House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Indigenous Australians, the Honourable Ken Wyatt AM MP)

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Territories Stolen Generations Redress Scheme (Consequential Amendments) Bill 2021

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

1. This Bill provides for consequential amendments to particular Commonwealth Acts to facilitate the implementation of certain aspects of the Territories Stolen Generations Redress Scheme (the Scheme).

2. The Scheme is for survivors of the Stolen Generations who were removed as children from their families whilst in the Northern Territory or the Australian Capital Territory (prior to their respective self-government), or Jervis Bay Territory. The Scheme is intended to operate from 1 March 2022 to 30 June 2026, and be open for applications between 1 March 2022 and 28 February 2026.

3. The Scheme will provide to eligible participants:

a.

a one-off redress payment to recognise the harm caused by forced removal;

b.

a one-off healing assistance payment in recognition that the action required to facilitate healing will be specific to each individual (the redress payment and the healing assistance payment are hereafter referred to as the redress payment);

c.

the opportunity, if they choose, to confidentially tell their story about the impact of their removal to a senior official within government and receive a face-to-face or written direct personal response acknowledging the trauma caused by removal.

4. As the redress payment will be made in recognition of the harm caused by forced removal and is aimed at healing, the objective of the Bill is to ensure that eligible participants will receive the full benefit of the redress payment and that receipt of the payment does not adversely affect income testing for other Commonwealth payments or benefits. This is achieved by making amendments to the Bankruptcy Act 1966, Income Tax Assessment Act 1997, Social Security Act 1991 and the Veterans' Entitlements Act 1986. The Bill also facilitates the use of protected information for the purposes of the Scheme (as prescribed in the Social Security (Administration) Act 1999).

Human rights implications

5. This Bill engages the following human rights:

a.

Rights of equality and non-discrimination: Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); Articles 2, 3, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and; Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD);

b.

Right to social security: Article 9 of the ICESCR;

c.

Right to an adequate standard of living: Article 11(1) of the ICESCR;

d.

Right to health: Article 12(1) of the ICESCR;

e.

Right to self-determination: Article 1 of the ICCPR and Article 1 of the ICESCR;

f.

Right to protection and assistance for the family: Article 10(1) of the ICESCR; and

g.

Right to privacy: Article 17 of the ICCPR.

Right of equality and non-discrimination

6. The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against. Of particular relevance, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements this prohibition in Australian domestic law.

7. The Scheme is designed for the benefit of Indigenous Australians who meet eligibility criteria, which includes being a member of the Stolen Generations from a relevant territory. As such, the Scheme, and the Bill which complements the Scheme, raises the issue of racial discrimination.

8. Article 1(4) of the CERD provides:

"Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved."

9. Where a special measure is taken, it is deemed not to be racial discrimination. The Bill operates as part of a special measure in the context of Article 1(4), complementing the Scheme by ensuring that recipients of payments under the Scheme obtain the full benefit of those payments. The Scheme and this Bill should be considered as a package with the Territories Stolen Generations Redress Scheme (Facilitation) Bill 2021.

10. The Scheme and the Bill are designed to address de facto inequalities resulting from historical circumstances that continue to deny Stolen Generations survivors the advantages essential for the full development of human personality. ^[1] The purpose of the Scheme is to address the impact of past policies as presently felt by the Stolen Generations. It aims to achieve a meaningful recognition of, and healing from, the harm caused by the forced removal of these people from their family, community, culture and surroundings.

11. The Scheme confers benefits on this group of Indigenous peoples through monetary payments and, importantly, by providing access to non-monetary redress such as an opportunity for survivors to tell their story and receive a direct personal response. This latter form of redress offers an acknowledgement of the harm caused and has proven, at least in the context of other like schemes, to play a meaningful role in the healing process. In these ways, the Scheme seeks to recognise and address the harm suffered by members of the Stolen Generation.

12. The Scheme will assist in extending equal enjoyment and exercise of human rights and fundamental freedoms to relevant Stolen Generations survivors because:

a)

the Scheme is designed to help address the harm caused to this group by past practices;

b)

that harm may have been felt across a whole range of areas affecting survivors' enjoyment of a variety of human rights and freedoms (political, economic, social, and, importantly, cultural) in the past and on an ongoing basis; and

c)

redress is intended to help to heal that past and ongoing harm (with recipients free to apply payments however most benefits them), thereby helping survivors to enjoy their relevant rights and freedoms on an equal basis with others.

13. The Bill complements the Scheme by making consequential amendments to the Income Tax Assessment Act 1997, the Bankruptcy Act 1966, the Social Security Act 1991 and the Veterans' Entitlements Act 1986. These amendments operate to ensure that monetary payments made under the Scheme are:

(a)

not subject to taxation;

(b)

not available to creditors in respect of a bankruptcy; and

(c)

excluded from 'income' for the purposes of the assessing a person's entitlement to social security payments and certain payments to veterans.

14. These effects ensure that the recipients receive the full benefit of the redress payment. The Bill also facilitates lawful use of protected information (as prescribed in the Social Security (Administration) Act 1999). This will assist those administering the Scheme to verify the identity of applicants and ensure the Scheme is administered efficiently and promptly.

