Bills Digest no. 82 2007–08
Families, Housing, Community Services and Indigenous Affairs and
Other Legislation Amendment (Emergency Response Consolidation) Bill
2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
This Digest replaces an earlier version dated
12 March 2008, including
some
additional contextual material.
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Families, Housing, Community Services and
Indigenous Affairs and Other Legislation Amendment (Emergency
Response Consolidation) Bill 2008
Date
introduced: 21
February 2008
House: House of Representatives
Portfolio: Families, Housing, Community Services
and Indigenous Affairs portfolio
Commencement:
The day after Royal
Assent
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/.
The four Schedules of this Bill
amend a range of Acts in order to, variously:
- enable pay-TV services which broadcast more than the specified
amount of R18+ material to be prevented from offering the service
in certain declared areas of the Northern Territory;
- enable pornographic material to be transported legally across
areas of the Northern Territory (currently its presence for any
purpose is prohibited);
- reintroduce elements of the permit system in the Northern
Territory which will require visitors to certain aboriginal areas
to first seek permission to enter the area; and
- allow the community store regime to be extended to certain
roadhouses.
In May 2007 the Federal Government was given a copy of Ampe
Akelyernemane Meke Mekarle Little Children are Sacred : The Report
of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse, authored by Pat
Anderson and Rex Wild (the Anderson/Wild report).[1] In response
to this report the then Prime Minister, Mr John Howard, MP, and the
then Minister for Families, Community Services and Indigenous
Affairs, Mr Mal Brough, MP, announced certain emergency initiatives
on 21 June 2007,[2]
and on 7 August 2007 a package of five Bills was introduced
into the Parliament (the collection of Bills and the subsequent
Acts are referred to here as the intervention or the intervention
package ).[3]
The Parliamentary debates excited considerable interest but were
conducted in an unusually short time frame The second reading
debate in the House of Representatives occurred cognately (all five
Bills were debated together), and they were passed on the evening
of the date of introduction.[4]
Numerous submissions to the two-day Committee Inquiry into the
intervention package made frequent reference to concerns
regarding
- the short time frame for consideration of the changes
- the government s changes to the permit system and
- the overturning of provisions of the Racial Discrimination
Act 1975 (the RDA).[5]
Further background to the initial Bills can be seen from the
various Bills Digests.[6]
The Opposition moved several amendments to the legislative
package relating to the Racial Discrimination Act 1975,
the permit system, and the need for a review after one year.
However, the then Opposition leader, Mr Kevin Rudd, MP, stated that
the ALP broadly supported the Bills.[7] The Bills were passed unamended by the
Senate.[8]
In August of 2007 the previous administration introduced
amendments to the package in an identically titled, but differently
dated Bill: the Families, Community Services and Indigenous Affairs
and Other Legislation Amendment (Emergency Response Consolidation)
Bill 2007.[9]
The two Bills do not contain much in common, however the
amendments in the current Bill s Schedule 4 are in identical form,
and the amendments in Schedule 1 share some of the provisions with
the earlier Bill s Schedule 1. Both Schedules aim to regulate the
pay-TV available in prescribed areas. The earlier Bill proposed a
blanket ban, while the current Bill introduces more complex
provisions, allowing the Minister to be more selective and to
involve communities in deciding whether the additional bans are
appropriate. The earlier Bill never progressed past its
introduction.
The Bill is not currently before a Committee for consideration.
