Footnotes
Introduction
[1] National Congress of
Australia's First Peoples, Letter to the Hon Harry Jenkins MP, 15 June 2012.
[2] Letter from Mr Harry
Jenkins MP to the Hon Jenny Macklin MP, Minister for Families, Community
Services and Indigenous Affairs, 20 June 2012 Because the bills were
introduced into Parliament before the requirement under the Human Rights
(Parliamentary Scrutiny) Act 2011 to provide a statement of compatibility
with human rights took effect, the bill was not accompanied by an independent
and detailed statement explaining how the bill engaged the human rights set out
in the relevant human rights instruments.
[3] Letter from the Hon Jenny
Macklin MP to the Hon Harry Jenkins MP, 27 June 2012.
[4] Additional Information
received from National Congress of Australia's First Peoples, dated 28 June
2012.
[5] See: http://www.aph.gov.au/joint_humanrights/.
[6] This summary of the NTER draws on: Senate Community Affairs Legislation Committee, Inquiry into Stronger Futures in the Northern Territory Bill 2011 and two related bills, Report, March 2012, and Australian Human Rights Commission, The Suspension and Reinstatement of the RDA and Special Measures in the NTER, 2 November 2011.
[7] Report of the Northern
Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle 'Little
Children are Sacred', 2007.
[8] See Australian Human
Rights Commission publication, The Suspension and Reinstatement of the RDA
and Special Measures in the NTER, 2 November 2011, pp 5-6.
[9] Northern Territory
Emergency Response – Report of the NTER Review Board, October 2008.
[10] See Senate Community Affairs
Legislation Committee, Inquiry into Stronger Futures in the Northern
Territory Bill 2011 and two related bills, Report, March 2012, para 1.13.
[11] See Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement
of Racial Discrimination Act) Act 2009.
[12] The measures that were not continued were: five-year leases; the statutory rights provisions
under the Aboriginal Land Rights (Northern Territory) Act 1976 that provide a mechanism for
government to retain certain rights and interests in buildings and infrastructure constructed
or upgraded on Aboriginal land with government funds; the requirement to install filters and
conduct audits of publicly funded computers; the power enabling police to enter a private
residence as if it were a public place to apprehend an intoxicated person; and the 'business
management areas' powers. See FaHCSIA answers to Questions on Notice No. 6, Senate
Community Affairs Legislation Committee, Report on Inquiry into Stronger Futures in the
Northern Territory Bill 2011 and two related bills, March 2012, Appendix 4.
[13] Stronger Futures in the
Northern Territory Bill 2011, replacement revised explanatory memorandum, p 1.
[14] Stronger Futures in the
Northern Territory Bill 2011, replacement revised explanatory memorandum, p 2.
[15] Stronger Futures in the
Northern Territory Bill 2011, replacement revised explanatory memorandum, pp
2-3.
[16] Stronger Futures in the
Northern Territory (Consequential and Transitional Provisions) Bill 2011,
replacement explanatory memorandum, outline.
[17] Letter from the Hon Jenny
Macklin MP to the Hon Harry Jenkins MP, 27 June 2012.
[18] Letter from the Hon Jenny
Macklin MP to the Hon Harry Jenkins MP, 27 June 2012, p 2. The amendment
foreshadowed by the Minister now appears as section 4A of the Stronger Futures
in the Northern Territory Act 2012.
[19] Letter from the Hon Jenny
Macklin MP to the Hon Harry Jenkins MP, 27 June 2012, p 3.
[20] Assessment of Policy
Objectives with Human Rights: Stronger Futures in the Northern Territory Bill
2012 and Stronger Futures in the Northern Territory (Consequential and
Transitional Provisions) 2012 [Stronger Futures Assessment] and Assessment
of Policy Objectives with Human Rights: Social Security Legislation Amendment
Bill 2011 [Social Security Assessment], attachments to Letter from
the Hon Jenny Macklin MP to the Hon Harry Jenkins MP, 27 June 2012, p 2.
