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Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008

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2008

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

 

 

FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER LEGISLATION AMENDMENT (EMERGENCY RESPONSE CONSOLIDATION) BILL 2008

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP)



FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER LEGISLATION AMENDMENT (EMERGENCY RESPONSE CONSOLIDATION) BILL 2008

 

 

OUTLINE

 

This bill makes necessary amendments to the special measures to protect Aboriginal children in the Northern Territory, following up the Northern Territory National Emergency Response Act 2007 and the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 .

 

Schedule 1 - R 18+ programs

 

This bill amends the Broadcasting Services Act 1992 and the Northern Territory National Emergency Response Act 2007 to require particular pay television licensees not to provide television channels that contain a large amount of R 18+ programming into declared prescribed areas under the Northern Territory National Emergency Response Act 2007 .  The cessation of the television service would occur only on the request of the community and after consultation with the community, and an assessment that there would be benefit in such action to Indigenous women and children in particular.

 

Schedule 2 - Transport of prohibited material

 

The bill permits prohibited material to be transported through a prescribed area to a place outside the prescribed area.  Specifically, amendments ensure that an offence does not apply if a person proves that the material was brought into the prescribed area for the sole purpose of transporting it to a place outside the prescribed area.  Amendments to the seizure provisions ensure that prohibited material brought into the prescribed area for the purpose of transporting it through that area is not seized, and, if seized, will be able to be returned.

 

Schedule 3 - Access to Aboriginal land

 

The bill makes amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 to repeal the permit system amendments that gave public access to certain Aboriginal land and which came into force on 17 February 2008.

 

Schedule 4 - Community stores

 

This bill makes sure that, if a community is substantially dependent upon a roadhouse for the provision of groceries and drinks, the roadhouse may be licensed as a community store.

 



Financial impact statement

 

The bill includes provisions that have been developed in consultation with industry that are intended to minimise the regulatory compliance costs to subscription television narrowcasting service providers captured by the R 18+ measure.   The community stores measure has a financial impact of $0.6m in 2008-09.  The financial impact of the remainder of the bill is negligible.

 

 

 



FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS AND OTHER LEGISLATION AMENDMENT (EMERGENCY RESPONSE CONSOLIDATION) BILL 2008

 

 

NOTES ON CLAUSES

 

Clause 1 sets out how the Act is to be cited, that is, the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Act 2008 .

 

Clause 2 provides that the Act commences on the day after it receives the Royal Assent.

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.

 

This explanatory memorandum uses the following abbreviations:

 

  • ‘Broadcasting Services Act’ means the Broadcasting Services Act 1992 ;

 

  • ‘Land Rights Act’ means the Aboriginal Land Rights (Northern Territory) Act 1976 ;

 

  • ‘NT Amendment Act’ means the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 ; and

 

  • ‘NT NER Act’ means the Northern Territory National Emergency Response Act 2007 .

 



Schedule 1 - R 18+ programs

 

 

Summary

 

This Schedule amends the Broadcasting Services Act and the NT NER Act to require particular pay television licensees not to provide television channels that contain a large amount of R 18+ programming into declared prescribed areas under the NT NER Act.  The cessation of the television service would occur only on the request of the community and after consultation with the community, and an assessment that there would be benefit in such action to Indigenous women and children in particular.

 

Background

 

The Little Children are Sacred report by the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse (30 April 2007) raised concerns about the availability of pornography in communities and children’s exposure to pornographic material (including videos, DVDs, magazines and subscription television) in light of submissions the Inquiry received and the regional meetings it conducted.  The report noted that this exposure was a result of poor supervision, overcrowding in houses and acceptance or normalisation of this material.  It further noted that the use of pornography as a way to encourage or prepare children for sex (‘grooming’) had featured heavily in prominent cases.  At the Inquiry’s regional meetings, it was recommended that possible strategies to restrict access to pornography, generally, and by children in particular, be investigated.

 

In relation to subscription television services, the report noted that Austar was readily available in communities.  Reports have been received from field workers since the emergency response commenced confirming this situation.

