Families, Housing, Community Services and Indigenous Affairs and other Legislation Amendment (Emergency response consolidation) Bill 2008
THE INQUIRY
1.1
The Families, Housing, Community Services and Indigenous Affairs and
Other Legislation Amendment (Emergency Response Consolidation) Bill 2008 (the Bill)
was introduced into the House of Representatives on 21 February 2008. On 19 March 2008 the Senate, on the recommendation of the Selection of Bills
Committee, referred the provisions of the Bill to the Community Affairs
Committee (the Committee) for inquiry and report by 7 May 2008.
1.2
The Committee received 18 submissions relating to the Bill and these are
listed at Appendix 1. The Committee considered the Bill at public hearings in Alice
Springs on 29 April 2008 and Darwin on 30 April 2008. Details of the public
hearings are referred to in Appendix 2. The submissions and Hansard
transcript of evidence may be accessed through the Committee's website at https://www.aph.gov.au/senate_ca.
THE BILL
1.3
The Bill introduces amendments to the special measures protecting
Aboriginal children in the Northern Territory, which were enacted in the Northern
Territory National Emergency Response Act 2007 and the Families,
Community Services and Indigenous Affairs and Other Legislation Amendment
(Northern Territory National Emergency Response and Other Measures) Act 2007.
The amendments are contained in four Schedules.[1]
Schedule 1 – R 18+ programs
1.4
The Bill amends the Broadcasting Services Act 1992 and the Northern
Territory National Emergency Response Act 2007 to establish a new class licence
condition that prevents subscription television narrowcasting service licensees
from providing subscribers in a community declared by the Indigenous affairs
minister with access to a subscription television narrowcasting service
declared by the communications minister. Services cannot be declared unless
they transmit more than 35 per cent of R18+ program hours over a seven-day
period.
1.5
Communities cannot have their access to the television service
restricted unless they are in prescribed areas. The cessation of the television
service would occur only on the request of the community and after consultation
with the community to the satisfaction of the Indigenous affairs minister, and
an assessment that there would be benefit in such action to Indigenous women
and children in particular. The arrangement will include a sunset provision.
Schedule 2 – Transport of
prohibited material
1.6
The Bill will amend the Classification (Publications, Films and
Computer Games) Act 1995 to permit the transportation of prohibited
material through a prescribed area to a destination outside the prescribed
area. The amendments are intended to allow industry members to transport goods
lawfully, in the conduct of their business, to areas that are not prescribed.
Under the amendments, an offence for possession or supply would not apply if
the person proves that the material was brought into the prescribed area for
the sole purpose of transporting it to a place outside the prescribed area.
1.7
Amendments are also made to the seizure provisions so that prohibited
material will not be seized if the material is only being transported through a
prescribed area, and, if seized, will be able to be returned to the owner.
1.8
As background to this provision the Explanatory Memorandum notes that Industry
has expressed concerns about their inability to transport lawfully goods via
road to and from areas that are not prescribed.
For example, a distributor delivering prohibited material from Darwin
to Alice Springs could be charged with possession and/or supply offences as the
Stuart Highway passes through prescribed areas. The amendments would enable
Industry to carry on their business legally in areas of the Northern Territory
that are not prescribed.[2]
Schedule 3 – Access to Aboriginal
land
1.9
The 2007 legislation abolished the requirement for people to obtain
permits prior to visiting Aboriginal communities. The Bill repeals the permit
system amendments that gave public access to certain Aboriginal land and which
came into force on 17 February 2008. The Explanatory memorandum noted
that:
Aboriginal people and the Land Councils which represent them
have voiced overwhelming opposition to the opening up of communities to public
access. The power to determine who can enter their land is viewed by Aboriginal
people as an important part of their rights to land. It is not clear how the
removal of the requirement for the public to obtain permits contributes to the
success of the emergency response in the Northern Territory, and it may make it
easier for drugs, alcohol and people with criminal intent to enter communities.[3]
1.10
The Bill will also clarify the power of the minister to authorise people
to enter communities covered by the emergency response. Separately, by means of
a ministerial determination, the government will ensure that journalists can
access communities for the purpose of reporting on events in communities.
Schedule 4 – Community stores
1.11
The bill will provide that, if a roadhouse effectively takes the place
of a community store in a remote area, it can be properly treated as a
community store in having to meet the new licensing standards. Assuming the
community is substantially dependent on the roadhouse for grocery items and
drinks, the roadhouse should be able to be part of the scheme applying to
community stores. Otherwise, roadhouses will continue not to be regarded as
community stores.
