Dissenting report by the Australian Democrats
"We are not saying
'don't do it'. We are saying it needs to be done properly”
David Ross, Director
of the Central Land Council
Many witnesses and submitters
to this disgracefully and unnecessarily brief inquiry spoke of their support
for at least some aspects of the legislation, as well as for much of the stated
intent behind it. But there is a clear need both for further scrutiny of many
parts of the legislation, and for significant improvements to be made to it.
A distinction must be made
between the federal government's decision to make the issue a matter of urgent
priority, which should be applauded, and those aspects of the plan which are
flawed and must be changed.
There is almost universal
support amongst Indigenous Australians, and amongst most of the wider
Australian community, for strong and urgent government and community action to
help Aboriginal children – a fact which provides a solid foundation and a real
opportunity for major, long-term positive change. Unfortunately, the
government's approach to addressing this issue has caused so much anxiety,
distress and anger amongst many Indigenous and non-Indigenous people that there
is a real risk that this opportunity will be lost. It is extraordinary that on
an issue where there is enormous agreement and huge potential for common
ground, deep divisions have been created so quickly as a result of the divisive
and disrespectful attitudes and processes that have been followed.
To quote one Aboriginal
leader from outside the Northern
Territory, "the difference between disaster and success
will depend on whether Brough and Howard will
engage with ... the traditional leaders of the NT on a way forward."
The crucial task for those of
us who want to ensure that disaster is averted and the priority goal of
improving the lives and futures of Indigenous children and families is not
subverted by partisan politics, is to do whatever is possible to maintain a
consultative, common sense, evidence based approach which can be consistently
adhered to for the long haul.
No one has a mortgage on
concern for children. The public record shows that Aboriginal leaders and their
communities have been calling for many years for help and support in tackling the
scourge of child abuse; calls that have been regularly supported by the
Democrats in the Senate and the general community. It is the height of
stupidity, as well as arrogant and rude, to now refuse to listen to and work
with Indigenous people in taking the major actions necessary to create lasting,
Sadly, anyone who raises any
concerns about the details of the federal government’s wide-ranging
intervention into the lives and communities of Aboriginal people in the Northern Territory is smeared with allegations that they don’t want anything done, or
they don't care about protecting children. Similarly, people who call for
consultation and cooperation in implementing the federal government’s measures
are criticised as just trying to delay action.
The Committee was subjected
to several examples of this form of verballing of those who raised concerns
with aspects of the legislation, such as the following:
"We have heard a number
of parties give reasons why parts of the legislation should be delayed or
changed. It concerns me that many would be happier—it would appear—if nothing
This sort of
misrepresentation unfortunately makes it necessary to re-state a fact which
should be so obvious as to be beyond dispute. Aboriginal people do want urgent
action and major change in the approach of governments and the resources that
A crucial opportunity for the
Government to show leadership in prioritising Indigenous issues and to finally
do things right is at serious risk of being lost due to the arrogant and
blinkered manner the Government has adopted, as evidenced by their
determination to bulldoze this complex, wide-ranging legislation through the
Senate as quickly as possible without consideration of the detail or potential
The extremely short timeframe
given to the Senate Committee has been an insult to the Senate, to the
electorate who entrust us with doing the job of properly scrutinising important
legislation, and especially to Aboriginal people who have had virtually no
chance to have a say on legislation and actions which dramatically and directly
affect their lives. The language of "emergency" and
"crisis" which the government has used has been deliberately employed
to stifle debate and prevent scrutiny and consideration of their actions.
The Northern Territory government’s lack of response to the Little Children are Sacred report
was used by the federal government to justify their intervention in the
Territory and the need for the legislative changes before this Committee. Yet
now the federal government is not responding to the report either, but charging
ahead with a separate body of action.
It is important to note the
comments of Pat Anderson, one of the authors of that report:
- "There is no relationship
between their emergency powers and what's in our report.
- "We did want to bring it
to the government's attention but not in the way it has been responded to by
the Federal Government.''
- "We wrote the
recommendations in a such way that they appeared so reasonable that you would
feel any government would be absolutely unreasonable not to begin implementing
what they said."
- "They behaved as though we
all have done nothing and we don't know anything and we have all been sitting
on our hands.'' 
