Chapter 2 - Key Issues
Virtually without exception, witnesses and submitters welcomed the
intent of the Australian Government's intervention package and some were
strongly supportive of the package itself. Mr John Moriaty of the National
Indigenous Council (NIC) told the committee:
I think that the intervention, as it is known, is a
once-in-a-lifetime opportunity for people like me who have been involved in a
long struggle for equality for Aboriginal people and bringing them into the
mainstream of Aboriginal society. ...I find this a once-in-a-lifetime
opportunity for fighters like me who want Aboriginal rights, and I think it
should be supported. We have lost at least two, maybe three, generations in my
communities up there in Borroloola.
I think that our leadership has been lacking in the past and
there is a lot of confusion as well. This has led to a lot of violence in the
community. Also it has led to a dysfunctional community...
Mr Moriaty further explained why he supported the Government's
Under the current system, we have allowed the states to do their
thing. Having been involved in Aboriginal affairs over many years, I have found
that, in the states, as far as ordinary citizens are concerned, Aborigines do
not rate very highly electorally. I find that this intervention is one of those
aspects that will dig deep into the real issues and have Aboriginal people
brought into the system.
Similarly, Mr Wesley Aird of the NIC told the committee:
I think the status quo is a result of a failed model in terms of
funding and governance systems. I think it is destroying communities and lives.
The obvious manifestation of this is child abuse and neglect as well as
alcoholism and violence...
I support the intervention. I think it is important that it is treated
as a package.
In relation to criticism of the intervention, Mr Aird stated:
I am concerned that the critics of the intervention are losing
the real focus here, which is the protection and safety of families and
The committee also heard that many of the residents of Alice Springs and
Katherine were supportive of the intervention package. The Mayor of Alice
Springs Town Council, Councillor Kilgariff told the committee:
I would like to start by saying that many people in this area
have welcomed the federal intervention. They see it as a catalyst for change.
Over very many years we have seen a deterioration in the quality of Indigenous
lives brought about by many things but I would say principally by alcohol and
welfare dependency. Although many people around here have tried a lot of
initiatives over the years, it seems that the issue has been getting so big and
so irreparable that people have been starting to feel that there will never be
a change. So from that point of view, I think the intervention is very welcome.
Similarly, the Mayor of Katherine Town Council, Councillor Shepherd
noted that she and most of her community welcome the government’s intervention.
Other submissions and witnesses at the public hearing expressed concerns
about the content of the intervention package, or the process by which it was
developed and is being implemented. Some of the key issues raised in
submissions and by witnesses are outlined below.
Many submissions were critical of the haste with which the legislative
package has been introduced into Parliament and argued that there should have
been more consultation with those who will be affected by the proposed changes.
For example, Oxfam Australia submitted:
Any truly effective strategy for combating child abuse in
Aboriginal communities must involve the commitment and active participation of
those communities. The Government’s striking lack of consultation with
Indigenous organisations and affected communities in the Northern Territory is
both disrespectful and contrary to the development of good public policy.
Moreover, it has resulted in a package of bills which are not supported by the
vast majority of Aboriginal organisations in the Northern Territory. This does
not bode well for the successful implementation of the legislation, the
prevention of child abuse or the improvement of the health and well-being of
In a similar vein, Australians for Native Title and Reconciliation
(ANTaR) argued that:
Given the seriousness of the problem of child abuse, the scale
of these legislative changes and the unprecedented power that they give to the
Minister, it is scandalous that there has been so little time for consultation,
scrutiny and debate on the Government’s Northern Territory National Emergency
Some submissions were also critical of the time allowed for the Senate
Catholic Social Services Australia suggested that the inquiry into the bills
should be extended:
Our sole recommendation is that the Committee recommend the
further referral of the Bills to committee, for a period of at least two
months. This would allow the beginnings of consultation on the far-reaching
implications of these hastily conceived Bills – and on how they might be
The Human Rights and Equal Opportunity Commission (HREOC) accepted the
need for urgent action in the Northern Territory but argued that consultation
with affected communities is vital if the measures are to be successful in the
HREOC accepts the need for urgent action. However, the success
of that action both immediately and in the long term will depend upon effective
consultation. And such consultation is fundamental to respecting the human
rights of Indigenous people.
HREOC suggested that, given the complexity of the legislation and the
fact that many of the laws will carry serious penalties for non-compliance:
A culturally appropriate and effective public information
campaign is critical to allay fears and ensure Indigenous communities
understand how the NTNER measures will impact on them and what their new
HREOC understands that Centrelink and the Ombudsman’s Office
intend to provide public information to Indigenous communities. This is welcome
but it must be done in a comprehensive and culturally appropriate manner. It is
critical that information does not add to the fear and confusion in Indigenous
communities about the legislation.