Compliance with the Racial
Discrimination Act
1.12
The package of legislation for the Northern Territory emergency response
contained provisions for welfare reform, changes to land and housing
arrangements, improving law and order and improving the safety and wellbeing of
children and their families. The legislation also contained provisions which
deem the measures to be special measures and exclude them from the operation of
part II of the Racial Discrimination Act 1975.
1.13
The minister noted in the second reading speech that the Bill contains
some amendments to existing measures which continue to be covered by the
operation of the racial discrimination provisions in the legislation for the Northern
Territory emergency response. Importantly, the Bill contains no new
provisions which exclude the operation of the Racial Discrimination Act. The
new R18+ measures have been designed as special measures, through the clear
consultation with the community requirements. There is no provision deeming
them to be a special measure, nor excluding them from the operation of part II
of the Racial Discrimination Act.
Review of Northern Territory
Emergency Response legislation
1.14
The Committee is examining during this inquiry only those provisions
that are contained in the Bill. However, many issues relating more generally to
the emergency response and its implementation were raised in evidence. The
major issues included governance of prescribed areas resulting from the
introduction of government business managers, income quarantining and income
management; the operation of stored value cards; the delivery of health,
housing and education services; employment arrangements; and urban drift,
especially the growth in town camps at Alice Springs.
1.15
The Government has announced its intention to commission an independent
review of the Northern Territory emergency response for completion in the
latter part of 2008 to determine whether the response is improving education,
health and employment outcomes. The minister indicated that further
consideration will be given to the racial discrimination provisions in the 2007
legislation following the proposed review later this year.
BACKGROUND
1.16
In April 2007 the Northern Territory Board of Inquiry into the
Protection of Aboriginal Children from Sexual Abuse, co-chaired by Pat Anderson
and Rex Wild, presented their report 'Little Children are Sacred' to the
Northern Territory Government.[4]
The report outlined that child sexual abuse among Aboriginal children in the Northern
territory was serious, widespread and often unreported, and that there was a
strong association between alcohol abuse and sexual abuse of children.
1.17
In response to this report, the then Prime Minister, Mr Howard, and
Minister for Families, Community Services and Indigenous Affairs, Mr Brough,
announced a series of initiatives in June 2007. These initiatives were enacted
in August 2007 through a package of legislation that formed the emergency
response. While in the Parliament the five bills in the package were subject to
a four day inquiry by the Senate Legal and Constitutional Affairs Committee
that reported on 13 August 2007.[5]
1.18
Generally, the fact that government was acting on the issues of
disadvantage and abuse in Indigenous communities was widely supported, though
there remained underlying concerns. As the Central Land Council wrote:
We are deeply concerned that the emergency response lacks a long
term investment plan, a community development approach or any benchmarks or
critical evaluation process.[6]
1.19
The Senate inquiry in 2007 attracted over 150 submissions. Many of these
had been previously made in response to a discussion paper published by the
Minister in October 2006. Many of the arguments from these submissions remain
current and were repeated in evidence to the Committee's inquiry into this Bill.
ISSUES
1.20
The provisions of the Bill were supported by most submitters, though
some expressed reservations, while others opposed the provisions or proposed
broader bans.
Permits - Access to Aboriginal Land
Land tenure and the permit system
1.21
The issue of land tenure and the permit system was the major focus of
nearly all submissions. Professor Jon Altman described the land ownership
system:
Prescribed areas are held under inalienable freehold title by
Aboriginal Land Trusts for Aboriginal traditional owners. This is an unusual
form of land ownership because it is vested in groups rather than individuals.
It is also unusual because Aboriginal prescribed townships have been built on
land where the underlying title is communal inalienable freehold. ...[T]he permit
system allows the owners of that land to exercise their rights to exclude
non-Aboriginal people from the land that they own under Australian law. Because
this is an unusual form of land tenure is explained in part why an unusual form
of entry requirement, the permit system, is required. This system is
administered by Aboriginal land councils or delegated authorities and gives
substance to the property rights of traditional owners.[7]
1.22
The Northern Land Council described the aims of the permit system:
From a policy perspective the scheme is intended to ensure that
Aboriginal communities and people are not subject to breaches of privacy, or
inappropriate or culturally insensitive actions by unauthorised persons on
Aboriginal land, as well as ensuring that persons with a legitimate or
justifiable interest may enter Aboriginal land.
