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STOLEN GENERATIONS OF ABORIGINAL CHILDREN BILL 2006 (No. 49)

Second Reading

Mr LENNON (Franklin - Premier - 2R) - Mr Speaker, I move -

That the bill be now read the second time.

I acknowledge and pay respect to the Aboriginal elders and members of the stolen generations who are here today, and those that have passed before us. I also acknowledge other members of the Tasmanian Aboriginal community who are present today.

The Government is pleased to take forward this legislation. In doing so, Tasmania will lead the nation in taking another important step towards reconciliation with the Aboriginal community.

I am honoured to have been part of a government that has showed an ongoing commitment to the wellbeing of Tasmanian Aborigines through a diverse program of services across government. I am also honoured to have been a member of the Parliament that in 1995 passed landmark legislation establishing the Aboriginal Land Council of Tasmania and commenced the hand-back of land to the Aboriginal Community.

Then in 2005 came one of my proudest moments, when the Parliament passed further legislation to return Cape Barren and Clarke Islands to the Tasmanian Aboriginal people. These actions have recognised the Tasmanian Aboriginal people's connection with the land and were a vital step in furthering reconciliation.

But reconciliation is about more than returning land. It is about people. It is about recognising that in Tasmania's history Aboriginal people were dispossessed from their land, severed from their culture and separated from their families. And it is about saying that we are sorry this happened. It remains my conviction that we must now take the next step toward true reconciliation and make a substantial and tangible response to the Tasmanian stolen generations.

In his memorable Redfern speech in 1992, Paul Keating spoke of the importance of making reconciliation a truly meaningful process by not just discussing issues but by committing ourselves to achieving concrete results. Mr Keating said that to achieve true reconciliation we must put in place what he called the 'practical building blocks of change.' That is what we are doing here today.

Today, we are making a tangible response to an issue that, if left unaddressed, will hamper the process of reconciliation. We cannot undo the past; no amount of money can change the hurt and suffering experienced by Aboriginal people removed from their families. But, for Tasmania to move forward to a united and strong future, we must strive to resolve the problems arising from wrongs of the past.

In 1997, the Human Rights and Equal Opportunity Commission released the 'Bringing them Home' report, detailing 54 recommendations on how governments should respond to the issue of the stolen generations. In August 1997, under the leadership of Tony Rundle, the Tasmanian Parliament passed an historic motion. It was passed unanimously by the Parliament. The motion was an apology to the Aboriginal people of Tasmania for the hurt and distress caused by the removal of Aboriginal children from their families.

We all remember the passionate speech delivered to the Parliament on the same day by Annette Peardon. Annette's address was moving, emotional and powerful and she received a standing ovation from the Parliament. She spoke of the hardship and pain she experienced as a result of being taken from her family and community. Her speech showed us the human face of the stolen generations and reiterated the importance of addressing this issue in the process of reconciliation. She spoke of the importance of governments' acknowledging and addressing the wrongs of the past. At the time, Annette said, 'Surely some form of compensation is not too much to ask. We look forward to special legislation on this matter being debated in this Parliament'. We now stand proud and ready to debate the bill that Annette so passionately called for back in 1997.

Both Aboriginal and non-Aboriginal children were taken into care under the same laws. However, the social and economic context of the times meant that the laws might, in some cases, have been applied differently. The removal of Aboriginal children from their families was undertaken in a context of a policy of assimilation. The objective was to absorb Aboriginal people into what was considered mainstream society by encouraging them to adopt Western culture and abandon their own.

In the middle part of the twentieth century, a disproportionate number of Aboriginal children were removed from their families under child welfare legislation as neglected children. A large number of Aboriginal people were living in very poor economic circumstances. As the 'Bringing them Home' report suggests, definitions and interpretations of child welfare law assumed that a non-Aboriginal model of child-rearing and poverty was often regarded as synonymous with neglect. Children could also have been removed from their families with the consent of a parent or guardian but in some cases those decisions were the result of the application of duress or undue influence. In the period covered by this bill, inadequate efforts were made by State agencies to maintain those vital Aboriginal family and cultural connections.

