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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. As Mr Wesley Aird is not yet online, Dr Gordon, I invite you to make a short opening statement, at the conclusion of which I will invite members of the committee to ask questions.

Dr Gordon —I would like to start by referring to an extract from the Vision of the National Indigenous Council on law and justice issues. The NIC developed and adopted its vision in November 2006. Goal 2 of our vision refers to actions to develop ‘Strong parents, families and communities’ that encourage Indigenous Australians to participate to the full. On law and justice issues related to this goal, we identified several key issues, including the aim to reduce the incidence of violence and an increased focus on early intervention by preventative measures. On families, we identified three issues: the need to reduce the impact of family violence; the need to ensure that there is preventative early education for children regarding family violence; and the need to address feuding as an unspoken element of family violence. So the NIC has focused on these issues for some time, and sees them as critical for Indigenous people.

Key initiatives we have taken in the area of law and justice go back at least two years, and include the following. In September 2005, the NIC members met with the then Minister for Justice and Customs, Senator the Hon. Chris Ellison. At that meeting our advice was sought on revising and refocusing the National Indigenous Justice Strategy. Following NIC comments, this was renamed the National Indigenous Law and Justice Strategy. This meeting also led to invitations being extended to me to speak at the Australian police ministers conference in October 2005, where I was asked to speak on Indigenous youth offending and issues relating to how the dysfunction in Indigenous families and communities contributes to this. Ms Tammy Williams, a member of the NIC, was to attend the Standing Committee of Attorneys-General in November 2005. In December 2005, the NIC raised concerns about the lack of communication between agencies responsible for funding programs in addressing family violence.

In the period from June 2006 leading up to the summit, we met with the Ministerial Task Force on Indigenous Affairs. We raised various issues, including: support for communities to understand court processes and the need to collect good evidence; the fast-tracking of cases involving violent crime; the mandatory reporting of child sexual abuse; and protective bail conditions. We wanted it stated that we were not targeting all Indigenous men in this issue. There was to be treatment of perpetrators, and they would not necessarily be removed from communities. We also supported a submission by the Ngaanyatjarra Council to the Law Reform Commission of Western Australia’s discussion paper on customary law. We also called for a ‘fit and proper person’ requirement for chief executive officers and boards of funded organisations and for there to be police checks done on all staff.

In relation to those, at the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities, we were briefed by Minister Brough and commented on the issues prior to the summit. We said it was a key step in addressing law and order, and agreed that other important issues, such as health, education and housing, would also need to be addressed once community safety was established. The NIC expressed our wholehearted support for the summit, and committed ourselves to work on it. We also stated adamantly that child abuse is not part of Indigenous culture and is not acceptable in any form. We recommended a comprehensive national response to address the levels of violence and child abuse in communities. We had a strong focus on building safer communities by addressing these issues.

The NIC has continually stressed the need to keep focused on the United Nations Convention on the Rights of the Child. With the audit of national policing, we identified the need for a comprehensive audit of safety and the level of policing in remote communities. And, as you are aware, the Valentin report, titled The assessment of policing in remote Indigenous communities, was released in March this year.

In relation to customary law, we provided the Hon. Philip Ruddock MP, Attorney-General, with advice on the issue of customary law. Members advised specifically on bail provisions and professional development of judicial officers. The National Judicial College of Australia, the NJCA, of which I am a member, was subsequently funded to provide guidance and professional development to assist judicial officers working in the area of customary law.

The NIC have been asked in recent weeks to look at the NJCA’s draft curriculum and to make comments as we see fit. The National Indigenous Violence and Child Abuse Intelligence Task Force, currently based in Alice Springs, which was launched on 3 October last year, is making some progress. I personally have ongoing contact with senior Australian Crime Commission officers, and they are now getting the trust of people. They have collected a huge load of evidence. Coupled with that is support by the NIC of the Drug Desk, which is cross-jurisdictional, and of South Australian, Western Australian and Northern Territory police in Alice Springs—they are also having very good successes with grog and drug-running.

