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Social Justice Report 2007 - Chapter 3: The Northern Territory 'Emergency Response' intervention

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Social Justice Report 2007

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


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.

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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.

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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 1 – Contents of the Northern Territory National Emergency Response Act 2007 (Cth)

Part I

Part I identifies the areas of the Northern Territory to which the
legislation is to apply as:

  • Aboriginal land, within the meaning of Aboriginal Land in the Aboriginal
    Land Rights Act 1976
    (Cth) including roads and rivers on Aboriginal land;
  • Aboriginal community living areas;
  • town camps as declared by the Minister; and
  • other areas declared by the Minister.
Part I identifies that the operation of the Act is for 5
years.

Part II

Part II prohibits the sale, consumption or purchase of alcohol in
prescribed areas, and enacts new penalty provisions for those activities. It
also makes new laws in relation to liquor sales in the Northern Territory,
making the collection of information compulsory for purchases over $100 or 5
litres of alcohol.

Part III

Part III mandates that any computer in a prescribed area owned by an
individual or agency that receives government funding to be installed with a
filter that has been accredited by the Telecommunications Minister. It also
mandates that records be kept for three years of each person that uses the
computer and the time and purpose for which they use it. Penalties apply for not
complying with this requirement.

Part IV

Part IV outlines the Commonwealth’s compulsorily acquisition of
leases over 65 Aboriginal communities, and mandates the Minister to further
acquire leases by use of legislative instrument.

Part V

Part V empowers the Minister for Indigenous Affairs to control the
activities of ‘community service entities’, which are defined as a
local government council, incorporated association or Aboriginal corporation.
The Minister also has the power to declare any person or organisation operating
within the boundaries of the Northern Territory as a ‘community services
entity’. The scope of the Minister’s control over the entity’s
activities extends to the complete direction of its funding, assets, and
business structures.

Part VI

Part VI provides that a court or bail authority must not consider any
customary law or cultural practice as a mitigating factor in determining either
sentencing or bail applications.

Part VII

Part VII sets up a licensing scheme for stores operating in prescribed
areas whose main purpose is the provision of food or groceries. The licensing
scheme requires the stores to participate in the income management scheme
introduced by the Social Security (Welfare Reform) Act. The owner of such
a store may apply for a license, or the Commonwealth can declare that such a
store will be required to apply for a license. Where a license is not granted,
the Commonwealth has the power to acquire the assets of the community
store.

Part VIII

Part VIII excludes the operation of a range of Commonwealth and Territory
laws in relation to the matters covered in the legislation. This includes
excluding the operation of section 49 of the Northern Territory (Self
Government) Act 1978
(Cth), any law of the Northern Territory that deals
with discrimination and Part II of the Racial Discrimination Act 1975 (Cth). It also excludes provisions relating to the acquisition of property
contained in section 50(2) of the Northern Territory (Self Government) Act
1978
(Cth) and section 128A of the Liquor Act 1978 (NT).

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 2 – Content of the Families, Community Services and
Indigenous Affairs and Other Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007
(Cth)

Schedule I

Schedule I bans pornographic material, such as videos and materials that
have been refused classification or identified as restricted material by the
Classification Board, in ‘prescribed areas’ (as identified by the
Northern Territory National Emergency Response Act (Cth) 2007). It makes the
possession, control, or supply of such materials a federal offence.

Schedule II

Schedule II extends the mandate of the Australian Crime Commission to allow
it to deal with child sexual abuse and Indigenous violence.

Schedule II also deploys Australian Federal Police as ‘special
constables’ to the Northern Territory Police Force.

Schedule III

Schedule III grants the Commonwealth an ongoing legal interest in
infrastructure on Aboriginal land if it funds their construction or maintenance
to the value of $50,000 or more.

Schedule IV

Schedule IV modifies the existing permit system for Aboriginal land in the
Northern Territory set out by the Aboriginal Land Rights Act 1976 (Cth)
(ALRA) by giving the Northern Territory Legislative Assembly the power to make
laws authorising entry onto Aboriginal land.

Schedule IV also gives the administrator of the Northern Territory the
power to declare an area of Aboriginal land to be an area not requiring a permit
for entry.

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

(Cth).

Text Box 3 – Contents of the Social Security and Other
Legislation Amendment (Welfare Payment Reform) Act 2007
(Cth)

Schedule I

Schedule I establishes an income management regime that suspends between 50
and 100% of welfare payments that would otherwise be paid to:
  • Individuals responsible for the care and protection of children
  • Individuals subject to the jurisdiction of the ‘Queensland Commission
    in Cape York’
  • Individuals in ‘prescribed areas’ (as identified by the Northern
    Territory National Emergency Response Act (Cth) 2007).
The purpose of the measures is to quarantine the suspended
payments to only be spent on food and other essential items.

Schedule II

Schedule II Provides that an individual who is subject to income management
and who is eligible for the baby bonus will receive the payment in 13
fortnightly instalments, instead of in a lump sum. The instalments may also be
subject to quarantining measures.

Schedule III

Schedule III ends all funding for CDEP arrangements in the Northern
Territory, and moves all CDEP workers into the mainstream employment market.
Provision is made for a one year transition payment to individuals transferring
from CDEP to unemployment benefits, to make up the shortfall in the amount
received.

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

Date
Action
15 June
The Little Children are Sacred report is publicly released by the
Northern Territory government.
21 June
The Australian Government announces the introduction of the
‘emergency measures’. The NT government is informed of the decision
at the same time that the press conference by the Prime Minister and Minister
for Indigenous Affairs.
7 August
The following legislation is introduced to federal Parliament to give legal
authority for the intervention measures announced:
  • Northern Territory National Emergency Response Bill 2007;
  • Social Security and Other Legislation Amendment (Welfare Payment Reform)
    Bill 2007;
  • Families, Community Services and Indigenous Affairs and Other Legislation
    Amendment (Northern Territory National Emergency Response and Other Measures)
    Bill 2007;
  • Appropriation (Northern Territory National Emergency Response) Bill (No. 1)
    2007-2008; and
  • the Appropriation (Northern Territory National Emergency Response) Bill
    (No. 2) 2007-2008.
The bills are 480 pages long. All five Bills pass through the
House of Representatives on the same day they are introduced.
8 August
The Senate authorises the Legal and Constitutional Committee to conduct an
inquiry into the legislation, with five days for the conduct of the
inquiry.
10 August
The Senate Legal and Constitutional Committee conducts its sole public
hearing for its inquiry into the intervention legislation.
The authors of the Little Children are Sacred report provide a
lunchtime briefing to members of the Committee after they are not invited to
give evidence to the inquiry. Only non-government members of the committee
attend the briefing.
13 August
The Senate Scrutiny of Bills Committee releases its Alert Digest
raising a number of concerns about the NT intervention legislation and how
it trespasses unduly on personal rights and liberties; make rights, liberties or
obligations unduly dependent upon insufficiently defined administrative powers
as well as non-reviewable decisions; inappropriately delegate legislative
powers; and insufficiently subjects the exercise of legislative power to
parliamentary scrutiny.
Government ministers respond to the concerns raised in the Alert
Digest
on 15 August 2007.
13 August
The Senate Committee on Legal and Constitutional Affairs tables its report
on the NT Emergency Response
legislation.[21]
17 August
All five Bills pass through the Senate. They receive Royal Assent and are
enacted as legislation on 17 August 2007.
12 September
In its Ninth report the Senate Scrutiny of Bills Committee notes
that a number of concerns raised in its Alert Digest of 13 August remain
to be addressed in the legislation. The legislation has already been passed by
Parliament by this time and so these concerns are not considered
14 September
The Northern Territory National Emergency Response Act 2007 (Cth) is
amended by the Northern Territory National Emergency Response Amendment
(Alcohol) Act 2007
(Cth) to introduce exemptions for tourists to alcohol
restrictions. The amendments came into force on 14 September 2007.

 

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.

Text Box 4 – Legislative provisions in the Northern Territory
intervention legislation relating to racial discrimination

Northern Territory National Emergency Response Act 2007

Section 132 - Racial Discrimination Act

(1) The provisions of this Act, and any acts done under or for the
purposes of those provisions, are, for the purposes of the Racial Discrimination
Act 1975, special measures.

(2) The provisions of this Act, and any acts done under or for the purposes
of those provisions, are excluded from the operation of Part II of the Racial
Discrimination Act 1975.

(3) In this section, a reference to any acts done includes a reference to
any failure to do an act.

Section 133 - Some Northern Territory laws excluded

(1) The provisions of this Act are intended to apply to the exclusion of a
law of the Northern Territory that deals with discrimination so far as it would
otherwise apply.

(2) Any acts done under or for the purposes of the provisions of this Act
have effect despite any law of the Northern Territory that deals with
discrimination.

(3) However, subsections (1) and (2) do not apply to a law of the Northern
Territory so far as the Minister determines, by legislative instrument, that the
law is a law to which subsections (1) and (2) do not apply.

Families, Community Services and Indigenous Affairs and Other
Legislation Amendment (Northern Territory National Emergency Response and Other
Measures) Act 2007

Section 4 - Racial Discrimination Act

(1) Subject to subsection (3), the provisions of this Act, and any acts
done under or for the purposes of those provisions, are, for the purposes of the
Racial Discrimination Act 1975, special measures.

(2) Subject to subsection (3), the provisions of this Act, and any acts
done under or for the purposes of those provisions, are excluded from the
operation of Part II of the Racial Discrimination Act 1975...

Section 5 - Some Northern Territory laws excluded

(1) Subject to subsections (3) and (4), the provisions of this Act are
intended to apply to the exclusion of a law of the Northern Territory that deals
with discrimination so far as it would otherwise apply.

(2) Subject to subsections (3) and (4), any acts done under or for the
purposes of the provisions of this Act have effect despite any law of the
Northern Territory that deals with discrimination.

(3) Subsections (1) and (2) do not apply to a law of the Northern Territory
so far as the Minister determines, by legislative instrument, that the law is a
law to which subsections (1) and (2) do not apply.

Social Security and Other Legislation Amendment (Welfare Payment
Reform) Act 2007

Section 4 Racial Discrimination Act—Part 3B of the Social
Security (Administration) Act (NB: This is an extract from this
section)

(2) To the extent that this subsection applies, the provisions referred to
in paragraph (1)(a), and any acts referred to in paragraph (1)(b), are, for the
purposes of the Racial Discrimination Act 1975, special measures.

(3) To the extent that this subsection applies, the provisions referred to
in paragraph (1)(a), and any acts referred to in paragraph (1)(b), are excluded
from the operation of Part II of the Racial Discrimination Act 1975.

(4) The following are, for the purposes of the Racial Discrimination Act
1975, special measures:

(a) any acts done by the Queensland Commission in relation to the giving
of:
  • (i) a notice referred to in paragraph 123UF(1)(b) or (2)(c) of the Social
    Security (Administration) Act 1999; or
  • (ii) a notice referred to in paragraph 123YM(2)(c) or 123YN(2)(c) of that
    Act; or
  • (iii) a direction referred to in section 123ZK of that Act;

(b) any provisions of any laws made by, or any acts done by, Queensland in
relation to the establishment or operation of the Queensland Commission.

(5) The following are excluded from the operation of Part II of the Racial
Discrimination Act 1975:

(a) any acts done by the Queensland Commission in relation to the giving
of:
  • (i) a notice referred to in paragraph 123UF(1)(b) or (2)(c) of the Social
    Security (Administration) Act 1999; or
  • (ii) a notice referred to in paragraph 123YM(2)(c) or 123YN(2)(c) of that
    Act; or
  • (iii) a direction referred to in section 123ZK of that Act;
(b) any provisions of any laws made by, or any acts done by, Queensland in
relation to the establishment or operation of the Queensland
Commission. Section 5 - Some Queensland and Northern Territory laws
excluded—Part 3B of the Social Security (Administration) Act

(2) To the extent that this subsection applies, the provisions referred to
in paragraph (1)(a) are intended to apply to the exclusion of a law of
Queensland or the Northern Territory that deals with discrimination so far as it
would otherwise apply.

(3) To the extent that this subsection applies, any acts referred to in
paragraph (1)(b) have effect despite any law of Queensland or the Northern
Territory that deals with discrimination.

(4) However, subsections (2) and (3) do not apply to a law of Queensland or
the Northern Territory so far as the Minister determines, by legislative
instrument, that the law is a law to which subsections (2) and (3) do not
apply.

Section 6 - Racial Discrimination Act—determining terms of
relevant activity agreement for approved programs of work for income
support

(1) Subsections (2) and (3) apply in relation to the implementation of
guidelines, or the doing of any other acts, for the purpose of determining the
terms of a relevant activity agreement in relation to an approved program of
work for income support payment, if the implementation or acts are done in the
period: (a) beginning on 9 July 2007; and

(b) ending 5 years after the commencement of section 1 of the Northern
Territory National Emergency Response Act 2007.

(2) Any such implementation, or other acts, are, for the purposes of the
Racial Discrimination Act 1975, special measures.

(3) Any such implementation, or other acts, are excluded from the operation
of Part II of the Racial Discrimination Act 1975.

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.

Text Box 5: Summary of the proposed emergency response and long term
development plan to protect Aboriginal children in the NT by the Combined
Aboriginal Organisations of the Northern Territory

1. Guiding principles

  • Relationships with Aboriginal communities must be built on trust and mutual
    respect. All initiatives must be negotiated with the relevant communities.
  • Cultural awareness and appropriateness.
  • Actions should draw from and strengthen governance and community
    capacity.
  • Build on the knowledge base already there in communities and in
    Government.
  • Flexibility and responsiveness to local needs rather than a ‘one size
    fits all’ approach.
  • Aboriginal communities are entitled to receive the same benefits and
    services, and their children to the same protections, that are available to
    other Australians.
2. Emergency Response

Objectives

  • Act in conjunction with local community representatives and services to
    reduce the immediate risks to children and to plan and commence investment in
    the services and governance systems required to address the underlying
    causes.
  • Establish systems of planning, service delivery, and monitoring and
    evaluation at the Territory-wide and community level that are based on
    partnerships between the two Governments and Aboriginal community
    representatives and services.
  • Together with community representatives, assess the nature and scope of the
    problems and capabilities (strengths) within each community, both in terms of
    the direct risks to children (e.g. violence, overcrowded housing, and alcohol or
    substance abuse), and contributing factors (such as joblessness). Most of this
    information is available from previous reports, administrative data, and from
    local communities and there is no need to collect it yet
    again.
.Priority actions – July to September
2007

Priority Actions in this period include:

  • Consultations with all local communities to establish the scope and nature
    of risks to children, community needs including key service gaps, the resources
    available locally, and to establish bodies to coordinate the Emergency Response
    at the local level (see below);
  • Recruitment and training of suitably skilled, culturally aware child
    protection staff and police, in consultation with local community
    representatives on the understanding that these positions will be filled
    permanently as soon as practicable;
  • Where the capacity exists within communities or external agencies approved
    by them, funding to be provided for community controlled child safety services
    such as safe houses, night patrols and Aboriginal Community Police;
  • Introduction of tougher restrictions on sale of alcohol outside the
    communities (including take away trade);
  • Establishment of emergency treatment and rehabilitation services, where
    possible controlled by local communities, for people affected by the alcohol
    restrictions;
  • Recruitment and training of voluntary and paid medical staff to assist
    Aboriginal Medical Services and clinics to assess the health and health service
    needs of Aboriginal children where their parents seek such assistance, using the
    auspices of the Aboriginal Medical Service Alliance of the Northern Territory to
    assist with selection and training, including cultural awareness training;
  • Funding and recruitment to commence for community based family support and
    foster care services;
  • Recruitment and training of appropriately qualified teachers and Aboriginal
    Education Workers to schools to fill gaps in schools on a priority basis;
  • Construction on a priority basis of multipurpose family centres;
  • Where local communities agree, establish community justice groups to assist
    authorities with education and administration on the law (e.g. night patrols,
    court support for victims);
  • Commence extension of financial services (especially savings accounts) and
    financial education to Aboriginal communities and fund local community
    organisations to assist residents to use these facilities as well as the
    Centrepay system;
  • Finance and establish school meals programs in communities, paid for in part
    by parents;
  • Commit funds to a major upgrade and repairs and maintenance program along
    with construction of new housing on communities on a priority basis, and
    commence training of local Aboriginal people in home construction and
    maintenance.
3. Long Term Development plan – community capacity and
governance

Objectives

  • The Development Plan is a fully costed plan of action by the Australian and
    Northern Territory Governments with set goals and measurable targets to be
    achieved within fixed time frames.
Actions

The Plan should be developed in full negotiation with the relevant
Aboriginal community organisations during the Emergency Response stage. It
should include such actions as:

  • the progressive roll-out of new housing built mainly by workers drawn from
    the communities;
  • more effective employment development and assistance programs;
  • expansion of school infrastructure and better training and career
    development for teachers and Aboriginal Education Workers;
Action in these areas should commence now, but will take more
time to roll out than the Emergency Response. The Plan would also continue and
build on the initiatives commenced during the Emergency Response phase.

Coordination and funding
  • The Australian and NT Governments should jointly develop the Plan in
    consultation with Aboriginal community organisations. This work should be led by
    the Department of Prime Minister and Cabinet.
  • It should provide adequate and stable funding for the services and
    infrastructure required to protect Aboriginal children in the communities,
    including special funding arrangements and components of mainstream funding
    programs.
  • A permanent monitoring and evaluation body should be established after the
    Emergency Response phase.
  • Aboriginal communities and services should continue to be fully resourced to
    engage with Government in the development and implementation of the Plan.
4. Planning and coordination for services in
communities

A national lead agency is needed to oversight, co-ordinate and monitor
co-ordination plan for the necessary for services and supports for communities
in the Northern Territory to ensure that children are protected. The lead agency
needs to take overall responsibility for the development and resourcing of the
Emergency Response and Development Phases.

The lead agency should be accountable to Parliament to:
  • ensure negotiations with Aboriginal communities are conducted in a fair,
    open and transparent manner;
  • to improve standard setting, monitoring and advocacy ;
  • establish and strengthen capacity and financial resources needed;
  • establish training and vetting processes;
  • to establish or improving access to services;
  • develop and monitor a plan to address gaps in child protection including the
    provision of essential services in Aboriginal communities.
Governments should establish sector leads in each of the
following sectors: child safety, community safety and services, health,
education, housing and infrastructure. These should generally be drawn from
relevant Australian and Territory Government Departments.

They should work closely with Aboriginal community organisations and
prioritize the use of Aboriginal owned and controlled service providers. Their
tasks would include developing clear targets and timelines for access to basic
services, mapping community needs, service gaps, and the resources and
capabilities of local regional and national actors, strengthening response
capabilities (especially human resources), establishing links with other sectors
to enhance the resources available, applying benchmarks to measure performance
(in conjunction with the monitoring and evaluation body described below), and
acting as a provider of last resort.

Sector leads should negotiate with representatives of Aboriginal
communities, and consult with the providers of relevant services (child safety,
police, community, health and education services), over the provision of
services in each community as part of the Emergency Response. Regular community
meetings should be organised and resourced to inform the community of proposed
actions, progress, and to assist in local planning.

Communities must be properly resourced (including appropriate fulltime paid
staff) to engage with the Emergency Response.

Monitoring and Evaluation

An independent monitoring and evaluation body should be established to
report on the scope and nature of the problems identified, actions taken at
local and Territory wide level, and their effectiveness and contribution to long
term planning and solutions. This body should include the Aboriginal community
as well as Australian and NT Government representatives, and independent
experts.

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]

Text Box 6 – Human rights standards relevant to addressing
family violence and child abuse in Indigenous communities

Convention on the Rights of the Child (CRoC)
  • Governments shall respect and ensure the rights set out in the Convention
    are provided to each child within their jurisdiction without discrimination of
    any kind, including discrimination on the basis of race (Article 2).
  • In all actions concerning children, the best interests of the child is a
    primary consideration, and the government has a duty of care to ensure that
    necessary protection is provided taking into account the rights of parents
    (Article 3).
  • The family unit is recognised as fundamental for the growth and well-being
    of the child, and the government shall provide assistance to parents in meeting
    their child-rearing responsibilities and in the provision of services for the
    care of children (Articles 5 and 18).
  • Children have a right to protection from all forms of violence, and
    governments must take protective measures to prevent, identify, and address
    violations. These measures include social programmes which provide necessary
    support for a child and his or her parents (Article 19).
  • Children have a right to be protected from all forms of sexual abuse
    (Article 34).
  • Governments must take measures to promote recovery and rehabilitation of
    children who are victims of neglect and abuse. This should be done in an
    environment that fosters the health, self-respect and dignity of the child
    (Article 39).
  • Children have the right to the highest attainable standard of health and
    equal access to health care services. The government has a responsibility to
    diminish infant mortality, ensure the provision of necessary health care and
    combat disease and nutrition (Article 24).
  • Indigenous children have the right to enjoy and practice their culture, in
    community with other members of their group (Article 30).
  • Children must not be subjected to arbitrary interference with their privacy
    (Article 16).
  • Children have a right to benefit from social security (Article 26) and have
    a right to an adequate standard of living, with governments taking measures to
    assist parents, including through providing support programmes for nutrition,
    clothing and housing (Article 27).
International Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW)
  • Women have the right to be protected from discrimination on the basis of
    gender (Article 2).
  • Gender-based violence and abuse is a form of discrimination that seriously
    inhibits women's ability to enjoy rights and freedoms on a basis of equality
    with men. Violence against women includes acts that inflict mental or sexual
    harm. (Article 1; General Comment 19).
  • Governments must ensure legal protection of the rights of women against acts
    of discrimination (Article 2).
  • Governments shall take all appropriate measures to modify the social and
    cultural patterns of conduct of men and women, with a view to achieving the
    elimination of prejudices and customary and all other practices which are based
    on the idea of the inferiority or the superiority of either of the sexes or on
    stereotyped roles for men and women (Article 5(a)).
International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD)
  • All people have the right to be protected against discrimination on the
    basis of their race (Article 2).
  • Governments undertake not to engage in any act or practice of racial
    discrimination and must ensure that all public authorities and public
    institutions act in conformity with this obligation (Article 2).
  • Governments must guarantee equality before the law without distinction as to
    race. This includes equality in relation to the right to security of person and
    protection by the State against violence or bodily harm, whether inflicted by
    government officials or by any individual group or institution (Article 5(b))
    and in relation to rights to work, to free choice of employment, to just and
    favourable conditions of work, to protection against unemployment, to housing,
    to public health, medical care, social security and social services and to
    education and training (Article 5(e)).
  • ‘Special measures’ shall not be deemed to constitute racial
    discrimination (Articles 1(4) and 2(2).
‘Special measures’:
  • provide a benefit to some or all members of a group based on race;
    and
  • have the sole purpose of securing the advancement of the group so
    they can enjoy human rights and fundamental freedoms equally with others;
    and
  • are necessary for the group to achieve that purpose, and
  • stop once their purpose has been achieved and do not set up separate
    rights permanently for different racial groups (Article 1(4)).
Special measures shall also be taken by governments in the
social, economic, cultural and other fields to ensure the adequate development
and protection of groups defined by race in order to guarantee them the full and
equal enjoyment of human rights and fundamental freedoms (Article 2(2)).

International Covenant on Civil and Political Rights
(ICCPR)
  • All people have the right to enjoy rights and freedoms without
    discrimination, including discrimination based on their race or sex (Articles 2
    and 26).
  • All people have the right to be protected against arbitrary interference
    with privacy, family and the home and the protection of the family as the
    fundamental group unit of society (Articles 17 and 23).
  • All children have the right to special protection as children, without
    discrimination of any kind (Article 24).
  • All members of minority groups have the right to enjoy and practice their
    culture, in community with other members of their group (Article 27).
  • In time of public emergency which threatens the life of the nation and the
    existence of which is officially proclaimed, the government may take measures
    derogating from their obligations under the treaty to the extent strictly
    required by the exigencies of the situation, provided that such measures are not
    inconsistent with their other obligations under international law and does not
    involve discrimination on the basis of race (Article 4).
International Covenant on Economic, Social and Cultural
Rights (ICESCR)
  • All people have the right to enjoy rights and freedoms without
    discrimination, including on the basis of race (Article 2).
  • Each government must take steps to achieve progressively the full
    realisation of the rights recognised in the ICESCR, to the maximum of its
    available resources (Article 2).
  • All people have the right to social security (Article 9).
  • All people have the right to protection of the family as the fundamental
    group unit of society. Special measures of protection should be taken on behalf
    of children and young persons (Article 10).
  • All people have the right to an adequate standard of living, including
    adequate food, clothing and housing, and to the continuous improvement of living
    conditions (Article 11).
  • All people have the right to the highest attainable standard of physical and
    mental health (Article 12), the right to education (Article 13), and the right
    to take part in cultural life (Article 15).