In response to concerns regarding consultation, Dr Sue Gordon, Chair of
the NIC and the National Emergency Taskforce, told the committee that consultation
in the context of a response to an emergency was necessarily limited and she
drew a parallel with the imperative for governments to act swiftly in the face
of other emergencies. She submitted that the protection of children, and indeed
adults, in communities who suffer violence and abuse had been completely lost
in the public debate and noted that in an emergency, like a tsunami or a
cyclone, governments do not have time to consult people in the initial phases.
In particular, she stressed to the committee that every day there is a delay in
acting, means that another child is put at risk.
Similarly, Mr Aird from the NIC told the committee:
[T]here has been so much consultation with Indigenous people
over the years on so many topics. I think this one is different because we knew
that the abuse and neglect of children was ongoing. So for every day, every
week that you were out there consulting...the person who delayed action would
knowingly allow more abuse, more neglect, and I think that raises some very
serious moral questions about just how long you are going to knowingly allow
that abuse and neglect to continue. So I would support the speed at which they
...Now there must be consultation for the correct, professional,
technical implementation of what they are doing. It is appropriate that the
action was taken as quickly as it was, but, when it gets down to communities
now, we should not be talking to the gatekeepers...we should now be coming up
with localised solutions that actually address the core problems.
Finally, the Northern Territory Emergency Taskforce has requested that
the government, as a matter of priority, engage in local information campaigns,
regarding the measures to be implemented as part of the intervention package, in
order to share information with affected communities.
The need for long term commitments
Some submissions and witnesses expressed concern that the measures
proposed in the bills will not be effective in addressing problems in
Indigenous communities unless longer-term solutions are also instigated.
For example, Oxfam Australia stressed the need for long-term measures to
address the root causes of the endemic social problems in Indigenous
Revelations of deep social problems in many of our Indigenous
communities are not new. Indigenous leaders have been warning for the past
decade that a social crisis would emerge if federal, state and territory
governments failed to provide Indigenous Australians with the opportunities and
basic services other Australians take for granted: policing, primary health
care, education, housing and real employment opportunities. We are now reaping
what we have sown through the failure of successive governments to address the
root causes of this crisis.
Now that this issue is finally on the national agenda, immediate
action is required to protect communities – and children in particular – while
also addressing the underlying factors contributing to the cycle of abuse.
Oxfam Australia advocates both immediate and longer-term measures to tackle
Despite welcoming overall the government's intervention, the Mayor of
Alice Springs Town Council, articulated her concern that the reforms contained
within the bills will not be sustainable in the longer term:
I think there is a real danger that, when all these things have
gone through and if the enthusiasm and resources are not maintained, things
will fall in a hole and Aboriginal people will be in a worse-off situation than
they were before all of this started.
Whether the bills are discriminatory
Many submissions and witnesses argued that the bills are discriminatory.
For example, the Law Council of Australia (Law Council) stated that the bills
'raise fundamental and far-reaching issues in relation to racial
discrimination, the human rights of Aboriginal people, land rights and 'just
Amnesty International Australia noted its strong concern that:
...the bills package as currently drafted contains discriminatory
measures that have no demonstrated role in protecting Indigenous children. The
most notable of these are proposed changes to the permit system and land tenure
In particular, a number of submissions and witnesses commented on the
specific exclusion in the three main bills of the operation of the Racial
Discrimination Act 1976 (RDA). While the bills provide that any acts done
under or for the purposes of their provisions are 'special measures' for the
purposes of the RDA, at the same time the bills are excluded from the operation
of Part II of the RDA.
The Law Council were extremely critical of this aspect of the
...[T]he inclusion in legislation proposed to be enacted by the
Australian Parliament in 2007 of a provision specifically excluding the
operation of the RDA [is] utterly unacceptable. Such an extraordinary
development places Australia in direct and unashamed contravention of its
obligations under relevant international instruments, most relevantly the
United Nations Charter and the International Convention on the Elimination of
All Forms of Racial Discrimination...
The Law Council notes the claim by both the Government, and by
the Leader of the Opposition in the House of Representatives on 6 August 2007, that the proposed legislation is consistent with the RDA. The Law Council
rejects this assertion entirely. If such claim were correct, the Government and
its advisers would not have considered it necessary to suspend the operation of
The Law Council also urged 'extreme caution in relation to the claimed
justification of the proposed legislation as a "special measure"' and
argued that 'the protection of "special measures", or measures of
so-called affirmative action, preferential treatment or quota systems', does not
'justify a number of critical aspects of the proposed legislation'.
