• About
• Complaints
• Aboriginal & Torres
  Strait Islander
  Social Justice
• Age
  Discrimination
• Disability
  Rights
• Human
  Rights
• Race
  Discrimination
• Sex
  Discrimination
• Education
• Legal
  Research &
  Resources

Aboriginal & Torres Strait Islander Social Justice navigation

• About Aboriginal & Torres Strait Islander Social Justice
• Information Sheet
• Media Releases
• Indigenous Health Campaign
• Social Justice Reports
  • 2007
  • 2006
  • 2005
• Native Title Reports
  • 2007
  • 2006
  • 2005
• Bringing them home - 'Stolen Children' report
  • Anniversary
• Publications
  • A National Indigenous Representative Body (2008)
  • Us Taken-Away Kids (2007)
  • Indigenous Health (2007)
  • Ending Family Violence (2006)
  • Indigenous Peoples: Issues in International and Australian Law (2007)
  • Engaging the Marginalized (2006)
• Essentials for Social Justice speech series
• International Indigenous Rights
  • Convention on the Rights of the Child
  • Declaration of the Rights of Indigenous Peoples
• Conferences
• Native Title
• Speeches
• Statistics
• Submissions
• Links
• National Indigenous Legal Advocacy Courses

Back to Contents

Social Justice Report 2007

Chapter 3: The Northern Territory ‘Emergency Response’ intervention – A human rights analysis

• Part 1: Background - The Little Children are Sacred Report and the announcement of the 'emergency measures'
• Part 2: The Northern Territory 'emergency response' legislation
• Part 3: The measures enacted in the NT emergency response and human rights standards
• Part 4: Ways forward - modifying the NT intervention measures so that they comply fully with Australia's human rights obligations
• Conclusion and recommendations

On 21 June 2007, the Australian Government announced a ‘national emergency response to protect Aboriginal children in the Northern Territory’ from sexual abuse and family violence.^[1] This has become known as the ‘NT intervention’ or the ‘Emergency Response’. The catalyst for the measures was the release of Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, titled Ampe Akelyernemane Meke Mekarle: ‘Little Children are Sacred’.

In the following months the emergency announcements were developed and formalised into a package of Commonwealth legislation which was passed by the federal Parliament and received Royal Assent on the 17 August 2007.

The Human Rights and Equal Opportunity Commission welcomed the Australian Government’s announcements to act to protect the rights of Indigenous women and children in the Northern Territory. In doing so, the Commission urged the government and Parliament to adopt an approach that is consistent with Australia’s international human rights obligations and particularly with the Racial Discrimination Act 1975 (Cth).^[2]

This chapter provides an overview of the NT emergency intervention legislation and approach more generally. It considers the human rights implications of the approach adopted by the government. Many details of how the intervention will work remain to be seen, and so the analysis here is preliminary. It seeks to foreshadow significant human rights concerns that are raised by the particular approach adopted by the government, and proposes ways forward to ensure that the intervention is consistent with Australia’s human rights obligations as embodied in legislation such as the Racial Discrimination Act 1975 (Cth).

Part 1 provides background on the announcement of the intervention and the findings of the Little Children are Sacred report. Part 2 then provides an overview of the legislative package to implement the intervention, the scrutiny process at the time of its introduction and related issues. Part 3 then considers the human rights impact of the intervention. Part 4 considers how to ensure that any actions to protect Indigenous children and women are done in a manner consistent with the human rights of Indigenous peoples.

top | contents

Part 1: Background – The Little Children are Sacred Report and the announcement of the ‘emergency measures’

On 21 June 2007 the Australian Government announced a series of broad ranging measures to be introduced in Aboriginal communities across the Northern Territory to address what it described as the ‘national emergency confronting the welfare of Aboriginal children’ in relation to child abuse and family violence.^[3] The Minister described the measures to be introduced as measures aimed at ‘stabilis(ing) and protect(ing) communities in the crisis area’ with all action ‘designed to ensure the protection of Aboriginal children from harm’.^[4] He described the measures as ‘a first step that will provide immediate mitigation and stabilising impacts in communities’.The extent to which the proposed measures would shift the social, cultural and legal landscapes of Aboriginal communities in the Northern Territory was immediately obvious. The Government described the measures to be introduced as follows:

• Introducing widespread alcohol restrictions on Northern Territory Aboriginal land;
• Introducing welfare reforms to stem the flow of cash going toward substance abuse and to ensure funds meant to be for children's welfare are used for that purpose;
• Enforcing school attendance by linking income support and family assistance payments to school attendance for all people living on Aboriginal land and providing meals for children at school at parents' cost;
• Introducing compulsory health checks for all Aboriginal children to identify and treat health problems and any effects of abuse;
• Acquiring townships prescribed by the Australian Government through five year leases including payment of just terms compensation;
• As part of the immediate emergency response, increasing policing levels in prescribed communities, including requesting secondments from other jurisdictions to supplement NT resources, funded by the Australian Government;
• Requiring intensified on ground clean up and repair of communities to make them safer and healthier by marshalling local workforces through work-for-the-dole;
• Improving housing and reforming community living arrangements in prescribed communities including the introduction of market based rents and normal tenancy arrangements;
• Banning the possession of X-rated pornography and introducing audits of all publicly funded computers to identify illegal material;
• Scrapping the permit system for common areas, road corridors and airstrips for prescribed communities on Aboriginal land; and
• Improving governance by appointing managers of all government business in prescribed communities.^[5]

The Government also noted that it expected the Northern Territory Government to undertake the following, complementary actions:

• Increase its efforts and resources to ensure the servicing and protection of its citizens in the range of areas of State and Territory responsibility and support, within the scope of its resources, the national emergency response;
• Develop a comprehensive strategy to tackle the 'rivers of grog' across the Territory;
• Resume all special leases over town camps in the major urban areas where lease conditions have been breached, with the Australian Government acting in this area if the NT Government fails to do so; and
• Remove customary law as a mitigating factor for sentencing and bail conditions.

The initial phase of the intervention is due to last for up to five years. It will apply in most Aboriginal townships and town camps in the Northern Territory (as ‘prescribed’ by the NT intervention legislation or subsequently by legislative instrument by the Minister for Indigenous Affairs). Initially, 73 communities were identified for application of the measures.^[6]

The Government announced that the intervention would be overseen by a Taskforce of ‘eminent Australians, including logistics and other specialists as well as child protection experts’ to be chaired by Dr Sue Gordon AM.

