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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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ABORIGINAL LANDS PARLIAMENTARY STANDING COMMITTEE: STOLEN GENERATIONS REPARATIONS TRIBUNAL BILL INQUIRY

The Hon. L.R. BREUER (Giles) (17:12): I move:

That the report of the committee, entitled Inquiry into the Stolen Generations Reparations Tribunal Bill 2010, be noted.

The Stolen Generations Reparations Tribunal Bill was introduced in the Legislative Council by the Hon. Tammy Franks in July 2010. On 9 June 2011 the Stolen Generations Reparations Tribunal Bill 2010 was withdrawn and referred to the Aboriginal Lands Parliamentary Standing Committee for inquiry and report.

The bill offers reparations to Aboriginal people who have been removed or, in essence, stolen from their families under state government policy practices that were in place until the 1970s, and, by offering reparation, the state is also acknowledging that the practices of the past caused emotional, physical and cultural harm to Aboriginal people.

To offer some historical perspective on this proposed legislation, this bill is the result of the recommendations of the report of the Human Rights and Equal Opportunity's 'National Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children From Their Families', or, as it is more commonly known, the Bringing Them Home report, which for the first time identified the scope and depth of the issue of the forced removal of Indigenous children from their families and the term 'stolen generations' was coined.

The report concluded that an estimated 10 to 33 per cent of all Indigenous children were removed from their families under government policy practices up until the 1970s. The Bringing Them Home report made 54 recommendations, and to date a number of the recommendations have been implemented at the commonwealth and state levels, including the acknowledgment of the stolen generations issue which led to the formal apologies by the then prime minister Rudd on behalf of the Australian government, as well as the formal apologies by the states and territories, including the Hon. Dean Brown on the 28 May 1997, who was at the time the minister for aboriginal affairs. South Australia was the second state to make a formal apology to the stolen generations.

A further response called for in the Bringing them Home report was the establishment of the reparations tribunal to deal with reparations for stolen generations individuals. Successive governments have rejected the idea of reparations and then have had to deal with a number of civil cases brought by the stolen generations individuals through the courts. One case, defended by the Australian government, had legal costs of over $10 million. The only successful civil case for compensation was the South Australian Supreme Court's award of $525,000 to a now deceased Ngarrindjeri man who was moved from his family at age 13 months. The legal cost of that case was nearly $2 million.

While both commonwealth and state governments have made formal apologies, Tasmania is the only jurisdiction to offer reparations to the stolen generations. To be fair, the commonwealth and states have provided significant financial resources to address the inequality gap between Indigenous and non-Indigenous Australians. While closing the gap initiatives have been shown to improve the lives of Aboriginal Australians, those programs do not address the stolen generations issues specifically.

Some other states and territories have, in the past, provided recompense for wages that were withheld, also referred to as stolen wages. Between 1900 and into the 1980s, wages were taken from Aboriginal people by state governments, often without their knowledge, and placed in state-controlled trust accounts to be paid at a later date, but then never paid. Queensland, Western Australia and Tasmania have also introduced legislation for redress schemes, offering ex gratia payments for Aboriginal children as well as non-Aboriginal children who were found to have suffered physical, sexual, emotional or psychological abuse in state care.

There are a number of benefits for establishing a stolen generations reparations tribunal to provide reparations to members of the stolen generations. This proposed legislation would allow those Aboriginal people that are of the stolen generations to receive reparation and recognition for the emotional, physical and cultural harms that they were subjected to as a result of policies and practices of past state governments. The proposed assessment process would be quick, with a suggested time limit of months for applicants to make application and a suggested assessment period of not more than one year.

The committee heard during the inquiry that although the receiving of reparations in the form of an ex gratia payment would not preclude the recipient from pursuing compensation through courts, a satisfactory resolution through a tribunal process would likely limit the number of cases pursued through the court, particularly in cases where the liability for harm that might have been caused by the removal would be difficult to establish. This has also been the evidence in Tasmania, the only jurisdiction to make the reparations to stolen generations to date.

The operation of a tribunal would also reduce the cost to both the state and members of the stolen generations and would be cost-efficient compared with the state defending against litigation that could be taken by individuals through the courts. A tribunal process would also reduce the trauma experienced by members of the stolen generations, given that the process is not adversarial, unlike court proceedings.

Although not legally binding on countries, the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (commonly referred to as the van Boven principles) is considered the agreed framework for offering redress to victims of violations of law through the concept of reparation, which has been reflected in the bill. By applying the van Boven principles through a stolen generations tribunal, the state would be acknowledging the practices of the past and laying the foundations for reparation in an internationally recognised framework.

During the course of the inquiry, the Aboriginal Lands Parliamentary Standing Committee held 10 hearings, received evidence from 16 witnesses and received 11 formal submissions. As a result of the inquiry, the committee agreed that it supported the intent of the bill; however, it recommended it be simplified from its original form to only provide reparations in the form of ex gratia payments to South Australian Aboriginal people who were removed or stolen from their families as children, using the Tasmanian Stolen Generations of Aboriginal Children Act 2006 and their assessment and tribunal process as the framework for South Australian legislation. This will reduce the administration costs and the time to complete the assessment process, as well as remove the need to prove abuse and neglect in order to qualify for an ex gratia payment, as was proposed in the initial bill.