As noted above, the initial package of Bills went before the Senate
Legal and Constitutional Committee for a short time,[10] however attempts by
the Democrats and Greens to refer one of the Bills (the Social
Security and Other Legislation Amendment (Welfare Payment Reform)
Bill 2007) to the Community Affairs Committee were
defeated.[11]
It is arguable the short time frame for consideration of the
earlier legislative package was discernible in the subsequent need
for early amendments.[12]
This Bill s suggested amendments have not excited the passions
that the original intervention ignited, but nor are they quite so
radical or far-reaching. In a sense the debates have now been
rehearsed, with some of the amendments flagged during the election
campaign. Generally commentary has been muted, although the
Opposition has accused the government of going soft on pornography
and rolling back the intervention in a manner which they will
oppose.[13]
The Northern Territory (NT) intervention has been the on-going
topic of debate, with various interest groups and commentators
providing on-going reactions. During the election campaign a member
of the NT Government, Ms Scrymgour, gave a strong speech against
the intervention s approach.[14] This was the cause of some political disruption,
with Mr Rudd reportedly angry that the intervention was being
criticised,[15]
although he distanced himself from suggestions he had intervened to
achieve a retraction.[16] Ms Scrymgour has not been the only critic,[17] and there has also
been a High Court challenge to the legislation, which is due to be
heard in March.[18]
During the election campaign the ALP offered support to aspects
of the intervention, while undertaking to reinstate the permit
scheme, a modified version of the Community Development and
Employment Program (CDEP) scheme and reviewing the intervention
after a year.[19]
The Opposition has been reported as deciding to, effectively,
force the government to wait until July when the balance of power
in the Senate shifts, before it can achieve passage of the Bill as
it stands.[20]
A closer examination of the background for each of the Schedules
is necessary, because each makes independent adjustments to
different legislative provisions.
The original NT intervention legislation introduced various
prohibitions against pornographic material such as videos and DVDs.
The prohibitions were primarily contained in the Families,
Community Services and Indigenous Affairs and Other Legislation
Amendment (Northern Territory National Emergency
Response and Other Measures) Act 2007 (the FNTNERA).
Schedule 1 of the current Bill deals with the regulation of
narrowcasting services (colloquially known as pay-TV). It allows
the Minister to declare an area of the NT in which services
broadcasting R18+ for more than 35% of their broadcasting time can
be prohibited from supplying their service. There are conditions on
the declaration of an area which are designed to ensure that
residents are involved in the decision making. This means that the
current provisions may be more likely to satisfy the requirements
for a special measure under the RDA.
Special Measures in the Racial Discrimination Act
1975
There is a general legislative prohibition on racial
discrimination contained in the Racial Discrimination Act
1975 (the RDA). 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. Subsection 132(1) of the
Northern Territory National Emergency Response Act
2007 (the NTNERA) defined all the provisions of the Act as
special measures under the RDA and subsection 132(2) excluded it
from the operation of Part II of the RDA. Similar and related
provisions were included in the associated legislation. This has
been the subject of some community concern.
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. Consequently measures which differentiate on the
basis of race may be appropriate.
The Human Rights and Equal Opportunities Commission (HREOC) has
used the restriction of sales of alcohol to some Aboriginal people
in the Northern Territory as a classic example of an appropriately
implemented special measure. The agreement they refer to 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.[21]
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 RDA was designed to implement the UN s International
Convention on the Elimination of All Forms of Racial
Discrimination (CERD).[22]
Article 1(4) of CERD, from which the RDA s special measures were
taken, provides as follows:
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 have been achieved.
The Australian courts have interpreted this definition as
containing four elements:
- a special measure must confer a benefit on some or all members
of a class;
- the membership of the class must be based on race, colour,
descent, or national or ethnic origin;
- a special measure must be for the sole purpose of securing
adequate advancement of the beneficiaries in order that they may
enjoy and exercise equally with others human rights and freedoms;
and
- the circumstances of the special measure must provide
protection to the beneficiaries which is necessary in order that
they may enjoy and exercise human rights and freedoms equally with
others.[23]
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 a central question is whether
the measure confers 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.
This Bill proposes to exclude its provisions from the operation
of section 132 of the NTNERA (i.e. the provisions will not rely on
the Act s definition of itself as containing special measures). It
will rely on the fact that benefits are to be gained by individuals
in the relevant indigenous communities (especially
children).[24] The
beneficial nature of the arrangements will also be evidenced by the
request for the special prohibitions on services with a high level
of R18+ material. The government argues through the Replacement
Explanatory Memorandum that this will be sufficient to classify the
measure as a special measure. [25]
Were a court to conclude that there was, in fact, no, or
insufficient, benefit conferred, it would be inconsistent with the
character of a special measure. Difficult issues of fact could
arise here, and close scrutiny of the arrangement and its impact
would be required to consider such an argument. The Explanatory
Memorandum draws attention to the limited time frame for the
provisions (i.e. the sunset clause and the limited nature of the
declarations), however only a court can determine whether these
provisions and arrangements constitute an acceptable special
measure .