Concerns stated by many
submitters that the government is more interested in using the issue of child
abuse as a cloak for implementing its ideological agenda and grabbing more
power will not be alleviated by answers from the Department of Family and
Community Services and Indigenous Affairs confirming a total absence of any
consultation with the authors of the Little Children are Sacred report,
despite their expertise and direct knowledge of the issue developed over many
months of consultations and extensive discussions with people directly involved
with and affected by the issue:
you tell us what consultation your department or any other departments have had
with the authors of the Little children are sacred report in putting
together this legislative response?
Dr Harmer—I am not aware of any consultation with the authors
of the report. It was a very long report with many recommendations, most of
which were directed towards the Northern
Territory government. The Australian
government decided on viewing it that this was an emergency and required urgent
action. The action that the government decided it needed is spelt out in the
appropriation bills and the associated Northern
Territory emergency response bills.
Mr Gibbons—We of course studied the report.
Dr Harmer—As Mr Gibbons has pointed out, we did not undertake
this exercise without studying the report, but, in a big report such as that,
the authors made their views on what is happening pretty clear. We did not feel
the need to go back to talk with them. Frankly, in responding quickly to this,
we did not feel that that was the highest priority amongst all the other things
that we had to do.
Senator BARTLETT—I appreciate the comment about it being an emergency but, in the six
weeks since it was announced, has there been no consultation at all with them?
Dr Harmer—No—at least, not that I am aware of.
It is simply inexplicable
that the authors of this comprehensive report were not invited by the Committee
to give evidence to this inquiry. Despite this, in answers to questions asked
in this inquiry, the federal government repeatedly referred back to the Little
Children are Sacred report to justify its actions.
As Jon Altman told
"There is another way
possible: empower and work with communities; support what is working and build
on it; address the deep backlogs that are a result of past policy, not
Indigenous, failure; and learn from international experience where there has
been much more success than here."
Having outlined the serious
problems with the government's approach, it is appropriate to outline what
should be done instead. I believe that the guiding principals that the Combined
Aboriginal Organisations of the Northern
Territory have put forward should form
the basis of the planning and implementation of any response. These include:
- Relationships with Aboriginal
communities must be built on trust and mutual respect. All initiatives must be
negotiated with the relevant communities.
- Cultural awareness and
- Actions should draw from and
strengthen governance and community capacity.
- Build on the knowledge base
already there in communities and in Government.
- Flexibility and responsiveness to
local needs rather than a ‘one size fits all’ approach.
- Aboriginal communities are
entitled to receive the same benefits and services and their children the same
protections that are available to other Australians.
The Government has failed to
respond to or factor in any of these principles in any of their decisions.
Report after report,
including the Little Children are Sacred report, and statement after
statement from Indigenous Australians, reaffirms that the key to success in the
implementation of any measures, let alone measures with respect to these bills,
must be full and ongoing consultation and cooperation with Indigenous leaders
and their communities. This is not technically difficult or complex, but it
does take ongoing effort, commitment and respect.
This sweeping legislation
seeks to vest the Minister with unprecedented powers of discretion which have
the potential to control major aspects of the lives of most Aboriginal people
in the Northern Territory. History shows us very starkly that, even when there
are the very best of intentions, the exercise of such extreme powers by
non-Aboriginal people in a top-down fashion will not work. The inevitable
effect will be a further disempowerment of many Indigenous people and
communities, which risks making the underlying factors at the heart of the
problems worse rather than better.
It is for this reason that
its implementation must be done correctly and with the full cooperation of all
parties concerned, with appropriate levels of scrutiny at all stages.
Access to and control over Aboriginal land
The most consistent and
widely expressed concern by witnesses and submitters to the inquiry, as well as
with the many people I have heard from and consulted with in the period
following the Government's initial announcement, concerns the measures which
will remove aspects of the permit system and give the Federal Government
control over key areas of Aboriginal land. Evidence to the inquiry, including
from FaCSIA, showed it is also still very uncertain exactly how this will
operate in practice and what the consequences will be.
The submission from the Gilbert + Tobin
Centre of Public Law gives some indication of the uncertainty and inequality in
the approach the legislation takes:
property holder in the Northern
Territory whose property rights
taken away by government
has access to a statutory compensation regime. Why not
accord the same respect to
Aboriginal property rights in this instance? Why should
traditional owners have to
climb over numerous additional legal obstacles to obtain
compensation, by proving
that a constitutional ‘acquisition of property’ has occurred?
