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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
10/08/2007
Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 and four related bills concerning the Northern Territory national emergency response

CHAIR —Welcome. Do you have any comments to make on the capacity in which you appear?

Mr Calma —I am also the Acting Race Discrimination Commissioner.

CHAIR —Thank you. I now invite you to make a short opening statement at the conclusion of which I will be inviting committee members to ask questions.

Mr von Doussa —HREOC welcomes the opportunity to make a submissions to the committee today. We have in recent moments given you a written submission. I regret that time did not permit us to get it to you in advance. I do not wish to speak at length to that, but simply to record that HREOC welcomed the recognition by the government of the serious, broad-ranging social and economic disadvantage which exists in many Indigenous communities. We share the view that has been expressed by others this morning that this presents a historic opportunity to deal with a national tragedy.

HREOC strongly supports the aims of the legislation, namely to improve the wellbeing of Indigenous communities in the Northern Territory. However, we would like to stress that the legislation and the action taken under it must seek to achieve its goals consistently with fundamental human rights and, in particular, the fundamental right of racial equality. HREOC does not support the bills insofar as the measures seek to exempt them from the Racial Discrimination Act.

The laws plainly impact to a significant extent—almost entirely, in some instances—on Indigenous communities. It is inevitable that there will be discriminatory effects. The laws generally must, therefore, be justifiable as ‘special measures’, taken for the advancement of Indigenous people, to be consistent with human rights principles. As a general proposition we take the view that, if the measures cannot be justified as ‘special measures’, they should not be enacted.

HREOC submits that 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 consider 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. In section F of our submission, towards the end, we deal at length with 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.

It seems to us also—and we deal with this in section E of the submission—that, with the haste with which this legislation has been put forward and the complexity of it, it is highly likely that there will be areas where measures taken do impact in a way which is not beneficial to the communities that the measures are intended to assist. Some of these things perhaps can be anticipated at this stage, at least as potentials. Others might be quite unexpected at this stage. We have identified in the paper a number of issues where we see the potential for the measures working in a way that is not constructive. We, therefore, put the argument that this is a case where it is crucially important that there be ongoing monitoring of the effects of the legislation and its implementation. We make a plea for a parliamentary review to be held within 12 months, by which time the major impacts of this legislation should be apparent. We think there needs to be a proper public review so that, where disadvantages in the system are identified, steps can be taken for legislative amendment and improvement to increase the prospects of this legislation achieving its stated aim.

CHAIR —Mr Calma, do you wish to make an opening statement?

Mr Calma —Yes, just to support what the president has said but to also point out that it is unfortunate that everybody sees this as a once in a lifetime opportunity, particularly when we are celebrating the 40th anniversary of the 1967 referendum, when the federal government has had the opportunity for the past 40 years to be actively involved in Indigenous affairs. This once in a lifetime opportunity cannot be just for the duration of this exercise. We need to look at measures that will be sustainable, and that will only happen if Indigenous people are involved in the process. We need to learn from whatever experiences are gained in the Territory. We cannot persist in having report and review after review and taking no notice of them, running COAG trials and not taking notice of the evaluation of those trials and not learning the lessons that we could have learnt, both positive and negative, from any of those. Let us take this as an opportunity to progress.

You will also see in our submission—I believe it is around paragraph 82—that we strongly urge the government to consider dedicating some funds to provide human rights education to Indigenous Australians, as the government has done in providing human rights education for Muslim communities as part of the national action plan. We have been pushing this with the government for the past three years and, as yet, have not been able to get any satisfaction.

Senator LUDWIG —It is always worth while to have your submission before us. One of the critical issues which you raised was the need for a review. The matter has now occurred and you seem to suggest that the matter needs a review. You have mentioned a Senate committee. Is it broader than that? In other words, do you accept that all of these parts need review? As to how that review is conducted, we need to ensure that there is a comprehensive review. Are you saying that a Senate committee would be the appropriate way of going forward or are you saying there are also broader ways?

