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This is a Bill, not an Act. For current law, see the Acts databases.
STOLEN GENERATIONS REPARATIONS TRIBUNAL BILL 2010
2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Stolen Generations Reparations Tribunal
Bill 2010
No. , 2010
(Senator Siewert)
A Bill for an Act to provide for the establishment of
a Stolen Generations Reparations Tribunal to
decide and make recommendations on claims for
reparation and other matters, and for related
purposes
i Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Interpretation......................................................................................
2
Part 2--Stolen Generations Reparations Tribunal
4
4 Establishment
of
Tribunal
..................................................................
4
5 The
Principles
....................................................................................
4
6
Constitution of Tribunal ..................................................................... 4
7
Procedures for merit selection of appointment of Tribunal
members ............................................................................................. 5
8
Appointment of Tribunal members .................................................... 5
9 Acting
appointments
..........................................................................
6
10
Functions of Tribunal ........................................................................ 8
11 Additional
function--consideration of proposed legislation ............. 8
12
Additional function--inquiry into prejudicial policies and
practices ............................................................................................. 9
13 Powers
of
the Tribunal ..................................................................... 10
14 Remuneration
and
allowances ......................................................... 11
15
Obligation to disclose interests before considering a
particular matter ............................................................................... 11
16 Outside
employment
........................................................................
12
17
Leave of absence .............................................................................. 12
18 Resignation
......................................................................................
12
19 Termination
of
appointment ............................................................ 12
20 Other
terms
and
conditions .............................................................. 13
Part 3--Claims for reparation or ex gratia payment
14
21 Entitlement
to
reparation ................................................................. 14
22
Form of claim .................................................................................. 14
23 Representation
before Tribunal ........................................................ 14
24
Procedure of Tribunal ...................................................................... 15
25
Circumstances in which hearing may be dispensed with ................. 15
26
Hearings to be in public except in special circumstances ................ 15
27 Participation
by
telephone etc. ......................................................... 16
28 Forms
of
reparation
..........................................................................
16
29
Ex gratia payments .......................................................................... 18
30
Eligibility criteria for an ex gratia payment or reparation ................ 19
31
Time for completion of assessment of claims .................................. 20
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 ii
32
Application of the Administrative Decisions (Judicial
Review) Act 1977 ............................................................................. 20
Part 4--Stolen Generations Fund
21
33
Establishment of Stolen Generations Fund ...................................... 21
Part 5--Organisation and administration of Tribunal
22
34 Registrar
...........................................................................................
22
35
Other staff of the Tribunal ............................................................... 23
36
Statutory Agency etc. for purposes of Public Service Act ............... 23
37
Engagement of consultants etc......................................................... 24
38
Management of administrative affairs of Tribunal .......................... 24
39 Arrangement
of
business ................................................................. 25
40
Places of sitting ................................................................................ 25
Part 6--Miscellaneous
26
41 Protection
from liability ................................................................... 26
42 Confidentiality
.................................................................................
26
43 Annual
reports
.................................................................................
26
44
Death of claimant ............................................................................. 26
45 Regulations
......................................................................................
27
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 1
A Bill for an Act to provide for the establishment of
1
a Stolen Generations Reparations Tribunal to
2
decide and make recommendations on claims for
3
reparation and other matters, and for related
4
purposes
5
The Parliament of Australia enacts:
6
Part 1--Preliminary
7
8
1 Short title
9
This Act may be cited as the Stolen Generations Reparations
10
Tribunal Act 2010.
11
Part 1 Preliminary
Section 2
2 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
2 Commencement
1
This Act commences on the day on which it receives the Royal
2
Assent.
3
3 Interpretation
4
In this Act:
5
Aboriginal or Torres Strait Islander person means anybody who
6
identifies as an Aboriginal person or a Torres Strait Islander as
7
defined in the Aboriginal and Torres Strait Islander Act 2005.
8
Australian government means the government of the
9
Commonwealth of Australia or the government of an Australian
10
state or territory.
11
common experience payment means a lump sum payment that
12
recognises the experience of being a member of the Stolen
13
Generations and its impacts.
14
eligibility criteria means the criteria in section 30 which determine
15
whether a claimant for reparation is eligible for a form of
16
reparation or for an ex gratia payment.
17
ex gratia payment means a payment referred to in section 29.
18
Fund means the Stolen Generations Fund established under
19
section 33.
20
Indigenous person means an Aboriginal or Torres Strait Islander
21
person.
22
Principles means the Principles set out in section 5.
23
Stolen Generations means persons eligible for ex gratia payments
24
or reparation under this Act.
25
Tribunal means the Stolen Generations Reparations Tribunal
26
established by section 4.
27
Tribunal member means a member of the Tribunal appointed
28
under section 8 and includes the Chair of the Tribunal.