Such inappropriate actions are not uncommon, and (in a non-court
context) have included inappropriate presence or reporting regarding culturally
sensitive matters such as funerals or ceremonies, unauthorised photography, and
indefensible misrepresentation regarding important issues.[8]
1.23
The Laynhapuy Homelands Association emphasised that the permit system 'was
and remains an important expression of our right to control access to our land
and resources. It serves a useful purpose in assisting us to manage our own
affairs and maintain our culture.'[9]
1.24
In 2007 the former government had sought to link land measures with
child abuse. Many submitters argued that during the 2007 debate no case had
been substantiated that provided any correlation or relationship linking the
permit system to child sexual abuse in Aboriginal communities and therefore
changes to the permit system were unwarranted.[10]
It was noted that significant child abuse has been reported in communities
outside of the Northern Territory, including Queensland and Western Australia
where there is no permit system.
1.25
The Central Land Council addressed the positives of the permit system,
indicating that 'our overall view is that the permit system is an effective and
appropriate tool under the [Land Rights Act] for negotiating third party access
to Aboriginal land for miners, pastoralists, developers and visitors'. The CLC
added that the permit system has not impeded the provision of services and is
an important policing tool in remote communities.[11]
1.26
On the policing issue, the Police Federation of Australia which
supported the Bill as 'sensible measures taken as interim steps pending the
independent review that the government has foreshadowed', reiterated comments
made in their 2007 submission:
... we have consistently said is that in some instances the permit
system as such can be a useful tool for police officers in remote communities
in controlling, or assisting the local community in controlling, who comes and
goes from those communities—not in terms of journalists or government employees
or indeed business people wanting to assist those communities but in terms of
other people.[12]
Earlier reports and reviews
1.27
A number of submissions referred to earlier reports and reviews that had
referred to the permit system including the 1974 Royal Commission into
Aboriginal land rights chaired by Justice Woodward, the House of
Representatives Standing Committee on Aboriginal and Torres Strait Islander
Affairs 1999 Report Unlocking the Future into the Aboriginal Land Rights
Act and FaCSIA's 2006 Review of the permit system.[13]
They all supported the retention of the permit system.
1.28
The Law Council advised that because no report of the 2006 Review had
been published it had sought through FOI relevant reports, submissions and
documents received by the Review. The consultations and submissions to the
Review overwhelmingly supported no change to the permit system. The LCA
concluded:
It is apparent that a majority of Aboriginal people in the Northern
Territory supported maintaining the permit system under the ALRA.
Accordingly, repeal of the changes introduced under the NER legislation should
be supported.[14]
1.29
The NLC and CLC indicated that they had comprehensively consulted with
their communities as part of the Review. The NLC stated that 'Traditional
owners, and Aboriginal people in communities, universally opposed removal of
the permit system, as does the NLC' and the CLC commented that 'Aboriginal
people voiced a strong opposition to forced changes to a permit system which
complements their responsibility for country under Aboriginal law and custom,
and is consistent with the land title they hold under Australian law'.[15]
Open or closed communities
1.30
It had been argued as part of the 2007 legislation and again by some in
relation to this Bill that the permit system had resulted in closed communities
where issues of abuse and community dysfunction could occur without adequate
external scrutiny being possible. However others argued that the permit system
had allowed visitors to the communities thereby enabling external scrutiny to
occur. Indeed, the permit system provided a level of control that enabled
communities to exclude undesirable people from entering their community.
1.31
The NLC provided the figure of 32 010 as the number of permits granted
by the Land Councils and the Northern Territory Government during 2005-06. In
addition, although figures were not available, it is known that traditional
owners with the assistance of community councils also issue a large number of
permits. Representatives of Land Councils and Homelands advised that it is
very, very rare for permits not to be granted if they are applied for and they
argued, along with others, that this great flow in and out of communities by
people who are not from the community provided plenty of opportunity for
scrutiny. As Mr William Tilmouth from Tangentyere Council explained:
Aboriginal people’s lives are not as private as yours or mine.