Mr von Doussa —The submission we have put forward is that there be a Senate committee. It seemed to us that, firstly, it would be a public hearing where people can make their contributions by way of submission and, secondly, because it would be a Senate committee, it would already be in the parliamentary process in terms of recommendations about changes, improvements and so on that may arise. In addition, we have suggested that the committee be assisted by a group of experts who would also have a monitoring function. We have made some broader suggestions about the composition of that group, but it would be a group which had significant Indigenous representation, mental health contributions and somebody expert in trying to benchmark the success of projects like this. So there would be an ongoing process through a monitoring committee, which would report periodically to the parliamentary committee or to parliament. Then there would be a 12-month review, at which stage, insofar as there may be downsides to all of this, they will be apparent, and appropriate consideration could be given to amendments that will better achieve what is intended.

Senator LUDWIG —The other matter you mentioned is the need for consultation. If I juxtapose that with the report in 1995 about alcohol—I am sure you are familiar with that—and then move forward, it seems the point you make in your submission is that it is never too late to consult. Also, that there is now an opportunity for the government to consult, if they have not consulted sufficiently, or an opportunity to encourage them to continue to consult where they have started that consultation process, and to ensure that, within a short while or as soon as possible, they can communicate their measures? Am I right about that? That will, in some part assist—I do not know to what extent—in ensuring that the matters that fall under this bill are special measures?

Mr von Doussa —Yes, I think you have summed it up. It is rather a better-late-than-never approach. But it does seem to us that the legislation provides a framework that could be consistent with special measures in almost every respect. Whether it is or not really depends on the process that lies behind it. Regrettably, there has not been significant consultation and input from Indigenous communities in advance, which you would normally expect with a special measure, but it seems to us that it is not too late to have the consultation now and ensure that the administration of the act is designed and implemented in a way that advances the aims of the legislation in ways where the communities have some input in designing measures that meet their aspirations.

Senator LUDWIG —That is very helpful to understand. The task force will be here this afternoon, so we can ask their view on that as well. The next area goes to some of the individual measures, like the permit system. Do you have a particular view about how that should work now, given the way the bill addresses it?

Mr von Doussa —I think Mr Calma can speak from the more immediate reports that he gets about the downside of this. It seems to us that this is one of the areas where there is a real risk that it might not work to the advantage of the communities and there may be a need to modify it quite rapidly.

Mr Calma —Our general position is that, firstly, we cannot see the link between the extinguishment of permits and child abuse. As I covered very clearly in the native title report in 2006, when we looked at the issue of permits, and in our submission, there is no evidence to demonstrate that any government officials have been restricted from participating in any community activities in allowing them to perform their official functions. We have seen the abuses of permits already, where you get fishermen, hunters and general visitors who want to go to communities for an experience. Our grave concern is that, firstly, there is every potential that those visitors could be doing anything in communities—so that is a bit of a problem; and, secondly, if our major concern is to look at law and order issues—and we fully support that, and we support additional police in the communities—we do not want police to be diverted in their attention and have to be out there trying to police the roads and all those who are off the roads.

Last Monday night I met with the Laynhapuy homeland group in Arnhem Land. One of their grave concerns, which has been expressed by many others, is that once the roads are opened, whilst the intention might be that the major road is permit-free and there is an expectation that you require a permit once you get off that main road, most people will not honour that and they will find any dirt road and look for fishing or shooting spots. The concern of many Aboriginal people is that there is a potential that people could be out there recreationally shooting—they referred particularly to pig shooters—and that could create a danger for Indigenous people who are hunting.

Senator LUDWIG —You may not have had an opportunity to see this, but I note that the police federation said in their submission that the changes to the permit system were unwarranted and that the police on the ground indicated that they believed the permits are a useful tool and that the government’s proposed changes will make it more difficult. Do you have a view about that?