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 are undertaken in furtherance of another right (such as
addressing violence). Human rights law requires that solutions be found that
respect and protect both rights.

The relevant human rights issues raised by the NT intervention can be
categorised into the following broad thematic areas:

  • Equality before the law, non-discrimination and special measures;
  • Rights to be free from violence and abuse;
  • Rights to effective participation in decision-making and
    self-determination;
  • Accountability and transparency measures in the implementation of rights;
    and
  • Justifiable limits on the protection of rights (such as in times of public
    emergency).

There are also a range of specific economic, social and cultural
rights that are related to preventing violence, such as the right to health,
education, an adequate standard of living and to social security. These are
discussed further below in relation to specific measures contained in the NT
intervention.

A brief summary of the key human rights obligations in relation to each of
these thematic areas is provided
below.[64]

i) Equality before the law, non-discrimination and special
measures

  • Non-discrimination, together with equality before the law, constitutes a
    basic and general principle relating to the protection of all human
    rights.[65]
  • These principles create a legal obligation on the government to ensure that
    every person is able to exercise and enjoy all of their human rights without
    discrimination of any kind, such as on the basis of their race or gender.
  • For example, the CRoC makes clear that every right recognised by the
    convention must be applied to all children in a non-discriminatory manner.
  • The right to non-discrimination has attained the status of jus cogens and is non-derogable. This means that under no circumstances can a government
    justify the introduction of discriminatory measures (including during a state of
    emergency). As a consequence, it is never permissible to attempt to
    ‘balance’ or justify a discriminatory measure against the enjoyment
    of a specific human right.
  • ‘Special measures’ constitute an exception to the prohibition of
    racial discrimination. ‘Special measures’ are a form of preferential
    or ‘beneficial’ treatment that is aimed at enabling a group, defined
    by race, to fully enjoy their human rights.
  • The ICERD sets out criteria for when an action qualifies as a
    ‘special measure’. The action must:
      • provide a benefit to some or
        all members of a group based on race; and
      • have the sole purpose of
        securing the advancement of the group so they can enjoy human rights and
        fundamental freedoms equally with others; and
      • be necessary for the group
        to achieve that purpose, and
      • stop once their purpose has
        been achieved and not set up separate rights permanently for different racial
        groups.
    • As discussed further below, Australian courts have elaborated on the
      necessary aspects of a special measure and suggested that, in addition:
        • the consent of the intended
          beneficiary is important in determining whether an action should be classified
          as beneficial or not; and
        • that each proposed action or
          measure must be tested individually to establish whether it meets the criteria
          for a ‘special measure’.

      ii) Rights to be free from violence and
      abuse

      • The CRoC and CEDAW clearly provide that women and children
        have a right to be free from violence and sexual abuse.
      • The CRoC requires government to ensure ‘to the maximum extent
        possible the survival and development of the child’. It includes an
        explicit requirement that governments ‘undertake to protect the child from
        all forms of sexual exploitation and sexual abuse’. Where children fall
        victim to any form of violence, neglect, exploitation or abuse, governments have
        a responsibility to ‘take all measures to promote physical and
        psychological recovery and social reintegration’ of those children.
      • The CRoC, CEDAW and ICERD require that
        government’s take a range of proactive steps to ensure that children,
        women and groups of people defined by race can live free from violence of any
        kind:

        • CRoC requires governments to
          provide protection from ‘all forms of physical or mental violence’
          while in the care of their parents or others. Where such violence occurs,
          governments have a responsibility to provide protective measures including the
          provision of appropriate support and follow-up services to children and their
          families.
        • CEDAW requires governments
          to take all appropriate measures to modify cultural and customary practices that
          are based on the idea of the inferiority or the superiority of either of the
          sexes.
        • ICERD requires governments
          to guarantee equality before the law without distinction as to race in relation
          to the right to security of person and protection by the State against violence
          or bodily harm. This right applies whether the violence is inflicted by
          government officials or by any individual group or institution. Accordingly, a
          failure of the government to act in relation to a known situation of violence
          and abuse that affects a particular racial group (such as was identified in
          relation to Indigenous children and women in the Little Children are
          Sacred
          report) would place them in breach of ICERD.

      iii) Rights to effective participation in
      decision-making and self-determination

      • Indigenous peoples have the right to full and effective participation in
        decisions which directly or indirectly affect their lives, including
        participation and partnership in program planning, development, implementation
        and evaluation.
      • ICERD has been interpreted as requiring that governments 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.[66]
      • Effective participation has also been found to be a central component of a
        non-discriminatory approach to implementing a range of economic, social and
        cultural rights (such as the right to health and education), as well as integral
        to the enjoyment of the right of minority groups to the enjoyment of their
        culture and the right of self-determination.
      • The importance of ensuring effective participation has been reinforced
        through the recognition of the right to development. This recognises that the
        ‘human person is the central subject of development and should be the
        active participant and beneficiary of the right’.

        • The right to development encompasses the following issues for Indigenous
          peoples:

          • requires free and meaningful
            participation by affected indigenous people in defining the objectives of
            development and the methods used to achieve these objectives;
          • is directed towards the goal of
            realizing the economic, social, and cultural rights of indigenous people;
          • facilitates the enjoyment of
            indigenous peoples' cultural identity, including through respects the economic,
            social and political systems through which indigenous decision-making occurs;
            and
          • is self-determined development, so
            that peoples are entitled to participate in the design and implementation of
            development policies to ensure that the form of development proposed on their
            land meets their own objectives and is appropriate to their cultural values.
      • Rights to participate have also begun to find expression in the policies of
        the UN agencies and the decision making of UN treaty bodies as the principle of
        free, prior and informed consent. Procedurally, this requires processes that
        allow and support meaningful and authoritative choices by indigenous peoples
        about their development paths, doing so on the basis of accurate and accessible
        information, and following consultation undertaken in good faith, and on the
        basis of full and equitable participation.

      iv) Accountability and transparency measures in the implementation of
      rights

      • The realisation of economic, social and cultural rights (such as the right
        to health, housing and education) is subject to the ‘progressive
        realisation’ principle. This requires that governments justify that they
        are addressing the lack of full enjoyment of human rights within the shortest
        possible timeframe and to the maximum of available resources. This acknowledges
        that it takes time to address deeply entrenched situations of poverty and
        marginalisation.
      • This requires that:
          • there exist specific, time-bound
            and verifiable benchmarks and indicators to ensure that progress can be tracked
            and measured over time;
          • these be set with the participation
            of the people whose rights are affected, to agree on what is an adequate rate of
            progress and set realistic targets; and
          • these are reassessed independently
            on their target date, with accountability for
            performance.[67]

        v) Justifiable limits on the protection of rights (such as in times of
        public emergency)

        • Article 4 of the ICCPR sets out strict criteria for circumstances
          where a government may derogate from its human rights obligations. This is
          when:

          1. the situation involves a public emergency which threatens the life of the
            nation;
          2. the emergency is officially proclaimed;
          3. the restrictions on rights imposed are strictly required by the
            situation;
          4. the restrictions are not inconsistent with other provisions in international
            law;
          5. they may not involve discrimination solely on the basis of race;
          6. they must not breach certain provisions of the Covenant (as specified in
            Article 4); and
          7. the intention to enact emergency measures must be communicated to all other
            members of the treaty, via the UN Secretary-General.
        • The United Nations Human Rights Committee has also noted that:
          • the government’s actions
            during the state of emergency must be proportionate to the situation;
          • to ‘officially
            proclaim’ a public emergency, the government must immediately inform the
            United Nations Secretary-General of the announcement of a public emergency, any
            derogations that have been made, why they have been made, and how long they will
            apply; and
          • the declaration of a public
            emergency is ‘of an exceptional and temporary nature and may only last as
            long as the life of the nation concerned is
            threatened’.[68]

        The Government’s
        stated position – how the NT Intervention measures are consistent with
        Australia’s human rights obligations

        The federal government has consistently stated that the NT intervention
        measures are consistent with Australia’s human rights obligations.

        The Government has emphasised that the measures ‘are all about the
        safety and wellbeing of
        children’[69], address a need
        that is ‘urgent and
        immediate’[70] and is backed
        up by the funding ‘necessary to achieve this
        goal.[71]

        Accordingly, they have characterised the intervention as an
        ‘emergency’ situation and argue that all of the measures introduced
        are necessary in order to adequately protect Indigenous children.

        The Explanatory Memorandum for the Northern Territory National Emergency
        Response Bill 2007
        (Cth) sets out the government’s position on
        how the measures announced are consistent with Australia’s human rights
        obligations. An extract is contained in the Text Box below.

        Text Box 7 –The NT intervention legislation and human rights
        compliance – Extract from Explanatory Memorandum

        The Northern Territory national emergency response announced by the
        government recognises the importance of prompt and comprehensive action as well
        as Australia's obligations under international law:
        • The Convention on the Rights of the Child requires Australia to protect
          children from abuse and exploitation and ensure their survival and
          development and that they benefit from social security. The International
          Convention for the Elimination of All Forms of Racial Discrimination requires
          Australia to ensure that people of all races are protected from discrimination
          and equally enjoy their human rights and fundamental freedoms.
        • Preventing discrimination and ensuring equal treatment does not mean
          treating all people the same. Different treatment based on reasonable and
          objective criteria and directed towards achieving a purpose legitimate under
          international human rights law is not race discrimination In fact, the right not
          to be discriminated against is violated when Governments, without objective and
          reasonable justification, fail to treat differently people whose situations are
          significantly different.
        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. In doing so, it
        will take important steps to advance the human rights of the indigenous peoples
        in communities suffering the crisis of community dysfunction.

        In the case of Indigenous people in the Northern Territory, there are
        significant social and economic barriers to the enjoyment of their rights to
        health, development, education, property, social security and culture.

        The emergency measures in the bill are the basis of action to improve the
        ability of indigenous peoples to enjoy these rights and freedoms. This cannot be
        achieved without implementing measures that do no apply in other parts of
        Australia. In a crisis such as this, the measures in the bill are necessary to
        ensure that there is real improvement before it is too late for many of the
        children. The bill will provide the foundation for rebuilding social and
        economic structures and give meaningful content to indigenous rights and
        freedoms.

        For example, in relation to limiting the availability of alcohol, some
        measures apply across the entire Northern Territory (sales over 1,350ml of
        alcohol and record keeping) while others apply in communities which are
        predominantly indigenous, referred to as 'prescribed areas'.

        The bill strengthens and extends a number of prohibitions and offences
        under the Northern Territory Liquor Act in each of the prescribed areas. This
        will enable alcohol to be controlled in indigenous communities to address the
        related issues of alcohol misuse and child abuse. Although the alcohol measures
        apply generally to prescribed areas, individuals can apply for permits and the
        measures are subject to a five year sunset period.

        The bill also grants five year leases to the Government over certain land
        in the Northern Territory as part of the measures to achieve the object of the
        Act of improving the well-being of communities in the Northern Territory.

        Preventing child abuse depends upon families living in stable and secure
        environments. Indigenous communities cannot enjoy their social and economic
        rights equally with non-indigenous people, including their rights over their
        land, if living conditions in communities are dangerous and their children are
        subject to abuse. Sustainable housing is a key element to making lasting
        improvements to community living arrangements.

        The leasing provisions are required to allow the Government to address the
        national emergency in the Northern Territory. The Government cannot build and
        repair buildings and infrastructure without access to the townships and security
        over the land and assets.

        The leases will not prevent the indigenous communities from living on and
        using the land, or lead to limitations not connected with the Government's
        emergency intervention. The existing rights, title and interest of indigenous
        owners over the leased land are not removed but are preserved and compensation,
        on just terms, will be given whenever it is payable.

        The leases are a short-term measure with the longer-term focus on putting
        residents of these communities in a position where they can buy their own
        homes.[72]

        In relation to the claim that the measures qualify as a ‘special
        measure’ and are consistent with the Racial Discrimination Act
        1975,
        there is no material in any of the Explanatory Memorandum for the
        bills or in the 2nd Reading Speeches to explain how this is the case.

        Dr Sue Gordon, the Chairperson of the NT Intervention Taskforce, has expanded
        on the government’s position as to why the measures are consistent with
        Australia’s human rights obligations. Her remarks to the Senate Legal and
        Constitutional Committee are extracted in the text box below.

        Text Box 8 – Dr Sue Gordon: Comments on the NT intervention and
        human rights

        I would now like to bring to the attention of senators the fact that
        Australia ratified the United Nations Convention on the Rights of the Child,
        which came into force on 16 January 1991, but we are still not treating children
        as a priority for protection across Australia. Part 1, Article 1, deals with the
        notion of what a child is. Article 2.1 says:

        States Parties shall respect and ensure the rights set forth in the present
        Convention to each child within their jurisdiction without discrimination of any
        kind, irrespective of the child’s or his or her parent’s or legal
        guardian’s race, colour, sex, language, religion, political or other
        opinion, national, ethnic or social origin, property, disability, birth or other
        status.

        Article 3.1 states:

        In all actions concerning children, whether undertaken by public or private
        social welfare institutions, courts of law, administrative authorities or
        legislative bodies, the best interests of the child shall be a primary
        consideration.

        Both the Prime Minister and the minister, in relation to these
        interventions, said that all action at the national level is designed to ensure
        the protection of Aboriginal children from harm.

        Article 3.2 states:

        States Parties undertake to ensure the child such protection and care as is
        necessary for his or her well-being, taking into account the rights and duties
        of his or her parents, legal guardians, or other individuals legally responsible
        for him or her, and, to this end, shall take all appropriate legislative and
        administrative measures.

        The legislation currently before the parliament addresses this. Article 6.1
        states:

        States Parties recognize that every child has the inherent right to
        life.

        Article 6.2 states:

        States Parties shall ensure to the maximum extent possible the survival and
        development of the child.

        The legislation currently before the parliament addresses this—in
        particular, for improving child and family health. Article 19.1 states:

        States Parties shall take all appropriate legislative, administrative,
        social and educational measures to protect the child from all forms of physical
        or mental violence, injury or abuse, neglect or negligent treatment,
        maltreatment or exploitation, including sexual abuse, while in the care of
        parent(s), legal guardian(s) or any other person who has the care of the
        child.

        The permit system as it stands has not had this effect. Most abusers are
        known to the victims. The permit system as it stands has protected the
        offenders. The legislation before parliament addresses this. Article 19.2 goes
        on to state:

        Such protective measures should, as appropriate, include effective
        procedures for the establishment of social programmes to provide necessary
        support for the child and for those who have the care of the child, as well as
        for other forms of prevention and for identification, reporting, referral,
        investigation, treatment and follow-up of instances of child maltreatment
        described heretofore, and, as appropriate, for judicial involvement.

        The National Indigenous Violence and Child Abuse Intelligence Task Force,
        set up in October 2006 and based in Alice Springs, is addressing this, and the
        legislation currently before the parliament also addresses this. The measures
        related to pornographic DVDs, videos and government funded computers, which I
        raised with you this morning and which was brought to the attention of the
        government by the National Indigenous Council, also address this.

        Article 24 refers to recognising the right of the child to the enjoyment of
        the highestattainable standards of health and to facilities for the
        treatment of illnesses et cetera. It also states that states parties shall
        pursue full implementation of this right and, in particular, shall take
        appropriate measures to: diminish infant and child mortality; provide necessary
        medical assistance; combat disease; ensure appropriate pre-natal and post-natal
        health and care; and— more importantly—ensure that all segments of
        society, in particular parents and children, are informed, have access to
        education and are supported in the use of basic knowledge of child health,
        including hygiene, environmental sanitation and the prevention of accidents.

        The legislation currently before the parliament addresses this. Article 24
        goes on to state:

        States Parties shall take all effective and appropriate measures with a
        view to abolishing traditional practices prejudicial to the health of
        children.

        Abuse by a minority—and, I repeat, a minority—of men in
        relation to customary law as it relates to promised marriages is being addressed
        as well, as part of promoting law and order, which includes protective bail
        conditions. Article 27.1 states:

        States Parties recognize the right of every child to a standard of living
        adequate for the child’s physical, mental, spiritual, moral and social
        development.

        The employment and welfare reform addresses this point. The minister also
        links the five-year township leases to this. Article 28 states:

        States Parties recognize the right of the child to education, and with a
        view to achieving this right progressively and on the basis of equal
        opportunity.

        — and goes on to address various things. Enhancing education as part
        of the legislative measures is aimed at addressing this article. I was appalled
        when I went to a school in the Territory and I found out that, while it looks
        good on paper that Aboriginal students are attaining year 12 level, when I asked
        the principal what that meant in reality, she said, ‘Year 8 or year
        9.’ That is not fair to Aboriginal people.

        Article 33 states:

        States Parties shall take all appropriate measures, including legislative,
        administrative, social and educational measures, to protect children from the
        illicit use of narcotic drugs and psychotropic substances as defined in the
        relevant international treaties, and to prevent the use of children in the
        illicit production and trafficking substances.

        This is currently being addressed by the drug desk in Alice Springs and the
        NationalIndigenous Violence and Child Abuse Intelligence Task Force. The
        permit system as it stands has not had this effect. Rather, it has protected the
        offenders.

        I will not go through articles 34 and 36, but these are only some of the
        articles of theUnited Nations Convention on the Rights of the Child that
        relate to the Northern Territory emergency response.

        I appreciate very much Aboriginal people’s concerns regarding permits
        and the acquisition of townships for five years but believe that the protection
        of children, men and women in the communities who suffer violence and abuse on a
        daily basis has been completely lost in this debate.

        I plan, as a chairperson of the task force and as a mother and a
        grandmother, to remain totally focused on the best interests of children in our
        Aboriginal communities, and I will continue to work with the communities in the
        Northern Territory and with the Commonwealth government to protect
        children.[73]

        In its report on the NT intervention legislation, the Senate Legal and
        Constitutional Committee noted concerns that the legislation may be
        discriminatory. Ultimately however they did not address this point in detail.
        Instead, they state:

        3.1... The committee is of the view that immediate and absolute priority
        must be given to addressing the issues that affect the welfare of Indigenous
        children in the Northern Territory. Indeed, the protection of these children
        from violence and abuse, and the establishment of conditions that will allow
        them to lead healthy and productive lives, in which they achieve their full
        potential, is of the utmost importance. More broadly, there is clearly a need
        for immediate action to address the disadvantage all Indigenous people
        confront.

        3.2 The committee welcomes the policy changes contained in this suite of
        bills as a genuine and enduring commitment from the Australian Government to
        tackle critical issues in Indigenous communities in the Northern Territory.
        These issues include high unemployment, alcohol and drug dependency, poor health
        and education outcomes, inadequate housing and child abuse. In saying this, the
        committee acknowledges that many of the issues that the bills seek to address
        are complex and entrenched; however, this is no excuse for failure or
        neglect.

        3.3 The committee commends the holistic approach taken by the Australian
        Government in its policy formulation in this challenging area. The legislation
        contains 'on the ground' practical solutions which the committee believes will
        go a long way to addressing some of the inherent problems in Indigenous
        communities. In this context, the committee notes the close cooperation that has
        taken place throughout the policy formulation process between all relevant
        Commonwealth agencies.[74]

        Do the measures enacted in the NT emergency response
        legislation comply with human rights standards?

        While the government has expressed clearly its determination to tackle the
        problem of family violence and child abuse in Indigenous communities, it remains
        to be seen whether the specific measures adopted by the government to achieve
        this purpose are in fact consistent with Australia’s human rights
        obligations.

        In making this assessment, it is necessary to draw a distinction between the
        stated intention of the government and its chosen method for
        implementation.

        Measures that violate the human rights of the intended beneficiaries are more
        likely to work in ways that undermine the overall well-being of these
        communities in both the short and longer term.

        For example, the Government has clearly stated that the NT intervention seeks
        to address a breakdown in law and order in Aboriginal communities. And yet it
        potentially involves introducing measures that undermine the rule of law and
        that do not guarantee Aboriginal citizens equal treatment to other Australians.

        If this is the case, then it places a fundamental contradiction at the heart
        of the NT intervention measures. This will inhibit the building of
        relationships, partnerships and trust between the Government and Indigenous
        communities. It would also undermine the credibility of the measures, and
        ultimately, threaten the sustainability and long term impact of the measures.

        Similarly, if policy interventions are misconceived or poorly designed, then
        the possibility of constructing a truly effective long-term response to family
        violence and child abuse in Indigenous communities will be compromised.

        a) Measures to tackle family violence and child abuse in Indigenous
        communities are necessary

        The starting point for determining the human rights implications of
        the NT intervention measures is to recognise that they are intended to address
        family violence and child abuse in Indigenous communities.

        When the NT intervention was announced in June 2007, the Human Rights and
        Equal Opportunity Commission welcomed the federal government’s intention
        to treat family violence and sexual abuse in Indigenous communities as an issue
        of national importance that requires immediate
        action.[75]

        It is essential that governments undertake action to address violence and
        abuse, particularly when there is compelling evidence that it is widespread. As
        noted above, Governments that fail to act in these circumstances would be in
        breach of their human rights obligations under CRoC, CEDAW and
        ICERD.

        Australian governments have, from time to time, acknowledged the existence of
        a pervasive and serious pattern of sexual abuse and family violence in
        Indigenous communities. And yet, action had rarely been backed by resources or
        sustained action.

        For example, as Appendix 2 of this report shows, the Prime Minister had
        convened a national roundtable on this issue in 2003 with limited follow up
        actions and the Council of Australian Governments had agreed on the urgency of
        addressing this issue several times in the past decade.

        Accordingly, the NT intervention presents a historic opportunity to deal with
        a tragedy that has existed for too long, and that has destroyed too many
        families and too many young Aboriginal lives.

        The Government’s approach also blows out of the water – once and
        for all – one of the most significant problems that has beset Indigenous
        affairs over the past generation.

        That is, the belief that an incremental approach to funding services for
        Indigenous communities is all that is needed to address the gross disparities in
        social and economic conditions faced by Indigenous people.

        The scale of the NT intervention reveals that the absence of adequate service
        provision in Indigenous communities is something that is costly to rectify,
        difficult to address, that impacts on such basic issues as ensuring community
        safety and that ultimately, will require long term resourcing, effort and
        solutions.

        b) The NT intervention is not a situation that would justify introducing
        restrictions on the rights of Indigenous peoples

        The focus of the government on the need for immediate action in
        communities is also to be welcomed. But I do have concerns about the rhetoric
        that the government has used in describing the intervention as an
        ‘emergency’ situation.

        The government has described the measures introduced in the NT as an
        ‘emergency response’ and as an ‘intervention’. This
        language has been used to justify why the measures have been introduced without
        consultation and engagement with Indigenous communities.

        This description of the measures as an ‘emergency’ has also been
        used to justify why protections against racial discrimination should be
        sidestepped for added ‘certainty’ of the process – so that it
        can proceed without delay. As noted previously, the Government has also argued
        that the emergency nature of the measures is a justification for the
        ‘balance’ that has been struck between undertaking measures aimed at
        protecting children against violence and adopting a non-discriminatory approach.

        The previous section outlined in summary form the relevant human rights
        obligations that apply to this situation. It tells us that:

        • It is clearly established in international law that the principle of
          non-discrimination on the basis of race cannot be overridden by other
          considerations. The CRoC also makes clear that rights – such as for
          children to be protected from violence – are to be implemented in a
          non-discriminatory manner.

          As a consequence, it is not appropriate to claim that
          discriminatory measures are justified as they have been ‘balanced’
          against the objective of protecting children from violence. Simply put, measures
          to address violence must also be non-discriminatory. It would lack credibility
          to suggest that it is not possible to meet this requirement while also providing
          effective protection against violence.

        • Similarly, the ICCPR makes it clear that you cannot justify
          restrictions on certain rights by claiming that you are acting in furtherance of
          another right. So if the measures legitimately go towards the aim of protecting
          children against violence, this does not provide a justification for any other
          rights abuses that might result from the intervention measures.
        • The ICCPR also establishes clear and strictly limited criteria for
          when some rights can be overridden because of the existence of an emergency
          situation. It is clear that the NT intervention – while still relating to
          a situation of great importance - does not reach the threshold to qualify as an
          emergency situation as that term is understood in international law. This means
          that any such restrictions on human rights that are contained in the
          intervention legislation cannot be justified.

        The description of the NT measures as an ‘emergency’
        situation does not exempt the government from its human rights obligations.

        c) The NT intervention legislation does not provide Indigenous peoples
        with procedural fairness

        The description of the NT intervention as an
        ‘emergency’ measure has also been relied upon by the government to
        justify the absence of many of the ordinary democratic protections and
        safeguards, such as rights to external review of decision making processes that
        we have come to expect in our Westminster system of government. In fact, the
        legislation also explicitly disentitles Indigenous peoples to many of
        these protections.