We are open to scrutiny every day of the week. When anyone wants to orchestrate
media against us, that will happen. We are under surveillance in every walk of
life.[16]
1.32
With such levels of scrutiny possible it was argued that these were not
'closed' communities. However, degrees of relativity remain. As Mr Levy from
the NLC concluded:
These communities have, in the last few years, been portrayed in
the media as closed communities. I do not think they are closed communities. I
do not think they are open communities either; I think they are somewhere in
the middle.[17]
Ministerial authorisations
1.33
Reservations were expressed over the Minister's power under subsection
70(2BB) to authorise a person or class of persons to enter or remain on Aboriginal
land. Some groups did not agree with or cautioned against the adoption of an unfettered
Ministerial power to issue permits or ‘authorisations’ to access Aboriginal
land (a power which may be delegated to an officer within FaHCSIA). The CLC
considered that continuing to allow the Commonwealth Minister or delegate to
have a power to issue permits or ‘authorisations’ has the potential to create a
parallel permit system which will bypass the normal consultative process
undertaken by land councils, allow applicants to ‘forum shop’ for their permit,
and increase administration and confusion.[18]
1.34
The Law Council was concerned that the Minister could authorise access
to sacred sites and argued that the legislation should clarify that a
Ministerial authorisation under section 70(2BB) to enter Aboriginal land does
not authorise entry upon a sacred site contrary to the procedures of the Northern
Territory Sacred Sites Act.[19]
1.35
The Northern Territory Government expressed concern that the powers
contained in subsection 70(2BB) 'leave open the possibility that a Commonwealth
Minister could, in a distant time, in effect, remove the permit system for community
land (as well as other aboriginal land) by a series of administrative
decisions'.[20]
1.36
FaHCSIA noted that a ministerial authorisation power is currently
provided in the existing section 70(2BB) of the 2007 Act which provides that
the minister may give authorisation to a person or class of persons. The
Department advised that:
The amendment that is proposed in the current bill is to refine
that power to do two things: to make it clear that an authorisation given by
the minister under that power can be limited to a geographical area and that it
can be subject to conditions. We just want to make it clear that it is an
existing power, and indeed it is a power which has already been called upon...
That is an authorisation which ensures that personnel engaged in delivering the
measures that are part of the NT emergency response have the requisite
authority to enter Aboriginal land to deliver all those measures.[21]
1.37
FaHCSIA also indicated that the existing ministerial power and the
proposed power are subject to the sunset provisions and will endure only for
the duration of the intervention.
Access for journalists
1.38
There was differing information provided to the Committee on the extent
that journalists had been denied permits under the system that operated prior to
the 2007 legislation. The NLC figures provided for the issue of permits by the
Land Councils in 2005-2006 indicated that of a total of 56 permit applications
received from the media, only two were refused.[22]
However Mr Paul Toohey, a journalist with News Limited, advised that he had
been 'refused permits on many occasions' and was aware of other journalists
being refused permits.[23]
An explanation was offered that given the various land tenures that operate
under different laws from freehold to leasehold, rather than a permit refusal
some situations were a denial of access to land not covered by the permit
system and which more likely relied upon the NT Trespass Act.[24]
1.39
FaHCSIA advised that the proposed authorisation which the Minister has
indicated would be made after the passage of the Bill permitting access to
Aboriginal land by journalists for the purpose of reporting on events in
communities, has not been finalised. The Department wrote on 22 February 2008 to the Land Councils and the MEAA setting out the broad parameters for the sort of
authorisation which might be considered and inviting their comments. A copy
this correspondence was provided to the Committee.[25]
Pornography - Regulating Pay-TV
services for R 18+ programs
Defining pornography
1.40
The term 'pornography' is used generically in Australia and there are
widely differing interpretations of what qualifies as pornography. Films,
computer games and other material are strongly regulated in Australia through a
national classification scheme. Classification Guidelines explain different
classification categories (G, PG, M, MA15+, R18+, X18+, RC) and the scope and
limits of material suitable for each category. There are six classifiable
elements – themes, violence, sex, language, drug use, nudity – and the classification
takes account of the context and impact of each element including their
frequency and intensity, and their cumulative effect.[26]
1.41
Under the Broadcasting Services Act 1992, R18+ rated programs can
only be shown on television as part of a subscription television narrowcasting
service. Subscription broadcast channels, like all free-to-air channels
including the ABC and SBS can only broadcast MA classified material or below. In
order to qualify as a subscription television narrowcasting service, the audience
for the service is necessarily limited. In addition to the Classification
system broadcasters are also constrained by their own industry codes of
practice.
