3. Recognition, redress and reparation payments excluded from the assets test

3.1 - List of schemes

Only payments from these schemes are excluded from the applicant’s net assessable assets:

  • NSW Stolen Generations Reparations Scheme;
  • NSW Funeral Assistance Fund;
  • Territories Stolen Generations Redress Scheme;
  • Victorian Stolen Generations Reparations Package;
  • South Australian Stolen Generations Reparation Scheme;
  • Defence Abuse Reparation Scheme;
  • Department of Veterans’ Affairs payments to Australian prisoners of war;
  • National Redress Scheme for People who have experienced institutional child sexual abuse;
  • NSW Victims Support Scheme Recognition Payments;
  • NSW Victims Support Scheme Financial Support Payments;
  • Youpla Group (previously known as Aboriginal Community Benefit Fund) Funeral Benefits Program.

Where an applicant for legal aid has received a lump sum payment from a redress or reparation scheme that is not included in the above list:

  • if the application is urgent, the determining officer may consider exercising discretion (Means Test discretion 9.3) to exclude the payment from the applicant’s net assessable assets, having regard to whether the scheme satisfies the factors listed in Means Test guideline 3.2 below. The scheme should then be referred to the CEO to consider including it in the list of schemes where payments are excluded from the applicant’s net assessable assets.
  • If the application is not urgent, the determining officer should refer the scheme to the CEO for consideration in accordance with Guideline 3.2.

Where an applicant for legal aid has purchased any financial or other assets with their scheme payment, the determining officer may consider exercising discretion to exclude assets held to the amount of the initial lump sum payment from the applicant’s net assessable assets (Means Test discretion 9.3).

3.2 - Criteria to be considered when amending the list of schemes

The following criteria may assist the CEO in determining whether a scheme should be added to the list of schemes at 3.1:

  • The payments are intended to be ‘recognition’ for harm caused. The payments are not compensation or based on an assessment of economic loss or intended to form income support.
  • The scheme may be established to provide redress or reparation for harm caused to an individual, often (but not solely) because of the actions and policies of governments or established institutions.
  • The payments may be exempt from income and/or asset tests for Commonwealth Government social security type payments.
  • The scheme may specify the payments are exempt from being used in a way that is detrimental to the applicant or goes against the purpose of the payment. This could include requiring the payments are non-taxable or exempting the payments from debt recovery or from creditors where the recipient is bankrupt.