15. The Bill will operate to the extent that, and for as long as, it applies to monetary payments made under the Scheme. As the Scheme is intended to be open for applications from 1 March 2022 to 28 February 2026, the Bill and the Scheme will only maintain separate rights for Stolen Generations survivors for a finite period.

16. By complementing the Scheme, the Bill advances the rights to equality and non-discrimination by being part of a special measure.

Right to social security and right to an adequate standard of living

17. Article 9 of the ICESCR recognises the right of everyone to social security, including social insurance. Article 11(1) of the ICESCR recognises the right of everyone to have an adequate standard of living for themselves and their families.

18. The United Nations Committee on Economic, Social and Cultural Rights (the ESCR Committee) has stated that the right to social security is of 'central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights'. ^[2] The ESCR Committee further noted that the right to social security encompasses the right to access and maintain benefits, and must be sufficient to afford an adequate standard of living. ^[3]

19. This Bill advances the right to social security and right to an adequate standard of living by excluding redress payments from income tests under other Commonwealth laws. This ensures that participation in the Scheme does not adversely affect a person's access to social security benefits and other payments under these Commonwealth laws because of any income tests.

Right to health

20. Article 12(1) of the ICESCR recognises the right of everyone to enjoy the highest attainable standard of physical and mental health. The ESCR Committee has interpreted this to encompass the right to enjoy a variety of facilities, goods, services and conditions necessary for the realisation of the highest attainable standard of health. ^[4]

21. By ensuring that the redress payments are not subject to income tax or capital gains tax, or are divisible amongst creditors in bankruptcy proceedings, this Bill advances the right to health by ensuring that participants in the Scheme receive the full benefit of payments under the Scheme. By having access to the full amount of the healing assistance payment, participants in the Scheme will be able to advance their physical and mental health in a manner of their choosing. This could include utilising the healing assistance payment for services such as counselling, or traditional healing approaches.

Right to self-determination

22. Article 1 of the ICCPR and Article 1 of the ICESCR recognise that:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

23. The Scheme responds to calls by Indigenous community stakeholders for the establishment of a redress scheme. The Scheme will have an External Advisory Board to monitor and advise on the establishment and implementation phases and, critically, to ensure the Scheme is delivered in a trauma-informed and culturally sensitive manner. Key Indigenous organisations, such as The Healing Foundation and Link Up Services, and trauma specialists will be invited to participate. The Healing Foundation, in its role in partnering with Stolen Generations survivors and organisations to address the ongoing trauma caused by forced removal of children from their families, is well placed to ensure the Scheme operates to best meet the needs of Stolen Generations survivors.

24. This Bill, by ensuring that participants in the Scheme receive the full benefit of their redress payment, will assist participating Stolen Generations members in pursuing their economic, social and cultural development.

Right to protection and assistance for the family

25. Article 10(1) of the ICESCR guarantees the widest possible protection and assistance to the family. The Scheme provides for payments (including a healing assistance payment) in recognition of the harm caused by past policies of forced removals which damaged family connections. Recipients may choose to utilise payments under the Scheme to assist in repairing or reestablishing those family connections. This Bill will help to ensure the full amount of payments determined under the Scheme will be available to recipients if they choose to utilise the payments for these purposes.

Right to privacy

26. Article 17 of the ICCPR guarantees the right of everyone to protection from 'arbitrary or unlawful interference with [their] privacy'. This right is not an absolute right and is subject to permissible limits, for example, where the limitation: is prescribed by a law; is applied for the purpose of achieving a legitimate objective; and, is reasonable, necessary and proportionate.

27. The measures in the Bill that relate to obtaining, recording, disclosing and using protected information about Scheme participants engage the right to privacy. The measures will ensure that the protected information provisions of the Social Security (Administration) Act 1999 do not prevent the use of 'protected information' for the purposes of the Scheme. This may be necessary in order to verify the identity of participants where, for example, they have provided protected information (such as a Centrelink customer reference number) as a personal identifier. The requirements of the Privacy Act 1988 will continue to apply in relation to personal information in the context of the Scheme.

28. By enabling the Scheme to be administered effectively, efficiently and promptly, the protected information measures in the Bill are reasonable to achieve the Bill's overarching objective of facilitating reconciliation and healing for Stolen Generations survivors for historical practices. The measures are also proportionate as the use of the protected information for the purposes of the Scheme would be limited to verification of identity of applicants, and undertaking any necessary investigations to allow the application to be decided. The uses of the information would not be anticipated to be broader than the limited uses to which social security protected information may be put under social security law.

29. The limitations imposed by this Bill on the right to privacy are not arbitrary. Rather, the measures are necessary to facilitate the effective, efficient and prompt administration of the Scheme whilst addressing the legitimate reconciliation and healing objectives of the Scheme. Without these measures in the Bill, there is a risk that the Scheme would not operate effectively and some persons may be disadvantaged. Accordingly, these measures are reasonable, necessary and proportionate.

Conclusion

30. This Bill is compatible with human rights because it promotes the protection of the rights to social security, adequate standard of living, health, and protection and assistance for the family. By complementing the Scheme, the Bill also advances the rights to equality and non-discrimination by being part of a special measure. To the extent that this Bill may limit human rights, those limitations are reasonable, necessary and proportionate.