Bills Digest no. 18 2007–08
Northern Territory national emergency response Bills 2007—interim
Bills Digest
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.
CONTENTS
Passage history
Purpose
Overview
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
Endnotes
Contact officer & copyright details
Note
For the final Bills Digests on the package of Bills covered by this interim
Bills Digest, please see the following:
Northern Territory
National Emergency Response Bill 2007, Bills Digest, no. 28,
2007–08
Families, Community
Services and Indigenous Affairs and Other Legislation Amendment
(Northern Territory National Emergency Response and Other Measures) Bill
2007, Bills Digest, no. 21, 2007–08
Social Security
and Other Legislation Amendment (Welfare Payment Reform) Bill 2007,
Bills Digest, no. 27, 2007–08
Appropriation
(Northern Territory National Emergency Response) Bill (No. 1) 2007-2008,
Bills Digest, no. 24, 2007–08
Appropriation
(Northern Territory National Emergency Response) Bill (No. 2) 2007-2008,
Bills Digest, no. 25, 2007–08
Passage history
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.
The purpose of each individual Bill
will be discussed along with the main provisions.
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.
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:
The Anderson/Wild report found that Aboriginal people wanted to engage
with this process and were “committed to solving problems and helping
their children” in the face of a serious, widespread and often unreported
problem of sexual abuse. They found the situation to be a “reflection
of past, current and continuing social problems which have developed
over many decades,” and that the “combined effects of poor health,
alcohol and drug abuse, unemployment, gambling, pornography, poor
education and housing, and a general loss of identity and control
have contributed to violence and to sexual abuse in many forms”. They
highlighted the need for existing programs to work more efficiently
to “break the cycle of poverty and violence,” and to improve “coordination
and communication between government departments and agencies” to
end the current “breakdown in services and poor crisis intervention.”
Further, they declared that these programs must have adequate resources
and a long-term commitment from all governments if they are to succeed.
A number of recommendations were specific to Northern Territory institutions.
For example, recommendations were made with respect to the structural
reorganisation of the DHCS Family and Community Services Program,
and the creation of a Commissioner for Children and Young People.
The report also focused considerable attention on problems concerning
the connection between disclosure and the legal processes. Attention
was also given to dealing with some of the social determinants of
health such as the lack of employment opportunities and inadequate
housing as well as strategies to produce more resilient communities
with a particular focus on the role of education. [2]
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 Australian government response is framed as a top–down crisis
intervention … It is characterised as a short-term response to be
followed by medium- and long-term strategies – none of which are clear
at this stage. So, for example, whilst the Anderson/Wild report recommended
strategies to increase policing in remote communities in the long
term the Howard plan only extends for six months. … Many of the government’s
proposals – for instance, scrapping the permit system, assuming control
of Aboriginal land and instituting welfare reform – are simply not
raised in the Anderson/Wild report. No reason is given as to how measures
such as scrapping the permit system will address the problem of child
sexual abuse. Conversely, a number of the issues that are raised in
the report – in relation to community justice process, education/awareness
campaigns in relation to sexual abuse, employment, reform of the legal
processes, offender rehabilitation, family support services or the
role of communities, for example – have not, as yet, been addressed
by the Australian government response.
There are significant differences in the recommendations that relate
to those issues that are canvassed both in the Australian government
approach and the Anderson/Wild report. For example, there are nine
recommendations in the Anderson/Wild report – with numerous sub-components
in relation to alcohol – none of which include an immediate introduction
of widespread alcohol restrictions. Many remote communities are already
dry and this strategy could be incorporated into the recommended development
of community alcohol plans. Current evidence suggests that enforced
alcohol restrictions, in the absence of broader strategies to deal
with addictions, simply reduce supply and tend to shift problem drinking
into unregulated areas, such as Alice Springs town camps. As a result,
a single measure such as enforced alcohol restriction may, in fact,
result in increased harm from violence and abuse in these communities.
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:
To achieve progress in Indigenous development, there is a need for
increased ownership, by Indigenous people, of both the problems and
the policy solutions...
People who are affected by policy have a right to be
involved in its development – that is no more than a statement of
the primary rationale for democracy. And... people who are affected
by policy also have a responsibility to be involved
in its development.