Mr Calma —I would fully endorse what they are saying—I outlined some of the reasons. That is really the only way that Indigenous communities can control who goes out there, including the unscrupulous. As people with a sales background will know, the experience in the Territory—I am a Territorian and have worked under the permit system since its introduction in 1976—is that that is really the only way that communities can control the undesirables from going into the communities.

Linked to that, the other measure that is missing in this whole incursion into the Territory is the need for the volunteers and other public sector workers who are going out there to undergo police checks themselves, and the child safety checks that they currently administer. If that is going to be administered by the local police, that will be another impost, and there is the question of whether they have the skills to do that. We are just introducing a whole range of new people who may have the best intent to work in communities, but, as was pointed out in the Anderson-Wild report, many of the perpetrators of child abuse are in fact non-Indigenous people and people who are in those communities for an official purpose or another purpose.

Senator KIRK —Thank you very much for your submission. I am trying to have a look through it now. I would be interested to find out your view in relation to section 132 of the national emergency response bill. The first subsection of that, if you have it in front of you, is the one that purports that the measures amount to special measures under the legislation. I am interested in your view about the effect of subsection (2) and whether or not that is necessary. That is the section that purports to exclude entirely the acts under this legislation from the operation of part II of the RDA.

Mr von Doussa —That is a matter of concern to us, and we have expressed that concern, because it puts the act to one side. In terms of Australia’s international reputation, it seems to us that that would be a very unfortunate thing to do. If these measures fulfil their requirements of being special measures, you would not need that. As I said earlier, the acts have the framework appearance of being consistent with a special measure and it is a question of the process. There has not been consultation up to date, but that could possibly be rectified now.

There is a problem in section 8(1) and section 10(3) of the Racial Discrimination Act, dealing with the management of lands. That was advanced by the department this morning as the reason for subsection (2). It seems to us that that requirement of the RDA could have been met by appropriate consultations and consent. Again, consent has not been obtained in advance, which the act would anticipate, but consent after the event would be better than no consent. That seems to us to be a problem. The other side-effect of that, of course, even if the explanation is section 10 through the RDA, is that it has the effect of exempting acts done in the course of the administration of this legislation, so that any discriminatory act by a bureaucrat or someone else in the administration of otherwise justifiable provisions will be outside the scope of the act.

Senator TROOD —Thank you for your presentation and the paper, which I have been trying to get my head around quickly. In relation to your proposal for a review proposal after 12 months, one of the points that the government makes about the overall package is that it is a staged intervention: it runs through stabilisation, normalisation and then the longer term. It seems to me that 12 months is not going to carry us very far in the overall process of trying to address the concerns that exist in these communities. In that context, do you think that 12 months is rather early to have a review of the process?

Mr von Doussa —We accept that it is a staged process and that there are aspects of this that will happen in 12 months time. But it did seem to us that the section 31 leases would have impacted. It would be clear by that stage how they were operating. Some of the welfare provisions would then be in force. It just seems to us that it would be undesirable to leave it for too long in case some major problems come to light. The sooner they are addressed the better. It may be that what we have suggested needs to be expanded—to have a review in 12 months and in 24 months—but it seems important to us to not defer it for too long in case the opportunity for identifying, discussing and considering amendments for issues were put off.

Mr Calma —One of the specific elements of a special measure is that it can only be in force for the duration, until the objective has been reached. One of the concerns is that there are no benchmarks, no baseline data, so that we can, in human rights terms, look at progressive realisation—that is that, over a period of time, we can see that there has been some advancement. Unless there is any mechanism in place to measure that, it will not happen. Our suggestion for the Senate committee was as much about the bipartisan approach that is currently being demonstrated, and that needs to be extended all the way through this process.

Senator TROOD —Did you have in mind certain benchmarks, Mr Calma, that might be appropriate? For example, there is one with the five-year lease—after five years, or indeed earlier, the land or property that might be resumed is returned to its original owners in the way it was previously. So there is a benchmark there.

