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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 on the capacity in which you appear?

Mr Webb —I can let you know that the two people who will shortly be on the line are Mr Nick Parmeter, who is a contract policy lawyer with the Law Council and who is in Vanuatu at the moment, and Ms Raelene Webb—no relation—who is a QC practising at the Northern Territory Bar and who has long experience in Aboriginal land rights law, native title law and constitutional law.

CHAIR —Mr Webb, I now invite you to make a short opening statement, after which we will ask some questions.

Mr Webb —We provided the committee with a submission late last night. I am sure that you have a lot of reading material there. The concerns expressed by many other groups and witnesses about the radically truncated parliamentary process for these bills are shared by the Law Council, particularly as the council believes that many aspects of the bills seriously discriminate against Aboriginal communities in the Northern Territory.

We have distilled our submission into four key points, which I will quickly run through: (1) the provisions regarding changes to the permit system, which we suggest should be excised from the legislation and considered outside the context of any emergency response; (2) the provisions concerning compulsory acquisition of Aboriginal land are discriminatory, unnecessary and should be excised from the legislation—individual Aboriginal communities should be consulted and asked to assist and participate before compulsory acquisition could be contemplated; (3) the provisions banning consideration of the cultural background of an offender in bail and sentencing matters are discriminatory, dangerous and should be removed from the bill; and (4) the provisions for just terms compensation place significant restrictions on any obligation of the Commonwealth to compensate Aboriginal people on just terms—those restrictions are discriminatory and cannot be justified in this emergency response.

CHAIR —Do we have Ms Webb or Mr Parmeter on line?

Ms Webb —Yes, I am on line now.

CHAIR —Welcome, Ms Webb. Mr Parmeter is not yet on line. Ms Webb, do you want to make an opening comment, or are you happy for us to start with questions?

Ms Webb —I am happy if we go straight to questions.

Senator TROOD —Mr Webb, in relation to the permit system—I note your observation about it being discriminatory—we have had evidence this morning about those communities where there is not a permit system in place and those where a permit system is indeed in place. Does the Law Council have any information about the way in which the communities where the system is not in place are either more functional systems or have a greater degree of economic activity? In other words, there seem to be communities that work perfectly well without a permit system, where it seems to be no part of the general management of the community and does not seem to be necessary for the good management of the community. Do you have any observations on that?

Mr Webb —I do not personally have any knowledge of this. In the time available, we have not canvassed that sort of issue within our relevant committee. I understand there was some evidence about that this morning, and I have been given a very abbreviated outline of what some of that evidence might have been. I could only speculate—which would not be useful—about why it is suggested that some non-permit communities on the Sturt Highway, I think it is, according to the testimony of the mayors of Katherine and Alice Springs, are doing economically well. My unhelpful speculation about that would be that perhaps their location on the Sturt Highway may be a natural economic advantage to them, whether they were permit based or non-permit based. But I do not really have any particular insights into that. Perhaps I could defer to Raelene, who lives in Darwin and may have some more grassroots experience she could bring to your attention.

Senator TROOD —I was going to ask, Ms Webb, whether you had a perspective on this matter.

Ms Webb —Yes. I cannot really give a personal comment on whether communities with and without permit systems operate on a different economic level. With respect to the more remote communities, they, of course, are, as Mr Webb said, away from the mainstream travel. They are on Aboriginal land. The difference between communities that operate with permit systems and those that operate without is that the communities on Aboriginal land are on freehold land. One of the underlying elements of freehold is that the owner of the freehold can exclude, at common law, whoever goes onto it. So the permit system is in fact something that allows people to go onto Aboriginal land where they otherwise would not be able to do so. So that is one concept to recall. Where you have a community operating without a permit system, that is because of the structure of the community and the nature—

The teleconference was interrupted—

CHAIR —Mr Parmeter, welcome to the committee hearing. We are well underway. We are just having some questions. Please proceed, Senator Trood.

Senator TROOD —Ms Webb, could you complete your response please.

Ms Webb —I was just explaining the difference in the communities that operate without a permit system. That is related very much to the nature of the land on which they are situated. So they are not located on Aboriginal land, where there is, at common law, under the grant of fee simple, a right to exclude people. The permit system in fact allows people onto the land, and that is the basis of it.

Mr Parmeter —Could I add to what Ms Webb has put on the record. I have been watching some of the evidence which has been put before the committee today and, in relation to the permits, the fundamental submission that the Law Council is making and has made in the past is that the changes need to be considered outside the context of this emergency response—that is, we do not consider the permit system or the issues that the minister or the government are trying to address by changing the permit system to be things which need to be addressed in the context of this response. There needs to be a broader public debate about whether or not these changes are going to work and whether or not Indigenous people actually want the changes as they currently are being suggested.

