Additional Comments by the Australian Labor Party
1.1
At the outset, Opposition Senators wish to reiterate Labor's support for
the intervention and acknowledge the seriousness of the problem of child abuse
both in the Northern Territory and nationally. The Leader of the Opposition has
outlined the grim statistics relating to abuse and neglect of Indigenous
children in the Northern Territory:
In the five years to 2006 notifications of abuse and neglect of
Indigenous children in the Northern Territory grew at more than three times the
rate of that for non-Indigenous children. Between 2005 and 2006 Indigenous children
in the Northern Territory were five times more likely than non-Indigenous
children to be the victims of child abuse on the basis of substantiated reports
of that abuse. Furthermore, of all sexually transmitted infections diagnosed in
Aboriginal people in the Territory, eight per cent occurred in children under
the age of 16. That is nearly three times the infection rate for non-Aboriginal
children.[1]
1.2
Opposition Senators believe that addressing child abuse and neglect in
Aboriginal communities is rightly designated as an issue of urgent national
significance. We believe that federal, state and territory governments have
obligations to take both immediate and sustained action to improve the lives of
all children, especially those in Aboriginal communities.
Appropriations
1.3
The two appropriations Bills considered by this inquiry provide around
$587 million in the current budget year for the government’s Northern Territory
intervention and associated measures. The committee did not have the
opportunity to examine the appropriations in the same level of detail as
provided for by the normal Budget estimates process, and as such only general
comments can be made.
1.4
Opposition Senators welcome the increased expenditure on improved
services, infrastructure and economic development in Aboriginal communities.
1.5
However, we note that the appropriations are for the current budget year
only, and do not extend into the longer term. During the inquiry, the committee
sought clarification on what this means for contracts funded under the
initiative, and in particular the capacity to enter into contracts that go
beyond 30 June 2008. FaCSIA responded to a question on notice regarding this
issue:
While the current bills contain some funding for activities
linked to the second (normalisation) phase of the Emergency Response, it is
recognised that further funding will be required to address the longer term
issues. Further Commonwealth budgetary processes will include consideration of
these requirements. Future year funding implications of measures contained in
these bills will be considered at that time.[2]
1.6
Labor is concerned that the capacity to enter into long term contracts
and funding commitments will be critical to the success of the intervention.
Labor considers that the issue of the funding available in future budget years,
to consolidate the outcomes of the initial intervention package, should be
addressed as a matter of priority.
1.7
Labor Senators also note with concern evidence from FaCSIA that the two
appropriation bills do not include any funds for additional housing for
Indigenous people.[3]
Immediate and long term action, planning and response to the Little
Children are Sacred report
1.8
Labor supports the need for an emergency intervention and immediate
action to improve the health and wellbeing of Aboriginal children in the Northern
Territory.
1.9
Labor is concerned that this intervention is part of a longer term
strategy which has as its aims:
- the protection of children;
- the nurturing of children and ensuring they have access to
appropriate health and education;
- strengthening Indigenous communities to take control of their own
affairs; and
- assisting those communities to achieve economic independence.
1.10
These aims cannot be achieved unless the Commonwealth, after dialogue
and genuine consultation with affected Aboriginal communities, sets out a
comprehensive long term plan.
1.11
The intervention is silent on many of the recommendations set out in the
Little Children are Sacred report and it is for this reason, that its
authors, Ms Pat Anderson and Mr Rex Wild QC, have been critical. In particular,
Ms Anderson's response to the intervention package has been reported as
follows:
'Aboriginal families and Aboriginal people do want to own this
problem, they want to be part of solving it. They want it fixed, they are sick
and tired of their communities being sick,' she said.
'[But] if we do this top down as proposed, there's a danger of
it being seen as a cynical exercise.
'There's a real opportunity here to once and for all do
something .... We need extraordinary interventions but not at the risk of
infringing our fundamental human rights.' Ms Anderson said the opportunity
presented by the report had been lost.[4]
1.12
Any longer term plan should establish a framework for the achievement,
in partnership with the Northern Territory Government and Indigenous
communities, of the recommendations set out in the Little Children are
Sacred report.