The Tasmanian Stolen Generations of Aboriginal Children Act 2006 provides a proven framework for the Stolen Generations Reparations Bill. The Tasmanian government made provision for a $5 million fund and provided for the appointment of an independent assessor to assess the eligibility of applicants. A total of 151 claims were received. Of the 151 claims, 106 were found to be eligible for payment, which comprised 84 people who were of the stolen generations and 22 who were the children of stolen generations victims who had died. Forty-five claims were rejected. The 22 children of stolen generations victims shared $100,000 and the remaining $4.9 million was split equally among the 84 living applicants who were removed, giving them approximately $58,000 each.

Even though not all the claims were successful, the eligibility assessment process was considered fair and reasonable. Similarly, the payment amounts were considered appropriate. In South Australia, it is estimated that up to 300 Aboriginal people could receive an ex gratia payment in accordance with the proposed eligibility criteria. The amount provided to each person would be dependent on the number of applicants found to be eligible and the size of the fund made available.

The cost to the state of providing a stolen generations fund to make ex gratia payments must be compared to the cost to the state of individual stolen generations cases pursued throughout the South Australian courts. One such case resulted in a compensation payment of $525,000 and legal costs of nearly $2 million. In conclusion, the Aboriginal Lands Parliamentary Standing Committee supports the Stolen Generations Reparations Tribunal Bill and recommends:

1. That the Stolen Generations Reparations Tribunal Bill 2010 be redrafted to provide a simplified framework to make ex gratia payments to South Australian Aboriginal people who were removed (stolen) from their families as children, based on the Stolen Generations of Aboriginal Children Act 2006 (Tasmania).

2. That the redrafted Stolen Generations Reparation Tribunal Bill 2010 be reintroduced to the Legislative Council for consideration at another time.

I thank all members of the Aboriginal Lands Parliamentary Standing Committee, past and present, for their dedication and support to deliver this inquiry report to this place. I particularly thank the presiding member, the Hon. Ian Hunter, as well as previous presiding member, the Hon. Paul Caica, and previous members Ms Zoe Bettison, Dr Susan Close, the Hon. Kyam Maher, our President the Hon. John Gazzola, Ms Frances Bedford and the Leader of the Opposition Mr Steven Marshall for their contribution to the committee.

I also acknowledge the current members of the committee for their ongoing efforts: the Hon. Russell Wortley, the Hon. Tammy Franks, Ms Gay Thompson, Dr Duncan McFetridge and the Hon. Terry Stephens. I also thank Jason Caire, the executive research officer for this committee, who spends many hours contacting us, chasing us, sending us emails, putting together information for us and keeping us in order, which is no small task when you are managing a number of MPs. I am sure it would be worse than a class of children.

Finally, I thank all the Aboriginal people and the support organisations for their input and support to the inquiry and their willingness to share their personal stories and knowledge with the committee. Some of those stories were confronting and heartbreaking. Anybody who has sat down with Aboriginal people and listened to their stories will know exactly what I am talking about. A big thank you to all.

Dr McFETRIDGE (Morphett) (17:24): I rise to support the report of the Aboriginal Lands Parliamentary Standing Committee into the Stolen Generations Reparations Tribunal Bill 2010. I commend the speech of the member for Giles to all members in this place, the other place and to all members of the Aboriginal and Torres Strait Islander communities in South Australia. This report is yet another example of how this particular committee has been working in a bipartisan way for many, many years now. I will not go over all the things that the member for Giles has said, other than to say that her summation of the deliberations and recommendations of the committee into this particular issue was as we would all expect it to be.

As a committee member who has served on the committee over many years now (with a short period off the committee), I can say that the member for Giles has been one of those members who has been very passionate and very dedicated. She has been on as many trips as possible and has been to as many committee meetings as possible. The APY lands are part of her electorate, which she has served very well.

As a member of this place she has served her constituents very well, not only at Whyalla and the rest of Giles but in particular the members of the Aboriginal community in South Australia. The member for Giles is one of those rare creatures who has put her constituents above herself. In this particular circumstance, as a member of the committee Lyn Breuer has done a wonderful job. So I thank you, Lyn, personally and on behalf of this parliament, for what you have done. Certainly the constituents of Giles have been well served by you, and I am sure you will continue in public life.

I think this legislation is part of the legacy you have left to this parliament and I, for one, count you as a friend. You do not get many friends in this place, but I count you as one. We have always been very honest with each other. I have had your frank opinions expressed towards me sometimes, and I have appreciated that. That is what you appreciate in this place, the honesty of people like the member for Giles.

The sad fact is that all of us in this place eventually move on. We will be replaced—I hope that in Giles it will be a Liberal member coming up—but Lyn Breuer, I take off my hat to you. I thank you for your contribution today and over the many, many years as a member of this particular committee. Aboriginal people in South Australia are better off for people like you, and you have expressed your passion again today in this report.

Motion carried.

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