Mr Calma —That could very well be a benchmark. There are a couple of issues. One is that if we look straight down the line of addressing child abuse, which is one of the measures, how do we know what has been addressed and what programs are in place? The data that people were referring to from the Australian Institute of Health and Wellbeing shows that 12 in 1,000 Indigenous people in the NT are reporting child abuse or neglect. It does not get down to the specifics. So do we see in one year or in 10 years time whether we have reduced that benchmark? Part of the whole idea of a review—and one can only assume that what we learn here is not just going to be pertinent to the Territory—is that since the new arrangements for Indigenous affairs were put in we were to have the whole-of-government approach; we were to have much more coordination in our efforts. A lot of that has not taken place. So this is looking at both the existing measures to address child abuse and the broader issues of addressing the wellbeing of Indigenous peoples.

Senator TROOD —The implementation group has obviously got that on its agenda into the future. Concerning the special measures matter, the government’s position, as I understand it, is that this program of activity includes things such as prosecuting criminal activity that has not previously been prosecuted, encouraging children to return to school where they have not previously been attending and addressing questions of alcoholism, of children and women at risk and of inadequate housing in these communities. Overwhelmingly, I would have thought there was a case for benefit to the community by these actions. We are breaking new ground here. It seems self-evident that there is an overwhelming benefit here for the community which must justify the case for special measures.

Mr von Doussa —As I think I have said, the legislation has the framework of a special measure, but the outcome, I think, will depend upon the processes that are involved in it. If these measures are introduced with discussion with the communities and the communities understand what is going on, there is a fair chance that these things will work beneficially. On the other hand, if the community does not understand them, the processes just become another cause for concern, fear, depression and so on and it is going to have a counterproductive effect. For example, if the alcohol provisions turn out at the end of the day to put a lot of people, because of fines and things, back into the justice system so you get into that terrible bind of contact with the police, resisting arrest, being charged, imprisonment et cetera and the end result was to put up the prison population of Indigenous people markedly, that would be a really serious downside and you would need to deal with it quickly. It is those things that we think need to be the subject of review and, if they happen, then what looks like a good special measure might not actually be working as one.

Mr Hunyor —The commission, in its submission, at paragraph 28, acknowledges that it is appropriate to look at the package as a whole when determining if it is a special measure. But it is still necessary for its parts to be appropriate and adapted for the purpose. There may be parts—and this goes to the need for the monitoring and review—that are not appropriate and adapted to this purpose and that is why careful attention needs to be made. We have noted some of the areas of concern that have been raised by Indigenous groups as to things that they say are not appropriate for this purpose.

Senator SIEWERT —I would like to pick up from there. It seems to me that there could be an argument that the government is changing the definition or the understanding of what a special measure is. The argument being put to us is that in fact these special measures may not have to be for the benefit of the Aboriginal community. If that is the case, what does that mean in terms of Australia’s understanding of the definition of a special measure and that that is internationally accepted?

Mr von Doussa —I do not think it has any bearing on that at all. International human rights law is plain. It sets out a number of things that are expected of a special measure. One of them is consultation and participation in an Indigenous community. If that has not happened it is not going to change the international understanding of what a special measure is. It just means that there may be an argument that this one, for one reason or another, is not meeting this test.

Senator SIEWERT —Sorry, I have obviously stated that badly; I did not mean how it would change the international definition. Let me put it another way. How do we relate to the convention if we are using a different definition of what is a special measure to that which is the commonly accepted definition through the international convention?

Mr von Doussa —The act does not purport to define ‘special measure’, and I do not understand that the government is suggesting that a special measure is anything other than the internationally understood concept. It is just a question of whether, in the processes that have led up to the legislation, there has been adequate consultation to fulfil the general understanding of what a special measure is.