In announcing the intervention, the Minister stated that:

The immediate nature of the Australian Government's response reflects the very first recommendation of the Little Children are Sacred report into the protection of Aboriginal children from child abuse in the Northern Territory which said: "That Aboriginal child sexual abuse in the Northern territory be designated as an issue of urgent national significance by both the Australian and Northern Territory Governments...."^[7]

He also stated that the immediacy of the broad scale change being undertaken was justifiable from the perspective of the urgent need to ‘stabilise’ the situation in Northern Territory communities, and that:

I could not live with myself and I know that not one member of this House would want to live with themselves knowing that we sat on a report like this for eight weeks and then said for another six or eight weeks that we would wait and try and come up with some answers and then start to implement them.^[8]

The Minister has consistently stated that: ‘All action at the national level is designed to ensure the protection of Aboriginal children from harm’.^[9]

The Little Children are Sacred report

Our appointment and terms of reference arose out of allegations of sexual abuse of Aboriginal children. Everything we have learned since convinces us that these are just symptoms of a breakdown of Aboriginal culture and society. There is, in our view, little point in an exercise of band-aiding individual and specific problems as each one achieves an appropriate degree of media and political hype. It has not worked in the past and will not work in the future...

What is required is a determined, coordinated effort to break the cycle and provide the necessary strength, power and appropriate support and services to local communities, so they can lead themselves out of the malaise: in a word, empowerment!^[10]

Pat Anderson and Rex Wild QC, Little Children are Sacred report

The catalyst for the NT intervention was the findings of the report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, titled Ampe Akelyernemane Meke Mekarle: ‘Little Children are Sacred’ (herein the Little Children are Sacred report). This had been presented to the Chief Minister of the Northern Territory on 30 April 2007 and publicly released on 15 June 2007.

The Little Children are Sacred report was commissioned by the Chief Minister of the Northern Territory on 8 August 2006. It involved extensive research and community consultation by members of the Board of Inquiry into instances of sexual abuse in Aboriginal communities in the Northern Territory. The report took over eight months to complete.

The Little Children are Sacred report found that child sexual abuse is serious, widespread and often unreported in Aboriginal communities. It also found that:

• Most Aboriginal people are willing and committed to solving problems and helping their children. They are also eager to better educate themselves.
• Aboriginal people are not the only victims and not the only perpetrators of sexual abuse.
• Much of the violence and sexual abuse occurring in Territory communities is a reflection of past, current and continuing social problems which have developed over many decades.
• The combined effects of poor health, alcohol and drug abuse, unemployment, gambling, pornography, poor education and housing, and a general loss of identity and control have contributed to violence and to sexual abuse in many forms.
• Existing government programs to help Aboriginal people break the cycle of poverty and violence need to work better. There is not enough coordination and communication between government departments and agencies, and this is causing a breakdown in services and poor crisis intervention. Improvements in health and social services are desperately needed.
• Programs need to have enough funds and resources and be a long-term commitment.^[11]

Throughout the report, the Board of Inquiry emphasised the importance of entering into genuine partnerships with Aboriginal communities if there is to be progress in addressing child abuse and family violence issues in those communities. In introducing the recommendations, the report states:

In the first recommendation, we have specifically referred to the critical importance of governments committing to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities, whether these be in remote, regional or urban settings. We have been conscious throughout our enquiries of the need for that consultation and for Aboriginal people to be involved...

The thrust of our recommendations, which are designed to advise the Northern Territory Government on how it can help support communities to effectively prevent and tackle child sexual abuse, is for there to be consultation with, and ownership by the communities, of those solutions. The underlying dysfunctionality where child sexual abuse flourishes needs to be attacked and the strength returned to Aboriginal people.^[12]

The Report called for there to be ‘a radical change in the way government and non-government organisations consult, engage with and support Aboriginal people’.^[13] The Report states that it ‘was a common theme of discussions that many Aboriginal people felt disempowered, confused, overwhelmed, and disillusioned’ with this situation leading to:

communities being weakened to the point that the likelihood of children being sexually abused is increased and the community ability to deal with it is decreased.^[14]

Recommendation 1 of the report reflects the need for immediate action as well as ongoing effective dialogue with Aboriginal people in designing initiatives that address child sexual abuse:

Recommendation 1: That Aboriginal child sexual abuse in the Northern Territory be designated as an issue of urgent national significance by both the Australian and Northern Territory Governments, and both governments immediately establish a collaborative partnership with a Memorandum of Understanding to specifically address the protection of Aboriginal children from sexual abuse. It is critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities.

The report also identified a series of principles to guide engagement with Aboriginal communities in addressing the scourge of child abuse and family violence. It stated that these ‘rules of engagement’ must be central to any policy formation and implementation in Indigenous communities:

• Principle One- Improve government service provision to Aboriginal people. Including genuine whole-of-government commitment to improving service provision to Aboriginal communities, and a significant fiscal outlay, much better infrastructure and improved provision of resources.
• Principle Two- Take language and cultural ‘world view’ seriously. Much of the failure to successfully address the dysfunction in Aboriginal communities has its roots in the “language barrier” and the “cultural gap” and this is widening among the younger generations. A common theme in consultations was that many Aboriginal people did not understand the mainstream law and many mainstream concepts, including sexual abuse.
• Principle Three- Engage in effective and ongoing consultation and engagement with Aboriginal Communities. Many government policies are formulated without the active involvement of the very Aboriginal people whose lives and livelihoods are going to be affected by them, and whose support is needed for their success. The result is that these policies have not had the “on the ground” impact that it was hoped they would. The Inquiry believes that effective and ongoing consultation and engagement is an essential principle in reform.
• Principle Four- Maintain a local focus and recognise diversity. There cannot be a one-size fits all approach to reform in Aboriginal communities. The Northern Territory Aboriginal population is made up of many culturally diverse groups. Recognition of this diversity demands that government initiatives have a local focus and that generic programs have sufficient flexibility to adapt to the cultural dynamics of individual Aboriginal communities.
• Principle Five- Support community- based and community-owned initiatives. There is now sufficient evidence to show that well resourced programs that are owned and run by the community are more successful than generic, short term, and sometimes inflexible programs imposed on communities. The Inquiry recognises the significant challenge for bureaucrats and politicians to avoid reverting to the familiar habits of seeking to control, incorporate and assimilate. The Inquiry takes the view that the government must offer realistic and useful support for local initiatives rather than: ‘only seeking to re-orient communities toward better acceptance of existing mainstream legal processes and institutions’.
• Principle Six- Recognise and respect Aboriginal law, and empower and respect Aboriginal people. An overwhelming request from both men and women during community consultations was for Aboriginal law to be respected, recognised, and incorporated within the wider Australian law where possible.
• Principle Seven- Maintain balance in gender, family and group representation. For policies and programs to truly reflect the needs of the whole of community, consultations must include representatives from all different groups. In developing new structures and in engaging with community, care must be taken that all family groups have an equal role, that men and women are equally represented, and that the old and the young are equally represented.
• Principle Eight- Provide adequate and ongoing support and resources. There is a need to overcome the lack of ongoing support for many programs. While initial support to commence a program could often be obtained, continuing support was much more difficult to obtain.
• Principle Nine- Commit to ongoing monitoring and evaluation of programs. An increased understanding and accommodation of an Aboriginal cultural perspective is required in order to effectively evaluate service provision in Aboriginal communities, Further, there is a need to acknowledge Aboriginal people’s history of being “researched on”, and to develop culturally appropriate collaborative partnerships, where Indigenous communities share ownership of the research (and service provision) process.^[15]