 

Austar is licensed as a subscription television broadcasting service under the Broadcasting Services Act.  Austar also provides several subscription television narrowcasting services (under a class licence).  Generally, a narrowcasting service comprises ‘special interest’ programming.  Unlike a broadcasting service, which provides programming that is intended to appeal to, and be accessible by, the general public and is individually licensed under the Broadcasting Services Act, a narrowcasting service is provided under a class licence (Part 8 of the Broadcasting Services Act refers).  An open narrowcasting service is provided free-to-air, whereas a subscription narrowcasting service is provided upon payment of a fee.

 

The statutory licence conditions in the Broadcasting Services Act for a subscription television narrowcasting service are set out in clause 11 of Part 7 of Schedule 2 to the Broadcasting Services Act.

 

Austar subscribers can access its ‘Adults Only’ service, which provides two channels of R 18+ erotic entertainment programming 24 hours a day, seven days a week, on a single pay-per-view or monthly basis.  The provision of R 18+ programs under a subscription television narrowcasting licence is legal.  Using the National Classification Scheme Guidelines, a film or television program would be rated R 18+ if it is regarded as unsuitable for a child or person under 18 to see.

 

Austar’s ‘Adults Only’ service is considered a subscription ‘narrowcasting’ service, as it is a service whose reception is limited by way of access controls and by provision of programs of limited appeal.  The fact that children may be exposed to the adult erotic content provided by this service - despite the availability of blocking devices to subscribers and legal sanctions for exposing a child under the age of 16 to indecent material - is a particular cause for concern.

 

As part of the special measures in the Northern Territory, the amendments discussed below will enable particular subscription television narrowcasting services to be prohibited from being provided to subscribers located in particular communities.  This would be achieved through the addition of a new licence condition in Part 7 of Schedule 2 to the Broadcasting Services Act.  (A related amendment to the NT NER Act would be made to provide a process for determining which communities should be prohibited from accessing certain subscription television narrowcasting services.)  The Broadcasting Services Act licence condition would only apply to those licensees who:

 

  • allot more than 35 per cent of their total broadcast hours to programs that are rated R 18+; and

 

  • are subject to a written declaration made by the Communications Minister, or who have self-declared a service with the approval of the Communications Minister.

 

The amendments made by this Schedule include minor workability improvements recommended by the industry and raised by the Senate Standing Committee on Community Affairs.  Firstly, there is provision for a subscription television narrowcaster to self-declare a service.  Such a service will become subject to the new licence condition, which prohibits the provision of the service to a declared prescribed area .  Secondly, the record-keeping rules have been refined:  to provide that the rules do not apply until a prescribed area has been declared; to allow pre-broadcast data , including data in electronic form, to satisfy the record-keeping requirements; and to provide that records are not required for services that are self-declared, unless the Australian Communications and Media Authority (ACMA) determines otherwise.

 

The amendments made by this Schedule commence on the day after Royal Assent.

 



Explanation of the changes

 

Items 1 and 2 make amendments to the criminal offence and civil penalties provisions in the Broadcasting Services Act that apply to breaches of a subscription narrowcasting television licence condition.  The amendments extend the existing criminal and civil penalties that apply to such breaches to the new licence condition inserted by item 10 below.

 

Item 3 would amend the Broadcasting Services Act to provide for merits review by the Administrative Appeals Tribunal (AAT) of certain decisions made by the Minister responsible for the Broadcasting Services Act (the Communications Minister) pursuant to the amendments provided by item 10 below.  The Communications Minister’s decisions would also be subject to judicial review.

 

Items 4 to 9 would amend clause 5 of Schedule 2 to the Broadcasting Services Act.  Items 4 and 6 to 9 make minor amendments to the cross-references in the clause as a consequence of the substantive amendment proposed by item 5 .

 

Item 5 would impose a special record-keeping obligation on a subscription television narrowcasting licensee whose service is capable of being received by a subscriber in a declared prescribed area of the Northern Territory (as defined in section 4 of the NT NER Act), who broadcasts at least one R 18+ program on a given day, and who is not exempt from the record-keeping obligation.  Such a licensee would potentially become subject to the standard licence condition imposed in relation to declared prescribed areas (see i tems 10 and 16 below).  This record-keeping requirement would assist the Communications Minister to determine which particular subscription television narrowcasting services should be subject to the licence condition (due to their level of R 18+ content).