This relegates Aboriginal
property rights to a lower level of legal protection. Whether intentional or
not, it has the effect of capitalising upon numerous complexities and doubts
surrounding the meaning of section 51(xxxi), to the advantage of the
Commonwealth and to the
disadvantage of Aboriginal people whose sole valuable
asset is frequently their
The importance to Aboriginal
people in having control over their own lands is widely recognised. Such
rights as do exist in law have been hard won over many years. To take key parts
of these away without crystal clear evidence to justify such action is
unacceptable, and will dramatically increase the difficulty in building the
trust and long-term cooperation with Aboriginal people which is absolutely
essential to the chances of success in this area.
Not one of the many reports
into child abuse or family violence has ever drawn a link between the permit
system on land tenure and child abuse, a view echoed in the majority of
submissions. The government has failed to produce a shred of evidence
demonstrating any such link, relying at best on simply repeating assertions
without providing any material to back these up. My questioning of the
Department during the inquiry did not produce any substantial evidence as to
what the reasoning for this was.
Senator BARTLETT—I have just had a quick look at the page you put before us trying to
indicate links between the permit system changes and combating child sexual
abuse, which I note draws on the Little children are sacred report at
least twice as part of its justification. Given that you just mentioned that
you have read that report thoroughly, is there any mention in any of their
recommendations about the permit system or land changes being linked to child
Mr Gibbons—I do not think so.
Dr Harmer—No, there is not. I will stand corrected, but I do
not think that there are any recommendations about police either in that
have mentioned in this piece of paper that whoever comes into the community
cannot replace an adequate police presence. I am presuming that means a permit.
Is anyone suggesting that it is an either/or situation—permits or police?
Mr Gibbons—Up to this point in time, that is what it has been
for a lot of communities. There has been an absence of police.
you saying that the communities did not want police?
Mr Gibbons—No. I am saying that, for a long time, there were no
police in communities.
Dr Harmer—I will also say, because we now have quite a bit of
information about community reaction to the intervention, that there has been a
very positive response to the presence of police in the communities.
do not think anything I said suggested otherwise. What I asked was why it was
being put up as an overall option that you either have a permit or a police
presence? I did not know that anyone was putting it up in that way. You put
forward a few dot points to underline that the removal of the permit system
will promote strong, safe communities. They are basically a few assertions. Is
there any actual research or data that you can provide to the committee that
demonstrates that those places without permits, either in the Territory or
elsewhere, have lower levels of child abuse?
Mr Gibbons—I do not believe so.
The most telling evidence
against the Government's insistence that removing permit controls will help
tackle child abuse came from the Police Federation of Australia
(PFA). They state that operational police on the ground in the NT believe that
the permit system is a useful tool in policing communities, particularly in
policing alcohol and drug-related crime. Their submission points to the
potential that its abolition may undermine police efforts to control grog and
drug running and the distribution of pornography.
The PFA is also of the view that the Australian
Government has failed to make the case connecting the permit system and child
sexual abuse in Aboriginal communities. Therefore, changes to the permit system
are completely unwarranted. 
Child protection issues
There is no doubt that major
action needs to be taken to address child abuse. However, there has been
little, other than by way of earnest assertions, to indicate how the majority
of the measures in this legislation will address child abuse. The Secretariat
of National and Islander Child Care (SNAICC) stated that this suite of bills
fails to provide any certainty that the child protection system in the NT will
work more effectively to protect children from harm or respond when they have
Responding to child abuse in
any part of the country and for any Indigenous community requires a sustained
and coordinated response involving statutory child protection, police and
community-based agencies with a primary focus on a child’s circumstances and
family. Without a robust statutory child protection system, notifications are
not responded to and communities lose faith in the system. Without appropriate
and adequate levels and forms of policing, prosecutions cannot proceed. 
The submission by the PFA
also noted this aspect and commented on the complexity of penalties and
measures that need a strong police presence, yet there has been no discussion
or even mention about funding for further ongoing police in the region, nor any
indication that much needed training for police to deal with these
interventions had been addressed in any meaningful way.
It is also important to note
that there has not been any discussion at all about what measures will be put
in place to support the development of community-based services to work with
families affected by abuse or what shelters or safe houses there will be for
families or children to seek refuge in or be adequately supported. There is
also no discussion about additional resources for child protection staff or
community-based services, nor any consideration given to the development of
treatment programs for perpetrators of child abuse.