29
Preliminary Part 1
Section 3
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 3
Van Boven Principles means the Basic Principles and Guidelines
1
on the Right to Reparation for Victims of Gross Violations of
2
Human Rights and Humanitarian Law (UN Doc
3
E/CN.4/Sub.2/1996/17, 24 May 1996) drafted in 1996 by Professor
4
Theo van Boven.
5
Part 2 Stolen Generations Reparations Tribunal
Section 4
4 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
Part 2--Stolen Generations Reparations Tribunal
1
2
4 Establishment of Tribunal
3
(1) The Stolen Generations Reparations Tribunal is established by this
4
section.
5
(2) In carrying out its functions, the Tribunal is to have regard to the
6
Principles set out in section 5.
7
5 The Principles
8
The Principles are:
9
(a) acknowledgement that forcible removal policies were racist
10
and caused emotional, physical and cultural harm to the
11
Stolen Generations;
12
(b) Indigenous children should not, as a matter of general policy,
13
be separated from their families;
14
(c) the distinct identity of the Stolen Generations should be
15
recognised and they should have a say in shaping reparation;
16
(d) Indigenous persons affected by removal policies should be
17
given information to facilitate their access to the Tribunal
18
and other options for redress;
19
(e) reparation for the effects of forcible removals should be
20
guided by the Van Boven Principles.
21
6 Constitution of Tribunal
22
(1) The Tribunal consists of the following members:
23
(a)
a
Chair;
24
(b) 6 other members, at least 3 of whom must be Aboriginal or
25
Torres Strait Islander persons.
26
Note:
Section 18B of the Acts Interpretation Act 1901 deals with the title of
27
the Chair.
28
(2) The Tribunal is constituted by the Chair and any 4 Tribunal
29
members, 2 of whom must be Aboriginal or Torres Strait Islander
30
persons.
31
Stolen Generations Reparations Tribunal Part 2
Section 7
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 5
(3) The Chair or the acting Chair, as the case may be, is to preside at a
1
sitting of the Tribunal.
2
7 Procedures for merit selection of appointment of Tribunal
3
members
4
(1) The Attorney-General must, by writing, determine a code of
5
practice within 15 days of the commencement of this Act, for
6
selecting persons to be nominated by the Attorney-General for
7
appointment as members of the Tribunal, that sets out general
8
principles on which the selections are to be made, including but not
9
limited to:
10
(a)
merit;
and
11
(b) independent scrutiny of appointments; and
12
(c)
probity;
and
13
(d) openness and transparency.
14
(2) After determining a code of practice under subsection (1), the
15
Attorney-General must publish the code in the Gazette.
16
(3) A code of practice determined under subsection (1) is a legislative
17
instrument for the purposes of the Legislative Instruments Act
18
2003.
19
8 Appointment of Tribunal members
20
(1) Each Tribunal member is to be appointed by the Governor-General
21
by written instrument.
22
Note:
For re-appointment, see subsection 33(4A) of the Acts Interpretation
23
Act 1901.
24
Basis of appointments
25
(2) The Chair of the Tribunal is to be appointed on a full-time basis.
26
(3) A Tribunal member (other than the Chair of the Tribunal) may be
27
appointed on a full-time basis or a part-time basis.
28
Part 2 Stolen Generations Reparations Tribunal
Section 9
6 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
Validation
1
(4) The appointment of an individual as a Tribunal member is not
2
invalid because of a defect or irregularity in connection with the
3
individual's appointment.
4
Period of appointment
5
(5) A Tribunal member holds office for the period specified in his or
6
her instrument of appointment. The period must not exceed 3
7
years.
8
Note:
For re-appointment, see subsection 33(4A) of the Acts Interpretation
9
Act 1901.
10
9 Acting appointments
11
Acting Chair of Tribunal
12
(1) The Governor-General must appoint a person to act as the Chair of
13
the Tribunal:
14
(a) during a vacancy in the office of the Chair of the Tribunal,
15
whether or not an appointment has previously been made to
16
the office; or
17
(b) during any period, or during all periods, when the Chair of
18
the Tribunal:
19
(i) is absent from duty or Australia; or
20
(ii) is, for any reason, unable to perform the duties of the
21
office.
22
Acting Tribunal member (other than Chair of Tribunal)
23
(2) The Governor-General may appoint an individual to act as a
24
Tribunal member (other than the Chair of the Tribunal):
25
(a) during a vacancy in the office of a Tribunal member (other
26
than the Chair of the Tribunal), whether or not an
27
appointment has previously been made to the office; or
28
(b) during any period, or during all periods, when a Tribunal
29
member (other than the Chair of the Tribunal ):
30
(i) is absent from duty or Australia; or
31
Stolen Generations Reparations Tribunal Part 2
Section 9
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 7
(ii) is, for any reason, unable to perform the duties of the
1
office.
