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Stolen Generations Reparations Tribunal Bill 2010
Explanatory Memorandum
Senator Rachel Siewert
This bill was introduced by the Australian Greens in the 42nd Parliament.
The following explanatory memorandum reflects the debate at the time of the
bill's original introduction.
Background
This Bill establishes a Stolen Generations Reparations Tribunal to provide
a process for members of the Stolen Generations to receive reparation
and/or an ex gratia payment by way of redressing the historical injustice
of the forcible removal of Aboriginal and Torres Strait Islander people
from their families.
The main provisions in the Bill are as follows:
Clauses 1 - 3 - Commencement and definitions
These provisions deal with the commencement of the Act and with the
interpretations of key definitions in the Act.
Clause 4 - Establishment of Tribunal
This provision establishes the Stolen Generations Reparations Tribunal.
Clause 5 - The Principles
This provisions detail the principles which are to guide the functions of
the Tribunal. The principles are:
. Acknowledgment that forcible removal policies were racist and caused
emotional, physical and cultural harm to the Stolen Generations;
. Indigenous children should not, as a matter of general policy, be
separated from their families;
. The distinct identity of the Stolen Generations and that they should
have a say in shaping reparation; and
. Indigenous persons affected by removal policies should be given
information to facilitate their access to the Tribunal and other
options for redress;
. Reparation for the effects of forcible removals should be guided by
the van Boven Principles.
Clauses 6 - 20 - Appointment and functions of the Stolen Generations
Reparations Tribunal
These provisions deal with the conditions of appointment and specifically
with the methods of appointment of the Stolen Generations Reparations
Tribunal and the merit selection pertaining to it. It also specifies the
functions and powers of the Tribunal. As well as determining appropriate
reparation and/or ex gratia payments, the functions of the Tribunal include
the provision of a forum and process for truth and reconciliation, to
consider proposed legislation according to the Principles and to inquire
into prejudicial policies and practices, both past and present, of
Australian government, government agencies and church organisations. The
Tribunal's functions that relate to examining proposed legislation and
inquiring into prejudicial policies and practices of government and church
organisations are limited to legislation and policies and practices that
are contrary to, or inconsistent, with the Principles mentioned above. The
Tribunal's functions are thereby limited to matters related to the Stolen
Generations and the forcible removal of Aboriginal and Torres Strait
Islander children from their families.
Clauses 21 - 27 - Entitlement and claims for reparation and ex gratia
payments
These provisions provide that the Tribunal must award reparation if the
claimant is eligible. They also specify the form of claim, and procedures
of the Tribunal in hearing a claim. A claim must be made within 10 years of
the commencement of the Act. This ensures that adequate time is made
available to claimants and that information can be disseminated throughout
Australia and overseas. Claimants can be represented at the Tribunal by
another person. The Tribunal can determine its own procedures. Hearings are
to be conducted with as little formality as possible and the Tribunal is
not bound by the rules of evidence.
Clause 28 - Forms of reparation
This provision allows for the Tribunal to award reparation to Aboriginal
and Torres Strait Islander persons forcibly removed from their families as
children. Reparation can be made in a number of forms, including funding
for healing centres, community education projects, community genealogy
projects, and funding for access to counselling services, health services,
language and culture training. It also provides for monetary compensation
in circumstances where claimants can prove that they have suffered
particular types of harm, such as sexual or physical assault. Monetary
compensation under this provision is not considered an ex gratia payment.
The focus for reparation is on group rather than individual reparation and
more than one form of reparation may be awarded in response to a claim.
Clause 29 - Ex gratia payments
This provision sets out the payment of compensation to individual
Aboriginal and Torres Strait Islander persons removed from their families
as children under previous government policies as $20 000 as common
experience payment and an additional $3000 payment for each year of
institutionalisation.
Clause 30 - Eligibility criteria for an ex gratia payment or reparation
This provision deals with the eligibility criteria for persons to be
eligible for reparation and and/or an ex gratia payment. The criteria are
designed to ensure that claimants only have to demonstrate that the act of
removal occurred:
. under legislation that applied specifically to Aboriginal and Torres
Strait Islander people; or
. prior to 31 December 1975, where the removal was carried out, directed
or condoned by an Australia government or agent of an Australian
government.
Eligibility is also extended to children of deceased persons who were
removed as outlined above and relatives, family members or descendants of a
person who was removed and who the Tribunal is satisfied suffered or was
harmed as a consequence of that removal from their family.
The Tribunal is also required to have regard for statements by community
and other organisations such as Link Up and Aboriginal and Islander Child
Care Agencies in determining eligibility.
Clause 31 - Time for completion of assessment of claims
The Tribunal is required to decide a claim within 12 months of receiving a
claim.
Clause 32 - Judicial review if Tribunal decisions
This provision allows decisions made by the Tribunal subject to judicial
review under the Administrative Decisions (Judicial Review) Act 1977.
Judicial review may be sought by the claimants or by a government, church
or non-government body that is subject to a recommendation.
Clause 33 - Establishment of Stolen Generations Fund
This provision establishes the Stolen Generations Fund. Reparation and ex
gratia payments are to be funded from the Fund.
Clauses 34 - 40 - Organisation and administration of Tribunal
These provisions deal with the management and staff arrangements for the
Tribunal.
Clause 41 - Protection from liability
This provision ensures Tribunal members do not incur personal liability for
the actions of the Tribunal done in good faith in the exercise of its
functions or powers.
Clause 42 - Confidentiality
This provision requires Tribunal members to not divulge information
obtained under the Bill, unless it is necessary to do so to carry out a
function or exercise a power under the Bill.
Clause 43 - Annual reports
This provision requires the Tribunal to prepare an annual report and
provide it to the Attorney-General.
Clause 44 - Death of claimant
This provision provides that the application for reparation and/or an ex
gratia payment does not lapse should the claimant die before their
application is decided.
Clause 45 - Regulations
This provision provides for the making of regulations.