The exemption of these laws
from the Racial Discrimination Act 1975 (RDA) is a major concern,
creating a prima facie case that they will be blatantly discriminatory in their
application. Continually repeating the mantra that "it's an
emergency" is not sufficient justification for suspending the application
of such a fundamental piece of law as the RDA. The lack of
consent from the people affected, the clear opposition from many Indigenous
people and the lack of evidence to demonstrate that some of these measures will
be either necessary or effective, all combine to make the Government's claims
that these are "special measures" (that is, positive discrimination)
very dubious. It is not good enough to assert that something is a special
measure just because the Government says so.
The RDA is in
place as a result of some terrible lessons learnt over a long period of time.
It sets a very dangerous precedent to waive its protections on such flimsy
pretexts. It is potentially highly destructive to implement laws and policies
for which there is so clearly one set of standards for Indigenous people and
another for non-Indigenous people. If the Government is serious about
implementing positive measures to assist in lifting Indigenous people up and to
achieve equality, this is certainly not the way.
Abolition of CDEP
Concerns about the potential
harm caused by the government's abolition of CDEP were also widely voiced.
Unfortunately, it is still unclear precisely what actions and resources will be
coming from the government in its place. Again, there has been a lot of
rhetoric and assertions, but no concrete commitments or funding to indicate
what will fill the substantial void which will be created by the scrapping of
Quarantining of payments
The proposal to quarantine
welfare payments is one I am prepared to give cautious in-principle support to
as an idea to be explored in regards to child neglect and education, but I have
major concerns about the lack of detail in the legislation about how this will
be applied under this legislation. The approach which is being trialled in Cape
York in Queensland is worthy of support, as it (a) has been developed with a
reasonable degree of local community engagement, (b) is part of a wider package
of integrated measures, (c) involves a significant degree of local community
control and empowerment, and (d) is a trial. But none of these features apply
in regard to the Northern Territory.
It is impossible to tell what
will apply with future use of such measures in the wider community, as the
detail has yet to be worked out. It is extraordinary that such far-reaching
changes and major powers to intervene in the fine details of people's lives are
being handed over to the Government with almost no examination of how it will
work or consultation with the wider community.
I am concerned about the fact
that the rights of appeal for decisions over the quarantining of payments for
Aboriginal people in the Northern
Territory will not be subject to an independent
review. This is extremely worrying, as the only independent alternative is to
appeal to a Federal Court, which would involve significant and unnecessary
cost. It should be borne in mind that there is only one Legal Aid office and
only one general community legal centre in the NT. It is extremely difficult
to accept the Government’s rationale as to why Indigenous communities in the NT
should be denied access to review when other Australians in other parts of the
country are able to exercise their full review rights. This is outright
discrimination and should not proceed.
Whilst the Federal Government
has now moved from its original ludicrous assertions that the overall cost of
their intervention would be in the "tens of millions of dollars",
there is still a major lack of detail about what sort of extra resources are
going to be committed to properly tackle this issue. There is now over $500
million committed for this financial year, but unlike almost all other major
Government announcements, there are no forward estimates of anticipated ongoing
extra expenditure beyond 1 July 2008. It is crucial that both major parties are held to
account for providing further financial follow-up to ensure the job is finally
done properly and fully.
KERRY O'BRIEN: Again on
the promise made by the Prime Minister that the Commonwealth will pick up the
resources, which actually pay and provide presumably the resources for follow
up medical treatments.
If screening throws up eye disease, kidney disease, asthma, threat of diabetes,
any one of a number of generic health problems throughout the Indigenous
population you've undertaken to provide them all with on going treatment. Is
MAL BROUGH: That's absolutely correct.
Whatever form these Bills
take when they are passed by the Senate, there must be concerted and continuing
efforts made by the Senate and the community to ensure that commitments such as
the above are stuck to.
It is an unfortunate fact
that there is not a single Indigenous person in the federal Parliament able to
speak on this legislation. There is nothing the Senate can do about this in
this instance, but the Senate Committee process provided the only formal
opportunity for the Parliament to hear directly from Indigenous people,
particularly those in the Northern
Territory who will be directly affected
by the legislation. The calculated refusal of the Senate to enable adequate
time for such views and voices to be properly heard and considered is
disrespectful. It also compromises both the Senate's ability to make an
informed decision on the legislation and the chances of the overall
intervention producing a net positive rather than a net negative for Aboriginal
children, families and culture.
