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Northern Territory National Emergency Response Legislation

Legal Legal
Friday 14 December, 2012

Submission of the HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
(HREOC)
to the Senate Legal and Constitutional Committee

on the

Northern Territory National Emergency Response Legislation

10 August 2007

Human Rights and Equal Opportunity Commission
Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600


 

A. SUMMARY OF SUBMISSION

  1. The Human Rights and Equal Opportunity Commission (‘HREOC’)
    makes this submission to the Senate Legal and Constitutional Committee Inquiry
    into the

    • Northern Territory National Emergency Response Bill 2007 (‘NTNER
      Bill’);
    • Social Security and Other Legislation Amendment (Welfare Payment Reform)
      Bill 2007 (‘the Social Security Bill’); and
    • Families, Community Services and Indigenous Affairs and Other Legislation
      Amendment (Northern Territory National Emergency Response and Other Measures)
      Bill 2007 (‘FaCSIA Bill’).
  2. These are collectively described in this submission as the ‘NTNER
    measures’.


Action is necessary

  1. HREOC welcomes the recognition by the government of the serious, broad
    ranging social and economic disadvantage in many Indigenous communities. This
    recognition presents an historic opportunity to deal with a national
    tragedy.
  2. HREOC strongly supports the aims of this legislative package, namely to
    improve the well-being of certain communities in the Northern Territory and to
    protect children.

Action must be consistent with rights

  1. However, HREOC stresses that the legislation and action taken under it must
    seek to achieve its goals consistently with the fundamental right to racial
    equality. HREOC does not support the NTNER measures being exempt from the
    RDA.[1]
  2. These laws clearly have a number of significant actual and potential
    negative impacts upon the rights of Indigenous people which are discriminatory.
    The laws generally must therefore be justifiable as a ‘special
    measure’ taken for the advancement of Indigenous people to be consistent
    with human rights principles.[2] If
    the NTNER measures are not ‘special measures’, they should not be
    enacted.
  1. HREOC submits that a fundamental feature of ‘special measures’
    is that they are done following effective consultation with the intended
    beneficiaries and generally with their consent. The absence of effective
    consultation with Indigenous people concerning the NTNER measures is therefore a
    matter of serious concern.
  2. HREOC accepts the need for urgent action. However, the success of that
    action both immediately and in the long term will depend upon effective
    consultation. And such consultation is fundamental to respecting the human
    rights of Indigenous people.
  3. More broadly, HREOC is concerned that the NTNER measures are likely to
    produce unintended negative consequences that adversely impact upon the rights
    of Indigenous people. Some examples are given later in this submission: see
    section D below.

Recommendation: a review mechanism must be
established

  1. While it would clearly have been preferable for consultation with Indigenous
    people to have taken place prior to the passage of this legislation, HREOC
    recognises that these Bills are likely to pass through Parliament, given the
    bi-partisan support expressed for them and the need for urgent action. HREOC
    therefore urges that extensive consultation backed up with effective and
    culturally appropriate information campaigns occur as a matter of urgency.
  2. HREOC’s submission proposes a structure for ongoing monitoring and an
    independent and public Parliamentary review after 12 months to seek to ensure
    that the goals of the proposed legislation are achieved in a manner that is
    consistent with human rights. Immediate steps should be taken to put in place
    an effective monitoring mechanism.
  3. Monitoring must actively involve the Indigenous peoples in relevant
    communities to ensure that an accurate and representative assessment of the
    impacts can be made. The monitoring mechanisms must also be able to measure the
    progressive realisation of the economic and social rights of Indigenous peoples
    which is critical if their well-being is to improve as the legislation intends.

B. ACTION MUST BE CONSISTENT WITH RIGHTS

  1. The Racial Discrimination Act 1975 (Cth) (‘RDA’)
    implements Australia’s international obligations under the Convention
    on the Elimination of All Forms of Racial Discrimination
    (‘ICERD’). The RDA was Australia’s first law to protect
    human rights and remains a cornerstone of human rights protection in Australia.
    Upholding the values of the RDA and ICERD is vital to ensuring community respect
    for government action and to maintain Australia’s reputation as a nation
    committed to equality. As was noted in the Australian government’s 1997
    White Paper on foreign trade and policy:

    Central to the values to
    which the Government gives expression is an unqualified commitment to racial
    equality and to eliminating racial discrimination. This is a non-negotiable
    tenet of our own national cohesion, reflected in our racial diversity, and it
    must remain a guiding principle of our international behaviour. The rejection of
    racial discrimination is not only a moral issue, it is fundamental to our
    acceptance by, and engagement with, the region where our vital security and
    economic interests lie. Racial discrimination is not only morally repugnant, it
    repudiates Australia’s best interests.