People may ask what the difference is between then and today. Today, every effort is being made to help families stay together and to maintain their sense of cultural identity. Broader community perceptions of the value of Aboriginal community and culture have shifted in the last few decades. This has impacted positively on child welfare policy and practice.

Today, the Aboriginal child placement principle is enshrined in the Children, Young Persons and their Families Act 1997 and is used to guide the placement of Aboriginal children. This ensures that every effort is made by the State to assist children, their extended families and community to remain connected.

We do not seek to judge those individuals who made decisions at some time in the past regarding the welfare of Aboriginal children. In particular, we are not, through this bill, making any adverse comment on the many foster parents who gave so much of their lives to the wellbeing of children in the child protection system. They were not responsible for the values and policies of the day or the decisions taken by past governments to take Aboriginal children into care. As I pointed out, those decisions were made in a different era. The values and policies of today are vastly different.

Today we value continuing children's connection to their family, their community and their culture, and through the Children, Young Persons and their Families Act 1997 we strive to preserve it. In this bill we recognise that past removals have had an immeasurable effect on some Aboriginal people by depriving them of a cultural connection. Anyone who has read the 'Bringing them Home' report cannot fail to be affected by the powerful testimonies of the hurt, pain and suffering experienced by Aboriginal people who were removed from their families and community.

The legacy of the stolen generations is still being felt today. It is up to us now to address the injustices of the past through this bill and to put the issue behind us in the interests of reconciliation.

The Stolen Generations of Aboriginal Children Bill will enable the Tasmanian Government to provide ex gratia payments to members of the stolen generations from a fixed fund of $5 million. The payments will recognise that the State played a role in the removal of some Aboriginal children from their families and that these children were deprived of their connection with Aboriginal community and culture. We also recognise that these removals were conducted in the context of a set of community values that disempowered Aboriginal people.

The bill establishes a clear set of criteria against which eligibility for an ex gratia payment will be assessed. To be eligible, an applicant must satisfy certain conditions. There are essentially three eligibility categories established under the bill. To be eligible under the first category, an applicant must be an Aboriginal person and be living at 16 October 2006. He or she must have been admitted or declared as a child of the State or a ward of the State under the Infants Welfare Act 1935 or the Child Welfare Act 1960 on or before 31 December 1975. Finally, he or she must have remained a child of the State or a ward of the State for a continuous period of 12 months or more, and not have been placed in the care of an Aboriginal family during that period.

To be eligible under the second category, an applicant must be an Aboriginal person and be living at 16 October 2006. He or she must have been removed from his or her family between 1935 and 1975 and have remained separated from their family or the Aboriginal community for a continuous period of 12 months or more. The separation from family and community must have been as a result of active intervention of a State agency, without the consent of a parent or guardian, or in circumstances where duress or undue influence was applied.

The intent of the bill is not to provide ex gratia payments in circumstances where children remained in the care or guardianship of their family or where parents freely entered into arrangements with third parties without intervention by a State agency. Aboriginal people who were returned to the care of an Aboriginal family within 12 months of their having been made a ward of the State will not be eligible for an ex gratia payment. In these circumstances, their ties to the Aboriginal community and their culture will have been maintained.

To be eligible under the third category, a person must be an Aboriginal person. They must also be the living child of a deceased person who would otherwise have been eligible under either of the first two categories. Aborigines who were made wards of the State as a result of committing an offence will not be eligible to receive an ex gratia payment. This bill intends to provide ex gratia payments to people who were removed from their families as a result of actions of the State, not as a result of their own actions.

