Stolen Generations of Aboriginal Children Act 2006

Ex gratia payment: A payment made without admission of legal liability. The term appears throughout the Act and is defined in section 3. The scheme is not a damages award or a statutory tort compensation regime; it is a discretionary (though statutory) payment from the Crown. Section 21 reinforces the absence of liability.

Stolen Generations: Defined in section 3 as “persons eligible for ex gratia payments under this Act”. This is a legal definition confined to the Act. It is not a description of all persons affected by historical removal policies, only those who satisfy the specific eligibility criteria and successfully apply within the six‑month window.

Eligibility criteria: Three pathways exist under section 5.

• Section 5(1) covers persons removed under the Infants’ Welfare Act 1935 or the Child Welfare Act 1960 as a child of the State or ward of the State, for a continuous period of 12 months or more, and not in the care of an Aboriginal family during that period.
• Section 5(2) covers persons removed by the active intervention of a State agency (as defined by the State Service Act 2000) without parental approval, or where duress or undue influence was applied, for a continuous period of 12 months or more, and not in the care of an Aboriginal family. This pathway does not require a formal court order; it covers informal removals by State officers.
• Section 5(3) covers living biological children of a deceased person who would have satisfied either of the above pathways.

Aboriginal person: Adopts the definition from the Aboriginal Lands Act 1995. That Act’s definition is not reproduced here, but typically requires descent, self‑identification, and community recognition. The Assessor must apply that external definition.

Stolen Generations Assessor: A single office‑holder appointed by the Premier (section 14) with functions to decide eligibility and other prescribed functions (section 15). The Assessor has powers to obtain information from agencies and from applicants, and can override privacy laws (section 16). The appointment is for a term specified in the instrument, with potential reappointment (Schedule 1, clause 1). Remuneration is determined by the Premier (Schedule 1, clause 3). The Assessor can be removed for criminal conviction, insolvency, or incapacity (Schedule 1, clause 4).

Stolen Generations Fund: A special account in the Public Account, administered by the Department, initially funded with $5 million from the Consolidated Fund (section 10). Money in the fund is applied exclusively to making ex gratia payments. There is no provision for replenishment; the fund is a finite pool.

Family group of children: Defined in section 11(4) as applicants under section 5(3) who are the living biological children of a deceased person. Their total payment is capped at $20,000 per group, to be distributed equally among the siblings.

Finality of decision: Section 13 declares the Assessor’s decision final and not subject to review, judicial or otherwise. This ousts the jurisdiction of the Tasmanian Civil and Administrative Tribunal, the Supreme Court, and any other review body. The only potential avenue would be a constitutional challenge on jurisdictional error grounds, as section 13 may not prevent certiorari for jurisdictional error under the principle in Kirk v Industrial Court of NSW (2010) 239 CLR 531, but that is a background common‑law question not addressed in the Act.

Primary claimants: Aboriginal persons who were living on 16 October 2006 and who were removed as children, either through formal wardship under the Infants’ Welfare Act 1935 or the Child Welfare Act 1960 for a continuous period of at least 12 months without being placed with an Aboriginal family, or through active State agency intervention without parental consent or under duress, also for a continuous period of at least 12 months without being in the care of an Aboriginal family, and not removed due to a criminal conviction (except for being a neglected child). The removal period must have occurred on or before 31 December 1975.

Secondary claimants: Living biological children of a deceased person who would have met the primary criteria. They receive a maximum of $5,000 each, subject to a $20,000 family‑group cap. They do not need to have been removed themselves.

Excluded persons:

• Aboriginal persons who were removed as a result of being convicted of an offence (unless the conviction was for being a neglected child under the historical Acts). This excludes those removed under juvenile justice orders.
• Persons who were placed with an Aboriginal family during the removal period. The Act defines “Aboriginal family” as a family where one or both primary carers is an Aboriginal person. This exclusion means that even if removal from the original family was forced, placement with an Aboriginal family disqualifies the claimant.
• Persons who cannot prove continuous removal for 12 months or more.
• Persons who died before 16 October 2006 (their estates cannot apply; section 19(3) allows application only for persons who die after that date).
• Persons who do not fall within the definition of “Aboriginal person” under the Aboriginal Lands Act 1995.
• Persons who fail to apply within the six‑month window after the Act’s commencement.

State agencies: The Department of Premier and Cabinet initially administered the Act (section 23). The Stolen Generations Assessor can compel any State agency (within the meaning of the State Service Act 2000) to provide information, overriding privacy laws. The Act imposes no duties on agencies beyond cooperating with the Assessor.