The Little Children are Sacred report includes 97 recommendations in relation to government leadership; family and children’s services; health crisis intervention; police; prosecutions and victim support; bail; offender rehabilitation; prevention services; health care as prevention of abuse; family support services; education; alcohol; substance abuse; community justice; employment; housing; pornography; gambling, and cross cultural practices.

In particular, the recommendations emphasise that education is the key to helping children and communities foster safe, well adjusted families. It emphasised that school is the way to keep future generations of Aboriginal children safe, and getting children to school every day is essential. Education campaigns are also needed about sexual abuse, the impact of alcohol and pornography, and on the importance of schooling for a child’s future.

The report also emphasises the need for urgent action to be taken to reduce alcohol consumption in Aboriginal communities.

top | contents

Part 2: The Northern Territory ‘emergency response’ legislation

The Australian Government’s emergency intervention was announced hastily. There was six days between the public release of the Little Children are Sacred report and the government’s announcement of the intervention measures.^[16] The Northern Territory government were informed of the intervention measures at the same time that they were announced at a press conference by the Minister for Indigenous Affairs and the Prime Minister.

The majority of measures announced by the government require legislation to proceed. The substantive provisions of the government’s ‘Emergency Response’ are contained in the following legislation:

• Northern Territory National Emergency Response Act 2007 (Cth);
• Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth);
• Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth);
• Appropriation (Northern Territory National Emergency Response) Act (No. 1) 2007-2008 (2007) Cth; and
• Appropriation (Northern Territory National Emergency Response) Act (No. 2) 2007-2008 (2007) (Cth).

Overview of content of the legislation underpinning the intervention

Text Box 1 below provides an overview of the content of the Northern Territory National Emergency Response Act 2007 (Cth).

Text Box 2 below provides an overview of the content of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth).

Text Box 3 below provides an overview of the content of the Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth).

The Appropriation (Northern Territory National Emergency Response) Bill (No. 1) 2007-2008 and Appropriation (Northern Territory National Emergency Response) Bill (No.2) 2007-2008 provided an additional $587million to implement the first stage of the emergency measures.^[17]

This funding is for a mixture of services for Indigenous communities in the Northern Territory, as well as administrative and bureaucratic costs of implementing the measures.

For example, it includes the following costs which are predominately administrative:

• $91.25 million to the Department of Employment and Workplace Relations to assist with implementing welfare reforms which aim to provide all Indigenous people in the Northern Territory with the capacity to work;
• $10.1 million to Centrelink to implement the welfare payment reform through both staff deployment and activities;
• $15.5 million to the Department of Defence for the initial rollout of the measures, including logistical support; and
• $34.3 million to the Department of Families and Community Services and Indigenous Affairs for the purpose of addressing short-term accommodation needs of department staff in implementing the intervention. ^[18]

It also includes the following funds intended to provide services in communities:

• $24.21 million to Indigenous Business Australia for investment and community initiatives in the Northern Territory, inclusive of $18.9 million set aside for supporting existing community stores in the outback;
• $212.3 million to the Department of Family and Community Services and Indigenous Affairs to assist with welfare payment reforms housing and land as well as additional support for children and families including the establishment of a diversionary scheme for Indigenous youth from the ages 12-18 to provide an alternative to alcohol and substance misuse;
• $14.5 million to the Department of Families and Community Services and Indigenous Affairs to provide grants for the employment of child protection workers and the establishment of additional safe places for Indigenous families escaping violence; and
• $10.5 million funding to the Attorney General’s department to fund additional Night Patrol services in 50 Indigenous communities as well as financing extra legal services for Indigenous people.^[19]

On 18 September 2007, the Minister for Indigenous Affairs announced a further $100 million in funding over 2 years to be provided to support Indigenous health care services in the Northern Territory. This includes for additional doctors, nurses and to follow up on issues identified by the child health checks that were conducted in the initial phase of the intervention.^[20]

Timeline for introduction of the legislation and scrutiny by the Parliament

Table 1 below sets out the timeline for the introduction and consideration of this legislation.

Table 1: Timeline for introduction of the Northern Territory Intervention

Table 1 shows that there was limited consideration of the legislation by the Parliament, with extremely circumscribed timeframes for analysis despite the complexity and potential implications of the legislation.

The legislative process had entirely concluded within 10 days of the bills being introduced to Parliament. The Parliamentary Bills Digest noted that ‘[t]he quick passage of these Bills has been unusual, if not unprecedented’.^[22]

The haste with which the measures were introduced is also demonstrated in Table 1 in the timeline for the conduct of an inquiry into the package of bills by the Senate Legal and Constitutional Committee.

The bills were referred to the committee on 8 August 2007, with a public hearing to be conducted on 10 August 2007 and the committee to table its report by 13 August 2007. In other words, it took a total of 6 days from commencement to finalisation of the inquiry’s deliberations on perhaps the most complex legislative package to be placed before the Parliament in that term of office.  

Almost every witness before the Senate Inquiry, as well as those that made written submissions to Parliament on the legislation, noted with regret the inability of the primary stakeholders to meaningfully interact with the process that was being set up to govern them.

Of the first 70 submissions to the Senate Committee inquiry, 67 voiced concerns with the Bills and requested that they either be subject to further amendment and consultation, or be rejected.^[23] Organisations such as Reconciliation Australia, the Secretariat of National Aboriginal and Islander Child Care, the Combined Aboriginal Organisations of the Northern Territory and the Central Land Council called for a delay to the passage of the legislation to allow for meaningful consideration and review.^[24]

The Senate Committee’s inquiry revealed overwhelming support from all sides of politics that something needed to be done to tackle child sexual abuse in Indigenous communities. However, this was accompanied by significant concerns about the methods to be adopted for the intervention.