 

A licensee subject to the record-keeping requirement would need to keep records of the number of hours of R 18+ programs broadcast on that day, and the total number of program hours broadcast that day.  No records would need to be kept in relation to any day when there is no R 18+ program broadcast.  Subclauses 12(16A) and (16C) will have the effect of allowing a licensee to use pre-broadcast data for the purposes of satisfying its record-keeping obligations under subclause 5(3A) ( item 10 refers).

 

A licensee would need to retain their records for at least 120 days.  These special record-keeping obligations would sunset in accordance with subclause 12(2) ( item 10 refers).

 

The record-keeping obligations apply only to a licensee that is not exempt from the application of those obligations, unless the ACMA otherwise determines.  An exempt service refers to a licensee that is the subject of a self-declaration.  A self-declaration will be made by a person who provides a subscription narrowcasting service under a class licence and, with the written approval of the Communications Minister, declares that the service is a declared subscription narrowcasting service ( item 10 refers).

 

The Communications Minister will have the power to give the ACMA a written direction in relation to the exercise of the ACMA’s power to determine that a service is not exempt from the record-keeping obligations.  The ACMA will be obliged to comply with such a written direction.

 

This will allow the Communications Minister to direct the ACMA to require a service to comply with the record-keeping obligations, notwithstanding the making of a valid self-declaration in relation to that service.  Such a direction may assist the Communications Minister in determining whether to revoke a self-declaration if, for example, the service is no longer providing R 18+ programs in excess of the 35 per cent broadcast hours quota.  The Communications Minister may direct the ACMA to make information contained in records available to him/her for the purposes of facilitating the exercise of a power, such as the revocation power, conferred by clause 12 of Schedule 2 to the Broadcasting Services Act.

 

A ministerial direction made under subclause 5(3BA) is a legislative instrument.  A note will point out that, pursuant to section 44 of the Legislative Instruments Act 2003 , a ministerial direction under new subclause 5(3BC) will not be disallowable for the purposes of section 42 of that Act.  A further note will point out that Part 6 (sunsetting) of the Legislative Instruments Act 2003 will also not apply to a direction, by virtue of section 54 of that Act.  These notes are merely declaratory of the law.

 

Item 10 adds new clauses at the end of Part 7 of Schedule 2 to the Broadcasting Services Act.  Part 7 of Schedule 2 to the Broadcasting Services Act sets out the statutory conditions that apply to class licences, including subscription television narrowcasting licences. 

 

Licence condition for certain subscription television narrowcasting services in the Northern Territory

 

The first of the new clauses (clause 12) will impose an additional standard  condition that applies only to a licensee who provides a declared subscription television narrowcasting service under a class licence to a subscriber who is in a declared prescribed area (subclause 12(1) refers).  The process for determining whether a service is a declared subscription television narrowcasting service is set out in subclauses 12(4) to (17). 

 



Sunset clause

 

Subclause 12(2) provides that the proposed licence condition be repealed after five years, or on an earlier date (if any) specified in a legislative instrument made by the Minister.  The sunset provision is appropriate in light of the fact that this licence condition is designed to respond to an emergency situation currently in the Northern Territory.  It is appropriate to enable this special measure to be repealed as soon as the measure is no longer needed - this should be within the five-year ‘outer limits’ period specified in paragraph 12(2)(a). 

 

Subclause 12(3) provides that the Minister’s instrument to repeal the licence condition is a legislative instrument.  Accordingly, it is disallowable.

 

Subclauses 12(4) to (17) set out, inter alia, the process by which the Communications Minister is to decide whether to make, or revoke, a declaration that a particular service is a declared subscription television narrowcasting service and thus eligible to be subject to the licence condition imposed in relation to declared prescribed areas that are determined by the Indigenous Affairs Minister under the NT NER Act (see item 16 below).

 

A service may become a declared subscription television narrowcasting service if, over a particular seven-day period (known as the declaration test period ), more than 35 per cent of the program hours broadcast by the service are rated R 18+.  The term R 18+ program is defined in subclause 12(18).

