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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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Parliamentary Committees

ABORIGINAL LANDS PARLIAMENTARY STANDING COMMITTEE

The Hon. R.P. WORTLEY (16:00): I move:

That the report of the committee on its inquiry into the Stolen Generations Reparations Tribunal Bill 2010 be noted.

The Stolen Generations Reparations Tribunal Bill was introduced into this place by the Hon. Tammy Franks in July 2010. In June 2011 the bill was withdrawn and referred to the Aboriginal Lands Parliamentary Standing Committee for inquiry and report. I recommend this report to the council, and it is only fitting that the Hon. Ms Franks rise and speak to the issues that have been raised.

The Hon. T.A. FRANKS (16:00): I rise to speak to the report of the inquiry into the Stolen Generations Reparations Tribunal Bill 2010. As the Hon. Russell Wortley noted, that bill was introduced into this place by me back in July 2010, and on 9 July 2011 the bill was withdrawn from this council and referred to the Aboriginal Lands Parliamentary Standing Committee for inquiry and report.

The bill offers reparations to those Aboriginal people who were removed or, in essence, stolen from their families under state government policy practices that were in place until the 1970s. By offering reparations, 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 recommendations of the report of the Human Rights and Equal Opportunities National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families or, as it is more commonly referred to, the Bringing Them Home report, which identified the scope and depth of the issue of the forced removal of Indigenous children from their families, and thus the term 'stolen generations' was coined at that time.

That 1997 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 late 1970s in our nation. 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 apology by then prime minister Rudd on behalf the Australian government in recent years, as well as formal apologies by various states and territories.

I note that the Hon. Dean Brown, on 28 May 1997, he at the time being the minister for Aboriginal affairs, was instrumental in South Australia's role as the second state to make a formal apology to the stolen generations. It is a milestone of which we should be proud. However, it is one where we must not rest on that laurel, for there is more work to be done.

A further response called for in the Bringing Them Home report was the establishment of a reparations tribunal to deal with the reparations for stolen generations individuals. Successive governments have rejected the idea of reparations and have then had to deal with a number of civil cases brought by members of the stolen generations individually through the courts. One case defended by the government had legal costs of over $10 million for the Australian government. The only successful civil case for compensation was in the South Australian Supreme Court, where there was an award of $525,000 to Ngarrindjeri man Bruce Trevorrow. He had been removed from his family at the age of 13 months, and I note to the council that the legal cost of that case was nearly $2 million.

While both commonwealth and state governments have made formal apologies, Tasmania stands as the only jurisdiction to yet offer reparations to 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 those closing the gap initiatives have shown to improve the lives of Indigenous Australians, those programs do not address the stolen generations issue specifically.

Some other states and territories have, in the past, provided recompense for wages that were withheld, also referred to as the 'stolen wages'. I acknowledge that there is often some confusion between the 'stolen generations' and 'stolen wages' issue in the mainstream coverage of this issue. Those stolen wages were from Aboriginal workers between 1900 through to the 1980s. Wages were taken from Aboriginal people by state governments, often without their knowledge, and placed in a state-controlled trust account to be paid at a later date—and 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 experienced while in state care. There are a number of benefits for establishing a stolen generations reparations tribunal to provide these reparations to members of the stolen generations. This proposed draft legislation in the report would allow those Aboriginal people of the stolen generations to receive both reparation and recognition for the emotional, physical and cultural harm 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 receipt reparations in the form of an ex gratia payment would not preclude the recipient from pursuing compensation through the courts, a satisfactory resolution through a tribunal process would likely limit the number of cases pursued through our courts, 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 and, as I say, Tasmania is the only jurisdiction to make reparations to stolen generations in Australia to date.

The operation of a tribunal would also reduce the cost to both the state and the members of the stolen generations and certainly be cost efficient compared with the state defending against litigation that could currently be taken by individuals through the courts and, indeed, they would still have that option open to them but the evidence and the experience has shown that this is a better way. A tribunal process would also reduce the trauma experienced by members of the stolen generations given that that 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 Reparations 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, and that has been reflected in this bill. By applying the van Boven principles through a stolen generations tribunal, our 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, took evidence from 16 witnesses and received 11 formal submissions. This of course came in addition to the extensive body of knowledge established through the work that had come before and, most specifically, through that of the Bringing Them Home report. I thank those who took the time, many of whom were bravely sharing their personal experiences, and certainly those of us on the committee were deeply moved by many of the witnesses' experiences and evidence.

Others presented that there are options open to us for redress that remove not only the personal burden on those wronged under past government policies of removal but, indeed, ease the expensive, slow and onerous administrative legal burden that is borne by both the individual and the state. That burden is the way we are currently operating but there are better ways and, indeed, this committee has identified this as a better way forward.

As a result of the inquiry, the committee agreed that it supported the intent of the bill. However, it recommended that 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 assessment and tribunal process as a 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 and of those 151 claims, 106 were found to be eligible for payment which comprised 84 people who were 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 amongst the 84 living applicants who were removed. That gave 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 through the South Australia courts and, as I said, 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 or stolen from their families as children based on the Tasmanian Stolen Generations of Aboriginal Children Act 2006.

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

I welcome members' contributions in this place and thank the Hon. Russell Wortley again for his words and, indeed, for his current role on the Aboriginal Lands Parliamentary Standing Committee as acting presiding officer. I look forward to contributions from members in the next, and possibly last, sitting week of this session and I would particularly like to thank all of the members of the Aboriginal Lands Parliamentary Standing Committee past and present for their dedication and support to deliver this inquiry report to this place.

In particular, I thank the Presiding Member, the Hon. Ian Hunter; the previous presiding member and former minister, the Hon. Paul Caica; and previous members Ms Zoe Bettison; Dr Susan Close; the Hon. Kyam Maher; our very own President, the Hon. John Gazzola; the member for Florey, Ms Frances Bedford; and the Leader of the Opposition, Mr Steven Marshall, the member for Norwood, for their contributions to the committee.

I acknowledge the current members of the committee for their ongoing efforts, including, of course, the Hon. Russell Wortley; the Hon. Lyn Breuer, the member for Giles; the member for Reynell, Ms Gay Thompson; the member for Morphett, Dr Duncan McFetridge; and the longest standing—along with me—the Hon. Terry Stephens.

Finally, I would like to thank all of the Aboriginal people and the support organisations for their input and support for this inquiry, and their willingness to share those personal stories and knowledge with us as a committee. Some of those stories were confronting and heartbreaking for us as committee members. I can only begin to understand the impact they have had on those individuals, families and communities. We cannot undo the damage done here, but we can redress the ongoing harm and anguish now. With that I commend the report to the council.

Debate adjourned on motion of Hon. T.J. Stephens.

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