The then Opposition, the Australian Labor Party, acknowledged the importance of addressing child abuse as a matter of urgent national significance.^[25] They emphasised that the goals of the intervention would not be realised unless they were part of a long term strategy with the following aims:

• the protection of children;
• the nurturing of children and ensuring they have access to appropriate health and education;
• strengthening Indigenous communities to take control of their own affairs; and
• assisting those communities to achieve economic independence.

They stated that these aims ‘cannot be achieved unless the Commonwealth, after dialogue and genuine consultation with affected Aboriginal communities, sets out a comprehensive long term plan’.^[26]

They also noted that the ‘intervention is silent on many of the recommendations set out in the Little Children are Sacred report’ and argued that:

Any longer term plan should establish a framework for the achievement, in partnership with the Northern Territory Government and Indigenous communities, of the recommendations set out in the Little Children are Sacred report.^[27]

The ALP made a series of proposals relating to the legislation, including:

• Permits on Aboriginal land: That the blanket removal of the permit system on roads, community common areas and other places be opposed. That access without a permit for agents of the Commonwealth or Northern Territory Government to facilitate service delivery (such as doctors or other health workers) be supported, and greater public scrutiny of Aboriginal communities in the Northern Territory be facilitated by allowing access to roads and common town areas, without a permit, by journalists acting in their professional capacity, subject to restrictions relating to the protection of the privacy of cultural events (such as sorry business).
• Compulsory acquisition: That the Government should negotiate with affected communities prior to the acquisition of property. A twelve month review of the intervention measures should particularly focus on the compulsory acquisition of 5 year leases over communities due to their potential impact.
• Compensation for acquisition of property: That it is an absolutely fundamental principle that the Commonwealth Government should pay just terms compensation for the acquisition of property from anyone, anywhere in Australia. Any suggestion that services or infrastructure, which all Australians have the right to expect their governments to provide, should be considered as contributing to compensation for the acquisition of the property rights of Indigenous people should be absolutely rejected.
• Welfare reform: The effectiveness of the income management measures in stabilising communities, and stemming the flow of money to alcohol should be identifiable after 12 months. A review should focus on this issue, particularly given significant concerns about the practicality of welfare quarantining on the ability of Indigenous peoples to travel between outstations and homelands, and to go back to remote areas for cultural and ceremonial reasons (such as funerals).
• Compliance with the Racial Discrimination Act: Observing the integrity of the Racial Discrimination Act is a basic principle for this country and a basic principle for the Indigenous community of this country. Accordingly, the provisions in the bills suspending the operation of the Racial Discrimination Act should be opposed.^[28]

They subsequently announced that they would also reinstate the CDEP Program in the Northern Territory in a revised format.

The Australian Greens and Australian Democrats also noted that the failure of the government to consult with Indigenous communities about the proposed measures amounted to a failure to comply with the very first recommendation of the Little Children are Sacred report.^[29] This was despite the government’s claim, as cited above, that the basis of the intervention was this very recommendation.

The Senate Committee’s report was tabled in Parliament on 13 August 2007. It contained the following recommendations:

1. That the operation of the measures implemented by the bills be continuously monitored and publicly reported on annually through the Overcoming Indigenous Disadvantage framework (para 3.17).
2. That the Northern Territory Emergency Taskforce make publicly available its strategic communications plan as well as other operational plans, within six months, and the long term plans being developed in relation to the intervention, within 12 months; and that information regarding significant revisions to these plans should be provided in the Overcoming Indigenous Disadvantage report (para 3.18).
3. That the operation of the measures implemented by the bills be the subject of a review two years after their commencement, particularly to ascertain the impact of the measures on the welfare of Indigenous children in the Northern Territory. A report on this review should be tabled in Parliament (para 3.19).
4. That a culturally appropriate public information campaign be conducted, as soon as possible, to allay any fears Indigenous communities in the Northern Territory may hold, and to ensure that Indigenous people understand how the measures in the bills will impact on them and what their new responsibilities are (para 3.20).
5. That the Australian Government develop, as a matter of high priority, explanatory material to assist people to understand what is meant in practical terms by the phrases 'a quantity of alcohol greater than 1350 millilitres' and 'unsatisfactory school attendance' (para 3.21).
6. That the Australian Government should closely examine the need for additional drug and alcohol rehabilitation services in the Northern Territory and, if necessary, provide additional funding to support those services (para 3.22).
7. That the committee recommends the Senate pass the bills (para 3.23).^[30]

The Government accepted recommendations 3 – 7 in full, and recommendations 1-2 in part. For recommendations 1- 2, the government stated that they ‘fully supported transparency and accountability and that the bills be continuously monitored’ but that they had concerns ‘over the appropriateness of the Overcoming Indigenous Disadvantage as a reporting framework’.^[31]

The Government also indicated that they did not consider that any amendments to the legislation were necessary to address the recommendations of the Senate Committee.

The bills were then passed by the Senate without substantial amendment on 17 August 2007. They received Royal Assent the same day.

Interaction of the legislation with the Racial Discrimination Act 1975 (Cth) and other protections against discrimination

One of the most significant aspects of the legislative package is the way in which it interacts with the Racial Discrimination Act 1975 (Cth) (RDA) and other protections against discrimination at the territory level.

Text Box 4 below outlines the provisions in the legislation relating to the Racial Discrimination Act 1975 (Cth), as well as Northern Territory and Queensland anti-discrimination laws.

Each of these three Acts does two things in relation to the operation of the RDA.

First, they state that the measures contained in each Act are deemed to be ‘special measures’ in accordance with section 8 of the RDA.

Special measures are a form of positive discrimination whereby a group defined by race receives beneficial treatment. This is not considered discriminatory under the RDA. As discussed in part 3 of this chapter below, certain criteria must be met in order to establish that the measures in fact qualify as ‘special measures’.

So in essence, the legislation states that all of the measures introduced through the legislation are to be characterised as ‘beneficial’ and therefore exempt from the prohibition of racial discrimination in Part II of the RDA.

Second, the Acts also suspend the operation of Part II of the RDA in relation to the provisions of these Acts, ‘and any acts done under or for the purposes of those provisions’. Part II of the RDA makes it unlawful to discriminate against a person on the basis of their race.

In essence, this is a statement that if the intervention measures do not qualify as special measures and are in fact racially discriminatory, then the protections of the RDA do not apply. This has the consequence that individuals affected by the intervention measures have no right to bring a complaint under the RDA. They can also not challenge the validity of any laws introduced by the Northern Territory government under the auspices of this legislation (such as in relation to alcohol restrictions or changes to permits for entry into Aboriginal land) under section 10 of the RDA.