Permit system
1.13
Opposition Senators do not believe that in their current form the
proposed changes to the permit system will improve the security and safety of
children in a practical way.
1.14
In its submission, the Police Federation Australia said:
In relation to the long-standing permit
system for access to Aboriginal communities, the PFA is of the view that the
Australian Government has failed to make the case that there is any connection
between the permit system and child sexual abuse in Aboriginal communities.
Therefore, changes to the permit system are unwarranted.
We note that the Government has decided, on balance, to leave
the permit system in place in 99.8 per cent of Aboriginal land.
Operational police on the ground in the Northern Territory
believe that the permit system is a useful tool in policing the communities,
particularly in policing alcohol and drug-related crime. It would be most
unfortunate if by opening up the permit system in the larger public townships
and the connecting road corridors as the Government intends, law enforcement
efforts to address the 'rivers of grog', the distribution of pornography, and
the drug running and petrol sniffing were made more difficult.[5]
1.15
The Northern Land Council noted that it had conducted comprehensive
consultation in its region, in relation to changes to the permit system, in
2006 and that both traditional owners and Aboriginal people living on
communities universally opposed the changes.[6]
Similarly, the Central Land Council submitted that:
Opening up roads 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 on to their land
more broadly without permission and without guidance with regard to safety and
important sites.
The permit system is an important policing tool in remote
communities. Police routinely asked unwanted visitors to leave communities
because they do not have a permit...If more unwelcome visitors visit communities,
such as grog runners and carpet baggers, there will be a greater demand for
policing with fewer powers of enforcement.[7]
1.16
On the other hand, several submissions spoke of the need for greater
public scrutiny of Aboriginal communities.[8]
1.17
The committee requested copies of the submissions provided to the 2006
review of the permit system. However, the Secretary of FaCSIA refused to
provide the submissions on the basis that: 'It is advice to the government; it
is a matter for the government.'[9]
Opposition Senators believe that this is an example of the unnecessarily
secretive approach the government has taken to the development of many aspects
of the intervention package. Clearly, debate would be more fully informed if
submissions to the 2006 review of the permit system were publicly released.
Additional Recommendation 1
1.18
Subject to additional recommendations 2 and 3 below, Labor Senators
recommend that the blanket removal of the permit system on roads, community common
areas and other places as specified in Schedule 4 of the National Emergency
Response and Other Measures Bill be opposed.
Additional Recommendation 2
1.19
Labor Senators support access without a permit for agents of the
Commonwealth or Northern Territory Government to facilitate service delivery
(such as doctors or other health workers).
Additional Recommendation 3
1.20
Labor Senators recommend that greater public scrutiny of Aboriginal
communities in the Northern Territory be facilitated by allowing access to
roads and common town areas, without a permit, by journalists acting in their
professional capacity, subject to the restrictions relating to the protection
of the privacy of cultural events (such as sorry business) as proposed in
schedule 4 of the National Emergency Response and Other Measures Bill.
Compulsory acquisition of rights, titles and interest in land
1.21
Facilitating better housing and infrastructure has been central to the
government's argument for needing five year leases over townships in Aboriginal
communities. The government has argued that taking on the responsibility as
the effective town landlord is necessary to quickly improve vital
infrastructure and housing in these communities as well as to support the
economic development of the communities.
Negotiation rather than compulsory
acquisition
1.22
The committee received evidence regarding the significant disappointment
of Aboriginal communities in the Northern Territory that the government has
chosen to compulsorily acquire interests in land instead of negotiating with
communities in relation to the best means of achieving the shared objectives of
the intervention package. Mr John Ah Kit of the Combined Aboriginal
Organisation of the Northern Territory told the committee:
We have problems with the compulsory acquisition and the special
purpose leases around the town camps, which are almost as good as freehold. You
need to talk to the organisations that control those and you need to talk to
the Territory government. I am sure some agreement can be struck, if there were
a head-lease on offer for those organisations like Tangentyere ... But there is
no real consultation.[10]
1.23
More broadly Mr Daly, Chair of the NLC advocated further negotiation
between governments and Aboriginal people:
We always thought that we would be consulted all along.