2
(3) An acting appointment under subsection (1) or (2) must be in
3
accordance with subsection 6(1) and section 7.
4
(4) If a person has been appointed under this section to act as a
5
Tribunal member during the absence of a Tribunal member and the
6
Tribunal member ceases to hold office without having resumed
7
duty, the period of appointment of the person so appointed is,
8
subject to this Act, deemed to continue until he or she resigns the
9
appointment, the appointment is terminated by the
10
Governor-General or a period of 12 months elapses from the day
11
on which the absent Tribunal member ceases to hold office,
12
whichever first happens.
13
Terms and conditions
14
(5) A person acting as a Tribunal member is to act in that capacity on
15
such terms and conditions as the Governor-General determines.
16
Resignation
17
(6) A person who is acting as a Tribunal member may resign his or her
18
acting appointment by giving the Governor-General a written
19
resignation. The resignation takes effect on the day it is received by
20
the Governor-General or, if a later day is specified in the
21
resignation, on that later day.
22
Exercise of powers
23
(7) A person acting as a Tribunal member in accordance with this
24
section has and may exercise all the powers, and must perform all
25
the functions and duties, conferred or imposed by this Act on a
26
Tribunal member and, for the purposes of the exercise of those
27
powers, or the performance of those functions and duties, this Act
28
has effect as if a reference to a Tribunal member included a
29
reference to a person acting as a Tribunal member.
30
Part 2 Stolen Generations Reparations Tribunal
Section 10
8 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
Validation
1
(8) Anything done by or in relation to an individual purporting to act
2
under an appointment is not invalid merely because:
3
(a) the occasion for the appointment had not arisen; or
4
(b) there was a defect or irregularity in connection with the
5
appointment; or
6
(c) the appointment had ceased to have effect; or
7
(d) the occasion to act had not arisen or had ceased.
8
Note:
See section 33A of the Acts Interpretation Act 1901.
9
10 Functions of Tribunal
10
The Tribunal has the following functions:
11
(a) to decide whether a claimant is eligible for reparation or an
12
ex gratia payment;
13
(b) to decide on the appropriate reparation to be made in
14
response to a claim;
15
(c) to decide on the appropriate amount of any ex gratia payment
16
to be made in response to a claim;
17
(d) to provide a forum and process for truth and reconciliation by
18
which Indigenous persons affected by forcible removal
19
policies may tell their story, have their experience
20
acknowledged and be offered an apology by the Tribunal or
21
others;
22
(e) to consider any proposed legislation in accordance with
23
section 11;
24
(f) to inquire into prejudicial policies and practices in
25
accordance with section 12;
26
(g) such other functions as may be prescribed.
27
11 Additional function--consideration of proposed legislation
28
(1) The Tribunal must examine any proposed legislation referred to it
29
under subsection (2) and must report whether, in its opinion, the
30
proposed legislation or any of provisions of the proposed
31
legislation would be contrary to the Principles.
32
Stolen Generations Reparations Tribunal Part 2
Section 12
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 9
(2) Proposed legislation may be referred to the Tribunal by the
1
relevant Minister, or in the case of a bill introduced in the
2
Parliament, by a resolution of either House of the Parliament.
3
12 Additional function--inquiry into prejudicial policies and
4
practices
5
(1) If any Aboriginal or Torres Strait Islander person claims that he or
6
she, or any group of Aboriginal or Torres Strait Islander persons of
7
which he or she is a member, is or is likely to be prejudicially
8
affected by:
9
(a) any ordinance or any Act (whether or not still in force),
10
passed at any time on or after 31 December 1975; or
11
(b) any regulation, order, proclamation, notice or other statutory
12
instrument made, issued or given at any time on or after
13
31 December 1975 under any ordinance or Act referred to in
14
paragraph (a); or
15
(c) any policy or practice (whether or not still in force) adopted
16
by or on behalf of an Australian government, an Australian
17
government agency or a church organisation, or by any
18
policy or practice proposed to be adopted by or on behalf of
19
an Australian government, an Australian government agency
20
or a church organisation; or
21
(d) any act done or omitted to be done at any time on or after
22
31 December 1975, or proposed to be done or omitted to be
23
done, by or on behalf of an Australian government, an
24
Australian government agency or a church organisation;
25
and that the ordinance, Act, regulation, order, proclamation, notice,
26
other statutory instrument, policy, practice, act or omission, as the
27
case may be, was or is inconsistent with the Principles, he or she
28
may submit that claim to the Tribunal under this section.
29
(2) The Tribunal must inquire into every claim submitted under
30
subsection (1).