The Minister and Parliament: The Assessor must report within 30 days of deciding the final application, and the Minister must table the report in both Houses (section 20). This ensures some transparency but after the fact.

The State as a legal entity: The Act explicitly protects the State from liability. Payment under the Act does not constitute an admission of liability for past removal actions. This affects any potential future civil claims, though it does not technically preclude them; it merely prevents reliance on the payment as an admission. However, the practical effect is to reduce the incentive for class actions or individual tort claims by providing a capped alternative.

The estate of a deceased applicant: If an applicant dies before the decision, the application survives and the payment goes to the estate (section 19(1)-(2)). An executor can also apply on behalf of the estate of a person who died after 16 October 2006.

Applicant’s rights: A right to apply for an ex gratia payment if the person meets the eligibility criteria and applies within the six‑month window. There is a right to amend the application with the Secretary’s consent (section 6(4)). A guardian may apply on behalf of a person under legal disability (section 6(5)). If the applicant dies after applying, the right passes to the estate.

Applicant’s duties: The applicant must provide the information required by the Secretary in the approved form (section 6(2)). The applicant must provide further information if requested by the Assessor under section 16(1)(b). There is no explicit penalty for providing false information (this is left to general criminal law). There is no duty to give evidence or appear; the process is documentary.

Stolen Generations Assessor’s duties: The Assessor must decide applications within 12 months after the Act’s commencement (section 8). The Assessor must satisfy himself or herself that eligibility is established, and if satisfied, must authorise the payment by notice in writing (section 9). The Assessor must not divulge information except to carry out functions (section 18). The Assessor must report to the Minister within 30 days of deciding the final application (section 20). The Assessor is entitled to remuneration determined by the Premier (Schedule 1, clause 3).

Secretary of the Department’s duties: The Secretary receives applications, forwards them to the Assessor (section 7), makes payments on receipt of the Assessor’s authorisation and a signed form (section 12), and may approve application forms and information requirements (section 6(2)). The Secretary may consent to amendments (section 6(4)).

Premier’s duties: The Premier appoints the Assessor (section 14), determines remuneration and conditions (Schedule 1, clauses 3), and may remove the Assessor (Schedule 1, clause 4).

No right to review: Crucially, section 13 removes any right to internal or external review. An unsuccessful applicant has no avenue to challenge the Assessor’s decision. This contrasts with typical administrative schemes where merits review is available. The only possible legal challenge would be a common‑law judicial review on jurisdictional error, which is not mentioned in the Act and depends on the courts’ inherent supervisory jurisdiction. The Act does not provide for reconsideration or appeal.

No right to be heard: The Act does not require the Assessor to hold hearings or give reasons. The decision is presumptively made on the papers. This reduces procedural fairness but may be intended to keep costs low and processing fast.

No right to a minimum payment: The amount for primary claimants is calculated as the remaining fund divided by the number of authorised payments (section 11(1)(b)). If many eligible applicants come forward, each could receive a small sum. The Act does not guarantee a floor amount. The $5 million fund is finite; if more than $5 million in payments is authorised to children of deceased claimants (at $5,000 each), the residual for primary claimants shrinks.

The Act contains no offence provisions. It does not create any criminal penalties for false statements, failing to provide information, or breaching confidentiality. The only enforcement mechanisms are indirect:

• Confidentiality: Section 18 imposes a duty on the Assessor not to divulge information. Breach would not be an offence under this Act, but could be a breach of duty potentially leading to removal from office under Schedule 1, clause 4(c) if the Premier is satisfied the Assessor is unable to perform duties adequately. General privacy laws (overridden for information gathering but not for disclosure) could apply.

• Protection from liability: Section 17 protects the Assessor from personal liability for acts done in good faith in performance of functions. The obverse is that an act done not in good faith could expose the Assessor to personal liability. No statutory immunity is provided for other persons.

• Removal of Assessor: The Premier may remove the Assessor for conviction of a crime punishable by imprisonment over 12 months, bankruptcy, or inability to perform duties (Schedule 1, clause 4). This is the only removal mechanism; it does not depend on misconduct in the role specifically.

• No penalty for applicant misconduct: There is no provision for recovery of overpayments. If the Assessor authorises a payment based on false information, the Act does not explicitly provide for clawback. General law (unjust enrichment, fraud) would apply.