[21] Senate Community Affairs
Legislation Committee, Report on the Stronger Futures in the Northern
Territory Bill 2011 [Provisions]; Stronger Futures in the Northern Territory
(Consequential and Transitional Provisions) Bill 2011 [Provisions]; Social
Security Legislation Amendment Bill 2011 [Provisions] (Stronger Futures
Report).
[22] See
Senate Community Affairs Legislation Committee, Stronger Futures Report,
pp viii – ix.
[23] Senate Community Affairs
Legislation Committee, Stronger Futures Report, recommendation 10, para
4.17.
[24] Senate
Community Affairs Legislation Committee, Stronger Futures Report, para
3.2 (Additional Comments).
[25] Senate
Community Affairs Legislation Committee, Stronger Futures Report, para
3.4 (Additional Comments).
[26] Senate
Community Affairs Legislation Committee, Stronger Futures Report,
recommendation 4 (Additional Comments).
[27] Senate Community Affairs
Legislation Committee, Stronger Futures Report, recommendation 16
(Dissenting Report).
[28] Senate
Community Affairs Legislation Committee, Stronger Futures Report, para
1.144 (Dissenting Report).
[29] Senate
Community Affairs Legislation Committee, Stronger Futures Report, pp 90
– 91 (Dissenting Report).
[30] Senate Community Affairs Legislation
Committee, Stronger Futures Report, pp 92- 97 (Dissenting
Report).
[31] Australian
Human Rights Commission, Submission to the Senate Legal and
Constitutional Affairs Committee Human Rights (Parliamentary Scrutiny) Bill 2010
and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill
2010, 7
July 2010, para 17.
[32] See Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice
Report 2012, pp
36-37 and Recommendation 1.4.
[33] Under the Human Rights
(Parliamentary Scrutiny) Act 2011.
[34] Explanatory memorandum, pp
23-24. See to similar effect the Native Title Amendment Bill 2012, statement of compatibility, p 5.
[35] See Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, A/HRC/12/34, para 38 (2009):
"It should be emphasized that
the duty of States to consult with indigenous peoples on decisions affecting
them finds prominent expression in the United Nations Declaration on the Rights
of Indigenous Peoples, and is firmly rooted in international human rights law.
This duty is referenced throughout the Declaration in relation to particular
concerns (arts. 10, 11, 15, 17, 19, 28, 29, 30, 32, 36, and 38), and it is
affirmed as an overarching principle in article 19, which provides: 'States
shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free,
prior and informed consent before adopting and implementing legislative or
administrative measures that may affect them.'"
[36] See the statement by the Hon
Jenny Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs setting out Australia's support for the Declaration on
3 April 2009, Statement on
the United Nations Declaration on the Rights of Indigenous Peoples, Parliament House, Canberra, 3
April 2009 ('While there is continuing international debate about the meaning
of "free, prior and informed consent", we will consider any future
interpretations in accordance with Article 46.')
[37] UN Committee on the
Elimination of Racial Discrimination, General Recommendation No. 32, (2009),
para 8 (footnotes omitted).
[38] UN Committee on Economic,
Social and Cultural Rights, General Comment No. 19, (2008) para 22.
[39] This argument is not made in
relation to the income management provisions, presumably because they are
intended to apply not only to Aboriginal communities or to communities in which
the majority of the population is Aboriginal.
[40] See The concept and practice of affirmative action, Final report submitted by Mr Marc Bossuyt, Special
Rapporteur, in accordance with Sub-Commission resolution 1998/5, UN Doc E/CN.4/Sub.2/2002/21 (2002).
[41] See, for example, UN Committee on the Elimination of Racial Discrimination, General
Recommendation No. 32,(2009), para 20 ('Accordingly, special measures are not an exception
to the principle of non-discrimination but are integral to its meaning and essential to the
Convention project of eliminating racial discrimination and advancing human dignity and
effective equality').