31
(3) If the Tribunal finds that a claim submitted to it under
32
subsection (1) is well-founded it may, if it thinks fit and having
33
regard to all the circumstances of the case, recommend to the
34
relevant Australian government, Australian government agency or
35
church organisation that action be taken to compensate for or
36
Part 2 Stolen Generations Reparations Tribunal
Section 13
10 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
remove the prejudice or to prevent other Indigenous persons from
1
being similarly affected in the future.
2
(4) A recommendation under subsection (3) may be in general terms or
3
may specify the action which, in the opinion of the Tribunal, the
4
relevant Australian government, Australian government agency or
5
church organisation should take.
6
(5) The Tribunal must cause a sealed copy of its findings and
7
recommendations (if any) with regard to any claim under
8
subsection (1) to be provided to:
9
(a) the claimant; and
10
(b) the relevant Australian government, Australian government
11
agency or church organisation; and
12
(c) any other person whom the Tribunal thinks it is appropriate
13
to do so.
14
13 Powers of the Tribunal
15
(1) The Tribunal has power to do all things necessary or convenient to
16
be done to perform its functions and, in particular, has power:
17
(a) to obtain information from Australian governments and
18
Australian government agencies; and
19
(b) to obtain further information from the claimant, if unable to
20
decide from the information obtained under paragraph (a)
21
whether a claimant is eligible for reparation or an ex gratia
22
payment; and
23
(c) to conduct investigations for the purposes of the performance
24
or exercise of any of its functions.
25
(2) An investigation under paragraph (1)(c) is to be conducted as the
26
Tribunal thinks fit.
27
(3) The Tribunal may exercise its powers notwithstanding any other
28
Australian government legislation relating to the confidentiality or
29
privacy of information.
30
Stolen Generations Reparations Tribunal Part 2
Section 14
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 11
14 Remuneration and allowances
1
(1) A Tribunal member is to be paid the remuneration that is
2
determined by the Remuneration Tribunal. If no determination of
3
that remuneration by the Tribunal is in operation, the Tribunal
4
member is to be paid the remuneration that is prescribed in the
5
regulations.
6
(2) A Tribunal member is to be paid the allowances that are prescribed
7
in the regulations.
8
(3) This section has effect subject to the Remuneration Tribunal Act
9
1973.
10
15 Obligation to disclose interests before considering a particular
11
matter
12
(1) If a Tribunal member has an interest in a matter being considered
13
or about to be considered by the Tribunal, and the interest is an
14
interest that could conflict with the proper performance of the
15
functions of the Tribunal member's office, as those functions give
16
the Tribunal member a role in deciding a matter, the Tribunal
17
member must disclose the nature of the interest:
18
(a) to the other Tribunal members; and
19
(b) if applicable, to the claimant in the matter.
20
(2) The disclosure must be made as soon as possible after the relevant
21
facts have come to the member's knowledge.
22
(3) The disclosure must be recorded in any record of the Tribunal's
23
consideration of the matter.
24
(4) Unless the other Tribunal members and, if applicable, the claimant
25
in the matter consent, the member:
26
(a) must not be present during any deliberation by the Tribunal
27
on the matter; and
28
(b) must not take part in any decision of the Tribunal in relation
29
to the matter;
30
(c) must not exercise any powers of the Tribunal in relation to
31
the matter.
32
Part 2 Stolen Generations Reparations Tribunal
Section 16
12 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
(5) Consent under subsection (4) must be recorded in any record of the
1
Tribunal's consideration of the matter.
2
(6) Subsection (1) applies to interests whether direct or indirect, and
3
whether or not pecuniary.
4
16 Outside employment
5
A Tribunal member appointed on a full-time basis must not engage
6
in paid employment outside the duties of his or her office without
7
the Attorney-General's approval.
8
17 Leave of absence
9
(1) A Tribunal member appointed on a full-time basis has the
10
recreation leave entitlements that are determined by the
11
Remuneration Tribunal.
12
(2) The Attorney-General may grant a Tribunal member appointed on
13
a full-time basis leave of absence, other than recreation leave, on
14
the terms and conditions as to remuneration or otherwise that the
15
Attorney-General determines.
16
18 Resignation
17
(1) A Tribunal member may resign his or her appointment by giving
18
the Governor-General a written resignation.
19
(2) The resignation takes effect on the day it is received by the
20
Governor-General or, if a later day is specified in the resignation,
21
on that later day.
22
19 Termination of appointment
23
(1) The Governor-General may terminate the appointment of a
24
Tribunal member for misbehaviour or physical or mental
25
incapacity.
