Bills Digest no. 18, 2007-08 - Northern Territory national emergency response Bills 2007-interim Bills Digest

Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007
Northern Territory National Emergency Response Bill 2007
Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007

Date introduced: 7 August 2007

House: House of Representatives

Portfolio: Families, Community Services and Indigenous Affairs

Links: The relevant links to the Bill, Explanatory Memorandum and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.

Note

Given the unusually short time-frames which have been allowed for parliamentary consideration of this suite of Bills, the decision has been made to issue this interim Bills Digest with a view to issuing more detailed individual Digests in due course. This document necessarily reflects the short time-frames allocated to perusing the materials.

Purpose

The purpose of each individual Bill will be discussed along with the main provisions.

Overview

The provisions in the present legislative package flow from measures announced by the Prime Minister and the Minister for Families, Community Services and Indigenous Affairs on 21 June, in response to the Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, 2007, Ampe Akelyernemane Meke Mekarle Little Children are Sacred - authored by Pat Anderson and Rex Wild (Anderson/Wild report). [1] Many commentators have noted, however, that there appears to be very little overlap between the 97 recommendations of the NT report and the measures which the Federal Government announced and to which it now seeks to give effect. Most of the recommendations in the NT report were addressed to the NT Government. The Federal Government has said that it is responding to the issue raised in the NT report, not to its recommendations. The Federal measures may not be called for in the NT report, but that need not mean that these measures are inconsistent with those being recommended in the report. It is noted that the authors of the report have indicated their discontent with the federal Government s response.

The Anderson/Wild report and the response

Anderson and Wild have repeatedly stressed the critical importance of governments committing to genuine consultation with Aboriginal people in design initiatives for Aboriginal community, whether these are in remote, regional or urban settings (see Recommendation 1). Such consultation has not featured prominently in the Federal intervention.

An authoritative summary of the Anderson/Wild report recommendations said:

He went on to argue that None of the measures announced by Prime Minister Howard are to be found in the strategies recommended by the Anderson/Wild report :

The Secretary of the Department of Treasury, Ken Henry, has also commented on the degree to which consultation and engagement have been missing from the setting of the policy direction:

The Aboriginal and Torres Strait Islander Social Justice Commissioner 2007 Social Justice Report has made similar observations:

He also suggested that the Federal Government s response had left many questions unanswered. For example:

The suite of NT emergency legislation does not appear to answer any of these questions.

Commissioner Calma also noted that We are not starting from scratch in dealing with this issue despite the rhetoric and suggested that the government was failing to utilise the planning tools and action plans developed by the ATSIC Regional Councils and through other planning forums for health, housing, criminal justice and so on . Many ATSIC Region Councils had, for example, produced a detailed Family Violence Policy and Action Plan.

Note

Given the time-constraints imposed on this interim Digest by the speed of the parliamentary process, we provide an initial summary of two legal issues arising from the Bills, namely racial discrimination and just-terms discrimination. We then provide an analysis of individual Bills insofar as we were able to address the major issues.

Racial Discrimination Act 1975

There is a legislative prohibition on racial discrimination contained in the Racial Discrimination Act 1975 (the RDA). However this package of legislation suspends part of the operation of the RDA. It treats people differently on the grounds of race (the reliance on geographic location as the feature differentiating among Australian residents would fall within the definition of prohibited indirect discrimination i.e. the geographic feature will predominantly affect members of a particular race. It may still, arguably, qualify as direct discrimination). The general prohibition has always contained a recognition that special measures are legitimate to promote the position of members of a particular race when that race is disadvantaged. Special measures are also referred to as affirmative action or positive discrimination.

Accepted special measures have been policies or actions by organisations or governments which recognise that the past or present disadvantage suffered by certain groups based on their race has affected their access to equality of opportunity and basic human rights.

The Human Rights Commission has used the restriction of sales of alcohol to some Aboriginal people in the Northern Territory as a classic example of a special measure. The agreement they have recognised was established between the local Pitjantjajara people, the relevant roadhouse proprietor and the federal Race Discrimination Commissioner and was in response to a request from the Pitjantjajara Council to the Commission to seek assistance in dealing with the escalating problem of alcohol abuse within its community. It is important to note that this special measure was made with the acceptance, and at the request of, the community involved. [4]

Special measures are generally kept in place until the group affected has been able to reach substantive equality with other members of the community.

The measures in the Social Security and other Legislation Amendment (Welfare Payment Reform) Bill 2007 (the Welfare Bill) are defined in the Bill as special measures.

The Bill is not proposing to allow judicial scrutiny of the question as to whether the measures qualify as a special measure, pre-empting the matter with the declaration that they are a special measure. To the extent that a subsequent Bill has the legislative capacity to over-ride the original RDA this may be within the legislative power of the Commonwealth, however the RDA s constitutional basis depends on the relevant UN treaty which is the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). [5]

Article 1(4) of CERD, from which the RDA s special measures are concerned, provides as follows:

The Australian courts have interpreted this definition as containing four elements:

Furthermore a special measure must not be continued after the objectives for which it was taken have been achieved.

Looking at these criteria we see the central question is: does the measure confer a benefit on some or all members of a class. The class to be benefited must be a racial group or individuals belonging to the group. In making this assessment, courts have looked to both the benefits of a measure and any costs or disadvantages borne by the beneficiaries of the measure.

The Welfare Bill proposes to prevent indigenous families from having unfettered access to their social security payments. The assessment of whether this will confer a benefit on an Indigenous community or on individuals in that community would traditionally be an assessment conducted by the courts, which would consider the impact of the conditions imposed by the agreement on individuals and on the community. The Government s choice to use a stipulative definition regarding special measures may circumvent such a consideration.

If a Court were to conclude that there is, in fact, no benefit conferred it would be inconsistent with the character of a special measure. Difficult issues of fact would arise here, and close scrutiny of the arrangement and its impact would be required to consider such an argument.

A special measure must have the sole purpose of securing adequate advancement of the beneficiaries. There are a number of sources from which the purpose of a special measure can be discerned. The purpose of a measure is discerned from its terms and from the operation which it has in the circumstances to which it applies. Any fact which shows what the persons who took the measure intended it to achieve casts light upon the purpose for which it was taken provided the measure is not incapable of achieving what is intended.