 

To ensure that the declaration is timely and relevant, the Communications Minister’s decision must be made within 21 days of the beginning of the declaration test period.  A declaration made by the Communications Minister would remain in force until he/she revokes it.  The Communications Minister may only revoke a declaration if satisfied that the number of R 18+ program hours broadcast by the service concerned during a particular revocation test period is either nil or less than 35 per cent of the total hours broadcast during that period.  When revoking a declaration, the Communications Minister must have regard to the need to improve the well-being of people living in the prescribed areas.

 

In addition, new subclause 12(6A) will provide that, if a licensee provides a subscription television narrowcasting service under a class licence, the person may, with the written approval of the Communications Minister, declare that the service is a declared subscription television narrowcasting service for the purposes of clause 12.  In effect, subclause 12(6A) will permit a licensee who provides a subscription television narrowcasting service to identify the service as a declared subscription television narrowcasting service .

 

The intention is that a declaration made by a licensee in accordance with subclause 12(6A) will have the same effect as a declaration made by the Communications Minister under subclause 12(4).  Consequently, the licensee will become subject to the licence condition specified in subclause 12(1), which prohibits the provision of a declared subscription television narrowcasting service in a way that will enable a subscriber in a declared prescribed area to receive the service.  The licensee will also be exempt from the record-keeping requirements in subclause 5(3A), unless otherwise directed by the ACMA ( item 5 refers).

 

It is envisaged that a provider of an ‘Adults Only’ service, for example, would want to make such a declaration under subclause 12(6A) on the basis that the total number of hours of R 18+ programs broadcast by the service during any seven-day period exceeded the 35 per cent threshold.  The term R 18+ program is defined in subclause 12(17).

 

New subclause 12(6B) will clarify that a declaration made by a subscription television narrowcasting service under subclause 12(6A) could only be revoked by the Communications Minister in accordance with subclause 12(9).  The decision to refuse to revoke a declaration that a subscription television narrowcasting service is a declared subscription television narrowcasting service under subclause 12(9) will be reviewable by the AAT.

 

The instrument by which the Communications Minister:  declares that a particular service is a declared subscription television narrowcasting service;  or revokes a declaration; or approves a declaration made by a subscription television narrowcasting service under subclause 12(6A); is not a legislative instrument.  The instrument by which a subscription narrowcasting service self-declares under subclause 12(6A) is also not a legislative instrument.  These stipulations are merely declaratory of the law, confirming that the instrument is not a legislative instrument under section 5 of the Legislative Instruments Act 2003 .

 

Whenever the Communications Minister makes or revokes a declaration, or whenever a service is self-declared, a copy of the instrument would be published in the Gazette , so that subscribers in prescribed areas are aware of those services that may be affected by a determination by the Indigenous Affairs Minister (see item 16 below).  The Gazette is published on the internet ( www.ag.gov.au/govgazette ).

 

Any decision by the Communications Minister to refuse to revoke a declaration under subclause 12(4) or (6A) will be reviewable by the AAT.  A declaration made under subclause 12(4) or (6A) could not be revoked by the Communications Minister unless he/she were satisfied that the total number of hours of R 18+ programs broadcast by the service during a particular revocation test period is nil or equal to, or less than, 35 per cent of the total number of hours of programs broadcast by the service during that period.  For the purposes of subclause 12(10), a revocation test period is a seven-day period that occurs within the 21-day period that ends at the end of the day before the day on which the Communications Minister revokes the declaration.

 

The Australian Communications and Media Authority (ACMA) will be able to access licensee records about R 18+ programs and inform the Communications Minister accordingly.  The Communications Minister may issue directions to ACMA to facilitate the gathering of relevant information to assist the Minister’s decision-making under this clause.

 

A licensee will be able to use, in certain circumstances, pre-broadcast data , such as an electronic program schedule, for the purposes of calculating the total number of hours of R 18+ programs broadcast by a service during a particular declaration test period or revocation test period Incidental material , as defined, will be deemed to be part of a program (for example, a movie) for the purpose of making these calculations.

