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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Stolen Generations (Compensation)
Bill 2014
A BILL FOR
An Act to establish a scheme for ex gratia payments of compensation to
be made to members of the Stolen Generations; and for other purposes.
Contents
Preamble
Part 1—Preliminary
1Short
title
2Interpretation
3Interaction
between this Act and other laws
Part 2—Administration
4Functions of the Minister
5Delegation
Part 3—Ex gratia payment
scheme
6Eligibility for ex
gratia payment under Act
7Applications for ex
gratia payment under Act
8Minister may make ex gratia payment under
Act
9Minister to notify applicant of
decision
10Payments to be made from Victims of Crime
Fund
11Application may survive death of
applicant
Part 4—Review
12Certain decisions of Minister may be reviewed
by SACAT
Part 5—Miscellaneous
13Liability
14Confidentiality
15Annual report
16Regulations
1 The Parliament of South Australia recognises that—
(a) former State and Commonwealth policies condoning or encouraging
forcible removals were racist and caused emotional, physical and cultural harm
to the Stolen Generations; and
(b) indigenous children should not, as a matter of general policy, be
separated from their families; and
(c) the distinct identity of the Stolen Generations should be
recognised.
2 In further recognition of the experiences of members of the Stolen
Generations, and the impact of that experience on them and their families, it is
the intention of the Parliament of South Australia to make ex gratia
payments to eligible members of the Stolen Generations and their
children.
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Stolen Generations (Compensation)
Act 2014.
In this Act—
Aboriginal person means a person of the Aboriginal race of
Australia;
child means a person under 18 years of age;
eligible person means a person who is, pursuant to
section 6,
eligible for an ex gratia payment under this Act;
Victims of Crime Fund means the Victims of Crime Fund
continued under the
Victims
of Crime Act 2001.
3—Interaction
between this Act and other laws
This Act does not exclude or derogate from rights to damages or
compensation that exist under any other Act or law.
The Minister has the following functions under this Act:
(a) to determine whether an applicant is eligible for an ex gratia
payment under this Act and, if so, to determine the appropriate amount of the
payment;
(b) such other functions as may be assigned to the Minister by or under
this Act.
(1) The Minister may delegate to a body or person (including a person for
the time being holding or acting in a specified office or position) a function
or power of the Minister under this Act.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the power of the Minister to act in any matter;
and
(d) is revocable at will.
Part 3—Ex
gratia payment scheme
6—Eligibility
for ex gratia payment under Act
(1) A person is
eligible for an ex gratia payment under this Act if he or
she—
(a) is an
Aboriginal person who was, as a child, removed from his or her family prior to
31 December 1975 (where the removal was carried out, directed or
condoned by the State government or an agent of the State government);
or
(b) is the
biological child of a deceased person contemplated by
paragraph (a).
(2) A person is not eligible for an ex gratia payment under this Act
unless he or she is living at the time that this section comes into
operation.
(3) A person is not eligible for an ex gratia payment under this Act
if the Minister determines that the person's removal from his or her family was
genuinely in the person's best interests.
(4) A person is not eligible for an ex gratia payment under this Act
if the person's removal from his or her family arose out of the person having
been found guilty of the commission of an offence.
7—Applications
for ex gratia payment under Act
(1) An application for an ex gratia payment under this Act must be
made to, and in a manner and form approved by, the Minister.
(2) An application may, in accordance with any requirement of the
Minister, be made on behalf of a person who purports to be an eligible person
(and, in such a case, that person will be taken to be applicant).
(3) An application
must be made within 6 months after the commencement of this
section.
(4) An application must include such information as may reasonably be
required by the Minister.
8—Minister
may make ex gratia payment under Act
(1) The Minister may, if he or she is of the opinion that an applicant for
an ex gratia payment under the Act is an eligible person, make an
ex gratia payment to the person as follows:
(a) in the case of an applicant contemplated by
section 6(1)(a)—
(i) the Minister may make a lump sum payment (not
exceeding $50 000) in recognition of the applicant's experience of
being a member of the Stolen Generations and the impact of that experience;
or
(ii) the Minister may make a payment (not exceeding $50 000) of an
amount of $5 000 for each year, or part of a year, during which the
applicant did not, as a child, reside on a permanent basis with his or her
family as a consequence of having been forcibly removed;
(b) in the case of an applicant contemplated by
section 6(1)(b)—subject
to
subsection (2),
the Minister may make a lump sum payment (not exceeding $5 000) in
recognition of the impact of the applicant's parent having been a member of the
Stolen Generations.