        The government has repeatedly asserted that this is necessary to ensure the
        ‘certainty’ and smooth and rapid implementation of the measures, and
        that providing processes such as administrative review ‘could jeopardise
        the Government’s attempts in its emergency response’ by slowing the
        ability to introduce the measures.

        If we consider the scope of the measures and how they can intrude into the
        daily lives of Indigenous people in the NT, this is an entirely unacceptable
        situation. This is particularly so given that the measures are intended to apply
        for a period of up to five years.

        The Senate Standing Committee for the Scrutiny of Bills has reported a number
        of concerns about the legislation to the Parliament. The Committee’s role
        is to assess legislative proposals against a set of accountability standards
        that focus on the effect of proposed legislation on individual rights, liberties
        and obligations, and on parliamentary
        propriety.[76]

        In its Alert Digest of 13 August 2007, the Committee noted a number of
        concerns relating to the NT intervention legislation including:

        • The potential exercise of significant executive power without parliamentary
          scrutiny;
        • The exclusion of merits review;
        • Legislative non-compliance with the acquisition of property on ‘just
          terms’, guaranteed by section 51 of the Constitution;
        • The unacceptable trespass of personal rights and liberties, particularly in
          relation to the Racial Discrimination Act; and
        • The retrospective operation of parts of the legislation relating to social
          security status.[77]

        For example, sections 34(9), 35(11), 37(5), 47(7), 48(5) and 49(4)
        of the Northern Territory National Emergency Response Act 2007 (Cth)
        declare that various determinations and notices by the Minister for Indigenous
        Affairs that relate to interests in land are not to be legislative instruments
        and therefore not subject to parliamentary scrutiny.

        In essence, this treats such discretion by the Minister as administrative
        decision making. But the legislation does not provide that decision making under
        these sections is subject to merits review under the Administrative Appeals
        Tribunal Act 1975
        (Cth). The Government justifies this on the basis
        that:

        It is not appropriate for these determinations and notices to be subject to
        merits review under the AAT Act. The potential for review by the Administrative
        Appeals Tribunal would create unacceptable delays for what are short term
        emergency measures.[78]

        The Senate Standing Committee for the Scrutiny of Bills has responded to this
        in the following terms:

        In light of the possible duration of the emergency response, i.e. up to five
        years initially, the Committee remains concerned at the absence of merits review
        of these decisions. The Committee is of the view that these provisions may be
        considered to make rights, liberties or obligations unduly dependent upon
        non-reviewable decisions... and trusts that careful consideration will be given
        to the possibility of providing for merits review of these decisions when the
        Act is reviewed in two years
        time.[79]

        The Committee also expresses concern at the lack of merits review of
        decisions by the Minister to suspend all the members of a community government
        council,[80] and decisions of the
        Secretary of the Department of FACSIA to grant or refuse a community store
        licence, and revoke an existing community store
        licence.[81]

        In addition to the concerns expressed by the Scrutiny Committee, there are a
        range of other matters that are of concern in the legislation.

        • Determination of Important Matters by Legislative
          Instrument

        In order for Parliament to function effectively, it is common
        practice that much of the legislation passed by the government of the day only
        provides a skeleton for policy operation, with the detail of operative practices
        often being worked out by the relevant executive sector of government.

        When such detail determines the law and impacts upon the rights and
        obligations of individuals, it gives rise to ‘legislative
        instruments’. Such instruments are subject to the Legislative
        Instruments Act 2003
        (Cth). The objects of this Act include encouraging
        appropriate consultation by rule makers before making rules, and establishing
        improved mechanisms for Parliamentary scrutiny of legislative instruments (see
        further section 3 of the Act).

        Significantly, the Legislative Instruments Act 2003 (Cth) contains
        provisions for disallowance by Parliament of legislative instruments (see
        further: part 5, and particularly section 42 of the Act).

        However, the NT measures that amend the Social Security Act contain a
        number of actions that are relegated to the status of delegated legislation but
        which are not subject to review and disallowance by Parliament.

        The Social Security and other legislation amendment (Welfare Payment
        Reform) Act 2007
        (Cth) inserts a new section 123(TE) into the Social
        Security (Administration) Act 1999.
        This allows the Minister to declare an
        area a ‘relevant Northern Territory area’ for the purposes of the
        legislation. Similarly, the proposed new paragraph 123UK (1) of the Social
        Security (Administration) Act 1999
        allows the question of whether an
        unsatisfactory school attendance situation exists to be ascertained in
        accordance with a legislative instrument made by the Minister.

        Under section 19(1) of the NTNER Act, the relevant Commonwealth
        Minister also has the power to declare that alcohol restrictions in all or part
        of a prescribed area shall no longer have effect if he or she is satisfied that
        there is no need to keep the measures in place. Such a declaration is also a
        legislative instrument, but not subject to disallowance or sunset provisions of
        the Legislative Instruments Act 2003 – which would ordinarily place
        time limitations on the operation of the instrument, subject to legislative
        review.

        None of these determinations are disallowable when they are tabled in
        Parliament. The immunity of these sections from disallowance is justified by the
        fact that they are measures which are ‘of national significance’ and
        disallowance would ‘create uncertainty’ with respect to the
        administration of income management
        systems.[82]

        There are a number of objectionable characteristics of delegated legislation
        operating in this way. The first is that, as outlined above, our system of
        representative government demands that the substance of laws are made by the
        Parliament, and not by the unelected executive. The fact that delegated
        legislation itself may be seen as legitimate specifically hinges on Parliament
        retaining the power to unmake legislative instruments within a particular time
        frame. Once that power is removed, the legitimacy of the law making procedures
        surrounding legislative instruments is lost.

        The second issue of concern is that in the case of the NTNER measures the
        Minister is given the unchecked administrative power to switch the entire
        operation of the legislation on and off for certain categories of people as he
        or she sees fit, and these decisions are not to be made the subject of
        legislative scrutiny by the parliament.

        Third, the fact that the matters to be contained are of ‘national
        significance’ does not, on its own terms, provide a justification for the
        disallowance provisions, common to legislative scrutiny, being suspended.

        On the contrary, the fact that the situation at hand is purportedly an
        emergency, does not mean that ordinary principles of legislative scrutiny cannot
        still be applied: indeed, the risk of misuse of power in an emergency situation
        potentially enhances the need for democratic checks and balances to be in place.

        • Exclusion of Merits Review for income management of social security
          recipients

        A number of the Social Security aspects of the legislation are not
        subject to merits review of administrative decision making.

        In cases where Centrelink has discretion to place (or not to place)
        individuals on income management, only a limited form of general merits review
        under the administrative arm of government will be allowed. The Social
        Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007

        (Cth) inserts a new paragraph 144(ka) into the Social Security
        (Administration) Act 1999.
        This denies a person in a relevant Northern
        Territory area the right to seek a review by the Social Security Review Tribunal
        of decisions that relate to income management.

        Ordinarily, the process of appealing a Centrelink decision would run as
        follows:

        First Decision -> Centrelink Agent -> Centrelink Authorised Review Officer (ARO) -> Social Security Appeals Tribunal (SSAT) -> Administrative Appeals Tribunal (AAT) -> Federal Court -> High Court.

        The NT legislation stops the merit review process at the internal Centrelink
        ARO level.

        Effectively, the legislation therefore cuts out two levels of merits review,
        forcing anyone wishing to appeal the relevant administrative decision made about
        them to proceed straight to judicial review in the Federal Court.

        Significantly, judicial review in the Federal Court does not allow for full
        review of the merits of a decision.

        The Federal Court is also less accessible than merit review processes. The
        cost and formality of the Federal Court make the bringing of proceedings
        prohibitive for many applicants. This will particularly impact on Aboriginal
        people from remote communities affected under this
        legislation.[83]

        The effect of these changes could be substantial- of all Centrelink decisions
        that are appealed to AROs, over 25% go on to be appealed to the
        SSAT.[84] Of the decisions that are
        appealed to the SSAT, over 30% are reversed in favour of the
        applicant.[85]

        In other parts of the legislation, the applicability of administrative review
        to people other than the relevant minister who are vested with administrative
        decision making power under the Acts is also far from clear.

        For example, the proposed new paragraph 123CU(b) of the Social Security
        (Administration) Act 1999
        allows a Child Protection Officer to give the
        Secretary of the Department a written notice requiring that a person be subject
        to the income management regime set up by Part 3B of the Act. It is unclear
        whether a Child Protection Officer is a specified person for the purposes of
        review of decisions made at the Social Security Appeals Tribunal. In other
        words, it is unclear as to whether the person that is the subject to such a
        notice has any right to appeal the merits of the decision made about them by the
        Child Protection Officer.

        Similar concerns apply with regard to a notice given by the ‘Queensland
        Commission’ under s 123UF (1) (b) of the Act that a person will be subject
        to income management. Indeed, in the case of the ‘Queensland
        Commission’ the rights of appeal seem to be entirely unknown, since the
        Act itself only provides the machinery for a commission to be set up, without
        prescribing its functions. Presumably, the ‘Queensland Commission’
        will take the form of the ‘Family Responsibilities Commission’
        outlined in the From hand out to hand up report, and if this is the case
        then the Commission would fall within the purview of the Administrative Appeals
        Tribunal and its decisions would be subject to merits review if applicants so
        desired.

        However, future delegated legislation should be scrutinised for clarity on
        this matter, as the original mechanism prescribed by the NTNER package leaves
        this question unanswered.

        In my view, the justification for removing merits review in relation to
        various measures in the NT intervention has not properly been made out.

        The absence of such review creates barriers to access for justice for
        Indigenous peoples. In particular, it is inappropriate to disentitle Indigenous
        peoples to merits review processes and instead require them to take legal action
        in the Federal Court if they are to obtain a remedy.

        Once again, the government’s statement that the situation is an
        ‘emergency’ provides no justification for denying access to stages
        of the merits review process that are ordinarily available to all other
        Australians.

        Such exclusion is discriminatory. It breaches Australia’s obligations
        under Article 5(a) of ICERD that requires the government to guarantee the
        right of everyone, without distinction as to race, ‘the right to equal
        treatment before the tribunals and all other organs administering
        justice’.

        Rights to full merits review should be restored for all decisions made with
        regards to income management.

        New paragraph 144(ka) of the Social Security (Administration) Act 1999
        (enacted by the Social Security and other legislation amendment (Welfare
        Payment Reform) Act 2007
        (Cth) should be repealed. This section denies a
        person in a relevant Northern Territory area the right to seek administrative
        review.

        Upholding the values of the Westminster System of democratic government is
        fundamental to protecting the community at large from abuse by concentration of
        power, and to ensure that government action is carried out legitimately. When
        legislation is passed which circumvents ordinary democratic procedures and
        protocols, it undermines the very structure of the democracy on which any rights
        framework in Australia might be based. It is crucial that the sections that
        enact such shifts in ordinary practice are therefore immediately repealed.

        d) The NT intervention legislation removes and creates confusion about
        protections against discrimination at the Territory level

        In addition to removing merits review processes, the NT
        intervention legislation also disentitles Indigenous peoples to utilise other
        schemes for the protection of their rights.

        Most notably, each the three primary acts exempt any acts done for the
        purposes of the legislation from the application of Northern Territory laws that
        deal with discrimination.[86]

        The scope of this exemption is extremely broad as it relates to ‘any
        acts done under or for the purposes of the provisions of this’
        legislation. The exemption is also very general – the legislation does not
        specifying the particular legislation that does not apply, simply that any
        legislation ‘that deals with discrimination’. This would include the
        Anti-Discrimination Act 1992 (NT), but it may also include other
        provisions in legislation that is also not specified.

        The absence of protection against discrimination at the territory level
        creates three main difficulties for Indigenous people in the Northern Territory,
        and specifically for those people in prescribed communities.

        First, and most obviously, it removes any right to be protected from
        discrimination in relation to significant issues of decision making that affect
        individual’s livelihoods. Such removal of rights is clearly applied on the
        basis of race.

        Second, it creates ambiguities about the circumstances where protections of
        discrimination will still apply. An individual who feels they have their rights
        aggrieved will have to determine whether the action that has taken place
        constitutes an act ‘done under or for the purposes of the
        provisions’ of the NT intervention legislation in order to establish
        whether they have a right to pursue a complaint and ultimately to obtain a
        remedy.

        It can be foreseen that there will be some situations where the connection of
        the action in question to the NT legislation is tenuous or at least very
        difficult to ascertain, and so making this judgement may ultimately require
        determination through formal processes such as the courts further delaying
        access to justice.

        Third, it will not be easily comprehended by Indigenous peoples that they
        have rights to be protected from discrimination but only if the discrimination
        occurs in a certain location – and conversely that they do
        not have a right when they are in another location (such as within a
        prescribed community for example) or if it relates to certain activities (but
        not if those activities are authorised under the NT intervention legislation).
        The level of uncertainty that this creates will undermine confidence in
        utilising discrimination provisions, even where there is widespread
        discrimination.

        The impact of the intervention legislation can be described as a
        ‘swiss-cheese’ effect on the protection of Indigenous communities
        from discrimination.

        These provisions are clearly arbitrary in their operation, and they undermine
        access to justice for Indigenous peoples.

        There is no justification for such a denial of justice – stripping the
        most vulnerable people in our society of basic rights cannot be seen as a
        reasonable or proportionate response to dealing with family violence.

        As discussed further below in relation to exemptions from the Racial
        Discrimination Act 1975
        (Cth) they also undermine confidence in the system
        of justice as a whole. This is contrary to one of the purposes of the
        intervention, namely, building awareness and support for the operation of the
        rule of law in remote Aboriginal communities.

        These provisions – such as those set out section 133 of the Northern
        Territory National Emergency Response Act 2007
        (Cth) should be repealed
        immediately.

        It is notable that the NT intervention legislation also provides that the
        Minister for Indigenous Affairs can, by non-reviewable legislative instrument,
        declare that any Territory law related to discrimination continues to have
        effect in the communities.[87]

        It is my view that, as an interim measure prior to repealing these
        provisions, the Minister ought to exercise his/ her discretion to declare that
        the Anti-Discrimination Act 1992 (NT) does apply across all communities
        in the Northern Territory and reinstate protections against discrimination in
        all locations of the NT.

        e) The NT intervention legislation removes protections of just terms
        compensation for Indigenous peoples

        The NT legislation also disentitles Indigenous peoples from
        benefiting from the ordinary protections that guarantee the payment of just
        terms compensation under NT law upon the compulsory acquisition of their
        property.

        Sections 60 and 134 of the Northern Territory National Emergency Response
        Act 2007
        (Cth) specify that section 50(2) of the Northern Territory
        (Self-Government) Act 1978
        (Cth) does not apply in relation to any
        acquisition of property. That section provides that the acquisition of any
        property in the Territory must be on just terms.

        The Explanatory Memorandum for the Bill explains the provisions as
        follows:

        Except for an acquisition of property under Part 4 of the bill (which deals
        with the acquisition of rights, titles and interests in land), subsection 50(2)
        of the Northern Territory (Self Government) Act 1978 does not apply to an
        acquisition of property that occurs as a result of the operation of the terms of
        this bill.

        The effect ... is that where subsection 50(2) of the Northern Territory (Self
        Government) Act 1978 would apply so as to require the payment of compensation on
        just terms for an acquisition of property that occurs as a result of the
        operation of the terms of this bill, that requirement does not apply unless the
        acquisition occurs under Part 4.

        Subclause 134(2) provides that the Commonwealth is liable to pay a reasonable
        amount of compensation for acquisitions of property that occur other than under
        Part 4. Therefore, where an acquisition of property that occurs as a result of
        the operation of the terms of this bill is excluded from the requirement under
        subsection 50(2) of the Northern Territory (Self Government) Act 1978 to pay
        just terms compensation, subclause 134(2) nevertheless requires the payment of a
        reasonable amount of compensation.

        Subclause 134(3) provides that where an amount is unable to be agreed,
        proceedings may be commenced in a court of competent jurisdiction for a
        determination of a reasonable amount of
        compensation.[88]

        There are two possible consequences of these provisions. First, in the
        situation where Indigenous people believe they have not been provided
        ‘reasonable compensation’ for the acquisition of property, they
        would have to pursue any claim for compensation through the original
        jurisdiction of the High Court as a constitutional matter.

        This is a highly costly process and one with substantial barriers that may
        simply prove to be too difficult for Indigenous peoples to be able to meet
        – from a practical perspective.

        Second, the Law Council of Australia has expressed concern that this
        provision may in fact have a very different impact and actually result in the
        Commonwealth not being required to pay compensation for any acquisition of
        property at all. They note:

        The application of s 51(xxxi) of the Constitution to provide compensation for
        an acquisition of property in the Northern Territory is not a foregone
        conclusion. Under current High Court Authority there is no requirement to pay
        compensation for an acquisition of property referable only to the s122
        Territories power under the Constitution. The Bill makes it apparent (through
        reference to the non-application of s 50(2) of the Northern Territory (Self
        Government) Act 1978
        ) that the power relied upon for the acquisitions is
        pursuant to the Commonwealth's s122 Territories power.

        The Law Council notes that the legislation appears to shield the Commonwealth
        from its obligation to compensate the relevant Land Trust or pay rent, in
        circumstances where a lease is issued under section
        31.[89]

        Both the government and non-government members of the Senate Legal and
        Constitutional Committee, and the members of the Senate Scrutiny of Bills
        Committee expressed concern about these provisions as lacking clarity as to the
        rights that they provide Indigenous peoples.

        In their additional comments in the Senate Legal and Constitutional
        Committee’s report the Australian Labor Party states that:

        Labor Senators consider it to be an absolutely fundamental principle that the
        Commonwealth Government should pay just terms compensation for the acquisition
        of property from anyone, anywhere in Australia. Further, Labor rejects
        absolutely 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.[90]

        It is entirely unclear from the former Government’s explanations of
        this provision why it exists. For example, to both the Senate Legal and
        Constitutional Committee and the Senate Scrutiny of Bills Committee the
        government has reassured Senators that a guarantee of ‘just terms’
        compensation is preserved.[91] While
        this is disputed by some, there is a more fundamental question that this raises:
        if the intention is to preserve a guarantee of ‘just terms’
        compensation then why disentitle Indigenous peoples from that exact protection
        that exists in the Northern Territory (Self Government) Act 1978 in the
        first place?

        The inclusion of this provision in the NT intervention legislation is
        punitive and unnecessarily creates barriers to the exercise of basic rights for
        Indigenous peoples – and only for Indigenous peoples – in the
        Northern Territory. It is a measure that is blatantly discriminatory and has no
        place in the laws of a modern democratic nation.

        The Government should amend the NT intervention to reinstate this protection
        to firstly guarantee that the protection of just terms compensation does in fact
        apply, and secondly, to provide the simplest and most accessible route to such
        protection (namely the application of the Northern Territory (Self
        Government) Act 1978
        ).

        f) The Racial Discrimination Act 1975 (Cth) and special
        measures

        A major issue of concern in relation to the NT intervention relates to the
        manner in which the legislation underpinning it interacts with the Racial
        Discrimination Act 1975
        (Cth) (RDA). There are two aspects to this:

        • The ‘deeming’ of the legislation as a whole to constitute a
          ‘special measure’ and therefore to be considered consistent with the
          RDA; and
        • Despite this, the exempting of all the measures contained in the legislation
          from the protections of the RDA.

        These two issues are inter-related. Section 10(3) of the RDA does
        not allow measures that involve the management of Aboriginal property by others
        without consent to qualify as ‘special measures’ under the RDA under
        any circumstances. Because of this, the legislation provides that these (and all
        other measures that it has deemed to be special measures) are exempt from the
        RDA entirely. This is justified by the government as providing certainty of
        process.

        I begin by considering the appropriateness of ‘deeming’ the
        legislation as a whole to constitute a ‘special measure’.

        Text Box 4 earlier in this chapter reproduced the provisions in the
        legislation underpinning the NT intervention that relate to the Racial
        Discrimination Act 1975
        (Cth).

        Section 132 of the Northern Territory National Emergency Response Act
        2007,
        for example, deems the provisions of this Act, and any acts done under
        or for the purposes of those provisions, to be ‘special measures’
        under the RDA and therefore not considered discriminatory.

        • Why is it necessary for the measures to qualify as a special
          measure?

        Section 9(1) of the RDA prohibits
        ‘direct’ discrimination on the basis of race. It provides:

        It is unlawful for a person to do any act involving a distinction, exclusion,
        restriction or preference based on race, colour, descent or national or ethnic
        origin which has the purpose or effect of nullifying or impairing the
        recognition, enjoyment or exercise, on an equal footing, of any human right or
        fundamental freedom in the political, economic, social, cultural or any other
        field of public life.[92]

        Section
        10 of the RDA also requires equality before the law on the basis of race. It
        states:

        (1) If, by reason of, or of a provision of, a law of the Commonwealth or of a
        State or Territory, persons of a particular race, colour or national or ethnic
        origin do not enjoy a right that is enjoyed by persons of another race, colour
        or national or ethnic origin, or enjoy a right to a more limited extent than
        persons of another race, colour or national or ethnic origin, then,
        notwithstanding anything in that law, persons of the first-mentioned race,
        colour or national or ethnic origin shall, by force of this section, enjoy that
        right to the same extent as persons of that other race, colour or national or
        ethnic origin.

        Section 8 of the RDA provides an exception to the prohibition of racial
        discrimination. It reads:

        This Part does not apply to, or in relation to the application of, special
        measures to which paragraph 4 of Article 1 of the Convention applies except
        measures in relation to which sub-section 10(1) applies by virtue of sub-section
        10(3).

        In basic terms, what this means is that the RDA allows for differential
        treatment on the basis of race for measures that provide a benefit to a
        group defined by race, so long as those measures are designed to lift that group
        into a situation where they can equally enjoy their human rights. Such treatment
        is called ‘special measures’.

        The NT intervention legislative measures clearly have a number of significant
        actual and potential negative impacts upon the rights of Indigenous people which
        are discriminatory. This includes through the introduction of alcohol bans, the
        quarantining of welfare payments, and compulsory acquisition of property through
        5 year leases that only apply to Indigenous peoples.

        In order for the laws generally to be consistent with the RDA, they must
        therefore be justifiable as a ‘special measure’ taken for the
        advancement of Indigenous people.

        • What is a special measure?

        Article 1(4) of ICERD states:

        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.

        Article 2(2) of ICERD also obliges governments 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’.

        There are four elements of a special measure, as follows. A special
        measure:

        • provides a benefit to some or all members of a group based on race;
          and
        • has the sole purpose of securing the advancement of the group so they
          can enjoy human rights and fundamental freedoms equally with others; and
        • is necessary for the group to achieve that purpose, and
        • stops once their purpose has been achieved and do not set up separate
          rights permanently for different racial
          groups.[9]

        To qualify as a special measure, an action must meet all of these
        criteria.

        These criteria raises a number of matters of concern that must be addressed
        in relation to the measures contained in the NT intervention legislation if they
        are appropriately to be characterised as ‘special measures’.

        • Do the measures provide a ‘benefit’?

        First, the measures must be capable of being defined as providing a benefit to Indigenous peoples.

        It is an unusual situation to seek to justify measures that negatively impact
        on Indigenous peoples as ‘special measures’. For over a decade,
        however, HREOC has argued that negative restrictions on rights are capable of
        being characterised in such a way in limited
        circumstances.[93] These limited
        circumstances are where first, the restriction being introduced can be seen to
        impact beneficially on the community that it is designed to affect; and second,
        the measure is introduced with the consent of the affected community.

        In the case of alcohol restrictions, for example, the Commission has argued
        that there are counterveiling benefits in terms of community safety, freedom
        from violence, health status and the creation of an environment that positively
        impacts of education outcomes and so forth, that can justify characterising the
        introduction of restrictions on alcohol as a benefit. This is particularly where
        such restrictions are accompanied by a range of support mechanisms/ services
        that assist in mitigating any harm that may result from the restrictions.

        For measures that may impact negatively on rights to be considered
        ‘special measures’ they must also be done after consultation with,
        and generally the consent of, the ‘subject’ group. 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.[94]

        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’.[95]

        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...

        At a practical level, such consultation can significantly improve the quality
        of the policy development and its implementation. As the Social Justice
        Report 2006
        states:

        Indigenous peoples [like any other stakeholder group] need to be involved at
        the earliest possible stage in the policy design process, so that they can
        contribute their perspectives and ideas on the objectives and content of the
        policy as well as how the policy should be implemented. This is
        particularly important to ensure that:

        • Indigenous cultural differences are respected and accommodated;
        • the appropriate Indigenous peoples are involved;
        • sufficient time is allocated to developing community support for the
          implementation process; and
        • ultimately, Indigenous peoples feel a sense of ownership of both the
          process and the outcome.[96]

        Meaningful consultation with Aboriginal people upon the
        introduction of legislation affecting their community is hardly an untrialled
        concept in the Australian context. For example, when the Federal government
        sought to enact the Native Title Act 1993 (Cth), leaders from the
        Aboriginal and Torres Strait Islander communities were actively involved in
        negotiations surrounding its development and introduction, and provided their
        consent to a number of tradeoffs in the legislative package.