The purpose of securing adequate advancement for a racial group is not necessarily established by showing that the person who takes the measure does so for the purpose of conferring a benefit, if the group does not seek or wish to have the benefit. In Gerhardy v Brown, Brennan J stated that the wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement . Brennan J went on to state:

Importantly, the terms and conditions upon which the benefit is conferred have been relevant to the court s assessment of the purpose of the agreement. The wishes of the Indigenous community with whom the agreement was made may also be relevant. Difficult issues have arisen for a court s consideration where the wishes or views of the Indigenous community are not uniform. There is also the distinction to be made that the Welfare Bill s measures do not immediately constitute a material benefit , although it may been seen as giving a benefit to those children with inadequate financial resources due to parental mismanagement of their funds. [8]

The other question is whether the changes to the Act proposed in this suite of Bills could be seen as severing the necessary connection between the legislative head of power used to enact the RDA (i.e. an implementation of an international treaty under the foreign affairs power). [9] By re-defining special measures according to its own legislative criteria the Government may be stepping outside of the international understandings regarding what constitutes a special measure. While it is well established that the Commonwealth is not bound to comply with international law, the RDA has depended on international law for its constitutional validity. Severing the link by introducing, effectively, a new meaning of special measures , as defined by the Government s stipulative use of the term may lead to unintended consequences.

International Scrutiny

At the most recent Reporting session of the Australian Government the Committee overseeing the Convention commented on the lack of an entrenched protection of the principle of non-discrimination:

Relations between the Government and the Committee have had some well-publicised difficulties, with the Committee challenging a number of Commonwealth policies over the last decade. [11] It is unlikely that the measures suspending or modifying the operation of the RDA are likely to find favour with the Committee.

Just terms

There are two provisions relating to the acquisition of property in the national Emergency Response Bill. Some of the relevant issues are discussed here. The Northern Territory (Self-Government) Act 1978 provides for acquisition of property to be on just terms as follows:

What are just terms?

In Grace Bros Pty Ltd v Commonwealth (1946) 72 CLR 269, Dixon J said that the inquiry should not be directed just to the question of whether the individual owner is placed in a situation in which in all respects he will be as well off as if the acquisition had not taken place.

According to Blackshield and Williams, [13] just terms does not necessarily require that a compensation package be presented as part of the acquisition scheme. It is sufficient that the scheme provides adequate procedures for determining fair compensation. The High Court can scrutinise such procedures. Thus in the Tasmanian Dams Case Deane J found the compensation provision in the World Heritage Properties Conservation Act 1983 inadequate because of the intrinsic unfairness in the procedure which in effect ensured that unless a claimant agreed to accept the terms offered, he will be forced to wait years before he could get a court determination. He said that section 17:

Quick and Garran [15] have remarked that it was legitimate to take into account any offsetting benefits the owner realised as a result of the scheme involving the expropriation, but in some cases the High Court has taken a view more favourable to the property owner. For example in Georgiadis, Brennan J stated:

Section 51(xxxi) of the Constitution

The law surrounding section 51(xxxi) of the Constitution is complex in relation to its application to the territories. This is for two reasons, that section 51(xxxi) is not expressed to apply to territories, only the states, and secondly because of the plenary nature of section 122 of the Constitution, which allows the Commonwealth unlimited power to make laws for the government of any territory.

For example, it was long thought that section 51(xxxi) had no application to acquisitions of property in the Northern Territory. This flowed from the High Court s interpretation of section 122 ( the territories power ) in Teori Tau, a unanimous 1969 decision which was upheld in a number of subsequent cases well into the 1990s. [17] However, in the Newcrest decision in 1997, a majority of four to three held that the constitutional requirement of just terms could apply in the Northern Territory. Three judges over-ruled Teori Tau, while Toohey J refused to do so but substantially narrowed its application. [18] The upshot is that the application of section 51(xxxi) in the Northern Territory is not a foregone conclusion, but that present authority leans heavily towards its application to acquisitions under Commonwealth law where they are referable to a legislative power other than the territories power in section 122.

This issue was recently discussed in Bennett v Commonwealth (2007) 234 ALR 204 at paragraph 194 of the decision showing that the area is still open for debate.

Northern Territory National Emergency Provisions

There are two provisions relating to compensation for acquisition of property in the main bill, the National Emergency Response Bill, namely proposed section 60 and proposed section 134. The latter is a provision to cover the entire Bill apart from Part 4, which deals with the acquisition of rights, titles and interests in land and Part 4 is covered by proposed section 60. Proposed section 134 is in similar terms and will not be dealt with at this stage.

Proposed section 60 disapplies subsection 50(2) of the Self Government Act. This means that the in lieu of a provision that reflects the standard Constitutional position a new formula which has not been the subject of judicial scrutiny in this context is being proposed.

Proposed subsection 60(2) states:

This subsection seems to have three possible distinctions:

• It does not specifically apply paragraph 51 (xxxi) to the acquisition
• It does not require just terms
• If the acquisition is otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation , as distinct from just terms

Proposed subsection 60(3) provides that in the effect that agreement cannot be reached on the amount of compensation, the owner of the property can commence proceedings.

Proposed section 61 requires the court to take into account certain things in determining what is a reasonable amount of compensation that is payable in relation to land including rent paid by the Commonwealth, amounts of compensation paid under the Special Purposes Leases Act or the Crown Lands Act and any improvements to the land funded by the Commonwealth, including improvements to buildings or infrastructure.

The proposed compensation scheme could be read as providing that the Commonwealth should provide just terms but if not, then a reasonable amount of compensation is to be paid. Proposed section 61 gives some guide as to how this can be determined.

Note that when the Valuer-General is tasked to determine what is a reasonable amount of rent to be paid by the Commonwealth the Valuer-General must not take into account the value of any improvements in the land (subsection 62(4)).

Summary of just-terms issues

If subsection 50(2) were not suspended, acquisition of property in the NT would be on just terms pursuant to subsection 50(2) of the Self Government Act. This would be interpreted in accordance with the common law, that is, it must be fair and even if an amount is not specified, there should be a fair and just procedural framework for the determination of compensation.

Subsection 50(2) has been suspended by the Commonwealth (which can be done as the Self Government Act is a creature of the Commonwealth Parliament). There is some strong judicial comment that section 51(xxxi), the just terms provision of the Constitution, may have application in the NT, despite Teori Tau not being explicitly overturned.

It is open on the drafting that just terms should be paid in accordance with the common law meaning of the expression, and that the reasonable compensation must be paid. The Court must take into account the matters referred to in proposed section 61 in deciding this question.

In explaining the operation of the similar compensation provision, proposed section 134 the Explanatory Memorandum states:

This suggests that the intention is for reasonable compensation as distinct from just terms.