• No enforcement of the obligation to decide: Section 8 requires the Assessor to make a decision within 12 months after commencement. There is no remedy if the Assessor fails to do so; it is a directory rather than mandatory obligation (the plain language “must” suggests mandatory, but no enforcement mechanism). An aggrieved applicant could seek mandamus from the Supreme Court, but that depends on section 13 not barring such relief (section 13 ousts review of decisions, but failure to decide is not a decision).

• No regulation‑making power for penalties: Section 22 allows the Governor to make regulations for the purposes of the Act. Regulations could potentially create offences, but the Act does not grant a specific power to prescribe penalties. Any regulation would be limited by the enabling Act’s scope; standard Tasmanian regulation‑making may include penalties up to a certain level, but the Act is silent.

Aboriginal Lands Act 1995: The interpretation of “Aboriginal person” in section 3 of this Act adopts the definition from that Act. Any amendment to the Aboriginal Lands Act 1995’s definition would automatically affect eligibility under this Act, unless a contrary intention appears.

Infants’ Welfare Act 1935 and Child Welfare Act 1960: These are the historical Acts under which formal wardship or “child of the State” orders were made. Section 5(1) eligibility depends on being admitted under one of these Acts. Section 5(4) excludes removals resulting from criminal conviction, but section 5(5) exempts convictions for being a “neglected child” under those Acts, thus reincluding children who were technically convicted but effectively removed for welfare reasons. Section 21 preserves State immunity for actions under these Acts.

Children, Young Persons and Their Families Act 1997: Section 5(1)(c) refers to being committed under the Infants’ Welfare Act 1935 to the care of the responsible Department in relation to the 1997 Act. This cross‑reference appears to address transitional arrangements where historical orders were effectively administered under modern legislation.

State Service Act 2000: Used to define “Agency” for the purposes of section 5(2)(d). The Assessor must determine whether the removal was by “active intervention of an Agency” within that Act’s meaning. This defines the scope of State involvement; removals by non‑State actors (e.g., church missions without State direction) are excluded.

Personal Information Protection Act 2004: Section 16(2) overrides this Act and any other privacy legislation, allowing the Assessor to obtain information despite confidentiality obligations. This is a broad override, necessary for the Assessor to access historical records.

Administrative Arrangements Act 1990: Section 23 assigns administration to the Minister for Community Development and the Department of Premier and Cabinet until an order under section 4 of that Act provides otherwise. This means the responsible department can be changed by executive order without amending this Act.

Consolidated Fund appropriation: Section 10(3) provides a standing appropriation of $5 million from the Consolidated Fund, without further appropriation. This bypasses the normal annual appropriations process for this amount.

Section 13 and judicial review: The Act purports to oust judicial review entirely. This interacts with the common law supervisory jurisdiction of the Supreme Court of Tasmania and the High Court. Under Kirk v Industrial Court of NSW (2010) 239 CLR 531, state legislation cannot oust review for jurisdictional error. The practical effect is that section 13 may be read down to exclude review only for non‑jurisdictional errors. The Act does not mention this nuance, creating uncertainty about the scope of finality.

Criminal law: If a removal resulted from a criminal conviction, section 5(4) disqualifies the applicant. This interacts with the criminal justice system of the time. The exemption for “neglected child” convictions preserves eligibility for children convicted under welfare‑oriented provisions.

Succession law: Section 19 allows payments to be made to the estate of a deceased applicant, and an executor may apply on behalf of the estate. This interacts with the Administration and Probate Act 1935 (Tas) for estate distribution.

Ex gratia not compensation: The Act does not interact with any other compensation schemes (e.g., common law damages, victims of crime compensation). It stands alone and does not require a waiver of other rights. However, in practice, a recipient might be estopped from claiming compensation based on the same removal in a subsequent civil action; the Act does not address double‑dipping.

The Act as presented in the source text shows an amendment by No. 4 of 2017, Schedule 1, applied from 1 July 2019, to section 10(1). The source text notes: “[Section 10 Subsection (1) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019]”. This amendment appears to have altered the establishment of the Stolen Generations Fund in the Public Account. The exact amendment is not shown, but it suggests the fund mechanism or account name was modified as part of a broader public‑account or financial‑management reform.

No other amendments appear in the provided text. The Act commenced on a day to be proclaimed (section 2). The proclamation date is not given; it must have been after 2006. The six‑month application window under section 6(3) ran from that proclamation date. The Assessor was required to decide all applications within 12 months after commencement. If the Act was proclaimed in, say, 2007, all decisions were due by early 2008. The Act is therefore likely spent or nearly spent by now, though the official status is still in force as of the source date (12 April 2026).