  2. While the NTNER measures are intended for the overall benefit of Indigenous
    communities, they also have a range of potentially significant negative impacts
    upon the rights of Indigenous people.
  3. HREOC submits that the measures are potentially contrary to a range of
    rights of Indigenous people, including:

    • The right to equality before the law and the equal protection of the law
      (article 26 ICCPR);
    • The right to self-determination (article 1 International Convention on
      Civil and Political Rights
      (‘ICCPR’);
    • The right not to be arbitrarily deprived of property (article 17 Universal Declaration of Human Rights (‘UDHR’)); and
    • The right to social security (article 5(e)(iv) ICERD).
  4. The potential for the proposed legislation to breach the fundamental rights
    of Indigenous people means that, at the very least, the operation of the
    legislation should it be enacted must be subject to very careful scrutiny.

C. IS THIS LEGISLATION A
‘SPECIAL MEASURE’?

  1. The proposed legislation asserts that it is a ‘special measure’
    for the purposes of the RDA.[3] This
    characterisation seeks to justify the otherwise discriminatory aspects of the
    legislation for the purposes of the RDA and ICERD.
  2. However, as set out below, an essential feature of a special measure is that
    it is done in consultation with (and generally with the consent of) the people
    who are subject to it. The apparent lack of consultation prior to the
    introduction of the NTNER measures is therefore a matter of serious concern.
    HREOC submits that it is imperative that effective consultation immediately take
    place.

ICERD

  1. Article 1(4) of ICERD provides:

    Special measures taken for the
    sole purpose of securing adequate advancement of certain racial or ethnic groups
    or individuals requiring such protection as may be necessary in order to ensure
    such groups or individuals equal enjoyment or exercise of human rights and
    fundamental freedoms shall not be deemed racial discrimination, provided,
    however, that such measures do not, as a consequence, lead to the maintenance of
    separate rights for different racial groups and that they shall not be continued
    after the objectives for which they were taken to have been
    achieved.[4]

The need for effective
consultation

  1. Special measures are generally measures by way of ‘affirmative
    action’ or ‘positive
    discrimination’.[5] The
    exemption in discrimination law made for special measures therefore aims to
    protect things done to benefit a disadvantaged group from challenge by
    non-members of the group. Legislation granting land rights to Aboriginal people
    was upheld by the High Court as being a ‘special measure’ in Gerhardy v
    Brown
    .[6]
  2. Measures that may impact negatively on rights, such as limitations upon the
    availability of alcohol,[7] may be
    considered ‘special measures’ where they are done after consultation
    with, and generally the consent of, the ‘subject’ group. Cases where
    consent is not obtained from those the subject of a measure must be very rare
    and limited to situations where there are competing rights or opinions within a
    group, as exist in relation to prohibitions on alcohol.
  3. In the present case, the rights of children and the rights of adult
    individuals the subject of these proposed measures may differ, and this raises
    complex issues in relation to consent to ‘special measures’. It does
    not, however, deny the need for proper consultation.
  4. Measures taken with neither consultation nor consent cannot meaningfully be
    said to be for the ‘advancement’ of a group of people, as is
    required by the definition of special
    measures.[8]
  5. To take any other approach contemplates a paternalism that considers the
    views of a group as to their wellbeing irrelevant. Such an approach in the
    context of Indigenous people is contrary to their right to self-determination as
    well as undermining their dignity. Such an approach could allow for measures to
    be taken that would be ‘a step towards
    apartheid’.[9]
  6. The present case can be contrasted with the introduction of the Native
    Title Act 1993
    (Cth) (‘the NTA’) in which Indigenous leaders
    were actively involved in negotiations surrounding its
    introduction.[10]
  7. The need for consultation is particularly important in the context of the
    rights of Indigenous people. The Committee on the Elimination of Racial
    Discrimination has, in its General Recommendation XXIII, called upon parties to
    ICERD to:

    ensure that members of indigenous peoples have equal
    rights in respect of effective participation in public life, and that no
    decisions directly relating to their rights and interests are taken without
    their informed consent...