        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 any provisions 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.[97] To be
        consistent with the RDA, the measures relating to the management of land must be
        undertaken with the consent of the landowners.

        It is clear that the measures introduced through the NT intervention have no
        basis in consultation or consent of affected Aboriginal communities and people.
        Aboriginal people have also not had an active role during the initial 6 month
        emergency phase of the intervention. It is also unclear at this stage the extent
        to which Aboriginal peoples or their representative organisations will be able
        to participate effectively in the development of the longer-term phase of the
        Government’s response.

        • Do the measures have a ‘sole purpose’?

        Second, the measures must have the sole purpose of securing the
        advancement of the group so they can enjoy human rights and fundamental freedoms
        equally with others. The Courts have interpreted this requirement to mean that
        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.[98]

        Justice Deane explain this as follows:

        What is necessary for characterization of legislative provisions as having
        been "taken" for a "sole purpose" is that they can be seen, in the factual
        context, to be really and not colourably or fancifully referable to and
        explicable by the sole purpose which is said to provide their character. They
        will not be properly so characterized unless their provisions are capable of
        being reasonably considered to be appropriate and adapted to achieving that
        purpose. Beyond that, the Court is not concerned to determine whether the
        provisions are the appropriate ones to achieve, or whether they will in fact
        achieve, the particular
        purpose.[99] 

        The consequence of this is that if one provision of a law which purports to
        be a special measure can not be properly characterised as being appropriate and
        adapted to achieving the sole purpose of securing the ‘adequate
        advancement’ of the intended beneficiaries of the special measure, then
        the provision may be read down or rendered inoperative by virtue of the
        operation of s10 of the RDA.

        This approach is necessary to ensure that the special measures provision, as
        an exemption to the general prohibition against racial discrimination, is
        applied narrowly.

        This approach is supported by comments of the full Federal Court in Vanstone v
        Clark
        .[100] In that case,
        Justice Weinberg, with whom Chief Justice Black agreed, rejected the
        submission that once it is accepted that a particular provision of an act is a
        special measure, the different elements of the provision can not be separately
        attacked as discriminatory. Justice Weinberg stated, that such a proposition:

        involves a strained, if not perverse, reading of s8 of the RDA, and would
        thwart rather than promote the intention of the legislature. If the submission
        were correct, any provision of an ancillary nature that inflicted disadvantage
        upon the group protected under a ‘special measure’ would itself be
        immune from the operation of the RDA simply by reason of it being attached to
        that special measure.[101]

        In relation to the NT intervention, widespread concern has been expressed by
        Aboriginal communities that certain measures are not appropriate and adapted to
        the end of child protection. These include the compulsory acquisition of
        property in circumstances where negotiations for a lease have not been sought
        from the landowners, as well as the changes made to the permit system. This
        limits the ability of these measures to be legitimately characterised as special
        measures under the RDA.

        • Other concerns about the NT intervention and the characterisation of the
          legislation as a ‘special measure’

        As noted earlier, there is no justification or detail provided in
        the Explanatory Memorandum as to how the various measures qualify as special
        measures by addressing the criteria as set out in ICERD and section 8 of
        the RDA.

        The Explanatory Memorandum to the Northern Territory National Emergency
        Response Bill instead makes the very generalised assertion that:

        The Convention on the Rights of the Child requires Australia to protect
        children from abuse and exploitation and ensure their survival and development
        and that they benefit from social
        security.[102]

        As noted earlier, the obligations in CRoC must be read in light o the
        foundational principle outlined in Article 2 of the Convention. This requires
        that all measures designed to meet State Party obligations must not, in
        themselves, discriminate on the grounds of race.

        This over-arching principle is not acknowledged by the Explanatory Memorandum
        or in any statements by the Government.

        The pressing need to put in place a range of programs and policy initiatives
        to better protect the rights of children does not, on its own, justify the
        derogation from other human rights standards.

        The legislation also provides no guidance to decision-makers as to the
        requirements of special measures, nor does it require that decision-makers who
        are authorised to conduct a range of activities under the Acts exercise their
        discretion consistent with the purported beneficial purpose.

        • Can the NT intervention measures legitimately characterised as special
          measures?

        The NT intervention measures are, on their face, discriminatory in
        their impact. For this to be legitimate under the RDA they must be capable of
        being saved as ‘special measures’.

        If we look at individual measures contained within the legislative package,
        it is possible to conceive how some of them may meet the first component of the
        requirement that they be capable of being defined as beneficial.

        For example, the welfare quarantining provisions introduced into the Social Security Act have the purpose of:

        • stemming the flow of cash expended upon substance abuse and gambling;
        • ensuring funds that are provided for the welfare of adults and children are
          spent on their priority needs; and
        • promoting socially responsible behaviour, particularly in relation to the
          care and education of children.

        As the Explanatory Memorandum for the Bill states, these measures
        address the obligation under CRoC for children to benefit from social
        security and provide the foundation for rebuilding social and economic
        structures in the community.

        However, even if such a purpose can be characterised as beneficial, it is
        still necessary to demonstrate that consultation has occurred and community
        consent has been sought to the introduction of restrictive measures.

        This is entirely absent from the NT intervention measures.

        It is also not possible to see that several measures have the ‘sole
        purpose’ required to qualify as a special measure, as they are not
        appropriate or adapted to the purpose of the measure – namely, the
        protection of children and women from violence and abuse.

        As a consequence, it is not possible to support the government’s
        contention that all of the measures contained in the NT intervention legislation
        can be justified as special measures. It is therefore also not possible to say
        that in its current form the legislation is consistent with the RDA.

        These concerns emphasise the need for extensive consultation with Indigenous
        communities to explain these measures and the objects 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.

        It 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.

        Proposals for how to adapt the NT intervention measures so that they are
        consistent with the RDA and can be legitimately accepted as ‘special
        measures’ is discussed in the final part of this chapter and in the
        accompanying recommendations.

        g) The NT intervention legislation removes entirely the protection of the
        Racial Discrimination Act 1975 (Cth)

        Despite having deemed the legislation to be a special measure,
        there are further provisions in each of the NT intervention acts that entirely
        exclude the operation of the RDA.

        For example, section 132(2) of the Northern Territory National Emergency
        Response Act 2007
        states that:

        The provisions of this Act, and any acts done under or for the purposes of
        those provisions, are excluded from the operation of Part II of the Racial
        Discrimination Act 1975.

        Similarly, the amendments to the Social Security Act state that a
        number of measures within the broad scheme of the legislation are excluded from
        its operation, including: any act done with respect to income management under
        Part 3(B) of the Social Security (Administration) Act 1999 (Section
        4(3)); any order made by the Queensland Commission (s 4(4)), and any prescribed
        program of guidelines implemented for candidacy in terms of work support
        programs such as work for the dole (s 6(3)).

        As noted above, the government has acknowledged that one of the reasons that
        this blanket exemption was inserted into the legislation is to address the
        consequences of section 10(3) of the
        RDA.[103] Section 10(3) of the RDA
        makes it unlawful to manage the property of Aboriginal and Torres Strait
        Islander people without their consent or prevent them from terminating
        management by another of land owned by them. Such a measure cannot also be
        classified as a special measure, according to section 8(1) of the RDA.

        This affects the ability of the government to legitimately enact provisions
        relating to some of the powers of government business managers to be placed into
        Aboriginal communities, as well as provisions relating to compulsory acquisition
        of Aboriginal land and potentially also removing aspects of the permit
        system.

        The inclusion of this exemption to the RDA demonstrates a deliberate intent
        on the behalf of government to overcome the specific prohibition on measures for
        the management of Aboriginal land without consent being considered
        ‘special measures’ for the purposes of the RDA.

        It is also evidence that the government was aware that at least some of the
        measures in its proposed package would not meet the standard of special
        measures, making the exemption clauses necessary to legitimise the legislation.

        There are a number of concerns about this action of exempting the RDA.

        First, as the then Opposition stated in the Senate Legal and Constitutional
        Committee’s report on the legislation:

        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.[104]

        Second, the exemption provided to the RDA is exceptionally broad in scope. It
        relates to ‘the provisions of this Act, and any acts done under or for the
        purposes of those provisions’. This covers any exercise of discretion on
        any aspect of the legislation.

        As noted in previous sections of this chapter, the scope of this exemption is
        of increased concern when coupled with other provisions which limit or
        disentitle Aboriginal people from accessing merits review of decision making or
        provide other limitations on obtaining access to justice.

        Similarly, as noted in the previous section, it would be more appropriate
        that in the exercise of all discretion under the legislation, the authorised
        decision makers be required to act consistent with the purported beneficial
        purpose of the legislation (and special measure).

        To restore an appropriate balance to the legislation, the clauses exempting
        the RDA (as set out in section 132(2) of the Northern Territory National
        Emergency Response Act 2007
        and the related provisions set out in Text Box 4
        in this chapter) should be immediately repealed.

        These provisions should also be replaced by a new clause requiring all acts
        authorised under the legislation to be undertaken consistently with the RDA. To
        be effective such a clause – known as a non-obstante clause –
        should be unequivocal that the provisions of the NT legislation is subject to
        the provisions of the RDA.

        There is precedent for this level of protection. The Social Security
        Legislation Amendment (Newly Arrived Residents’ Waiting Periods and Other
        Measures) Act 1997
        (Cth) contained an equivalent section defining the
        interaction of the RDA with Social Security legislation. It reads:

        Section 4 - Effect of the Racial Discrimination Act 1975

        (1) Without limiting the general operation of the Racial Discrimination
        Act
        1975 in relation to the provisions of the Social Security Act 1991, the provisions of the Racial Discrimination Act 1975 are intended
        to prevail over the provisions of this Act.

        (2) The provisions of this Act do not authorise conduct that is inconsistent
        with the provisions of the Racial Discrimination Act 1975.

        The ease with which the obligations under the RDA can be set aside by the NT
        intervention legislation reveals the weak status of protections of racial
        discrimination in our legal system.

        It vividly demonstrates how the Commonwealth Parliament has the power to
        legislate to override any provision of the RDA with very little accountability.
        As the High Court noted in relation to the Native Title Act 1993 (Cth) in
        1995:

        If the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both acts emanate from the same legislature
        and must be construed so as to avoid absurdity and to give each of the
        provisions a scope for
        operation.[105]

        The failure of the Australian government to encode an entrenched protection
        for the principle of non-discrimination beyond the level of a Commonwealth
        statute has lead to extensive criticism from the Committee on the Elimination of
        All Forms of Racial Discrimination, which monitors and administers ICERD at the international level. They stated in their Concluding Observations of
        Australia’s most recent reporting session to the Committee that:

        The Committee, while noting the explanations provided by the delegation,
        reiterates its concern about the absence of any entrenched guarantee against
        racial discrimination that would override the law of the Commonwealth. (Article
        2). The Committee recommends to the State party that it work towards the
        inclusion of an entrenched guarantee against racial discrimination in its
        domestic law.[106]

        These criticisms are particularly pertinent given the jus cogens status that the prevention of race discrimination has in international law.

        The Australian Government has, however, consistently rejected calls to
        entrench any form of constitutional rights protection, taking the position that
        sufficient rights protection in Australia derives from:

        • a system of representative and accountable government;
        • an independent judiciary, a fair and accessible justice system and the
          common law;
        • specific human rights legislation and a national human rights
          institution;
        • State and Territory anti-discrimination and equal opportunity commissions;
          and
        • an array of programs and initiatives at national, State and Territory levels
          directed at enhancing the enjoyment of human
          rights.[107]

        h) Specific human rights concerns relating to income
        management

        There are a range of individual measures contained in the NT intervention
        legislation that raise other human rights concerns. One such measure is the
        income management regime. As with other provisions of the legislation, many of
        the concerns relate to the actual process chosen for achieving the aim of the
        legislation rather than the actual measure itself.

        The Social Security and other Legislation Amendment (Welfare Payment
        Reform) Act 2007
        (Cth) provides for the quarantining and control of welfare
        income available to Indigenous peoples in prescribed Northern Territory
        Communities for a period of 12 months, with the possible extension of this for
        up to five years. It also puts in place the legislative framework for delegated
        legislation to be enacted to set up an administrative body called the Queensland
        Commission to regulate income management in Cape York.

        The government states that the measures in the legislation relating to child
        protection and school attendance could take effect for both Indigenous and
        non-Indigenous people Australia-wide by
        2009.[108]

        According to the new provisions in the Social Security Act, the
        purpose of the legislation is to:

        • (a) stem the flow of cash expended upon substance abuse and gambling;
        • (b) ensure funds that are provided for the welfare of adults and children
          are spent on their priority needs; and
        • (c) promote socially responsible behaviour, particularly in relation to the
          care and education of children.

        As has been noted previously, the CRoC provides that
        children are entitled to benefit from welfare, so measures that are
        designed to achieve this can be seen to address a legitimate human rights
        concern.

        • How is the income management regime applied in the legislation?

        The legislation introduces an income management regime into the Social Security Administration Act (Part 3B Division 1, Item 17).

        The income management regime applies to almost every form of welfare payment.
        It amends existing legislation including:

        • A New Tax System (Family Assistance) (Administration) Act 1999;
        • Social Security Act 1991;
        • Social Security (Administration) Act 1999;
        • Veteran’s Entitlements Act 1986;
        • A New Tax System (Family Assistance) Act 1999; and
        • Income Tax Assessment Act 1936.

        Under the legislation, a person may become subject to the income
        management regime because:

        • A person lives in a declared relevant area (prescribed community) in the NT
          (s123UB). Income management involves quarantining 50% of all income support and
          family assistance payments.
        • A state/ territory child protection officer recommends to Centrelink that a
          person should be subject the income management because their child is considered
          to be at risk of neglect or abuse (s123UC). These measures are intended to apply
          nationally. In most cases, the principal carer will have 100% of their welfare
          payments income managed until such time as the risk to the child ceases (s 123XI
          and 123 XJ).
        • A person, or the person’s partner, has a child who does not meet
          school enrolment and attendance requirements (s123UD and s123UE). The trigger
          can be identified by either Centrelink or the State Education Authority. These
          measures will apply nationally starting in 2009. Income management will result
          in the principal carer having 50% of their income support and 100% of their
          family assistance payment quarantined for an initial period of 12 months. The
          principal carer will also have mandatory deductions from their welfare payments
          to cover the cost of their children’s breakfast and lunch at school
          (Division 6).
        • A person who is subject to the jurisdiction of the Queensland Commission, is
          recommended by the Commission for income management
          (s123UF).[109] It is expected that
          a person would be recommended for income management because the Commission found
          their child to be at risk of abuse or neglect, or because their child was not
          enrolled or not meeting school attendance requirements.

        A person who is subject to the income management provisions will
        have an income management account created for them. Amounts will be deducted
        from the person’s welfare payments and credited to the person’s
        income management account. A person subject to the income management regime can
        then be given a store value card capable of storing monetary value in a form
        other than cash, to purchase essential items at particular designated shops
        (s123YC).

        Amounts quarantined from a person’s income can be spent on
        ‘priority needs’ including food, beverages, clothing, basic
        household items, housing, household utilities, heath, childcare and development,
        education and training and other specified items by legislative instrument
        (Section 123TH).

        The measures will apply for a period of 12 months, upon which time they are
        able to be renewed by a legislative instrument at the discretion of the
        Minister.

        The Minister has discretion to exempt people from income management in any
        circumstances that the Minister sees fit.

        Income management can also apply to people who enter a prescribed area in the
        NT for any period of time, or if their partner enters for any prescribed period
        of time.

        The category of people in the NT subject to income management can be expanded
        because the Minister may declare that a relevant Northern Territory area is a
        ‘prescribed area’ and will be subject to the Act (Section 123TE).
        This declaration can last for up to one year.

        In couples where both parents receive income support, both parents’
        income support and family payments will be subject to income management. In
        couples where one parent receives a family income payment, the entire family
        income support could be subject to management (Section 123).

        Other adults with at least a 14% or larger share of responsibility for care
        of a child may be subject to income management. However, Centrelink has the
        discretion to exclude parents on a case-by-case basis from income management
        where parents are only responsible for 14-34% care of children (Section
        123UH).

        Income management with respect to the carers of children who are identified
        by child protection authorities as ‘at risk’ will apply for as long
        as State Child Protection Authorities deem it necessary.

        • Is the income management regime consistent with the right to social
          security?

        The income management regime introduced by the NT intervention
        legislation raises many complex human rights issues. Chief among these is the
        right to social security as set out in Article 9 of ICESCR, as well as
        Article 5 of ICERD, Article 26 of CRoC and Articles 11(1)(e) and
        14(2)(c) of CEDAW.

        Text Box 9 outlines the content of this right, as set out by the Committee on
        Economic, Social and Cultural Rights.

        Text Box 9 – Content of the right to social
        security[110]

        The right to social security covers the right to access benefits, through a
        system of social security, in order to secure adequate (i) income security in
        times of economic or social distress; (ii) access to health care and (iii)
        family support, particularly for children and adult dependents. It should be
        broadly – rather than narrowly – defined.

        The right to social security contains both freedoms and entitlements. The
        freedoms include the right to be free from arbitrary and unreasonable
        interference with existing social security coverage, whether obtained publicly
        or privately. Furthermore, it includes the right to a system of social security
        that provides equality of opportunity for people to enjoy adequate protection
        from risks, by providing at least income security and access to health care and
        family benefits.

        Key elements of the right to social security

        Availability

        (i) The right to social security implies that a system, whether composed of
        a single or variety of schemes, is available and in place to ensure that
        benefits can be accessed for the relevant categories of social security.

        (ii) Benefits, whether in cash or in kind, must be adequate in amount and
        duration in order that everyone can realize their rights to family protection,
        an adequate standard of living and access to health care as contained in
        Articles 10, 11 and 12 of the Covenant. In addition, State parties should be
        guided by the principle of human dignity, contained in the preamble, and the
        right to non-discrimination, which may influence the levels of benefits and the
        form in which they are provided.

        Accessibility

        (i) Physical Accessibility – Coverage. All persons should be
        covered by the social security system, including the most disadvantaged or
        marginalized sections of the population, in law and in fact, without
        discrimination on any of the prohibited grounds.
        (ii) Economic
        Accessibility - Affordability
        . If a social security scheme requires
        contributions by employees or other beneficiaries, then contributions should be
        defined in advance. The direct and indirect costs and charges associated with
        making contributions must be affordable, and must not compromise or threaten the
        realization of other Covenant rights.

        (iii) Information Accessibility and Participation. Beneficiaries of
        social security schemes must be able to participate in the administration of the
        system and it must provide for a right of appeal. The system should be
        established under national law and permit the individuals and organizations the
        right to seek, receive and impart information concerning social security
        issues.

        General issues

        The obligation of States parties to guarantee that the right to social
        security is enjoyed without discrimination (art. 2, para. 2), and equally
        between men and women (art. 3), pervades all of the Covenant obligations. The
        Covenant thus prohibits any discrimination on the grounds of race or other
        grounds which has the intention or effect of nullifying or impairing the equal
        enjoyment or exercise of the right to social security.

        Whereas the right to social security applies to everyone, States parties
        should give special attention to those individuals and groups who have
        traditionally faced difficulties in exercising this right.

        Eligibility conditions for unemployment benefits must be reasonable and
        proportionate and the benefit must not be provided in a form that is onerous or
        undignified. The withdrawal, reduction or suspension of benefits should be
        circumscribed, must be based on grounds that are reasonable and proportionate,
        and be provided for in national law.

        Benefits for families are crucial for realizing the rights of children and
        adult dependents to protection under Article 10 of the Covenant. The Convention
        on the Rights of the Child provides that“ The benefits should, where
        appropriate, be granted, taking into account the resources and the circumstances
        of the child and persons having responsibility for the maintenance of the child,
        as well as any other consideration relevant to an application for benefits made
        by or on behalf of the child.” Family benefits should be provided to
        families, without discrimination on prohibited grounds, and would ordinarily
        cover food, clothing, housing, where appropriate.

        States parties should take particular care that indigenous peoples and
        racial, ethnic and linguistic minorities are not excluded from social security
        systems through direct or indirect discrimination, particularly through the
        imposition of unreasonable eligibility conditions.

        Legal Obligations relating to the right to social security

        General legal obligations

        States parties have immediate obligations in relation to the right to
        social security, such as the guarantee that the right will be exercised without
        discrimination of any kind (art. 2, para. 2) and the obligation to take steps
        (art. 2, para.1) towards the full realization of articles 11, paragraph 1, and
        12.

        There is a strong presumption that retrogressive measures taken in relation
        to the right to social security are prohibited under the Covenant. If any
        deliberately retrogressive measures are taken, the State party has the burden of
        proving that they have been introduced after the most careful consideration of
        all alternatives and that they are duly justified by reference to the totality
        of the rights provided for in the Covenant in the context of the full use of the
        State party's maximum available resources. The Committee will look carefully at
        whether (1) alternatives were comprehensively examined; (2) there was genuine
        participation of affected groups in examining proposed measures and alternatives
        that threaten their existing human right to social security protections; (3) the
        measures were directly or indirectly discriminatory; (4) the measures will have
        a sustained impact on the realization of the right to social security; (5) the
        individual is deprived of access to the minimum essential level of social
        security unless all maximum available resources have been used, including
        domestic and international; (6) review procedures at the national level have
        examined the reforms.

        Specific legal obligations

        The right to social security, like any human right, imposes three types of
        obligations on States parties: obligations to respect, obligations to protect
        and obligations to fulfil.

        (a) Obligations to respect

        The obligation to respect requires that States parties
        refrain from interfering directly or indirectly with the enjoyment of the right
        to social security, including refraining from engaging in any practice or
        activity that denies or limits equal access to adequate social security;
        arbitrarily interfering with self-help or customary or traditional arrangements
        for social security; or interfering with institutions that have been established
        by individuals or corporate bodies to provide social security.

        (b) Obligations to protect

        The obligation to protect requires State parties to prevent
        third parties from interfering in any way with the enjoyment of the right to
        social security. The obligation includes, inter alia, adopting the necessary and
        effective legislative and other measures to restrain, for example, third parties
        from denying equal access to social security schemes operated by third parties
        or others, imposing conditions or providing benefits that are not consistent
        with the national social security system; or arbitrarily interfering with
        self-help or customary or traditional arrangements for social security.

        (c) Obligations to fulfil

        The obligation to fulfil requires States parties to adopt the
        necessary measures, including the implementation of a social security scheme,
        directed towards the full realization of the right to social security. The
        obligation to fulfil can be disaggregated into the obligations to facilitate,
        promote and provide.

        The obligation to facilitate requires the State to take positive
        measures to assist individuals and communities to enjoy the right. The
        obligation includes, inter alia, according sufficient recognition of this right
        within the national political and legal systems, preferably by way of
        legislative implementation; adopting a national social security strategy and
        plan of action to realize this right; ensuring that the social security system
        will be adequate, accessible for everyone and covers risks and contingencies,
        namely income security, access to health care and family support.

        States parties are also obliged to fulfil (provide) the right when
        individuals or a group are unable, for reasons beyond their control, to realize
        that right themselves within the existing social security system with the means
        at their disposal. The obligation to promote obliges the State party to take
        steps to ensure that there is appropriate education and awareness concerning
        access to social security schemes, particularly in rural and deprived urban
        areas, or amongst linguistic and other minorities.

        Core obligations

        States parties have a core obligation to ensure the satisfaction of, at the
        very least, minimum essential levels of each of the rights enunciated in the
        Covenant. In the Committee’s view, at least a number of core obligations
        in relation to the right to social security can be identified, which are of
        immediate effect:

        (a) To ensure access to the minimum essential level of social security
        that is essential for acquiring water and sanitation, foodstuffs, essential
        primary health care and basic shelter and housing, and the most basic forms of
        education.

        (b) To ensure the right of access to social security systems on a
        non-discriminatory basis, especially for disadvantaged or marginalized
        groups;

        (c) To adopt and implement a national social security strategy and plan
        of action addressing the whole population; the strategy and plan of action
        should be devised, and periodically reviewed, on the basis of a participatory
        and transparent process; it should include information on the right to social
        security indicators and benchmarks, by which progress can be closely
        monitored.

        (d) To monitor the extent of the realization, or the non-realization, of
        the right to social security;

        (e) To adopt social assistance or other programmes that protect
        disadvantaged and marginalized individuals and groups;

        Implementing the right to social security

        States parties are required to utilize “all appropriate means,
        including particularly the adoption of legislative measures”. Every State
        party has a margin of discretion in assessing which measures are most suitable
        to meet its specific circumstances. The Covenant, however, clearly imposes a
        duty on each State party to take whatever steps are necessary to ensure that
        everyone enjoys the right to social security, as soon as possible. Furthermore,
        any national measures designed to realize the right to social security should
        not interfere with the enjoyment of other human rights.