 

On the basis of this data, the Minister may declare, or refuse to declare, that a service is a declared subscription television narrowcasting service .  The Minister may also use this information in deciding whether to revoke a declaration made under subclause 12(4) or a self-declaration made under subclause 12(6A). 

 

Pre-broadcast data refers to a schedule of the programs to be broadcast by a subscription television narrowcasting service on a particular day .  Pre-broadcast data may be in electronic form or in a publication, such as a printed TV guide and will need to include the classification and time information necessary to calculate the hours of R 18+ material broadcast and the total number of hours of material broadcast.  The schedule of programs to be broadcast on a particular day, as set out in the pre-broadcast data , will be taken to have been broadcast by the service on that particular day in accordance with that schedule.

 

It should be noted, however, that the form in which the pre-broadcast data is made available by a service will need to be approved in writing by the ACMA. A decision by the ACMA to refuse to approve, or revoke its approval of (see subsection 33(3) of the Acts Interpretation Act 1901 ), pre-broadcast data in an electronic format, or a publication, in relation to a subscription television narrowcasting service will be appealable to the AAT.

 

Generally, pre-broadcast data does not separately identify material incidental to programs, such as advertising or sponsorship announcements.  Therefore, to enable pre-broadcast data to be used for the purpose of calculating the percentage of R 18+ programs broadcast, proposed subclauses 12(16B) and (16C) will deem such incidental material as part of a substantive program for the purpose of calculating the number of hours broadcast.  Consequently, incidental material deemed to be part of a substantive program will be given the same classification as that substantive program .  Note that this deeming provision applies for the purposes of subclause 5(3A) and clause 12 only.

 

For the purposes of subclause 5(3A) and clause 12:

 

(a)       an item of incidental material broadcast during a break in a substantive program will be taken to be part of the substantive program (subclause 12(16B) refers); and

 

(b)       one or more items of incidental material broadcast during the period beginning at the end of the first substantive program and ending immediately before the start of the next substantive program is taken to be part of the first substantive program .

 

The operation of subclauses 12(16B) and (16C) may result in some non-R 18+ material being classified as R 18+ for calculation purposes but it will, nevertheless, allow the pre-broadcast data to be used and avoid the need for licensees to keep separate and more detailed records of material broadcast.

 

Incidental material will be defined in subclause 12(17) below.  Substantive program will mean a program other than incidental material , such as a movie.

 

The remaining new clauses 13 to 15 of Schedule 2 to the Broadcasting Services Act will protect people who do things in relation to the additional licence condition from particular causes of action.

 

Exclusion of some Northern Territory laws

 

New clause 13 will provide that the licence condition in clause 12 (above) and related provisions of the Broadcasting Services Act operate to the exclusion of Northern Territory discrimination laws, and that any acts done in relation to the licence condition are lawful regardless of any contrary Northern Territory discrimination laws.

 

Similarly, new clause 14 will exclude section 49 of the Northern Territory (Self-Government) Act 1978 (which guarantees that trade and commerce between the Northern Territory and other States shall be absolutely free) with respect to the new standard class licence condition and related provisions of the Broadcasting Services Act.

 

Item 11 would make a minor amendment to clause 24 of Schedule 6 to the Broadcasting Services Act, regarding the record-keeping obligations of licensed datacasting services.  This amendment would exempt datacasting licensees from keeping records in relation to the Northern Territory special measures (refer items 4 to 9 above).  Such a record-keeping obligation is not needed for datacasting services, and this amendment would put the issue beyond doubt.

 

Amendments to the NT NER Act

 

Item 12 inserts a definition of child into section 3, being a person under 18 years of age.

 

Item 13 inserts a definition of declared prescribed area into section 3, this term having the meaning provided by new section 127B.

 

Item 14 inserts a definition of R 18+ program into section 3, this term having the same meaning as in clause 1 of Schedule 2 to the  Broadcasting Services Act.

 

Item 15 inserts a definition of subscription television narrowcasting service into section 3, this term having the same meaning as in the Broadcasting Services Act .

 

Item 16 inserts new Part 7A into the NT NER Act.