1.42
While the term pornography is used generically in the Little Children
are Sacred report, Austar understands that their programming of concern to
these communities is sexually explicit television content generally, and
‘Adults Only’ programming in particular. Austar considers that it is likely
that the sexually explicit television content referred to in the report was
R18+ classified (though not all R18+ programs are so rated because of sexual
content) and therefore the Bill is based on restricting the supply of R18+
rated subscription television into prescribed communities.[27]
R18+ programs on Austar Pay-TV
services and lockout protections
1.43
Austar advised that of the many different television services they offered
only three include R18+ rated content. These are:
- The World Movies channel, a foreign language channel which
occasionally shows movies that are rated R18+. In 2007 3% of all movies
broadcast on the World Movies channel were R18+ rated and they are scheduled
after 9.30pm;
- The BOX OFFICE Movies service, a pay per view movie service that
allows customers to book and view movies in return for an additional payment. Only
ten R18+ movies have been or are scheduled on this service between July 2007
and December 2008 and only one was so rated for sexual content;
- The BOX OFFICE ‘Adults Only’ service, which offers Adults Only
movies to subscribers on a per session or monthly subscription basis, in return
for an additional payment over the customer’s base subscription fee. This is
the service that would likely be affected by the provisions in the Bill.[28]
1.44
Austar outlined in their submission and in a presentation to the
Committee the operation of their parental lockout system and PIN protection
that enables parents to restrict their children's access to unsuitable programs
or those that they believe should not be accessed due to the ratings
classification of those programs.
1.45
There was some debate over the use of parental lock-out systems and the
capacity of adolescent children to 'break the codes'. The related issue of
parental supervision was also raised. Mr Kelly of the PFA commented:
There is a lack of parental supervision across the board of what
people watch on the television...The reality is, unless there is parental
supervision, it does not matter what you ban. If there is no buy-in from the
elders and the people in that community to supervise and self-regulate what
kids are accessing then it really does not matter what you ban for the rest of
us.[29]
Number of subscribers in prescribed
areas and implementation costs
1.46
With only three services offered by Austar carrying R18+ material,
Austar was questioned as to the number of subscribers that they may have in the
prescribed areas and the number of these who would be Adult Only channel
subscribers. Austar has been in discussion with FaHCSIA to determine the
prescribed areas for comparison with Austar's subscription information.
Currently 517 active subscribers have been identified in the prescribed areas. Given
that there is a total figure of 21 000 subscribers across the whole Northern
Territory of which about 3.6% are Adult Only single session or monthly
subscribers, if a similar 3.6% rate is applied to the 517 who are in the
prescribed areas, the number that the provisions of the Bill would cover appear
to be very small.[30]
1.47
Given the limited number of subscribers likely to be affected by the Bill,
the Committee sought information about the cost to Austar and ACMA of
implementing this measure. Austar outlined a number of technological and
administrative changes that it would need to make to comply with the
legislation. Costs were likely to be significant and would be directly
influenced by the scope of the ban. Any increased cost burden would likely be
passed onto subscribers. The Department of Broadband, Communications and the
Digital Economy (DBCDE) in its response indicated that it was not possible to
provide information on the likely cost of the measure and noted the issues
raised by Austar.[31]
Issues raised by Austar
1.48
Austar advised that since the release of The Little Children are Sacred
report they have worked with governments to assist legislators in understanding
the technical and regulatory environment in which Austar provides its services.
Austar strongly disagreed with any call to implement a blanket ban as lacking
an understanding about the technology on which subscription television is based
and would not reflect the extensive work that FaHCSIA and DBCDE have done to
ensure that the Bill is capable of achieving maximum benefit. Austar stated
that:
If, however, the Government considers it necessary to bring in
legislation on this subject, we believe that the Bill currently before
Parliament, with some minor amendments on technical issues such as
recordkeeping, will achieve the stated policy objectives of the Government.[32]
1.49
The technical and other issues referred to by Austar, particularly
relating to a blanket prohibition on R18+ content, included:
- Austar is not technologically able to block the supply of R18+
rated programs to prescribed areas in Australia on a program-by-program basis...We
have consciously designed program-by-program access restrictions in a way that gives
that control to parents, in the home. In addition, Austar imposes PIN
protection centrally on all ‘Adults Only’ programming. We cannot, technically,
do more than that;
- A blanket prohibition on Austar’s supply of all R18+ rated
programs carried on its platform into prescribed areas would therefore require Austar
to suspend all Austar services that ever include R18+ rated programs, including
the World Movies channel and BOX OFFICE movies in their current program
configuration, into those areas;
- The difference between how AUSTAR locates its customers and how
the Emergency Response Act defines ‘prescribed areas’ means that it is not
possible for Austar to know with certainty whether one or more of its customers
is located within a ‘prescribed area’;
- Austar also proposed amendments to refine the operation of the
Bill, that related to the ability to self-declare an R18+classified service,
record keeping, service provider participation in community consultation
process, inadvertent breaches and exemption from the Racial discrimination Act.[33]
The technical amendments may be
considered in the debate on the legislation.