HREOC submitted that the proposed measures in the bills, while intended
for the overall benefit of Indigenous communities, also have a range of
potentially significant negative impacts upon the rights of Indigenous people.
Accordingly, HREOC argued that:
The potential for the proposed legislation to breach the
fundamental rights of Indigenous people means that, at the very least, the
operation of the legislation should it be enacted must be subject to very
Similarly, the Jumbunna Indigenous House of Learning submitted that:
The measures contained in the Bills have been inappropriately
characterised as 'special measures' within the meaning of the Racial
Discrimination Act 1975 (Cth). By its nature, a special measure confers a
benefit on a particular group, for the purpose of enabling that group to enjoy
their human rights on an equal basis with the broader community. However, the
measures contained in the...Bills will only limit the ability of Indigenous
people in the Northern Territory to enjoy rights ordinarily taken for granted
by most Australians, and in particular, the right to exercise control over land
that they have property in.
In response to these concerns about the operation of the RDA and its
application to the bills, an officer of FaCSIA informed the committee that:
The bills make it clear that those measures in relation to the
emergency response are special measures, and special measures are based on the
Convention on the Elimination of All Forms of Racial Discrimination, which
allows concrete measures to ensure the adequate development and protection of
individuals. The provisions in the bills are intended to provide a benefit to
Indigenous Australians and to secure their adequate advancement and enjoyment
of their human rights on the same basis as others.
The exclusion from part II of the RDA is limited to the five
years of the emergency response and is necessary so that the special measures
in the emergency response can be implemented without delay and without
uncertainty. This is to allow the special measures to address the crisis in the
communities in the Northern Territory and to build social and economic
structures in those communities. The special measures are seen as measures to
protect children in a way which is consistent with Australia's international
obligations under human rights treaties. So, in short, the provisions are
necessary to allow the emergency response to proceed without delay and without
uncertainty so that the special measures contained in the legislation in the
three bills can be implemented.
The Explanatory Memorandum (EM) for the National Emergency Response Bill further explains the government's position
on this issue:
The Northern Territory national emergency response announced by
the government recognises the importance of prompt and comprehensive action as
well as Australia's obligations under international law:
• The Convention on the Rights of the Child requires Australia
to protect children from abuse and exploitation and ensure their survival and
development and that they benefit from social security. The International
Convention for the Elimination of All Forms of Racial Discrimination requires Australia
to ensure that people of all races are protected from discrimination and
equally enjoy their human rights and fundamental freedoms.
• Preventing discrimination and ensuring equal treatment does
not mean treating all people the same. Different treatment based on reasonable
and objective criteria and directed towards achieving a purpose legitimate
under international human rights law is not race discrimination. In fact, the
right not to be discriminated against is violated when Governments, without
objective and reasonable justification, fail to treat differently people whose
situations are significantly different.
The impact of sexual abuse on indigenous children, families and
communities is a most serious issue requiring decisive and prompt action. The Northern
Territory national emergency response will protect children and implement Australia's
obligations under human rights treaties.
Breadth of Minister's powers under the bills
The Law Council raised concerns regarding the breadth of the Minister's
powers under the bills, in particular, the provisions which variously provide
for the Minister to repeal provisions in the legislation (proposed section 114
of the National Emergency Response and Other Measures Bill) or to declare that
certain Divisions, or specified provisions in Divisions, of the National
Emergency Response Bill will cease to have effect (clauses 19, 22 and 24).
Ms Raelene Webb QC of the Law Council advised the committee in answer to
a question on notice:
These are examples of Henry VIII clauses, so-called because they
enable the Minister, simply by a stroke of the pen, to change the legal
framework. Henry VIII clauses are regarded as contrary to fundamental legal
principles as they give insufficient regard to the institution of Parliament as
the supreme legislature; they erode the function of the Parliament to
Some witnesses criticised the current permit system in relation to
Aboriginal lands in the Northern Territory for protecting perpetrators of
violence and abuse in Indigenous communities and therefore expressed strong
support for the proposed changes to the permit system.
The Mayor of Alice Springs Town Council told the committee:
In regard to the permit system, the Alice Springs Town Council
has resolved that it does agree with getting rid of the permit system in major
communities and on major roads. It did that about six months or so ago and it
did that because it felt that some of the issues that are happening in
communities remain hidden because there is a permit system...