Concerning inappropriate use of government computers, at a joint meeting with the Ministerial Taskforce on Indigenous Affairs in June last the NIC raised with them the problems of internet pornography being accessed in Indigenous communities via government supplied computer equipment. That followed the formal complaints by Aboriginal people to NIC members. The Australian government responded by reviewing its policy on the use of all equipment supplied by the government.

In relation to the Northern Territory emergency response, it was against this background of long-established concerns by the NIC that we welcomed the government’s Northern Territory emergency response on the day it was announced. I accepted the role as chair of the task force because of my experience as a magistrate of 18 years in the Perth Children’s Court dealing with crime and child abuse on a daily basis. We issued a media release. We have not been involved in the legislation, as such. I will be speaking as the chair of the national emergency task force later today.

Dr Moriaty —As a member of the NIC I have been very concerned about the way Aboriginal people’s lives have been affected over the many years that I have been involved in Aboriginal affairs. I have been very strong on the Aboriginal land rights issues, starting in South Australia with Don Dunstan, pushing for those land rights acts then for FCATSI and their movement in trying to get equality for Aboriginal people.

I come from Borroloola in the Gulf of Carpenteria. I have a strong relationship with my people up there. I come from a tribal community. I feel that that community is very much lacking in law and order and is quite a dysfunctional community—and I say that even though a lot of my relatives are there. I think that the intervention, as it is known, is a once-in-a-lifetime opportunity for people like me who have been involved in a long struggle for equality for Aboriginal people and bringing them into the mainstream of Aboriginal society. My society up there is a tribal one. Before I was taken away and since I have been reconnected with my mother and the tribal elders, I have been very strong in the promotion of traditional Aboriginal culture. A lot of that is very old traditional stuff which we do not speak about in public. Even my kids are part of that now. We would like to push on that side to maintain a stable and good, strong community which, I think, will stand us in good stead for many years to come. I find this a once in a lifetime opportunity for fighters like me who want Aboriginal rights, and I think it should be supported. We have lost at least two, maybe three, generations in my communities up there in Borroloola.

I think that our leadership has been lacking in the past and there is a lot of confusion as well. This has led to a lot of violence in the community. Also it has led to a dysfunctional community and a mish-mash of ways people should relate to one another. On the traditional tribal side people have some knowledge—and in fact the old ones have very strong knowledge—but the younger ones have moved to one side and they accept a lot of the stuff that is coming in now with modern television, lack of schooling, a lot of drug culture, alcoholism and so on. That has been quite a debilitating process in our community, and of course alcohol problems, coupled now with drugs, are decimating our people up there.

We need the educational process up there to take place. We are not participating as we should in the educational process even though there is a lot of goodwill up there in the community of Borroloola. Borroloola wants to establish a relationship with the McArthur River mine for jobs and we are looking at a possible hostel for Aboriginal kids at Borroloola as well. Health is failing there too. Through the NIC we have been promoting things at various levels, things including general education, sport, mental health, and other things that the chair just raised concerning violence and issues specific to this particular intervention.

CHAIR —Could you just conclude your opening statements, Dr Moriarty.

Dr Moriarty —The policing up there I think has been lacking for some time, even though there is a lot of goodwill there. I think Borroloola has been a forgotten part of the Northern Territory for many years. An intervention such as this, I find, is a breath of fresh air, and I hope that that intervention will bring about all those aspects that can bring us into the mainstream of white society.

CHAIR —Thank you very much. Mr Wesley Aird and Miriam Rose Baumann are now on the line. Do either of you have any comments on the capacity in which you appear?

Ms Baumann —I am a member of the National Indigenous Council and also a member of the emergency task force.

CHAIR —If you would like to make a short opening statement, Mr Aird and Ms Baumann, please do so; otherwise we will move to questions.

Ms Baumann —Yes.

CHAIR —Are you happy to move to questions?

Mr Aird —I would like to make a few comments.

CHAIR —Mr Aird, please make a short opening statement.