Senator LUDWIG —I will come back to that in the moment. Another matter is the way the legislation will affect appeal rights under the Social Security Appeals Tribunal and the Administrative Appeals Tribunal. Have you had an opportunity to look at that section and, if you have, do you have a view about it?

Mr Webb —I might ask Mr Parmeter to comment on that. I think he is the only person who has actually got to the end of the 500 pages!

Senator LUDWIG —Congratulations! It is not easy.

Mr Parmeter —I am afraid I will have to contradict Peter on that; I have not actually managed to get to the end of the 500 pages. The issues relating to the social security legislation are of concern to the Law Council. Given more time to consider them, I think we would have some extensive comments to make, but I would not like to at this stage engage in any speculation about the provisions without allowing our Indigenous legal issues committee the opportunity to consider the changes and what their impact will be.

Senator LUDWIG —The committee is reporting on Monday. If you do have a view, it certainly would be welcome in the next day, but if you do not think you can get a response I do understand that. Everyone is faced with that same tight, if not impossible, time line. I guess the broader question is about how the interaction of just terms operates with the Territory, particularly how the five-year leases will ensure that the compensation in the way the legislation provides will be provided. Some of the submitters today also referred to, and questions were asked about, whether the provision of these services may be taken into account in determining compensation. Does the Law Council have a view about how that would operate? In your submission you refer to the interaction between section 122 and just terms, and there are two High Court cases that go to that very point. The other, broader matter—I guess, the policy issue—is not only how that will operate but the way the Commonwealth may broadly take into account the provision of this amount of money to the Northern Territory as a provision of services, or maybe to offset any just terms compensation.

Ms Webb —If I may, I will answer at least some of that. As to whether the provision of services may be part of just terms compensation, I think that is a very debatable issue. It is not something that I am aware of having been considered, but there are many cases regarding what just terms compensation is. I think the more fundamental difficulty with the compensation provisions is that there is not at all any surety that they are going to apply to these compulsory leases and indeed to changes to the permit system. Changes to the permit system in themselves could fall within the acquisition of property because that is taking away a fundamental part of the ownership of land. The concern about the application of the compensation provisions is that nowhere in the bill or in the legislation does it say ‘compensation will be paid’ or does it provide a mechanism for compensation. What is said and what is reinforced in the second reading speech is that compensation will be paid for required contributions. The difficulty with that is that there is a High Court authority from 1967 which says that just terms compensation under the Constitution does not apply to section 122 territories, which the Northern Territory is.

In a later case, the High Court qualified that to some extent by saying: ‘If it can be supported or if it is supported under another head of power, then compensation is paid and section 51 does apply,’ because what the head of power relied on there was the external affairs power. The difficulty is that, if you look to the second reading speech, the Commonwealth is relying on the Territory’s power. If it is the Territory’s power that supports these parts of the legislation and no other head of power is referable—which, arguably, is the case—then compensation would not be required under the Constitution and the legislation would not require payment of compensation. That, to me, is the most fundamental difficulty. If compensation is payable, in my view, the legislation should clearly state that.

Senator LUDWIG —Yes. I see that point. It really goes to a question of whether the legislation sets out that reasonable compensation will be paid. I guess that is the point when you look at section 60, subsection (2). If you understand that, on one outcome, if section 122 of the Constitution as a wide plenary power is accepted, it may not mean that just terms under section 51 applies. Therefore, what you are left with is compensation being paid not on just terms—because that would be excluded—but on reasonable terms.

Ms Webb —With respect, I think that section is a bit ambiguous—

Senator LUDWIG —I am not arguing that.

Ms Webb —To pay compensation under the Constitution, then reasonable compensation will be paid. I think one is dependent on the other in the way it is worded at the moment. That is a very big concern.

Senator LUDWIG —I see: you think that it could be conditional. That is certainly one way of examining it as well. We will have an opportunity of putting a question on notice to the department to clarify that. There could be at least three distinct possibilities: first, obviously section 51 does not apply; if it does not apply, then you are left with reasonable compensation being determined by the government and you are left with no basis; or, as you have said, it could be taken to be a little bit ambiguous.

Ms Webb —Part of the concern is that, in the second reading speech, it is repeated twice that compensation will be required under the Constitution. It is there with no reference to reasonable compensation. It seems to be limited to: if it is required to be paid under the Constitution. It is a very serious concern.