[42] Article 4(1) of the CEDAW
contains a similarly worded provision in relation to special measures taken on
the basis of sex. See CEDAW, General Recommendation No.
25, 'Temporary special measures' (2004) and M Freeman, C Chinkin and B
Rudolf (eds), The UN Convention on the Elimination of All Forms of
Discrimination against Women: A Commentary (OUP 2012), 'Article 1' and
'Article 4'.
[43] UN Committee on the Elimination of
Racial Discrimination, General Recommendation No. 32, (2009), paras 16-18.
[44] Gerhardy v Brown (1985) 159 CLR 70, 133 (Brennan J). See also Australian Human Rights
Commission, The Suspension and Reinstatement of the RDA and Special Measures in the NTER,
2 November 2011, p 7.
[45] Congress has set out its views of the requirements for measures to qualify as special
measures. They must:
- Have the sole purpose of ensuring equal human rights.
- Obtain the prior, informed consent of the people affected.
- Be designed and implemented through prior agreement with the people concerned.
- Have clarity in regard to the results to be achieved from the special measures.
- Have accountability to the people concerned.
- Be appropriate to the situation to be remedied and grounded in a realistic appraisal of
the situation to be addressed.
- Have justification for the proposed special measures including how they will obtain the
perceived outcomes.
- Be temporary and only maintained until disadvantage is overcome.
- Have a system for monitoring the application and results of special measures.
National Congress of Australia's First Peoples, Statement to the Parliamentary Joint Committee
on Human Rights on the Parliamentary Scrutiny of Human Rights as applied to the Stronger
Futures in the Northern Territory Bills (2011), June 2012, attachment to letter of 15 June 2012
to Mr Harry Jenkins MP, p 7.
[46] While these criteria have
been widely considered to be a correct statement of what constitutes a 'special
measure' under international law , the finding of Brennan J and the other
members of the High Court in Gerhardy v Brown that the legislative
recognition of the traditional rights to land of Indigenous peoples can only be
justified as a special measure, does not represent the international legal
position. Such race-based differential treatment may be justified under
international law if it is based on objective and reasonable criteria and is a
proportionate measure adopted in pursuit of a legitimate goal.
[47] [2013] HCA 28.
[48] See, for example, the
judgment of French CJ, [2013] HCA 28, [21], who writes:
"[T]he court, in proceedings
which turn upon the characterisation of a law as a special measure, may:
-
determine
whether the law evidences or rests upon a legislative finding that there
is a requirement for the protection of a racial or ethnic group or individuals
in order to ensure their equal enjoyment or exercise of human rights and
fundamental freedoms;
-
determine
whether that finding was reasonably open;
-
determine
whether the sole purpose of the law is to secure the adequate advancement of
the relevant racial or ethnic group or individuals to ensure their equal
enjoyment or exercise of human rights and fundamental freedoms; and
-
determine
whether the law is reasonably capable of being appropriate and adapted to that
sole purpose."
[49] Stronger Futures in the
Northern Territory Bill 2011, explanatory memorandum, p 1. This position is
repeated in relation to each element, in the Notes on clauses, at p 3
(alcohol-related measures), p 20 (land reform measures), and p 29 (food
security measures). See also Stronger Futures in the Northern Territory Bill
2011, revised explanatory memorandum, pp 1,3, 20 and 29.
[50] Report by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, The situation of indigenous peoples in
Australia, A/HRC/15/37/Add.4 (2010).
[51] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, paras 113-122, [234-246] See also Australian
Human Rights Commission, The Suspension and Reinstatement of the RDA and
Special Measures in the NTER, 2 November 2011.
[52] See submission by the
Australian Lawyers Alliance, Letter to the PJCHR, 13 August 2012, and attached
submission to the Senate Community Affairs Legislation Committee entitled The
Stronger Futures Legislative Package: Assessment of Non-Compliance With Human
Rights, 29 June 2012, pp 4-8.