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 manner in which it will practically operate. The objects
provision in the Bill is presumably designed to contribute to a
determination that the measures in the Schedule qualify as a
special measure.[26]
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:
The dignity of the beneficiaries is impaired and
they are not advanced by having an unwanted material benefit
foisted on them. An Aboriginal community without a home is advanced
by granting them title to the land they wish to have as a home.
Such a grant may satisfy a demand for land rights. But an
Aboriginal community would not be advanced by granting them title
to land to which they would be confined against their wishes.
'Advancement' is not necessarily what the person
who takes the measure regards as a benefit for the beneficiaries.
The purpose of securing advancement for a racial group is not
established by showing that the branch of government or the person
who takes the measure does so for the purpose of conferring what it
or he regards as a benefit for the group if the group does not seek
or wish the benefit. 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. The dignity of the beneficiaries is impaired and they
are not advanced by having an unwanted material benefit foisted on
them.
The difference between land rights and apartheid
is the difference between a home and a prison.[27]
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 is made will also be relevant.[28] Difficult issues have arisen for a
court s consideration where the wishes or views of the Indigenous
community are not uniform. While Schedule 1 s provisions do not
immediately confer a material benefit , it may be seen as giving a
benefit to those women and children who would otherwise suffer the
side-effects of the proximate consumption of pornography certainly
the Replacement Explanatory Memorandum argues that it will.[29]
Regulating
Pornography: a material benefit?
The Anderson/Wild report
had concluded that pornography was one of the main factors
that:
lead inexorably
to family and other violence and then on to sexual abuse of men and
women and, finally, of children. [30]
The report noted that:
children in Aboriginal communities are widely
exposed to inappropriate sexual activity such as pornography, adult
films and adults having sex within the child s view. This exposure
can produce a number of effects, particularly resulting in the
sexualisation of childhood and the creation of normalcy around
sexual activity that may be used to engage children in sexual
activity. It may also result in sexual acting out , and actual
offending, by children and young people against others.[31]
The report concluded that the availability of pornography and
children s exposure to it is the result of poor supervision,
overcrowding in houses and acceptance or normalization of this
material .[32]
However, it is noteworthy that, while Austar and SBS television
channels are nominated as problematic,[33] the report s recommendation in
relation to pornography is to conduct education campaigns in
communities about the film classification system, the illegality of
exposing children to indecent material, and the harm that such
exposure produces.[34]
Commentary/Reaction to the Schedule s Proposals
Of all the issues dealt with by the intervention, its regulation
of pornographic material seems to have the fewest public
detractors. Ms Scrygmour, now the NT Indigenous Affairs Minister
and Deputy Chief Minister, who has strongly criticised aspects of
the intervention,[35] has endorsed the ban on pornography.[36] Professor Marcia Langton has
also argued passionately in favour of the ban,[37] while a range of others have
voiced their support, with Graham Ring summarising the matter, Yes,
bans on pornography and alcohol will be widely welcomed. [38] The support, however,
is not universal,[39] and concerns have been raised regarding the
Commonwealth s approach to the matter on the grounds that it does
not address the central issues which should be focussed on in order
to circumvent the problems being experienced in NT communities:
A central Australian community leader [Leo Abbott
from the Ilpurla community] says the Federal Government's anti-porn
bill will be useless if it is not backed up with education in
remote communities.[40]
There are also more specific concerns being raised by the
Opposition, who believe that the Bill is not hard enough on
pornography. Both Dr Nelson and Mr Abbott have expressed concerns,
with Dr Nelson reported as having criticised Labor's shift on
pornography. We are very concerned that Labor is going soft on the
trafficking of pornography in some indigenous areas. [41]
Mr Abbott also said there should be a blanket ban on pornography
in indigenous communities, not the voluntary ban envisaged by the
Government. Mr Abbott is reported by The Australian as
saying:
We will seek to amend the legislation to restore
the original intervention so we will be seeking to scrap the permit
system in respect of the townships themselves, and we will be
seeking a blanket ban on pay-TV porn... We are entitled to insist
upon the intervention in its purity, given that it was a very
popular measure and received general support.[42]
The imposition of a non-consultative blanket ban on pay-TV porn
would certainly resurrect the problem of possible inconsistencies
with the RDA.