26
(2) The Governor-General may terminate the appointment of a
27
Tribunal member if:
28
(a)
the
member:
29
Stolen Generations Reparations Tribunal Part 2
Section 20
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 13
(i) becomes bankrupt; or
1
(ii) applies to take the benefit of any law for the relief of
2
bankrupt or insolvent debtors; or
3
(iii) compounds with his or her creditors; or
4
(iv) makes an assignment of his or her remuneration for the
5
benefit of his or her creditors; or
6
(b) the Attorney-General is satisfied that the performance of the
7
member has been unsatisfactory; or
8
(c) the member is absent, except on leave of absence, for 14
9
consecutive days or for 28 days in any 12 consecutive
10
months; or
11
(d) the member engages, except with the Attorney-General's
12
approval, in paid employment outside the duties of his or her
13
office; or
14
(e) the member fails, without reasonable excuse, to comply with
15
section 15.
16
20 Other terms and conditions
17
A Tribunal member holds office on the terms and conditions (if
18
any) in relation to matters not covered by this Act that are
19
determined by the Governor-General.
20
21
Part 3 Claims for reparation or ex gratia payment
Section 21
14 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
Part 3--Claims for reparation or ex gratia payment
1
2
21 Entitlement to reparation
3
The Tribunal must award reparation under a claim under this Act if
4
the claimant satisfies one or more of the eligibility criteria set out
5
in section 30.
6
22 Form of claim
7
(1) A claim for an ex gratia payment or reparation under this Act must
8
be made in the form prescribed in the regulations.
9
(2) A claim under this Act must be accompanied by a certificate of
10
Indigenous identity and a statement about the circumstances and
11
impact of the removal.
12
(3) A claim under this Act must be made within 10 years of the
13
commencement of this Act.
14
(4) A claimant may, with the consent of the Tribunal, amend a claim
15
under this Act.
16
(5) A claim under this Act may be made by a group of Indigenous
17
persons.
18
(6) A claim may be made on behalf of a person under a legal disability
19
by the guardian of that person.
20
(7) For the purposes of a claim under subsection (6), in order to
21
determine eligibility under section 30, the person under the legal
22
disability is to be regarded as the claimant.
23
23 Representation before Tribunal
24
At the hearing of a claim before the Tribunal, a claimant may
25
appear in person or may be represented by some other person.
26
Claims for reparation or ex gratia payment Part 3
Section 24
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 15
24 Procedure of Tribunal
1
(1) At the hearing of a claim before the Tribunal:
2
(a) the procedure of the Tribunal is, subject to this Act and the
3
regulations and to any other enactment, within the discretion
4
of the Tribunal;
5
(b) the hearing is to be conducted with as little formality and
6
technicality, and with as much expedition, as the
7
requirements of this Act and of every other relevant
8
enactment and a proper consideration of the matters before
9
the Tribunal permit; and
10
(c) the Tribunal is not bound by the rules of evidence but may
11
inform itself on any matter in such manner as it thinks
12
appropriate.
13
(2) At the hearing of a claim before the Tribunal, an Australian
14
government, an Australian government agency or a church
15
organisation involved in any way in the claim must use its best
16
endeavours to assist the Tribunal in its consideration of the claim.
17
25 Circumstances in which hearing may be dispensed with
18
If it appears to the Tribunal that a claim can be adequately decided
19
in the absence of the claimant and the claimant consents to the
20
claim being decided without a hearing, the Tribunal may decide the
21
claim by considering the documents or other material lodged with
22
or provided to the Tribunal and without holding a hearing.
23
26 Hearings to be in public except in special circumstances
24
Public hearing
25
(1) Subject to this section, the hearing of a claim before the Tribunal
26
must be in public.
27
(2) If, at a time a hearing is in public, a person participates in the
28
hearing by a means allowed under section 27, the Tribunal is to
29
take such steps as are reasonably necessary to ensure that the
30
public nature of the hearing is preserved.
31
Part 3 Claims for reparation or ex gratia payment
Section 27
16 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
Private hearing etc.
1
(3) Where the Tribunal is satisfied that it is desirable to do so by
2
reason of the confidential nature of any evidence, document or
3
matter or for any other reason, the Tribunal may, by order:
4
(a) direct that a hearing or part of a hearing must take place in
5
private and give directions as to the persons who may be
6
present; and
7
(b) give directions prohibiting or restricting the publication of
8
the names and addresses of persons appearing before the
9
Tribunal; and
10
(c) give directions prohibiting or restricting the publication of
11
evidence given before the Tribunal, whether in public or in
12
private, or of matters contained in documents lodged with the
13
Tribunal or received in evidence by the Tribunal.
14
(4) In considering whether the hearing of a claim should be held in
15
private, the Tribunal must take as the basis of its consideration the
16
principle that it is desirable that hearings of claims before the
17
Tribunal should be held in public and that evidence given before
18
the Tribunal and the contents of documents lodged with the
19
Tribunal or received in evidence by the Tribunal should be made
20
available to the public, but must pay due regard to any reasons
21
given to the Tribunal why the hearing should be held in private or
22
why publication or disclosure of the evidence or the matter
23
contained in the document should be prohibited or restricted.
