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Tuesday, 14 August 2007
Page: 59

Senator LUDWIG (4:54 PM) —The incorporated speech read as follows—

I wish to make some comments on the Northern Territory National Emergency Response Bills that have now been before the Senate Committee. I just wish to say a few words on a few issues which surround this Bill, and bring the attention of the Senate to some aspects of these Bills which possibly require further and closer attention—in particular, the aspects regarding the Racial Discrimination Act and the acquisition of property on ‘just terms’.

The Bills themselves were referred for a one day Inquiry. Notwithstanding the shortness of the inquiry, the committee received a range of submissions to assist it in its deliberations.

The Bills flowed from an announcement by the Howard Government said to be a response to the Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, 2007 —the Anderson/Wilde Report.

It is difficult to reconcile the 97 recommendations made in that report with these Bills.

Having said that, there are two considerations that have been argued strongly from my perspective. Firstly, that consultation is of critically importance in designing initiatives for aboriginal communities, whether these are in remote, regional or urban settings.

The second is the federal government’s desire to take a quick proactive step to address the instances of child abuse in indigenous communities. Indeed, I would like to note at this point some of the views expressed by the Senate Committee looking into this Bill:

The committee welcomes the policy changes contained in this suite of bills as a genuine and enduring commitment from the Australian Government to tackle critical issues in Indigenous communities in the Northern Territory. These issues include high unemployment, alcohol and drug dependency, poor health and education outcomes, inadequate housing and child abuse. In saying this, the committee acknowledges that many of the issues that the bills seek to address are complex and entrenched; however, this is no excuse for failure or neglect.

I would also note that the submission of the Human Rights and Equal Opportunity (HREOC) welcomed the recognition by the government of the “serious, broad ranging social an economic disadvantage in many indigenous communities”.

HREOC went on to stress that the Bills must seek to achieve their goals consistently with the fundamental right to racial equality. However, there is another area of HREOC’s submission—and it is a concern generally—which I want to touch on.

That is that HREOC does not support the Northern Territory Emergency Response measure being exempt from the Racial Discrimination Act (RDA), as contained in the proposed s132 of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007. In short, HREOC submitted that the measures contained within the bill must be justifiable as a “special measure” taken for the advancement of indigenous peoples.

The concern expressed by HREOC is that the measures potentially have significant negative impacts. Much will turn on the language of the Bill but it will also turn on how the government has undertaken consultation with the relevant communities, what consultation it has in place now with the relevant communities and how it implements the measures in the bill and legislative instruments under it.

The starting point is of course whether the legislative package is a “special measure” for the purposes of the RDA. Article 1 (4) of the International Convention on the Elimination of Racial Discrimination provide for what a special measure is. They are generally regarded as measures which can be categorised as positive discrimination.

HREOC raised a wide range of issues, not all of which I will canvas here. But I think an important one it raised which I agree with is the need for the legislation to be reviewed after 12 months of implementation.

“Given the complexity and breadth of the many novel measures proposed by the legislative framework, as the NTNER measures are implemented it is likely that unforseen issues will arise.”

HREOC went on to say it is critical to the long term success of the measures that inter alia a public review be undertaken. I would just like to bring this to the attention of the Senate.

As I said at the start, in the time available, I wanted to touch on only a few short points regarding the package of bills, so I will not dwell on this one. These have been singled out not because of their greater importance but because they represent areas where challenges might arise to the legislation which I have a special interest in.

One such area I have already touched upon is to the extent that the legislation is consistent with the RDA and our international obligations under the RDA. Section 132 of the National Emergency Response Bill provides

“132 Racial Discrimination Act

(1)   The provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.

(2)   The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.

(3)   In this section, a reference to any acts done includes a reference to any failure to do an act.”

The Family and Community Services and Indigenous Affairs and Welfare Reform Bills contain similar provisions. The effect is to firstly say that the provisions of the Bill are—for the purposes of the RDA—special measures. However, the clause then goes on to say that any acts done under or for the purposes of those provisions are, for the purposes of those provisions, excluded from the operation of Part II of the RDA.

Labor believes that this approach is fraught with danger. It is a step too far to remove the effect of Part II of the RDA. The package can survive if the government’s first position is right. That is, that these are “special measures”. Australian courts—for instance, in the 1985 case of Gerhardy v Brown—have determined that Article 1(4) of the International Convention I mentioned earlier contains four elements—

  • A special measure must confer a benefit on some or all members of a class
  • The membership of the class must be based on race, colour, descent, or national or ethnic origin
  • A special measure must be for the sole purpose of the beneficiaries in order that they may enjoy and exercise equally with others human rights and freedoms
  • Must provide protection and must not be continued with after the objectives have been met.