[53] Report by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, The situation of indigenous peoples in
Australia, A/HRC/15/37/Add.4 (2010).
[54] Report by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, The situation of indigenous peoples in
Australia, A/HRC/15/37/Add.4 , para 21 (2010).
[55] Australian Human Rights Commission, Draft guidelines for ensuring income management
measures are compliant with the Racial Discrimination Act (2009), paras 88-89.
[56] Report by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, The situation of indigenous peoples in
Australia, A/HRC/15/37/Add.4, paras 55 and 62 (2010).
[57] UN Committee on the
Elimination of Racial Discrimination, General Recommendation No 32, para 8.
[58] Report by the Special Rapporteur
on the situation of human rights and fundamental freedoms of indigenous people,
James Anaya, The situation of indigenous peoples in Australia,
A/HRC/15/37/Add.4 , para 63 (2010).
[59] Report by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya, The situation of indigenous peoples in
Australia, A/HRC/15/37/Add.4 , para 65 (2010).
[60] For an example of a measure
appropriately characterised as a 'special measure', see the Indigenous Education (Targeted Assistance) Amendment Bill 2013,
considered in PJCHR, Sixth Report of 2013, pp 111-113.
[61] [2013] HCA 28
(19 June 2013).
[62] Subsections
10(1) and (2) of the Racial Discrimination Act 1975 provide:
[63] Five of the six justices
held that there was a relevant human right affected by the legislation, namely
the right to property. Kiefel J did not consider that any relevant right or
freedom was engaged by the legislation, but nevertheless went on to consider
whether the measures would in any event be characterised as special measures.
She concluded that they would be [2013] HCA 28, [150]-[162], [177-188].
[64] See paragraph 1.90.
[65] Stronger Futures in the
Northern Territory Bill 2011, explanatory memorandum, p 1; replacement revised
explanatory memorandum, p 1.
[66] Senate Community Affairs
Legislation Committee, Stronger Futures Report, pp 62-63 [4.14-4.16] (footnotes
omitted).
[67] Senate Community Affairs
Legislation Committee, Stronger Futures Report, recommendation 10,
p 63.
[68] See the full discussion in
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2010, Chapter 3, pp 58-66 and Appendix 4.
[69] This list is derived from
the headings in the Commissioner's own formulation contained in Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2010, Appendix 4.
[70] See PJCHR, Practice Note
1.
[71] This list is taken largely verbatim
from the Stronger Futures Assessment, p 2.
[72] Stronger Futures
Assessment, pp 3-4.
[73] Stronger Futures
Assessment, p 3.
[74] Stronger Futures
Assessment, p 3.
[75] Stronger Futures
Assessment, p 3. A similar statement is made in the explanatory memorandum
to the bill that 'the Government considers that the tackling alcohol abuse
measure is a special measure under the Racial Discrimination Act': Stronger
Futures in the Northern Territory Bill 2011, explanatory memorandum, Notes on
clauses, p 3.
[76] Stronger Futures
Assessment, p 3.
[77] Stronger Futures
Assessment, p 3 (footnote omitted).
[78] Stronger Futures
Assessment, p 4 (footnote omitted).
[79] Stronger Futures
Assessment, p 5.
[80] Senate Community Affairs
Legislation Committee, Stronger Futures Report, para 3.36.
[81] Stronger Futures
Assessment, p 4.
[82] Stronger Futures
Assessment, p 4.
[83] See Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, paras 230, 242-244.
[84] See Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 267.
[85] See Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 258.
[86] National Congress of
Australia's First Peoples, Statement to the Senate Standing Committee on
Community Affairs on conditions affecting Aboriginal communities in the
Northern Territory including the proposed Stronger Futures in the Northern
Territory Bill (2011) and accompanying Bills, February 2012, para 48.
[87] National Congress of
Australia's First Peoples, Statement to the Senate Standing Committee on
Community Affairs on conditions affecting Aboriginal communities in the
Northern Territory including the proposed Stronger Futures in the Northern
Territory Bill (2011) and accompanying Bills, February 2012, p 15.