Unfortunately, some things have been dropped in front of us and now we are
running at 100 miles an hour. But what we have always said to the
Commonwealth—and we say this to all governments within Australia—is: 'Come and
talk to us. We're practical people and we're about getting the outcomes for our
people.'[11]
1.24
Labor Senators note that the compulsory acquisition powers will be
phased in, giving time for further negotiation with affected communities, and
urge the Government to negotiate with the affected communities during this
phase-in period.
Just terms
1.25
Labor Senators support the comments in the government report on the
uncertainty over whether just terms compensation will be paid under the
legislation and particularly note the evidence of the Law Council suggesting
that:
[T]he provisions concerning compulsory acquisition of Aboriginal
land are discriminatory, unnecessary and should be excised from the
legislation—individual Aboriginal communities should be consulted and asked to
assist and participate before compulsory acquisition could be contemplated...[12]
1.26
The Law Council also noted that:
If it is the Territory’s power that supports these parts of the
legislation and no other head of power is referable—which, arguably, is the
case—then compensation would not be required under the Constitution and the
legislation would not require payment of compensation. That, to me, is the most
fundamental difficulty. If compensation is payable, in my view, the legislation
should clearly state that.[13]
1.27
Labor Senators consider it to be an absolutely fundamental principle
that the Commonwealth Government should pay just terms compensation for the
acquisition of property from anyone, anywhere in Australia. Further, Labor
rejects absolutely any suggestion that services or infrastructure, which all
Australians have the right to expect their governments to provide, should be
considered as contributing to compensation for the acquisition of the property
rights of Indigenous people.
1.28
We support comments in the majority report calling on the government to
clarify the position in relation to the compulsory acquisition powers in the
bills which provide for a 'reasonable amount of compensation' to be paid.
Compulsory lease provisions
Access for traditional usage
1.29
Opposition Senators believe that the operation of leases provided for
under proposed section 31 of the National Emergency Response Bill should allow
access to the leased land for traditional purposes consistent with section 71
of the Aboriginal Land Rights (Northern
Territory) Act 1976.
Need for negotiation and a review
in 12 months
1.30
This lease process will be new and untried, and could cause significant
concern and confusion for Aboriginal communities if not handled sensitively by
the Commonwealth Government. However, if this process is approached
co-operatively, it has the potential to deliver significant benefits to those
communities. Opposition Senators urge the government to use the Minister's
powers under proposed section 36 as a basis for negotiating with affected
communities in relation to the terms and conditions of these leases.
1.31
Labor Senators believe a review to examine how effective the leasing
provisions have been in achieving the aims of the intervention package should
be conducted 12 months from the commencement of the legislation. The review
should also assess progress in establishing infrastructure and housing in both
towns and town camps. We cannot afford for the improvements to stall, or become
mired in a legal process that does not deliver outcomes. Labor Senators believe
that a co-operative attitude from both sides will yield the most effective
outcomes.
1.32
The immediate infrastructure requirements of these communities have,
justifiably, seen the government motivated to take immediate action. The
success of the stabilisation phase in terms of infrastructure improvements is
immediately measurable. In 12 month's time, the government will know how many
houses it has built, or fixed, and how much community infrastructure has been
improved.
1.33
Although the acquisition of the five-year leases will occur in three
tranches, the first tranche is to be immediate and the others will occur within
six months. Thus there will be a significant number of communities where
immediate action can be taken and progress is capable of being reviewed after a
year. To suggest otherwise undermines the argument in favour of the emergency
measures.
Additional Recommendation 4
1.34
Labor Senators recommend that an independent review of the effectiveness
of the measures taken under Part 4 of the National Emergency Response Bill
should be conducted after 12 months.
Welfare reform
1.35
When this intervention was first announced, the Prime Minister and the
Minister said that the income management regime for people in prescribed Northern
Territory communities would apply for an initial period of 12 months.
1.36
In this period, the government should be able to measure how the
behaviour of individuals has changed in terms of their spending on food and
essentials, as opposed to other items such as alcohol. School attendance should
also be a measurable indicator of performance of the welfare reforms.