The absence of amendment history aside from the 2017 change indicates the Act was largely untouched. No amendments have been made to the eligibility criteria, payment amounts, or the ouster clause. The scheme is a historical exercise that has been completed; the Act remains on the statute book but serves no operative purpose except possibly still authorising final payments or the report.

The provided source text does not mention any litigation history. The Act itself has not been the subject of reported cases in the source material. However, section 13’s ouster clause is a natural target for challenge. One might expect an applicant denied eligibility to seek judicial review on jurisdictional error grounds, arguing that the Assessor misapplied the eligibility criteria (e.g., misinterpreted “active intervention” or “Aboriginal family”). Any such litigation would likely centre on whether the ouster clause is effective to preclude review for non‑jurisdictional error but not jurisdictional error.

There may be unreported decisions from the Supreme Court of Tasmania, but the source does not reference them. The short application window and finite fund likely limited the volume of litigation. The Act’s design discourages litigation by making decisions final and non‑reviewable, and by paying ex gratia without admission of liability. If a claimant rejected the payment, they might still pursue a common law action, but the Act does not affect that right (it simply says the payment does not render the State liable , it does not say the State cannot be held liable in a separate claim). However, the State could use the payment as a settlement and require a waiver as a condition of payment; the Act does not condition payment on a release, but the Secretary could require a signed form (section 12) that might include a release. If so, that would be a contractual rather than statutory matter.

Given the Act is from 2006, any litigation likely concluded years ago. No constitutional challenges are recorded in the source. The Act is probably considered an exercise of the State’s executive power to make ex gratia payments, regulated by statute but not creating a legal right enforceable beyond the statutory scheme (except via the ouster question).

1. Ouster of review: Section 13 states the Assessor’s decision is final and not subject to review, judicial or otherwise. This is aggressive. An applicant who is rejected has no internal merits review and no appeal. The only possible lifeline is a common law claim for jurisdictional error, which is legally complex and expensive. This clause drastically reduces the applicant’s access to justice.

2. Six‑month application window: Section 6(3) says applications may only be made within six months commencing on the Act’s commencement. The commencement date is the date of proclamation. If an applicant missed that window for any reason, they are permanently barred. No provision for late applications exists.

3. No minimum payment amount: Primary claimants do not get a fixed amount. Section 11(1)(b) calculates payment as the residual fund divided by the number of authorised primary claimants. If more than $5 million is authorised to children of deceased claimants (at up to $5,000 each), the residual for primary claimants shrinks. The amount per primary claimant could be very small. For example, if 1,000 primary claimants are approved and the residual after children’s payments is $100,000, each gets $100. The Act does not cap the number of claimants.

4. Exclusion for placement with an Aboriginal family: A claimant removed from their family but later placed with an Aboriginal family (defined as a family with at least one Aboriginal primary carer) is ineligible. This penalises claimants whose removal was harmful but who were later placed in a culturally appropriate setting. The policy rationale is unclear, but it creates a perverse incentive for claimants to downplay or fail to disclose such placements, inviting credibility assessments.

5. Exclusion for removal due to criminal conviction: Section 5(4) excludes anyone whose removal resulted from a criminal conviction, except a conviction for being a neglected child. This excludes historical juvenile offenders who may have been removed arbitrarily and suffered harms similar to Stolen Generations members. The line between welfare removal and removal for offending is blurry in historical records.

6. Time limit for Assessor’s decision: Section 8 requires the Assessor to decide all applications within 12 months after commencement. If the Assessor fails to do so, applicants have no remedy. The Act does not provide a default outcome in favour of the applicant.

7. No guarantee of full fund distribution: If fewer eligible applicants come forward than expected, the residual may not be exhausted. There is no provision to distribute surplus funds to additional groups or to other purposes. The money would presumably remain in the Stolen Generations Fund account, but the Act does not say what happens if the fund has a surplus after all payments. Possibly it lapses to the Consolidated Fund under general public account rules.

8. Definition of “Aboriginal person”: Adopts the definition from the Aboriginal Lands Act 1995, which is not reproduced. That definition may require community recognition. This could create administrative difficulties if the Assessor is not familiar with that Act’s interpretation.

9. Information overload: Section 16(2) overrides all privacy legislation. The Assessor can access any agency information, even if it contains personal details of third parties. There is no restriction on how that information is used beyond the confidentiality provision. This is a significant privacy intrusion, though likely justified for historical research.