24
27 Participation by telephone etc.
25
The Tribunal in the hearing of a claim may allow a person to
26
participate by:
27
(a)
telephone;
or
28
(b) closed-circuit television; or
29
(c) any other means of communication.
30
28 Forms of reparation
31
(1) The Tribunal may award reparation in the form of:
32
Claims for reparation or ex gratia payment Part 3
Section 28
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 17
(a) funding for Stolen Generations groups to provide culture and
1
history centres, or healing centres, including funding for land
2
or premises;
3
(b) funding for community education programs about the history
4
of forcible removals;
5
(c) funding for community genealogy projects for Indigenous
6
communities to help identify membership of the Stolen
7
Generations and their dependants;
8
(d) monetary payments for individuals to meet current needs
9
such as funding to travel to see family;
10
(e) funding for access to appropriate counselling services;
11
(f) funding for access to appropriate health services;
12
(g) funding for access to language and culture training;
13
(h) funding for memorials that appropriately reflect the views of
14
members of the Stolen Generations;
15
(i)
monetary
compensation;
16
(j) any other form of reparation which the Tribunal considers
17
appropriate in the circumstances.
18
(2) Funding and monetary payments under subsection (1) are payable
19
from the Stolen Generations Fund established under section 33.
20
(3) The Tribunal may award one or more of the forms of reparation set
21
out in subsection (1) in response to a claim.
22
(4) The Tribunal may award reparation under paragraph (1)(i) to
23
claimants who prove that they suffered particular types of harm,
24
such as sexual or physical assault.
25
(5) The Tribunal must have regard to the Van Boven Principles in
26
awarding any other form of reparation under paragraph (1)(j).
27
(6) The Tribunal must where practicable award reparation that
28
maximises group rather than individual reparation.
29
(7) In awarding reparation, the Tribunal must take into account
30
whether the claimant has received an ex gratia payment under
31
section 29, the nature and extent of any reparation received by the
32
claimant under State or Territory legislation and any damages or
33
Part 3 Claims for reparation or ex gratia payment
Section 29
18 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
compensation received by the claimant at common law or
1
otherwise.
2
(8) If the Tribunal is satisfied that reparation should be awarded under
3
a claim, the Tribunal must:
4
(a) notify the Trustee of the Stolen Generations Fund of the
5
amount to be disbursed to cover the cost of the award; or
6
(b) recommend the reparation measure for action by the relevant
7
government, church or non-government body.
8
(9) For the avoidance of doubt, for the purposes of this Act an ex
9
gratia payment under section 29 is not a form of monetary
10
compensation.
11
29 Ex gratia payments
12
(1) The Tribunal may award an ex gratia payment in respect of a claim
13
under this Act if the claimant satisfies the eligibility criteria in
14
subsection 30(1), (3) or (4), and indicates in the claim that the
15
claimant seeks an ex gratia payment.
16
(2) An ex gratia payment made under this section is payable from the
17
Stolen Generations Fund established under section 33.
18
(3) The amount of an ex gratia payment made in respect of a claim
19
referred to in subsection (1) is an amount not exceeding $20,000
20
for a common experience payment and $3,000 for each year that a
21
child was removed from his or her family and community while
22
under the age of 18 years.
23
(4) A claimant is not entitled to receive more than one ex gratia
24
payment under this section.
25
(5) In awarding an ex gratia payment under this section the Tribunal
26
may take into account any reparation, damages or compensation
27
awarded under State or Territory legislation, at common law or
28
otherwise.
29
(6) If the Tribunal decides to award an ex gratia payment under this
30
section in respect of a claim, the Tribunal must notify the Trustee
31
of the Stolen Generations Fund of the amount to be disbursed to
32
the claimant.
33
Claims for reparation or ex gratia payment Part 3
Section 30
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 19
(7) Subject to section 31, the Tribunal must decide a claim for an ex
1
gratia payment as soon as is practicable after receiving the claim.
2
(8) If a person claims both an ex gratia payment and reparation, the
3
Tribunal may decide the claim for an ex gratia payment and defer
4
assessment of the claim for reparation.
5
30 Eligibility criteria for an ex gratia payment or reparation
6
(1) To be eligible for an ex gratia payment or reparation under this
7
subsection, a claimant must be:
8
(a) a person who was, as a child, removed from his or her family
9
under legislation that applied specifically to Aboriginal or
10
Torres Strait Islander persons; or
11
(b) an Aboriginal or Torres Strait Islander person who was, as a
12
child, removed from his or her family prior to 31 December
13
1975, if that removal was carried out, directed or condoned
14
by an Australian government or an agent of an Australian
15
government.
16
(2) A claimant is not eligible for reparation under subsection (1) if the
17
Tribunal is satisfied that the removal was in the best interests of the
18
child.