Mr Aird —I think the status quo is a result of a failed model in terms of funding and governance systems. I think it is destroying communities and lives. The obvious manifestation of this is child abuse and neglect as well as alcoholism and violence. I think that there is a risk that, by overprotecting people, we are basically knocking out of those people the stuff of life. We are removing people’s responsibility, and I think a lot of people have given up hope because of that.

I support the intervention. I think it is important that it is treated as a package. Of course, there must be consultation. It should not remove any economic base. I am concerned that the critics of the intervention are losing the real focus here, which is the protection and safety of families and children. I would agree with the chairperson’s remarks earlier that there are no surprises in the package of the intervention and that the items within the package are things that the NIC has been pushing for some time for better outcomes for Indigenous people. Thank you.

CHAIR —Thank you. Ms Baumann?

Ms Baumann —I am quite happy to move to questions.

Senator CROSSIN —Dr Gordon, hello and welcome. Can I just say at the outset that I think that your comments over the radio in the Northern Territory have done a lot to dispel fears that were in Indigenous people when the task force was first established and the groups started going into communities. I personally got a lot of positive feedback about the radio ads that were run on the Indigenous radio there through the Larrakia nation and TEABBA, and I just thought I would give you that feedback.

Dr Gordon —Thank you.

Senator CROSSIN —You mentioned something in your opening statement with regard to the National Indigenous Council—and I did not quite pick this up, because it was a bit quick—and the lack of communications between government agencies. Did you say that you had raised concerns through the council about the lack of communication between government agencies in the past?

Dr Gordon —There has never really been a whole-of-government approach in any state or territory—or the feds—to working with Aboriginal people. Everyone has operated in their own silos. To some extent, that still exists. What governments have been saying and are starting to do is to work as whole of government, so that every agency that is involved in Indigenous affairs should be talking to each other. That is what is happening on the ground with the task force, but I will talk about that this afternoon with General Chalmers. Suddenly people know that they have to talk to each other and work to each other to get an outcome, and that is what has been lacking in the past. We raised that. We were concerned that it was still happening.

Senator CROSSIN —Are you seeing evidence already that perhaps some of those silos are breaking down?

Dr Gordon —Yes, I have seen that. That is done through Peter Shergold, who heads up the Secretaries Group on Indigenous Affairs. The NIC meet with the secretaries group each time we meet in Canberra, four to five times a year. We have access to the secretaries, and they are working as a group. That has to go back down through their agencies, and we are seeing signs of that.

CHAIR —Secretaries of the departments?

Dr Gordon —Secretaries of the federal departments.

Senator CROSSIN —I assume the NIC has been briefed on this intervention proposal.

Dr Gordon —We were briefed on the intervention. Obviously, I was briefed earlier, because the minister asked me whether I would take a leading role—he did not actually say he wanted me to chair it. So I was briefed some days before, and the NIC as a whole was briefed by the minister himself, as well as Peter Shergold.

Senator CROSSIN —I am trying to get a handle on exactly where and how some of the $587 million is going to be spent. Like you, I travel around to communities. I hear people say, ‘We’ve asked for this women’s resource centre to be built for a long time,’ or, ‘We’ve wanted this recreation centre to be upgraded for a long time.’ In reading the PBSs today, I see that nearly $226 million of this money is actually going to go into the bureaucracy and departmental outputs such as more Centrelink people on the ground. Has the NIC had a briefing about the costings and where the money is going?

Dr Gordon —No, we have not. There is always concern about where the money is going to go. The money will not go directly to Aboriginal people on the ground. We have been told there is no wish list by communities—and communities may well want that. You are obviously aware that the Chief Minister of the Northern Territory has said she would like 5,000 new houses, but they are the sorts of things that are not going to be funded. You obviously have to have administration by agencies. There are already lots of new people working as part of the task force in Alice Springs and, of course, they have to have their expenses met. There is always going to be an administration cost. I have not seen all those figures that you are privy to. I do not have that information.