However, others argued strongly against the proposed changes to the
system. In a general sense, these submissions and witnesses suggested that a
number of key measures in the bills, including the removal of land permits, are
not related to the 'national emergency';
and their inclusion in this package of bills as a measure to address child
abuse is not justifiable.
More specifically, many argued that the removal of the permit system is
inappropriate and will in fact be counter-productive.
The Central Land Council (CLC) stated its concerns as follows:
Opening up road and community 'common areas' on Aboriginal land
will open up Aboriginal land and communities more broadly. Once people enter
Aboriginal land it is difficult to control their movement. Aboriginal landowners
are concerned about the potential flow of visitors onto their land more broadly
without permission and without guidance with regard to safety and important
The permit system is an important policing tool in remote
communities. Police routinely ask unwanted visitors to leave communities
because they do not have a permit. Applying trespass law is simply not
practical on vast remote tracts of land. If more unwelcome visitors visit
communities, such as grog runners and carpetbaggers, there will be greater
demand for policing with fewer powers of enforcement...
From a policing point of view the permit system offers a measure
of protection for children, rather than putting them further at risk.
CLC argued that Indigenous people themselves oppose the proposed changes
to the permit system:
Aboriginal people are totally against forced changes to the
permit system because the permit system complements their responsibility for
country under Aboriginal law and custom and is consistent with the land title
they hold under Australian law.
In a similar vein, the Milingimbi Community Council expressed its
concern at the removal of the permit system:
The removal of the Permit System is a cause of great concern.
The system allows the community to monitor those who live in or visit the
community. Milingimbi is very much an 'open' community and legitimate requests
to visit are almost always granted. Will the Federal Government guarantee that
it will provide the appropriate level of law enforcement to ensure that the removal
of the Permit System does not lead to 'rivers of grog' flowing into this
ANTaR argued that removal of the permit system may actually increase
instances of child abuse:
No evidence has been provided to support the Minister's claims
that scrapping the permit system will help overcome child abuse. In fact, Australia's
leading expert on child abuse in Aboriginal communities, Professor Judy Atkinson
considers that scrapping the permit system may actually increase the risk of
child abuse by restricting the ability of communities to remove suspected
paedophiles from Aboriginal land. Fears have also been expressed that removing
the permit system will make communities more vulnerable to grog running.
In response to concerns about the proposed changes to the permit system,
the Secretary of FaCSIA told the committee that the review of the permits
system conducted by FaCSIA revealed problems with the system:
We did do a review of the permits system. The government
announced last year a review of the system. We have received 100 submissions,
including quite a lot of consultation. We had access to that information before
making the decision. In Minister Brough's visits around the north of Australia,
talking to people in many communities, in the community meetings, when everyone
was present, rarely did the permit system being a problem come up. A number of
times in private meetings after that, with Mr Gibbons and me, individuals
certainly came up to him and talked about the permit system being a problem.
The Combined Aboriginal Organisations of the Northern Territory gave
evidence that the group had not made a submission to this review on the basis
that it considered the issue of permits to be within the expertise of the Northern
Territory land councils.
In his second reading speech on the National Emergency Response and
Other Measures Bill, the Minister noted that:
After consultation the government has decided on balance to
leave the permit system in place in 99.8 per cent of Aboriginal land in the Northern
FaCSIA also provided the committee with a fact sheet explaining how the
modifications to the permit system are linked to combating child sexual abuse.
Importantly, the fact sheet notes that the proposed changes do not apply to
sacred sites, private land or to the vast majority of Aboriginal land:
They apply to towns only – places with roads, shops and public
places like other towns. Currently, access to town is closed, with no
justification. This sets these towns up as somehow different, and encourages
the people who live there to have different expectations and aspirations – to
think that because they are different they don't need to worry about having a
job or sending their kids to school.
The fact sheet suggests that the removal of the permit system will
promote strong and safe communities in a number of different ways. It argues
that allowing closed communities can allow bullies to dominate and stand over
people, and even intimidate people so that they do not report abuse. Further,
it makes the following case for changing the system:
The question is often asked why we are removing the permits
system in these towns, but a more pertinent question is: why would you have
such a system in the first place? Why set up Indigenous people living in towns
as different and prevent them from having access to normal experiences that see
most Australian communities prosper and thrive?
It would be easier to understand why some people argue so
strongly for the permit system if these towns were well functioning havens. But
the Little Children report clearly tells us this is not the case. The
permit system has been one of the culprits in hiding an ever-worsening
situation of child abuse from the public gaze.
