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Submission to the Review of Government Compensation Payments (2010)

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Submission to the Review of Government Compensation Payments

Australian Human Rights Commission Submission to the Senate Legal and Constitutional Committee’s
Review of Government Compensation Payments

15 June 2010

Australian Human Rights Commission

Aboriginal and Torres Strait Islander

Social Justice Commissioner


Mick Gooda

Committee Secretary

Senate Legal and Constitutional Committee

PO Box
6100

Parliament House

Canberra ACT 2600

Dear Chair

Submission to the Review of Government Compensation Payments

The Australian Human Rights Commission is grateful for the opportunity to
provide a submission for the Senate Legal and Constitutional Committee’s
Review of Government Compensation Payments.

The Commission is aware of the range of compensation payment schemes that
have operated in Australia including:

  • Stolen Wages Scheme (QLD)/ Aboriginal Trust Fund Repayment
    Scheme     (NSW)

    Reparation payments made to individuals whose wages and
    savings were controlled by the authorities under government ‘Protection
    Acts’.

  • Redress Scheme (QLD, WA and Tas)

    Redress for harm suffered by
    children in State care.

  • Stolen Generations Compensation Scheme (Tas)

    Compensation payments
    for effect of forcible removal policies.

The Commission’s work
on compensation payments has focused on Indigenous compensation payments related
to the Stolen Generations and the issue of Stolen Wages.

The Commission has supported recommendations for compensation payment schemes
to be established for Stolen Generations since it issued the Bringing them
home Report (National Inquiry into Separation of Aboriginal and Torres
Strait Islander Children From their Families) in 1997. The Bringing them
home Report recommended:

That, for the purposes of responding to the effects of forcible removals
‘compensation’ be widely defined to mean ‘reparation’;
that reparation be made in recognition of the history of gross violations of
human rights; and that the van Boven principles guide the reparation measures.
Reparation should consist of,

  1. acknowledgment and apology

  2. guarantees against repetition

  3. measures of restitution,

  4. measures of rehabilitation, and

  5. monetary compensation.[1]

The Commission directs the Committee’s attention to the
following previous submissions made by the Commission to this Committee on these
issues:

Copies of these submissions are enclosed for your
information.

The Commission notes that the key recommendations from these submissions
pertaining to compensation payments included:

Stolen Generations Compensation:

HREOC recommends: that the
Commonwealth, through the Councils of Australian Governments, engage with State
and Territory governments to develop a consistent approach with joint funding
mechanisms in the provision of financial redress for the Stolen
Generations;[2]

Stolen Wages Compensation:

The Commission urges the Committee to
recognise in its report the importance of this issue with a view to achieving
just outcomes for those who have suffered loss as a result of this
discrimination.[3]

The
Commission notes that similar recommendations have also recently been made by UN
Human Rights Committee commenting on Australia’s compliance with its human
rights obligations:

The State party should adopt a comprehensive national mechanism to ensure
that adequate reparation, including compensation, is provided to the victims of
the Stolen Generations
policies.[4]

The absence of
appropriate compensation payment schemes for Stolen Generations and Stolen
Wages, leaves the right to an appropriate remedy, as recognised under the
International Covenant on Civil and Political Rights, unfulfilled in
Australia.

In relation to the issue of Stolen Wages, the Commission also notes the
recommendations in this Committee’s report, Unfinished business:
Indigenous stolen wages for:

Recommendation 4: The Western Australian Government to establish a
compensation scheme in relation to withholding, underpayment and non-payment of
Indigenous wages and welfare entitlements using the New South Wales scheme as a
model,

Recommendation 5: The Commonwealth Government in relation to the Northern
Territory and the Australian Capital Territory, and the state governments of
South Australia, Tasmania and Victoria - where research reveals that that
similar practices operated in relation to the withholding, underpayment or
non-payment of Indigenous wages and welfare entitlements in these states, then
establish compensation schemes using the New South Wales scheme as a
model.[5]

The Commission also
directs the Committee to the final report of the Moving Forward Consultation
Project issued by the Public Interest Advocacy Centre (PIAC) in 2009. This
project sought the opinions of Aboriginal and Torres Strait Islander peoples on
PIAC’s proposal for a Stolen Generations Reparations Tribunal. Based on
these opinions the report makes a recommendation on compensation payments for
Stolen Generations.[6]

The Commission notes that neither the Commission’s recommendations for
compensation payments (see above), nor the Committee’ recommendations for
compensation payments (see above), have been implemented to date.

So we bring these recommendations again to the Committee’s attention,
as pertinent recommendations for the current inquiry.

For further information please contact Alison Aggarwal, Senior Policy
Officer, Social Justice Unit (ph 02 9284 9642; email alison.aggarwal@humanrights.gov.au).

Yours sincerely,

Mick Gooda

Aboriginal and Torres Strait
Islander

Social Justice Commissioner

[1] Human Rights and Equal
Opportunity Commission, Bringing them home: Report of the national Inquiry
into the Separation of Aboriginal and Torres Strait Islander Children from Their
Families (2007) Recommendation
3.

[2] Human Rights and Equal
Opportunity Commission, Submission to the Senate Legal and Constitutional
Affairs Committee on the Inquiry into the Stolen Generations
Compensation Bill 2008 (2008), para 5a. At http://humanrights.gov.au/legal/submissions/2008/080409_compensation.html (viewed 8 June 2010).

[3]. Human
Rights and Equal Opportunity Commission Submission to the Senate Legal and
Constitutional Affairs Committee on the Inquiry into Stolen Wages (2006), para 44. At http://www.hreoc.gov.au/legal/submissions/2006/stolen_wages_2006.html (viewed 8 June 2010).

[4] UN Human
Rights Committee, Concluding Observations- Australia, UN Doc
CCPR/C/AUS/CO/5 (2009), para 15. At http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO-5.doc (viewed 8 June 2010). The Special Rapporteur on the situation of human rights
and fundamental
freedoms of indigenous people has also concurred with this
recommendation (Special Rapporteur on the situation of human rights and
fundamental
freedoms of indigenous people, The Situation of Indigenous
Peoples in Australia, UN Doc A/HRC/15 (2010), para
19).

[5] Senate Legal and
Constitutional Affairs Committee, Unfinished business: Indigenous stolen
wages (2006), paras 8.26-8.27. At http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/index.htm (viewed 8 June 2010).

[6] Public
Interest Advocacy Centre, Restoring Identity: Final Report (2009). At http://www.piac.asn.au/publications/pubs/rep2009063_20090630.html (viewed 8 June 2010).