The bill provides for a definition of 'Aboriginal person' that is consistent with the Aboriginal Lands Act 1995. An Aboriginal person must meet all of the following criteria. Firstly, the applicant must be able to demonstrate Aboriginal ancestry. Secondly, the applicant must self-identify as an Aboriginal person. Finally, there must be evidence of communal recognition of the applicant. This test is also used to determine eligibility for Aboriginal-specific services delivered by the Tasmanian Government.

Applicants who have established that they are Aboriginal persons under the Aboriginal Lands Act or under the whole-of-government policy on eligibility for Aboriginal and Torres Strait Islander-specific programs or services will be taken to have proved that they are Aboriginal for the purposes of this act. For those applicants who have not already established that they are Aboriginal persons, the processes applied under the auspices of the Stolen Generations Assessor will use the same test to determine whether an applicant is an Aboriginal person. The same standard of evidence will be required. For applicants who want access to their personal records, the Government will offer guided access to records and make counselling available if it is required.

The Government acknowledges the positive role that foster carers play in the Tasmanian community. Through this process we do not seek to judge the role of foster carers but we recognise that some foster carers may perceive that the provision of payments to the stolen generations reflects in some way on them. Therefore the government will also, where required, provide counselling for foster carers.

The bill will create a statutory office of the Stolen Generations Assessor whose primary function is to decide whether an applicant is eligible according to the criteria set out in the bill. The assessor will be an independent person of high standing in the community, carefully chosen to be someone respected by both the Aboriginal community and the wider Tasmanian community. The bill provides for the assessor to assess all necessary information required and to make judgments on the application of the eligibility criteria. The assessor will have wide powers to do such things as are necessary to discharge his or her functions under the act.

The bill provides for payments of up to $5 000 to be made to children of deceased members of the stolen generations, category 3, as described before. The maximum payment to a family group of children is $20 000. In this context, a family group of children are the direct first generation descendants of a deceased person who would have been eligible under the first two categories if still living. The $20 000 will be divided equally between living members of the family group of children. These payments will recognise the loss of cultural ties their deceased parents may have experienced as a result of removal.

The remainder of the $5 million, and the bulk of the fund, will be divided equally amongst the applicants the Stolen Generations Assessor deems eligible under categories 1 and 2. Any person found eligible for an ex gratia payment under one or more of the criteria will only be entitled to one payment. A person deemed eligible both as a child of a deceased member of the stolen generations and also a member of the stolen generations in their own right, is still only entitled to one payment. They will receive the larger payment; that is, one share of the residual fund. The intention is to make the process as simple as possible and to minimise the burden on applicants.

Two rounds of advertisements inviting applications will be placed in major national and Tasmanian newspapers. Applications will be open for a period of six months from the commencement of the act. Applications will be received by the secretary of the Department of Premier and Cabinet, who will refer all applications to the Stolen Generations Assessor for assessment against the eligibility criteria. The Stolen Generations Assessor will have a period of 12 months from the commencement of the act to make his or her decisions regarding the eligibility of applicants to receive ex gratia payments. The process will conclude when the Stolen Generations Assessor authorises the secretary to make payments to eligible applicants under the act. Decisions made by the Stolen Generations Assessor regarding eligibility for an ex gratia payment are to be final and are not subject to review or appeal.

Mr Speaker, it gives me great pleasure to introduce this bill. We received a clear mandate to deliver on this election promise and I believe this bill has the support of the Aboriginal community and the wider Tasmanian community. The bill has been endorsed by Archbishop Adrian Doyle who praised the bill as a 'way in which we as a community can acknowledge past wrongs and provide some assistance to those whose lives have been so significantly affected by them.' Archbishop Doyle also encouraged the Tasmanian community and the Parliament to give the bill their unanimous support.

I have also received a letter from the Human Rights and Equal Opportunity Commission providing a very strong endorsement of this initiative. The letter is co-signed by the President of the Commission, the Honourable Justice John Von Doussa, and the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Tom Calma. The letter says:

'When passed the Bill will add to the solid record of the Tasmanian Government in addressing the consequences of previous government policies and practices relating to the forcible removal of children.'