(2) In the case
where there are multiple applicants consisting of the biological children of a
particular deceased person, the total amount of all ex gratia payments made
to the applicants—
(a) is not to exceed $50 000; and
(b) is to be distributed equally among the applicants.
(3) In the case where there is likely to be multiple applicants consisting
of the biological children of a particular deceased person, the Minister may
defer determining and making an ex gratia payment under this Act to the
applicants until the expiry of the period within which applications must be
made.
Note—
That period expires 6 months after the commencement of
section 7—see
section 7(3).
(4) In determining whether an applicant is an eligible person, the
Minister—
(a) is not bound by the rules of evidence and may inform himself or
herself on any matter as he or she thinks fit; and
(b) must act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal forms.
9—Minister
to notify applicant of decision
The Minister must, as soon as is reasonably practicable after determining
an application and in accordance with any requirement set out in the
regulations, notify an applicant for an ex gratia payment under the Act of
the following:
(a) whether or not, in the Minister's opinion, the applicant is an
eligible person (including, if the Minister is not of the opinion that the
applicant is an eligible person, the reasons for that opinion);
(b) the amount of any ex gratia payment under this Act to be made to
the applicant by the Minister;
(c) any other information required under the regulations.
10—Payments
to be made from Victims of Crime Fund
(1) Despite a provision of the Victims
of Crime Act 2001, an ex gratia payment under this Act is to
be made from the Victims of Crime Fund (and any levy raised or other payment
made into that fund under that Act before the commencement of this section will
be taken to be valid, and to always have been valid).
(2) An ex gratia payment under this Act may be made by
electronic funds transfer or any other manner the Minister thinks
fit.
11—Application
may survive death of applicant
(1) An application for an ex gratia payment under this Act does not
lapse because the applicant dies before the application is decided.
(2) If an applicant for an ex gratia payment under this Act 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.
(3) The executor of the estate of a person who dies after the commencement
of
section 7 may,
subject to that section, make an application on behalf of the estate of the
deceased person.
12—Certain
decisions of Minister may be reviewed by SACAT
(1) The Tribunal has jurisdiction to deal with a matter consisting of a
review of a decision of the Minister that a particular person is, or is not, an
eligible person.
(2) A review of a decision of the Minister falls within the review
jurisdiction of the Tribunal under section 34 of the South
Australian Civil and Administrative Tribunal Act 2013.
(3) An application for a review of a decision must be made to the Tribunal
within 1 month after the applicant receives notice of the relevant decision
(or such longer period as the Tribunal may allow).
(4) In this section—
Tribunal South Australian Civil and Administrative Tribunal
under the
South
Australian Civil and Administrative Tribunal Act 2013.
For the purposes of the law of this State, no admission of liability or
fault is to be inferred from the enactment of this Act, or the making of a
payment under this Act.
(1) An Act or law requiring a person to keep particular information
confidential or in any way restricting the disclosure or publication of
information does not prevent a person from providing information for the
purposes of determining an application under this Act.
(2) A person
engaged or formerly engaged in the administration of this Act must not divulge
or communicate personal information obtained (whether by that person or
otherwise) in the course of official duties except—
(a) as required or authorised by or under this Act or any other Act or
law; or
(b) with the consent of the person to whom the information relates;
or
(c) in connection with the administration or enforcement of this or any
other Act; or
(d) to an agency or instrumentality of this State, the Commonwealth or
another State or a Territory of the Commonwealth for the purposes of the proper
performance of its functions.
Maximum penalty: $10 000.
(3)
Subsection (2)
does not prevent disclosure of statistical or other data that could not
reasonably be expected to lead to the identification of any person to whom it
relates.
(1) The Minister must, on or before 31 October in each year, prepare
a report on the operation of this Act during the preceding financial
year.
(2) The Minister must, within 12 sitting days after receiving the
Authority's report, have copies of the report laid before both Houses of
Parliament.
The Governor may make such regulations as are contemplated by, or necessary
or expedient for the purposes of, this Act.