        Existing legislation, strategies and policies should be reviewed to ensure
        that they are compatible with obligations arising from the right to social
        security, and should be repealed, amended or changed if inconsistent with
        Covenant requirements.

        The duty to take steps clearly imposes on States parties an obligation to
        adopt a national strategy or plan of action to realize the right to social
        security. The strategy should: (a) be based upon human rights law and
        principles; (b) cover all aspects of the right to social security and the
        corresponding obligations of States parties; (c) define clear objectives; (d)
        set targets or goals to be achieved and the time frame for their achievement;
        (e) formulate adequate policies and corresponding benchmarks and
        indicators.

        The formulation and implementation of national social security strategies
        and plans of action should respect, inter alia, the principles of
        non-discrimination, gender equality and people's participation. The right of
        individuals and groups to participate in decision-making processes that may
        affect their exercise of the right to social security must be an integral part
        of any policy, programme or strategy concerning social security.

        The national social security strategy and plan of action should also be
        based on the principles of accountability, transparency and independence of the
        judiciary, since good governance is essential to the effective implementation of
        all human rights, including the realization of the right to social security.

        Any persons or groups who have experienced violations of their right to
        social security should have access to effective judicial or other appropriate
        remedies at both national and international levels. All victims of violations of
        the right to social security should be entitled to adequate reparation,
        including restitution, compensation, satisfaction or guarantees of
        non-repetition. National ombudspersons, human rights commissions, and similar
        institutions should be permitted to address violations of the right.

        These key features can be summarised as follows:

        • the right is to be enjoyed without discrimination, including on the basis of
          race;
        • access must be assured on a non-discriminatory basis to the minimum
          essential level of social security that is required for acquiring water and
          sanitation, foodstuffs, essential primary health care and basic shelter and
          housing, and the most basic forms of education;
        • benefits should be provided in cash or in kind – determining the form
          that benefits take should be guided by the principle of human dignity and the
          right to non-discrimination;
        • any national measures designed to realize the right to social security
          should not interfere with the enjoyment of other human rights;
        • beneficiaries of social security schemes must be able to participate in the
          administration of the system and it must provide for a right of appeal;
        • eligibility conditions for unemployment benefits must be reasonable and
          proportionate and the benefit must not be provided in a form that is onerous or
          undignified;
        • the right to social security should ordinarily include provision for
          benefits for families and cover food, clothing and housing, where
          appropriate;
        • governments are obliged to take steps to ensure that there is appropriate
          education and awareness concerning access to social security schemes,
          particularly among minorities and disadvantaged groups;
        • all legislation and processes should be reviewed to ensure that they are
          compatible with obligations arising from the right to social security, and
          should be repealed, amended or changed if inconsistent with Covenant
          requirements;
        • each government has a margin of discretion in assessing which measures are
          most suitable to meet its specific circumstances, but has a duty to take
          whatever steps are necessary to ensure that everyone enjoys the right to social
          security, as soon as possible;
        • the formulation and implementation of national social security strategies
          and plans of action should respect, inter alia, the principles of
          non-discrimination, gender equality and people's participation;
        • the right of individuals and groups to participate in decision-making
          processes that may affect their exercise of the right to social security must be
          an integral part of any policy, programme or strategy concerning social
          security; and
        • access to effective judicial or other appropriate remedies at both national
          and international levels should be guaranteed, including with national
          ombudspersons, human rights commissions, and similar institutions being
          permitted to address violations of the right.

        What these provisions reveal is a set of criteria for determining
        the appropriateness of adopting any particular approach to the delivery of
        social security entitlements.

        The Explanatory Memorandum and related explanatory materials on the NT
        intervention measures, however, contain limited information on how such criteria
        are met.

        The income management measures raise the following concerns relating to
        compatibility with the right to social security:

        • The blanket application of the income management regime in the 73 prescribed
          communities in the NT means that the measures are applied to individuals that
          are not responsible for the care of children, do not gamble, and do not abuse
          alcohol or other substances. The criteria for being subject to the income
          management provisions is therefore solely on the basis of the race of the
          welfare recipient instead of being on the basis of need.
        • The scheme is also established so that it is difficult for individuals to be
          exempted from the income management provisions. For this to occur requires a
          decision by the Minister. It would be more appropriate for the decision making
          about the applicability of the scheme to be inverted, so that for the scheme to
          operate in relation to a particular individual it would require a decision that
          the scheme should be applied based on clearly defined criteria.
        • This also means that the method for delivery of welfare provisions is
          extremely costly, with significantly increased bureaucratic involvement and
          costs. It is questionable that this is the most appropriate approach for
          delivering welfare. The government would, in my view, obtain better outcomes at
          a more reasonable cost by focusing its efforts on meeting its duty to take steps
          to ensure that there is appropriate education and awareness about social
          security issues in Indigenous communities.
        • As the income management measures are so broadly applied, there is a tenuous
          connection between the operation of the scheme and the object of addressing
          family violence and abuse. When coupled with the lack of participation and
          consultation with Indigenous communities, this renders it very difficult to
          support the view that these measures are appropriately characterised as a
          special measure.
        • If the measures were targeted solely to parents or families in need of
          assistance to prevent neglect or abuse of children, as they are in s123UC of the
          legislation, then some form of income management may be capable of being seen as
          an appropriate exercise of the governments ‘margin of discretion’ to
          ensure that families benefit from welfare and receive the minimum essentials for
          survival.
        • It is difficult, however, to see how the quarantining of 100% of welfare
          entitlements can be characterised as an adapted and appropriate response, given
          the impact that benefits are being provided in a form that is onerous and
          potentially undignified.
        • As discussed earlier, the limitations on reviewing decision making in
          relation to the income management regime, and especially the denial of external
          merits review processes, significantly undermines the ability to characterise
          the income management regime as an adapted and appropriate response. This is a
          clear denial of justice, is discriminatory in its impact and does not meet the
          requirement for the provision of effective judicial or other appropriate
          remedies that is integral to the right to social security. The absence of access
          to complaints processes such as under the RDA also breaches the right to social
          security.

        It is arguable that some forms of income management could be
        undertaken consistent with the right to social security. For example, it is
        likely that the model proposed by the Cape York Institute in its report From
        a hand out to a hand up
        contains the appropriate procedural guarantees and
        participatory requirements to enable those proposed measures to potentially be
        characterised as a special measure and as consistent with the right to social
        security.

        Notably, however, some of those procedural guarantees – such as access
        to merits review and to access Queensland discrimination laws – are
        removed in the provisions that are contained in the social security amendments
        in the NT intervention legislation and so it is not clear that the Queensland
        Commission that has been authorised actually complies.

        Consistent with the right to social security, the provisions on income
        management in the NT intervention legislation should be reviewed and amended to
        ensure that these provisions are compatible with obligations arising from the
        right to social security.

        Such a review should ensure that the right of individuals and groups to
        participate in decision-making processes that may affect their exercise of the
        right to social security are made an integral part of the NT intervention
        process into the future.

        Ultimately, the objective of income management is to ensure that money is
        being spent in a responsible way on family needs, with the overarching goal of
        ensuring children’s needs are met. However, the irony of the system being
        implemented by the government’s legislation 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.

        Controlling how a person spends their money is a drastic interference into
        the way a person manages his or her life and family, and human rights require a
        proportionate response to a problem. In the context of the NT legislation, this
        means that governments are obliged to consider less intrusive or voluntary
        option as a first response before moving to options as broad-reaching as
        compulsory income management.

        There is evidence in a number of cases that alternative programs have been
        trialled in Aboriginal communities to assist in the management of income, often
        with substantial success. For example, Tangentyere Council (near Alice Springs)
        supports over 800 Aboriginal people to use Centrepay to pay bills and rent.
        Under this voluntary scheme, Centrepay provides part of people’s
        welfare payment in the form of food
        vouchers.[111] This has become a
        successful scheme and allows participants to exercise choice and control over
        their money.

        In contrast, implementation of a system that divests Aboriginal people of any
        power to make choices to govern their own financial affairs is severely out of
        step with principles of both self-determination, and self-responsibility.

        • Protecting the right to privacy

        International law provides that every person’s right to
        privacy should be protected by law to ensure there is no arbitrary interference
        or unlawful interference.[112]

        However, section 123 of the Social Security Act provides that in order
        to determine which individuals will be subject to income management, there will
        be a significant collection, use and disclosure of personal information
        occurring across Australia between: schools (both public and private); state and
        territory education authorities; child welfare agencies; and businesses that
        will act as ‘triggers’ or agents for income management in various
        circumstances[113]. This may
        include sensitive information, such as child protection matters.

        It is concerning that the ways in which personal information will be shared
        between government agencies such as State Child Protection Authorities,
        Centrelink, State Education Authorities FaCSIA and private sector agents has not
        been made explicit in the legislation.

        Further, it is important to note that the Privacy Regulation Principles
        embodied in section 14 of the Privacy Act 1988 (Cth) do not
        regulate the Northern Territory, State Government agencies, and most small
        businesses or individuals. This means that some of the handling of personal
        information that would occur under the provisions in the various Acts would not
        be subject to the safeguards against misuse of information embodied in the Privacy Act, but only to State privacy regulations, which are not
        uniform.[114]

        The NT intervention legislation must be amended to ensure that adequate
        protections are provided to protect the privacy of individuals in the handling
        of personal information.

        • The right to education

        A further objective of income management is to provide an incentive
        for Aboriginal families to ensure that their children attend school. However,
        the income management scheme as set forth in the NT intervention legislation
        presupposes that children in the Northern Territory could access ordinary
        educational opportunities if they so wished.

        Research into the socio-economic conditions of many Aboriginal communities
        strongly indicates that this is not the case.

        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. However, the Northern Territory’s Minister for Education,
        Mr Paul Henderson, has conceded that the number of school-aged children without
        access to primary and secondary education is
        'significant'.[115]

        The Combined Aboriginal Organisations of the NT report a severe shortage of
        educational services, for example:

        • In Wadeye there are not enough class rooms or teachers if all the students
          do attend school;
        • 94% of Indigenous communities in NT have no preschool;
        • 56% have no secondary school; and
        • 27% have a local primary school that is more that 50kms
          away.[116]

        In spite of these shortcomings, a number of innovative educational
        programs in the Northern Territory were in place prior to the intervention to
        encouraging student attendance and participation. For example, the Clontarf
        program in Alice Springs has increased attendance rates to 92% by using sport
        and motivational techniques to motivate students to stay at school. Other
        success stories include Cherbourg in Queensland, as well as Yirkala, Yipirinya
        and Barunga in the NT.[117]

        An emphasis on providing children with incentives to learn and developing
        methods of teaching that resonate with Indigenous students is preferable to
        measures that penalise parents. Along with extensive Federal and Northern
        Territory government financial commitments to improve the quality and
        availability of education, such measures should be extensively trialled before
        options as punitive as income management of 100% of welfare entitlement
        recipients are utilised.

        i) Specific human rights concerns relating to the abolition of the CDEP
        scheme

        As well as introducing income quarantining, the Social Security
        and other Legislation Amendment (Welfare Payment Reform) Act 2007
        (Cth)
        abolishes the Federal government’s Community Development Employment
        Projects (CDEP) scheme in the Northern Territory.

        According to official figures, this component of the Government’s
        legislative package is likely to affect around 7,500 people across the Northern
        Territory.[118]

        Because CDEP participants receive a wage (rather than a welfare payment) they
        are treated as employees. Abolishing CDEP and requiring people to register for
        Newstart, undertake training, or carry out work for the dole will mean that they
        will be treated as ‘unemployed’ and can therefore be subject to
        income management.

        It should therefore be clearly recognised from the outset that irrespective
        of the benefits or disadvantages of dismantling the CDEP scheme, the purpose of
        doing so was to enable the Government to introduce a comprehensive process for
        the quarantining of welfare and income management.

        CDEP was created under the Fraser government in 1977 as a form of community
        engagement in the job creation market. Essentially, the CDEP scheme is
        predicated upon the use of block grants (that total the equivalent of the
        unemployment benefits that would otherwise be available to Aboriginal people
        within certain communities) being made available to community controlled
        organisations. These organisations then have the capacity to manage their own
        projects and finances in line with the aspirations and skills of the community
        in which they operate.

        The number of participants in CDEP schemes is capped with the number of
        available places consistently less than demand. This means that not all
        unemployed people in any given community were on CDEP.

        Some of the many benefits attributed to the variety of programs that exist
        under the rubric of CDEP include community development, employment creation,
        income support, and the promotion of enterprise assistance. However, as was noted in the Social Justice Report 2006, CDEP has
        had variable results.[119]

        The legislative package abolishing CDEP also removes ‘remote area
        exemptions’ from Newstart Allowance activity requirements so that
        recipients must engage with a Job Network and other mainstream services, and
        either train or seek employment.

        According to Schedule 3 of the Social Security Act:

        • The CDEP will gradually be abolished in the Northern Territory from
          September 2007. CDEP participants will become unemployed, and therefore subject
          to the income management regime. They will have to apply to Centrelink for
          income support payments (Newstart) and fulfil the normal participation
          requirements, such as looking for work, training or participating in Work for
          the Dole (Schedule 3).
        • CDEP will progressively be replaced, community by community, by other
          services, including ‘training’, ‘real jobs’ or
          ‘work for the dole’ (Schedule 3).
        • The measures in the legislation set up a CDEP transition payment, to ensure
          that CDEP participants’ welfare payments are not less than they were
          earning as CDEP participants. This transition payment will end on 1 July 2008
          (Section 1061ZAAR).

        The Government has also stated that dismantling the CDEP scheme
        will promote interaction with the ordinary labour market, in a move to shift
        Indigenous people into the ‘real economy’.

        However, current research and statements by government ministers themselves
        reveal that the policy of dismantling CDEP is actually 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. However, the
        government expects that only about 2,000 CDEP participants will obtain
        ‘real work’.[120]

        It follows that the remaining 5,500 people are not expected to find
        sustainable employment and will remain on Work for the
        Dole.[121] Further, it is
        estimated that the Indigenous unemployment rate in the NT will rise from its
        current level of 15.7% to over
        50%.[122]

        The reason that relatively few CDEP participants are expected to find
        ‘real jobs’ is due to the fact that the overwhelming majority (90%)
        live in prescribed communities in remote areas of the
        NT.[123] These are small
        communities, in remote or very remote areas with a limited economic base. Most
        struggle to maintain a viable commercial economy.

        According to the National Aboriginal and Torres Strait Islander Social Survey
        of 2002, 28.9% of people in remote Aboriginal communities in the Northern
        Territory are on CDEP, with over 50% on government pensions and
        allowances.[124]

        An audit of employment opportunities for Indigenous people in 52 remote
        communities in the Northern Territory was undertaken by the Local Government
        Association of the Northern Territory (LGANT) in
        2006.[125] 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.

        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.[126]

        There is also concern that following the abolition of CDEP, people’s
        income will be significantly reduced. This could occur for a number of reasons.

        First, the vast majority (85-90%) of CDEP participants work more than the
        minimum 15 hours per week and earn on average about 60% more than the income of
        an unemployed person.[127] Secondly, once they become unemployed, if they do not fulfil the normal
        participation requirements, such as looking for work, training or participating
        in work for the dole programs, they will be ‘breached’ and have
        their social security payments frozen. In both cases this decline in income
        could have serious consequences for the ability of parents or carers to provide
        for their families.

        It is worthwhile to note that the Social Security legislation does attempt to
        provide for the move from the CDEP scheme into the ‘mainstream’
        employment market by its provision of a ‘CDEP transition payment’.
        According to the legislation, the purpose of the payment is to ensure that
        general standards of living do not drop by meeting any shortfall in welfare
        payments that Indigenous people would otherwise receive had they been
        participating in the CDEP scheme.

        This payment is only designed to be provided until 30 June 2008. After that
        time, former CDEP participants will be expected to have found employment, or
        else they will remain on regular levels of income support. It seems unlikely
        that this is a sufficient time period to expect local economies to have adapted
        to cope with the additional numbers of individuals seeking employment.

        The abolition of CDEP raises a range of human rights concerns.

        It affects the right of Indigenous people to an adequate standard of living.
        This can primarily be tied to an acceptable level of income as well as
        unemployment. It is well known that unemployment can create additional family
        pressures and general social unrest in a community, especially when the effects
        of long-term unemployment such as depression and a sense of hopelessness are
        evident. It is therefore possible that increased unemployment in communities
        will increase, rather than decrease, the risk of family violence.

        As well as CDEP programs providing employment, many communities rely on CDEP
        organisations to provide essential services. Some services currently provided by
        CDEP organisations are critical to improving law and order or the health of the
        community, such as night patrols, nutritional programs, garbage collection and
        sanitation programs. To the best of the available information, no new funds have
        been diverted to infrastructure and capacity building in the communities which
        will eventually find their primary service providers phased out as a result of
        the loss of CDEP.

        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, all of which would also suffer unless significant funds are
        diverted into improving the basic infrastructure and utilities of those
        locations.

        The flexibility of the CDEP scheme has allowed Indigenous people considerable
        choice in deciding when and for how long they work each week. This in turn has
        allowed people to undertake a range of cultural activities such as participation
        in ceremonies, fishing and hunting, as well as art. It is credited with
        facilitating the sustainability of a flourishing Indigenous art industry in the
        NT. It is estimated that most of the 5,000 Indigenous artists in the NT, as well
        as 400 community-based rangers in the Top End, are all CDEP
        participants.[128]

        This flexibility and opportunity to structure employment around cultural
        pursuits is not characteristic of mainstream employment opportunities. There is
        concern that these cultural responsibilities and the associated economic
        independence they have brought will be significantly curtailed by the abolition
        of the CDEP program.

        The government has said that the abolition of the CDEP program is part of its
        ‘normalisation’
        policy.[129] This policy
        encourages Indigenous people to leave remote communities and settle in
        ‘emerging towns’ where services such as housing, schools and
        healthcare can be provided more cheaply. However, the ‘urban drift’
        which is likely to occur as Indigenous people find that they are unable to
        access employment on their traditional country will adversely impact on their
        ability to fully enjoy their cultural rights and fulfil the associated
        responsibilities.

        The CDEP or a similar scheme should be available in communities to provide
        purposeful work on useful community projects for people who otherwise lack
        it.
        While problems may exist within certain individual CDEP organisations,
        given the enormous success of others in stimulating both employment and cultural
        opportunities within communities, it is clear that the dismantling of the entire
        CDEP program is throwing the baby out with the bathwater.

        It is highly questionable that every community will be able to generate the
        ‘long-term prospects for economic independence’ that the government
        intends. Therefore, any reform of CDEP programs must be done on a case-by-case
        basis, after consultation with the specific communities that it will affect, and
        in line with their aspirations.

        I note the importance and desirability of supporting people to progress
        towards mainstream employment where such employment is available, and believe
        that substantial training and mainstream work experience components should be
        built into CDEP programs where such projects would be appropriate. Those who
        already have the skills to operate local community service programs should be
        employed through mainstream funding arrangements rather than CDEP. Further, any
        new funding arrangements for employment services operating in the communities
        should acknowledge the benefits of local community control and involvement, the
        ‘distance from employment’ of many of their clients, and their need
        for ongoing support (including mentoring) to sustain jobs once they obtain
        them.

        Nevertheless, any reform of the CDEP scheme should be done with recognition
        of the fact that CDEP programs provide more than simply an alternative model of
        employment for Aboriginal people. In particular, the development of a stable
        paid workforce within the communities should be supported through:

        • adequate and sustained funding of services including both traditional
          infrastructure and services and management of traditional lands;
        • employment of local Aboriginal people to improve housing in the
          communities;
        • support for local business and employment development initiatives;
        • obligations and support for mainstream employers such as mining companies to
          employ local Aboriginal people rather than ‘fly in-fly out’
          arrangements; and
        • by assisting community members to live in areas where jobs exist but return
          regularly to their communities.

        Fundamentally, any policy changes being made to CDEP must come with
        a concomitant commitment to government accountability to monitor how any
        proposed shifts will proceed and who they will affect.

        It is highly undesirable for Aboriginal people in regional and remote
        communities to be placed in a position where they are unable to access the
        labour market, and also do not have the support of a program such as CDEP. This
        concern becomes manifest when it is considered that there seems to be little
        evidence that the mainstream job and unemployment markets are adequately
        equipped to cope with the specific needs and numbers of Indigenous people that
        will be moving into their systems.

        If the government is to continue their program to move people into the
        ‘mainstream’ economy, it is desirable that they put in place
        monitoring and review processes that demonstrate whether over time such
        arrangements are having a negative or a positive impact on Indigenous
        people’s employability and job retention rates.

        Such consistent monitoring should also be applied to the provision of the
        sorts of services which in the past have been provided by CDEP programs. In past
        statements, the government has said that critical services in communities will
        continue to be provided by CDEP until other arrangements are in place.

        However, in light of the Northern Territory and Federal governments’
        poor record of providing and maintaining services such as schools, roads and
        health services, it is desirable that there be an immediate plan detailing how
        such infrastructure and services will be rolled out in communities over time.
        Any such plan should include both immediate and long term commitments to
        funding, and should include inbuilt monitoring and review processes assessing
        the viability of any new programs over time.

        j) The introduction of alcohol bans in prescribed
        communities

        The Northern Territory National Emergency Response Act 2007 (Cth)
        makes it illegal to bring; possess; or consume alcohol in a ‘prescribed
        area’ (s 12(2)). It also makes it illegal to supply; transport with intent
        to supply; or possess with intent to supply alcohol to another person in a
        ‘prescribed area’ (s 12(4)).

        When the legislation refers to ‘prescribed areas’, it identifies
        the 73 Aboriginal communities identified as the subject of the NTNER measures
        generally. Of these communities, the legislation acknowledges that they are
        primarily townships on Aboriginal land, Aboriginal ‘Community Living
        Areas’ excised from pastoral leases and Aboriginal ‘town
        camps’ (s 4).

        In spite of the broad applicability of these measures, the legislation also
        contains a number of exemptions in certain situations:

        • There is an exemption for recreational boaters and commercial fishers while
          in a boat on waters in a ‘prescribed area’ (ss 12(3), 12(5)).
        • There is an exemption for ‘recreational activities’ organised by
          tour operators in prescribed areas, as long as alcohol is consumed in a
          responsible manner (ss 12(3A) – (3C), 12(5A)-(5C)), and as long as the
          area is subject to a Ministerial declaration that such an exemption can apply
          (s12(8A)).
        • Alcohol may still be available in ‘prescribed areas’ where there
          is an existing license or permit (ss 13, 14). The effect of this provision may
          be that the bans might not be applied to licensed roadhouses or venues, but only
          be enforced against outlets providing takeaway alcohol for consumption on
          traditional lands. The existing licenses or permits may, however, be overturned
          by the Commonwealth Minister or limited (ss 13(4), 13(5), 14(3)).
        • The Commonwealth Minister has the power to declare that alcohol restrictions
          in all or part of a prescribed area shall no longer have effect, if he or she is
          satisfied that there is no need to keep the measures in place (s19(1)).

        In order that the sale and consumption of alcohol can be monitored,
        Part 2 of the Act declares that people selling take-away alcohol in the Northern
        Territory must require the purchaser to produce proof of identity; record the
        name and address of the purchaser; and record the place where the purchaser
        proposes to consume the alcohol (s 20). This applies if the transaction involves
        a purchase price of $100 or more; or more than 5 litres of wine in a single
        container; or 2 or more containers of wine of at least 2 litres (see Division 3A
        of Part 2).

        In addition to the alcohol bans, in mid-2007 the Minister for Health also
        removed the existing licensing approvals for the importation of kava (which has
        used by many Indigenous communities in the East Arnhem land region predominately
        as an alternative to alcohol). This negates the strict usage regime that exists
        under the Kava Management Act 1998 (NT) and will have a flow on impact to
        alcohol usage in this region.

        The introduction of bans on alcohol in Indigenous communities through the NT
        intervention has received a lot of public notice. It has been criticised for a
        range of practical reasons, including the ineffectiveness and burden of the
        system for registering all alcohol purchases, as well as the clearly racially
        based nature of the scheme (exemplified by the introduction of exemptions for
        tourists and by boaters on
        waters).[130]

        The reality of the approach adopted by the federal government is, however,
        that it is misconceived and has threatened undoing more than two decades of
        achievements in Territory communities in dealing with alcohol.

        As Maggie Brady, an internationally renowned researcher on the impacts of
        alcohol in Indigenous communities, explains:

        A fair amount of grandstanding accompanied Minister Mal Brough’s
        announcement of the bans on alcohol on Aboriginal land, as if to suggest that
        all were thoroughly soaked in grog, or that they allowed easy access to alcohol.