Compulsory acquisition of five-year leases
The Law Council queried whether the provisions providing for compulsory
acquisition of five-year leases in the National Emergency Response Bill were
necessary to achieve the aims of the intervention package:
[T]he Law Council questions why compulsory acquisition is
necessary to address child abuse, and notes that the Government has provided no
adequate justification for compulsory acquisition on the scale proposed, or at
all. Around 70 settlements have been designated for compulsory acquisition
either now or at some stage in the future. The Government has excluded itself
from NT town planning and building ordinances to accelerate the process of
improvement. The Law Council submits that the Government's aims could be
achieved without compulsorily acquiring a single township.
Professor Jon Altman from the Centre for Aboriginal Economic Policy
Research raised concerns about the practicality of the provisions relating to the
compulsory acquisition of leases, particularly with respect to how those
provisions will interact with the statutory rights to assets created by Schedule
3 of the National Emergency Response and Other Measures Bill:
[T]he issue of compulsory acquisition of leases and the
construction of assets on people's land that they will not own at lease expiry will
leave a planning and real estate contestation nightmare.
The committee also received evidence suggesting that the compulsory
acquisition provisions in the bills may be unconstitutional.
Senator Bob Brown submitted legal advice prepared by Mr Brian Walters SC which
Although some provisions in the legislation do require
acquisition of property on "just terms", several provisions in the
legislation refer to the acquisition of property but subject to the payment of
"a reasonable amount of compensation", as distinct from "just
No substantial guidance is contained in the legislation in
respect of what is "reasonable" compensation.
Mr Walters SC submitted that:
In some cases, "a reasonable amount of compensation"
probably would, in terms of content, amount to "just terms", but much
will depend on factual detail. For example, the provision of educational
services – which normally are available to all Australians of learning age – is
unlikely to be seen as something which satisfies the requirement of "just
He concluded that:
The present legislation in some places uses the expression "just
terms", but in other places, in contradistinction to that expression,
deliberately chooses to use the term "a reasonable amount of compensation"
rather than "just terms". This evinces a drafting intention to
provide protection other than the constitutional guarantee of "just terms".
In my opinion the legislation purports to authorize the
acquisition of property on terms other than the "constitutional guarantee"
of just terms.
In those circumstances, the courts would not have a role of
correcting the legislation by inserting just terms. Rather, the legislation
purporting to authorise the acquisition of the property would be struck down as
In my opinion all of the provisions in the legislation providing
for acquisition of property other than on "just terms" would be
struck down as void ab initio if they were enacted into law in their present
By contrast, the Law Council submitted that the drafting of the National
Emergency Response Bill may shield the Commonwealth from a requirement to pay
The application of s 51(xxxi) of the Constitution to provide
compensation for an acquisition of property in the Northern Territory is not a
foregone conclusion. Under current High Court Authority there is no requirement
to pay compensation for an acquisition of property referable only to the s 122
Territories power under the Constitution. The Bill makes it apparent (through
reference to the non-application of s 50(2) of the Northern Territory (Self
Government) Act 1978) that the power relied upon for the acquisitions is
pursuant to the Commonwealth's s 122 Territories power.
The Law Council notes that the legislation appears to shield the
Commonwealth from its obligation to compensate the relevant Land Trust or pay
rent, in circumstances where a lease is issued under section 31.
FaCSIA rejected arguments that the compulsory acquisition provisions are
unconstitutional and stated categorically that the National Emergency Response
Bill provides for just terms compensation:
Senator SIEWERT—Can you clarify whether we are talking about
just terms compensation or reasonable compensation.
Mr Gibbons—Just terms compensation.
Senator SIEWERT—There is also confusion about whether
infrastructure or making your child healthy or being provided with a house
equate to just terms.
Mr Gibbons—We are talking about the lease-back of townships for
five years and applying the constitutional provision about just terms
compensation to the owners of the land, which are the relevant lands trusts. It
is unrelated to what we do to repair houses or provide other infrastructure in
the context of the intervention.
FaCSIA also submitted that the phrase 'a reasonable amount of
compensation' is used in existing Commonwealth legislation including the Customs
Act 1901 and the Commonwealth Radioactive Waste Management Act
Some parties have sought to characterise the National Emergency Response
Bill as a 'land grab'.
The Secretary of FaCSIA responded to this assertion:
We do not believe that it is at all correct to characterise this
as a land grab. We are acquiring, temporarily, leases over the 73 communities
to allow us to intervene on behalf of the children by putting police in there,
by putting government business managers in there, by looking at the state of
the housing et cetera. We need to do this to stabilise the communities such
that they are safe places for the kids, basically. We are only doing it for a
very small proportion of the land and for five years only.