The Aboriginal and Torres Strait Islander Social Justice
Commissioner 2007 Social Justice Report has made similar observations:
The greatest irony of this is that it fosters a passive
system of policy development and service delivery while at the same
time criticising Indigenous peoples for being passive recipients of
government services! [3]
He also suggested that the Federal Government’s response
had left many questions unanswered. For example:
First, on what basis will the government intervene
in one community as opposed to another? As Rex Wild and Pat Anderson’s
report reveals, there is a lack of statistics that reveal the true extent
of the problem. So, in the absence of any situational and needs analysis,
how does the government decide?
Second, and related to this question, is how will the government
decide the appropriate approach for the specific needs of individual
communities? I am concerned about a mismatch that has already
revealed it self between the public debate on these issues and the
findings of the Little Children are sacred report.
Third, and of critical importance, is what role does the community
have in this process? I think it is intentional that the government
has described its announcements as an ‘intervention’ as opposed to
a ‘partnership’ with Indigenous communities. We are now coming on
three years since the introduction of the new arrangements – so why
has the government not built relationships with communities sufficiently
that they can approach the announcements as a partnership?
Fourth, if the government intends to make lasting change – how
will it know when such change has occurred? In the absence of
regional and local level planning how will the specific issues facing
communities, and the connections between communities on a regional
basis, be addressed? This is something that incidentally was intended
to be a key feature of the new arrangements but which has by and large
failed to materialise as yet.
And fifth, how does the NT announcement fit with the processes
that are continuing to be introduced as part of the ‘new arrangements’
to date? Will it require another re-engineering of processes that
are yet to be bedded down? For example, the government has
released an evaluation plan for whole-of-government activities to
address the critical problem of lack of baseline data. The evaluation
plan identifies that in the coming year there will be reviews of some
of the communities who have previously been designated as communities
in crisis, and baseline data will be established for some new priority
communities. What is the impact of the NT announcement on this plan?
Does it re-direct these evaluation activities for new communities
to the NT rather than to communities in other states, or will there
be an expansion of the scope of the evaluative framework? This would
appear necessary to be able to effectively understand the success
or otherwise of the measures to be taken.
Similarly, will the government seek to utilise and expand
its program of Shared Responsibility Agreements and Regional Partnership
Agreements as tools to implement its NT announcements? It has
previously foreshadowed the importance of these as primary mechanisms
for engagement. As the Social Justice Report notes, these processes
offer the potential to embed a community development approach into the
new arrangements, but there is no evidence of this occurring to date.
The 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.
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.
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:
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.
[6]
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:
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. [7]
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.
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:
The Committee, while noting the explanations provided by the delegation,
reiterates its concern about the absence of any entrenched guarantee
against racial discrimination that would override the law of the Commonwealth.
(article 2)
The Committee recommends to the State party that it work towards
the inclusion of an entrenched guarantee against racial discrimination
in its domestic law. [10]
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.
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:
50 Acquisition of property to be on just terms
(1) The power of the Legislative Assembly conferred by section 6
in relation to the making of laws does not extend to the making of
laws with respect to the acquisition of property otherwise than on
just terms.
(2) Subject to section 70, the acquisition of any property
in the Territory which, if the property were in a State, would be an
acquisition to which paragraph 51(xxxi) of the Constitution would apply,
shall not be made otherwise than on 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.
The inquiry must rather be whether the law amounts to
a true attempt to provide fair and just standards of compensating or
rehabilitating the individual considered as an owner of property, fair
and just as between him and the government of the country. I say “the
individual” because what is just as between the Commonwealth and a State,
two Governments, may depend on special considerations not applicable
to an individual. [12]
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:
is quite unacceptable and unfair according to the ordinary
standards of “fair dealing between the Australian nation and an Australian
State or individual in relation
to the acquisition of property for a purpose within the national legislative
competence”: Nelungaloo Pty Ltd v Commonwealth [14]
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:
In determining the issue of just terms, the court does
not attempt a balancing of interests of the dispossessed owner against
the interests of the community at large. The purpose of the guarantee
of just terms is to ensure that the owners of property compulsorily
acquired by government presumably in the interests of the community
at large are not required to sacrifice their property for less than
its worth. Unless it is shown that what is gained is full compensation
for what is lost, the terms cannot be found to be just. [16]
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.