1.37
Labor Senators want to assess the effectiveness of the income management
measures at stabilising the communities, and to see how they are interacting
with broader income management systems and welfare reforms.
1.38
Labor Senators also note that the quarantining of welfare
payments and direction of where people can spend their money means travelling
between outstations and homelands will be severely restricted. This means that
people who may want to go back to remote areas for cultural and ceremonial
reasons may be prevented from doing so on the basis that the legislation requires
other expenditure. Labor Senators have concerns about how these provisions may
operate in practice, particularly as these provisions have the potential to prevent
Aboriginal people travelling for funerals.
Additional
Recommendation 5
1.39
Labor Senators recommend that a review be conducted after 12 months of
the operation of the welfare reform and income management system specific to
the Northern Territory.
Racial Discrimination Act
1.40
Labor Senators are mindful of the Law Council's concern that exclusion
in the three main bills of the operation of the Racial Discrimination Act is
'utterly unacceptable'.[14]
1.41
Labor Senators also note the comments by Mr John von Doussa, President
of HREOC in relation to 'special measures', particularly the necessity of
undertaking immediate and effective consultation with those affected by the
measures:
...a fundamental feature of 'special measures' is that they are
done following effective consultation with intended beneficiaries and,
generally, with their consent. In the present case, the absence of effective
consultation with Indigenous peoples concerning the legislative measures is,
therefore, a matter of serious concern. We accept that this is a case where
urgent action is necessary. Nevertheless, it seems to us that the success of
the action, both immediately and in the long term, will depend upon effective
consultation. Effective consultation is fundamental to respecting the human
rights of Indigenous people.
We accept the reality of the situation that these bills are
going to pass so quickly through parliament; therefore, what we want to
emphasise today are some practical considerations. Ideally, to justify the
legislation as 'special measures' there should have been comprehensive
consultation beforehand and significant input from the communities concerned.
That has not happened, but it is not too late now to embark upon a consultation
process. [HREOC emphasises] the need for a culturally appropriate consultation
process and a significant public information campaign so that the communities
affected understand what is being done and why it is being done, and so that
they have the opportunity to contribute to the decisions that are made now as
to the implementation of this legislation.[15]
1.42
Given the need for consultation, Labor Senators are of the view that the
government should consult now. We reiterate the view put by HREOC that it is
never too late to consult.
1.43
The government has indicated in briefings to the opposition that they
are confident that the legislation does not offend the Racial Discrimination
Act. This advice was also provided by FaCSIA in evidence to the committee's
inquiry.
1.44
Labor Senators believe that, as legislators, we should be sending a
clear message that we have confidence in this plan, we have confidence that it
will be of benefit to the people of the Northern Territory, and we have
confidence that it will achieve results against its aim – the protection of our
children. In doing so, we must observe the integrity of the Racial
Discrimination Act. This is a basic principle for the Opposition, a basic
principle for this country and a basic principle for the Indigenous community
of this country.
Additional Recommendation 6
1.45
Labor Senators recommend that the provisions in the bills suspending the
operation of the Racial Discrimination Act be opposed.
Changes to CDEP
1.46
The government has indicated its intention to require CDEP participants
in the Northern Territory to transition into mainstream work or onto income
support and the Welfare Payment Reform Bill provides for a transition payment
for existing CDEP participants. The committee heard that these changes will affect
approximately 8,000 Indigenous people in the Northern Territory.[16] In addition, several
submissions were received expressing concern in relation to these changes. The
Bawinanga Aboriginal Corporation (BAC) submitted a report prepared by consultants
engage by BAC. The report stated that:
The extensive research base on CDEP has led the authors to
believe that the Australian government’s decision to abolish the program will
have extensive socioeconomic impacts upon the constituents of BAC. Many of
these impacts will be unintended, far reaching and difficult to predict. Most
people going from CDEP to the Work for the Dole (WfD) program are likely to
experience a significant drop in pay which could act as a serious disincentive
to work. Of particular concern is that the abolition of CDEP may lead to a
depopulation of the Outstations in the region. This is due to severe problems
in the workability of the WfD program. The report finds that the impacts are
not in the interests of the people of the region or the nation as a whole...[17]
1.47
Similarly, LHAI submitted to the committee that:
[T]he Government response could well precipitate the collapse of
generally well functioning organisations such a LHAI. This is because of the
precipitous withdrawal of funding without time to plan or structurally adjust,
the climate of extreme uncertainty which makes retention and recruitment of
staff and the maintenance of morale extremely difficult, and the uncertainty as
to security of land and assets. An organisation cannot plan if it has no idea
what in 8 weeks time its income will be or what assets it can undertake its
work with.[18]
1.48
In terms of the immediate impact of the changes, LHAI stated:
Cessation of CDEP for LHAI will result in the direct loss of 17
individual full time Indigenous contracted staff positions in an already
limited labour market area. The loss of these jobs will directly impact upon
the remaining 11 Indigenous positions at LHAI as the resource centre becomes
increasingly constrained in it’s capacity to deliver core business services to
homelands residents.[19]
1.49
While Opposition Senators support the intention behind these measures,
we are concerned about evidence the committee received regarding the potential
impact of these changes, particularly in the short term.
