In the 43rd Parliament the Parliamentary Joint Committee on
Human Rights (the committee) conducted an examination into the human rights
compatibility of the Stronger Futures legislation and reported in June 2013
(the 2013 report).
The Stronger Futures legislation comprised three principal Acts, plus
associated delegated legislation. The three Acts are:
Stronger Futures in the Northern Territory Act 2012
(Stronger Futures Act);
Stronger Futures in the Northern Territory (Consequential and
Transitional Provisions) Act 2012; and
Social Security Legislation Amendment Act 2012.
In its 2013 report the committee made a number of findings, including
indicating the importance of continuing close evaluation of aspects of the
Stronger Futures measures. It recommended that in the 44th
Parliament the committee undertake a review to evaluate the latest evidence in
order to test the continuing necessity for the Stronger Futures measures.
This report considers the latest evidence in relation to the
effectiveness of key aspects of the Stronger Futures measures, together with
associated legislation introduced since the adoption of the 2013 report, and
concludes the committee's examination of the human rights compatibility of that
Conduct of the inquiry
On 3 March 2014, the committee agreed to initiate this inquiry. The
committee wrote to a number of persons and organisations, inviting submissions
to the inquiry by 10 October 2014. Details of the inquiry were also made
available through the committee's website.
The committee received 23 submissions in response to this inquiry. The
submissions are listed at Appendix 2 to this report and are available on the
The committee wrote to Senator the Hon Nigel Scullion MP, Minister for
Indigenous Affairs (current minister) on 18 March 2014 drawing his attention to
its 2013 report and inviting his comment. On 18 June 2014, the current minister
provided a brief response to the committee's letter, noting that work was
underway to revise the Stronger Futures package. The committee again wrote to
the current minister on 23 June 2015 with a number of specific questions about
the Stronger Futures measures and received his response dated 28 July
2015. As this response did not address all of the committee's concerns, the
committee wrote again on 9 September 2015 and received the current minister's
response dated 28 September 2015.
The committee would like to thank the current minister and all those who
submitted to this inquiry.
1.8 The Stronger Futures measures were introduced in 2012 to make changes
to, or repeal, the measures introduced by the Northern Territory National Emergency
Response (NTNER) in 2007. The Stronger Futures measures apply to the Northern
Territory (NT) and relate in the main to:
tackling alcohol abuse in Aboriginal communities;
certain land reform measures;
food security measures relating to the licensing regimes for food
stores in certain areas;
amendments relating to the extent to which customary law may be taken
into account in bail and sentencing decisions; and
restrictions on access to pornography in certain areas.
The committee's 2013 report examined the human rights compatibility of
the Stronger Futures package of legislation.
The report dealt with the human rights compatibility of measures dealing with
tackling alcohol abuse; income management; and school attendance. It did not
examine the human rights compatibility of the other measures listed above at
Conclusions of the committee's 2013 report
The committee's 2013 report acknowledged that the aim of the Stronger
Futures measures was to reduce disadvantage and ensure that Indigenous
Australians enjoy a comparable level of human rights to that of other
Australians. The committee noted that this was a compelling policy objective
within the framework of Australia's human rights obligations.
However, in its 2013 report the committee noted that the question of
whether some of the measures had delivered their intended beneficial effects
was contested, and also acknowledged concerns about the human rights
compatibility of a number of the measures.
The committee considered in some detail whether the Stronger Futures
measures were, as stated by the government, 'special measures' under
international human rights law, and therefore not discriminatory.
Special measures under international human rights law are generally seen
to be measures granting a benefit or preference to members of a disadvantaged
group, designed to advance the rights of members of those groups. If a measure
is seen to be a 'special measure' under international human rights law the
measure will not be classified as discriminatory, even though it applies only
to one particular group.
The committee's 2013 report found that the measures could not properly
be classified as 'special measures'. It found that a measure that criminalises
conduct by some members of the group that is to be benefited, in order to
promote the overall benefit of the group, is not appropriately classified as a
'special measure' under international law.
Accordingly, the committee considered that any limitations on rights had
to be considered using the committee's usual analytical framework of asking
whether the measure pursues a legitimate objective, is rationally connected to
achieving that objective and is proportionate to that objective.
The committee's 2013 report accepted that reducing disadvantage faced by
Indigenous Australians and ensuring they achieve a comparable level of human
rights to other Australians was clearly a legitimate objective for the purposes
of international human rights law.
However, the 2013 report noted that at the time the report was conducted
only limited empirical data was available to demonstrate a rational connection
between the measures and the social objectives they were intended to address.
The committee emphasised two key human rights considerations that had
emerged from its examination of the measures:
the critical importance of ensuring the full involvement of
affected communities in the policy making and policy implementation process;
the importance of continuing close evaluation of the measures.
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