Teori Tau v The Commonwealth was considered
in Newcrest Mining (WA) Ltd v The Commonwealth, which was
concerned with mining leases over land in the Northern
Territory. Commonwealth legislation purported
to operate on the land contained within those leases. A majority of
the Court (Toohey, Gaudron, Gummow and Kirby JJ) held that s 51(xxxi)
fettered the Commonwealth’s legislative power generally, while three
Justices of the majority (Gaudron, Gummow and Kirby JJ) would have
overruled Teori Tau v The Commonwealth and found that s 51(xxxi)
fettered s 122 as well. Toohey J,
however, thought “it would be a serious step to overrule a decision
which has stood for nearly thirty years and which reflects an approach
which may have been relied on in earlier years”. His Honour was therefore
unwilling to overrule it. [19]
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:
However, if the operation of this Part, or an act referred
to in paragraph (1)(b) or (c), would result in an acquisition of property
to which paragraph 51(xxxi) of the Constitution applies from a person
otherwise than on just terms, the Commonwealth is liable to pay a reasonable
amount of compensation to the person.
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)).
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:
Therefore, where an acquisition of property that occurs
as a result of the operation of the terms of this bill is excluded from
the requirement under subsection 50(2) of the Northern
Territory (Self Government) Act 1978,
subclause 134(2) nevertheless requires the payment of a reasonable
amount of compensation.
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
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 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.
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 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.
In the broad, a person may become subject to the IMR
provisions in this Bill for one of the following reasons:
-
for the protection of a child of the person,
-
the person is subject to the jurisdiction of the
Queensland Commission and the Commission request the IMR provisions
to apply,
-
the person is a resident of a specified area in the
Northern Territory,
or
-
the person’s child is subject to the unsatisfactory
child attendance situation.
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.
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.
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.
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.
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.
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.
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.
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
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]
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:
- whether it is discriminatory to impose filtering and auditing on
publicly-funded computers in Aboriginal areas of the
Northern Territory,
but not in Australia
in general, and if so, whether the discrimination is legally justifiable
under the Racial Discrimination Act 1975
-
whether it is an infringement of free speech to impose
filtering that may well hinder access to material that is perfectly
legal
-
the efficacy of filters in general: there was a recent
report that the Government’s $116 million NetAlert project to provide
nationwide ISP-level internet filtering would get off the ground ‘within
weeks’, although the same report stated that technical trials were
scheduled to go ahead later this year, and that the internet industry
believed that the system would be unworkable. [28]
-
the burden of the requirement to keep computer-use
logs for three years
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:
I believe there is a case for reviewing the whole issue
of Aboriginal land title, in the sense of looking towards private recognition.
… I certainly believe that all Australians should be able to aspire
to owning their own home and having their own business. Having the title
to something is the key to your sense of individuality; it’s the key
to your capacity to achieve, and to care for your family and I don’t
believe that indigenous Australians should be treated any differently
in this respect. [31]
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:
The concern from the
indigenous community that I’m hearing is that the legitimate issue of
home ownership might be used as a Trojan horse for a reallocation of
land rights – a taking of rights away from Aboriginal people. [33]
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:
As a consequence, it is not necessary to put the communal tenure
of Indigenous land at risk as the NIC Principles propose. …
The NIC Principles are premised on the idea that private land ownership
will lead to economic development because the land owners will have
an economic interest in seeing land value improved. The NIC Principles
also assume that communal land ownership will not lead to development,
and the interests of the land will not be protected. …
International experience demonstrates that individual title does
not lead to improved economic outcomes. [34]
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:
The evidence does not support the notion that private individual
ownership of low-value land in remote settings can be the driving
force in addressing housing or other needs. The principal issues for
any new policy framework continue to be contemporary Indigenous poverty,
and the historic lack of services, housing and associated infrastructure.
The notion that land rights reform can be the main driver for economic
development should be reconsidered in light of the legacy of disadvantage,
cultural difference and structural factors faced by these communities.
Such debates must also recognise that there are fundamental Indigenous
cultural reasons for attachment to land, irrespective of its commercial
potential, as well as unique and diverse Indigenous perspectives on
what development is appropriate for their communities and country.