However, whilst there is much
to criticise about this legislation and even more about the deliberately
antagonistic, non-consultative approach the Government has taken towards the
issue, the opportunity has been created, buttressed by the community’s general
support and acceptance of the need for urgent action, to build a genuinely
effective action plan, in concert with Indigenous communities, for a
sustainable future for Indigenous children that is no less positive than we
expect for our own children. There have been far too many false dawns in the
past, built on grand promises with too little thought and commitment behind
them. The Australian community should seek to take this current opportunity
before it too crumbles and force all political parties to match their current
earnest rhetoric with long-term properly-resourced commitment to see this issue
through and to see it done properly.
The bills not proceed until
there has been proper opportunity for the Senate scrutinise its measures and
determine necessary improvements, in consultation with relevant Aboriginal
people and organisations.
The intervention plan should
be fully costed by both the Commonwealth and the Northern Territory Government,
with the setting of appropriate benchmarks and measurable targets to be
achieved within set time frames.
Urgent funding must go into
the building of infrastructure of communities in order for them to adequately
deal with the measures in the legislation in the long term. There must be a
proper roll out of funded programs and projects that is developed with
communities that sees that provision of the following:
- adequate and appropriate housing
to deal with overcrowding, (currently not addressed in the half a billion
dollars of new money allocated to the intervention by the Federal Government);
- improved health care – including
an increase in the number of health care providers and the provision of proper
health care services that are culturally appropriate;
- the creation of sustainable and
meaningful employment for Indigenous people in communities. The abolition of
CDEP creates an even greater need for alternative strategies to provide
meaningful training and employment for the thousands of NT people who currently
receive training or find employment under CDEP;
- increased numbers of centres which
provide services to deal with alcohol rehabilitation, safe houses for abused
children and families, and half way houses for men which provide adequate
counselling and education;
- improved education – which means
funding for more teachers and aides who should be culturally trained and more
supplies for schools to provide for the sustainable full attendance of every
child in school;
- law enforcement – to ensure that
all aspects are adequately dealt with, there should be funding that goes into
the provision of law enforcement in communities and for officers to be
culturally trained to deal with all aspects of penalties introduced by the
legislation as well as for reporting provisions to deal with sexual abuse;
- the development and implementation
of effective treatment programs for offenders guilty of child abuse and family
This legislation should be
reviewed by an independent body 12 months (and every 12 months after until the
application of the 5 year sunset clause) after its implementation, and its
results tabled in parliament.
If the Senate insists on
proceeding with debating and voting on the legislation immediately, the
measures which seek to take control of Aboriginal townships, acquire rights,
titles and interests in Aboriginal land and remove key parts of the permit
system without the consent of Aboriginal people must be deleted. These
measures are unnecessary, bear no linkage to child protection, are
ideologically motivated and most importantly present a major barrier to
building the trust and cooperation with Aboriginal people that will be needed
in order for this intervention to succeed.
The sections of the
legislation which remove the right of Indigenous people to have their cultural
practices taken into account in bail sentencing decisions – a right which is
available to non-Indigenous Australians – should be deleted
The provisions in the
legislation which seek exemptions from the Racial Discrimination Act should be
The measures regarding
welfare quarantining which apply to the wider Australian community and have
nothing to do with seeking to address issues in Indigenous communities in the
Northern Territory and Cape York are not in any way urgent and are unlikely to
come into force until well into 2007 at the earliest. These measures should be
quarantined into a separate piece of legislation so that these far-reaching and
potentially very cumbersome and expensive changes can be properly examined.
There are key components in
the National Emergency Response Bill, the Welfare Payment Reform Bill and the
National Emergency Response and Other Measures Bill which must be heavily
amended or removed in order to make these Bills acceptable. These include, but
are not limited to, the issues raised in my recommendations 5-8 above. If such
amendments are not made during the Committee stage of the debate in the Senate,
these three Bills should be rejected.
Due to the seriously
constrained time frame, it has not been possible to properly scrutinise the
expenditure of resources contained in the two Appropriation Bills. Whilst some
major questions remain over how effectively some of this money will be spent,
clearly a national emergency response will continue to be rolled out. The two
Appropriation Bills should therefore be supported. The Senate, in cooperation
with Aboriginal people and organisations, should do everything possible to
maintain oversight of the expenditure of these monies and seek to ensure it is
spent in as effective a way as possible.
Senator Andrew Bartlett
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