Senator CROSSIN —Those figures are in the portfolio budget statements. So the NIC has not been briefed about the costings and how much money each department will get and what the money will be spent on?

Dr Gordon —No. The NIC’s terms of reference do not have us being involved in that sort of thing. We are there to provide expert advice on Indigenous issues, not budget issues or submissions. So we have not been asked about that.

Senator CROSSIN —It is indirectly linked, in a way, if there are recommendations from the NIC about improved law and justice programs or support for women on domestic violence issues. What I am hearing today is that not 1c of this $587 million will go towards a new house or towards upgrading roads. We did not get to drill down in terms of other resources and assistance. How do you expect the policy you put to government to be resourced?

Dr Gordon —With respect, our terms of reference do not cover us being involved in the actual finalising or configuration of the budget for this. We can address policy issues. Obviously, if we get involved in the nitty-gritty of funding, that opens up a can of worms. The NIC was not set up to be involved in that area but purely to give advice as individuals. We do not represent any Aboriginal organisation. But I am aware that money will be spent on the maintenance of houses and the upgrading of infrastructure in communities, so some of the $587 million will be going to help Aboriginal people on the ground.

Senator TROOD —Dr Moriarty, I was struck by your phrase that, in your view, this is a once in a lifetime opportunity. Do you think that once in a lifetime opportunity would have come if we had continued on our present course before the intervention?

Dr Moriarty —Certainly not. Under the current system, we have allowed the states to do their thing. Having been involved in Aboriginal affairs over many years, I have found that, in the states, as far as ordinary citizens are concerned, Aborigines do not rate very highly electorally. I find that this intervention is one of those aspects that will dig deep into the real issues and have Aboriginal people brought into the system. In my community of Borroloola, we are disadvantaged on any aspect of life you would like to look at. Over the years, even during the ATSIC days, we have had in the vicinity of $3 billion spent each year on Aboriginal affairs and this has not made any inroads in bringing Aboriginal people into the mainstream of Australian society, on any aspect you would like to look at.

Senator TROOD —Do you think the time had come for a profound change in the paradigm—a change in attitude, a change in direction?

Dr Moriarty —I think it has been a godsend, in that sense. People like me have been battling to have traditional Aboriginal culture recognised but also to be practised within Aboriginal society. My uncle, who is our ceremonial head, always said: ‘We don’t want anyone teach us to be Aboriginal people and to teach us Aboriginal culture. What we want is to become part of the mainstream of Australian society. We should have education and all those other things taught to us. We should have decent jobs that can bring us into the mainstream of society so that we can look after our own kids in our own way yet maintain that traditional culture.’ At Borroloola we still practise those old traditions. I am one of those who very strongly want to maintain those aspects but also bring to the forefront those aspects which would allow us to have decent housing and good education so that we can get good jobs and so on and then become mobile in this society.

Senator TROOD —Are you concerned that these measures might in some way threaten those aspects of your culture that you treasure in the Borroloola community?

Dr Moriarty —I think that is a task for our own people. I have travelled extensively around the world. I have been to places in Africa. Those Africans who attended the Sorbonne, Oxford or Cambridge are no less African because they have undertaken those studies; they go back to Africa and they are forever Africans. I think we should be working along the same lines.

Senator SIEWERT —Did you talk to the combined Aboriginal organisations of the Northern Territory or any of the other organisations before coming to your opinion on this package?

Dr Gordon —No, we did not. Our terms of reference say that we are to give advice to the federal government. We only meet four or five times a year. We do not have a budget that would allow us to go out and consult with Aboriginal organisations. I can speak to you this afternoon with my task force chairperson’s hat on about what I am doing on the ground.

Senator SIEWERT —Is the council aware that the government did not consult Aboriginal organisations before it came out with the package and that the first recommendation of the Little children are sacred report is consultation?

Dr Gordon —Yes, we are aware of that, but the minister has also said in a press release that this is a response not to the Little children are sacred report but to the fact that nothing is happening about the protection of children on the ground.

Senator SIEWERT —Are you concerned that there was not any consultation by the government before they put this package in place?