This exemption from the RDA is extremely broad as it relates not only to the provisions of the legislation but also to ‘any acts done under or for the purposes of those provisions’. This means that there can be no challenge to any exercise of discretion by officials purporting to act in accordance with the legislation (for example, decisions of government business managers, variations of contract conditions, seizure of assets and so on).

At the Senate Legal and Constitutional Committee Inquiry into the legislation, the government indicated that the reason for excluding the intervention measures from the operation of Part II of the RDA was first, to provide ‘legal certainty’ for the intervention to progress without any delay caused by legal challenge, and second, to deal particularly with the provisions in section 10(3) of the RDA.^[32]

Section 10(3) of the RDA operates to deem that a law or provision which:

• authorises property owned by an Aboriginal or Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
• prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander; and
• is not a provision that applies to persons generally without regard to their race

contravenes s 10(1) of the RDA.^[33] A law or provision that falls within s10(3) of the RDA can also not be a special measure under section 8 of the RDA.

Each of the NT intervention Acts also exempts the operation of anti-discrimination laws in the Northern Territory. This means there is also no right to review or a remedy through the Northern Territory Anti-Discrimination Act.

The social security amendments also remove the operation of both the RDA and anti-discrimination laws in Queensland in relation to the establishment of a Families Commission in Cape York.

Importantly, the provisions of the legislation provide that the federal Minister for Indigenous Affairs can determine that any law of the Northern Territory Parliament (or Queensland in relation to the social security amendments) is not exempt from these provisions. In other words, the Minister can reinstate the protections against racial discrimination at the state and territory level. However, no such power exists in the legislation in order to restore the application of the RDA.

HREOC had argued to the Parliament that the clauses of the legislation suspending the RDA should be removed, because upholding the values of the RDA is vital to ensuring community respect for government action and to maintaining Australia’s reputation as a nation committed to equality.^[34]

The impact of these provisions and proposals for addressing the problems that they create are discussed in detail in part 3 of this chapter below.

Constitutional basis for the legislative package

The constitutional source of Commonwealth power relies on the legislative package is section 122 of the Constitution (the ‘Territories Power’), which provides:

122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

The High Court has traditionally interpreted section 122 of the Constitution as providing the Commonwealth Government with unqualified scope to legislate as it pleases in the Northern Territory, identifying the power as ‘plenary in quality and unlimited and unqualified in point of subject matter’.^[35]

However, more recent cases heard by the Court seem to have adopted a far more ‘integrationist’ view of the Territories Power,^[36] leaving the issue of whether it does operate independently of any other constitutional guarantee as an open question. If the legislative package is controlled by Constitutional guarantees external to section 122, certain aspects of the legislation, such as the acquisition of Aboriginal property, may be open to challenge in the High Court.^[37]

Even if the Commonwealth government’s use of the Territories Power to enact the legislative ‘Emergency Measures’ package is entirely constitutionally competent, its compatibility with respect for the doctrine of representative government in the Northern Territory is, at best, highly questionable.

As the Bills Digest prepared on the Northern Territory National Emergency Response Bill noted:

[W]hile the Commonwealth [has] constitutional power to effect changes to any area of NT law, the approach raises questions about the wisdom of such a policy. It involves the Commonwealth intervening in the affairs of a self-governing territory to modify or disapply its laws. There are principles that suggest interfering with, and adding layers of complexity to the laws of, a self-governing polity, is inappropriate. Furthermore it can be argued that the legislature (which is answerable to Northern Territorians) should have the freedom to legislate in a particular way. These arguments have been rehearsed with respect to other decisions to over-ride Territory laws, but there is an unusually complex set of issues that the Commonwealth is intervening in through these Bills.^[38]

While the Commonwealth has stated it is relying upon section 122 of the Constitution as the basis of validly enacting the legislation, it is notable that there are provisions contained in the legislation relating to other states. Most notably, this includes provisions which enable the quarantining of income for carers of children identified as ‘at risk’ to come into force across Australia by 2009.^[39]

These measures cannot depend upon the territories power in section 122 of the Constitution for their validity.

In relation to the Queensland welfare reforms in Cape York, the Commonwealth uses the Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 to set up a financial framework for the scheme, and has then encouraged the Queensland Parliament to legislate to enact the introduction of the ‘Queensland Commission’.

However, by exempting this process from the operation of the RDA and Queensland discrimination law, the Commonwealth has stepped beyond a mere financial framework arrangement for this scheme. Accordingly, it would still need to justify how it has validly enacted these provisions.

This may pose some difficulty for the Commonwealth, since the federal government’s power with respect to States is far more narrowly defined under the Constitution than it is with regard to Territories. Indeed, constitutional law expert George Williams has commented that the intervention measures stand as ‘a clear example of the Commonwealth seeking to assert a national interest in a way that could not be done in the same way in the states, and in a way that undercuts self-government in the Territory’.^[40]

In order to enact parallel legislative measures for the States, the Commonwealth would need to find authority in some of the narrower heads of power granted to it by section 51 of the Constitution.

Initial responses to the announcement of the ‘Emergency Response’ measures and legislation

Upon the announcement of the NT intervention measures, a consensus was quickly revealed among political parties, Indigenous peoples and the general community about the need for child abuse and family violence in Indigenous communities to be treated as a national priority.^[41]

For many sectors of the community, there was hope that after a plethora of inquires and reports into the occurrence and causes of violence in Aboriginal communities, something might finally be done to address it.

Unfortunately, while there was consensus about the government’s intentions, concerns about the actual methods being adopted by the federal government to address these issues also quickly emerged.

Aboriginal leaders and organisations expressed significant concerns at the potentially adverse consequences of implementing a quick response to such a complex social problem without wide-spread consultation with the communities involved, and due to the lack of connection between the response announced by the government and the recommendations of the Little Children Are Sacred report that had initiated the process.^[42]

The Chief Executive Officer of the Co-operative Research Centre for Aboriginal Health, Mick Gooda, said, ‘Anything we do to protect our kids I will support’, but urged Canberra to ‘engage with incentives rather than punishment’.^[43]

Former ATSIC chairwoman Dr Lowitja O'Donoghue commented that stripping people of control was not an appropriate measure to address child sex abuse, declaring ‘You can't just come over the top of people, you've got to talk to them’.^[44]

Concerns were also aired about the practicality of many of the intervention measures. Dr Mark Wenitong, the President of the Australian Indigenous Doctors Association, commented that:

As medical professionals, we question the notion that you can treat poverty, dispossession, marginalisation and despair (the root causes of substance misuse and sexual, physical and emotional abuse) with interventions that further contribute to poverty, dispossession, marginalisation and despair.^[45]

Ian Anderson, the director of the Centre for Health & Society and Onemda VicHealth Koori Health Unit at the University of Melbourne, commented:

The Australian government response is framed as a top–down crisis intervention ... It is characterised as a short-term response to be followed by medium- and long-term strategies – none of which are clear at this stage. So, for example, whilst the Anderson/Wild report recommended strategies to increase policing in remote communities in the long term the Howard plan only extends for six months...