The letter also states:

'The Commission would like to commend the Tasmanian Government for the process by which you have engaged with Aboriginal peoples of Tasmania in developing the package of measures reflected in the Bill.'

Finally, and perhaps most poignantly, the Commission congratulates Tasmania for:

'this substantial step towards justice for Aboriginal peoples and for significantly enhancing the process of reconciliation in Tasmania'.

For me, reconciliation is about recognising the past, acting in the present and building a stronger future. Most of all, it is about doing what is right.

The 1997 apology was a testament to the unanimous goodwill of the Parliament and the people of Tasmania. This bill is the next vital step. I urge all members of parliament to reaffirm their commitment to reconciliation and to support us in taking this further, fundamental step. Mr Speaker, it gives me great honour to commend the bill to the House.

[12.54 p.m.]

Mr WILL HODGMAN (Franklin - Leader of the Opposition) - The State Opposition supports the bill. We acknowledge that, in Tasmania's past, Aboriginal children were removed from their families, their communities and their culture, against the backdrop of a government policy of assimilation.

The 'Bringing them Home' report produced in 1997, following an extensive and exhaustive national inquiry, confirmed that this occurred in Tasmania. The report also detailed recommendations as to how government should respond. Firstly, by acknowledging what has happened and by proffering an apology. This occurred in Tasmania in August 1997, with a motion moved by Liberal Premier, the Honourable Tony Rundle. Secondly, there should be a guarantee against repetition; thirdly, that measures of restitution be applied; fourthly, that there be measures for rehabilitation, and fifthly that there be monetary compensation or reparation. The report recommended that reparation be made to all those who suffered because of forcible removal policies, including those removed as children, and also family members who thereby suffered cultural and community disintegration, and the descendants of those removed who consequently have also been deprived of community ties, culture, language and links with their traditional land.

Mr Speaker, it is important to consider this legislation and the payment of compensation it provides for by noting that the removal of Aboriginal children from their families was undertaken in the context of a policy of assimilation. The existence of this policy in Tasmania is confirmed in historical government records and documents. It was a fundamentally flawed policy but most surely, in many instances, it was implemented with good intentions. It was a policy that we can now look back on and say was wrong. There were various reasons for removal, including instances of neglect, which provide some justification for or understanding into the motivation to separate children from the families and communities, however there were other factors involved in the policy of assimilation that cannot be so easily justified.

Whilst we accept that many decisions were made in good faith and in a time when attitudes were far different from those which we now share, it is appropriate, as 'Bringing them Home' recommends, to now accept and acknowledge the mistakes of the past and to seek to right those wrongs. As Governor- General Sir William Deane rightly said in 1996, individual Australians who had no part in what was done in the past should not feel or acknowledge personal guilt, rather we should look at instances of shame as well as pride in determining how we move forward.

In 1997 Premier Tony Rundle summarised the situation well, stating in this House that policies of removal were considered at that time to be the best response to the needs of those particular children and communities, and many of those removals were undertaken in good faith and in the belief that these actions were in the best interests of the child. However, it is clear that in many, if not most, situations the needs of the child, their family and their community were not given the consideration that was due and that, even where good intentions were at the heart of the removal, the manner of the removal and the continuing lack of contact with family and community was harmful.

Today the Premier of this State, Paul Lennon, has stated in his second reading speech that this bill will address injustices of the past and now put the issue behind us. In the interests of reconciliation, this issue will now be resolved.

Mr Speaker, I am not sure where the term 'stolen generation' came from or who coined it, but it has regrettable connotations that reflect on the terrible impact for all those concerned. We are contemplating the feelings of those who provided care to Aboriginal children removed from their homes, those foster carers who looked after the Aboriginal children -

Mr SPEAKER - Order. For the information of people in the Gallery, the House will resume again at 2.30 p.m., when debate on the bill will continue.