Consent is needed for
management of Aboriginal land

  1. The need for consent is clearest in the context of the laws that make
    provision for the management of property owned by Aboriginal people. The RDA
    excludes from the ‘special measures’ exemption laws that authorise
    management of property without the consent of Aboriginal and Torres Strait
    Islander people or prevent them from terminating management by another of land
    owned by them.[11] To be consistent
    with the RDA, the measures relating to the management of land must be undertaken
    with the consent of the landowners.

The measures must be appropriate and adapted to the
stated purpose

  1. While it is appropriate to consider the effect of the package as a whole
    when determining whether it is a ‘special measure’, it is still
    necessary for its parts to be ‘appropriate and adapted’ to this
    purpose.[12]
  2. Widespread concern is being expressed by Aboriginal communities that certain
    of the measures are not appropriate and adapted to the end of child protection.
    These include the compulsory acquisition of
    property[13] in circumstances where
    a lease has not been requested from the
    landowners[14] and the changes made
    to the permit system.[15]
  3. It is also of concern that the proposed legislation provides no guidance to
    decision-makers as to the requirements of special measures, nor does it require
    that the decision-maker exercise their discretion consistent with the purported
    beneficial purpose.
  4. These concerns emphasise the need for extensive consultation even at this
    stage to explain these measures and the object of the legislation. Thereafter,
    it is of crucial importance that, in the administration of the proposed
    legislation, measures are delivered in ways that respect the wishes and
    aspirations of the relevant communities.
  5. This also emphasises the need for effective monitoring and review of the
    implementation of the measures to ensure that only those that are appropriate
    and adapted to the purpose of child protection are maintained.

D. THE LEGISLATION MAY
HAVE UNINTENDED NEGATIVE CONSEQUENCES

  1. While the NTNER measures have the potential to bring positive change in
    Indigenous communities, there may also be unintended negative consequences.
  2. The following are examples of where the measures may prove detrimental to
    the welfare of Indigenous peoples.


Phasing out CDEP
may increase unemployment, movement to urban centres and the risk of family
violence

  1. Phasing out CDEP is likely to result in increased unemployment. Currently,
    there are approximately 7,500 people in the NT on CDEP. The ideal situation
    would be that those 7,500 people would be transitioned through Newstart to jobs
    in the open workplace.
  2. However, the government expects that only about 2,000 CDEP participants will
    get ‘real work’.[16] It
    follows that the remaining 5,500 people are not expected to find sustainable
    employment and will remain on Work for the
    Dole.[17]
  3. Many communities rely on the CDEP program to provide essential services,
    some of which are critical to improving law and order or the health of the
    community, such as night patrols, nutritional programs, garbage collection and
    sanitation programs. The government has said that critical services will
    continue to be provided by CDEP until other arrangements are in place. The
    legislation provides for a ‘CDEP transition payment’, but this will
    only be provided until 30 June 2008. After that time, former CDEP participants
    will be expected to have found employment, or they will remain on income
    support.
  4. An audit of employment opportunities for Indigenous people in 52 remote
    communities in the NT was undertaken by the Local Government Association of the
    Northern Territory (LGANT) in
    2006.[18] Overall findings from the
    audit identified that there were only 2,955 ‘real jobs’ across the
    52 communities. According to the Audit Report, these positions were allocated
    across a reported population of 37,070 persons of which 2,722 were
    non-Indigenous.
  5. Following the Minister’s announcement that CDEP would be abolished in
    the NT, the Local Government Association of the Northern Territory (LGANT)
    commented that:

    Remote Councils are already contacting LGANT with
    comments like ‘CDEP is the backbone of our community and the
    ramifications to Indigenous business enterprises could be disastrous’
    .
    Some of our members are saying that this decision could well mean the beginning
    of the end for many remote communities. Most people currently employed by CDEP
    will not get a permanent job and will have their income reduced by 18 percent.
    On top of this community stores, without the benefit of CDEP labour will need to
    increase prices.[19]

  6. HREOC is also concerned that the removal of CDEP and lack of alternative
    employment options in Indigenous communities could lead to some people deciding
    to move into urban areas such as Darwin, Katherine and Alice Springs. This would
    exacerbate the current pressures in those areas in relation to available and
    appropriate housing and other essential services. Darwin already has the highest
    rate of homelessness in an urban setting on a national
    scale.[20]
  7. HREOC also notes that once CDEP participants leave that scheme and become
    welfare recipients, they will lose their ability to accrue superannuation.
  8. It is well known that unemployment can create additional family pressures
    and general social unrest in a community. It is therefore possible that
    increased unemployment in communities will increase, rather than decrease, the
    risk of family violence.