19
(3) To be eligible for an ex gratia payment or reparation under this
20
subsection, a claimant must be:
21
(a) an Aboriginal or Torres Strait Islander person; and
22
(b) a living descendant of a deceased person who would have
23
satisfied the criteria in subsection (1).
24
(4) To be eligible for an ex gratia payment or reparation under this
25
subsection, a claimant must be:
26
(a) an Aboriginal or Torres Strait Islander person; and
27
(b) a relative, family member or descendant of a person who
28
satisfies or would have satisfied the criteria in subsection (1),
29
and who the Tribunal is satisfied suffered or was harmed as a
30
consequence, in whole or in part, of the removal of that
31
person from his or her family.
32
Part 3 Claims for reparation or ex gratia payment
Section 31
20 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
(5) A group of persons may make a joint claim for reparation,
1
provided that:
2
(a) all members of the group are Aboriginal or Torres Strait
3
Islander persons; and
4
(b) all members of the group suffered detriment as a result of
5
circumstances that gave rise to eligibility of any member of
6
that group for reparation under subsection (1), (3) or (4).
7
(6) The Tribunal must have regard to statements by community and
8
other organisations such as Link Ups and Aboriginal and Islander
9
Child Care Agencies for the purpose of determining eligibility
10
under this section.
11
31 Time for completion of assessment of claims
12
The Tribunal must decide a claim under this Act within 12 months
13
of receiving the claim.
14
32 Application of the Administrative Decisions (Judicial Review) Act
15
1977
16
(1) The making of a decision by the Tribunal under this Act is subject
17
to judicial review under the Administrative Decisions (Judicial
18
Review) Act 1977 and the Tribunal may be requested to give a
19
statement of reasons under section 13 of that Act.
20
(2) Judicial review may be sought by the claimant or by any
21
government, church or non-government body that is the subject of
22
a recommendation under paragraph 28(8)(b).
23
24
Stolen Generations Fund Part 4
Section 33
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 21
Part 4--Stolen Generations Fund
1
2
33 Establishment of Stolen Generations Fund
3
(1) The Stolen Generations Fund is established by this section.
4
(2) The purpose of the Fund is to fund:
5
(a) reparation awarded to an eligible claimant under section 28;
6
and
7
(b) an ex gratia payment made under section 29.
8
(3) Payments from the Fund are to be met from funds appropriated by
9
the Parliament for that purpose, together with any contribution by
10
any Australian government, any church organisation involved in
11
administering forcible removal policies or any other contributor.
12
(4) The Stolen Generations Fund is to be administered by a Trustee to
13
be appointed by the Attorney-General.
14
15
Part 5 Organisation and administration of Tribunal
Section 34
22 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
Part 5--Organisation and administration of
1
Tribunal
2
3
34 Registrar
4
(1) There is to be a Registrar of the Tribunal.
5
(2) The Registrar is to be a person engaged under the Public Service
6
Act 1999, or a person whose services are made available under an
7
arrangement made under that Act, who is appointed as the
8
Registrar by the Attorney-General by written instrument.
9
Term of appointment
10
(3) The Registrar holds office for the period (not longer than 5 years)
11
specified in the instrument of appointment, but is eligible for
12
re-appointment.
13
Note:
For re-appointment, see subsection 33(4A) of the Acts Interpretation
14
Act 1901.
15
Remuneration as public servant
16
(4) The office of Registrar is not a public office for the purposes of the
17
Remuneration Tribunal Act 1973.
18
Leave of absence
19
(5) The Registrar has such recreation leave entitlements as are
20
specified in the instrument of appointment.
21
Resignation
22
(6) The Registrar may resign his or her appointment by giving the
23
Attorney-General a written resignation.
24
Termination of appointment
25
(7) The Attorney-General may, by writing, terminate the appointment
26
of the Registrar.
27
Organisation and administration of Tribunal Part 5
Section 35
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 23
(8) The appointment of the Registrar is terminated if the Registrar
1
ceases to be engaged under the Public Service Act 1999 or to be a
2
person whose services are made available under an arrangement
3
made under that Act.
4
Acting appointment
5
(9) The Attorney-General may appoint a person engaged under the
6
Public Service Act 1999, or a person whose services are made
7
available under an arrangement made under that Act, to act as the
8
Registrar:
9
(a) during a vacancy in the office of Registrar (whether or not an
10
appointment has previously been made to the office); or
11
(b) during any period, or during all periods, when the Registrar is
12
absent from duty or from Australia or is, for any reason,
13
unable to perform the duties of the office.
14
(10) Anything done by or in relation to a person purporting to act under
15
this section is not invalid merely because:
16
(a) the occasion for the appointment had not arisen; or
17
(b) there was a defect or irregularity in connection with the
18
appointment; or
19
(c) the appointment had ceased to have effect; or
20
(d) the occasion to act had not arisen or had ceased.
