australian Indigenous Law Review, 13(1), 2009, fn. 10, p. 57. 135. Stayner, ‘"Time's up"’, op. cit. 136. Redress WA, Communications strategy, March 2008, p. 1. 137. Ibid., p. 2.

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services including psychological and financial counselling and ex gratia payment to approved applicants.138 There was provision for expedited payments to applicants with terminal illnesses, and to the heirs of those who died while their applications were being processed.139

Eligibility: Adults, including Child migrants and Stolen Generation children, who were abused or neglected as children in institutional and non-institutional state care, prior to 1 March 2006. The scheme ran from 2008 to 31 December 2011.140

Budget and payments: WA initially budgeted $114 million for the scheme, and subsequently added an additional $30 million.141 Initially a maximum payout of $80,000 was advertised by the Labor Government which introduced the scheme, but this was reduced to maximum of $45,000 by a subsequently elected Liberal Government, causing considerable anger and a sense of betrayal in applicants.142 Payment was to be determined by the level of abuse or neglect.143 There were 5,333 eligible claimants who received payments.144 According to an article in the Redress WA Newsletter, 50% of applicants were members of the Stolen Generation.145

In 2013 the Supreme Court of Western Australia rejected a claim for compensation against the WA Government in that state’s first Stolen Generations case.146 The court, while acknowledging the deep harms caused by the separations, did not accept that there were any relevant fiduciary duties between the State and the plaintiffs, and that even if such duties existed, no breach had been established.

South Australia South Australia flagged that it would create a compensation scheme for members of the Stolen Generation after the successful compensation suit of Bruce Trevorrow in 2007, confirmed by appeal in 2010, resulted in a payout of $775,000 to Mr Trevorrow’s estate (the Trevorrow case is discussed in more detail below).147 However the Next Steps - Stolen Generations Reparation Scheme was not set up until 2015, and opened for applications on 31 March 2016, remaining open for a year.148

Eligibility: To be eligible for this scheme, applicants had to be an Aboriginal person who was removed from their family as a child prior to 31 December 1975 without a court order, and when they were removed their normal place of residence was South Australia, or they were removed by South Australian authorities.149 The emphasis on ‘without a court order’ reflects that in the case of Mr Trevorrow, the court had found that he had been removed illegally.

138. Ibid., p. 1. 139. Senate Legal and Constitutional Affairs References Committee, Review of government compensation payments, op. cit. 140. Find & Connect Support Services, ‘Redress WA (2008 - 2011)’, Find & Connect website, last updated 12 June 2018. 141. Minister for Community Services (WA) (the Hon Robyn McSweeney), ‘Redress WA - Completion Statement’, Western

Australia, Legislative Council, Debates, pp. 7953b-7954a, 29 September 2011, p. [1]. 142. G Green and J MacKenzie, ‘Reflections from the Redress WA experience in light of the Royal Commission into Institutional Responses to Child Sexual Abuse’, Australian Association of Social Workers, May 2013. 143. Senate Legal and Constitutional Affairs References Committee, Review of government compensation payments, op. cit. 144. R McSweeney, ‘Redress WA - Completion’, Western Australia, Legislative Council, Debates, 29 September 2011, pp. 7953-

4. Some other sources give slightly different final numbers; this may be due to differences in counting deceased or non-finalised applicants. 145. ‘National Apology to Forgotten Australians’, Redress WA Newsletter, 2, November 2009. 146. Collard v The State of Western Australia [No 4] [2013] WASC 455. 147. AAP, ‘South Australia loses appeal against $775,000 payout to Bruce Trevorrow’, The Australian (online), 22 March 2010. 148. K Maher (SA Minister for Aboriginal Affairs and Reconciliation), ‘Stolen Generations reparations scheme opens tomorrow’, media release, 30 March 2016. 149. South Australia, Department of State Development, ‘Stolen Generations Reparations Scheme’, SA Government website, 2017.

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Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 [and] Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 23

Budget and results: South Australia budgeted $11 million for this scheme, of which $6 million was for ex gratia compensation, estimated in advance at up to $50,000 each for 300 claimants, and $5 million was for ‘whole-of-community reparations’, such as memorials, counselling and support programs, scholarships and exhibitions telling the stories of the Stolen Generations, which was also open for applications from community groups.150 Upon closure of the scheme it had received more than 350 applications; slightly higher than estimated.151 343 of the 449 applicants were found eligible by the Independent Assessor, including 28 who were removed from the Northern Territory and brought to South Australia.152 On the advice of the Independent Assessor, rather than assessing the level of harm that had been caused to individuals, the Minister agreed that all successful applicants would be treated equally.153 Applicants received an initial $20,000 payment, with a further $10,000 being paid in 2019 as a result of a $3 million underspend in the Stolen Generations Community Reparations Fund.154 Accepting compensation required signing a Deed of Agreement releasing the SA government from any further legal liability.155

