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.
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
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.
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
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
Despite the bi-partisan support in the Parliament for the Intervention, the Northern Territory Labor government has also criticised it, as well as the Human Rights and Equal Opportunity Commission and also several aboriginal leaders and community spokes persons. The plan was also given strong or qualified support by other community groups and aboriginal leaders.7
Measures of the response which have attracted the most criticism include the exemption from the Racial Discrimination Act 1975, especially the compulsory acquisition of an unspecified number of prescribed communities (Measure 5) as well as the partial abolition of the permit system (Measure 10). These have been interpreted by critics as undermining the important principles that were established as part of the legal recognition of Aboriginal land rights at best and outright racist at the worst. A lack of consultation with the aboriginal community leaders is often cited by critics of the intervention. Also, the fact that the action addresses so few of the specific recommendations contained in the Little Children are Sacred Report, while introducing many not suggested in the Report has been a huge criticism. Aboriginal commentators such as Noel Pearson have supported the measure overall while still criticising many aspects of the intervention. They believe it to be necessary and worthwhile. 8 Aboriginal leader Galarrwuy Yunupingu supported the response initially but by 2010 has lost faith in the intervention.9
By 2010, United Nations Special Envoy James Anaya, found the Emergency Response to be a racial discrimination that infringes on the basic human rights of Aboriginal people in the Northern Territory as guaranteed under the UN Charter. Anaya acknowledged that the intervention was needed. However, measures banning alcohol and pornography and the reservation of a percentage of welfare income for the purchase of essential goods represented a parochial limitation on "individual autonomy." Although supported by the Australian Greens, the report was widely condemned in Australia, with Indigenous Affairs Minister, Jenny Macklin, stating that her duty to protect the rights of children was paramount. Also, the Opposition Spokesman Tony Abbott asked whether Anaya had consulted with those people who had lived through the intervention. To this end, aboriginal activist Warren Mundine said that the report should be "binned" and Central Australian aboriginal leader Bess Price criticised the UN for not sending a female envoy. Additionally, Price maintained that Abaya had been bossed around by opponents of the intervention to meet with them.10
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…