So, if the position of the government is correct, it would appear that the package can survive if they are ‘special measures’, and not simply on the back of the exclusion of the RDA. However, Labor’s amendments make sure of this without invalidating Part II of the Act holus-bolus, thus elegantly achieving with precision what the Government proposes by blind blunt force.

The next important issue relates to the issue which is generally referred to as ‘just terms’. Broadly the issue here is whether or not the government is obliged to offer just terms in support of its acquisition of property under the legislation.

The 1946 case of Grace Bros v the Commonwealth provides some insight on what can be defined as just terms:

“The Inquiry must rather be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property”.

It can contain adequate procedures for determining it; see the Tasmanian Dam Case which did not. We need to now turn to the section 51(xxxi) of the Constitution, which gives the Commonwealth the power to make laws regarding the acquisition of property on ‘just terms’, known colloquially as the ‘just terms’ section of the Constitution.

Now, the application of that section would seem to be simple enough, but it is complicated somewhat by the fact that another section of the Constitution—122—also provides that the Commonwealth may make laws for Australian territories—the ‘Territories power’.

There is some authority which looks at which of these sections prevail in a case where the Commonwealth is making a law which rests ostensibly on both sections.

The case of Teori Tau was authority that s51(xxxi) of the Constitution (acquisition of property on ‘just terms’) has no application to acquisitions of property in the Northern Territory. Instead, the federal government is able to rely on its Territories power.

In submissions to the Inquiry, the Law Council indicated that it appears as though the government may be relying on that authority. However, I would also note that a subsequent case, Newcrest Mining (WA) Ltd v The Commonwealth, substantially limited the scope of that case and found that ‘just terms’ could apply in the Northern Territory in certain cases.

So it appears to me the law is at least unsettled and arguable that s51 (xxxi) could apply to this legislation.

This means, if the acquisition is otherwise than on just terms, the Commonwealth may be liable to pay a ‘reasonable amount’ of compensation.

However, I would also note s60 of the Northern Territory National Emergency Response Bill provides for adequate compensation for acquisitions between the person affected and the Commonwealth, and s60(3) provides that, if an agreement cannot be reached, the person may institute proceedings in a court of competent jurisdiction.

The Commonwealth has provided its view on these matters. However, if it is incorrect or others take a different view, it is likely to mean that litigation might occur over the issue of compensation.

This provision is also further confused by s61 which suggests that the Court is to take into account like improvements to the land funded by the Commonwealth, when determining what is ‘reasonable compensation’ but does not avoid the phrase ‘just terms’.

This problem may be avoided by leaving s50(2) of the Self Government Act alone.

In light of the above analysis, s134 would appear to suggest that it is the intention of the Commonwealth for ‘reasonable’ compensation to be paid—as distinct from ‘just terms’. The precise difference between the two is likely to be the subject of litigation, legal and academic debate, but suffice to say, in our view it is incumbent upon the Government to provide compensation on just terms—as a matter of ethics and morality.

Mr President, I am conscious of the time constraints in debating this Bill, and I do not wish to take up any more of the Senate’s time. I trust that this contribution has assisted in the debate, in raising and hopefully clarifying some legal issues which exist with the Bill.

Before I finish, I would like to quickly reiterate some of the points made in the additional comments to the report by the Labor Senators.

  • Firstly, that we welcome the increased expenditure by the government on services, infrastructure and economic development in remote Indigenous communities;
  • Secondly, we note that any longer term plan to improve conditions in these communities must be within the framework of a partnership between the Commonwealth government, the Northern Territory government and the Indigenous communities themselves, to achieve the recommendations of the Little children are sacred report;
  • Thirdly, it is fundamental to the acquisition of any property by the Commonwealth government that just terms’ compensation be paid to those affected, and noted that the majority report called on the government to clarify the position in the proposed legislation;
  • Fourthly, the integrity of the Racial Discrimination Act must be maintained.

There were a range of other matters addressed in Labor’s additional comments, which I will leave it for my fellow Labor Senators to comment on.

Finally, I would to take the opportunity to thank the Committee Secretariat for producing the high quality report on the range of Bills, under such a short time constraint from the government. I commend them on their excellent efforts.