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

Schedule 1

Welfare payments are inalienable

Generally, welfare payments are inalienable. This applies to the income support and income supplement payments provided under the Social Security Act 1991 (SSA) and also to the family assistance payments provided under the A New Tax System (Family Assistance) Act 1999 (FAA).

Payments under the SSA are inalienable

Payments provided under the SSA are inalienable. Section 60 of the Social Security (Administration) Act 1999 (SSAA) refers. [20]

Section 61 of the SSAA allows the recipient to elect to pay some part of their payment (deductions) to another party, for example to an energy or electricity provider. Section 238 allows deductions to be made to the Taxation Commissioner or the Child Support Agency for maintenance owed. Sections 1231 and 1234A of the SSA allow deductions to recover debts, section 1231 for debts arising under the SSA and section 1234A for deductions for other debts with the person s consent. Other than these specific exemptions, payments must be provided to the qualified person.

Payments under the FAA are inalienable

There are also provisions ensuring payments provided under the FAA are inalienable. Section 66 of the A New Tax System (Family Assistance) (Administration) Act 1999 (FAAA) refers. [21]

Inalienability

Inalienability basically means that where a person is qualified to a payment and entitled to an amount of payment, the payment is their legal right and cannot be not provided at all or provided to someone else.

The Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 will add another circumstance where, notwithstanding the current inalienability of payment provisions in the SAA and the FAAA, there will be circumstances where an individual qualified to receive a payment will not be provided with that payment, in whole or in part. This will be where the income management regime (IMR) provisions in this Bill are to apply.

Income Management Regime provisions

Who are the IMR provisions to generally apply to

In the broad, a person may become subject to the IMR provisions in this Bill for one of the following reasons:

In what individual circumstances will the IMR provisions be applied to individuals

Generally, the specific individual circumstance that might arise where a person might be considered for and subject to the IMR provisions in this Bill are not set out in this Bill. The details of the circumstances where an individual might be subjected to the IMR provisions are to be set out in various different Legislative Instruments to be made by the Minister.

For the protection of a child of the person

A person may be subject to the IMR provisions for reasons of child protection of a child. The child protection IMR provisions will require a State or Territory child protection officer to request the IMR provisions to be applied and then applied where, amongst other things, subject to principles to be set out in a Legislative Instrument to be made by the Minister.

The person is subject to the jurisdiction of the Queensland Commission

Where the Queensland Commission requests in writing that the Secretary place the person under the IMR provisions, the IMR provisions are to generally be applied. The IMR provisions are to be applied unless the case involves circumstance where they should not be applied. These circumstances are not set out in the Bill but are to be set out in principles in a Legislative Instrument to be made by the Minister.

The person is a resident of a specified area in the Northern Territory

Where a person is a resident of a specified area in the Northern Territory (specified in this Bill), the Secretary can determine that a person is subject to the IMR provisions in this Bill. The Secretary must have regard to, amongst other things, principles to be set out in a Legislative Instrument to be made by the Minister. These principles are not set out in the Bill.

Child attendance

For the child attendance at school provisions, the IMR provisions can be applied where it is considered there is unsatisfactory school attendance situation. The Secretary will be empowered to declare the IMR should apply to a person subject to amongst other things, principles to be set out in a Legislative Instrument to be made by the Minister.

The Secretary will also be able to issue to a parent a requirement to provide documentary evidence about the child s attendance at school. Where the notice is not complied with, the Secretary can determine the child has not been attending school, subject to provisions to be set out in a Legislative Instrument to be made by the Minister.

Comment

The provisions in this Bill only really set out in the broad circumstances where the IMR provisions are to be applied. The specific details of where an individual person can be subjected to the IMR provisions is yet to be seen as they are to be described in principles to be set out in a Legislative Instrument made by the Minister.

IMR elements and effects on payments to individuals

How long will IMR be applied

There is no set period ascribed in the Bill as to how long an IMR is to apply to an individual. The period an IMR can be applied will be set out in principles to be set out in a legislative instrument made by the Minister.

Payment deductions or withholdings

There are various different payment deduction or payment withdrawal (not paid) provisions in the Bill. The amounts to be deducted or withdrawn vary depending on whether the origins of the IMR for the individual refer to a Northern Territory resident, a request by the Queensland Commission, or a child protection case or a child non attendance at school case.

In child protection cases, 100 per cent of the payment may be withheld. In other cases, only 50% of the payment deducted or a different deduction amount to be described in a Legislative Instrument by the Minister.

Schedule 3 Northern Territory CDEP transitional payment

The Community Development Employment Projects (CDEP) commenced in 1977. Under the scheme, members of participating Aboriginal and Torres Strait Islander communities or organisations can forgo any Centrelink Income Support benefit (except Abstudy or full time student Youth Allowance) for a wages grant paid to the community. Although CDEP has been referred to as a work for the dole scheme there are significant differences including the ability of all welfare recipients to participate and also a more generous income allowance on top of CDEP wages than available to Newstart recipients.

The CDEP scheme was funded and administered by the Aboriginal and Torres Strait Islander Commission (ATSIC). In monetary terms it was ATSIC's largest program with a total budget of $484 million in 2002 2003. Since July 2004 the program has been funded and administered by the Department of Employment and Workplace Relations (DEWR).

In February 2007 the Minister for Employment and Workplace Relations, the Hon. Joe Hockey MP, announced changes to the Community Development Employment Projects (CDEP) programme to take effect from 1 July 2007. These changes included funding additional Structured Training Employment Projects (STEP) brokers instead of funding the CDEP programme in urban and major regional areas; [22] the closure of all Indigenous Employment Centres (IECs) because of the strengthened link between Job Network and CDEP organisations; and the introduction of a 26 week CDEP placement incentive payment for CDEP service providers who place participants into long term work.

In Senate estimates DEWR officials stated that about 5,000 CDEP participants will be affected by moving urban and regional CDEPs to STEP and Newstart. Furthermore the move is estimated to save $30.9 million which will partly fund the 2007-08 budget measure of normalising employment arrangements for Australian government services which is estimated to cost $97.2 million over four years and provide 825 ongoing jobs currently provided by CDEPs. [23] The DEWR website states that in remote locations and regional locations with weaker labour markets, CDEP will continue to be funded in 2007 08 subject to the usual competitive funding process. [24] However, as a result of the Northern Territory emergency response the fifty Northern Territory CDEP programs with approximately 8,000 participants, almost totally in remote locations, will be the exception.