Senator LUDWIG —If you go to section 134 in the EM, it then goes on to say:

Therefore, where an acquisition of property that occurs as a result of the operation of the terms of this bill is excluded from the requirement under subsection 50(2) of the Northern Territory (Self Government) Act 1978 ... subclause 134(2) nevertheless requires the payment of a reasonable amount of compensation.

I am not sure whether that impacts on your earlier interpretation of section 60(2).

Ms Webb —It is interpretation of the words of the legislation that the court will look to, although the explanatory memorandum is just that. The words of the legislation are, I think, clearly deficient at this point.

Senator LUDWIG —That is helpful.

CHAIR —Could I just interrupt. FaCSIA are monitoring the evidence today. I advise the people who are monitoring the evidence that clarity on that particular matter may be of assistance. If they would like to advise us of their response to that query about compensation on just terms later today, that would be appreciated.

Senator BARTLETT —I am interested in your view on the pornography measures in the bill, leaving aside whether or not you think they are appropriate from a child welfare point of view. The restrictions, as I understand them, amongst others, will prevent material that is able to be lawfully downloaded on a computer anywhere else in the country from being downloaded on any computer that happens to be in a designated Aboriginal community in the Territory. I am informed that, whilst the publicly funded computers will be checked for this, private ones will not be checked, but it would still be technically illegal. I wonder whether that is valid in a legal sense. It strikes me as quite unusual to have something on your computer that is legal in one part of the country and not in another part of the country.

Mr Webb —We have not looked very closely at this, I must say, but as far as nationally consistent public policy is concerned it is unusual to have a law, particularly a criminal law, applying in a regional sense rather than a national sense in relation to those sorts of matters. Clearly, also from what I understand, the ban—if we can call it that—will itself be time-limited in some sense and may expire in five years time or at the conclusion of the leasehold arrangements that might be imposed. It is quite difficult to work out in a public policy sense why that should be the case. It is either worthy of the legislature’s continuing attention or not at all. It is very difficult to work that out. Again, my recollection is that the offence provisions seem particularly strong. Some of the penalty provisions are very high and, it would seem, probably out of kilter with what one would normally take to be the sorts of penalties that should apply for offences of that kind. I do not know whether my colleagues have anything to add.

Ms Webb —I would just like to add to the question on pornography. It is my understanding that in terms of the Northern Territory report, it was not so much about pornography on computers—in fact, I think that did not even raise a mention. The real concern in the communities was pornography being broadcast on a couple of television channels—or what was viewed as pornography or seen to be pornography in the minds of those in the community—and the availability of DVDs. The measures that go to the downloading of pornography off the internet onto a computer certainly were not mentioned or even raised, as I understand it, in the course of the inquiry.

Senator SIEWERT —Could you comment on the breadth of the powers given to the minister, including those that appear to allow the minister to amend legislation passed by the parliament, through regulation?

Ms Webb —Might I say that I am probably quite speechless on this. I find it quite extraordinary. There is indeed a view that there is a difficulty with that in terms of the institutions of government, as we understand them, under the Westminster system, where a minister can amend legislation, in essence. I would have to give some more thought to that. I am happy to do so, but certainly there is a serious concern with that. The normal approach to legislation or amendment to legislation is that it is subject to the scrutiny of parliament and not just at the decision of the minister.

Senator SIEWERT —If you could provide more information, that would be much appreciated. We have a very short time frame so I appreciate that that is going to put you under a lot of pressure.

Ms Webb —Yes, certainly, I will do what I can.

Senator SIEWERT —I am looking at the amendments to the Australian Crime Commission Act. As I understand it, these give the Crime Commission the same powers to investigate violence in Indigenous communities as there are for investigating organised crime, which would therefore entail covert operations and compelling people to give evidence. Do you have an opinion on these? Are these appropriate levels of powers for investigating Indigenous violence?

Ms Webb —From my point of view, no. One of the things that struck me about the inquiry that was conducted was that communities were very open and very willing to expose the issue and to look at what needed to be done. I think the heavy-handedness of this kind of approach will have the reverse effect. Where people would have been more prepared to be open and willing to address and to try to resolve these issues, it will in fact cause a resistance that may not have been there before. If we had questions of these types being asked in any community the wall of silence would be there. I think these are issues that need to be dealt with very sensitively and very carefully. I think that a heavy-handed Crime Commission approach would have a negative impact rather than a positive one. That is my personal view.

Senator SIEWERT —Thank you.