1.50
DBCDE commented on the difficulties Austar had in matching their data
with prescribed areas which has an impact on any possible ban into these areas.
My understanding is that Austar has already been working with
FaHCSIA people in relation to the maps. Matching the maps is obviously where
they would have to start. I would imagine that a substantial proportion of the
subscriptions—and there are only a relatively small number of people with
subscriptions to the adults-only channel—would probably be relatively easy to
identify. But there are, no doubt, going to be some areas on the margins where
there will be some issues.[34]
1.51
The issue of limiting any prohibition to the prescribed areas that
raised the technological issues for Austar, raised broader issues for others. The
North Australian Aboriginal Justice Agency (NAAJA) commented that such
arbitrariness would have no impact in encouraging behavioural change and
argued:
Let’s not focus on this arbitrary distinction between where you
can and cannot access pornography; let’s look at providing significant services
that are culturally appropriate to people in communities about what has been
happening to them and some of the sexual behaviour that happens in communities.
If we address that sexual behaviour, then pornography will fit into that in
terms of appropriate ways in which pornography should and should not be viewed.
One of the concerns with pornography is its link in grooming children for child
sex offences. If we do not provide services to deal with child sex offending in
a holistic way, then the pornography is going to remain an issue, whatever
tough prohibitions government installs.[35]
Little Children are Sacred and
recommended education campaign
1.52
The Little Children are Sacred report spoke of the impact that
pornography had of inexorably leading to family and other violence and on to
the sexual abuse of children.
It is apparent that children in Aboriginal communities are
widely exposed to inappropriate sexual activity such as pornography, adult
films and adults having sex within the child’s view. This exposure can produce
a number of effects, particularly resulting in the “sexualisation” of childhood
and the creation of normalcy around sexual activity that may be used to engage
children in sexual activity.[36]
1.53
The report stated that the availability of pornography in communities
and children’s exposure to pornographic material 'was as a result of poor
supervision, overcrowding in houses and acceptance or normalisation of this
material'.[37]
However, the report's recommendation 87 in relation to pornography was to
conduct an education campaign to inform communities about film and television
classifications, the illegality of intentionally exposing children to indecent
material, and the harm to a child's well-being that is produced by exposure to
sexually explicit material.
1.54
A number of submissions referred to this recommendation noting that the
emphasis was on education as the key to providing a longer term solution which
enlivens adults in affected communities to the dangers of pornographic and
violent material to young and immature viewers.[38]
1.55
While the Bill does not provide for the education campaigns needed to
address the issues of sexual abuse and the impact of pornography, the Committee
did hear that education campaigns are commencing. Ms Morris from the NT
Department of Justice advised that the NT government is working in partnership
with NAPCAN (National Association for Prevention of Child Abuse and Neglect) in
relation to a pornography education program:
We have a program which is being rolled out into communities at
the moment to educate people about classifications—all classification,
including film and video and other forms of entertainment—and what the
classifications mean and therefore what is appropriate for what level. Previous
education campaigns on that have not targeted Indigenous people as the audience
or have not delivered those education campaigns in ways that they would
understand the message.
We are working with a group of senior men in order to train them
as to what the classifications mean and what the pornography restrictions mean.
They are taking that message as leaders back to the communities. [The first
phase of this program involves 27 different communities]. Various materials
have been developed, and NAPCAN was on the steering committee and is assisting
with the development of those materials which will provide information about
that message.[39]
1.56
The Attorney-General's Department indicated that the classification area
had given some assistance to the NT officers working on developing educational
campaigns by providing information and participating in seminars. However, no
funding has been provided by AGs nor by other Commonwealth departments.[40]
1.57
Austar also advised that they had begun work with FaHCSIA on an education
program for Indigenous communities in line with the recommendation in the
Little Children are Sacred report to better inform adults in the community
about Austar’s services and the parental control technology they can use to restrict
their children’s access to programming that is unsuitable for them to watch.[41]
1.58
FaHCSIA indicated that some discussions had been held with Austar in the
context of the community consultations that would be required and about the
benefits of educating and working with communities on what was pornography.