Many of the government’s proposals – for instance, scrapping the permit system, assuming control of Aboriginal land and instituting welfare reform – are simply not raised in the Anderson/Wild report. No reason is given as to how measures such as scrapping the permit system will address the problem of child sexual abuse. Conversely, a number of the issues that are raised in the report – in relation to community justice process, education/awareness campaigns in relation to sexual abuse, employment, reform of the legal processes, offender rehabilitation, family support services or the role of communities, for example – have not, as yet, been addressed by the Australian government response.^[46]

Despite the airing of significant concerns, there was a broad willingness from across all areas of society to work with the government to make lasting change in Indigenous communities. For example, an open letter was delivered to the Minister for Indigenous Affairs on 26 June 2007 signed by over 150 organisations from the Indigenous and community sector. It reads:

The safety and well-being of Indigenous children is paramount. We welcome your commitment to tackling violence and abuse in certain Indigenous communities. We are deeply concerned at the severity and widespread nature of the problems of child sexual abuse and community breakdown in Indigenous communities in the NT, catalogued in the Little Children are Sacred Report.

We wish to work collaboratively with Governments and the communities affected to ensure that children are protected. We would like to see greater investment in the services that support Indigenous families and communities, the active involvement of these communities in finding solutions to these problems and greater Federal Government engagement in delivering basic health, housing and education services to remote communities...

We note that the services which most Australians take for granted are often not delivered to remote Indigenous communities, including adequately resourced schools, health services, child protection and family support services, as well as police who are trained to deal with domestic violence in the communities affected. We endorse the call in the Little Children are Sacred Report for the Australian and Territory Governments to work together urgently to fill these gaps in services.

There is also a need for a longer term plan to address the underlying causes of the problem, including community breakdown, joblessness, overcrowding and low levels of education.

Successfully tackling these problems requires sustainable solutions, which must be worked out with the communities, not prescribed from Canberra.

We are committed to working with the Government to ensure that in developing and introducing the proposed measures, support is provided to Indigenous communities’ efforts to resolve these problems. The proposals go well beyond an ‘emergency response’, and will have profound effects on people’s incomes, land ownership, and their ability to decide the kind of medical treatment they receive. Some of the measures will weaken communities and families by taking from them the ability to make basic decisions about their lives, thus removing responsibility instead of empowering them...

We offer our support to Indigenous communities and the Government in:

• developing programs that will strengthen families and communities to empower them to confront the problems they face;
• consulting adequately with the communities and NT Government, and community service, health and education providers;
• developing a long term plan to address and resolve the causes of child abuse including joblessness, poor housing, education and commit the necessary resources to this.^[47]

The Human Rights and Equal Opportunity Commission (HREOC) welcomed the Prime Minister’s commitment to tackling violence and child and alcohol abuse in Indigenous communities in the Northern Territory, but also urged the government to adopt an approach in the NT intervention that was consistent with Australia’s human rights obligations:

The complex issues being tackled and the proposed measures to be taken to overcome them raise a host of fundamental human rights principles. It is of the utmost importance to Australia’s international reputation, and for community respect for our system of government, that solutions to all aspects of these matters respect the human rights and freedoms of everyone involved.

Every Australian woman, man and child has the right to live free from violence in a safe and supportive home and community. These rights are clearly spelt out in the Convention on the Rights of the Child (CRC) and the International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which Australia is a party. While these Conventions require government action to protect women and children against immediate harm, they also require government to address the broader social factors (such as health, education and housing) and disadvantage experienced within Indigenous communities.

The design and implementation of measures to address violence and child abuse should also respect the human rights principles embodied in the Racial Discrimination Act 1975 (Cth) (the RDA), which gives effect to Australia’s international obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD). The RDA protects all Australians against discrimination on the grounds of race, colour, descent, or national or ethnic origin. Successive Australian governments for more than 30 years have proudly endorsed the objects of the RDA, and Australia has been a strong advocate for its principles on the international stage.

HREOC considers that the situation the government is confronting can and should be addressed consistently with the RDA. The RDA provides that its provisions are not contravened by special measures taken to ensure the enjoyment or exercise of the human rights of particular racial groups or individuals belonging to them. Special measures must be reasonable and proportionate to the risk of harm being addressed. These provisions give an avenue for laws to protect Indigenous women and children who are at risk.

For more than a decade HREOC has supported the introduction of alcohol restrictions in some Indigenous communities as a ‘special measure’ on the basis that social benefits are likely to result in reduced violence and abuse and improved public safety. However in giving this support, HREOC has indicated that the restrictions should be part of a broad range of measures to address the causes of alcoholism, rehabilitation and underlying social disadvantage.

Many Indigenous communities are crying out for support services to assist them in addressing the social conditions in their communities. HREOC has been advocating for some time that a proactive approach needs to be taken by governments to address Indigenous disadvantage. Successive Social Justice Reports to Parliament have recommended a human rights based approach to development in Indigenous communities and stressed the necessity of ensuring the effective participation of Indigenous peoples in decision making processes. This approach is important to ensure that measures have more than a temporary impact on Indigenous people and their communities.

It is crucial that the government thoroughly analyses barriers that exist within Indigenous communities to the full enjoyment of basic human rights, such as the right to an adequate standard of living, and to the highest attainable standard of health, education and housing and identifies the steps necessary to address these.

HREOC will continue to work constructively with governments, Indigenous communities and the broader Australian community by putting forward suggestions to ensure that proposals in this area are consistent with Australia’s human rights obligations.^[48]

As Social Justice Commissioner, I also expressed some concerns about the capacity of the Government to implement the announced measures given the significant difficulties and failings that had occurred in its whole of government machinery for Indigenous affairs in the past three years. Upon the announcement of the NT intervention measures I stated:

Overall, the announcements and the commitments made by the federal Government for the NT raise a number of important and complex issues. Each of these issues in some way comes back to the capacity of the government to deliver on its commitments. And it is, of course, the capacity of the government through the new arrangements that has been the focus of successive Social Justice Reports.