 

New section 127A sets out the objects of new Part 7A.  The first such object is to define the term declared prescribed area , which is relevant for the purposes of subclause 12(1) of Schedule 2 to the  Broadcasting Services Act.

 

New subsection 127A(2) sets out the object of this Part, when read together with new clause 12 of Schedule 2 to the  Broadcasting Services Act.  This object is to protect communities from violence and sexual abuse and should be read as a ‘special measure’ for the purposes of the Racial Discrimination Act 1975 .

 

A ‘special measure’ is based on Article 1.4 of the Convention on the Elimination of All Forms of Racial Discrimination, which allows governments to enact laws that, in a lay person’s terms, are positively discriminating so as to ensure the adequate development and protection of individuals with the purpose of securing and advancing their fundamental freedoms.  The Convention relevantly provides that:

 

‘Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’

 

The Northern Territory national emergency response recognises the importance of prompt action, as well as Australia's obligations under international law.  The Convention on the Rights of the Child requires Australia to protect children from abuse and exploitation and ensure their survival and development.  The International Convention for the Elimination of All Forms of Racial Discrimination requires Australia to ensure that people of all races are protected from discrimination and equally enjoy their human rights and fundamental freedoms. 

 

The provisions in this Schedule are intended to advance Indigenous Australians, and especially Indigenous children, living in prescribed areas, by prohibiting access to declared subscription television narrowcasting services that broadcast R 18+ content, determined by the Indigenous Affairs Minister, at the request of the community, to be unsuitable.  This response is reasonable because the prohibition is for a limited period of time, and is not intended to result in the maintenance of separate rights for different racial groups for any longer than is necessary.

 

New section 127B provides that the Minister may, by legislative instrument, determine that a prescribed area, as defined in section 4 of the NT NER Act, is to be a declared prescribed area for the purposes of the NT NER Act.  The Minister is not to make such a determination unless he or she has been requested to do so by a person living in the particular prescribed area.  The practical effect of the Minister making such a determination is that R 18+ programming provided by a declared subscription television narrowcasting service will be prohibited from being broadcast into the declared prescribed area .

 

New section 127C provides that, before the Minister can make a determination under new section 127B, the Minister must ensure that there has been adequate community consultation.  The ways in which the Minister would ensure that adequate consultation has been undertaken are listed in this section.  A failure by the Minister to consult adequately the community, in accordance with this section, does not affect the validity of a determination under new section 127B.

 

New section 127D provides a number of matters that the Minister must have regard to in deciding whether or not to make a determination under section 127B.  These matters are to ensure that the sole purpose of making such a determination is to help secure the adequate advancement of residents of the particular prescribed area and to give those residents such protection as may be necessary in order to ensure that those residents have equal enjoyment or exercise of human rights and fundamental freedoms.

 

New section 127E provides that, where the Minister has made a determination under section 127B, the determination will come into effect on the day specified in the determination, providing this is within 35 days of the making of the determination, or otherwise, on the day after its registration on the Federal Register of Legislative Instruments.  A determination under section 127B must specify an expiry date and this date must be within 12 months of the day on which the determination came into force. 

 

New section 127E also empowers the Minister to extend the period in relation to which the original determination, under new section 127B, will operate, as long as any extension is for not more than a further 12 months.  There is also nothing in the NT NER Act that would stop the Minister from making a fresh determination under section 127B in relation to an area that has already been subject to such a determination but that previous determination has previously expired.

 

New section 127F expressly provides that the Minister can revoke any determination under section 127B, prior to its stated expiry, regardless of the fact that subsection 33(3) of the Acts Interpretation Act 1901 would provide the Minister with the power to do this in any event.

 

Item 17 removes the new Part 7A from the operation of subsections 132(1) and (2) of the NT NER Act.  That is, new Part 7A is not expressly deemed to be a ‘special measure’ for the purposes of the Racial Discrimination Act 1975 , nor excluded from the operation of Part II of that Act.  New Part 7A is intended to be interpreted in such a way as to recognise that it was drafted as a ‘special measure’ for the purposes of the Racial Discrimination Act 1975 .