As detailed above, there is significant support for the
prohibition on pornographic material in prescribed areas, however,
the practical difficulties of transporting materials around
prescribed areas, rather than through them, have led to these
proposed amendments which will allow pornographic material to be
transported through prescribed areas. As the Replacement
Explanatory Memorandum documents, the Stuart Highway passes through
prescribed areas,[43] and the difficulties of discovering an alternative,
legal, route for those in the industry would seem significant
(there is an existing exemption for mail services[44]). While the Opposition have said
they will oppose the Bill, they have nominated the permit system
and the non-blanket nature of the regulation of pay-TV as the areas
of concern, so the provisions in this Schedule may not be the
object of significant opposition.
The FNTNERA made amendments to the access arrangements of
Aboriginal land in the Northern Territory. Previously the
Commonwealth Aboriginal Land Rights
(Northern Territory) Act 1976 (ALRA) had
provided for a permit system on Aboriginal land in the Northern
Territory. It was 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. The Northern
Territory Legislative Assembly had 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. The Administrator of the NT,
on the recommendation of a Land Council, was able 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.
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), known as the
'Reeves report'. 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.[45] In 2006 the then Minister for
Families, Community Services and Indigenous Affairs, the Hon Mal
Brough MP, announced a reconsideration of the permit system. The
Minister put the view that increased external scrutiny would be in
the interests of vulnerable persons 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.[46]
A discussion paper was issued and
the problem of the current arrangements was presented as
follows:
The permit system is a vestige of the former
protectionist system of Aboriginal reserves under which entering or
leaving Aboriginal lands was restricted. While Aboriginal people
are now of course free to leave, entry restrictions for
non-Aboriginal people remain. While the current system was put in
place with the best of intentions, its maintenance is no longer
appropriate. With modern communications having broken down many of
the barriers of remoteness, the current paper system of permits is
increasingly anachronistic and ineffective. It is clear that,
despite its restrictions, the current permit system has not
prevented the scourge of drug trafficking or violence and abuse
occurring in many communities.
[T]he permit system is not an alternative to
adequate policing. Arguably the permit system serves only to
restrict those inclined to respect the law not those who already
flout the law and operate in spite of the permit system [47]
The then Minister argued that a new system regulating access to
Aboriginal land should operate to:
- ensure the normal interactions of society can occur, including
external scrutiny
- allow individual Aboriginal people to engage with and benefit
from the market economy without hindrance
- distinguish between communal or public space and private space
on Aboriginal land
- ensure open access to public space , including townships and
related roads
- protect the privacy of private space , including residences and
most Aboriginal land
- respect Aboriginal culture on traditional lands, particularly
in the support it gives to protection of sacred sites and to
ceremonies
- continue to allow for effective land management by Aboriginal
groups, and
- be simple to administer, preferably by government, to ensure
transparency and accountability.[48]
Some submissions to the discussion paper, resubmitted to the
Senate inquiry regarding the intervention package, 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 Wild/Anderson Report, and that it
would only make the control of alcohol, drugs and outside predators
even more problematic.[49] The Law Council of Australia argued:
There is no evidence presented in the discussion
paper that the permit system unnecessarily impedes media access to
Aboriginal lands, or has contributed to the economic and social
isolation of Aboriginal communities. The prevailing view among
experts in this area is that the poor economic and social outcomes
for Indigenous Australians remain tied to poor service delivery,
lack of housing, lack of employment opportunities, lack of
education and training, poor health and life expectancy and serious
drug and alcohol problems affecting Indigenous populations in both
metropolitan and regional areas.[50]
The Police Federation of Australia goes further in support of
the current system:
Operational police on the ground in the Northern
Territory believe that the permit system is a useful tool in
policing the communities, particularly in policing alcohol and
drug-related crime. It would be most unfortunate if by opening up
the permit system in the larger public townships and the connecting
road corridors as the Government intends, law enforcement efforts
to address the rivers of grog , the distribution of pornography,
and the drug running and petrol sniffing were made more
difficult.[51]
A comprehensive
report on the permit system was prepared by Professor Jon
Altman, who found no evidence that the partial abolition of the