        This is a little strange considering that most Aboriginal land in the
        Territory was already dry. There were already 107 general restricted areas, all
        on Aboriginal land, and all in non urban areas (except for one town camp in
        Alice Springs). Only 15 of these 107 allow for liquor in any shape or form. Some
        of the 15 have permits allowing consumption at home, or for sale away from the
        premises; some have clubs or canteens with on-premises sales only, while others
        have both on and off-premises sales. Of the ‘new’ bans imposed by
        the Minister, the only genuinely new regulation is that which imposes an alcohol
        free status on the ‘town camps’ (living areas within town boundaries
        such as Alice Springs and Tennant Creek); there has been resistance to this from
        the relevant representative
        bodies.[131]

        Prior to the intervention, alcohol has been managed through a system of
        permits. This is discussed in the case study of the Umbakumba community alcohol
        management plan in Chapter 2 of this report.

        Communities with permits have controlled individual access to alcohol through
        Permit Committees involving representatives from across the community such as
        the police, the local school and council. As Brady explains:

        Their decisions are grounded in the principle that access to alcohol is a
        privilege and not a right, so that access to alcohol comes with conditions
        attached. Committees have the power (which is frequently enacted), to recommend
        to the NT Licensing Commission that a person’s permit be cancelled
        immediately if he/she causes drinking trouble.

        Arrangements such as these have come about after years of trial and error,
        consultation and experiment, and are an attempt to balance the rights of
        drinkers and non-drinkers alike. In a sense, they constitute a work-in-progress
        around the dilemma of trying to ‘live with alcohol’ in circumstances
        where people’s consumption is often heavy and
        explosive.[132]

        The NT intervention placed these processes at risk of continuing:

        Brough’s original plan for prohibition across Aboriginal lands would
        have swept all these permits and licences away. After representations from his own
        department and the NT Government, he has had to refine the plan to allow for the eight
        existing licensed clubs and the permits to continue. The NT Licensing Commission
        has since reviewed all existing licences and permits on Aboriginal-owned land and
        recommended that they stay in place. The Minister apparently has still not
        formally decided whether to accept these recommendations, and the NT has had to go
        ahead anyway and renew all existing permits, as time was running out for their
        renewal. The Minister has the power to override all these renewals - but so far
        has chosen not to do so.[133]

        In the 2006 publication Ending violence and abuse in Aboriginal and Torres
        Strait Islander Communities
        , HREOC noted that efforts to redress problems
        concerning alcohol from the side of reducing ‘supply’ could only be
        regarded as a situational crime prevention technique, rather than an underlying
        crime prevention technique.[134]

        What this means is that without a regime of programs to address the
        underlying factors that contribute to alcohol abuse, restrictions on the supply
        of alcohol to communities can only be of limited effect in reducing the
        associated criminal behaviour that is sought to be regulated.

        Simply restricting the supply of alcohol has also been shown to exacerbate
        existing social problems, such as displacement of violent offenders to areas
        where alcohol is more readily available, increased incarceration rates if
        measures to limit alcohol are strictly policed, increased use of substitute
        drugs that are potentially more harmful such as petrol sniffing and
        methamphetamine (‘ice’). Such an approach needs to be one of a suite
        of measures to tackle the effects of alcohol in NT communities.

        Maggie Brady notes that this approach adopted by the NT intervention
        legislation goes against international best practice and evidence about what
        works. She notes that the World Health Organisation has identified six policies
        to guide reducing alcohol related harm in measurable terms as follows:

        • Regulating the physical availability of alcohol - such as having a minimum
          age, restrictions on hours and days of sale, outlet density restrictions;
        • Dealing with taxation and pricing - price is the single most important
          determinant of per capita consumption;
        • Drinking and driving counter measures;
        • Treatment and early intervention - brief interventions for hazardous
          drinkers;
        • Education and persuasion - community mobilisation around abuse; and
        • Altering the drinking context - serving practices, training,
          enforcement.[135]

        She notes, ‘the Emergency Intervention (in the NT) has not
        addressed any of
        these’.[136]

        In order for alcohol bans to be effective in a long-term sense, they must be
        accompanied by significant investment in programs and infrastructure in the
        health sector. The necessity of these measures is underscored by the very real
        medical dangers that exist for Aboriginal people if bans are introduced without
        necessary services and expertise to help people safely withdraw from alcohol
        addiction.

        Accordingly, I remain concerned that the current measures dismiss much of the
        good work achieved by communities to restrict alcohol and ignore the root causes
        of alcohol abuse.

        HREOC has taken the position for over a decade that alcohol restrictions
        implemented with the full support of communities can qualify as a special
        measure under the RDA. Any initiative to overcome alcohol abuse must be taken as
        a part of a long term strategy, and with the support of the communities involved
        in its design and implementation.

        In responding to the NT intervention measures when announced, the Combined
        Aboriginal Organisations of the Northern Territory have also recommended that a
        community-based approach be taken to restrict alcohol consumption in the NT.
        They propose a long-term, preventative approach that is grounded in Indigenous
        participation and consent, and draws on successful community models.

        The CAO also emphasises the importance of culturally appropriate community
        education that is delivered by Indigenous staff, who are trained in how to offer
        young people active and healthy alternatives to drug and alcohol
        abuse.[137]

        Accordingly, given the extent of problems that can be caused by alcohol
        misuse, the objective of creating ‘dry’ communities is a worthwhile
        one for the Government to commit to. However, the approach adopted in the NT
        intervention legislation of blanket alcohol bans is a clumsy tool to effect this
        change and its effectiveness is in question.

        This aspect of the legislation should be subject to extensive review to
        consider whether the Commonwealth should instead take a stronger role in funding
        support measures to accompany dry community restrictions and the permit systems
        that have been introduced by the NT Liquor Commission over recent years.

        Consideration should be given as to whether the imposition of blanket bans on
        alcohol through the NT intervention legislation operates counter to its purpose
        and distorts existing efforts in communities. This could occur, for example, by
        encouraging migration into larger centres such as Alice Springs and exacerbating
        alcohol related issues in those centres, and alternatively by undermining
        existing community initiatives and disempowering communities in their
        efforts.

        top | contents

        Part 4: Ways forward – modifying the NT intervention
        measures so that they comply fully with Australia’s human rights
        obligations

        No one wants to see children abused, families destroyed, and the aspirations
        for a bright future dulled because hope has been overwhelmed by despair.

        Aboriginal children – wherever they live in Australia – deserve a
        future in which they have the same opportunity as other children to thrive,
        develop and enjoy life. They are entitled to such a future for no other reason
        than that they are human, born with dignity and in full equality to all other
        Australians.

        Such equality involves being able to live and grow in safety, without fear of
        violence or intimidation, within a thriving, caring and loving family unit, and
        according to your culture.

        It also involves living in an environment where individuals are able to
        exercise control over their own lives. Where they are able to make decisions and
        are responsible for those decisions and their impact on their family and the
        community in which they live. And where their choices are meaningfully backed up
        by the means to achieve them, such as access to basic services and the provision
        of education to both build dreams and hope, and create the personal capacity to
        achieve these.

        For many Indigenous children across Australia, such equality is a pipedream.
        For some, overwhelmed by environments of dysfunction, it is not even dreamed
        of.

        It is a tragic fact that an Aboriginal or Torres Strait Islander child born
        today does not have the same life chances as other Australian children.

        This is something that should not exist in 21st century Australia.
        And it is the defining challenge for our nation.

        All Australian governments should be committed to ensuring an equal start in
        life for Indigenous children. Without this, the most vulnerable members of our
        society are required to overcome adversity merely to access what others take for
        granted.

        It is with this challenge in mind that this report has analysed the
        intervention into Aboriginal communities in the Northern Territory.

        The NT intervention measures and human
        rights

        The particular focus of this report has been whether the NT intervention
        measures meet Australia’s human rights obligations and by doing so ensure
        that Aboriginal children and their families are treated with dignity and
        equality.

        The NT intervention measures raise many more complex issues than have been
        dealt with in this report. Some of those issues, particularly as they relate to
        building on the lessons of recent years for whole of government service
        delivery, have been addressed in other
        forums.[138]

        The starting point for determining the human rights implications of the NT
        intervention measures is to recognise that they are intended to address family
        violence and child abuse in Indigenous communities.

        The NT intervention has revealed a determined commitment across society to
        address the horrors of family violence and child abuse in Aboriginal communities
        in the Northern Territory and to create a better future.

        It is essential that governments undertake action to address violence and
        abuse, particularly when there is compelling evidence that it is widespread.
        Governments that fail to act in these circumstances would be in breach of their
        human rights obligations.

        The NT intervention presents an historic opportunity to deal with a tragedy
        that has existed for too long, and that has destroyed too many families and too
        many young Aboriginal lives.

        Accordingly, the intention of the NT intervention does not come into
        challenge in this report.

        What does come into question is whether the approach adopted to achieve this
        aim is suitable.

        Human rights obligations are not merely technical matters that sit distant
        from the day to day realities of life for Indigenous children and their
        families. The ability of children, their families and their communities to enjoy
        their human rights has a profound impact on the environment in which they live,
        grow and develop.

        It fundamentally impacts upon their hopes and aspirations, in empowering or
        disempowering them, and in supporting or restricting different life paths and
        ultimately the choices that people make about their futures.

        The haste with which the legislation underpinning the NT intervention
        measures was introduced has meant that there has been limited opportunity to
        consider the human rights implications of the approach adopted.

        The objective of this report, therefore, has been very narrowly focussed to
        scrutinise the legislative framework underpinning the NT intervention measures
        to establish their compliance or otherwise with human rights standards.

        The report has raised significant concerns about the consistency of the
        legislation underpinning the NT intervention with Australia’s human rights
        obligations.

        Throughout this report I have stressed that it is entirely inappropriate to
        seek to justify measures that breach human rights on the basis that they are
        taken in furtherance of other human rights considerations.

        Such a claim is not supported by human rights law, whether the measures are
        classified as an ‘emergency response’, as ‘special
        measures’ or more broadly as measures to protect the rights of children or
        rights to be free from violence.

        In particular, human rights law is clear that any measures must be
        non-discriminatory in their application and impact. This obligation is
        non-negotiable and unable to be deviated from.

        Put simply, all measures to address family violence and child abuse should
        themselves respect human rights. It would be outrageous to suggest that it is
        not possible to achieve this.

        The Human Rights and Equal Opportunity Commission maintains that the
        rationale behind the legislation - to protect children and to build capacity in
        Aboriginal communities – is one which can be undertaken without the need
        to resort to discrimination.

        The main concerns identified about the NT intervention legislation from a
        human rights perspective are as follows:

        • The NT legislation is inappropriately classified as a special
          measure.
          It is not possible to support the government’s contention
          that all of the measures contained in the NT intervention legislation can be
          justified as special measures. It is therefore also not possible to say that in
          its current form the legislation is consistent with the RDA.

          The measures contained in the legislation are ‘deemed’
          to be special measures despite there being no justification provided as to how
          the measures, individually and collectively, meet the specific criteria for a
          special measure.

          While it is possible to conceive how some of the individual measures
          contained within the legislative package may meet the first component of a
          special measure (namely, that they are capable of being defined as beneficial,
          even though they impose restrictions) it is still necessary to demonstrate that
          consultation has occurred and community consent has been sought to the
          introduction of such (restrictive) measures. This has not been provided for any
          of the measures, such as restrictions on alcohol and income management
          measures.

          Certain measures also do not meet the second criteria for a special measure
          as they are not appropriate and adapted to the end of child protection. These
          include the compulsory acquisition of property in circumstances where
          negotiations for a lease have not been sought from the landowners, as well as
          the changes made to the permit system. The scope of income management provisions
          – such as quarantining of 100% of welfare in some circumstances –
          may also not be an appropriate and adapted response. This limits the ability of
          these measures to be legitimately characterised as special measures under the
          RDA.

        • The NT intervention legislation contains a number of provisions that are
          racially discriminatory.
          There are also a number of provisions in the
          legislation that deny Aboriginal people in the Northern Territory democratic
          safeguards and human rights protections that exist for all other Territorians
          and Australians.

          Examples include the lack of merits review of decision making
          (often accompanied by the removal of Parliament’s scrutiny role over
          delegated legislation); removal of access to schemes for just terms
          compensation; exemptions from the application of all laws that deal with
          discrimination at the federal and territory level; and the removal of
          requirements to obtain consent for the management or control of Indigenous
          property.

          These provisions deny Aboriginal people in the NT procedural fairness and
          access to justice. They fundamentally undermine the integrity of the NT
          intervention and contradict the stated purpose of building respect for the rule
          of law.

        • The NT intervention removes protections against discrimination that
          occurs in the implementation of the intervention measures.
          Immunity is
          provided for any act of discrimination that occurs under the provisions of the
          legislation, as well as any act done ‘under or for the purposes of those
          provisions’. This impact is provided by explicitly preventing the
          application of the RDA, the Northern Territory Anti-Discrimination Act and in
          relation to the operation of welfare reform in Cape York, the Queensland
          Anti-Discrimination Act. It provides an extraordinarily broad exemption from
          protections of discrimination. It also does not require that acts that implement
          the legislation do so in a manner consistent with the stated purpose of the
          purported ‘special measure’.

        The report additionally identifies a range of specific concerns
        about the consistency of the income management regime with the rights to social
        security, privacy and non-discrimination; and the alcohol management regime with
        the right of non-discrimination.

        It also expresses concerns about the absence of effective participation of
        Indigenous peoples in decision making that affects them. While this concern
        applies to all the measures contained in the NT intervention legislation, it is
        of greatest concern in relation to dealings with Indigenous property (where the
        legislation exempt these measures from the requirement in section 10(3) of the
        RDA that no such measures be introduced that involve the management or control
        of Indigenous property without consent).

        The report also identifies a range of options to modify the intervention to
        ensure that it proceeds in a manner that is consistent with Australia’s
        human rights obligations.

        Modifying the NT intervention measures so that they comply
        with human rights – a ten point action plan for the future of Aboriginal
        children in the Northern Territory

        In this final section of this report I outline a Ten Point Action Plan for modifying the NT intervention so that it respects the human rights of
        Aboriginal people and treats us with dignity.

        This ten point plan is as follows:

        Action 1: Restore all rights to procedural fairness and external
        merits review under the NT intervention legislation;

        Action 2: Reinstate protections against racial discrimination in the
        operation of the NT intervention legislation;

        Action 3: Amend or remove the provisions that declare that the
        legislation constitutes a ‘special measure’

        Action 4: Reinstate protections against discrimination in the Northern
        Territory and Queensland

        Action 5: Require consent to be obtained in the management of
        Indigenous property and amend the legislation to confirm the guarantee of just
        terms compensation

        Action 6: Reinstate the CDEP Program and review the operation of the
        income management scheme so that it is consistent with human rights

        Action 7: Review the operation and effectiveness of the alcohol
        management schemes under the intervention legislation

        Action 8: Ensure the effective participation of Indigenous peoples in
        all aspects of the intervention – Developing Community Partnership
        Agreements

        Action 9: Set a timetable for the transition from an
        ‘emergency’ intervention to a community development
        plan

        Action 10: Ensure stringent monitoring and review processes.

        In putting forth this plan, I note that the newly elected federal government
        has emphasised the importance of ensuring that the NT intervention proceeds in a
        manner that is consistent with Australia’s human rights obligations. For
        example, they have stated that ‘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’.[139]

        Accordingly, this action plan provides a platform for the newly elected
        government to meet their stated commitments in relation to the NT intervention.

        The overall objective of this action plan is to remove the discrimination
        from the legislation and in its operation.

        There are three main ways that the NT intervention can be modified:

        • amending the NT intervention legislation;
        • utilising the powers provided under the legislation (predominately through
          powers to make non-reviewable legislative instruments, vested in the Minister
          for Indigenous Affairs); or
        • in the operation of the measures in communities.

        So long as the NT intervention legislation permits the conduct of
        racially discriminatory actions, it will lack legitimacy among Aboriginal people
        and communities as well as the broader Australian society. It will also leave
        Australia in breach of its international human rights obligations.

        In addition to identifying the necessary actions to be undertaken, I have
        also formally provided recommendations to the Attorney-General at the end of the
        chapter to implement these.

        Action 1: Restore all rights to procedural fairness and external merits
        review under the NT intervention legislation

        It is entirely unacceptable for the legislation to remove, or fail to
        provide, rights to external merits review of administrative decision making.
        This is particularly so given the significant impact that such decision making
        has on the lives of individuals who are affected. For example, a decision to
        quarantine 100% of your welfare entitlement, based on very loose criteria, would
        not be eligible for external administrative review.

        The Parliament should immediately repeal all provisions which deny external
        merits review. These provisions should be replaced with provisions which make
        explicit that merit review processes do apply.

        Action 2: Reinstate protections against racial discrimination in the
        operation of the NT intervention legislation

        The removal of the protection of the RDA undermines the credibility of the NT
        intervention measures and contradicts their intended beneficial purpose.

        It is entirely unacceptable to remove the protection of the RDA for any acts
        performed under or for the purposes of the NT intervention legislation. This is
        particularly given the broad discretion that the legislation vests in decision
        makers at various levels.

        For the RDA to apply to the exercise of discretion under the NT intervention
        legislation it would additionally require the insertion of a new clause
        requiring all acts authorised under the legislation to be undertaken
        consistently with the RDA. To be effective such a clause – known as a non-obstante clause – should be unequivocal that the provisions of
        the NT intervention legislation are subject to the provisions of the RDA.

        Action 3: Amend or remove the provisions that declare that the legislation
        constitutes a ‘special measure’

        As they presently stand, numerous measures introduced under the NT
        intervention legislation do not meet the criteria for a special measure.
        Accordingly, it is inappropriate for the following provisions to be retained in
        the legislation in their current form:

        • section 132(1), Northern Territory National Emergency Response Act
          2007
          (Cth);
        • section 4(1), Families, Community Services and Indigenous Affairs and
          Other Legislation Amendment (Northern Territory National Emergency Response and
          Other Measures) Act 2007
          (Cth); and
        • section 4(1), (2) and (4), and section 6, Social Security and Other
          Legislation Amendment (Welfare Payment Reform) Act 2007
          (Cth).

        The importance of these provisions is that they ‘deem’
        the measures to qualify as special
        measures.[140]

        If these provisions are to be retained, then they should:

        1. be amended to clarify that the measures in the legislation are intended to qualify as special measures, rather than deeming that they
          are in fact special measures; and
        2. be amended to require that in implementing the provisions of the legislation
          (including in the performance of ‘any act done under or for the purposes
          of those provisions’), all actions must be undertaken consistently with
          the intended beneficial purpose of the legislation – or in other words,
          consistent with the intended special measure.

        There is a need to ensure 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.

        Accordingly, it is necessary that provisions relating to income management,
        alcohol bans, changes to the permit system and compulsory acquisition are
        reviewed to establish whether they are appropriate and adapted responses to the
        objectives of the legislation. On the basis of this review, these provisions
        should be modified or repealed so that they comply with this requirement.

        As noted earlier in this chapter, I am of the view that the blanket removal
        of the permit system on roads, community common areas and other places is not an
        appropriate measure and does not have sufficient relationship to the purpose of
        the legislation to qualify as a special measure. In the absence of contrary
        evidence, these provisions should be repealed.

        There is also a pressing need for extensive consultation with Indigenous
        communities to explain these measures and the objects 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.

        Accordingly, the Minister for Indigenous Affairs should also direct that
        provisions relating to income management and alcohol bans be implemented with
        the full participation of Indigenous peoples. In particular, the Minister should
        direct all government officials that in implementing these provisions, processes
        for seeking consent of Aboriginal communities should be sought.

        Action 4: Reinstate protections against discrimination in the Northern
        Territory and Queensland

        The following provisions should be repealed to ensure the operation of
        Northern Territory laws that protect against discrimination in Aboriginal
        communities affected by the intervention measures:

        • section 133, Northern Territory National Emergency Response Act 2007 (Cth);
        • section 5, Families, Community Services and Indigenous Affairs and Other
          Legislation Amendment (Northern Territory National Emergency Response and Other
          Measures) Act 2007
          (Cth); and
        • section 5, Social Security and Other Legislation Amendment (Welfare
          Payment Reform) Act 2007
          (Cth).

        The NT intervention legislation also provides that the Minister for
        Indigenous Affairs can, by non-reviewable legislative instrument, declare that
        any Northern Territory or Queensland law related to discrimination continues to
        have effect in the
        communities.[141]

        As an immediate interim measure prior to repealing these provisions, the
        Minister should exercise her discretion to declare that the Anti-Discrimination Act 1992 (NT) does apply across all communities in
        the Northern Territory and reinstate protections against discrimination in all
        locations of the NT. The Anti-Discrimination Act 1991 (Qld) should
        similarly be reinstated in relation to welfare reforms in Cape York.

        Action 5: Require consent to be obtained in the management of Indigenous
        property and amend the legislation to confirm the guarantee of just terms
        compensation

        The Minister for Indigenous Affairs should direct public servants and
        Government Business Managers to conduct negotiations with Aboriginal communities
        to obtain access to Aboriginal land for infrastructure and related purposes
        rather than utilise the extensive powers to compulsorily acquire Aboriginal land
        through 5 year compulsory leases.

        The Minister should also exercise her discretion under Part 5 of the Northern Territory National Emergency Response Act 2007 (Cth) in a manner
        that does not affect the management or control of Aboriginal property without
        having obtained their consent. The Minister should also direct Government
        Business Managers to perform their duties in a manner that does not affect the
        management or control of Aboriginal property without having obtained their
        consent.

        The obtaining of consent in relation to Aboriginal property is necessary to
        ensure compliance with section 10(3) of the RDA. Measures which involve the
        management or control of Aboriginal property cannot be classified as a
        ‘special measure’ and so such consent is required to ensure
        consistency with the RDA.

        Similarly, sections 60 and 134 of the Northern Territory National
        Emergency Response Act 2007
        (Cth) should be amended in order to:

        • clarify that in the event of the compulsory acquisition of property,
          Aboriginal people have an entitlement to just terms compensation; and
        • provide the simplest and most accessible route for claiming just terms
          compensation (by removing the exemption from the Northern Territory (Self
          Government) Act 1978
          ).

        Action 6: Reinstate the CDEP Program and review the operation of
        the income management scheme so that it is consistent with human rights

        The government should continue to support the conversion of CDEP placements
        into paid employment or ‘real jobs’. Such a measure will only be
        possible for a small percentage of CDEP placements in remote communities and
        will also need to be supported by economic development strategies into the
        longer term.

        Accordingly, the CDEP scheme should also be reinstated in communities on a
        case by case basis.

        The Government should also explore introducing voluntary income management
        measures for CDEP participants. The Centrepay program in the Alice
        Springs Town Camps; the Cape York Family Income Management (FIM) project, and
        financial literacy programs operated by the Fred Hollows Foundation and Ian
        Thorpe’s Fountain for Youth provide some models for consideration.

        The provisions on income management in the NT intervention legislation should
        also be reviewed and amended to ensure that:

        1. these provisions are compatible with human rights obligations, such as those
          outlined in this report arising from the right to social security and to ensure
          that adequate protections are provided to protect the privacy of individuals in
          the handling of personal information;
        2. the participation of individuals in decision-making processes that affect
          their exercise of the right to social security is made an integral part of the
          NT intervention process into the future; and
        3. provisions relating to quarantining of welfare in circumstances of neglect
          or abuse, or poor school attendance, are appropriately targeted to achieve their
          stated purpose.

        I am confident that many Aboriginal communities would voluntarily
        participate in income management and financial literacy support programs that
        are appropriate and not punitive in character.

        Given the substantial administrative costs involved in administering the
        current income management process, and its widespread application without
        sufficient targeting of those in need, it may prove more beneficial into the
        long term to explore voluntary income management approaches. The significant
        administrative costs associated with the current process could then be
        re-directed to better targeted strategies to invest in communities and support
        their capacity.

        The Minister for Indigenous Affairs has powers under the Social Security
        and Other Legislation Amendment (Welfare Payment Reform) Act 2007
        (Cth) to
        exempt individuals from the mandatory income management regime. The Minister
        also has powers under the Northern Territory National Emergency Response Act
        2007
        (Cth) to remove communities from the list of ‘prescribed
        communities’ to which such arrangements apply.

        The Minister should exercise these powers and remove the application of the
        mandatory income management regime where individuals or communities as a whole
        have entered into voluntary income management arrangements which are targeted to
        need. This will provide communities with the incentive to negotiate voluntary
        arrangements so as to avoid the capricious application of the mandatory regime
        enacted through the NT intervention legislation.

        In particular, an emphasis on providing children with incentives to learn and
        developing methods of teaching that resonate with Indigenous students is
        preferable to measures that penalise parents. Such measures should be
        extensively trialled before options as punitive as income management of 100% of
        welfare entitlements are utilised.