An officer of FaCSIA further explained:
...[W]e are going to make an investment in these towns. Many of
them are a liability in their current state. We will be improving the basic
infrastructure, particularly that part of it that is relevant to environmental
health as well as houses, such that when they are returned they will be in
vastly better condition than when we took them over.
Changes to CDEP program
Several submissions and witnesses expressed concern about the proposed
abolition of the CDEP program in the Northern Territory, particularly with
respect to the capacity to find enough 'real' jobs for the approximately 8000
CDEP program participants once the program is wound up.
For example, the Mayor of Alice Springs Town Council told the committee
On the question of CDEP, we have felt for quite some time that
the welfare system has been a poison for Aboriginal people and there has been
intergenerational damage over the last 20 or 30 years. We support the removal
of CDEP but in the context that real jobs must be created. Many of the
communities depend very heavily on CDEP because there is, apart from that,
little or no economic activity. You probably would have a copy of the [Local Government
Association of the Northern Territory] survey, which showed that out in the
bush there are around 3,000 real jobs. But if you look at those which are on
CDEP and having a top-up, there are around 1,500 jobs. But there are jobs
available in most communities. My concern is that there will not be enough jobs
for people to move into when CDEP disappears...
The Hon Marion Scrymgour MLA, Northern Territory Minister for Child
Protection, noted that the Australian Government will create only 2000 jobs and
expressed her concern that the remaining 6000 participants will not be provided
with jobs. She also suggested that the abolition of the CDEP program would have
a 'devastating' impact on the Indigenous art community.
The Laynhapuy Homelands Association Incorporated (LHAI) was highly
critical of the proposed changes to the CDEP program:
LHAI is extremely concerned that the abolition of CDEP has not
been undertaken in the best interests of the Aboriginal people affected. It is
not being driven by the opportunities for 'real jobs' – but driven by the
belief that it is necessary to 'strip the communities of CDEP cash' and so the
government can legally quarantine payments to those forced onto Welfare.
LHAI argued further that the CDEP program has served a valuable purpose,
particularly in remote communities:
The government has criticized CDEP as a 'destination' – we would
strongly argue that we have secured 28 full time jobs off CDEP in 12 months,
and that Work for the Dole will not have this employment success rate. Work for
the Dole, rather than CDEP, is what will be the ultimate destination for many
living in the remote communities.
We question the Government's insistence CDEP must cease in
remote areas, as it can work extremely well and services community needs
effectively, and has been successful in placing participants into off CDEP
work. We question why government feels the need to 'reinvent the wheel' when
you have all the mechanisms already in place for community development,
training and developing jobs off CDEP.
In his second reading speech on the Welfare Payment Reform Bill, the
Minister outlined the policy rationale for the changes to CDEP:
While CDEP has been a major source of funding for many Northern
Territory communities, it has not provided a pathway to real employment, and
has become another form of welfare dependency for many people.
Instead of creating new opportunities for employment, it has
become a destination in itself.
It has also in too many cases been used as a substitute for
services that would otherwise be the responsibilities of governments—services
that should be provided through full-paid employment.
A representative from the Department of Employment and Workplace
Relations told the committee that, with the phased removal of CDEP, community
brokers and transition officers will work on a one-on-one basis with each of
the CDEP organisations to ensure a smooth transition:
[W]e will have a group of people to work very closely with the
organisations to make sure that we can track participants, that we can move
participants into work and undertake the necessary actions to work with
organisations to make sure that they can manage the change. We are also putting
in place community brokers for this financial year. Hopefully most of the
community brokers will be living within the community itself. Because there are
significant changes to the CDEP and also the accelerated lifting of the remote
area exemptions, we want to put people in place who can broker solutions
between the new service providers that are coming through, work with the
organisations to think about what they need to do to actually participate in
that new service space and also work closely with participants to make sure
that they are aware of their obligations. Particularly with the remote area
exemptions, there is a new participation requirement for a lot of people. We
need to make sure that we minimise the impact on those people and ensure that
they do understand what their new obligations are. So there is one-off staffing
required for this financial year for both of those obligations.
We also have some additional staffing in to manage the build-up
of the new contracts. Part of the CDEP changes but also the acceleration of the
lifting of remote area exemptions will involve putting in place an expanded
provider of Australian government employment services contracts. There will be
a lot more people accessing those services. We need to make sure that we have
contract management staff that are working closely with all of those providers
to make sure that they are actually undertaking services and delivering the
services that we need. Also embedded is travel.
Income management regime
Some submissions and witnesses expressed concern at the income
management regime provisions of the Welfare Payment Reform Bill.