As part of the Northern Territory emergency response all Northern Territory CDEP programs were informed that from 1 July 2007 their funding agreements would be reduced from twelve to three months and on 23 July 2007, the Hon Mal Brough MP, the Minister for Families, Community Services and Indigenous Affairs, and the Hon Joe Hockey MP, the Minister for Employment and Workplace Relations, announced that CDEP in the Northern Territory will progressively be replaced with real jobs, training and mainstream employment programmes . [25] However a more significant outcome, at least initially, will be the move from CDEP wages to income support a requisite of the welfare payment reform provisions in the Bill. The fact sheet accompanying the media release states that moving CDEP participants onto income support will allow a single system of quarantining to apply to welfare payments. This initiative will stem the flow of cash going towards alcohol and substance abuse and ensure that money meant for children s welfare is used for that purpose. [26]

The Bill provides for a Northern Territory CDEP transition payment available to CDEP participants in the Northern Territory until 30 June 2008. The transition payment will compensate those CDEP participants who received other income above the income support payment.

Northern Territory National Emergency Response Bill 2007

Part 2 Alcohol

This part overrides the Northern Territory s Liquor Act 1978, Liquor Regulations and Police Administration Act 1978, to ban the consumption, possession or supply of liquor within prescribed areas. There is an exemption for people engaged in recreational boating and commercial fishing. The maximum penalty for a first offence is a fine of $1100, and for further offences $2200. Where more than 1350 ml of alcohol is transported or supplied, the maximum penalties increase to $74 800 or 18 months imprisonment, but if a person can prove that he or she did not intend to supply the alcohol, no offence is committed.

The Commonwealth Minister is empowered to vary liquor licences to prohibit the sale of liquor for consumption on or off licensed premises (clause 13).

The Minister may also vary permits to prohibit the sale or consumption of liquor in prescribed areas. Permit-holders and their guests are currently allowed to consume liquor within what will become prescribed areas. The Explanatory Memorandum states that these permits will be reviewed. [27]

Part 3 Filtering of publicly-funded computers

This Part requires filters accredited by the Minister to be installed and maintained on publicly-funded computers within prescribed areas. This includes computers owned or loaned by bodies or individuals that receive government funding, or that directly or indirectly receive funding for employment programs. There is an exemption for a period if for purposes of work, research or study a person needs to access material that would otherwise be blocked by a filter. Presumably the regulations will specify more detail about the requirement to maintain and update filters.

Records must be kept for three years about each person who uses such a computer, and the time when it was used.

The Minister may determine matters that must be included in acceptable-use policies. These policies must state that the computers may not be used for illegal purposes, notably for criminal activity or incitement, obscenity, harassment or stalking. There is no defence for not developing an acceptable-use policy.

These computers must be audited twice a year, on specific days, and audit reports must be given to the Australian Crime Commission within two weeks. If a person knows or is reckless that illegal material has been accessed or stored on a computer, an additional audit must be performed as soon as practicable.

Fines of $550 apply to failures to filter a computer, keep records, develop an acceptable-use policy, or perform audits. Fines of $1100 apply when a person fails to ensure a computer audit with the result that illegal material is not identified. These offences commence 28 days after Royal Assent, giving computer administrators one month to install filters, create user logs and prepare acceptable-use policies.

Issues that Parliament may wish to consider:

Part 4 Acquisition of rights, titles and interests in land

Background to the lease issue

Part 4 of the Northern Territory National Emergency Response Bill 2007, provides for the acquisition of right, titles and interests in land, and Division 1 for the grants of leases for 5 years. Acquiring townships prescribed by the Australian Government through five year leases including payment of just terms compensation had been one of the measures announced by the Government on 21 June 2007 [29],

Although this measure has been presented in the context of responding to child abuse in the Northern Territory, it comes in the context of a long debate over the merits of offering indigenous individuals in the Northern Territory the possibility of subleasing back as private land communal land that a community has agreed to lease out long-term to a government body or agency. It is also in the context of the Federal Government s long-expressed interest in making this possible.

As long ago as 1998 John Reeves , in his Review of the Aboriginal Land Rights (Northern Territory) Act 1976, Building on Land Rights for the Next Generation, [30] recommended, among other things, giving the Northern Territory Government power to compulsorily acquire Aboriginal land for public purposes, and the development of leasing arrangements to enable Aboriginal people to own their homes on communal land. The Reeves report prompted several further reviews, including one by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (HORSCATSIA); and a joint response to the Reeves Report by the NT Government and Land Councils.

The NT Government was also developing its own model for township leasing, and in July 2004 sent an options paper to the four NT Land Councils for consideration. However, the Commonwealth s amendments to the ALRA overtook this plan and in 2005 the NT Government wrote to the Australian Government suggesting a voluntary leasing plan which would recognise the right of traditional owners to make decisions over their land.

In April 2005 the Prime Minister stated:

In June 2005 the National Indigenous Council (the NIC, the advisory body to the government on indigenous matters) presented its Indigenous Land Tenure Principles to Government. While acknowledging that communal interest in land is fundamental to Indigenous culture and should be inalienable, the Council considered that individuals and families [should be able] to acquire and exercise a personal interest in those lands, whether for the purposes of home ownership or business development. Further, it said, the consent of traditional owners should not be unreasonably withheld to requests for individual leasehold interests and that involuntary measures should not be used except as a last resort. [32]

A number of Indigenous leaders have criticised these proposals. Noel Pearson has commented:

In his Native Title Report 2005, Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma pointed to existing leasing provisions in statutes like the ALRA and commented:

In a 2005 Oxfam Australia report, an Australian National University team found no evidence to suggest that individual land ownership is either necessary or sufficient to increase economic development or housing construction. [35] They concluded:

A contrary view was put by researchers at the Centre for Independent Studies. In A New Deal for Aborigines and Torres Strait Islanders in Remote Communities, Professor Helen Hughes and Jenness Warin argue:

In the course of 2005 the Government committed itself further to reform in the area of indigenous home ownership, offering additional funding for purchasing homes, and a scheme to facilitate township leasing was included in the 2006 ALRA amendments. Under section 19A of the ALRA, a Land Trust may grant a 99 year lease of a township to an approved entity , which means either a Commonwealth or NT entity, if both the Minister and the Land Council agree to the granting of the lease. The Commonwealth was added at the last moment, with Federal doubts mounting as to the NT s commitment to the plan. After 69 years, the Land Trust may grant another lease to the same entity, to ensure certainty for home owners and other lessees (subsection 19A(5) of the ALRA).

The Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Bill 2007, 24 May 2007, sought to establish the office of Executive Director of Township Leasing, to enter into and administer township leases on Aboriginal land in the Northern Territory, under the Aboriginal Land Rights (Northern Territory) Act 1976.

For more on concerns raised with respect to these recent development see Jennifer Norberry and John Gardiner-Garden s Bill Digest on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. [36]

Although the 5 year lease being proposed in the current bill may in the short term have a very different purposes to that of the above discussed 99 year leases, given the above context, it is not surprising that one of the main concerns raised with respect the proposed compulsory 5 year leases is that it may prove a stepping stone to 99 year leases with failure to solve all community problems inside 5 years being used down the track for extensions of the arrangement.

Division 1 of Part 4 sets out the conditions under which the Commonwealth will assume five-year leases of Aboriginal lands.

Clause 31 grants to the Commonwealth a five-year lease over all Aboriginal land as defined by the ALRA, land granted to an association under subclause 46(1A) of the Lands Acquisition Act of the Northern Territory, and some other lands already subject to leases (surrounding Finke, Kalkarindji, Daguragu and Pine Creek).

Land which is already covered by a registered lease, for example a 99-year township lease as introduced in the 2006 ALRA amendments, is excluded from the five-year Commonwealth lease (clause 31(3)).

If during the Commonwealth s five-year lease, a Land Trust decides to enter into a 99-year township lease (under section 19A of the ALRA), then the Commonwealth s lease under proposed s.31 is terminated at the time the township lease takes effect (clause 37 (6) to (9)).

Any existing rights, title or other interests in land (excluding native title rights) are preserved by subclause 34(3). Subclause 34(4) provides that if the land owner has granted any rights, title or interests to another party, it is taken to be in force as if the Commonwealth had granted that right, title or interest on the same terms and conditions. However, clause 34(5) allows the Minister to determine in writing that the existing grant of rights, title or interests in land, as allowed in s. 34(4) do not have effect during the five-year lease. The Minister s determination is not a legislative instrument (therefore cannot be disallowed by Parliament) and there is no avenue of appeal.

Land Trusts may continue to grant leases according to s. 19 of the ALRA, however the consent of the Minister will be required (clause 52) during the five-year Commonwealth lease period. If the Minister consents to such a lease, then the s.31 Commonwealth lease covering that area of land will be varied to exclude that part.

The Northern Territory laws regarding subdivision will not apply to the Commonwealth leased land (clause 57). Clause 58 would allow the Commonwealth to make regulations modifying Northern Territory law relating to planning, infrastructure, subdivision or transfer of land, local government, or other matters, for land covered by the provisions of this Bill.

Division 2 Acquisition of rights, titles and interests relating to town camps

Under the Northern Territory Special Purposes Leases Act, the NT Government has granted leases in perpetuity to entities to administer Aboriginal town camps which surround urban areas. For example, the Tangentyre Council, on behalf of 18 Indigenous Corporations, manages a Special Purpose lease for town camps surrounding Alice Springs, and the Julalikari Aboriginal Corporation administers the Tennant Creek camps.

Management of the town camps has been a contentious issue and the Commonwealth Government has attempted to negotiate with town camp leaseholders to return the leases to the Northern Territory government, in exchange for Commonwealth funding for housing and other services.

Upon the Commonwealth Government s announcement that it was considering whether it could compulsorily acquire leases for town camps, the Northern Territory Government responded that it would be working with town camps to see if the Australian Government s objectives can be achieved without compulsory acquisition. [37]

Under clause 44, references in the Special Purposes Leases Act to the Northern Territory Minister or the Administrator will also be taken to be references to the Commonwealth Minister.

Proposed subclause 44(2) states:

Under section 28(a) of the Special Purposes Leases Act, the Administrator may, by Proclamation resume any land comprising, or included in, a lease...for any public purpose which he thinks fit. Section 29 of the Act requires six months notice of a resumption of a lease. However, clause 44(b)(i) would reduce the notice time to 60 days.

Therefore, the Commonwealth Minister, empowered to act as the NT Minister or Administrator can, under the Special Purposes Leases Act, acquire town camp leases.

Clause 46 makes the same arrangements for the NT Crown Lands Act, under which some town camp leases are granted.

Subdivision C of Part 4 vests rights, titles and interests in land in the Commonwealth. Upon giving the Northern Territory government a notice that it is acquiring a lease under the Special Purposes Leases Act or the Crown Lands Act, all rights, titles and interests are taken to be vested in the Commonwealth and freed and discharged from all other rights, titles and interests and any trusts, obligations, mortgages etc (clause 47). The notice given under s. 47 may recognise that some rights, titles and interests are to be preserved (clause 48). However the Commonwealth reserves the ability to terminate any such rights, titles or interest in land by writing (clause 49).

The Commonwealth has the power to interpret, modify and use Northern Territory legislation, as it has done in this section dealing with town camp leases, via the Territories power in the Constitution (s. 122).

Native Title Act

Clause 51 sets out the parts of the Bill to which Division 3 of Part 2 of the Native Title Act 1993 (the future act provisions) does not apply.

Public Works Committee

Under the Public Works Act 1969, Parliament s Joint Committee of Public Works must recommend that the Parliament approve expenditure on Commonwealth-funded capital works above $15 million.

Clause 53 would stipulate that this requirement would not apply to any work carried out on land covered by a s.31 lease agreement, land in which a Commonwealth interest exists, or town camp land resumed under the Special Purposes Leases Act.

Part 5 Business management areas

The most significant amendments in Part 5 are contained in 'Division 4 Commonwealth management in business management areas'. Subdivision A relates to Commonwealth management of community government councils.

The proposed amendments contained in Division 4 modify Northern Territory legislation only so far as is necessary, in order to provide the Commonwealth with the same powers as the Northern Territory though with appropriate adaptations. These amendments are designed to bring particular types of community services entities under external administration. This initiative is in response to the failures relating to the provision of Commonwealth or Northern Territory funded services in business management areas. [38]

Community services entities charged with providing services in business management areas by and large tend to be community government councils which are incorporated either under the Local Government Act or the Associations Act (NT). The changes proposed in Division 4 modify the Local Government Act and the Associations Act so as to give powers under that legislation to the Commonwealth Minister. However, the powers given to the Commonwealth Minister under that legislation are delimited.

