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Monday, 21 June 2010
Page: 3836


Senator BOYCE (8:55 PM) —I would like to briefly speak on the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009. I genuinely acknowledge the deep knowledge of Indigenous issues and the untiring advocacy of Senator Siewert in this area. I would also have liked to have had the opportunity to acknowledge the abilities and experience in this area of the government senators involved in the Senate Standing Committee on Community Affairs that inquired into this piece of legislation. Unfortunately, I cannot because the government has chosen to have no speakers on this bill.

One could get the impression, as Senator Fifield mentioned earlier, that this was because there was so little time to debate this matter. However, once again we have empty rhetoric from the government. I was looking through the notes of the dissenting report that the coalition senators did on this legislation. The date of that report, the date it was tabled, the date it was ready for anyone who chose to to proceed with the legislation was 10 March 2010—more than a month or two ago I would have thought—more than enough time to the government to have put it on an agenda and debated it in a serious and real way if they chose to. Instead, once again, we see their inability to schedule or to implement a legislative program. They have come up with this rushed effort at the end with no serious debate on what is a very serious issue.

I want to speak briefly about the hearings that were held by the community affairs committee into this legislation and related legislation. As Senator Fifield noted earlier the coalition does support income management. The coalition introduced income management. I would remind people of the name of the program under which income management started. It was called the Northern Territory Emergency Response. There was no joy in introducing that program. There was no joy in the reasons for introducing that program but certainly in the genuine view of the coalition members dozens and dozens of different programs had been tried over the years and had failed.

I remember speaking in this chamber probably two years ago now on the Little children are sacred report where there were hundreds and hundreds of examples of dysfunction within families that were beyond belief for most Australians. One story that stood out for me as emblematic of the situation faced by many people in Indigenous communities was the story of a two-year-old girl trying to encourage a four-year-old boy to come and play with her in the way that children do all over the world by sort of gesticulating to them to come and play. Except her way of doing this was to lie on her back, spread her legs and gesticulate at her crotch. What life has a two-year-old child lived if they think that is a normal way to encourage social interaction?

If this were a one-off story out of that report, you would address that particular issue but it was not one off. It was part of a total story of, in many cases, great social dysfunction. There is great leadership in many of our Indigenous communities but it is tired leadership, it is harangued leadership by many other members of their own communities who are dysfunctional.

Many of you will have seen the reports coming out of the Australian Crime Commission last week on organised paedophilia in some Indigenous communities—not in the Northern Territory—where power and paedophilia over local residents went hand in hand. The Northern Territory Emergency Response was just that—it was an attempt to change, to fix, the many, many efforts that we as coalition and Labor governments have made at state and federal levels over many, many years and have failed to do.

Certainly, the coalition supports income management and hopes desperately that it is going to lead to a better outcome. Yes, the coalition thinks some of the evidence that has already been produced suggests that there are good news stories coming out of that. If you look at the report of the Northern Territory Emergency Response, which refers to the increased incidence of sexual abuse, non-school attendance et cetera, you are looking not at increased incidents but at increased reporting of incidents. Finally, someone is paying attention. Finally, someone is collecting some of the data so that we can, as time goes on, actually improve and develop the policies that will mean the people do not need income management, that the leaderships in the communities are strong enough and supported enough by healthy, educated individuals which will mean that the scumbags, for want of a better word, who control some communities are driven out or ostracised by the others in those communities.

As I said, the government has said much about income management. We listen to the Minister for Families, Housing, Community Services and Indigenous Affairs, Ms Macklin, attempting to suggest, along with the Prime Minister, that somehow this legislation has been held up by the coalition, but let us look at the government’s rhetoric surrounding the potential expansion of income management arrangements and see it for the hollow commitment that in many ways it is. The government has proposed extending income management only in the Northern Territory for now. There will be an evaluation and, as Senator Siewert says, we do not know where, how or by what process, but the idea is to have an evaluation in two years or so time so that the minister can decide where and whether to apply the system elsewhere in Australia. If the government were genuinely interested, as they say, in seeing racial discrimination taken out of this legislation, then they would apply it immediately to all areas of Australia where they thought it would be helpful and useful. Instead, they have not done that. They have had this little Clayton’s effort and decided they will give it a go in the Northern Territory and then decide what to do by a process that no-one knows anything about as yet.

The other very disturbing aspect of this bill is that the government have, by reinstating the Racial Discrimination Act, brought into question the whole basis for the process that was carefully introduced, after legal advice, by the previous government. The whole point of exempting the Northern Territory Emergency Response from the Racial Discrimination Act was that the Northern Territory Emergency Response was seen as a special measure. Under international law, for this to be seen as a special measure it had to have the purpose of advancing the welfare of the people that it was directed at. That was certainly the intention and I think to date has been the outcome in certain areas of the application of income management.

When you look at the evidence that was given to our Senate inquiry into this matter way back in February and March this year, there was a great deal of comment on the point that this legislation would now become more likely to be challenged in the courts and more likely to lead to a successful challenge in the courts. We should note that there has not been a successful challenge in the courts under the legislation that was introduced by the coalition. I hesitate to say that the people who gave this evidence were supporters of the Northern Territory Emergency Response legislation as it stood. They were not. They wanted income management gone completely. Nevertheless, they agreed when asked whether this change of exempting it from the RDA would open up a legal minefield. Dr Robyn Seth-Purdie from Amnesty International Australia said:

As for challenging, let the RDA reinstatement come in so that it can be challenged and then we can sort it out in the courts. That is a risk because it is not beyond doubt that if the RDA exclusions are removed from the Northern Territory intervention legislation the RDA would prevail over a statute passed subsequent to it. Conflict of law doctrine: the later statute prevails.

Another witness, Mr Jared Sharp, from the North Australian Aboriginal Justice Agency, who certainly was keen to see all the measures of the Northern Territory Emergency Response removed, commented:

What we would be challenging is the designation of the measure as a special measure based on, for example, the fact that for a special measure to be a special measure there needs to be this demonstrated necessity. In our submission that does not appear to be the case. Similarly, it needs to be the case that the government can demonstrate that the measure is for the sole purpose and advancement of the targeted group. Again ... we say that we do not feel that that has been the case.

Dr Pritchard of the Law Council of Australia, speaking on the potential for recourse to the UN Racial Discrimination Committee, said:

It would depend on the full reinstatement of the Racial Discrimination Act in the first instance. It would also depend on the interpretation by the court of interaction between the NTNER legislation and the Racial Discrimination Act. It would also have regard to whether or not an amendment … were enacted. And then it would ultimately depend on whether the question were justiciable or not, and that would be a matter that would need to be determined by a court. In the event that no remedy were available domestically, then there would be recourse to the UN racial discrimination committee.

I would like to conclude my remarks there, but I will summarise by making the point that if there has been any delay whatsoever in bringing this legislation to a vote it has been on the part of the government. The report on what the legislation said, the report suggesting what amendments the coalition believed could be made to improve it, has been available for the government since March this year. There has been no dillydallying on the coalition’s part, because we believe that the Northern Territory Emergency Response and the income management that is part of it are crucial factors in trying to do what this parliament, this house, the government can do to assist Indigenous Australians whether they live in the Northern Territory or anywhere else in Australia.