Dissenting report by Liberal Senators
1.1
The Liberal senators who participated in this inquiry believe that many
provisions of the Families, Housing, Community Services and Indigenous Affairs
and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008
(the Bill) represent a retreat from the principles which underpin the Northern
Territory emergency response announced and commenced by the former Coalition
government. That package of legislation, financial assistance, on-the-ground
support and administrative changes constitutes a vital initiative responding to
the extreme and urgent needs of indigenous children in the Northern Territory.
1.2
As the majority report notes, the Government has announced its intention
to commission an independent review of the Northern Territory emergency
response for completion later this year. As such, Liberal senators believe that
the measures in this Bill pre-empt that review and undermine the basis on which
so much Federal effort and money has been expended since June 2007. Such
measures run the risk of confusing those benefiting from the intervention, and
those working on Commonwealth programmes and initiatives constituting the
intervention, as to the Federal Government’s position on the fundamental
objectives of this exercise. The proposed amendments also appear designed to
confuse and deflect the focus of the former Government's initiative.
1.3
The Little Children are Sacred report of April 2007 by the
Northern Territory Board of Inquiry into the Protection of Aboriginal Children
from Sexual Abuse found that 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 and, to a
lesser extent, between the use of pornography and sexual abuse of children.
Liberal senators heard no evidence in the course of this Inquiry to suggest
that the magnitude or urgency of that problem in indigenous communities had
lessened in the last year, although some witnesses suggested that evidence on
the original size and scope of the problem had been inadequate. Therefore the
senators believe the legal and financial framework around the Intervention
should not be tampered with at this time. To do so in fact has the potential to
harm those the Intervention was designed to help.
1.4
A number of specific issues arising from the Inquiry are addressed in
this dissenting report.
Identifying Austar customers in prescribed areas
1.5
Liberal senators were troubled by evidence from the subscription TV
industry as to the difficulty it would encounter in complying with the
legislation as originally enacted.
1.6
Austar noted that the difference between how it 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’. According to Austar, this
would create a number of issues should a blanket ban on R18+ rated programming
across all prescribed areas be introduced, including:
- If AUSTAR thinks a customer is outside a prescribed area and does
not switch the customer off, but the customer is actually inside the prescribed
area, AUSTAR would be in breach of the content prohibition; and
- If AUSTAR thinks a customer is inside a prescribed area and
switches the customer off, but the customer is actually outside the prescribed
area, AUSTAR would be in breach of its Customer Agreement with the customer and
may be in breach of the Racial Discrimination Act 1975 (Cth).[1]
1.7
These views were challenged at the hearing. In respect of the first dot
point the following exchange took place:
Senator HUMPHRIES—As you know, in most offences
there is an intent requirement. Whereabouts in the legislation is the offence
made an absolute liability provision whereby intent is not a factor?
Ms Henty—We have actually requested that there be an
amendment to show that this is the case. Can I read the current language out?
Senator HUMPHRIES—Can you direct me to the section
you are reading from?
Ms Henty—We are talking about schedule 1, paragraph 10.
It starts at the end of part 7, schedule 2. It talks about amendments to the Broadcasting
Services Act. We are talking about subclause 12 in the Broadcasting Services
Act, which is titled, ‘Condition applicable to declared subscription television
narrowcasting services provided in the Northern Territory under class
licences’. The channels that we carry that would be subject to this are World
Movies, the Adults Only service and Box Office movies. Those are the only three
services that we are talking about. Subclause (1) states:
The provision by a person of a declared subscription television
narrowcasting service under a class licence is subject to the condition that
the licensee will not provide the service in a way that will enable a
subscriber in a declared prescribed area to receive the service.
That in our minds, without any implied by law mens rea or more
complicated legal theory, is a blanket prohibition that we are required to
comply with in order to preserve the conditions under which we continue to
broadcast World Movies, Box Office movies and the Adults Only service.
Senator HUMPHRIES—You would be well aware, Ms Henty, that
bodies like the High Court have made it very clear that legislation intended to
oust protections like the requirement for mens rea has to do so explicitly, not
by implication?
Ms Henty—Absolutely. We are not seeking—
Senator HUMPHRIES—This does not do that, does it?
Ms Henty—The thing that might be useful for
the committee to hear is that we do not disagree that the provision of
adults-only services into these communities might be a bad thing.
Senator HUMPHRIES—With respect, I do not want to hear the
principle; I want to come to the practical detail of your submission. Let us
suppose that it was banned in prescribed areas. If you supply that material into
an area that is outside the prescribed area, thinking that it is inside a
prescribed area, you say you would commit an offence. Can you show me where in
this legislation the intent provisions that are normally applicable in
Australian law do not apply in this case?