[88] F2013L00290, made under
subsection 17(2) of the Stronger Futures in the Northern Territory Act 2012.
[89] Stronger Futures in the
Northern Territory (Alcohol Management Plans) Rule 2013, explanatory
statement, p 2.
[90] Stronger Futures in the
Northern Territory (Alcohol Management Plans) Rule 2013, explanatory
statement, p 2.
[91] Stronger Futures in the
Northern Territory (Alcohol Management Plans) Rule 2013, statement of
compatibility, pp 9-10.
[92] Stronger Futures in the
Northern Territory (Alcohol Management Plans) Rule 2013, statement of
compatibility, pp 11-12.
[93] Australian Government, Stronger Futures in the Northern Territory, Six-Monthly Progress
Report 1 July 2012 to 31 December 2012 (June 2013), pp 36-39.
[94] Australian Government, Stronger
Futures in the Northern Territory, Six-Monthly Progress Report 1 July 2012 to
31 December 2012
(June 2013), p 36.
[95] Australian Government, Stronger
Futures in the Northern Territory, Six-Monthly Progress Report 1 July 2012 to
31 December 2012
(June 2013), p 36.
[96] Australian Government, Stronger
Futures in the Northern Territory, Six-Monthly Progress Report 1 July 2012 to
31 December 2012
(June 2013), p 38.
[97] Australian Government, Stronger
Futures in the Northern Territory, Six-Monthly Progress Report 1 July 2012 to
31 December 2012
(June 2013), p 38.
[98] Australian Government, Stronger Futures
in the Northern Territory, Six-Monthly Progress Report 1 July 2012 to 31
December 2012
(June 2013), p 38.
[99] Australian Government, Stronger
Futures in the Northern Territory, Six-Monthly Progress Report 1 July 2012 to
31 December 2012
(June 2013), p 39.
[100] These
arrangements are established under Part 3B of the Social Security
(Administration) Act 1999. The simplified outline of Part 3B of the Social
Security (Administration) Act 1999 contained in that Act provides an
overview of the income management regime following the enactment of the Stronger
Futures package.
[101] This category was added by the
Stronger Futures legislation, namely section 123UFAA of the Social
Security Amendment Act 2012.
[102] For further details of the
number and types of BasicsCards issued and the number of merchants where they
may be used, see Closing the Gap
in the Northern Territory Monitoring Report, January – June 2012, Part Two, pp 95-96.
[103] Social
Security Administration Act 1999, section 123TH.
[104] Social
Security Administration Act 1999, subsection 123TH(2).
[105] Social
Security Administration Act 1999, subsection 123TI (1).
[106] Social
Security Administration Act 1999, subsection 123TI (2).
[107] Defined in section 123UCA of
the Social Security Administration Act 1999 and the Social Security
(Administration) (Vulnerable Welfare Payment Recipient) Principles 2012 [Principles].
The category may encompass persons who are 'experiencing an indicator of
vulnerability'; these include financial exploitation, financial hardship,
failure to undertake reasonable self-care, and homelessness or risk of
homelessness: Principles, subsections 4(2) and 6(1).
[108] Social Security
(Administration) (Specified income management Territory - Northern Territory)
Specification 2012, F2012L01613.
[109] Social Security (Administration) (Specified income management Territory - Northern Territory)
Specification 2012, F2012L01613.
[110] Social Security (Administration) (Declared child protection State - New South Wales,
Queensland, South Australia and Victoria) Determination 2012, F2012L01377.
[111] This summary draws on the
submission of the Australian Human Rights Commission to the Senate Community
Affairs Legislation Committee. See Australian Human Rights Commission, Stronger
Futures in the Northern Territory Bill 2011 and two related Bills, Submission
to the Senate Community Affairs Legislation Committee, 6 February 2012, paras
148-159.
