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TASMANIA
__________
STOLEN GENERATIONS OF ABORIGINAL
CHILDREN BILL 2006
__________
CONTENTS
1. Short title
2. Commencement
3. Interpretation
4. Entitlement to ex gratia payment
5. Eligibility criteria for ex gratia payment
6. Applications for ex gratia payment
7. Referral of application to Stolen Generations Assessor
8. Time for completion of assessments
9. Stolen Generations Assessor to decide applications
10. Establishment of Stolen Generations Fund
11. Amount of ex gratia payment
12. Payment of ex gratia payment
13. Stolen Generations Assessor decision final
14. Appointment of Stolen Generations Assessor
15. Functions of Stolen Generations Assessor
16. Powers of Stolen Generations Assessor
17. Protection from liability
18. Confidentiality
19. Death of applicant
[Bill 49]-I
20. Report to Minister
21. State not liable
22. Regulations
23. Administration of Act
Schedule 1 Provisions in relation to office of Stolen Generations Assessor
2
STOLEN GENERATIONS OF ABORIGINAL
CHILDREN BILL 2006
(Brought in by the Premier, the Honourable Paul Anthony
Lennon)
A BILL FOR
An Act to provide for ex gratia payments to be made to the
Stolen Generations of Aboriginal children
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Stolen Generations
of Aboriginal Children Act 2006.
2. Commencement
This Act commences on a day to be proclaimed.
3. Interpretation
In this Act, unless the contrary intention
appears
"Aboriginal person" has the same meaning
as in the Aboriginal Lands Act 1995;
[Bill 49] 3
Stolen Generations of Aboriginal Children Act 2006
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"eligibility criteria" means the criteria, set
out in section 5, for determining whether
an applicant for an ex gratia payment is
eligible for the payment;
"ex gratia payment" means a payment
referred to in section 9;
"Stolen Generations" means persons eligible
for ex gratia payments under this Act;
"Stolen Generations Assessor" means the
person appointed under section 14 as the
Stolen Generations Assessor.
4. Entitlement to ex gratia payment
(1) An ex gratia payment is payable on an
application under this Act if the applicant
satisfies the eligibility criteria set out in
section 5(1), (2) or (3).
(2) Where a person makes application under the
eligibility criteria set out in section 5(1), (2) and
(3) and the Stolen Generations Assessor
determines that the person satisfies one or more
of the eligibility criteria, the person is entitled to
receive only one ex gratia payment.
5. Eligibility criteria for ex gratia payment
(1) An applicant for an ex gratia payment
(a) must be an Aboriginal person; and
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(b) must have been living on
16 October 2006; and
(c) must on or before 31 December 1975
have been admitted as a child of the State
under the Infants' Welfare Act 1935 or
committed under that Act to the care of
the responsible Department in relation to
the Children, Young Persons and Their
Families Act 1997 or admitted as, or
declared to be, a ward of the State under
the Child Welfare Act 1960; and
(d) after having been admitted as a child of
the State under the Infants' Welfare Act
1935 or after having been declared to be
a ward of the State under the Child
Welfare Act 1960, must have remained a
child of the State or a ward of the State
for a continuous period of 12 months or
more, and must not have been in the care
of an Aboriginal family during that
period.
(2) An applicant for an ex gratia payment
(a) must be an Aboriginal person; and
(b) must have been living on
16 October 2006; and
(c) must have been a person under the age of
18 years who was removed from his or
her family during the period from
1 January 1935 to 31 December 1975
and remained removed from his or her
family for a continuous period of 12
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Stolen Generations of Aboriginal Children Act 2006
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months or more, and must not have been
in the care of an Aboriginal family
during that period; and
(d) must be a person who the Stolen
Generations Assessor is satisfied
(i) was removed from his or her
family by the active intervention
of an Agency, within the meaning
of the State Service Act 2000, and
without the approval of a parent
or guardian of the applicant; or
(ii) was removed from his or her
family by the active intervention
of an Agency, within the meaning
of the State Service Act 2000, and
that duress or undue influence
was applied to bring about that
removal.