Ms Henty—We would hope that the intent provisions do
apply.
Senator HUMPHRIES—So, with respect, that first dot point
is not accurate, is it?
Senator CROSSIN—Is it not the reversal of the onus of
proof—in other words, you are guilty of that offence unless you can prove
otherwise?
Senator HUMPHRIES—If it is clear that you are
reversing the normal Australian legal position that you need to have a guilty
mind to accompany your guilty action, if you create an absolute liability
offence, you are quite right that you would be caught. But common law in Australia
is quite clear that you need to expressly state that in a piece of legislation
for it to occur; otherwise the assumption will be that a guilty act needs to be
accompanied by a guilty mind—and that is not in this legislation, is it?
Ms Henty—With respect, I am certainly not prepared to
talk about the significance of criminal intent in this legislation. We are
trying to comply with it and we have raised the point just to indicate the
difficulty that we have in locating individuals in these communities.
Senator HUMPHRIES—It also, with respect, sounds to me as
if you are attempting to portray to the committee more problems and issues with
respect to complying with the intent of the legislation than actually exist.
Ms Henty—That was not our intent.[2]
1.8
In relation to the second dot point, while there was agreement with the
aspect of breaching the Customer Agreement, the second aspect of breaching the
Racial Discrimination Act was challenged.
Ms Henty—The Racial Discrimination Act in representing
the relevant international convention would at least prima facie start a
differentiation in the treatment of people on the basis of their race. There is
an exception to that: if it is established that it is for the good of the local
community. We have said, as noted in here, that our concern about the Racial
Discrimination Act is that we may be in breach of it. I think the point was
raised in the submissions made by the Law Council of Australia and some others
that there is an open question that the bill and certainly a blanket
prohibition may offend Australia’s international conventions.
Senator HUMPHRIES—Yes, but that is a different
question to the one I am raising. I am raising the issue you have raised in
your second dot point as to why we should not support the creation of a ban on
broadcasting or narrowcasting into prescribed areas: by switching off a
customer because you believe he is inside the prescribed area when he is in
fact outside the prescribed area you may be in breach of the Racial
Discrimination Act. As you rightly point out, making that decision on the basis
of the race of the person you are dealing with may well fall within the Racial
Discrimination Act’s provisions. But if you are making that decision based on
your attempt to comply with federal broadcasting legislation how can that
possibly be construed as a decision made with the intent of advantaging or
treating differently a person of one race over another?
Ms Henty—There is, as I am sure you know, a significant
legal debate about whether we would be actually up for breach of the Racial
Discrimination Act if a group brought us to court for switching off someone on
the basis of their race. It is not something that I feel qualified to discuss
here.
Senator HUMPHRIES—With respect, nobody else has
raised that particular point with us. The Law Council have not raised that
point in their submission. They have raised the issue about the capacity to
exempt some actions from the Racial Discrimination Act but they have not made
the point that you have made in your second dot point. If you are not prepared
to make that point here then why is it in your submission?
Ms Henty—The point in the submission was to
highlight, as the Law Council of Australia and the department have, that there
are issues in a blanket prohibition without a consultative process that raise
racial discrimination problems. Like the government, we are concerned about
these issues and, to the extent that we are the perpetrators of the activity
that the legislation is trying to put in place, we feel that we are
particularly vulnerable to any claim of breach.
Senator HUMPHRIES—I do not think that is the point
that is being raised by the Law Council...[3]
1.9
In summary, Liberal senators saw the technical “objections” raised by
the industry as self-serving. They believe, for example, that there is no good
reason why providers such as Austar cannot work with the Government to identify
those areas into which it can and cannot narrowcast material with pornographic
content, and by doing so in good faith obviate any question of their committing
an offence under any law.
The Little Children are Sacred report and reference to pornography
1.10
The Little Children are Sacred Report drew attention to the
exposure to pornography in communities and the abuse of children. The Report
noted that the issue of children’s and the community’s exposure to pornography
was raised regularly in submissions and consultations with the Inquiry. The use
of pornography as a way to encourage or prepare children for sex (“grooming”) had
featured heavily in recent prominent cases. The Report stated:
In written submissions to the Inquiry from community groups and
individuals, concern was expressed about the availability of pornography in
communities and children’s exposure to pornographic material, in particular
videos and DVDs. This was as a result of poor supervision, overcrowding in
houses and acceptance or normalisation of this material.