 



Schedule 2 - Transport of prohibited material

 

Summary

 

This Schedule permits prohibited material to be transported through a prescribed area to a place outside the prescribed area.  Specifically, amendments ensure that an offence does not apply if a person proves that the material was brought into the prescribed area for the sole purpose of transporting it to a place outside the prescribed area.  Amendments to the seizure provisions ensure that prohibited material brought into the prescribed area for the purpose of transporting it through that area is not seized, and, if seized, will be able to be returned.

 

Background

 

Part 10 of the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act) introduced offences for possessing ‘pornography’ within a prescribed area, and for supplying pornography in and to those areas.  It commenced on 14 September 2007.

 

The provisions were intended to correspond with alcohol offences.  However, the alcohol provisions provide that it shall not be an offence if a person possesses or controls alcohol within the prescribed area for the purpose only of transporting the alcohol to a destination outside the prescribed area.  An equivalent provision was not included in the Classification Act.

 

Industry has expressed concerns about their inability to transport lawfully goods via road to and from areas that are not prescribed.  For example, a distributor delivering prohibited material from Darwin to Alice Springs could be charged with possession and/or supply offences as the Stuart Highway passes through prescribed areas.  The amendments would enable Industry to carry on their business legally in areas of the Northern Territory that are not prescribed.

 

The amendments made by this Schedule commence on the day after Royal Assent.

 

Explanation of the changes

 

Items 1 to 4 insert a new subsection (2) into each of sections 101 and 102.  They provide that an offence for the possession or control of level 1 or 2 prohibited material does not apply if the person proves that the material was brought into the prescribed area for the sole purpose of transporting it to a place outside the prescribed area.  The defendant bears the legal burden of proof. 

 



Item 5 inserts new subsection (2A) into section 103.  It provides that an offence for the supply or intended supply of prohibited material does not apply if the person proves that the material was brought into the prescribed area for the sole purpose of transporting it to a place outside the prescribed area.  The defendant bears the legal burden of proof. 

 

Item 6 repeals and substitutes paragraph 106(b) so that a police officer may seize material found in a prescribed area if the officer suspects on reasonable grounds that the material is prohibited material and was not brought into the prescribed area for the sole purpose of transporting it to a place outside the prescribed area.

 

Item 7 repeals and substitutes paragraph 108(3)(b) to provide for the return by the responsible officer of seized material if the officer is satisfied on reasonable grounds that the material is not prohibited material or was brought into the prescribed area for the sole purpose of transporting it to a place outside the prescribed area.

 

Item 8 repeals and substitutes new subsection 109(3) to provide for the return by the magistrate of seized material if they are satisfied the material is not prohibited material or was brought into the prescribed area for the sole purpose of transporting it to a place outside the prescribed area. 

 



Schedule 3 - Access to Aboriginal land

 

 

Summary

 

This Schedule makes amendments to the Land Rights Act to repeal the permit system amendments that gave public access to certain Aboriginal land and which came into force on 17 February 2008.

 

Background

 

The NT Amendment Act included provisions amending the Land Rights Act to abolish the requirement for people to obtain permits prior to visiting major Aboriginal communities.  These provisions commenced on 17 February 2008. 

 

Aboriginal people and the Land Councils which represent them have voiced overwhelming opposition to the opening up of communities to public access.  The power to determine who can enter their land is viewed by Aboriginal people as an important part of their rights to land.  It is not clear how the removal of the requirement for the public to obtain permits contributes to the success of the emergency response in the Northern Territory, and it may make it easier for drugs, alcohol and people with criminal intent to enter communities.

 

The amendments made by this Schedule reinstate the permit system for major communities.  The amendments also include adjustments to the power of the Minister to make authorisations providing access to Aboriginal land to certain people for the five year period of the emergency response in the Northern Territory.  The adjustments will enable the Minister to ensure that certain people, such as journalists, can access communities under conditions.

 

The Schedule will ensure that an authorisation by the Minister under the Land Rights Act for a person to enter or remain on Aboriginal land may not extend to a sacred site.  A further amendment will allow a candidate for election as a member of a local government body in the Northern Territory to enter or remain on Aboriginal land without needing a permit.