10. Protection of liability for Assessor: Section 17 protects the Assessor for acts in good faith. But there is no similar protection for other persons involved, such as departmental staff. They might be exposed to liability if they misplace information or make an error in payment.

11. Payment method discretion: Section 12 allows the Secretary to determine the manner of payment, including by electronic funds transfer or cheque. The Secretary also requires a signed form. If the Secretary is uncooperative, payment could be delayed.

12. Report deadline: The Assessor must report within 30 days of deciding the final application. If applications trickle in, the final application could be many years later; the Act does not impose a default closure date.

For applicants (or their guardians or executors):

1. Verify Aboriginal identity under the Aboriginal Lands Act 1995. Obtain documentation of Aboriginal descent, community recognition, and self‑identification. The Assessor will apply that Act’s definition; it is advisable to get a letter from an Aboriginal organisation or a statutory declaration.

2. Confirm you were living on 16 October 2006. This is straightforward for living persons but requires evidence of identity and date of birth.

3. Gather evidence of removal. For section 5(1) pathway: obtain records showing admission as a child of the State under the Infants’ Welfare Act 1935 or wardship under the Child Welfare Act 1960, and evidence that you remained in that status for a continuous period of at least 12 months. Also provide evidence that you were not placed with an Aboriginal family during that period (or if you were, the application fails). For section 5(2) pathway: obtain evidence that a State agency actively intervened to remove you from your family, without parental approval or under duress. This could include departmental files, correspondence, or affidavits from family members. The removal must have been continuous for 12 months or more, and you must not have been in the care of an Aboriginal family.

4. If applying as a child of a deceased eligible person (section 5(3)), provide evidence of your Aboriginal identity, the deceased parent’s identity, and evidence that the deceased would have met the primary criteria. The deceased must have been living on 16 October 2006 or died after that date (section 19(3)). The $5,000 cap and $20,000 family group cap apply; if siblings apply, the payment is divided equally.

5. If removal was due to a criminal conviction, check whether the conviction was for being a neglected child under the historical Acts. Any other conviction disqualifies.

6. Complete the application form approved by the Secretary, containing all required information (section 6(2)). Submit within six months of the Act’s commencement. The commencement date is unknown from the source text; applicants must monitor government gazettes for the proclamation. The six‑month window is strict; no extensions.

7. If the applicant is under a legal disability, a guardian may apply (section 6(5)). The person under disability is treated as the applicant for eligibility purposes.

8. If the applicant dies after 16 October 2006, the executor can apply on behalf of the estate (section 19). The application does not lapse if the applicant dies after applying; payment goes to the estate.

9. After application, the Secretary forwards it to the Assessor. The Assessor may request further information from agencies (which they must provide despite privacy laws) or from the applicant. Respond promptly. The Assessor must decide within 12 months after commencement.

10. If approved, the Assessor authorises payment. The Secretary will then require the applicant to sign a form (section 12). The form may include a release of claims, though the Act does not require one. Read the form carefully. Payment is by electronic funds transfer, cheque, or other means.

For the Stolen Generations Assessor:

1. Be appointed by the Premier. Hold office on terms set by the Premier. Report to the Minister within 30 days of deciding the final application.

2. Decide eligibility within 12 months after the Act’s commencement. Apply the criteria strictly. Use powers under section 16 to obtain agency records, overriding privacy laws. Request further information from applicants if needed.

3. Ensure decisions are in writing and, if favourable, authorise the Secretary to make payment. Do not divulge information except as necessary for functions.

4. Act in good faith; section 17 protects only good faith actions.

For the Secretary of the Department:

1. Provide approved application forms and specify required information (section 6(2)). Accept applications within the six‑month window.

2. Forward each application to the Assessor (section 7).

3. On receipt of the Assessor’s authorisation, obtain the applicant’s signed form (section 12) and make payment. Determine the payment method.

4. If applicants wish to amend, give consent as appropriate (section 6(4)).

For legal practitioners advising applicants: The main risk is the 12‑month decision deadline and the ouster of review. Ensure the application is complete and well‑documented to avoid the Assessor needing further information, which could delay the decision. Advise clients that any rejection is almost certainly final; there is no appeal. If a client wishes to challenge a decision, argue jurisdictional error (e.g., the Assessor misconstrued the definition of “Aboriginal family” or “active intervention”). The political context may also be relevant: the Act is a government gesture; pushing too hard may not be productive.