Mr Parmeter —I might add to that that last year the Law Council did write to the Australian Crime Commission and to the minister for justice advising of its concerns about proposals to extend Australian Crime Commission powers to investigating sexual crimes and violent crimes in Aboriginal communities. The chief concerns that we raised were that the powers that the Australian Crime Commission has are not very well adapted to that kind of an investigation. We understand that the Australian Crime Commission largely deals—and quite effectively deals—with investigations against organised crime in urban areas and those sorts of much more organised and much more sophisticated kinds of criminal networks. We are talking about crimes in small communities where there has not been any indication or proof that there are any kinds of crime rings occurring. There is a real sense that these powers may be used or misused to intimidate to the detriment of the communities that they are supposed to be helping.

Senator STEPHENS —Mr Webb, I want to go to an issue in your submission. I refer to the points you are making in paragraphs 74 to 77 around community service entities and the obligations that are described under sections 67 and 68. Is it your interpretation that, as you suggest under paragraph 77 of your submission, if a CSE—defined quite broadly in this legislation—owns, controls or possesses an asset defined to be movable personal property the minister may give a direction for the transfer of that asset to the Commonwealth or a specified person? To what extent would you see that applying?

Mr Webb —Do you mean the incidence of it or the sorts of examples where the minister might want to exercise that power?

Senator STEPHENS —Yes.

Mr Parmeter —I will ask if either of my colleagues has a view on that.

Ms Webb —I am not able to say the extent to which that might apply under this legislation. I might indicate that already some Aboriginal associations, in relation to other aspects—some of them commercial and some of them for the provision of services—have had a variety of funding from both the Commonwealth and the Northern Territory governments. There is a concern that the act will be there without any differentiation between those that had been obtained through commercial enterprise and those that had been obtained through funding, and that those will be transferred. That is very much a matter of concern. Here we may well have organisations or associations who have been successful, worked hard and acquired assets and may well lose them under this type of legislation.

Senator STEPHENS —In relation to the winding back of the CDEP program, would it be fair to say that the assets that have been built up by communities through the CDEP program would be the kinds of assets that would be affected under this clause?

Ms Webb —Yes, I think that is certainly the case. It may be that those assets have been partially funded by CDEP funds or Commonwealth funds and partially funded by commercial enterprises or commercial activity, but they will be caught up with it.

Senator STEPHENS —The obvious thing would be perhaps vehicles or buildings but, in terms of the application of this, can you give us a clue as to how far this kind of clause would drill down into the assets? Is there a legal definition of a substantial asset or a value?

Ms Webb —I think the asset is defined, but I have not looked closely at this part of it. It is ‘movable personal property’, which seems to be an anomaly in itself, but that can certainly go far beyond vehicles, buildings and the like.

CHAIR —I will conclude with one question if I could, Mr Webb. Your submission says that the exclusion of the operation of the Racial Discrimination Act is entirely unacceptable and you cite the Convention on the Elimination of All Forms of Racial Discrimination. But the department have advised us today that they have an opposite view. They say that these special measures are based on that very same convention, which allows concrete measures to ensure the adequate development and protection of individuals. They specifically noted that the special measures actually provide benefits for Indigenous Australians in the Northern Territory, and that assists them in coming to that view. How would you respond to their advice?

Mr Webb —It would be interesting to see any written advice they had. That would be useful.

CHAIR —I am not sure if you were listening to their testimony this morning.

Mr Webb —No, I was not, I am sorry.

Ms Webb —May I add something? I was not listening to the department’s submission. However, I think what lies in this is a distinction between direct equality and substantive equality. As I understand it, the submission that would say that this is a special measure relies on a concept of direct equality. However, the special measures as interpreted under the international legislation relies on substantive equality, and that is the basis of the Law Council’s submission.

CHAIR —Thank you. Mr Webb, do you have a wrap-up comment.

Mr Webb —May I add a quick footnote to the answer given to Senator Siewert on the ACC just to point out that what we think is an anomaly was encountered when we were looking at the ACC amendments in the act. The bill proposes to extend the maximum term of ACC examiners from five years to 10 years. This is in itself not a particularly important provision, but it is tacked onto this bill as though it represents part of the package directed at preventing child sexual abuse in the Northern Territory. It seems to have nothing at all to do with that. I just make the point that that sort of anomaly may well be in this package of bills in other places as well. It just illustrates the difficulties people have coming to grips with what is a very comprehensive package of laws.

CHAIR —Thank you very much and thank you to the Law Council and in particular to Ms Webb and Mr Parmeter, who are a long way away. Thank you for being with us today.

 [2.56 pm]