Unintended negative consequences
for Indigenous physical and mental health and well-being

  1. International and domestic evidence links the mental health impacts of
    dispossession, the removal of children, loss of culture and a general sense of
    powerlessness that Indigenous peoples have experienced with the social
    dysfunction that is evident in some Indigenous communities.
  2. For example, the landmark study by Chandler and Lalonde in Canada showed
    that those First Nations communities that had some form of self-government and
    settled land claims had much lower rates of youth suicide as a result. Those
    communities that did not, have excessively high suicide rates.[21]
  3. Given the highly interventionist approach of several aspects of the
    government’s emergency response, it is reasonable to expect that more
    functional communities will feel disempowered by measures that distance them
    from control over daily decision-making responsibilities. For example, the role
    and functions of the government business managers may have the unintended impact
    of undermining Indigenous authority structures and dispute resolution practices.
  4. A respected Indigenous psychiatrist, Associate Professor Helen Milroy has
    advised HREOC that:

    If the emergency measures that are proposed in
    the NT result in further disempowerment or a sense of extreme powerlessness,
    then this is a re-traumatisation and will have negative consequences on:

    1. Mental health including possibly higher rates of depression, stress and
      anxiety;
    2. Social and emotional wellbeing through increasing anxiety and uncertainty
      and hence this may precipitate family and community despair and dysfunction,
      poor or maladaptive coping and contribute to substance use and possible violence
      as well as loss of trust;
    3. Physical health as there is a strong relationship with chronic stress and
      poor health outcomes including diabetes and cardiovascular
      disease.

As well other possible adverse outcomes may include:

  • Higher suicide rates including deaths in custody;
  • Higher mental health problems if the disclosures of abuse are not handled
    appropriately;
  • Higher rates of poor health or failure of follow up related to the lack of
    current services to deal adequately with the needs
    identified.[22]

Quarantining
welfare payments may increase the risk of violence against women

  1. In the longer term under the national scheme, income quarantining measures
    designed to encourage school attendance may put the mother in a family in a very
    vulnerable situation.
  2. Firstly, in those communities where the mother is the person who is
    responsible for her children, the father of children may ‘blame’ the
    mother for the quarantining of payments.
  3. Secondly, Indigenous cultures often have care arrangements for children
    whereby aunties and others have responsibility for children, rather than the
    biological parents. Yet, if the children fail to attend school the payments of
    the mother and father will be quarantined. Again, this may expose a variety of
    women to potential ‘blame’ and
    violence.


Quarantining payments for school attendance may
disproportionately impact on families in areas without adequate schools and
teachers

  1. Under the national scheme, the federal government is relying on the NT
    government to provide adequate school buildings and teachers despite the NT
    government’s poor record in this area.
  2. It is difficult to assess the exact numbers of students without access
    to primary and secondary education in the Northern Territory. There is no
    reliable public data about Indigenous school participation rates mapped against
    ABS population data. The NT Minister for Education, Mr Paul Henderson, cannot
    provide an actual figure of the number of school-aged children without access to
    primary and secondary education, though he does say that the number is
    'significant'.[23]
  3. This situation is now urgent given that under the NTNER measures, carers of
    children will have their welfare payments quarantined if they do not send their
    children to school. The Northern Territory Government must assess where there is
    no school provision and make concerted efforts to provide reasonable school
    access for all school-aged Northern Territory children.


Amendments to the permit system may work against efforts to
reduce substance abuse

  1. Amendments to the permit system may mean that suppliers of drugs and alcohol
    will have easier access to communities which are trying to reduce substance
    abuse. This could have a particularly negative impact on those communities that
    are currently dry or have controlled the supply of alcohol.
  2. HREOC is also concerned that removal of the permit system will open up
    Indigenous owned land to a range of uses that are incompatible and in some cases
    illegal. For example, recreational shooters may seek to take advantage of
    increased access to Aboriginal land to hunt, in conflict with the needs and
    interests of the local Indigenous population. Given that police will reasonably
    be expected to focus their work on policing near population centres, they may
    not be in a position to enforce those elements of the permit system that are to
    remain in place.