However, the discussions were about Austar working through their service
providers to get some things on the ground, rather than government actually
rolling out a program around education.[42]
The 35% Rule
1.59
Some argued that the Bill proposes a limited and complex regime for
restricting the broadcast of R18+ television into certain prescribed areas of
the Northern Territory. The broadcasting restrictions in the Bill apply to a
subscription television narrowcasting service in which the total number of
hours of R18+ programs broadcast during a seven day period exceeds 35% of the
total number of hours of all programs broadcast during that period.
1.60
Some uncertainty was expressed about this wording as to whether the 35%
rule would apply to a specific channel or to the entire broadcast hours of a
particular subscription television narrowcasting service. DBCDE and Austar[43]
advised that the 35% definitely applied on a service by service or channel by
channel basis. While this advice clarified the situation, there was debate during
the hearing that the wording of the Explanatory Memorandum created uncertainty
as it appeared inconsistent with the wording of the Bill.[44]
1.61
The Festival of Light Australia considered that 'even
if the Bill were amended to ensure that the 35% rule would apply to a
particular channel rather than to a particular subscription television
narrowcasting service as a whole, the provision would still be difficult to
apply'. FoLA recommended that the Bill be amended with these provisions being
replaced 'with a blanket prohibition on any broadcast of R18+ programs into
prescribed areas'.[45]
Community consultation and request
1.62
Some concerns were expressed that community members may be reticent
about expressing a view on this issue or that the expressing of contrary views may
not be taken into account in reaching a community decision. FaHCSIA responded
that they understood that some people might be reluctant to come forward or
express concerns about material. It is proposed to have guidelines to assist in
the consultation process which include enabling a person to submit their views
in writing to the minister:
The idea is that the person making the complaint in writing need
not be the complainant. It could be somebody in a community writing on behalf
of, say, a particular Aboriginal woman or even children. We understand that it
can be done on behalf of a child who might make a complaint. So the written
complaint might come from somebody who is working in the community or a friend
of the person in the community—but it needs to be a single person in the
community, a child or a woman—and they would be able to make it with someone else’s
assistance.[46]
1.63
The HRLRC raised a related issue noting that while the Bill provides
that the Minister must ensure that there has been adequate community
consultation before declaring a prescribed area for the purposes of prohibiting
the broadcast of R18+ programs, 'a failure of the Minister to consult adequately
with the community does not affect the validity of a determination. This raises
concerns in relation to the right to an effective remedy.'[47]
Overlapping legislation and
policing
1.64
The Police Federation of Australia reiterated its concerns in relation
to policing in remote Indigenous communities and remain convinced that
effective policing in these communities can only be carried out by experienced Northern
Territory police permanently stationed and living in the communities. The
Federation was concerned at the complexities and difficulties that arise from
overlapping laws and argued:
That the Commonwealth and Territory governments should move
quickly to ensure that NT statutes, in liquor and pornography control, meet the
requirements of the Federal emergency response to ensure that the arrest and
prosecution process are not hampered by administrative and bureaucratic
inefficiency.[48]
1.65
The NT government noted that there are 'practical problems' with some of
the legislation, including in relation to compliance and policing activities.
The NT government is currently assessing this issue, partly as the Territory
liquor act is being reviewed, and they will work with the Commonwealth to
ensure that the issue is addressed as part of the emergency response review due
later in the year.[49]
Transport of prohibited material
1.66
The Festival of Light noted that the Bill provides that a police officer
would only be entitled to seize prohibited material if the officer 'suspects on
reasonable grounds' that the prohibited material 'was not brought into the
prescribed area for the sole purpose of transporting it to a place outside the
prescribed area' and argued:
So, although in a prosecution for an offence the legal burden
would be on the accused to prove that the material was brought into the
prescribed area for the sole purpose of transporting it to a place outside the
prescribed area, it is less likely that prosecutions would be brought because
police would have difficulty in finding 'reasonable grounds' for disbelieving
any claim by a person caught with prohibited material in a vehicle that it was
intended for transport outside the prescribed area.