Structural questions about how the government will achieve its objectives include, but are by no means limited to the following:

• First, on what basis will the government intervene in one community as opposed to another? As Rex Wild and Pat Anderson’s report reveals, there is a lack of statistics that reveal the true extent of the problem. So, in the absence of any situational and needs analysis, how does the government decide?
• Second, and related to this question, is how will the government decide the appropriate approach for the specific needs of individual communities? I am concerned about a mismatch that has already revealed itself between the public debate on these issues and the findings of the Little Children are Sacred report.
• Third, and of critical importance, is what role does the community have in this process? I think it is intentional that the government has described its announcements as an ‘intervention’ as opposed to a ‘partnership’ with Indigenous communities. We are now coming on three years since the introduction of the new arrangements – so why has the government not built relationships with communities sufficiently that they can approach the announcements as a partnership?
• Fourth, if the government intends to make lasting change – how will it know when such change has occurred? In the absence of regional and local level planning how will the specific issues facing communities, and the connections between communities on a regional basis, be addressed? This is something that incidentally was intended to be a key feature of the new arrangements but which has by and large failed to materialise as yet.
• And fifth, how does the NT announcement fit with the processes that are continuing to be introduced as part of the ‘new arrangements’ to date? Will it require another re-engineering of processes that are yet to be bedded down? For example, the government has released an evaluation plan for whole-of-government activities to address the critical problem of lack of baseline data.^[49]

  The evaluation plan identifies that in the coming year there will be reviews of some of the communities who have previously been designated as communities in crisis, and baseline data will be established for some new priority communities. What is the impact of the NT announcement on this plan? Does it re-direct these evaluation activities for new communities to the NT rather than to communities in other states, or will there be an expansion of the scope of the evaluative framework? This would appear necessary to be able to effectively understand the success or otherwise of the measures to be taken.

• Similarly, will the government seek to utilise and expand its program of Shared Responsibility Agreements and Regional Partnership Agreements as tools to implement its NT announcements? It has previously foreshadowed the importance of these as primary mechanisms for engagement. As the Social Justice Report notes, these processes offer the potential to embed a community development approach into the new arrangements, but there is no evidence of this occurring to date.

The Social Justice Report identifies the warning signs where the current federal system for Indigenous affairs is not capable of addressing these core issues due to significant policy errors.

The most significant problem with the new arrangements identified by the Report is the lack of capacity for engagement and participation of Indigenous peoples. This manifests as a lack of connection between the local and regional level, up to the state and national level; and as a disconnect between the making of policy and its implementation...

Indigenous peoples are treated as problems to be solved, not as partners and active participants in creating a positive life vision for the generations of Indigenous peoples still to come.

The greatest irony of this is that it fosters a passive system of policy development and service delivery while at the same time criticising Indigenous peoples for being passive recipients of government services!^[50]

Another important question I raised was:

Will the Government conduct child protection checks on volunteers and other personnel who enter Indigenous communities to assist in this process? As the Wild / Anderson report notes it is unfortunate that many offenders in communities are non-Indigenous support workers so this has to be addressed so as to not entrench longer term offending behaviours.^[51]

Reconciliation Australia also cautioned that long term strategies would need to be implemented in order for the emergency measures to be successful:

It comes as somewhat of a relief that the Federal Government seems to be saying today that “enough is enough”. But what remains to be seen is firstly whether having made this wide ranging announcement, the Government has the measures and properly trained people in place to make it work. Then we must hope that the Prime Minister, and all our leaders, will work to move Australia beyond serial crisis intervention to take the systemic, long term action consistently called for by fellow Australians living the horror. This will be the test of the sincerity behind today’s announcement.^[52]

Aboriginal organisations in the Northern Territory, in conjunction with other community sector organisations across the nation (Aboriginal and non-Aboriginal), developed a formal response to the federal government's proposed intervention measures on 10 July 2007.

The proposals were developed by the Combined Aboriginal Organisations of the Northern Territory (or CAO) representing Aboriginal organisations in Darwin, Alice Springs, Tennant Creek and Katherine, as well as community sector organisations from across the country.

Their document was titled: A proposed Emergency Response and Development Plan to protect Aboriginal children in the Northern Territory – A preliminary response to the Australian Government’s proposals^[53], released on 10 July 2007 and outlines steps to protect children in Northern Territory Aboriginal communities in both the short and long term.

The proposal outlined the willingness of a vast number of Indigenous organisations across the territory to work in partnership with the government to address family violence and child abuse issues. The report stated that:

The serious nature of Aboriginal child abuse and family violence in the Northern Territory demands an emergency response. However, in developing this response governments must show confidence and faith in Aboriginal communities to take ownership of these problems and support them to protect and nurture their children over the long term. This has been the expressed desire of Aboriginal communities...^[54]

A comprehensive approach to child protection in an emergency context gives priority to protection from immediate physical or emotional harm, but must go further. It should also address community safety and access to essential services including housing, health care and education. A failure to also commit to addressing these underlying issues will ensure the current risk factors contributing to existing child abuse and neglect will remain.^[55]

Accordingly, the CAO proposed a two stage response to the problems of child abuse in remote Aboriginal communities:

1. An emergency response over the first 3-6 months, on which agreement can be reached quickly between Governments and community leaders; and
2. A more comprehensive plan and costed financial commitment that addresses the underlying issues within specific timeframes and has bi partisan political support.

They noted that:

This plan would include specific objectives, timeframes and mechanisms that ensure transparency and ongoing independent rigorous evaluation. The performance of both governments and Aboriginal organisations would be included. This would also involve thorough planning and negotiation to ensure that the correct strategies are adopted, the substantial resources required are efficiently used, and funding is stable and predictable over the longer term. This plan should be developed and negotiated under a partnership approach with the targeted communities during the current emergency response phase and be implemented as soon as is practicable.

These stages are not mutually exclusive. During the emergency response phase, the emphasis must shift from immediate child endangerment goals to the underlying and wider child protection goals of health, housing, education and ongoing community safety.

Funding must be organised so that short term needs are met and long term development funding is also available. In these ways the emergency measures provide a foundation for stable long term investment that results in longer term solutions...

The response should build on the knowledge base already available to Government, starting with the recommendations of the Little Children are Sacred Report.^[56]

Text Box 5 below provides a summary of the recommended approach as set out by the Combined Aboriginal Organisations of the Northern Territory.