Alcohol bans may result in increased
imprisonment of Indigenous peoples

  1. Section 18 of the Northern Territory National Emergency Response Bill
    2007 (Cth)
    provides that Division 4 of Part VII of the Police
    Administration Act (NT)
    applies to each prescribed area as if it were a
    public place. As a result:

    Where a member [of NT Police] has
    reasonable grounds for believing that a person is intoxicated with alcohol or a
    drug and that that person is in a public place or trespassing on private
    property the member may, without warrant, apprehend and take that person into
    custody. ....For the purposes of carrying out his duties under subsection (1), a
    member may, without warrant, enter upon private
    property.[24]

  2. This provision will allow NT police to enter private property in prescribed
    areas to take someone into custody if they believe the person is drunk. There is
    the potential for people to resist the police, and to be arrested and charged.
  3. In addition, many Indigenous people will not be able to pay the fines
    imposed for violating the alcohol bans. This is especially the case whether the
    person with the fines is under 100% income quarantining.
  4. HREOC understands that the legislation provides for on-the-spot $100 fines
    for personal alcohol use, at the discretion of NT police. Fines for bringing,
    supplying and transporting liquor invoke a $1,100 fine for the first offence,
    and $2,200 for the second offence. Higher level offences carry fines of $74,800
    or 18 month prison terms.
  5. If failure to pay fines results ultimately in incarceration, it would
    clearly be a negative outcome for a community seeking to address the root cause
    of substance abuse. This is particularly the case in a community that already
    suffers from disproportionate incarceration
    rates.[25]


Rapid
interventions may result in undesirable compromises

  1. HREOC is concerned that in the haste to intervene in Indigenous communities,
    a range of safe-guards and consultative processes may be compromised. For
    example, HREOC considers that all employees, contracted employees and volunteers
    entering Indigenous communities should be required to undergo police and child
    protection checks to ensure they do not pose a threat to the communities, yet
    this may not happen.
  2. Further, in relation to the construction of Indigenous houses, construction
    by contractors might put more houses on the ground in the first year – but
    will they be appropriate to the needs and cultural preferences of the people
    they are intended for? Will there be Indigenous input into the design or
    location of the houses to ensure they meet the needs and aspirations of these
    communities?
  3. Given the unemployment that exists in most of these communities, it might
    prove better to take the time to train and skill Indigenous people in the
    construction and maintenance of their own houses, wherever possible using
    Indigenous contractors who can assist.

E. NEED FOR THE LEGISLATION TO BE REVIEWED AFTER 12
MONTHS OF IMPLEMENTATION

  1. Given the complexity and breadth of the many novel measures proposed by the
    legislative framework, as the NTNER measures are implemented it is likely that
    unforseen issues will arise, including unintended consequences of the kind
    mentioned above.
  2. HREOC considers that it is critical to the long term success of the NTNER
    measures that:

    • a comprehensive scheme for monitoring progress and outcomes against
      benchmarks and targets be established as soon as possible; and
    • there be a public review at the end of the first 12 months of the operation
      and effectiveness of the NTNER measures with a view to recommending improvements
      and changes where necessary to ensure that each of the components of the new
      regime are advancing the wellbeing of the communities
      concerned.

  1. It is also critical that Indigenous peoples living in the Northern Territory
    are able to directly contribute to both the monitoring and review processes to
    ensure that Indigenous peoples’ experience of how the legislation has
    impacted on their lives and in their communities is conveyed to those
    undertaking the review.


Review by Parliamentary
Committee

  1. HREOC recommends that the review after 12 months be conducted by a
    Parliamentary Committee, and that the Committee be advised by an independent
    expert advisory committee, established by statute, which will also be the body
    charged with monitoring the NTNER measures.
  2. This advisory committee should be formed within 8 weeks of the enactment of
    the legislation and adequately resourced to meet periodically, and to travel as
    necessary to inspect progress in the communities.
  3. The advisory committee should provide a report to the Secretariat of the
    Parliamentary Committee after each of its monitoring meetings. This report
    should be a public document, but not include information that may endanger a
    person’s safety, or prejudice an investigation or prosecution.
  4. To assist the advisory committee in its monitoring work, it should receive
    the support of an adequately resourced secretariat.
  5. The advisory committee should comprise a relatively small group and have a
    gender balance.[26] At least half
    its members should be Indigenous people living in the Northern Territory who
    hold respected positions in their community.
  6. The remainder should include a mental health specialist and an expert in the
    implementation and monitoring of legislation, particularly as it affects
    Indigenous peoples and their ability to enjoy their human rights.