This provision is likely to have a significant dampening effect
on any serious effort by police to enforce the prohibition on possession of
prohibited material in prescribed areas.[50]
1.67
Mr Kelly, representing the Police Federation, noted that police had
experience with the NT liquor legislation which permits transport through
liquor-restricted areas and commented:
It can become a bit of a cat-and-mouse game when you have people
from the community saying, ‘We’re just driving across to X, Y, Z,’ which are
not restricted areas. So it does present challenges. But, again, if people are
legitimately moving through a community and are not going to stop and
distribute what they have got then I suppose that is part of life. I think the
answer to your question is that it would be something that police on the ground
would have to deal with. If someone stopped, they would have to enforce the law
as effectively as they could.[51]
Community Stores
1.68
The amendment to allow roadhouses, upon which communities are
substantially dependent, to be licensed as a community store was generally
supported, though exactly how substantial dependence would be assessed was
questioned.[52]
1.69
However, some broader issues relating to the community store licensing
system were raised, especially that the cost of attaining licensing
accreditation was being passed onto welfare dependent consumers and at the
availability of healthy, nutritious food. The CLC summed up these views:
It is apparent that the store licensing is focussing on income
management and administrative arrangements, rather than nutrition and pricing.
So while, as a consequence of having to implement income management, store
governance arrangements are improving, deeper social and health issues are not
being addressed. Anecdotally, store prices have universally increased since the
advent of income management in a community. There may be some increased costs
associated with administration of this system, but it appears the guarantee of
quarantined money is fuelling high inflation at community stores.
The CLC would support higher benchmarks for stocking nutritional
food, stricter controls on pricing, and, as stated in our previous submission,
a requirement that stores have the capacity to train and employ local community
members.[53]
1.70
The Northern Territory Government raised an additional issue for the
roadhouses that could be subjected to the licensing regime and who may pass on
the cost of any regulation to customers:
There may also be 'competition impact' issues arising from the
fact that some roadhouses will be adversely affected when compared to other roadhouses
or stores in towns. Compared to other roadhouses they will be subjected to
higher compliance costs and thus, in dealing with tourists and other
travellers, could be at a serious competitive disadvantage.[54]
1.71
FaHCSIA provided a detailed outline of the procedures that are followed
for the Community Store Assessment and Licensing Process.[55]
Major General Chalmers commented that many stores are operating successfully
under the system:
My contention would be that there are many stores operating
under income management which are doing so successfully and, as I have said
before, experiencing increasing turnover. I do not think the picture is quite
as dark as it may have been painted to you.[56]
Compliance with Racial
Discrimination Act and International obligations
1.72
The package of legislation that formed the NT Emergency response contain
provisions that deem the measures in the legislation to be special measures and
excludes them from the operation of the Racial Discrimination Act (RDA). This
element of the emergency response has been heavily criticised with groups
calling for the repeal of the provisions suspending the operation of the RDA.
1.73
As noted earlier, the Bill contains no new provisions which exclude the
operation of the RDA. However, the new R18+ measures have been designed as special
measures and do not have a provision excluding the operation of part II of the RDA.
The Law Council particularly noted that the RDA will not be suspended in
relation to any new measures under the Bill, commenting that 'this aspect of
the Bill is supported by the Law Council and invites the further comment that
suspension of the RDA in any context is inappropriate, contrary to Australia’s
international obligations, and sets a dangerous precedent for future
Parliaments'.[57]
1.74
A number of submissions debated at length whether the provisions in the
Bill are compatible with Australia’s international law obligations[58],
in particular the duties to protect freedom of expression, freedom of movement,
freedom from racial discrimination, and the rights of Indigenous people. The
Human Rights Law Resource Centre (HRLRC) was particularly concerned about a
number of human rights issues in respect of the Bill, namely the right to
non-discrimination and equality before the law; the right of self-determination
and to participate meaningfully in policy formulation and public debate; the
rights of the child and the importance of using a children's rights framework; and
the right to an effective remedy.[59]
1.75
The Sydney Centre for International Law discussed whether Schedule 1
(broadcasting R18+) is compatible with freedom of expression and is not
racially discriminatory with its special measures and that Schedule 3
(reintroduction of permits) is a justifiable restriction on freedom of
movement. The Centre concluded that:
In our view, the bill largely complies with Australia’s human
rights law obligations, although at present the bill goes too far in
interfering in protected freedom of expression and we recommend that only
pornographic (not all R18+) material should be restricted.[60]
Recommendation
1.76
The Committee reports to the Senate that it has considered the Families,
Housing, Community Services and Indigenous Affairs and Other Legislation
Amendment (Emergency Response Consolidation) Bill 2008 and recommends that the Bill
be passed
Senator Claire
Moore
Chair
May 2008
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