It was subsequently confirmed at the regional meetings conducted
by the Inquiry in February and March 2007, that pornography was a major factor
in communities and that it should be stopped. The daily diet of sexually
explicit material has had a major impact, presenting young and adolescent
Aboriginals with a view of mainstream sexual practice and behaviour which is
jaundiced. It encourages them to act out the fantasies they see on screen or in
magazines. Exposure to pornography was also blamed for the sexualised behaviour
evident in quite young children70. It was recommended that possible strategies
to restrict access to this material, generally and by children in particular,
be investigated.[4]
1.11
The general need to control pornography was supported. Ms Havnen said:
I think retaining some sort of control and ban on availability
of pornographic material is probably highly desirable under the circumstances.
I do not think anybody is really opposed to that proposition at all. Anything
that we can do that might go some way to ensuring the protection and wellbeing
of kids I think is a positive thing.[5]
1.12
In terms of narrowcasting into ‘prescribed areas’, some witnesses
suggested it was insulting to indigenous people to provide them with less
freedom than other Australians to view what they wished. Liberal senators
however were conscious of the special circumstances affecting those communities
which require special measures. These circumstances were best summarised by the
Northern Australian Aboriginal Justice Agency:
There is an expectation that traditional people living in Aboriginal
communities will innately comply with standards and norms set by contemporary
Western democracies. You really need to understand the different world views. I
am not specifically referring to what my friend was talking about. Their view
is not the same as ours. They have a different view of supervision of young
children than contemporary Western democracies have. Because over the years
there has been so much disempowerment of Aboriginal people, there tends to be a
lot of apathy in communities about those kinds of standards—and understandably
so. The intervention has only exacerbated that sort of confusion and apathy.
But that difference in world view is an important conceptual idea that we need
to get our heads around.[6]
Access to Aboriginal land
1.13
The use of the permit system to restrict access to aboriginal land
disturbed Liberal senators.
1.14
Mr Paul Toohey, a senior journalist with News Limited, took issue with
the comments by Mr Ron Levy of the Northern Land Council who did not
consider that that these were closed communities, nor that they were open
communities – rather they were somewhere in the middle. Mr Toohey strongly
advocated the view that the permit system rendered them closed communities,
stating:
I think it is a tragedy that the permit system will be
reintroduced for townships... Keeping these townships closed is backwards,
negative and basically a dangerous act which does not help anyone. No-one has
any issue with requiring people to have a permit to access the vast holdings of
Aboriginal land. The roads leading to them and the townships are a different
issue altogether. If people want to practice their culture, protect their land,
protect their sites, run businesses on their land and require people to have
permits, so they should. It is land that has been won under the Aboriginal Land
Rights Act or vested even earlier than that. I fully support Aboriginal people
having total control over that, except on the roads and the towns where there
are schools, clinics, police stations and shops. I fail to see why these places
need to be closed.[7]
1.15
Mr Toohey confirmed that he had been refused a permit to enter
indigenous land. He was asked about the frequency of journalists being refused
permits prior to the 2007 amendments to the permit system. He responded:
I do not have any idea how frequently it has occurred. All I
know is that it is a barrier that should not be there. This argument has gone
beyond journalists. This is not about journalists and access to communities; it
is about communities themselves being open.[8]
1.16
Some argued that the Schedule 3 of the Bill should be deleted so that
the provisions of the emergency response legislation that abolished aspects of
the permit system would remain in place. The Festival of Light submitted:
The many tragic accounts of sexual abuse of Aboriginal children
in the [Little Children are Sacred] report largely involve abuse by other
residents of the local community. It seems reasonable to assume that allowing
such “small geographically-isolated communities” with endemic problems of
sexual abuse to refuse entry to people from outside the community only
perpetuates the problems of isolation.
A permit system which can exclude outside visitors from a
community seems to violate the fundamental principles of freedom of movement
and freedom of association, as well as the notion of Australia as a single
nation with a shared sense of community.[9]
1.17
Mr Hal Duell raised other concerns with a reinstated permit system:
A new system of local government is being rolled out across the
NT. Shires stretching in some cases from Queensland to WA will replace a myriad
of local councils, and shire meetings will be held on a rotational basis in
different townships. As the third tier of government these meetings must be
open to the public with the usual confidential section as prescribed by the
Act. At the very least any reinstated permit system would have to be lifted on
the day of the Shire Meetings to allow access to the township and to the
building hosting the public meeting.
Another concern with the new shires is the shires will levy
rates and use some of that money to maintain public roads. Is there a conflict
when publicly funded (rates funded) roads are submitted to a private permit
system? [10]
1.18
Liberal senators strongly believe it is too early to assess the success
or failure of the previous government’s decision to remove the permit system.