What should the priorities of the advisory committee
be?

  1. If the bills are passed, the advisory committee should start immediately to
    identify the targets, indicators and benchmarks that will measure how the
    legislation is impacting on the well-being of Indigenous communities.
  2. There are currently insufficient baseline measures in place to allow a
    comparison between the current circumstances of Indigenous peoples and how that
    changes following the implementation of the new legislation. It will therefore
    be important to put in place a baseline screen or to develop a retrospective
    approach.[27]
  3. This capacity to monitor, assess and improve on the implementation of the
    legislation is essential. It will also allow an assessment to be made as to
    whether the approach taken in the NT could benefit Indigenous communities in
    other locations.


What should the review cover?

  1. The review should cover the operation of all legislative provisions which
    comprise the NTNER measures, and their operation, especially within Indigenous
    communities.
  2. The terms of reference for the Parliamentary Committee should be broad in
    scope so that it can consider:

    • Whether the legislation has worked to achieve its intended purposes;
    • Whether there have been unintended negative consequences; and
    • Assess appropriate alternative approaches or mechanisms that would enhance
      the ability of the legislation to achieve its
      purpose.
  1. The Parliamentary Committee should be required to:

    • invite and receive public written submissions;
    • hold public hearings in a variety of locations in the Northern Territory,
      including in remote areas; and
    • report to the Parliament as soon as practicable after the first anniversary
      of the enactment of the NTNER legislation, but within six months of commencing
      its review.

F. THE NEED FOR AN EFFECTIVE PUBLIC INFORMATION
CAMPAIGN IN INDIGENOUS COMMUNITIES ACROSS THE NT

  1. The NTNER legislation will introduce a vast array of complex and novel laws
    which will dramatically and suddenly impact on Indigenous communities. Many of
    the laws will carry serious penalties for non-compliance including significant
    monetary fines, quarantining of discretionary spending money, and prison terms
    for alcohol offences.
  2. A culturally appropriate and effective public information campaign is
    critical to allay fears and ensure Indigenous communities understand how the
    NTNER measures will impact on them and what their new responsibilities are.
  3. HREOC understands that Centrelink and the Ombudsman’s Office intend to
    provide public information to Indigenous communities. This is welcome but it
    must be done in a comprehensive and culturally appropriate manner. It is
    critical that information does not add to the fear and confusion in Indigenous
    communities about the legislation.
  4. The public information campaign needs to be far-reaching, targeted to remote
    communities, and in place well before the application of any penalties.
    Innovative strategies could include use of pictures and oral information
    sessions in Aboriginal languages. There must be information available on all
    aspects of the NTNER measures that affect members of the particular
    community.
  5. For the past three years, HREOC has emphasised to government the importance
    of undertaking broad-based community education in Indigenous communities about
    human rights, family violence and customary law. These proposals have been
    considered in light of the Ministerial Summit on Family Violence in 2006, as
    well as through the regular budgetary process. HREOC submits that it would be
    prudent and timely for government to fund such educative work to be undertaken
    nationally, but immediately in the NT.

G. CONCLUSION

  1. Upholding the values of the RDA is vital to ensuring community respect for
    government action and to maintain Australia’s reputation as a nation
    committed to equality.
  2. Putting in place additional safeguards in the form of a public independent
    review by a Parliamentary Committee, supported by an independent expert advisory
    committee, as well as an effective public information campaign, are critical to
    ensuring the NTNER measures achieve their goal of improving the wellbeing of
    Indigenous
    people.