[112] For its application to the
Northern Territory, see Social Security
(Administration) (Recognised State or Territory - Northern Territory)
Determination 2012,
F2012L01979.
[113] Social Security
(Administration) (Vulnerable income management areas) Specification 2012, F2012L01614; Social Security
(Administration) (Declared income management areas) Determination 2012, F2012L01371.
[114] Social Security (Administration) – Queensland
Commission (Family Responsibilities Commission) Specification 2012.
[115] Social Security (Administration)
(Declared income management area - Anangu Pitjantjatjara Yankunytjatjara lands)
Determination 2012
F2012L01943.
[116] Social Security
(Administration) (Declared income management areas –Ngaanyatjarra Lands and
Laverton) Determination 2013, F2013L00652
[117] Australian National Audit Office, Administration
of New Income Management in the Northern Territory, Report No. 19, tabled 31 January 2013, p 94.
[118] Australian
National Audit Office, Administration of New Income Management in the
Northern Territory, Report No. 19, tabled 31 January 2013, p 95.
[119] See FaHCSIA, Building
Australia's Future Workforce - Targeted locations income management, Budget Factsheet, Budget 2011-12, June 2011.
[120] Social Security Assessment,
p 3.
[121] Social Security Assessment,
p 3.
[122] Social Security (Administration) (Declared voluntary income management areas — New South
Wales, Queensland, South Australia and Victoria) Determination 2012, explanatory statement,
p 1.
[123] Social Security Assessment,
p 4.
[124] In October 2011 there were
16,393 people in the Northern Territory who were subject to income management.
The majority were on compulsory income management (11,960), while there were
4,190 on voluntary income management, 198 persons on vulnerable income
management and 45 were subject to child protection income management. 91 per
cent of those subject to income management were Indigenous, and almost all of
those on voluntary or subject to vulnerable or children protection income
management were Indigenous. 61 per cent of the population subject to income
management were women. J Rob Bray et al, Evaluating New Income Management in
the Northern Territory: First Evaluation Report [Evaluating New Income
Management], July 2012 (Social Policy Research Centre, UNSW, Australian
National University and Australian Institute of Family Studies), p xvii.
[125] Social Security Assessment,
p 3.
[126] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, paras 173-174.
[127] In its submission to the
Senate Community Affairs Legislation Committee the Australian Human Rights
Commission stated that, according to government statistics, as of March 2011
94.2% of people on income management in the Northern Territory were Indigenous,
compared with an Indigenous population of 30% of the overall population of the
Northern Territory. Australian Human Rights Commission, Stronger Futures in
the Northern Territory Bill 2011 and two related Bills, Submission to the
Senate Community Affairs Legislation Committee, 6 February 2012, para 172.
[128] Social Security (Administration) (Declared income management areas —Ngaanyatjarra Lands
and Laverton) Determination 2013, statement of compatibility, p 5.
[129] Social Security Assessment,
p 3.
[130] Social Security Assessment,
p 3.
[131] Social Security Assessment,
p 3.
[132] See Senate Community Affairs
Legislation Committee, Stronger Futures Report, paras 3.104-3.114.
[133] Senate Community Affairs
Legislation Committee, Stronger Futures Report, paras 3.115-3.117.
[134] Social Security Assessment,
p 3 (footnote omitted).
[135] Social Security Assessment,
p 4 (footnote omitted)
[136] Social Security Assessment,
p 4 (footnote omitted).
[137] Senate Community Affairs
Legislation Committee, Stronger Futures Report, para 1.92 (Dissenting
Report).
[138] Senate Community Affairs
Legislation Committee, Stronger Futures Report, para 1.94 (Dissenting
Report).
[139] Senate Community Affairs
Legislation Committee, Stronger Futures Report, para 1.96 (Dissenting
Report).
[140] Senate Community Affairs
Legislation Committee, Stronger Futures Report, para 1.98 (Dissenting
Report).