21
(11) The Registrar holds office on such terms and conditions (if any) in
22
respect of matters not provided for by this Act as are determined by
23
the Attorney-General.
24
35 Other staff of the Tribunal
25
The staff required to assist the Registrar in the performance of his
26
or her functions are to be persons engaged under the Public Service
27
Act 1999 or persons whose services are made available under
28
arrangements made under that Act.
29
36 Statutory Agency etc. for purposes of Public Service Act
30
For the purposes of the Public Service Act 1999:
31
Part 5 Organisation and administration of Tribunal
Section 37
24 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
(a) the Registrar and the APS employees assisting the Registrar
1
together constitute a Statutory Agency; and
2
(b) the Registrar is the Head of that Statutory Agency.
3
37 Engagement of consultants etc.
4
(1) The Registrar may, on behalf of the Commonwealth, engage
5
persons having suitable qualifications and experience as
6
consultants to, or to perform services for, the Registrar.
7
(2) An engagement under subsection (1) is to be made by written
8
agreement.
9
38 Management of administrative affairs of Tribunal
10
(1) The Registrar is responsible for managing the administrative affairs
11
of the Tribunal.
12
(2) For that purpose, the Registrar has power to do all things that are
13
necessary or convenient to be done, including, on behalf of the
14
Commonwealth:
15
(a) entering into contracts; and
16
(b) acquiring or disposing of personal property.
17
(3) The powers given to the Registrar by subsection (2) are in addition
18
to any powers given to the Registrar by any other provision of this
19
Act or by any other Act.
20
(4) Subsection (2) does not authorise the Registrar to:
21
(a) acquire any interest or right that would constitute an interest
22
in land for the purposes of the Lands Acquisition Act 1989; or
23
(b) enter into a contract under which the Commonwealth is to
24
pay or receive an amount exceeding $250,000 or, if a higher
25
amount is prescribed, that higher amount, except with the
26
approval of the Attorney-General.
27
(5) The Attorney-General may, by legislative instrument, give the
28
Registrar directions regarding the exercise of his or her powers
29
under this Part.
30
Organisation and administration of Tribunal Part 5
Section 39
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 25
39 Arrangement of business
1
(1) Subject to this Act and to the regulations, the Registrar is
2
responsible for ensuring the expeditious and efficient discharge of
3
the business of the Tribunal.
4
(2) The regulations may provide for:
5
(a) the operations of the Tribunal generally; and
6
(b) the operations of the Tribunal at a particular place; and
7
(c) the procedure of the Tribunal generally; and
8
(d) the procedure of the Tribunal at a particular place; and
9
(e) the consideration of matters by the Tribunal; and
10
(f) the arrangement of the business of the Tribunal; and
11
(g) the places at which the Tribunal may sit.
12
40 Places of sitting
13
Sittings of the Tribunal are to be held from time to time as required
14
at the places determined under the regulations, but the Tribunal
15
may sit at any place in Australia or in an external Territory.
16
17
18
Part 6 Miscellaneous
Section 41
26 Stolen Generations Reparations Tribunal Bill 2010 No. , 2010
Part 6--Miscellaneous
1
2
41 Protection from liability
3
A Tribunal member does not incur any personal liability for an act
4
done or omitted to be done by the Tribunal in good faith in the
5
performance or exercise, or purported performance or exercise, of
6
any of its functions or powers under this Act.
7
42 Confidentiality
8
(1) A Tribunal member must not divulge the information obtained
9
under this Act otherwise than as provided by this section.
10
(2) A Tribunal member may divulge information obtained under this
11
Act in so far as it is necessary to do so to carry out a function, or
12
exercise a power, of the Tribunal under this Act.
13
43 Annual reports
14
(1) As soon as practicable after each 30 June, the Tribunal must
15
prepare a report on the operation of this Act for the 12 months
16
ending on that 30 June and provide it to the Attorney-General.
17
(2) The Attorney-General must cause a copy of a report prepared
18
under subsection (1) to be laid before each House of the Parliament
19
within 5 sitting days of that House after the day on which the
20
Minister receives the report.
21
(3) The Tribunal is to cause copies of a report prepared under
22
subsection (1) to be widely available to the public.
23
44 Death of claimant
24
(1) A claim under this Act does not lapse because the claimant dies
25
before the claim is decided.
26
(2) If a claimant dies before the claim is decided, any ex gratia
27
payment or monetary reparation payable in relation to the claim is
28
to be paid to the estate of the deceased claimant.
29
Miscellaneous Part 6
Section 45
Stolen Generations Reparations Tribunal Bill 2010 No. , 2010 27
45 Regulations
1
The Governor-General may make regulations prescribing matters:
2
(a) required or permitted by this Act to be prescribed; or
3
(b) necessary or convenient to be prescribed for carrying out or
4
giving effect to this Act.
5