        Action 7: Review the operation and effectiveness of the alcohol management
        schemes under the intervention legislation

        The process for banning alcohol in prescribed communities is complex and
        potentially works counter to measures that have been developed over time by the
        Northern Territory Liquor Commission in conjunction with Aboriginal communities.
        It is notable that the Liquor Commission process was in operation in nearly all
        of the communities subject to the NT intervention and that it is
        non-discriminatory in its application – whereas those provisions of the NT
        intervention legislation relating to alcohol bans are not.

        The provisions in the NT intervention legislation should be subject to
        extensive review to consider their workability and to provide an evidence base
        for determining whether the Commonwealth should instead take a stronger role in
        funding support measures to accompany dry community restrictions and the permit
        systems that have been introduced by the NT Liquor Commission over recent
        years.

        Consideration should be given as to whether the imposition of blanket bans on
        alcohol through the NT intervention legislation operates counter to its purpose
        and distorts existing efforts in communities. Consideration should also be given
        to the range of support measures, such as detox programs and counselling, needed
        in communities to complement alcohol management processes.

        Action 8: Ensure the effective participation of Indigenous peoples in all
        aspects of the intervention – Developing Community Partnership
        Agreements

        Many of the criticisms raised in this report share in common a concern about
        the lack of participation and involvement of Indigenous peoples in the design
        and implementation of the intervention measures.

        It is essential that the government modify the current approach to the
        intervention and ensure the participation of Indigenous peoples in its design,
        implementation and monitoring.

        Given the absence of this participation to date – especially in the
        formulation of the legislation – it is essential that Indigenous peoples
        in the NT can fully participate in the formal and informal evaluation of the
        intervention. Such participation will no doubt reveal practical issues about the
        implementation of the measures and will also enable better evidence to
        understand what works and why.

        There can be little doubt that Aboriginal people and their representative
        organisations across the Northern Territory would willingly be involved in a
        genuinely consultative process. Communities have consistently expressed their
        desire to be active participants in the longer-term measures that the Australian
        Government plans to take to prevent child abuse in their communities. On various
        occasions, Aboriginal leaders have pointed out the importance of acknowledging,
        learning from and building on the success stories that exist in many
        communities, whether they are in relation to night patrols, running dry
        communities, or mother and babies programs. They have also called on the
        Government to consult with them to develop:

        (a) more comprehensive plan and costed financial commitment that addresses
        the underlying issues within specific timeframes and has bi-partisan
        support....(with) (t)he performance of both governments and Aboriginal
        organisations... 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 would 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.[142]

        Aboriginal organisations in the Northern Territory have also emphasised that
        ultimate success in addressing child abuse and other manifestations of
        dysfunction in their communities will only be possible if Indigenous people in
        those communities have a real sense of ownership of and involvement in the
        measures that are taken. Ensuring that services and programs are designed and
        delivered in a manner that respects and incorporates Indigenous cultures and
        authority structures will be an important first step in this regard.

        Action 9: Set a timetable for the transition from an
        ‘emergency’ intervention to a community development plan

        Complementary to Action 8 above, the Government should set a timetable for
        transitioning the emergency intervention from its stabilisation phase to a
        community development phase.

        The community development phase should, as recommended by the Combined
        Aboriginal Organisations of the NT, involve the development of a more
        comprehensive plan and costed financial commitment that addresses the underlying
        issues within specific timeframes and has bi-partisan political support.

        A key feature identified in previous action items is also transitioning the
        intervention from a mandatory to a voluntary process. This is a transition from
        intervention to partnership.

        Such a partnership could be formalised through local level Community
        Partnership Agreements
        .

        The utilisation of such agreement making processes would enable a more
        holistic approach to the issues being faced by individual communities. It would
        also assist in ensuring transparency, identifying lines of accountability and
        aid formal evaluation within communities.

        The entering into Community Partnership Agreements could also provide
        the trigger for the Minister for Indigenous Affairs to exercise the ministerial
        discretions available under the intervention legislation to variously:

        • Remove the relevant community from the list of ‘prescribed
          communities’;
        • Remove the application of the alcohol management regime;
        • Remove the application of the income management regime;
        • And so forth.

        This could be done on the basis that the Minister is satisfied that
        alternative, community based and supported mechanisms are in place to deal with
        the issues of child protection, family violence and related community
        development needs.

        This would provide an incentive based model to reacting to violence
        and abuse, grounded in community development principles and the taking of
        ownership and responsibility by communities in partnership with the federal and
        territory governments.

        It is notable that the new government has stated that the aims of the
        intervention ‘cannot be achieved unless the Commonwealth, after dialogue
        and genuine consultation with affected Aboriginal communities, sets out a
        comprehensive long term plan’. They have also acknowledged 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.[143]

        Community Partnership Agreements could provide a vehicle to meet these
        objectives.

        Action 10: Ensure stringent monitoring and review processes

        Give the complexity of the NT intervention measures and their potential to
        negatively impact on the human rights of Indigenous peoples, it is essential for
        transparent monitoring and evaluation processes to be set in place and for
        regular review to take place.

        In order for the intervention measures to meet the ‘special
        measures’ criteria they must also be monitored over time to ensure that
        the specific measures which are enacted are appropriate and adapted to enhancing
        the rights of children, and that they protect against family violence in the
        prescribed communities to which they apply.

        12 months after the enactment of the legislation, an independent review
        should take place to ensure that the goals of the legislation are being achieved
        in a manner that is consistent with human rights, and allow for any negative
        consequences to be identified and addressed as soon as
        possible. Such a review should cover the efficacy of
        the substance of all legislative provisions which comprise the intervention
        legislation and their operation.

        Such monitoring is essential given the intent that some aspects of the
        legislation relating to income management might be adopted nationally from
        2009.

        The terms of reference of such a review should be broad in scope so that it
        can consider:

        • Whether the legislation is achieving its intended purposes;
        • Whether there have been unintended negative consequences;
        • Assess appropriate alternative approaches or mechanisms that would enhance
          the ability of the legislation to achieve its purpose; and
        • Require consultation with Indigenous peoples in the review process.

        Fundamental to the success of such a review will be the involvement
        and input of Aboriginal people from the communities involved. Ongoing
        participation from individuals on the ground will not only ensure the legitimacy
        of the measures undertaken, it will also help to contribute to their ongoing
        success as the needs and aspirations of communities change over time.

        Conclusion and recommendations

        As it stands, there is a need for substantial change for the NT intervention
        measures to be considered consistent with Australia’s international human
        rights obligations. This report has outlined ten steps to modifying the
        intervention so that it is consistent with these obligations and ensures
        Indigenous individuals in Aboriginal communities in the NT equal treatment and
        full human dignity.

        I make the following recommendations for implementing this ten point action
        plan, and to ensure consistency with Australia’s human rights
        obligations.

        Recommendation 3: Provision of external merits review of
        administrative decision-making

        That the Parliament should immediately repeal all provisions which deny
        external merits review. These provisions should be replaced with provisions
        which make explicit that merit review processes do apply. This includes, but is
        not limited to, the following provisions:
        • sections 34(9), 35(11), 37(5), 47(7), 48(5) and 49(4) of the Northern
          Territory National Emergency Response Act 2007
          (Cth) relating to
          determinations about Indigenous land;
        • section 78 and sections 97 and 106 of the Northern Territory
          National Emergency Response Act 2007
          (Cth) in relation to decisions by the
          Minister to suspend all the members of a community government council, and
          decisions of the Secretary of the Department of FACSIA in relation to community
          store licences respectively; and
        • new section144(ka) of the Social Security (Administration) Act 1999 (enacted by the Social Security and other legislation amendment (Welfare
          Payment Reform) Act 2007
          (Cth) ) in relation to the right to seek a review
          by the Social Security Review Tribunal of decisions that relate to income
          management.
        Note on implementation: This action can only be
        achieved through amendments to the legislation.

        Recommendation 4: Reinstatement of the Racial Discrimination Act 1975 (Cth)

        That the Parliament immediately repeal the following provisions that exempt
        the NT measures from the protections of the Racial Discrimination Act 1975 (Cth):
        • section 132(2), Northern Territory National Emergency Response Act
          2007
          (Cth);
        • section 4(2), Families, Community Services and Indigenous Affairs and
          Other Legislation Amendment (Northern Territory National Emergency Response and
          Other Measures) Act 2007
          (Cth); and
        • section 4(3),(5) and section 6(3), Social Security and Other Legislation
          Amendment (Welfare Payment Reform) Act 2007
          (Cth).
        Note on implementation: This action can only be
        achieved through amendments to the legislation.

        Recommendation 5: Subject the NT intervention measures to the safeguards
        of the Racial Discrimination Act 1975 (Cth)

        That the Parliament amend each of the following Acts by inserting a non-obstante clause in order to ensure that the NT provisions are subject
        to the protections of the RDA in the exercise of all discretions under the
        legislation:
        • section 132, Northern Territory National Emergency Response Act 2007 (Cth);
        • section 4, Families, Community Services and Indigenous Affairs and Other
          Legislation Amendment (Northern Territory National Emergency Response and Other
          Measures) Act 2007
          (Cth); and
        • section 4 and section 6, Social Security and Other Legislation Amendment
          (Welfare Payment Reform) Act 2007
          (Cth).
        Section 4 of the Social Security Legislation Amendment (Newly
        Arrived Residents’ Waiting Periods and Other Measures) Act 1997
        (Cth)
        provides a model for such a clause.

        Such a clause might read as follows:

        ‘Without limiting the general operation of the Racial
        Discrimination Act 1975
        in relation to the NTNER measures, the provisions of
        the Racial Discrimination Act 1975 are intended to prevail over the NTNER
        Act. The provisions of this Act do not authorise conduct that is inconsistent
        with the provisions of the Racial Discrimination Act 1975’.

        Note on implementation: This action can only be achieved
        through amendments to the legislation.

        Recommendation 6: Amend the ‘special measures’ provisions of
        the NT legislation

        That the Parliament amend the following provisions of the NT intervention
        legislation to clarify the status of the measures as ‘special
        measures’ under the RDA:
        • section 132(1), Northern Territory National Emergency Response Act
          2007
          (Cth);
        • section 4(1), Families, Community Services and Indigenous Affairs and
          Other Legislation Amendment (Northern Territory National Emergency Response and
          Other Measures) Act 2007
          (Cth); and
        • section 4(1), (2) and (4), and section 6, Social Security and Other
          Legislation Amendment (Welfare Payment Reform) Act 2007
          (Cth).
        In particular, Parliament should:
        • remove those provisions which deem the measures to constitute a
          special measure;
        • replace these provisions with language which clarifies that the measures are intended to constitute special measures; and
        • insert new provisions that require that in the performance of any actions
          undertaken to implement the measures contained in the legislation, the intended
          beneficial purpose of the legislation must be a primary consideration.
        Note on implementation: This action can only be
        achieved through amendments to the legislation.

        Recommendation 7: Subject the intervention measures to regular
        monitoring and review to establish whether they meet the purposes of a
        ‘special measure’

        That the Government ensure strict monitoring and evaluation provisions to
        ensure that only those measures that are appropriate and adapted to the purpose
        of child protection are maintained. Such monitoring should particularly focus on
        measures relating to income management, alcohol bans, changes to the permit
        system and compulsory acquisition of Aboriginal land.

        Note on implementation: This action can be achieved through
        the exercise of powers vested in the Minister for Indigenous Affairs. It may
        require amendments to the legislation by Parliament at a future time.

        Recommendation 8: Application of the Anti-Discrimination Act 1992 (NT)

        a) That the Minister for Indigenous Affairs declare that the Anti-Discrimination Act 1992 (NT) continues to have effect in all prescribed communities under the NT intervention legislation and that the Anti-Discrimination Act 1991 (Qld) continues to be of effect in relation to welfare reforms in Cape York.

        b) That Parliament repeal the following provisions of the legislation to remove this restriction on Indigenous peoples right to obtain remedy:
        • section 133, Northern Territory National Emergency Response Act 2007 (Cth);
        • section 5, Families, Community Services and Indigenous Affairs and Other
          Legislation Amendment (Northern Territory National Emergency Response and Other
          Measures) Act 2007
          (Cth); and
        • section 5, Social Security and Other Legislation Amendment (Welfare
          Payment Reform) Act 2007
          (Cth).
        Note on implementation: This action can be achieved
        in the short term through the exercise of powers vested in the Minister for
        Indigenous Affairs. This should be backed up by amendments to the legislation by
        Parliament to confirm that discriminatory provisions have no place in Australian
        law and to ensure full compliance with Australia’s human rights
        obligations.

        Recommendation 9: Negotiate with Aboriginal owners in relation to access
        to Aboriginal land

        That the Minister for Indigenous Affairs place a moratorium on 5 year
        compulsory leases over Aboriginal land. Further, that the Minister direct public
        servants and Government Business Managers to conduct negotiations with
        Aboriginal communities to obtain access to Aboriginal land for infrastructure
        and related purposes.

        Note on implementation: This action can be achieved through
        the exercise of Ministerial discretion (such as by choosing to not exercise her discretion to compulsorily acquire property and instead instructing government officials to negotiate with Aboriginal communities).

        Recommendation 10: Amend the legislation to ensure the entitlement to ‘just terms’ compensation

        That the Parliament amend sections 60 and 134 of the Northern Territory
        National Emergency Response Act 2007
        (Cth) to remove the exemption from
        section 50(2) the Northern Territory (Self Government) Act 1978).

        Note on implementation: This action can only be achieved
        through amendments to the legislation.

        Recommendation 11: Reinstate CDEP and develop community based options
        for income management

        a) That the CDEP scheme be reinstated in the Northern Territory, with
        community economic development plans developed into the future to ensure the
        transition from CDEP into ‘real jobs’ where possible.

        b) That voluntary income management measures be introduced for CDEP
        participants.

        c) That the income management regime under the Social Security and Other
        Legislation Amendment (Welfare Payment Reform) Act 2007
        (Cth) be reviewed
        and amended to ensure compliance with human rights standards as outlined in this
        report.

        d) That the government support the development and introduction of
        voluntary income management and financial literacy programs for welfare
        recipients. When such programs are operational in prescribed Aboriginal
        communities, individuals and potential communities should be exempted by the
        Minister from the mandatory income management regime as set out in the Social
        Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007
        (Cth).

        Note on implementation: Aspects of this action require
        amendments to the legislation, while others can be achieved through the exercise
        of Ministerial discretion or at the operational level in delivering services to
        communities.

        Recommendation 12: Supporting community based initiatives for alcohol
        management

        That the alcohol management scheme established in the Northern Territory
        National Emergency Response Act 2007
        (Cth) be reviewed to establish its
        workability as well as whether it adds value beyond the measures relating to dry
        community restrictions and permits adopted by the Northern Territory Liquor
        Commission.

        That all alcohol management processes should occur consistent with the RDA.
        Central to this is ensuring the participation of Indigenous peoples in
        developing, implementing and monitoring alcohol management plans.

        Note on implementation: Aspects of this action may ultimately
        require amendments to the legislation, while others can be achieved through the
        exercise of Ministerial discretion or at the operational level in delivering
        services to communities.

        Recommendation 13: Ensuring Indigenous participation and developing
        community partnerships

        That the Minister for Indigenous Affairs direct the NT Emergency Response
        Taskforce and all public servants to ensure the participation of Indigenous
        peoples in all aspects of the design, delivery and monitoring of the
        intervention measures.

        That the Minister task Government Business Managers operating at the local
        level to develop Community Partnership Agreements as the basis for
        shared action by the community and governments. Such agreements should be
        developed with the express purpose of setting a comprehensive community
        development plan for communities as an alternative that can ultimately supersede
        the application of various intervention measures (such as mandatory income
        management).

        Note on implementation: This action can primarily be achieved
        through the exercise of Ministerial discretion or at the operational level in
        delivering services to communities. A process of Community Partnership
        Agreements may ultimately require amendments to the legislation in the
        future.

        Recommendation 14: Monitoring and evaluation of the NT
        intervention

        That the intervention measures be independently monitored 12 months
        following their commencement to establish whether the legislation is achieving
        its intended purposes; is resulting in unintended negative consequences; and

        to assess appropriate alternative approaches or mechanisms that would enhance
        the ability of the legislation to achieve its purpose.

        Such a review should ensure the full participation of Indigenous peoples in
        affected communities in the NT and should also address the specific concerns
        raised in this report relating to human rights compliance

        Note on implementation: This action can primarily be achieved
        through the exercise of Ministerial discretion or at the operational level in
        delivering services to communities.

        In addition to the 14 recommendations contained in this report, I also
        include one follow up action. This indicates what action governments can expect
        from the Social Justice Commissioner to follow up the issues raised in this
        report.

        Follow Up Action by the Social Justice Commissioner

        The Social Justice Commissioner will, in the next Social Justice
        Report
        , report on the actions taken by the government to address the
        concerns identified in this report relating to non-compliance with
        Australia’s human rights obligations and the Racial Discrimination Act
        1975 (
        Cth). In particular, the Social Justice Commissioner will identify the
        response of the Australian Government to the 14 recommendations contained in
        this report.

         

        top | contents


        Footnotes

        • [1] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release,
          21 June 2007, available online at:
          http://www.fahcsia.gov.au/internet/minister3.nsf/
          content/emergency_21june07.htm
          ,
          accessed 18 October 2007.
        • [2] Human Rights and Equal Opportunity Commission, ‘A human rights based
          approach is vital to address the challenges in Indigenous communities’, Press Release, 26 June 2007, available online at:
          www.humanrights.gov.au/about/media/media_releases/2007/45_07.html,
          accessed 9 November 2007.
        • [3] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release,
          21 June
          2007.
        • [4] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release,
          21 June
          2007.
        • [5] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release,
          21 June
          2007.
        • [6] Department of Families, Community Services and Indigenous Affairs, Transcripts: Mal Brough discusses the Northern Territory National Emergency Response
          Legislative Program
          , 6 August 2007, available online at:
          http://www.facsia.gov.au/internet/minister3.nsf/content/nter_6aug07.htm,
          accessed 15 January 2008.
        • [7] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release,
          21 June 2007. Note that this and other statements by the Minister do not cite
          the full recommendation from the Little Children are Sacred report, which
          is significantly different in process.
        • [8] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), Hansard, House of Representatives, 21 June 2007,
          p76.
        • [9] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release,
          21 June
          2007.
        • [10] Anderson, P. and Wild, R., Ampe Akelyernemane Meke Mekarle ‘Little
          Children are Sacred’ Report of the Northern Territory Board of Inquiry
          into the Protection of Aboriginal Children from Sexual Abuse
          , Darwin 2007,
          p12.
        • [11] Anderson, P. and Wild, R., Ampe Akelyernemane Meke Mekarle ‘Little
          Children are Sacred’ Report of the Northern Territory Board of Inquiry
          into the Protection of Aboriginal Children from Sexual Abuse
          ,
          2007.
        • [12] Anderson, P. and Wild, R., Ampe Akelyernemane Meke Mekarle ‘Little
          Children are Sacred’ Report of the Northern Territory Board of Inquiry
          into the Protection of Aboriginal Children from Sexual Abuse
          , 2007,
          p21.
        • [13] Anderson, P. and Wild, R., Ampe Akelyernemane Meke Mekarle ‘Little
          Children are Sacred’ Report of the Northern Territory Board of Inquiry
          into the Protection of Aboriginal Children from Sexual Abuse
          , 2007,
          p50.
        • [14] Anderson, P. and Wild, R., Ampe Akelyernemane Meke Mekarle ‘Little
          Children are Sacred’ Report of the Northern Territory Board of Inquiry
          into the Protection of Aboriginal Children from Sexual Abuse
          , 2007,
          p50.
        • [15] Anderson, P. and Wild, R., Ampe Akelyernemane Meke Mekarle ‘Little
          Children are Sacred’ Report of the Northern Territory Board of Inquiry
          into the Protection of Aboriginal Children from Sexual Abuse
          , 2007, pp50-56.
          These principles were drawn from the Western Australian Law Reform
          Commission’s final report into Aboriginal Customary Law: Western
          Australian Law Reform Commission, The Interaction of Western Australian Law
          with Aboriginal Law and Culture
          , WALRC Perth, 2006,
          pp34-40.
        • [16] The Minister for Indigenous Affairs stated publicly that neither he nor the
          federal government had seen the report prior to its public
          release.
        • [17] Brough, M., (Minister for Families, Community Services and Indigenous Affairs),
          ‘Second reading speech: Appropriation (Northern Territory National
          Emergency Response) Bill (No.1) 2007-2008’, Hansard, House of
          Representatives, 7August 2007, p22.
        • [18] Brough, M., (Minister for families, Community Services and Indigenous Affairs),
          ‘Second reading speech: Appropriation (Northern Territory National
          Emergency Response) Bill (No.1) 2007-2008’, Hansard, House of
          Representatives, 7 August 2007, p23.
        • [19] Brough, M., (Minister for Families, Community Services and Indigenous Affairs),
          ‘Second reading speech: Appropriation (Northern Territory National
          Emergency Response) Bill (No.1) 2007-2008’, Hansard, House of
          Representatives, 7 August 2007, p24.
        • [20] Australian Government, Government delivers long-term commitment to housing,
          jobs, health and police as part of long term commitment to NT
          , Media
          Release, 18 September 2007, available online at:
          http://www.facsia.gov.au/internet/minister3.nsf/
          content/funding_18sep07.htm
          ,
          accessed 23 January 2008.
        • [21] Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, available online at:
          http://www.aph.gov.au/Senate/committee/legcon_ctte/
          nt_emergency/index.htm
          ,
          accessed 2 November 2007.
        • [22] Parliamentary Library, ‘Families, Community Services and Indigenous
          Affairs and Other Legislation Amendment (Northern Territory National Emergency
          response and Other Measures) Bill 2007’, 13 August 2007, no.21, 2007-2008,
          p4.
        • [23] Parliamentary Library, ‘Northern Territory National Emergency Response
          Bill’, 13 August 2007, Bills Digest, no.28, 2007-2008,
          p20.
        • [24] On requests for delay to the passing of the legislation to allow greater time
          for consultation, see: Central Land Council, Submission to the Senate
          Standing Committee on Legal and Constitutional Affairs
          , 10 August 2007, p2,
          available online at:
          http://www.aph.gov.au/Senate/committee/legcon_ctte/
          nt_emergency/submissions/sub84.pdf
          ,
          accessed 2 November 2007; Combined Aboriginal Organisations of the Northern
          Territory, Submission to the Senate Standing Committee on Legal and
          Constitutional Affairs
          , 10 August 2007, p7, available online at:
          http://www.aph.gov.au/Senate/committee/legcon_ctte/
          nt_emergency/submissions/sub125.pdf
          ,
          accessed 2 November 2007; Reconciliation Australia, Reconciliation Australia
          calls for non-urgent aspects of legislation to be deferred
          , Media Release, 7
          August 2007; Secretariat of National Aboriginal and Islander Child Care, Delay the Northern Territory Intervention Legislation: Our children deserve
          better
          , Media Release, 7 August 2007.
        • [25] ‘Additional comments by the Australian Labor Party’, contained in
          Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, p37.
        • [26] ‘Additional comments by the Australian Labor Party’, contained in
          Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, p38.
        • [27] ‘Additional comments by the Australian Labor Party’, contained in
          Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007,
          p38.
        • [28] ‘Additional comments by the Australian Labor Party’, contained in
          Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007,
          pp37-47.
        • [29] ‘Dissenting Report by the Australian Greens’, contained in Senate
          Standing Committee on Legal and Constitutional Affairs, Report on Social
          Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 and
          four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, pp37-80.
        • [30] Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, available online at:
          http://www.aph.gov.au/Senate/committee/legcon_ctte/
          nt_emergency/index.htm
          ,
          accessed 2 November
          2007.
        • [31] Brough, M., (Minister for Families, Community Service and Indigenous Affairs), Letter to Standing Committee on Legal and Constitutional Affairs, 16
          August
          2007.
        • [32] Senate Standing Committee on Legal and Constitutional Affairs, Report on
          Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory national emergency
          response
          , August 2007, pp10-11.
        • [33] Pearce, D. and Geddes R., Statutory Interpretation in Australia,
          6th edn., Butterworths, Sydney, 2006, para 4.36; Mabo v State of
          Queensland (No 1
          ) (1988) 166 CLR 186, per Deane J, p232.
        • [34] Human Rights and Equal Opportunity Commission, Submission to the Senate
          Standing Committee on Legal and Constitutional Affairs
          , 10 August 2007, p18
          available online at:
          http://www.aph.gov.au/senate/committee/legcon_ctte/
          nt_emergency/submissions/sub67.pdf
          ,
          accessed 23 November
          2007.
        • [35] Teori Tau v Commonwealth (1969) 119 CLR 564, p570. This statement was
          approved by the full court of the High Court in Northern Land Council v
          Commonwealth
          (1986) 161 CLR 1,
          p6.
        • [36] See for example: Northern Territory v GPAO (1998) 196 CLR 553; Spinks v Prentice (1999) 198 CLR 511; Re Governor, Goulburn
          Correctional Centre, Goulburn; Ex parte Eastman
          (1999) 200 CLR 322; and Newcrest Mining v Commonwealth (1997) 190 CLR 513.
        • [37] At the time of writing, one such challenge had already been lodged by the
          Bawinanga Aboriginal Corporation on 25 October 2007.
        • [38] Parliamentary Library, ‘Northern Territory National Emergency Response
          Bill’, 13 August 2007, Bills Digest no 28, 2007-2008,
          p19.
        • [39] Brough, M., (Minister for Families, Community Services and Indigenous Affairs),
          ‘Second reading speech: Social Security and other Legislation Amendment
          (Welfare Payment Reform) Bill 2007’, Hansard, House of
          Representatives, 7 August 2007,
          p6.
        • [40] ‘Indigenous abuse crackdown earns mixed response’, ABC Online 22 June 2007, available online at: http://abc.net.au/news/stories/2007/06/21/1958547.htm,
          accessed 22 November
          2007.
        • [41] See for example: Macklin, J., (Shadow Minister for Indigenous Affairs and
          Reconciliation), Labor offers bipartisan in-principle support on Indigenous
          child abuse measures
          , Media Release, 21 June
          2007.
        • [42] ‘Aboriginal leaders want more services’, The Sydney Morning
          Herald
          (Sydney) 21 June 2007, available online at:
          http://www.smh.com.au/news/National/Aboriginal-leaders-want-more-services/2007/06/21/1182019288480.html,
          accessed 2 November 2007.
        • [43] ‘National emergency: PM acts’, The Age (Melbourne) 22 June
          2007, available online at:
          http://www.theage.com.au/news/national/howard-acts-on-nt-emergency/2007/06/21/1182019284327.html?page=3,
          accessed 2 August 2007.
        • [44] ‘National emergency: PM acts’, The Age (Melbourne) 22 June
          2007, available online at:
          http://www.theage.com.au/news/national/howard-acts-on-nt-emergency/2007/06/21/1182019284327.html?page=3,
          accessed 2 August 2007.
        • [45] The Australian Indigenous Doctor’s Association, Indigenous doctors
          demand real and long term results in Aboriginal and Torres Strait Islander
          kids’ health
          , Media Release, 22 June 2007.
        • [46] Anderson, I., ‘Remote Communities: Unexplained Differences’ Australian Policy Online, 26 June 2007, available online at: http://www.apo.org.au/webboard/comment_results.chtml?filename_num=161613,
          accessed 17
          November.
        • [47] Open letter to the Hon Mal Brough MP, 26 June 2007, available online at: http://www.acoss.org.au/News.aspx?displayID=99&articleID=2683,
          accessed 5 December 2007.
        • [48] Human Rights and Equal Opportunity Commission, A human rights based approach
          is vital to address the challenges in Indigenous communities
          , Press Release,
          26 June 2007, available online at:
          http://www.humanrights.gov.au/about/media/media_releases/2007/45_07.html,
          accessed 3 December 2007.
        • [49] See: www.oipc.gov.au/documents/OIPC_EvaluationPlan_23May.pdf.
          For commentary on the plan see: Social Justice Report 2006,
          pp64-68.
        • [50] Calma, T, Continuity and change through the new arrangements – Lessons
          for addressing the crisis of child sexual abuse in the Northern Territory
          ,
          Speech - Launch, Social Justice Report and Native Title Report 2006, 3 July 2007, p7.
        • [51]Calma, T, Continuity and change through the new arrangements
          – Lessons for addressing the crisis of child sexual abuse in the Northern
          Territory
          , Speech - Launch, Social Justice Report and Native Title
          Report 2006,
          3 July 2007,
          p12.
        • [52] Reconciliation Australia, Statement by Reconciliation Australia in Response
          to National Emergency Measures to Protect Aboriginal Children
          , Media
          Release, 22 June 2007.
        • [53] Combined Aboriginal Organisations of the Northern Territory, A proposed
          Emergency Response and Development Plan to protect Aboriginal children in the
          Northern Territory – A preliminary response to the Australian
          Government’s proposals
          , CAO Darwin 2007, available online at:
          http://www.snaicc.asn.au/news/documents/CAOreport8july.pdf,
          accessed 12 December
          2007.
        • [54] Combined Aboriginal Organisations of the Northern Territory, A proposed
          Emergency Response and Development Plan to protect Aboriginal children in the
          Northern Territory – A preliminary response to the Australian
          Government’s proposals
          , CAO Darwin 2007, p1, available online at:
          http://www.snaicc.asn.au/news/documents/CAOreport8july.pdf,
          accessed 12 December 2007.
        • [55] Combined Aboriginal Organisations of the Northern Territory, A proposed
          Emergency Response and Development Plan to protect Aboriginal children in the
          Northern Territory – A preliminary response to the Australian
          Government’s proposals
          , CAO Darwin 2007, p3, available online at:
          http://www.snaicc.asn.au/news/documents/CAOreport8july.pdf,
          accessed 12 December
          2007.
        • [56] Combined Aboriginal Organisations of the Northern Territory, A proposed
          Emergency Response and Development Plan to protect Aboriginal children in the
          Northern Territory – A preliminary response to the Australian
          Government’s proposals
          , CAO Darwin 2007, p3, available online at:
          http://www.snaicc.asn.au/news/documents/CAOreport8july.pdf,
          accessed 12 December 2007.
        • [57] Combined Aboriginal Organisations of the Northern Territory, A proposed
          Emergency Response and Development Plan to protect Aboriginal children in the
          Northern Territory – A preliminary response to the Australian
          Government’s proposals
          , CAO Darwin 2007, pp6-7, available online at:
          http://www.snaicc.asn.au/news/documents/CAOreport8july.pdf,
          accessed 12 December
          2007.
        • [58] Combined Aboriginal Nations of the Northern Territory, A proposed Emergency
          Response and Development Plan to protect Aboriginal children in the Northern
          Territory – A preliminary response to the Australian Government’s
          proposals
          , CAO Darwin 2007, p6, available online at:
          http://www.snaicc.asn.au/news/documents/CAOreport8july.pdf,
          accessed 12 December
          2007.
        • [59] Northern Territory Emergency National Response Bill 2007, Explanatory
          Memorandum, p76, available online at:
          www.austlii.edu.au/au/legis/cth/bill_em/ntnerb2007541/memo_0.html,
          accessed 20 November