1.50
Given the significance of these changes for Aboriginal communities, in
the Northern Territory it is extremely disappointing that the committee did not
hear from CDEP organisations at its public hearing.
Minister's powers to give directions in relation to assets
1.51
Labor Senators also hold concerns in relation to the provisions which
allow the Minister to give directions in relation to the use, management,
possession and even ownership of assets which are provided for under proposed
section 68 of the National Emergency Response Bill. The Law Council noted in
evidence to the committee that:
[S]ome Aboriginal associations...—some of them commercial and some
of them for the provision of services—have had a variety of funding from both
the Commonwealth and the Northern Territory governments. There is a concern
that the act will be there [,] without any differentiation between those that
had been obtained through commercial enterprise and those that had been
obtained through funding... That is very much a matter of concern. Here we may
well have organisations or associations who have been successful, worked hard
and acquired assets and may well lose them under this type of legislation.
Senator STEPHENS—In relation to the winding back of the CDEP
program, would it be fair to say that the assets that have been built up by
communities through the CDEP program would be the kinds of assets that would be
affected under this clause?
Ms Webb—Yes, I think that is certainly the case. It may be that
those assets have been partially funded by CDEP funds or Commonwealth funds and
partially funded by commercial enterprises or commercial activity, but they
will be caught up with it.[20]
1.52
In terms of the practical effect of these provisions, Laynhapuy
Homelands Association Incorporated (LHAI) advised that:
[O]ver the 22 years of operation since formal incorporation,
LHAI has acquired and maintained significant ‘operational’ assets in terms of
staff housing, plant and equipment, workshops, administration building, etc.
and the assets of our airline business. Many of these assets have been financed
through bank loans, received as donations, ‘scrounged’, purchased from members
funds through by royalties and income generating activities. Although some
‘operational’ assets have been wholly or partly acquired through government
specific funding, the organisation more generally often bears the cost of
maintenance, operation and depreciation.
In recent years, the kava wholesale business allowed LHAI to
also make significant investment of its own funds in infrastructure and housing
improvements in the homelands.
Very few of LHAI’s assets are 100% government funded – either NT
or Commonwealth.[21]
1.53
Labor Senators are concerned that the impact of proposed section 68 is
that any asset can be directed to be transferred from an organisation, so it
would be possible under the legislation to strip assets from organisations and
prevent them from functioning at all.
Requirements for reporting
1.54
Labor Senators support the intervention, and want clear indicators of
success. For the emergency phase, some key performance indicators should be
able to be set after 12 months, and in any case a full range of performance
indicators should be measurable after two years. Labor Senators support the
recommendations in the majority report for annual reporting on progress, and
for the overall two-year review (Recommendations 1 and 3).
1.55
Finally, Labor Senators urge the government to support the Opposition's
recommendations outlined above, which are provided in good faith and in an
attempt to work constructively with the government on this issue.
1.56
Labor Senators recommend that the Bills be supported.
Senator Patricia Crossin
Deputy Chair |
Senator Linda Kirk |
| |
|
| Senator Joseph Ludwig |
Senator Ursula Stephens |
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