For example, the Australian Council of Social Service (ACOSS) submitted
that the proposed changes would be ineffective: the establishment of a
compulsory income management regime will not, in and of itself, change the way
people behave at a fundamental level; rather, Indigenous people should be
encouraged to take responsibility for their own lives by adoption of voluntary
approaches to welfare.
Indeed, ACOSS expressed the view that the proposed system of income management
'is unlikely to contribute to the solutions and would in a number of ways
contribute to the underlying problems'.
ACOSS also argued that:
The Bill implements an apparently simple solution to a complex
set of problems – attaching new conditions to social security payments and
taking over family budgets to combat child abuse and truancy generally, and
prolonged joblessness and social breakdown in remote communities. In practice,
the income management system outlines in the Bill is very complicated. It is of
concern that despite the complexity of this legislation, there is still a lack
of precision as to who will be subject to income management, under what
circumstances and for how long.
Several submissions and witnesses also expressed concern about the
practical impact of quarantining welfare payments. For example, HREOC submitted
that quarantining measures designed to encourage school attendance may
disproportionately impact on families in areas without adequate schools and
Submissions and witnesses were also critical of the provisions of the
Welfare Payment Reform Bill relating to the removal of rights to appeal to the
Administrative Appeals Tribunal (AAT) and the Social Security Appeals Tribunal
(SSAT). The Welfare Rights Network argued that the removal of appeal rights
'adversely discriminates' against people living in declared relevant areas in
the Northern Territory:
The right to appeal has always been a fundamental protection for
Social Security recipients against bureaucratic neglect and error. However, the
Government intends to remove the rights to external appeal to the Social
Security Appeals Tribunal (SSAT) for Northern Territorians who are subject to
the Income Management of their welfare payments. This sets a very dangerous
precedent to strip away this protection for an entire group of Australians
based solely on where they live. These decisions could have huge implications
It is difficult to accept the Government's rationale as to why
Indigenous communities in the Northern Territory are to be denied access to
independent review of decisions relating to the quarantining of welfare
payments when other Australians in other parts of the country will be able to
exercise their full appeal rights. 
In response to these concerns, a FaCSIA officer explained that:
The primary purpose of the income management regime as it
applies [in] the Northern Territory is, in those prescribed areas, to have an
income management approach to all government welfare payments going into a
community, to ensure that the flow of government assistance into the community
is able to be managed as a whole to encourage expenditure on those services and
goods that will lead to better outcomes for the children in those communities.
On that basis, the government took the decision to apply the income management
regime not just to payments associated with children themselves.
On the question of removing appeal rights, FaCSIA advised that:
There are standard appeal rights that apply to all decisions
relating to social security. They involve an authorised review officer in
Centrelink reviewing a decision, then appeals to the SSAT and the AAT and
subsequently to the courts. In the case of the Northern Territory response,
because it is time limited, 12-month quarantining, it was decided that the
authorised review officer review would remain but that appeals to the SSAT and
the AAT would take too long and would consequently undermine the timing of the
emergency response. People will only have their income quarantined to the extent
of 50 per cent of their income from welfare payments and for 12 months only.
The committee also questioned FaCSIA about what is meant by the term
'unsatisfactory school attendance' in the income management provisions of the
Welfare Payment Reform Bill. FaCSIA advised that the applicable state and
territory laws would be used as a basis for assessing whether school attendance
Funding to address inadequate housing
The Northern Territory Minister for Child Protection raised concern that
little of the $580 million in appropriations to be made as part of the
intervention package was going towards addressing the backlog of Indigenous
housing in the Northern Territory.
In response to these concerns, the Secretary of FaCSIA pointed to
existing government funding commitments in relation to housing:
There is some money in this for the maintenance and the fixing
up of houses and, as Mr Gibbons said, the government announced in the budget
this year $1.6 billion for Indigenous housing over the next four years. A large
proportion of that the minister has already made it clear will be available for
the Northern Territory. We have considerable resources for housing already
appropriated in the budget.
Restrictions on the availability of alcohol
The Mayor of the Alice Springs Town Council gave evidence that 85 per
cent of police work in Central Australia is alcohol related.
However, the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women's Council told
the committee that the availability of alcohol through outlets in Indigenous
communities was only part of the problem; the supply of alcohol from the major
towns in the Northern Territory also presents a significant problem.
The submission of the Bawinanga Aboriginal Corporation similarly noted that the
ready availability of alcohol in centres located close to Indigenous
communities can undermine the effectiveness of prohibition measures:
The majority of illegal drugs and alcohol are brought in by road
during the dry season. By opening the roads and townships, there is significant
evidence to suggest that these problems will be exacerbated. Another impact of
prohibition experienced by Maningrida was an out-migration of residents to Darwin.