Mr Hunyor —Senator, I think the purpose of the provisions in relation to special measures in the legislation is effectively to deem that these are special measures, and so, to avoid the question of whether or not they in fact are, it deems them to be. We do not expect that that would have a flow-on effect in law. It may have a broader effect on how those concepts are understood, but, in our view, it will not have an ongoing legal effect.

CHAIR —Thank you, Senator Siewert. I appreciate that. Senator Bartlett.

Senator BARTLETT —Given that some areas have been covered by other people, I want to ask about the welfare measures and quarantining payments. We have not had much chance to look at those today. You touch on them a bit in your submission but I am wondering whether you examined them in the context of the way they are applying in the Territory, which is universal for everybody in designated communities, as opposed to the way they are being proposed to apply for the rest of the country and, within that, the way they are being proposed to be applied in Cape York. Are there any problematic aspects about that, from your point of view?

Mr von Doussa —I have to say I found that part of the act very complex. One of the difficulties there is that that is an area of the legislation which is plainly discriminatory in the sense that it impacts on Indigenous people where it is not impacting on others, so there is a significant onus on those who propound the legislation to explain why it is so much in the interests of the Indigenous people that it overrides the human rights issues that are involved. There is a balancing exercise. Again, we find it difficult to express a firm view about that because the outcome is going to depend upon the way in which that legislation is explained, the background information that is available to the communities, the discussion that occurs with them and then the way in which, in each individual case, it is administered. It is encouraging to see—I think it is section 123TE—the matters that the minister must take into account before he declares a particular area as a relevant area. Those matters do address consultation with the community in advance of declaring a particular community subject to those provisions.

Senator BARTLETT —With regard to the principles you apply, you have spoken about the issue of informed consent and consultation, certainly in relation to special measures but also, I think, more broadly. Does that apply in terms of the individual people affected, which is how it is going to apply for the rest of the country, including Cape York, as opposed to in the Territory, where it is going to be whole communities, en bloc, having a measure applied to them?

Mr von Doussa —As I have said, there is an element of discrimination involved in that. Can you justify it overall? I think at the end of the day that will depend on how it is administered. But you are quite right: for a 12-month period or for any extended period thereafter for which that operates, it is a fairly harsh measure. But the harshness will depend upon how it is administered. Plainly, it is anticipated by the legislation that—and, as I understand it as to what the government proposes to do—it will consult with individual people as to how that is to operate in each individual’s case: how the money is to be made available for the purposes for which it is intended and so on. That might all work quite well at the end of the day. On the other hand, it might be a disaster, and that is why we think that it is necessary to look at this sooner rather than later and preferably monitor it.

CHAIR —Senator Bartlett, we are pretty much out of time. Do you want to ask one last question? I am happy to allow that. Otherwise, we will go to the Alice Springs and Katherine mayors, whom we have on the line.

Senator BARTLETT —I want to ask about the consultation in putting this together. Witnesses, my understanding, from your statements and certainly from the statements that I have seen elsewhere, is that there was not any engagement with any of you in putting this together. I appreciate there was urgency and the like; nonetheless, it does perplex me, given there were six or seven weeks in which this was put together and there would have been some possibility of even a limited consultation or seeking of views. Has there been any effort to seek your opinions?

Mr von Doussa —We were not consulted before 21 June, when the major announcement occurred.

Senator BARTLETT —I appreciate that.

Mr von Doussa —We were given a briefing as to what was proposed shortly thereafter, but we were not otherwise closely involved in the preparation of any of these matters.

Mr Calma —I was not involved at all. This is the frustration, given the social justice reports that I provide to parliament each year and that are tabled. One was tabled on 14 June this year. It clearly outlines ways in which governments should consider engaging with Indigenous people, based on international best practice. A lot of that has been totally dismissed. Unless we set up a significant review process and make sure that we do follow that through, we will find again another endeavour where Indigenous people will be blamed for the failure if it falls over.

CHAIR —I thank the representatives of HREOC for being with us today and also for the submission that they got to us. We appreciate that.

[11.42 am]