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Editors --- "Stolen Generations of Aboriginal Children Act 2006 (Tas) - Digest" [2006] AUIndigLawRpr 76; (2006) 10(4) Australian Indigenous Law Reporter 75

Stolen Generations of Aboriginal Children Act 2006 (Tas)

Act No 34 of 2006

Assented to 18 December 2006

Introduction

This Act is the first Stolen Generations statutory compensation scheme in Australia. In Tasmania, ex gratia payments will be made to Indigenous people who were removed from their families between 1935 and 1975 and remained in state care for one year or more. Payments of up to $5000 (capped at $20,000 per family) may also be made to the children of deceased people who would otherwise have been eligible for compensation. Five million dollars will be set aside in a compensation trust for claimants, who must make applications to an individual assessor within six months of the commencement of the Act. The Act was assented to on 18 December 2006.

Eligibility criteria for ex gratia payment

(1) 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 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 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).

…

(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.

…

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.

(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).

The full text of this Act is available at <www.austlii.edu.au>.