Although the preponderance of those stakeholders giving evidence supported the
system’s scrapping, little evidence was offered as to tangible problems arising
from its abolition.
1.19
The Liberal senators were concerned about some elements of paternalistic
behaviour which were offered as benefits of the permit system.
1.20
Mr Tilmouth suggested that the permit system worked to protect
indigenous people from outsiders.
There has not been open-slather movement into those town camps,
but unwanted media has been going into town camps or trying to access stories
from individuals within town camps. ...We did deny others who were unscrupulous
dealers—people selling vacuum cleaners to people without carpets, people
selling encyclopaedias to people who cannot read, people selling alcohol to
grog runners and, ultimately, carpetbaggers in relation to art.[11]
1.21
Subsequently Mr Tilmouth suggested that consumer education would assist
in this area.
Mr Tilmouth—...There are a lot of people who
buy things, do not know their rights, and at the end of the day their consumer
rights are totally abused. You can never get that issue solved. That is the
reason why we have a consumer rights person at Tangentyere. He is also a
financial adviser. We are getting people stung by sharp loans, these Aussie
loans sorts of things. Used-car dealers all park around Tangentyere. They are
across the road. There are second-hand shops across the road. This is all because
a lot of people know that Aboriginal people do not know their rights and are
very prone to abuse. That has happened time and time again in the history of
Aboriginal people.
Senator BOYCE—So some legislation to protect people would
be—
Mr Tilmouth—There is enough legislation
there. There is not enough education. There is not enough prosecution of people
out there. People do it and they get away with it. It happens time and time
again.[12]
1.22
Mr Tilmouth also noted the ability to stop "media
manipulation" of issues arising on indigenous land as a benefit of the
permit system.
Senator BOYCE—...Going on to the permit system: it is
accepted—universally, I would think—that perversion and corruption flourish
when there is no transparency and no oversight of what is going on. What
structures do you have in place to stop the permit system being misused or
abused to protect undesirables who might already be in the community?
Mr Tilmouth—I do not think there is an opportunity now.
You are talking about privacy being the main ingredient for all abuse—and
privacy is. 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. We are not as private as people think we are. At the end of the day,
abuse does thrive in privacy—yes, I agree with that—but media can utilise our
lives for their own purposes. As I said earlier, the police have complete
entry, the welfare services have complete entry and the medical services have
complete entry. We do not deny those people access. If somebody wants to call
the police, if somebody wants the welfare services to go in, they have complete
access.
You were talking about openness to media. You know the media—it
can manipulate a story so badly.[13]
1.23
The Committee was advised that, whilst FaHCSIA has received
correspondence relating to the permit system and its abolition, there has been
no formal complaint received by the Department or the Minister regarding that
abolition.
FaHCSIA has not received any such formal complaint and nor am I
aware of any formal complaint having been referred to the minister’s office...
There has been plenty of correspondence about the issue
generally, but no formal complaint about any particular instance that I am
aware of.[14]
1.24
Of further concern is evidence that permits are often provided for a
charge, suggesting that profit rather than privacy may sometimes be the
rationale for their use.
Conclusion
1.25
Every inquiry into various aspects of indigenous disadvantage or
disempowerment of which the Liberal senators are aware has drawn attention to a
wide range of seemingly-intractable problems and challenges facing indigenous
Australians. Every such inquiry has further noted the ‘interconnectedness’ of
these problems, suggesting in effect that any solution must be comprehensive,
multifaceted and well-resourced.
1.26
The Northern Territory emergency response is the most
comprehensive, multifaceted and well-resourced attack on indigenous
disadvantage that our nation has yet seen. It is of course too early to judge
whether it will succeed in substantially improving the lives and well-being of
aborigines in the Northern Territory, even in respect of the sexual and
physical abuse of women and children which was the trigger for this suite of
measures. We believe however that it would be a tragic mistake for the Federal
Government to unpick the key elements of this emergency response in this
critical early phase.
1.27
We believe that passing this Bill begins the process of gutting
the Northern Territory emergency response from within. We believe this Bill is
not framed with the interests of indigenous people in the Northern Territory
foremost, rather it demonstrates the Government's preference for superficial
political symbolism.
Recommendation
Liberal senators urge the Senate not to pass the Families,
Housing, Community Services and Indigenous Affairs and Other Legislation
Amendment (Emergency Response Consolidation) Bill 2008 at this time.
Senator Gary Humphries
Deputy Chair
LP, Australian Capital Territory |
Senator Judith Adams
LP, Western Australia |
| |
|
Senator Sue Boyce
LP, Queensland |
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