 

The amendments made by this Schedule commence on the day after Royal Assent.

 



Explanation of the changes

 

Amendments to the Land Rights Act

 

Candidates for local government election in the Northern Territory

 

Item 1A will expand on paragraph 70(2A)(d) of the Land Rights Act so that candidates for election as members of local government bodies in the Northern Territory have a defence against the prohibition on entering or remaining on Aboriginal land.  The defence will operate while candidates are on campaign.

 

Ministerial authorisations to enter and remain on Aboriginal land

 

Item 1 repeals and substitutes subsection 70(2BB).  New subsection 70(2BB) provides for the Minister to make authorisations in relation to all Aboriginal land, or in relation to any particular Aboriginal land such as community land (see item 5 below, which provides for the definition of community land ) and  land which allows access to community land.  Such an authorisation may not extend to a sacred site.

 

Item 1 also inserts new subsection 70(2BBA), which provides that Ministerial authorisations under subsection 70(2BB) may be subject to conditions.  If a person breaches such a condition they will no longer be covered by the authorisation.

 

Item 2 is a transitional provision, which saves authorisations in force immediately before commencement.

 

Defence to entering and remaining on Aboriginal land in subsection 70(2D)

 

Consistently with the repeal of sections 70B to 70H in item 6 , item 3 repeals subsection 70(2D), which provides a defence if a person enters or remains on premises on certain Aboriginal land with the permission of the occupier.  It also consequentially repeals subsection 70(2E), which relates to definitions for the purposes of subsection 70(2D).

 

Definition of vested Aboriginal land

 

Item 4 repeals subsection 70A(1).  This is consequential to the changes to the access provisions effected by item 6 below.

 

Definition of community land

 

Item 5 amends subsection 70A(2) so that the definition of community land is for the purposes of section 70 (refer to item 1 above), rather than for the purposes of sections 70B to 70F (which are to be repealed - see item 6 below).

 



Provisions allowing public access to certain Aboriginal land

 

Item 6 repeals sections 70B to 70H.  These provisions provided for public access to certain Aboriginal land, and access to vested Aboriginal land for the purpose of attending court hearings.

 

Item 7 repeals paragraph 73(1)(ba), which related to the power of the Northern Territory Legislative Assembly.  This change is consequential to the repeals effected by item 6 .

 

Aboriginal Land Act (Northern Territory)

 

Item 8 repeals section 74AA of the Land Rights Act.  Section 74AA currently overrides subsections 5(5) and 5(6) of the Aboriginal Land Act (Northern Territory) to the extent that they allow a Land Council to revoke a permit issued by the traditional Aboriginal owners and vice versa.

 

Amendment to the NT NER Act

 

Item 9 amends subsection 35(1) of the NT NER Act to delete the references to sections 70C to 70G of the Land Rights Act.  This change is consequential to the amendments effected by item 6 above.

 



Schedule 4 - Community stores

 

 

Summary

 

This Schedule makes sure that, if a community is substantially dependent upon a roadhouse for the provision of groceries and drinks, the roadhouse may be licensed as a community store.

 

Background

 

The meaning of community store is set out in section 92 of the NT NER Act.  Paragraph 92(2)(b) excludes roadhouses from the definition of community store, with the consequence that roadhouses are not subject to the community stores licensing arrangements contained in Part 7 of the NT NER Act.

 

There are a number of communities in the Northern Territory (located on or near major highways) which are largely dependent on roadhouses for the provision of grocery items and drinks.  In these communities, the roadhouse effectively performs the function of a community store.  Given paragraph 92(2)(b), it is not currently possible to license those roadhouses which de facto are providing similar services to community stores, and this will make it more difficult to introduce income management in those communities.

 

The amendments made by this Schedule commence on the day after Royal Assent.

 

Explanation of the changes

 

 

Item 1 amends paragraph 92(2)(b) of the NT NER Act by adding a qualifier, which would mean that a roadhouse can be regarded as a community store, and hence be subject to the licensing arrangements, in circumstances where a particular community is (or communities are) substantially dependent upon the roadhouse for the provision of grocery items and drinks.