permit system would reduce child sex abuse, and that the
arrangements which were to be enacted by the package may be
unworkable in practice.[52]
The removal of the permit system, which has only been fully
effective since 17 February 2008, has been the subject of various
concerns.[53]
Graham Ring provides a summary of many attitudes when he comments
that, while elements of the intervention were welcome, the
indigenous communities
wish-list never included the unilateral
acquisition of their townships, or the emasculation of the permit
system which provides them with a measure of protection against
grog-runners, carpetbaggers and sexual predators.[54]
The Bill proposes to remove the provisions enacted by the former
Government, but will retain the capacity of the Commonwealth
Minister to permit selected individuals or classes of individuals
to enter any specified aboriginal land. The second reading speech
specifies that this provision will be used to give access to
journalists. [55]
The Media Entertainment and Arts Alliance (MEAA) is reported as
being confident of securing changes to the permit system for
Aboriginal communities in favour of journalists. The MEAA s federal
secretary, Mr Christopher Warrn, has been reported as saying:
The Alliance has drafted a journalist code of
conduct to improve access onto Aboriginal land the code is being
considered as part of the Federal Government's proposed changes to
the Aboriginal Land Rights Act
There's has been a long term debate about the role
of the media in being able to get access to report on issues of
public interest on Aboriginal lands without unnecessary
restrictions and hopefully we are getting towards a point where the
concerns of Aboriginal people are appropriately balanced with the
needs to a free media.[56]
The NTNERA introduced a licensing regime applicable to persons
who operate community stores in indigenous communities in the
Northern Territory.[57] According to section 92 of the NTNERA a business is a
community store if one of the main purposes of the business is the
provision of grocery items and drinks (and the business is carried
out in one of the specified locations).[58] Existing subsection 92(2)
specifically excludes a roadhouse from the definition of community
store .
The reasons for this exclusion are somewhat convoluted and
involve the definition of a prescribed area which would naturally
exclude a roadhouse in fact the Explanatory Memorandum of the
original Bill specified that roadhouses were excluded from the
definition of community store to ensure that these businesses were
not covered by the licensing scheme.[59]
The current Bill s provisions will allow a roadhouse, which
effectively performs the function of a community store for those
communities in the Northern Territory which are located on or near
major highways, to become a licensed community store when a
community is substantially dependent upon the roadhouse for the
provision of grocery items and drinks.[60]
The requirement for a community store licence was intended to
address a number of concerns that some stores in indigenous
communities are poorly managed and have low quality goods sold at
high prices.[61] In
addition, the community store licensing scheme allows for
quarantined welfare payments to be held by licensed stores under
the income management regime which is established by the Social
Security and Other Legislation Amendment (Welfare Payment Reform)
Act 2007.
Allowing roadhouses to become licensed community stores will
extend the operation of the licensing regime thus making it easier
for the Government to manage its income management regime in those
communities.
The Bill does not contain a definition of substantially
dependent . It will presumably fall to those seeking licensing as
community stores to prove to the satisfaction of the Secretary, or
his/her delegate, that the local indigenous community is
sufficiently dependent on them for the provision of grocery items
and drinks to warrant the granting of a community store licence.
Since this licence carries with it some potentially onerous duties
of accountability and performance to be monitored by the
Secretary,[62] and
include the possibility that the Commonwealth could acquire the
assets and liabilities of the community store,[63] the incentives of participating
in the welfare scheme are presumably strong enough to warrant
participation in the scheme.
It is noted that there was recent reporting of problems faced by
retail outlets which are not participants in the welfare
scheme.[64]
The Replacement Explanatory Memorandum states that the community
stores measure has a financial impact of $0.6m in 2008-09. The
financial impact of the remainder of the bill is negligible.
[65]
Summary
This Schedule introduces a slightly complex legislative
arrangement to regulate the possible prohibition against certain
narrowcasting services providing their services to certain areas in
the Northern Territory. The provisions in this Schedule amend two
Acts, the Broadcasting Services Act 1992 (the BSA) and the
NTNERA. In the BSA, provisions are made for the monitoring and
record keeping regarding material being broadcast to prescribed
areas of the NT, and for the Minister to use this information to
declare a narrowcasting service. A declared narrowcasting service
is prohibited from providing its services to individuals in a
declared prescribed area.