This had the effect of significantly disrupting local employment outcomes,
family structures and also resulted in a number of alcohol related deaths in Darwin.
The mayors of the Alice Springs and Katherine Town Councils gave
evidence regarding the number of takeaway liquor licences in each town:
Councillor Shepherd—In Katherine there are probably eight or 10
where there is takeaway alcohol, and of course there are restaurants and other
areas like that, and the clubs too. I do not really think the clubs are a
problem, but the other takeaway outlets certainly are.
Councillor Kilgariff—In Alice Springs we have over 90 outlets.
Twelve of those are takeaway and the rest are restaurants. I agree with Mayor
Shepherd that the restaurants are not really the point at issue here, but
certainly the takeaway outlets are.
The mayors were asked whether compulsory acquisition of some takeaway
licences was being considered as a means of reducing the number of outlets:
Councillor Kilgariff—It has certainly been the case in Alice
Springs. We had a crime summit yesterday and that was strongly brought
forward. For instance, there is a service station here which has a liquor
licence for historical reasons. That would seem an obvious target for such a
buy back. There are a couple of corner shops that have liquor licences. So
there is a strong suggestion—and I think a growing suggestion—that those sorts
of liquor licences should be bought back.
Councillor Shepherd—I would say that is the same in Katherine.
It certainly has been discussed at some length in Katherine.
The Mayor of Katherine Town Council gave evidence that additional drug
and alcohol rehabilitation services are needed in Katherine:
While we do have a lot of agencies addressing alcohol concerns,
we do not have the facilities to cope with the number of people. We need a
rehabilitation centre that can house 50 or 60 people. We also need that
follow-on care when they are reintroduced into the community as sober people so
that there is help for them to maintain that. We desperately need better
services. We in Katherine have been calling for a long time for better services
to cope with the alcohol problems and the people who are victims of alcohol
Under clause 20 of the National Emergency Response Bill, 1350
millilitres of pure alcohol is the threshold amount at which obligations to collect
information about takeaway liquor sales in the Northern Territory are imposed.
This clause also creates associated offences for failure to meet those
A submission from Woolworths Ltd expressed concern about the difficulty
involved in calculating the amount of alcoholic beverages which equates to 1350
millilitres of pure alcohol.
Restrictions on pornography
The Festival of the Light and the Australian Christian Lobby argued that
the provisions in Schedule 1 of the National Emergency Response and Other
Measures Bill should go further.
The Festival of Light recommended extending the prohibitions on possession and
supply of X18+ films across the Northern Territory:
Those who live in the prescribed areas are not, nor should they
be, prohibited from travelling outside these areas. The Northern Territory,
unlike the six States, currently permits the sale of X18+ films to any person
over the age of 18. If this is allowed to continue then it will seriously
undermine the prohibitions being put in place in the prescribed areas.
Furthermore, the Northern Territory’s Classification of
Publications, Films and Computer Games Act (NT) Section 50 (2) provides that
"A person shall not sell or deliver to a minor a film classified X 18+ or
R 18+, unless the person is a parent or guardian of the minor." This
extraordinary provision means that it is not unlawful for a parent or guardian
to give any child under their care an X18+ film. Videos and DVDs are very
portable items. Unless their sale is prohibited not just within the boundaries
of the prescribed areas but throughout the Northern Territory then X18+ films
will most likely continue to play a role in the premature sexualisation and
sexual abuse of indigenous children.
Part 3 of the National Emergency Response Bill requires filters
accredited by the Minister to be installed and maintained on publicly-funded
computers as well as the maintenance of records regarding computer usage and
six-monthly auditing of computers. Laynhapuy Homelands Association Inc expressed
concern regarding the administrative burden imposed on organisations in order to
implement these requirements:
The recording of computer usage by staff can be automated
through the server software. However there will be significant cost in installing
'filter' software because of the labour and travel costs (this will run to
several thousands of dollars).
The 'auditing' requirement would likewise impose a cost of
several thousands of dollars, if physical inspection of the computers was
required to be undertaken.
On 10 August 2007, the Prime Minister announced new initiatives in
relation to the provision of free online content filters to Australian families
and public libraries, as well as access to Internet Service Provider filtering
In relation to these new measures, the Minister for Communications, Information
Technology and the Arts, Senator the Hon Helen Coonan, noted that Tasmania and
the ACT have existing filtering strategies in their respective public libraries
and she called on the other remaining premiers and the NT Chief Minister to
'take this matter seriously'.
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