[141] J Rob Bray et al, Evaluating
New Income Management in the Northern Territory: First Evaluation Report [Evaluating
New Income Management], July 2012 (Social Policy Research Centre, UNSW,
Australian National University and Australian Institute of Family Studies),
pp xviii-xix.
[142] Joint letter from the Special Rapporteur on extreme poverty and human rights, Maria
Magdalena Sepúlveda Carmona, and the Special Rapporteur on the rights of indigenous
peoples, James Anaya to the Government of Australia, 9 March 2012.
[143] Letter from Mr
Paul Wilson, Australian Permanent Mission, Geneva, to Ms Maria Magdalena
Sepúlveda Carmona, Special Rapporteur on extreme poverty and human rights, and
Mr James Anaya, Special Rapporteur on the rights of indigenous peoples, 20 July 2012.
[144] Assessment of Policy
Objectives with Human Rights: Stronger Futures in the Northern Territory Bill
2012 and Stronger Futures in the Northern Territory (Consequential and
Transitional Provisions) 2012 and Assessment of Policy Objectives with
Human Rights: Social Security Legislation Amendment Bill 2011, attachments
to Letter from the Hon Jenny Macklin MP to the Hon Harry Jenkins MP, 27 June
2012.
[145] Social Security
(Administration) (Declared voluntary income management areas — New South Wales,
Queensland, South Australia and Victoria) Determination 2012, explanatory
statement, p 5.
[146] National Congress of Australia's First Peoples, Statement to the Senate Standing Committee on
Community Affairs on conditions affecting Aboriginal communities in the Northern Territory
including the proposed Stronger Futures in the Northern Territory Bill (2011) and
accompanying Bills, February 2012, para 55.
[147] National Congress of
Australia's First Peoples, Statement to the Senate Standing Committee on
Community Affairs on conditions affecting Aboriginal communities in the
Northern Territory including the proposed Stronger Futures in the Northern
Territory Bill (2011) and accompanying Bills, February 2012, p 17.
[148] J Rob Bray et al, Evaluating
New Income Management in the Northern Territory: First Evaluation Report [Evaluating
New Income Management], July 2012 (Social Policy Research Centre, UNSW,
Australian National University and Australian Institute of Family Studies), p xix.
[149] Evaluating
New Income Management, p xx.
[150] Evaluating New Income
Management, p xxiii.
[151] Evaluating New Income Management,
p xxiii.
[152] Evaluating New Income
Management, p xxiv.
[153] Senate Community Affairs
Legislation Committee, Stronger Futures Report, paras 3.116-3.117.
[154] Evaluating New Income
Management, p xviii.
[155] Evaluating New Income
Management, pp xxiii-xxiv.
[156] Evaluating New Income
Management, p xxiii.
[157] Evaluating New Income
Management, p xxiv.
[158] See
Schedule 2 of the Social Security Legislation Amendment Act 2012. The
SEAM was originally implemented by amendments made in 2008 to the Social Security
(Administration) Act 1999 by the Social Security and Veterans'
Entitlement Legislation Amendment (Schooling Requirements) Act 2008. The
measures appear in Part 3C of the Social Security (Administration) Act 1999.
[159] The
Social Security Legislation Amendment Act 2012 inserted a new Division
3A into Part 3C of the Social Security (Administration) Act 1999,
section 124NA.
[160] Section 124D of the Social Security (Administration) Act 1999, defines a 'schooling
requirement payment' to mean a social security benefit, a social security pension, or certain
payments under the Veterans' Entitlements Act 1986. SEAM 'does not apply to family
payments such as Family Tax Benefit and Child Care Benefit, or to Carer's Allowance and
Mobility Allowance.' Social Security Assessment, p 6.
[161] Social Security
(Administration) Act 1999, section 124NA.
[162] Social Security (Administration) Act 1999, section 124NB. Subsection 124NC(7) provides that a school attendance plan 'must contain requirements, that the schooling requirement person is
required to comply with, that the notifier considers appropriate for the purpose of ensuring
improved school attendance of the one or more children covered by the plan.'