Amendments proposed to the NTNERA provide the definition of a
declared prescribed area , and the mechanisms by which an area is
to be declared. The declaration is subject to certain requirements
or legislative exhortations, and the proposed legislative changes
also include a sunset clause and an account of when individual
declarations will cease to operate. Together these changes to the
BSA and the NTNERA are designed, in the words of the Bill s object
clause to protect communities from violence and sexual abuse.
[66]
Details: changes to the Broadcasting Services Act
Item 5 of Schedule 1 would
introduce new provisions into Schedule 2 of the BSA. These
provisions (proposed subclauses 5(3A) to
5(3D)) create a requirement that subscription
television narrowcasting services capable of being received in a
prescribed area, which broadcast R18+ programs, must keep certain
records.[67] These
records are to be in the form specified by the Australian
Communications and Media Authority (ACMA) and will include a record
of the total number of hours of programming broadcast and the total
number of hours of R18+ programs broadcast. There is a provision
that commercial ads or sponsorship material, promotions or other
such material (including news breaks, weather bulletins) are not to
be counted in these recording requirements (proposed
subclause 5(3B) of Schedule 2 of the
BSA).
These records can subsequently be relied on by a Minister
utilising the provisions introduced by item 10 of
this Bill, which proposes several new items to be introduced to the
BSA s Schedule 2. These proposed provisions create a framework by
which the Minister may declare a subscription television
narrow-casting service as a declared subscription television
narrowcasting service. A declared subscription television
narrowcasting service may not allow a subscriber in a declared
prescribed area to receive their services (proposed
subclause 12(1) of Schedule 2 of the
BSA). To do so is made an offence against the BSA by item
1[68] and is added to provisions
incurring a civil penalty by item 2 of the Bill.
Provisions are also made by the Bill for the relevant person to
appeal to the AAT against the declaration of the service
(item 3).
Provisions are made by the Bill for the sunsetting of the
provisions preventing a service from enabling a subscriber in a
declared prescribed area to receive the service. This is to occur
after five years or a shorter period specified by the
Minister[69] (the
specification would be a legislative instrument and thereby subject
it to parliamentary scrutiny and/or disallowance).[70]
Before a subscription television narrowcasting service can be
declared the Minister must be satisfied that the total number of
hours of R18+ programs broadcast in the relevant test period
exceeds 35% of the total number of hours broadcast during the
period (a seven-day period within a 21-day period before the
declaration is made). Similarly the Minister may not revoke a
declaration until satisfied that the service is broadcasting R18+
for less than 35% of its programming hour during a revocation test
period (a seven-day period within a 21-day period before the
revocation is made).
The provisions in the BSA also provide explicitly that they
over-ride NT laws dealing with discrimination, although it provides
for the Minister to make a determination by legislative instrument
that the laws are preserved (which is done by excluding them from
the operation of the provisions stipulating that the NT laws have
no effect) (proposed clause 13).
- whether there is reason to believe there are victims of
violence or sexual abuse (for the preceding 12 months) living in
the area
- the extent to which those in the community, particularly women
and children, have expressed their concerns at these matters
- whether there is reason to believe children may have viewed
R18+ material supplied on subscription television narrowcasting
service (for the preceding 12 months) (proposed section
127D).
The legislation also has provisions for the cessation of a
determination, which can either happen 12 months after it came into
force or earlier if the declaration specifies or if the Minister
determines (proposed subsections 127E(2) and
(3)). It also provides for the Minister to make
on-going determinations that the area should remain as a prescribed
area (proposed subsection 127E(5)).
Finally in an interesting provision, the new Part is to be
excluded from the operation of the exemption of the legislation
from the Racial Discrimination Act 1975 (RDA)
(item 17). As discussed above, the original
legislation defined everything done by the legislation as a special
measure and excluded it from the operation of Part II of the
RDA.[71] The
measures enacted in the current Bill would seem to satisfy
significant elements in the domestic and international standards
for justification of a special measure. By foregoing the
protections offered by the NTNERA s special measures clause these
amendments could be open to challenge in the courts.