(3) An applicant for an ex gratia payment must be
(a) an Aboriginal person; and
(b) a living biological child of a deceased
person who satisfies the criteria in
subsection (1)(a), (c) and (d) or
subsection (2)(a), (c) and (d).
(4) If an applicant for an ex gratia payment was
removed from his or her family as a result of
being convicted of an offence, the applicant is
not eligible for an ex gratia payment.
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(5) Subsection (4) does not apply to an applicant
who has been convicted of being a neglected
child under the Infants' Welfare Act 1935 or the
Child Welfare Act 1960.
(6) For the purposes of this section
"Aboriginal family" means a family in which
one or both of the primary carers is an
Aboriginal person.
6. Applications for ex gratia payment
(1) An application for an ex gratia payment is to be
made to the Secretary of the Department.
(2) An application
(a) must be in a form approved by the
Secretary of the Department; and
(b) must contain the information required by
the Secretary of the Department.
(3) An application may only be made within a
period of 6 months commencing on the
commencement of this Act.
(4) An applicant for an ex gratia payment may, with
the consent of the Secretary of the Department,
amend an application.
(5) An application for an ex gratia payment may be
made on behalf of a person under a legal
disability by a guardian of that person.
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(6) For the purposes of determining eligibility, the
person under the legal disability is to be regarded
as the applicant.
7. Referral of application to Stolen Generations
Assessor
On receipt of an application under section 6, the
Secretary of the Department is to forward the
application to the Stolen Generations Assessor.
8. Time for completion of assessments
The Stolen Generations Assessor must make his
or her decision in relation to eligibility for ex
gratia payments within 12 months after the
commencement of this Act.
9. Stolen Generations Assessor to decide applications
If the Stolen Generations Assessor is satisfied
that an ex gratia payment is payable on an
application, he or she must, by notice in writing,
authorise the Secretary of the Department to
make the ex gratia payment.
10. Establishment of Stolen Generations Fund
(1) An account is to be established in the Special
Deposits and Trust Fund to be known as the
Stolen Generations Fund.
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(2) The Stolen Generations Fund is to be
administered by the Department.
(3) Without further appropriation than this
subsection, an amount of $5 million is to be
paid from the Consolidated Fund into the
Stolen Generations Fund.
(4) Money in the Stolen Generations Fund is to be
applied for the making of ex gratia payments.
11. Amount of ex gratia payment
(1) The amount of an ex gratia payment
(a) in respect of an applicant referred to in
section 5(3), is, subject to subsection (2),
an amount not exceeding $5 000; and
(b) in respect of an applicant referred to in
section 5(1) or (2), is an amount that is
equal to the amount remaining in the
Stolen Generations Fund, after deducting
the payments referred to in paragraph (a),
divided by the number of ex gratia
payments authorised by the Stolen
Generations Assessor in respect of
applicants referred to in section 5(1) and
(2).
(2) The amount of ex gratia payments in respect of a
family group of children is not to exceed
$20 000 and is to be distributed equally among
the family group of children.
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(3) A person who, but for section 4(2), would have
been entitled to receive ex gratia payments under
section 11(1)(a) and section 11(1)(b) is entitled
to receive the larger of those ex gratia payments.
(4) For the purposes of subsection (2)
"family group of children" means applicants
under section 5(3) who are the living
biological children of a deceased person
referred to in section 5(3)(b).
12. Payment of ex gratia payment
The Secretary of the Department is to make the
ex gratia payment to the applicant by electronic
funds transfer, by cheque or in any other manner
determined by the Secretary of the Department
on receipt of a form, approved by the Secretary
of the Department, signed by the applicant.
13. Stolen Generations Assessor decision final
The decision of the Stolen Generations Assessor
in relation to an application for an ex gratia
payment is final and is not subject to review,
judicial or otherwise.
14. Appointment of Stolen Generations Assessor
(1) The Premier is to appoint a person to be the
Stolen Generations Assessor.
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(2) Schedule 1 has effect in relation to the office of
the Stolen Generations Assessor.
15. Functions of Stolen Generations Assessor
The Stolen Generations Assessor has the
following functions:
(a) to decide whether an applicant is eligible
for an ex gratia payment;
(b) such other functions as may be
prescribed.
