Federal government power and the Northern Territory intervention law

Northern Territory (NT) Intervention

In this essay, the author will examine how the Australian Federal Government can pass legislation (as was done with the Northern Territory (NT) intervention) which is not subject to the operation of Racial Discrimination Act (Clth) and, in turn, any State/Territories Racial Discrimination Acts. The author will raise the question of whether or not the Federal Government has such power. If this is so, the author will then examine under what circumstances such power should be exercised. Further, in the essay the author will raise the question of whether the federal government exercised this power correctly with regards to the NT intervention. Finally, the essay will examine if the Federal Government should not have such power, then how human rights can be protected in Australia.

It is the author's opinion that the Australian government far overstepped its mandate. While technically legal, the intervention was only barely so. It raises serious constitutional issues and is a threat to basic liberties stemming from traditional common and Commonwealth law. Particularly obscene was the deployment of the Australian military to deal with a social and police crisis. This was a serious miscalculation on the part of the Howard government and the continuation of the policy is a disaster and has caused concern about and embarrassment for Australia at the UN concerning the treatment of Australia's aboriginal citizens by a country that historically has not treated them well. When the intervention is viewed in the context of the total history of Australia with regard to its aboriginal citizens, this tragedy is just the latest manifestation of misguided government policies that at best smack of parochialism and at worst of outright racism.

Background

The Northern Territory National Emergency Response ("the intervention") represented a number of programs that were introduced by the Australian federal government under Prime Minister John Howard in 2007. These were produced in order to deal with rampant reports of severe child sexual abuse and neglect in the midst of aboriginal communities. Dubbed Operation Outreach, the initiative's main logistical operation was delivered military style by a force of 600 soldiers and detachments from the Australian Defense Forces (ADF) on 21 October 2008 This military deployment was the federal government's response to the territorial government's publication of a report entitled Little Children are Sacred. Unfortunately, it only implemented 2 of the report's 97 detailed emergency recommendations. The present Prime Minister has and also continues to support the program, but with several refinements not mentioned in the report. The Emergency Response edict has since been allowed to lapse and is being replaced..1

Legislative Initiatives

The legislative package included the following:

A. Northern Territory National Emergency Response Bill 2007

B. Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007;

C. Families, Community Services and Indigenous Affairs and Other Legislation Amendment ( Northern Territory National Emergency Response) Bill 2007

D. Appropriation (Northern Territory National Emergency Response) Bill (No. 1) 2007-2008

E. Appropriation (Northern Territory National Emergency Response) Bill (No. 2) 2007-2008.

Controversially, Clause 132 of the first Bill provided that the provisions of it are 'special measures' under the Racial Discrimination Act 1975 and are exempt from Part II of the Act. While the main elements of the intervention were kept in place, this exemption from the provisions of the Racial Discrimination Act was brought to an end in 2010.2 As this author maintains, this was a barely legal fig leaf.

Measures

The $587 million package was passed into law with the passage of the Northern Territory National Emergency Response Act 2007 in the Australian Parliament in August 2007. It has nine measures as follows:

1. Deployment of additional police to affected communities.

2. New restrictions on alcohol and kava for aborigines in their communities.

3. Pornography filters on computers that are publicly funded.

4. Compulsory purchase of the townships currently held under title provisions of the Native Title Act 1993. This is done with five-year leases with compensation being meted out on a basis other than just terms.

3. Commonwealth funding for the provision of those community services.

4. The removal of customary law and cultural practice considerations from sentencing and bail applications and within criminal proceedings.

5. Suspension of the permit system.

6. Reservation of a proportion of the welfare benefits to all recipients in those designated communities and of all of the benefits of those parents who neglect their children.

7. Abolition of the Community Development Employment Projects (CDEP).3

Politics

The public response to this government intervention was the defeat of John Howard. This backlash came at a time of increasing debate over the future and nature of federalism in Australia and the extent of federal power into areas of government that had been historically administered by states and territories. By February 2011, former minister Mal Brough (the original designer of the plan) was arguing that the policy had become stagnant and wasn't going to work unless it was reformed.4 In April 2011, the Opposition Leader Tony Abbott proposed a consultation with Aboriginal people over the bipartisan Federal Government intervention in Northern Territory towns like Alice Springs, Katherine and Tennant Creek. This would cover such areas as police and school attendance to address what he described as a "failed state" developing in areas of the Northern Territory.5

Prime Minister Gillard toured Northern Territory Communities in June 2007 and told the news media "I believe the intervention has made a difference" while crediting it with the provision of children's meals to children, better child health and welfare outcomes and a reduction in aggravated assaults.6

Criticism of the Measure

Opposition to the intervention in the Northern Territory has encountered opposition from a spectrum of groups. Critics of the intervention point to the following issues:

A. A 1999 report titled Violence in Indigenous Communities was authored by Dr. Paul Memmott, but embargoed until 2001 and not acted upon.