[1] See NTNER Bill clause 132;
Social Security Bill clause 4; FaCSIA Bill clause
4.
[2] Note, however that a law
authorising management of property owned by Aboriginal and Torres Strait
Islander people without their consent cannot be justified as a special measure
under the RDA: see ss 8(1) and
10(3).
[3] See NTNER Bill clause
132(1); Social Security Bill clause 4(2); FaCSIA Bill clause
4(1).
[4] See also article 2(2)
which obliges States to take ‘special and concrete measures to ensure the
adequate development and protection of certain racial groups or individuals
belonging to them, for the purposes of guaranteeing them the full and equal
enjoyment of human rights and fundamental
freedoms’.
[5] See, for
example Theodor Meron, ‘The Meaning and Reach of the International
Convention on the Elimination of All Forms of Racial Discrimination’
(1985) 79 Am J. Int’l Law 283, 305; Natan Lerner, The UN
Convention on the Elimination of All Forms of Racial Discrimination
(1980),
32; Natan Lerner, Group Rights and Discrimination in International Law (2nd ed, 2003), 182. See also analogous concepts in other
Commonwealth legislation: Sex Discrimination Act 1984 (Cth) s 7D; Disability Discrimination Act 1992 (Cth) s 45; Age Discrimination Act
2004
(Cth) s 33.
[6] (1985)
159 CLR 70. See also Bruch v Commonwealth [2002] FMCA 29 in which Abstudy
was challenged by a non-Indigenous person and upheld as a special
measure.
[7] See the Alcohol
Report
, HREOC (1995).
[8]Gerhardy v Brown (1985) 159 CLR 70 Brennan J
(135).
[9] Ibid.
[10] See Strelein, Dodson
and Weir, ‘Understanding non-discrimination: Native Title law and policy
in a human rights context’ (2001) 3 Balayi: Culture, Law and
Colonialism
113, 126.
[11] See ss 10(3), 8(1).
[12]Gerhardy v Brown (1985) 159 CLR 70, Mason J (105), Deane J
(149).
[13] See NTNER Bill Part
4.
[14] Such a lease could be
granted pursuant to s 19A of the Aboriginal Land Rights (Northern Territory)
Act 1976
(Cth).
[15] See
FaCSIA Bill Schedule 4.
[16] Brough, M. (Minister for Families, Community Services and Indigenous Affairs)
and Hockey, J. (Minister for Employment and Workplace Relations), Jobs and
Training for Indigenous People in the NT,
Joint Media Release, 23 July 2007.
Note: this figure is very optimistic as it assumes all jobs will be filled by
local job seekers.
[17] Altman,
J., ‘Neo-Paternalism and the Destruction of CDEP’, forthcoming article in Arena Magazine, August–September
2007.
[18] Local Government
Association of the Northern Territory, Audit of Employment Opportunities in
Indigenous Communities in the NT
, 2006, available online at http://www.workplace.gov.au/NR/rdonlyres/8ECC6349-
A689-4685-A954-663A3E29D977/0/nt_FINALREPORT.pdf
accessed 9 August 2007.
[19] Local Government Association of the NT, ‘Local Government Association
calls for re-think on CDEP changes’, Media Release, 24 July 2007,
available at http://www.lgant.nt.gov.au/home/about_lgant/news_events/media_releases/
local_government_association_calls_for_re_think_on_cdep_changes?
PHPSESSID=48a46a425dfc9f25a944e0a02e044084
accessed 8 August, 2007.
[20] Goldie, C. PhD Thesis draft, UNSW.
[21] Chandler, M. J., and
Lalonde, C., Cultural continuity as a hedge against suicide in First Nations
youth,
2000, available at http://web.uvic.ca/~lalonde/manuscripts/1998TransCultural.pdf accessed 9 August 2007.
[22] Milroy, H., (Associate Professor, Centre for Aboriginal Medical and Dental
Health University of Western Australia) personal email correspondence with the
Aboriginal and Torres Strait Islander Social Justice Commissioner, 9 August
2007.
[23] Minister Paul
Henderson, Claims many NT Indigenous kids get no mainstream schooling, ABC
The World Today, 21 March 2007, available online at:
http://www.abc.net.au/worldtoday/content/2007/s1877912.htm, accessed 9 August
2007.
[24]Police
Administration Act NT,
section 128(1) and
(2).
[25] In the Northern
Territory, 1416.3 per 100,000 Indigenous adults are imprisoned, compared to only
115.1 per 100,000 non Indigenous adults. See Productivity Commission, Overcoming Indigenous Disadvantage 2007, p 126. Available at http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2007/index.html accessed 8 August 2007.
[26] The
Security Legislation Review Committee was comprised of eight members.
[27] Milroy, H., (Associate
Professor, Centre for Aboriginal Medical and Dental Health University of Western
Australia) personal email correspondence with the Aboriginal and Torres Strait
Islander Social Justice Commissioner, 9 August 2007.