[163] Social Security (Administration) Act 1999, subsection 124NE(1). The payment will not be
suspended if the Secretary 'is satisfied that there are special circumstances applying as at that
day, as determined in accordance with the schooling requirement determination (if any), that
justify the failure to comply'. Subsection 124NE(2).
[164] Social Security (Administration) Act 1999, sections 124K, 124L and 124M.
[165] Social Security
(Administration) Act 1999, subsections 124NF(2) and (3).
[166] Social Security
(Administration) Act 1999, section 124NG.
[167] Senate Committee on Community
Affairs Legislation, Report, para 3.135; Social Security Assessment, p
5.
[168] Australian Government, Stronger Futures in the Northern Territory, Six-Monthly Progress
Report 1 July 2012 to 31 December 2012 (June 2013), pp 24-25.
[169] Social Security Assessment,
p 7.
[170] 'SEAM applies in the same way
to any person receiving relevant income support payments in a designated SEAM
area, regardless of race.' Social Security Assessment, p 6.
[171] Social Security Assessment,
p 3.
[172] Social Security Assessment,
p 7.
[173] In its submission to the
Senate Community Affairs Legislation Committee the Australian Human Rights
Commission stated that, according to government statistics, as of March 2011
94.2% of people on income management in the Northern Territory were Indigenous,
compared with an Indigenous population of 30% of the overall population of the
Northern Territory. Australian Human Rights Commission, Stronger Futures in
the Northern Territory Bill 2011 and two related Bills, Submission to the
Senate Community Affairs Legislation Committee, 6 February 2012, para 172.
[174] Social Security Assessment,
p 6.
[175] Social Security Assessment,
p 2.
[176] Social Security Assessment,
p 5.
[177] Senate
Community Affairs Legislation Committee, Stronger Futures Report, para
3.136.
[178] Senate Community Affairs
Legislation Committee, Stronger Futures Report, para 3.149.
[179] Senate Community Affairs
Legislation Committee, Stronger Futures Report, para 3.149.
[180] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 192.
[181] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 192.
[182] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 193.
[183] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 194.
[184] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 194.
[185] National Congress of
Australia's First Peoples, Statement to the Senate Standing Committee on
Community Affairs on conditions affecting Aboriginal communities in the
Northern Territory including the proposed Stronger Futures in the Northern
Territory Bill (2011) and accompanying Bills, February 2012, para 93.
[186] National Congress of
Australia's First Peoples, Statement to the Senate Standing Committee on
Community Affairs on conditions affecting Aboriginal communities in the
Northern Territory including the proposed Stronger Futures in the Northern
Territory Bill (2011) and accompanying Bills, February 2012, para 89.
[187] National Congress of
Australia's First Peoples, Statement to the Senate Standing Committee on
Community Affairs on conditions affecting Aboriginal communities in the
Northern Territory including the proposed Stronger Futures in the Northern
Territory Bill (2011) and accompanying Bills, February 2012, para 89.
[188] Senate Community Affairs
Legislation Committee, Stronger Futures Report, para 3.152.
[189] Social Security Assessment,
p 6.
[190] Social Security Assessment,
p 7.
[191] Social Security Assessment,
p 5.
[192] See Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, paras 185-190.
[193] National Congress of
Australia's First Peoples, Statement to the Senate Standing Committee on
Community Affairs on conditions affecting Aboriginal communities in the
Northern Territory including the proposed Stronger Futures in the Northern
Territory Bill (2011) and accompanying Bills, February 2012, paras
87-88, 92.
[194] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 205.
[195] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 227.
[196] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 195.
[197] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, paras 198-199 (footnotes omitted).
[198] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, paras 220-224.
[199] Australian Human Rights
Commission, Stronger Futures in the Northern Territory Bill 2011 and two
related Bills, Submission to the Senate Community Affairs Legislation
Committee, 6 February 2012, para 200.
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