16. Powers of Stolen Generations Assessor
(1) The Stolen Generations Assessor has power to
do all things necessary or convenient to be done
in connection with the performance of his or her
functions and, in particular, has power
(a) to obtain information from Agencies,
within the meaning of the State Service
Act 2000; and
(b) to obtain further information from the
applicant, if unable to decide from the
information obtained under
paragraph (a), whether an applicant is
eligible for an ex gratia payment.
(2) The Stolen Generations Assessor may exercise
his or her powers notwithstanding the Personal
Information Protection Act 2004 or any other
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legislation relating to the confidentiality or
privacy of information.
17. Protection from liability
The Stolen Generations Assessor does not incur
any personal liability for an act done or omitted
to be done by the Stolen Generations Assessor in
good faith in the performance or exercise, or
purported performance or exercise, of any of his
or her functions or powers under this Act.
18. Confidentiality
(1) The Stolen Generations Assessor must not
divulge the information obtained under this Act
otherwise than as provided by this section.
(2) The Stolen Generations Assessor may divulge
the information in so far as it is necessary to do
so to carry out his or her functions under this
Act.
19. Death of applicant
(1) An application for an ex gratia payment does not
lapse because the applicant dies before the
application is decided.
(2) If an applicant for an ex gratia payment dies
before the application is decided, an ex gratia
payment, if payable on the application, is to be
paid to the estate of the deceased.
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(3) The executor of the estate of a person who dies
after 16 October 2006 may make application
under section 6 on behalf of the estate of the
deceased person.
20. Report to Minister
(1) The Stolen Generations Assessor is to give the
Minister a report on the performance of his or
her functions within 30 days after the day on
which he or she makes a decision on the final
application for an ex gratia payment.
(2) The Minister is to cause the Stolen Generations
Assessor's report to be laid before each House of
Parliament.
21. State not liable
An ex gratia payment made to an applicant under
this Act does not render the State liable for any
action taken in respect of the applicant
(a) being admitted as a child of the State
under the Infants' Welfare Act 1935 or
being declared to be a ward of the State
under the Child Welfare Act 1960; or
(b) being removed from his or her family in
circumstances referred to in
section 5(2)(d).
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22. Regulations
The Governor may make regulations for the
purposes of this Act.
23. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Minister for Community
Development; and
(b) the department responsible to the
Minister for Community Development in
relation to the administration of this Act
is the Department of Premier and
Cabinet.
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SCHEDULE 1 PROVISIONS IN RELATION TO
OFFICE OF STOLEN GENERATIONS ASSESSOR
Section 14
1. Term of office
The Stolen Generations Assessor is to be
appointed for the period specified in his or her
instrument of appointment and may be
reappointed.
2. Holding other office
The holder of an office who is required under
any Act to devote the whole of his or her time to
the duties of that office is not disqualified from
(a) holding that office and also the office of
Stolen Generations Assessor; or
(b) accepting any remuneration payable in
relation to the office of Stolen
Generations Assessor.
3. Remuneration and conditions of appointment
(1) The Stolen Generations Assessor is entitled to be
paid such remuneration, including travelling and
subsistence allowances, as the Premier
determines.
(2) The Stolen Generations Assessor holds office on
such terms and conditions in relation to matters
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Stolen Generations of Aboriginal Children Act 2006
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not provided for by this Act as are specified in
his or her instrument of appointment.
4. Removal from office
The Premier may remove the Stolen Generations
Assessor from office
(a) if the Stolen Generations Assessor is
convicted in Tasmania, or elsewhere, of a
crime or offence punishable by
imprisonment for a period exceeding 12
months; or
(b) if the Stolen Generations Assessor
becomes bankrupt, applies to take the
benefit of any law for the relief of
bankrupt or insolvent debtors,
compounds with creditors or makes an
assignment of any remuneration or estate
for their benefit; or
(c) if the Premier is satisfied that the Stolen
Generations Assessor is unable to
perform adequately or competently the
duties of office.
16 Government Printer, Tasmania