Critical to the CAO’s proposal is a transition from an emergency ‘intervention style’ approach to a community development process. As the CAO state in their proposal:

Strategies to resolve these problems are more likely to succeed if local Aboriginal governance and the capacity of communities to pursue their own solutions are strengthened. This does not preclude or excuse Governments from providing and administering services such as schools and health care, but it means that any ‘takeover’ of Aboriginal controlled services would be counterproductive...

there is broad agreement over many of the changes that are necessary (including safe places and better support for victims). To consult properly over these measures need not take long and it would improve the effectiveness of implementation...

In addition to an Emergency Response, a longer term community capacity and service development plan is needed to establish the basic services and facilities that are lacking in the communities, to build job opportunities and proper housing, and to strengthen community governance so that the communities themselves can take the lead in addressing their problems. It is vital that the governments and the communities work together to get these medium to long term strategies right from the outset, to avoid the demoralising cycle of ‘stop-start’ policy making and frequent changes of direction that have characterised Aboriginal affairs for many years.^[57]

Community engagement, and strengthening community cohesion, is critical to such an approach:

Consultation and engagement with community leaders is crucial to ensure that policy is informed by knowledge of local conditions, priorities are properly set and mistakes are avoided in implementation...

if the ‘emergency measures’ are implemented without community consent and ownership, there is a risk that the problems (e.g. alcohol addiction) will be driven underground and that initiatives to help prevent child sexual abuse and family violence will be resisted.

More fundamentally, a Government ‘takeover’ of community administration risks undermining local community leadership and initiative that is essential to resolve the problems of child abuse and neglect, alcohol misuse, joblessness and inadequate services.^[58]

As the timeline for the introduction of the legislation vividly demonstrates, the government was unwilling to enter into any dialogue, let alone negotiations, with Indigenous communities or the broader community about the methods to be adopted. The circumscribed process for debate and scrutiny also meant there was limited scrutiny prior to the introduction of the legislation.

The result was acrimonious public debate in which those who expressed concerns about the methods being adopted by the government were criticised (often in the most personal of terms) as if they were opposed to addressing violence and abuse.

From a distance, it appears inconceivable that a program to address issues as fundamental as family violence and child abuse should be the cause of community division. Such a process should have built partnerships across society and solidified a joint determination to address the scourge of family violence and child abuse in Indigenous communities.

Instead, the approach adopted has created or exacerbated division and mistrust between the federal government, the Northern Territory government, Indigenous communities and numerous community organisations.

The introduction of the NT intervention has, as a result, been highly controversial.

The responsibility for creating such division lies with those who led the process. The inability to develop a national consensus and partnership for addressing violence and abuse should be seen as one of the main legacies, and a significant failure, of the now former Minister for Indigenous Affairs.

The main victims of such conflict and division are, of course, Indigenous peoples themselves – with a noticeable increase in intolerance towards our communities and an increased stereotyping of all Aboriginal men (as violent, drunks or abusers).

Rebuilding trust and partnerships is a major challenge for the incoming Minister and government.

top | contents

Part 3: The measures enacted in the NT emergency response and human rights standards

The NT intervention legislation and associated measures raise complex human rights challenges.

In introducing the NT intervention legislation, the Government clearly stated that the measures were intended to protect the rights of Indigenous children as set out in the Convention on the Rights of the Child, and were undertaken in furtherance of Australia’s human rights obligations.

The Explanatory Memorandum for the Northern Territory Emergency National Response Bill 2007 also states:

The impact of sexual abuse on indigenous children, families and communities is a most serious issue requiring decisive and prompt action. The Northern Territory national emergency response will protect children and implement Australia's obligations under human rights treaties.^[59]

As noted in the previous section, the legislation underpinning the intervention also deems the measures introduced to be ‘special measures’ and therefore non-discriminatory and consistent with Australia’s human rights obligations. In apparent contradiction of this, however, the legislation also provides that in any event the measures are not subject to racial discrimination protections at either the territory or national level.

Many people and Indigenous communities have expressed concerns that the measures involve breaches of human rights. In particular, concerns have focused on the potentially racially discriminatory impact of the measures, the characterisation of the measures as ‘special measures’ accompanied by the exclusion from the protection of racial discrimination laws, and the lack of participation and consultation with Indigenous peoples in the formulation and implementation of the measures.

In response, Government officials stated before the Senate Inquiry into the legislation that:

Australia’s international obligations go to the protection of children as well as its obligations in relation to the elimination of all forms of racial discrimination. In balancing those two measures, in the context of the emergency response, we have considered those matters and we consider that the legislation achieves that balance.^[60]

This section of the report provides an overview of the main human rights standards and legal obligations that are relevant to the Government’s emergency intervention response to protect Aboriginal children in the Northern Territory. It considers established criteria (as set through processes of international law) for determining whether the ‘balance’ struck by the government is in fact consistent with Australia’s human rights obligations or whether the intervention places Australia in breach of those obligations.

Australia’s human rights obligations in relation to family violence and child abuse in Indigenous communities

Text Box 6 below provides a summary of the main human rights obligations undertaken by Australia that relate, directly or indirectly, to family violence and child abuse issues.^[61]

This text box reveals a complex range of human rights issues that the NT intervention measures raise.

It is important to acknowledge at the outset the overlapping and inter-connected nature of these different human rights. This reflects that human rights are universal and indivisible. I explained these concepts in last year’s Social Justice Report as follows:

In simple terms universality means that (rights) apply to everyone, everywhere, equally and regardless of circumstance – they are intended to reflect the essence of humanity. They are the standards of treatment that all individuals and groups, irrespective of their racial or ethnic origins, should receive for the simple reason that we are all members of the human family. They are not contingent upon any factor or characteristic being met – you do not have to ‘earn’ rights or have to be ‘deserving’ for them to be protected.

And the indivisibility of human rights means that all rights - economic, social, cultural, civil and political rights – are of equal importance. There is no hierarchy or priority for the protection or enjoyment of rights. Similarly, this means that all rights are to be applied consistently – you cannot claim to be performing an action in exercise of your rights if it causes harm or breaches the rights of another person.^[62]

Ultimately, this means that governments (and individuals) should not privilege the enjoyment of one right over that of another, as if different rights are in competition with each other or subject to a hierarchy of ‘more important’ and ‘less important’ rights.^[63]

Article 5 of the International Covenant of Civil and Political Rights enshrines this principle. It states:

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

While this language is somewhat opaque, it reflects the principle that it is not legitimate to suggest that the reason for breaching a human right is in order to further the recognition of a different right.

Governments must apply human rights in a consistent manner and ensure that their efforts to promote the enjoyment of certain human rights do not (by design or impact) result in breaches of other rights.

In relation to the NT intervention, the implication of this should be clear: it is not appropriate to seek to justify discriminatory measures on the basis that they