Part 6 Bail and sentencing

The EM states that:

Clauses 90 and 91 are modelled closely on the Crimes Amendment (Bail and Sentencing) Act 2006 which amended the sentencing and bail provisions in the Crimes Act 1914 in accordance with the decisions made by the Council of Australian Governments (COAG) on 14 July 2006.

COAG agreed that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of violence or sexual abuse. All jurisdictions agree that their laws will reflect this, if necessary by future amendment . COAG also asked the Standing Committee of Attorneys-General (SCAG) to report to the next COAG meeting on the extent to which bail provisions and enforcement take particular account of potential impacts on victims and witnesses in remote communities and to recommend any changes required.

The COAG meeting followed the recommendations of the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities on 26 June 2006.

For full background on the Commonwealth measures, see the Senate Standing Committee on Legal and Constitutional Affairs Crimes Amendment (Bail and Sentencing) Bill 2006 tabled 16 October 2006, and the Bills Digest No 56, 27 November 2006.

The Bills Digest explains in detail the political impetus for the Summit and the bill originated in public debate around the sentencing decision in the GJ v R case involving customary law in the Northern Territory.

The Bill was clearly framed by the Government as an attempt to provide leadership and set an example to the States in the context of ongoing negotiations. But it also was linked to funding. The Minister for Families, Community Services and Indigenous affairs, the Hon Mal Brough MP, has indicated that state and territory funding for indigenous programs will be linked to states and territories amending their laws so as to remove cultural background from mandatory consideration when sentencing offenders. The funding linkage was opposed by ACT Chief Minister, Jon Stanhope and the WA Attorney-General. [39]

The Senate report notes a series of criticisms of that bill, including that the Bill s focus is misdirected , because of the absence of any Federal laws relating to violence or sexual abuse in Indigenous communities that will be affected or changed as a result of the Bill . The same could not be said of the current amendments, which will clearly affect NT indigenous residents. At present, the sentencing guidelines under section 5 of the NT Sentencing Act merely allow the judge discretion to consider the offender s background in the context of the seriousness of the offence. Under section 104A, only the way the judge receives any information on customary law is regulated.

HREOC has previously argued that there needs to be formalised recognition inserted into the Sentencing Act 1995 (NT) to require the courts to always consider whether customary law is a relevant consideration and to apply it consistently with human rights principles.

The Committee also voiced concerns about the haste with which the proposals in the Bill have been drafted and introduced into Parliament, without adequate, if any, consultation with Indigenous and multicultural groups .

Finally, the Committee considered that the most concerning feature of the Bill is the symbolic message that it sends to the judiciary (and the community at large), and the judicial uncertainty it may create .

As well as those general concerns which are relevant to the present amendments, other constitutional questions arise. The Commonwealth Parliament does not have a general power to legislate with respect to criminal law in a manner which would bind the states and territories. However, the Commonwealth Parliament does have a plenary power in respect of territories. The proposed policy measures would limit judicial discretion in sentencing matters. The constitutionality of this arose in the mandatory-sentencing debate as to whether limiting or completely usurping judicial discretion in sentencing constitutes an impermissible interference with the judicial power. This occurs when the legislature vests in a court capable of exercising the federal judicial power, a power which is incompatible with the judicial process. [40]

Part 7 Licensing of community stores

Basis of policy commitment

The Explanatory Statement states that Part 7 aims to address:

In effect, it appears that Part 7 of the Bill, which introduces a new licensing regime for community stores, aims to maximise the relative value of Government welfare payments, in comparison to the cost of living in remote Indigenous communities in the Northern Territory. By closely regulating the quality, quantity and range of groceries sold by licensed stores, the Bill also seeks to achieve an ancillary effect of increasing the quality of produce available to the communities, which may have a direct impact on the health and lifestyle.

Main provisions

Part 7 of the Bill deals with licensing of community stores. It introduces a new licensing regime, empowering the Secretary of the Department to grant community store licences . The licensing regime is designed to enable the Secretary to assess a community stores practices, including:

Clause 92 outlines the meaning of community store , to broadly include any business which provides grocery items and drinks as one of its main purposes. The definition expressly excludes takeaway and fast food shops, roadhouses, and other kinds of business expressly excluded by regulation. As the definition is broadly defined, it might also include businesses such as petrol stations (although if this were unintended, they could be expressly excluded later by regulation).

Under the Bill, community stores would not be licensed until they are assessed by appointed authorised officers (proposed Division 2). Assessment occurs in the community store, with the store operator being given at least 7 days notice that the assessment will occur (clause 95).

Community store licences are granted (or refused) by the Secretary, following assessment of the community store(s) (clauses 97-98). The Secretary may, having regard to the outcome of the store assessment (and any other relevant matters), refuse to grant a licence.

Clause 104 states that it is a condition of any community store licence that the holder of the licence must operate the store in a satisfactory manner (having regard to the assessable matters, above). Other licence conditions are dealt with in clauses 102-105. The Bill also provides for licence revocation, variation, surrender and transfer (clauses 106 111).

Clause 119 creates strict liability offences for store operators who refuse to produce documents and material that are reasonably necessary for the store assessment (60 penalty units), or who fail to provide assistance and facilities which are necessary and reasonable for the assessment (10 penalty units).

The Bill also provides the Secretary with a power to request information (clause 120), within a specified time and in a specified form or manner (at the Secretary s discretion), should the Secretary suspect that a person possesses information that relates to the assessment of a community store. Non-compliance with the request attracts a penalty of 10 units; provision of false or misleading information attracts a penalty of 60 units. The proposed section provides an exemption for people with a reasonable excuse for non-compliance (however, this does not include excuses relating to the commercial sensitivity or confidentiality of the information).

Comment

Parliament may wish to consider the extent of discretionary power that the proposed new licensing regime provides to the Secretary and officers. The Bill lacks a balance that could be provided by the inclusion of appeal provisions and less discretion (for example, at proposed subclause 120 (2)). This is particularly important for those provisions which impose a criminal penalty.

While businesses are required to be satisfactorily assessed at the time of licensing, it is unclear how the proposed legislation will ensure that the satisfactory state of business practices is maintained.

Overall, the licensing regime does not sit comfortably with general concepts of fair trading. Parliament may wish to consider the wider implications of imposing Government control upon the practices of small business operators.

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

Schedule 1 Prohibited material

Purpose

Schedule 1 amends the Commonwealth Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act) to prohibit the possession, control and supply of pornography in prescribed areas . [43]

Pornography or prohibited material as it is described in the Bill, is films (including DVDs and videos) or publications, that have been classified by the Commonwealth Classification Board according to the Classification Code as RC (Refused Classification), X18+ (sexually explicit material) and Category 1 or Category 2 Restricted material, as well as unclassified material likely to be classified in those categories.