          2007.

        • [60] Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory national emergency
          response
          , August 2007, available online at:
          http://www.aph.gov.au/Senate/committee/legcon_ctte/
          nt_emergency/index.htm
          ,
          accessed 2 November 2007.
        • [61] This is not intended to be an exhaustive list. Note that many human rights are
          inter-related and inter-dependant, and so other rights not listed here may
          impact on the enjoyment of rights to be free from violence and
          abuse.
        • [62] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
          Justice Report 2006,
          Human Rights and Equal Opportunity Commission, Sydney,
          pp3-5. Emphasis
          added.
        • [63] There are some limited exceptions to this including protection of the right to
          life and limits on free
          speech.
        • [64] This list is not intended to provide an exhaustive or definitive list of human
          rights obligations – it merely reflects the main principles that are of
          relevance and application to the NT
          situation.
        • [65] UN Human Rights Committee, General Comment 18: Non-discrimination, 1989, HRI/GEN/1/Rev.8, para 1,
          p185.
        • [66] Committee on the Elimination of All Forms of Discrimination, General Comment
          XXIII on the rights of indigenous peoples,
          1997, in HRI/GEN/1/Rev.8, para
          4(d),
          p256.
        • [67] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
          Justice Report 2006,
          Human Rights and Equal Opportunity Commission, Sydney,
          p7.
        • [68] Human Rights Committee, General Comment No.5, 1989, HRI/GEN/1/Re.8, para
          3,
          p166.
        • [69] Brough, M., (Minister for Families, Community Services and Indigenous Affairs),
          ‘Second reading speech: Appropriation (Northern Territory National
          Emergency Response) Bill (No.1) 2007-2008’, Hansard, House of
          Representatives, 7 August 2007,
          p10.
        • [70] Brough, M., (Minister for Families, Community Services and Indigenous Affairs),
          ‘Second reading speech: Appropriation (Northern Territory National
          Emergency Response) Bill (No.1) 2007-2008’, Hansard, House of
          Representatives, 7 August 2007,
          p16.
        • [71] Brough, M., (Minister for Families, Community Services and Indigenous Affairs),
          ‘Second reading speech: Appropriation (Northern Territory National
          Emergency Response) Bill (No.1) 2007-2008’, Hansard, House of
          Representatives, 7 August 2007, p16.
        • [72]Northern
          Territory Emergency National Response Bill 2007, Explanatory Memorandum,
          pp76-77, available online at:
          www.austlii.edu.au/au/legis/cth/bill_em/ntnerb2007541/memo_0.html,
          accessed 20 November 2007.
        • [73] Gordon, S., Chairperson, Northern Territory Emergency Taskforce, Senate
          Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, pp77-78, available online at:
          http://www.aph.gov.au/Senate/Committee/legcon_ctte/
          nt_emergency/report/report.pdf
          ,
          accessed 12 November 2007.
        • [74] Senate Standing Committee on Legal and Constitutional Affairs, Report on
          Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, pp 31-32, available online at:
          http://www.aph.gov.au/Senate/Committee/legcon_ctte/
          nt_emergency/report/report.pdf
          ,
          accessed 4 December 2007.
        • [75] See for example: Calma, T., (Aboriginal and Torres Strait Islander Social
          Justice and Race Discrimination Commissioner) Race Discrimination Act is a
          Vital safeguard
          , Media Release, 8 August
          2007.
        • [76] See further details online at: http://www.aph.gov.au/senate/committee/scrutiny/cominfo.htm.
        • [77] Senate Standing Committee for the Scrutiny of Bills, Alert Digest No 9 of
          2007, 13 August
          2007.
        • [78] Senate Standing Committee for the Scrutiny of Bills, Ninth report of
          2007
          , 12 September 2007, Parliament of Australia, Canberra 2007, p369,
          available online at:
          www.aph.gov.au/senate/committee/scrutiny/bills/2007/b09.doc,
          accessed 29 January 2008.
        • [79] Senate Standing Committee for the Scrutiny of Bills, Ninth report of
          2007
          , 12 September 2007, Parliament of Australia, Canberra 2007,
          p369.
        • [80] Senate Standing Committee for the Scrutiny of Bills, Ninth report of
          2007
          , 12 September 2007, Parliament of Australia, Canberra 2007,
          p373.
        • [81] Senate Standing Committee for the Scrutiny of Bills, Ninth report of
          2007
          , 12 September 2007, Parliament of Australia, Canberra 2007,
          p373.
        • [82] Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 (Cth), Explanatory Memorandum, available online at:
          http://www.austlii.edu.au/au/legis/cth/bill_em/
          ssaolaprb2007684/memo_0.html
          ,
          accessed 24 November 2007.
        • [83] Ronalds, C. and Pepper, R., Discrimination Law and Practice, The
          Federation Press, 2004, Chapter 13: Conducting a Hearing; Margaret Thornton,
          'Equivocations of Conciliation: The Resolution of Discrimination Complaints in
          Australia' (1989) 52 Modern Law Review, p752.
        • [84] Australian Government, Centrelink Annual Report 2005-2006, Department of
          Human Services, Canberra, 31 August 2006,
          p86.
        • [85] Australian Government, Centrelink Annual Report 2005-2006, Department of
          Human Services, Canberra, 31 August 2006,
          p86.
        • [86] See for example: section 133, Northern Territory National Emergency Response
          Act 2007
          (Cth).
        • [87] See for example: section 133, Northern Territory National Emergency Response
          Act 2007
          (Cth).
        • [88] Northern Territory National Emergency Response Bill 2007 (Cth), p78,
          Explanatory Memorandum.
        • [89] Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, p21, available online at:
          http://www.aph.gov.au/Senate/committee/legcon_ctte/
          nt_emergency/report/report.pdf
          ,
          accessed 31 January 2008.
        • [90] ‘Additional comments by the Australian Labor Party’, contained in
          Senate Standing Committee on Legal and Constitutional Affairs, Report on
          Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, para 1.27,
          p42.
        • [91] Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, available online at:
          http://www.aph.gov.au/Senate/committee/legcon_ctte/
          nt_emergency/report/report.pdf
          ,
          accessed 31 January 2008; Senate Standing Committee for the Scrutiny of Bills, Ninth report of 2007, 12 September 2007, Parliament of Australia,
          Canberra 2007,
          p375.
        • [92] The RDA
          also includes specific prohibitions on direct discrimination in certain areas of
          public life: access to places and facilities (s.11); land, housing and other
          accommodation (s.12
          ); provision of goods and services (s.13); right to join
          trade unions (s.14); and employment (s.15). Section 9(1A) of the RDA provides
          for what is generally known as ‘indirect’ discrimination.
          This section focuses on direct discrimination and does not consider the
          necessary elements for establishing indirect discrimination under the RDA. For
          information about the necessary elements for establishing indirect
          discrimination see: Aboriginal and Torres Strait Islander Social Justice
          Commissioner, 'Implications of the Racial Discrimination Act 1975 with reference
          to state and territory liquor licensing legislation', Speech -
          34th Australasian Liquor Licensing Authorities' Conference,
          26-29 October 2004, Hobart, Tasmania, available online at:
          http://www.humanrights.gov.au/about/media/speeches/race/2004/
          LiquorLicensingAuthoritiesConference.html
          ,
          accessed 29 January 2008.
        • [9]2 See further: Gerhardy v Brown (1985) 159 CLR 70, per Brennan J, p133.
        • [93] Race Discrimination Commissioner, Alcohol report, HREOC Sydney
          1995.
        • [94] Gerhardy v Brown (1985) 159 CLR 70, per Brennan J, p135. I note that a
          contrary view was taken by Nicholson J in the Federal Court of Australia in Bropho v Western Australia [2007] FCA 519. That decision is currently on
          appeal to the full Federal Court and HREOC has submitted, as intervenor, that
          his Honour was in error on this point. See further:
          www.humanrights.gov.au/legal/submissions_court/
          intervention/bella_bropho.html
          .
        • [95] Gerhardy v Brown (1985) 159 CLR 70, per Brennan J,
          p135.
        • [96] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
          Justice Report 2006,
          Human Rights and Equal Opportunity Commission, Sydney,
          chapter 1,
          pp6-7.
        • [97] See ss 10(3), 8(1) Racial Discrimination Act 1975 (Cth).
        • [98] Gerhardy v Brown (1985) 159 CLR 70, Mason CJ p105, and Deane J, p149.
        • [99] Gerhardy v Brown (1985) 159 CLR 70, per Deane J,
          p149.
        • [100] Vanstone v Clark [2005] FCAFC 189, per Weinberg J, pp
          208-209.
        • [101] Vanstone v Clark [2005] FCAFC 189, per Weinberg J,
          pp208-209.
        • [102] Northern Territory National Emergency Response Bill, Explanatory Memorandum,
          p76, available online at:
          http://www.austlii.edu.au/au/legis/cth/bill_em/nterb2007541/memo_0.html,
          accessed 22 November 2007.
        • [103] Department of Families, Community Services and Indigenous Affairs, Senate
          Standing Committee on Legal and Constitutional Affairs, Report on Social
          Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 and
          four related bills concerning the Northern Territory national emergency
          response
          , August 2007, pp12-15, available online at:
          http://www.aph.gov.au/Senate/committee/legcon_ctte/
          nt_emergency/report/report.pdf
          ,
          accessed 30 January 2008.
        • [104] ‘Additional comments by the Australian Labor Party’, contained in
          Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007,
          p39.
        • [105] Western Australia v Commonwealth (1995) 183 CLR 373, Mason CJ, Brennan,
          Deane, Toohey, Gaudron and McHugh JJ, pp483-484.
        • [106] Consideration of Reports Submitted by States Parties under Article 9 of the
          Convention, Concluding observations of the Committee on Australia
          CERD/C/AUS/CO/14, March 2005; Committee on the Elimination of Racial
          Discrimination, Sixty-sixth session, 21 February - 11 March
          2005. 
        • [107] Australian Government, Australia’s National Framework for Human
          Rights
          , Attorney General’s Department, Canberra, December 2004, p69.
        • [108]Brough,
          M., (Minister for Families, Community Services and Indigenous Affairs),
          ‘Second reading speech: Social Security and Other Legislation Amendment
          (Welfare Payment Reform) Bill 2007’, Hansard, House of
          Representatives, 7 August 2007,
          p6.
        • [109] It is expected that the jurisdiction of the QLD Commission will only cover the
          four Aboriginal communities in Cape York which have agreed to participate in the
          Cape York Welfare Reform Trials: Hope Vale, Aurukun, Mossman Gorge and Coen.
        • [110] This is based on information contained in General Comment 20 on implementation
          of ICESCR by the United Nations Committee on Economic, Social and Cultural
          Rights: UN Doc: E/C. 12/GC/20/CRP. 1, available online at:
          http://www2.ohchr.org/english/bodies/cescr/comments.htm,
          accessed 7 January 2008.
        • [111] Combined Aboriginal Organisations of the Northern Territory, A proposed
          emergency response and development plan to protect Aboriginal children in the
          Northern Territory: A preliminary response to the Australian Government’s
          proposals,
          10 July 2007, p16, available online at:
          http://www.rachelsiewert.org.au/files/campaigns/extras/CAO-report-10%20july.pdf,
          accessed 2 November 2007.
        • [112] International Covenant on Civil and Political Rights, Article
          17.
        • [113] For example, community stores where food vouchers will be required to be
          used.
        • [114] The Australian Law Reform Commission has recently published a discussion paper
          recommending an overhaul of privacy legislation in Australia that would remove
          this non-uniformity: Australian Law Reform Commission, Review of Australian
          Privacy Law
          , Discussion Paper 72, 2007.
        • [115] 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 2 November
          2007.
        • [116] Combined Aboriginal Organisations of the Northern Territory, A proposed
          emergency response and development plan to protect Aboriginal children in the
          Northern Territory: A preliminary response to the Australian Government’s
          proposals,
          10 July 2007, p18, available online at:
          http://www.rachelsiewert.org.au/files/campaigns/extras/CAO-report-10%20july.pdf,
          accessed 2 November 2007.
        • [117] Combined Aboriginal Organisations of the Northern Territory, A proposed
          emergency response and development plan to protect Aboriginal children in the
          Northern Territory: A preliminary response to the Australian Government’s
          proposals,
          10 July 2007, p18, available online at:
          http://www.rachelsiewert.org.au/files/campaigns/extras/CAO-report-10%20july.pdf,
          accessed 2 November 2007.
        • [118] Altman, J., ‘Neo-Paternalism and the Destruction of CDEP’, Arena
          Magazine
          , 90,August–September 2007,
          p33.
        • [119] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
          Justice Report 2006
          , HREOC, Sydney 2006, p39.
        • [120] 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.
        • [121] Altman, J., ‘Neo-Paternalism and the Destruction of CDEP’, Arena
          Magazine
          , No.90, August–September 2007,
          p33.
        • [122] Altman, J., ‘Neo-Paternalism and the Destruction of CDEP’, Arena
          Magazine
          , No.90, August–September 2007,
          p34.
        • [123] Australian Government, CDEP in the Northern Territory Emergency Response:
          Question and Answers,
          in 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.
        • [124] Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander
          Social Survey, Table
          18.
        • [125] 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 2 November
          2007.
        • [126] Local Government Association of the NT, ‘Local Government Association
          calls for re-think on CDEP changes’, Media Release, 24 July 2007,
          available online 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 2 November,
          2007.
        • [127] Altman, J., ‘Neo-Paternalism and the Destruction of CDEP’, Arena
          Magazine
          , No.90, August–September 2007,
          p34.
        • [128] Altman, J., ‘Neo-Paternalism and the Destruction of CDEP’, Arena
          Magazine
          , No.90, August–September 2007,
          p35.
        • [129] 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.
        • [130] Maggie Brady notes the extraordinary nature of the exemptions in the NT
          intervention measures for recreational and commercial fishers and those on boats
          on waters near prescribed communities. She argues that these exemptions
          contradict the National Alcohol guidelines prepared by the National Health and
          Medical Research Council which explicitly state that alcohol should not be
          consumed ‘before or during activities involving a degree of skill or risk,
          such as...water sports’: Brady, M., ‘Alcohol regulation and the
          emergency intervention: Not exactly best practice’, Dialogue,
          Vol.26, No.3, Academy of the Social Sciences Canberra 2007,
          p61.
        • [131] Brady, M., ‘Alcohol regulation and the emergency intervention: Not exactly
          best practice’, Dialogue, Vol.26, No.3, Academy of the Social
          Sciences Canberra 2007,
          p60.
        • [132] Brady, M., ‘Alcohol regulation and the emergency intervention: Not exactly
          best practice’, Dialogue, Vol.26, No.3, Academy of the Social
          Sciences Canberra 2007,
          p61.
        • [133] Brady, M., ‘Alcohol regulation and the emergency intervention: Not exactly
          best practice’, Dialogue, Vol.26, No.3, Academy of the Social
          Sciences Canberra 2007,
          p61.
        • [134] Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
          family violence in Aboriginal and Torres Strait Islander communities,
          Human
          Rights and Equal Opportunity Commission, Sydney,
          p113-144.
        • [135] Edwards, G., Anderson, T., Babor, T., Casswell, S., Ferrence, R., Giesbrecht,
          N., Godfrey, C., Helder, H., Lemmens, P., Makela, K., Midanik, L., Nortstrom,
          T., Osterber, E., Romelsjo, A., Simpura, J., and Skog, O., Alcohol policy
          and the public good,
          World Health Organisation, Oxford, Oxford University
          Press, 1994; Babor, T., Caetano, R., Casswell, S., Edwards, G., Giesbrecht, N.,
          Graham, K., Grube, J., Gruenewald, P., Hill, L., Holder, H., Homel, R.,
          Osterberg, E., Rohm, J., Room, R., Rossow, I., Alcohol: no ordinary
          commodity. Research and public policy,
          World Health Organisation, Oxford,
          Oxford University Press 2003 as cited in Brady, M., ‘Alcohol
          regulation and the emergency intervention: Not exactly best practice’, Dialogue, Vol.26, No.3, Academy of the Social Sciences Canberra 2007,
          p60.
        • [136] Brady, M., ‘Alcohol regulation and the emergency intervention: Not exactly
          best practice’, Dialogue, No.26, Vol.3, Academy of the Social
          Sciences Canberra 2007,
          p60.
        • [137]Combined
          Aboriginal Organisations of the Northern Territory, A proposed emergency
          response and development plan to protect Aboriginal children in the Northern
          Territory: A preliminary response to the Australian Government’s
          proposals,
          10 July 2007, p15, available online at:
          http://www.rachelsiewert.org.au/files/campaigns/extras/CAO-report-10%20july.pdf,
          accessed 2 November 2007.
        • [138] See for example: Calma, T, Continuity and change through the new arrangements
          – Lessons for addressing the crisis of child sexual abuse in the Northern
          Territory
          , Speech - Launch, Social Justice Report and Native Title
          Report 2006,
          3 July 2007, p7; Calma, T., The role of local government in
          achieving social justice for Aboriginal peoples in the Northern Territory
          ,
          Speech, Northern Territory Local Government Association Annual Conference:
          “Planning for the future”, Darwin, 22 November 2007; and Calma, T., Can the end ever justify the means? Achieving equality for Aboriginal &
          Torres Strait Islander peoples & the Northern Territory intervention
          ,
          Speech, The 2007 Don Dunstan Oration, Adelaide, 18 September 2007. All speeches
          are available online at:
          http://www.humanrights.gov.au/about/media/speeches/social_justice/.
        • [139] ‘Additional comments by the Australian Labor Party’, contained in
          Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007,
          p39.
        • [140] It is uncertain whether ‘deeming’ provisions in this way would be of
          effect or whether the courts would simply apply the criteria for a special
          measure and note this deeming provisions as indicative of the intention of the
          Government.
        • [141] See for example: section 133, Northern Territory National Emergency Response
          Act 2007
          (Cth).
        • [142] Combined Aboriginal Organisations of the Northern Territory, A proposed
          emergency response and development plan to protect Aboriginal children in the
          Northern Territory: A preliminary response to the Australian Government’s
          proposals,
          10 July 2007, p3, available online at:
          http://www.rachelsiewert.org.au/files/campaigns/extras/CAO-report-10%20july.pdf,
          accessed 2 November 2007.
        • [143] ‘Additional comments by the Australian Labor Party’, contained in
          Senate Standing Committee on Legal and Constitutional Affairs, Report on Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill
          2007 and four related bills concerning the Northern Territory National Emergency
          Response
          , August 2007, p38.