B. An inter-governmental summit regarding violence and child abuse was organized in 2006. This highlighted the cost and blame shifting that made up federal-territory and state relations, but nothing further was done.

C. The United Nations has criticised the suspension of the Racial Discrimination Act, writing to Prime Minister Kevin Rudd in March 2009 following a complaint made to the UN by a collective of Aboriginal communities that it was a violation of the UN Charter.

D. The intervention has produced chaos, racisim and poverty worse that before.

E. The intervention has not discovered any paedophilia rings and no sexual abuse cases among children have been prosecuted.

F. Only 2 of the 97 recommendations from the Little Children Are Sacred report were implemented and several were implemented that were not in the report.

G. The Australian government funded only 20 child protection workers for the whole Northern Territory. Only 1 person actually employed full time.

G. Northern Territory task force reports have acknowledged that their inquiries are based upon the operators' observations and perceptions of the situation within their communities. Also, they did have an examination of financial records and other on-site reports."

H. For the Federal government to implement the Northern Territory Emergency Response, the suspension of the Racial Discrimination Act of 1975 was required to give it legality. This made it legal to force communities to sign over the local autonomy of the aboriginal land in 5-year leases, to prohibit alcohol consumption and distribution in aboriginal towns, to control spending patterns through income management and store cards and to the take-over of aboriginal service-providers.11

Did the Australian Government act correctly?

In the opinion of the author, the answer would appear to be no. As mentioned above, the vast majority of the findings of the Little Children are Sacred report were not implemented. Indeed, many measures were implemented that were not in the report, which would make the government's motivation suspect in the intervention. The results and benefits are marginal at best and the opposition groups are indeed on target when they harvest a lot of evidence that the measures may do more harm than good. Indeed, using the Australian military would seem more that a bit over the top. As we saw above, many of the early supporters of the intervention changed their minds later once the paltry positive results of the Australian government's intervention in aboriginal communities became widely know and criticism became widespread. Could not the local police be federalized or federal police deputized to implement law enforcement procedures rather than turning the Aboriginal areas into a military occupation zone? Have the crimes in the aboriginal communities been on the level of Saddam Hussein that they need to be invaded by the Australian military and treated in the same way that Australia's enemies are dealt with overseas?

Conclusions

While the measures may have technically legal, they produce severe constitutional and legal precedents that threaten the liberties of all Australians, aboriginal or not. Certainly, one has motivation to be extremely critical of government motivations with regard to the matter. It was most certainly not for aboriginal benefit. The federal government should not have such power. Unfortunately, it is too easy to abuse it and for that abuse to go beyond the aborigines into the general Australian society. It is even more difficult to roll back such powers once they are established and have been institutionalized. We must trust the traditional common law and other Commonwealth legal traditions to protect human rights in Australia. In addition, we must trust the leadership of the aboriginal communities to be able to govern themselves. In order to justify a huge level of intervention on the scale of the government's 2007 initiative, a much higher threshold of proof must be satisfied for the effort to be federalized, let alone militarized in the way that the Australian Army was employed in the aboriginal areas.

In addition, such interventions threaten the power of state and territorial governments which must be trusted to protect individual rights. The balance of power has been shifted far into the federal government's favor. Just as in the case of the aboriginal communities, for the Australian federal government to be able to justify intervening in local, state and territorial issues, a very high threshold must be provided. While it may be necessary to use federal funding for some social programs, they must be implemented in close consultation with the state, territorial and local governments affected by such interventions. Otherwise, such help is dictatorial in nature and defeats the very purpose for which it was intended and simply becomes another measure of control.

Reference List

Ashby-Cliffe, J. (2008) 'Reaching the End,' Army (1202), 4.

ABC News. (2007). Pearson Fears for Indigenous Parents' Freedom. Available: http://www.abc.net.au/news/2007-06-22/pearson-fears-for-indigenous-parents-freedom/78106. Last accessed 6 September 2011.

Australian Human Rights Commission. (2007). Submission of the Human Rights

and Equal Opportunity Commission (HREOC) to the Senate Legal and Constitutional Committee on the Northern Territory National Emergency

Response Legislation. Available: http://www.hreoc.gov.au/legal/submissions/2007/NTNER_Measures20070810.html. Last accessed 6 September 2011.