Background

The Classification Act facilitates the operation of a national classification scheme, a cooperative arrangement between the Commonwealth, states and territories. The Classification Act provides that the Classification Board classifies films (including videos and DVDs), computer games and certain publications according to the National Classification Code. As part of the national scheme, each state and territory has enacted complementary classification enforcement legislation that prescribes penalties for classification offences and provides for enforcement of classification decisions in the particular jurisdictions. [44]

In the Northern Territory, the Classification of Publications, Films and Computer Games Act 2005 (NT) provides the framework for prohibitions on dealing with pornography of different classification categories and enforcement. Restrictions apply to the sale, exhibition, attendance at and copying of films and computer games which are unclassified, or classified RC, or films which are classified X18+. In addition there are restrictions on the sale or delivery of publications which are unclassified, classified RC or classified Category 1 Restricted or Category 2 Restricted [45]. Although X18+ classified material is restricted in the Northern Territory, unlike in the States, the sale and hire of X18+ material is permitted.

Provisions in Schedule 1

The Bill in proposed section 101 makes the possession or control of prohibited material an offence in prohibited areas. Unlike existing offences in Northern Territory legislation, the prohibition applies to mere possession of the prohibited material without any intention of copying, selling or hiring. The penalty for this offence is 50 penalty units. The penalty for the offence of possession of RC material is set at 100 penalty units (clause 102) the rationale being that the impact of this material is higher.

Proposed section 101 prohibits the supply of prohibited material in and to prescribed areas. The provision would apply in all states and territories. Supply is defined broadly and includes distribution on a not for profit basis. The penalty is 100 penalty units. For the supply of 5 or more prohibited items the onus of proof is reversed and the penalty is 200 penalty units and/or imprisonment for two years.

Proposed sections 106 109 provides for police powers to seize and destroy prohibited material . Entry and search must be done by warrant or consent in accordance with Part 1AA of the Crimes Act 1914.

Proposed sections 100 and 111 clarify that the offences are to apply in addition to State and Territory legislation.

Schedule 2 Law enforcement

The Explanatory Memorandum states that the amendments in Part 6 to the powers and functions of the Australian Crime Commission (ACC) and Australian Federal Police (AFP) are designed to 'protect Aboriginal children in the Northern Territory from harm'. [46]

Background

Australian Crime Commission

Schedule 2, Part 1 amends the Australian Crime Commission Act 2002 (ACC Act).

The Australian Crime Commission (ACC), (formerly the National Crime Authority but with enhanced intelligence functions), commenced operations on 1st January 2003. Under Section 7A of the ACC Act, the aim of the ACC is to 'reduce the incidence and impact of serious and organised criminal activity on the Australian community'.

To achieve this aim, the ACC has a range of special coercive powers such as the capacity to compel the attendance at Examinations, to produce documents and to answer questions (similar to a Royal Commission). The ACC also has an intelligence-gathering capacity and a range of investigative powers common to law enforcement agencies, such as the power to tap phones, use surveillance devices and participate in controlled operations. These powers will be expanded if the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 currently before the Senate is passed by the Parliament. [47] Another Bill before the Parliament, the Telecommunications (Interception and Access) Bill 2007, if passed will deem all child pornography offences to be serious offences for the purpose of obtaining a warrant to intercept phone calls, emails, and other forms of telecommunications. [48]

National Indigenous Violence and Child Abuse Intelligence Task Force

The National Indigenous Violence and Child Abuse Intelligence Task Force (NIITF) was announced in July 2006, and will lead national coordination in the collection and sharing of information and intelligence relating to child abuse, violence, drugs, alcohol, pornography and fraud affecting Aboriginal and Torres Strait Island communities. [49] Activities will be coordinated by the Task Force s operational head, based in Alice Springs, with support from ACC and jurisdictional staff working from Darwin and other ACC offices. Subject to ACC Board approval, the NIITF will operate until late 2008, with a final report to the ACC Board due in mid 2009. The ACC website for the NIITF states:

The Law Society of the NT was critical of this development at the time because of the 'Star Chamber' powers of the ACC and stated in a media release that:

Amendments

Division 1

Under existing subsection 7C(c), the Board can to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity. [52]

The main change made by Division 1, items 1 to 14 is that the words 'serious and organised crime' are deleted from the definition of federally relevant criminal activity (and elsewhere in the definitions subsection 4(1)) and replaced with the term relevant crime.

Item 6 inserts a new definition of relevant crime into subsection 4(1) to include:

Indigenous violence or child abuse is further defined widely in item 5 as 'serious violence or child abuse committed by or against, or involving, an indigenous person'. Serious violence is further defined in item 9 as limited to an offence punishable by a minimum three years imprisonment. Child abuse is also defined in item 2 as limited to an offence punishable by a minimum three years imprisonment.

The Explanatory Memorandum explains that the government fully intends the full range of ACC powers to be directed at the issue, and that it is clearly envisaged by the government that these offences would not normally be caught by the term 'organised crime'.

Divisions 2 and 3

The amendments in Division 2 would allow an ACC examiner to request or compel information, documents or things held by a State or Territory agency that are relevant to an operation/investigation, provided an arrangement is in force between the Commonwealth and the State or Territory. Presumably this will allow the ACC to compel information from the NT government.

The Division 3 amendments would extend the term of appointment for ACC Examiners from five to 10 years. The EM does not explain how this amendment is in any way connected to the Bill's purpose.

Australian Federal Police

Schedule 2, Part 2 amends the Australian Federal Police Act 1979 (the AFP Act) to put beyond doubt that members of the Australian Federal Police (AFP) deployed to the Northern Territory Police Service (NTPOL) and appointed special constables can exercise all of the powers and duties of a member of the NTPOL under Northern Territory legislation.

Comment

The amendments made to the ACC Act go far beyond the current situation in the Northern Territory. The Division 1 amendments are not geographically defined or time-limited, but affect the mandate of the ACC itself, dependent of the deliberations of the Board.

The amendments in Division 3 do not seem to relate to the purpose of the Bill in that they are not obviously directed to the NT plan at all, and in this sense appear opportunistic.

Definitions of key terms such as federally relevant crime were predicated on the need to carefully delimit the capacity to deploy the ACC's special coercive powers only against serious and organised crime.