The report concludes that very significant structural issues must
be addressed to encourage economic development and address housing
needs, including the remoteness of communities from mainstream markets;
relatively low populations and population densities; the need for
greater investment in education and vocational skills; poor infrastructure;
and the generally economically marginal nature of most Aboriginal
lands.
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:
Communal ownership of land, royalties and other resources
is the principal cause of the lack of economic development in remote
areas. Commonwealth, State and Territory legislative and regulatory
frameworks have to make it possible for Aborigines and Torres Strait
Islanders who choose to do so to become individual land owners and entrepreneurs.
Royalties from mining, fishing, telecommunications and other sources
must become transparent and flow to individuals. An end to communal
ownership and asset management would cut into the power of councils,
associations and their ‘big men’, making income distribution more equitable
and greatly reducing the need for bargaining and political power plays
that make life miserable and lead to incessant violence. Investment
in land and other assets has to become viable. With individual property
rights, land could be used for collateral to borrow for business, allowing
the application of capital and technology to create productive enterprises
with employment capacity. Private property rights in land are essential
to attracting outside investment that is a pre-requisite to a major
expansion in employment opportunities.
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.
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:
To avoid doubt, the Commonwealth Minister forfeits a
lease of land, or resumes a land, under the Special Purposes Lease Act
on behalf of the Northern Territory Minister or the Administrator of
the Northern Territory.
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).
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.
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.
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.
The EM states that:
Part 6 amends Northern Territory
law to prohibit the relevant authority, when exercising bail or sentencing
discretion in relation to Northern Territory
offences, from taking into consideration any form of customary law or
cultural practice to lessen or aggravate the seriousness of the criminal
behaviour of offenders and alleged offenders. Part 6 also strengthens
Northern Territory bail
provisions to better secure the safety of victims and witnesses in remote
communities.
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]
The Explanatory Statement states that Part 7 aims to
address:
long-standing concerns that some stores in Indigenous
communities are poorly managed and have low quality goods sold at high
prices. Many Indigenous communities in the Northern
Territory have only one community store. In
very remote communities there may be no other store within hundreds
of kilometres and even these may not be accessible during the wet season.
Hence, the way community stores operate and the quality of the food
that they provide are critical to the Australian Government’s efforts
to improve the lives of Indigenous people in the Northern
Territory. [41]
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.
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:
-
the capacity to comply with the income management
regime [42]
-
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, or those later specified by the Minister.
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).
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.
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.
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.
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.
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]
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]
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 fundamental drivers of Indigenous violence and child
abuse are social and economic. Accordingly, the NIITF is adopting an
approach which is ‘non punitive’ and respectful of Indigenous people
and cultures. National and regional level consultative arrangements
will be established, where possible utilising existing structures. In
these processes, particular efforts will be made to engage with and
involve Indigenous elders, leaders and women’s groups. [50]
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:
Threatening witnesses with gaol is unlikely to help if
Indigenous people are already facing an environment of threats and intimidation.
[51]
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:
(a) serious and organised crime; or
(b) Indigenous violence or child abuse.
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'.
Offences concerning Indigenous violence or child abuse (including
sexual offences) are unlikely to meet the first set of elements, which
require that the offence involves two or more offenders, substantial
planning and organisation, and the use of sophisticated methods and
techniques. Even if the first set of elements were met, not all offences
relevant to Indigenous violence or child abuse would be captured by
the list of the type of offences which for present purposes would
be limited to ‘violence offences’ and certain Commonwealth child sex
offences involving the use of a carriage service.
The government wishes to ensure that the existing special coercive
powers of the ACC should be available for the purpose of an operation/investigation
(or special operation/investigation) into Indigenous violence or child
abuse, should the ACC Board decide that their use for this purpose
should be authorised. [53]
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.
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.
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 ACC therefore exists to provide investigations that
operate across jurisdictional boundaries, equipped with the necessary
specialist expertise and resources, and able to focus exclusively on
organised crime rather than street crime/volume crime. [54]
The second reading speech for the Bill introducing
the previous National Crime Authority noted:
The National Crime Authority does not deal with simple
street level crime, but with the web of complex criminal activity engaged
in by highly skilled and resourceful criminal syndicates.
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
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