The FNTNERA introduced offence provisions into the
Classification (Publications, Films and Computer Games) Act
1995 (the Classification Act), which prohibited certain
materials from being brought into prescribed areas of the Northern
Territory.[72] The
prescribed areas did not generally include the main population
areas but covered indigenous community areas. The materials
prohibited are:
Pornography [which was defined as] 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.[73]
The amendments proposed in Schedule 2 of this Bill do not seek
to alter the fundamental arrangements, but, simply introduce a
broad based exemption for those who bring the material into a
prescribed area for the sole purpose of transporting it somewhere
outside the prescribed area. Items 1-5 modify the
offence provisions (sections 101-103 of the Classification Act) to
include the defence that materials were being transported elsewhere
(and include notes clarifying that the defendant will bear the
legal burden of proving the defence[74]). Items 6-9 modify
the seizure and forfeiture provisions of the Classification Act
(sections 106, 108 and 109) so that the material is not subject to
seizure, and, if it is, the magistrate is bound to return the
materials.
The provisions of the Bill repeal most of the permit provisions
introduced by the FNTNERA. There is a list of individuals who are
entitled to enter aboriginal land which has been left untouched
(including Commonwealth public servants[75]) and the Minister continues to have a
broad discretion to authorise specified people to enter onto all or
particular Aboriginal land (proposed subsection
70(2BB)), a provision which, as mentioned above, the
second reading speech tells us will be used for the purposes of
allowing journalists access to Aboriginal communities.[76]
Item 2 of the Schedule specifies that current
authorisations would continue under the new provisions and the rest
of the Schedule consists of repeals of the current arrangements
which recently came into operation and which have provided
significantly less restricted access to aboriginal land.
The NTNERA introduced a definition of community store which
entirely excluded roadhouses from qualifying as a community store
(section 92). This Bill introduces a modified definition which will
allow a road house to qualify as a community store when a community
is substantially dependent on it for grocery items and drinks. The
definition of a community store is used within the framework of the
community store licensing scheme, through which the government
assesses the practices of stores, including
- the capacity to comply with the income management regime
introduced by the Social Security and Other Legislation
Amendment (Welfare Payment Reform) Act 2007.
- the quality, quantity and range of groceries and consumer
items, with an express inclusion of healthy food and drink
- the business practices of the store, including pricing and
other financial aspects (such as wages), and
- other matters considered relevant at the Minister s
discretion.[77]
Concluding comments
The provisions of the Bill are varied and likely to elicit
different reactions from different sections of the community. While
the restoration of the permit system may excite some antagonism
from some commentators there would seem to be a strong sense from
many residents of the relevant communities that they wish to
maintain the system. The provisions on pornography, while not as
comprehensive as those advocated by the Opposition may nevertheless
attract support, including support precisely because of their
participative/voluntary nature.
By subjecting the decisions to restrict access to pornographic
material to some form of community involvement the government may
be bringing the legislative arrangements within the purview of the
RDA rather than relying on a specialised/stipulative definition of
what constitutes a special measure . The outcomes of such a move
are yet to be seen, but it is interesting to see the government
making an attempt to balance the countervailing considerations in
the area.
Acknowledgements
With gratitude to Trudy Bray for her assistance in discovering
relevant materials.
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Feedback is welcome
and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
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[67]. A
prescribed area is defined to reflect the meaning section 4 of the
Northern Territory National Emergency Response Act
2007. This includes:
aboriginal land as defined in subsection 3(1) of the Aboriginal
Land Rights (Northern Territory) Act 1976 (the ALRA), as well
as roads, rivers, streams, estuaries etc that are excluded by
Schedule 1 of the ALRA or those that are excluded because of other
provisions in that Act.
land
granted under the Lands Acquisition Act 1978 (NT).
town
camps declared by the Minister (there is an initial list in
Schedule 1, Part 4 of the NTNERA) and
any other
area of the Northern Territory the Minister chooses to declare.
Kirsty Magarey and Paula Pyburne
14 March 2008
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
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