The Parliamentary Joint Committee on the Australian Crime Commission report Review of the Australian Crime Commission Act 2002, tabled in 10 November 2005 summarised that:

The second reading speech for the Bill introducing the previous National Crime Authority noted:

Whilst the allegations of child abuse and violence in the Northern Territory are extremely serious and alarming, the question remains whether the ACC is an appropriate body to deal with such abuse. Family violence within Australian society generally may be endemic and serious in both the moral and legal senses of the term, but most Australians would not categorise it as organised crime. The NIITF itself recognises that a 'non-punitive approach' is therefore appropriate. There do not appear to be any trans-boundary/organised crime elements to the allegations which would normally justify engaging the controlled operations/coercive powers of the ACC. Parliament may wish to consider, in the absence of such elements, whether good community policing is more appropriate to the task.

Even if Parliament answers that question in the negative, there is a strong argument that these amendments should not be rushed. The Attorney-General's Department is currently conducting a review of specific provisions of the National Crime Authority Act 1984 and the Australian Crime Commission Act 2002, with the final report imminent. Mr Mark Trowell QC is conducting the review on behalf of the Australian Government. Any major amendments to the scope and nature of the ACC should arguably not be made until the outcome of the review is tabled and considered.

Finally, the amendments in Division 1 do not appear consistent with international law, in the sense that they could in operation apply punitive measures in a racially discriminatory manner. [55]

Schedule 4 Access to Aboriginal land

Background to the Permit System

The Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) currently enables the permit system on Aboriginal land in the Northern Territory. Section 70 makes it an offence for a person to enter or remain on Aboriginal land except (among other things) in accordance with the ALRA or with a law of the Northern Territory (penalty: $1000). Section 73 gives the Northern Territory Legislative Assembly power to make laws regulating or authorising entry onto Aboriginal land, but any such laws must provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition.

In the Aboriginal Land Act (NT), authorised by section 73 of the ALRA, section 4 makes it an offence for people to enter or remain on Aboriginal land and certain roads without a permit (penalty: $1000). Section 8 says the legislation does not authorise the entry of a person to a living area without the permission of the owner or the occupant. Section 11 empowers the Administrator on the recommendation of a Land Council to declare an area of Aboriginal land or a road to be an open area or open road which can be entered without a permit.

Permits can be issued by the traditional owners of the area concerned, the relevant Land Council, the Administrator of the Northern Territory (where a person has applied for a permit to use a road and been refused or the permit has not been issued in a reasonable time) and, if in respect of certain Commonwealth or Northern Territory Government employees, the relevant Northern Territory Minister.

The Land Council and the traditional owners can revoke their own or each other s permits and delegate their authority to issue permits. Most permits are issued without charge.

Reform of the permit system was first recommended in Building on Land Rights for the Next Generation Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 August 1998. John Reeve Q.C. found that:

Reeve recommended that:

In the years that followed there were few other public challenges to the wisdom of the permit system but it was questioned by a magistrate in 2002. [57] On 12 September 2006, the Minister for Families, Community Services and Indigenous Affairs, the Hon Mal Brough MP, announced a reconsideration of Commonwealth legislation allowing for the permit system that restricts entry to some remote Indigenous communities. The Minister put the view that increased external scrutiny would be in the interests of vulnerable in what are closed communities, and that liberalisation would also bring economic benefits that would help to promote the self-reliance and prosperity of Aboriginal people in remote communities.

In October 2006 Minister Brough issued a discussion paper [58] to examine and seek comment on options for an improved system of access to Aboriginal land under the ALRA and related legislation that both respects the integrity of Aboriginal land and facilitates the normal interactions necessary for social and economic development. Minister Brough presented the problem of the current arrangements as follows:

Brough argued that a new system regulating access to Aboriginal land should operate to:

Minister Brough presented 5 options.

It was not clear which of the above options was being favoured by the Government when the Minister announced the National emergency response to protect Aboriginal children in the NT Media Release 21/06/2007. The Minister s release included the stated intention of scrapping the permit system for common areas, road corridors and airstrips for prescribed communities on Aboriginal land . That announcement, along with earlier and subsequent ones, however, drew many expressions of concern. Some argued that the permit system was not a major contributor to community underdevelopment and social dysfunction, that its scrapping was not one of the recommendations of the Every Child is Sacred report, and would only make the control of alcohol, drugs and outside predators even more problematic.

Provisions in Schedule 4

Schedule 4 of the Bill effectively scraps the existing permit system and allows entry for a wide range of people (highlighted in options 2 and 3 of the Brough discussion paper, outlined above).

Item 9 repeals existing subsection 70(2A) of the ALRA and replaces it with a new subsection 70(2A) which details a long list of people who may enter or remain on Aboriginal land, including:

In addition, under proposed new section 70(2BB) the Minister would be able to authorise a specified person, or any person included in a specified class of persons, to enter or remain on Aboriginal land. This provision has a sunset clause of five years from commencement (70(2BD).

Under proposed section 70F, a person would be able to enter and remain on a common area within community land, if the entry or remaining was not for a purpose that is unlawful. A common area is defined as an area that is generally used by members of the community concerned, but does not include a building, a sacred site, or other areas which may be prescribed by regulation (subsection 70F(20)). Some temporary restrictions may apply to protect privacy for events such as cultural ceremonies.

Access to common areas would not apply in relation to areas that are covered by leases under section 19 of the ALRA (subsection 70F(2)). Regulations may be made providing that specified common areas are taken to be public parks for the purposes of NT law relating to public parks (subsection 70F(5)). The relevant Land Trust will not be obliged to maintain a common area to a level that is suitable for use by the public, and will not be liable for any loss, damage or injury to a person using a common area (subsection 70F(8)).

Schedule 7 details all community land in the NT.

Proposed new sections 70B, 70C and 70D and 70E allow a person to use a road, aerodrome or boat landing place to travel to and from any community land, provided that the purpose of access to the community land is not unlawful. Some temporary restrictions may apply to protect privacy for events and to protect public health and safety (for example for road upgrades or repairs).

A person will be able to enter or remain on Aboriginal land to attend a court hearing (proposed s. 70G).

Acknowledgments

Contributing authors include Bronwen Jaggers, Coral Dow, Diane Spooner, John Gardiner-Garden, Juli Effi Tomaras, Kirsty Magarey, Mary Anne Neilsen, Moira Coombs, PaoYi Tan, Patrick O'Neill, Peter Yeend and Susan Harris-Rimmer.

Endnotes