New South Wales Following a NSW Parliamentary Inquiry into the Stolen Generations in NSW, and subsequent report, Unfinished Business: Reparations for the Stolen Generations in NSW, which was released in June 2016,156 the NSW Government announced in December 2016 that it would establish a $73 million compensation fund.157 As well as direct compensation, this included funding of $5 million for Stolen Generations organisations, healing and commemorative places and services, and funding of $7,000 per funeral for funerals of Stolen Generations members.158 More detail about the proposed fund became available when the NSW government tabled their response to the Unfinished Business report in February 2017.159 The Scheme commenced on 1 July 2017 and runs for five years (applications must be submitted by 30 June 2022).160

Eligibility: The scheme is open to all Aboriginal and Torres Strait Islander individuals removed by the Aboriginal Protection Board between 1925 and 1969 (when the Board was abolished).161 There were 1,079 known documented Aboriginal child removals during that period, of which it was estimated that around 730 were still alive.162 The response noted that many cases were poorly documented and some estimates have up to 1,350 children removed. Notably, compensation is to be paid for the act of removal which was legal under the law of the day, not on the basis of abuse

150. Ibid.; I Dayman, ‘Stolen Generations members to have access to $11 million fund announced by South Australian Government’, ABC News website, 19 November 2015. 151. T Fedorowytsch, ‘Stolen Generations: South Australia's compensation scheme attracts more applications than expected’, ABC News website, 31 Mar 2017. 152. Independent Assessor [John Hill], Report of the South Australian Stolen Generations Reparations Scheme, South Australian

Government, Adelaide, 2018, p. 30. 153. Ibid., p. 14. 154. South Australia, Department of Premier and Cabinet, ‘Stolen Generations Reparations Scheme‘, SA Government website. 155. Independent Assessor, Report, op. cit., p. 63. 156. New South Wales, Legislative Council, General Purpose Standing Committee No. 3, Reparations for the Stolen Generations

in New South Wales: unfinished business, New South Wales Parliament, Sydney, 2016. 157. B Boney, ‘Stolen Generations: Victims to get $73 million compensation, NSW Government says’, ABC News Website, 2 December 2016. 158. Ibid.

159. NSW Government, NSW Government Response to the General Purpose Standing Committee 3: Report into Reparations for the Stolen Generations, 2016. 160. Aboriginal Affairs NSW, ‘NSW Stolen Generations Reparations Scheme and Funeral Assistance Fund‘, NSW Government website. 161. NSW Government, NSW Government Response, op. cit., p. 17. 162. Ibid.

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Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021 [and] Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021 24

or neglect suffered in care as was the case for the Queensland and WA schemes or illegal removal as was the case in South Australia.163

The response noted that there may be other legal avenues for members of the stolen generation who suffered abuse or neglect to seek compensation (thus implying, although it does not state explicitly, that recipients will not be expected to waive other claims).164 In fact, payments were fast-tracked for 118 Stolen Generations survivors who had received settlements in a Stolen Generations legal action taken in 2014-15.165

Budget: The NSW Government has committed $73 million for individual and collective reparations to Stolen Generations survivors under the six themes: recognition, acknowledgement and apology; monetary reparations; collective healing; tailored supports; guarding against repetition; and cultural renewal.166

The scheme provides a $75,000 compensation payment and a $7,000 Funeral Assistance Payment to eligible applicants. The compensation amount is based upon the amount paid in Tasmania plus CPI.167

Victoria On 18 March 2020, the Victorian Government announced a $10 million redress scheme for Stolen Generation survivors—the scheme will include a range of redress options, such as payments, counselling and a funeral fund.168 About 1,200 Victorians are expected to be eligible for the scheme. Further details of the scheme have yet to be announced.

In July 2018, the Victorian Government legislated to remove the criminal records of those Victorians who had received them when as children and babies they were taken into state care.169 Before 1989, the Victorian legal system did not distinguish between children in need of protection and young people who were offending against the criminal law. Not only did the Court buildings and the Court processes and outcomes not make any clear distinction between these two classes of children, the institutions in which they were placed were often the same. Babies, children and young persons before the Court were charged with being in need of protection and if this charge was found proved it would appear on a police criminal history sheet. This situation was amended in 1989 by the Children and Young Persons Act 1989 (Vic) which clearly separated the protection and criminal parts of the law.170

163. Ibid., pp. 17-18 164. Ibid., p. 17. 165 Aboriginal Affairs NSW, Unfinished business: progress report to Parliament, NSW Government, Sydney, 2018, p. 7; for additional information on the Stolen Generations group action see A Hayley, ‘The Stolen Generations group action: an

alternative model to redress a traumatic past‘, Precedent, 141, July/August 2017, pp. 17-26. 166. Aboriginal Affairs NSW, Unfinished business, op. cit., p. 4; NSW Government, NSW Government Response, op. cit., p. 6. 167. Ibid., p. 18; Aboriginal Affairs NSW, ‘NSW Stolen Generations Reparations Scheme and Funeral Assistance Fund‘, op. cit. 168. T Akerman, ‘$10m to redress “a most evil chapter”’, The Australian, 19 March 2020, p. 8. 169. M Perkins, ’Criminal records that branded children and babies as criminals to be expunged’, The Age (online edition),

2 December 2017. 170. Children’s Court of Victoria, ‘Research materials’, Chapter 1, P Power, ‘Acts, Rules and Regulations’, 11 January 2018, p. 2.

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