Dr Gordon —I do not get into political fights or arguments. As a magistrate, I take an oath to act without fear or favour or ill will or affection. If the government does not consult with other Aboriginal people, that is not really a matter for the NIC. We can talk to the government when we next meet, which is next week. We have had some correspondence from some Aboriginal organisations—not a lot—asking us to mention it.

Mr Aird —In relation to the consultation, there has been so much consultation with Indigenous people over the years on so many topics. I think this one is different because we knew that the abuse and neglect of children was ongoing. So for every day, every week that you were out there consulting—and with some known outcomes, dealing with personalities that you would expect to be consulted—the person who delayed action would knowingly be allowing more abuse, more neglect, and I think that raises some very serious moral questions about just how long you are going to knowingly allow that abuse and neglect to continue. So I would support the speed at which they have acted.

Senator BARTLETT —Following on from that, Mr Aird, I wrote down when you spoke before briefly that you said, ‘Of course, there must be consultation.’ You are now saying that there cannot be consultation. I am a bit confused about that. Is it actually not possible to consult alongside as part of implementing?

Mr Aird —I took the earlier question as being in terms of when the emergency response was announced a few weeks ago. Now there must be consultation for the correct, professional, technical implementation of what they are doing. It is appropriate that the action was taken as quickly as it was, but, when it gets down to communities now, we should not be talking to the gatekeepers—we should not be talking to the personalities that have such a good run with funding and organisations; we should now be coming up with localised solutions that actually address the core problems. That is the consultation now that I am talking about.

Senator BARTLETT —Okay. Thank you for that. Mr Moriarty, you said that this is a once-in-a-lifetime opportunity. I hope that it is not just once in a lifetime that governments actually decide to pay attention, but I appreciate why you would perceive that and it is a reasonable feeling. Given that it is potentially a once-in-a-lifetime opportunity, and obviously it is a major opportunity, don’t we have an obligation to make sure that that opportunity has as big a chance of success as possible?

Dr Moriarty —Absolutely. I go back to my community quite regularly—in fact, six or seven times a year. I have aunties. My mum died. In my kinship system, I have many mothers, and one has taken on the responsibility of being my mother because my other mother has gone, if you know what I mean. Many of my aunties of that generation are looking after grandkids and great-grandkids, six and eight at a time, constantly. They are dirt poor. They are culturally rich in the old traditions, yet they cannot look after these children.

Senator BARTLETT —Sorry to interrupt. I only have a couple of minutes. I am really reluctant to interrupt you, but my point there is: is this package of legislation not able to be improved? Are you confident that it is totally right? Should we as a Senate have an obligation to do everything we can to make sure it is as good as possible—to take advantage of this once-in-a-lifetime opportunity?

Dr Moriarty —Yes, I think we should take advantage of that. I must commend the Leader of the Opposition for taking a bipartisan approach, which encouraged me tremendously. If we can take that role, the intervention is one aspect, but we have to look at many aspects of the society that I come from at all those various levels. Of course there is housing, education—all those other aspects that I mentioned. We have got to talk to the people. It is important while they are doing that. Of course, the removal of the CDEP in a staged manner is one of those aspects that have to be looked at carefully as well. But I think that is one of those aspects that I hope will come about in an appropriate way where people will not be too disadvantaged in those isolated communities like mine.

Senator BARTLETT —I can only, I suspect, ask you one more question. It is a bit unfortunate in terms of what I was just saying about making sure we take every chance to get it right. You have mentioned culture a number of times, which I would certainly agree with and I think the examples you have given are very valuable—and I apologise for cutting one of them off. One of the measures amongst many in this legislation removes the opportunity for cultural practices of Indigenous people to be taken into account in bail and sentencing. Do you think that is a necessary move?

Dr Moriarty —I think the old Aboriginal law is much tougher than the law that we live under in normal circumstances. Aboriginal people know right from wrong, and if you treat that any differently, we will come to grief here and there. But, when we talk about customary law, I ask: ‘What part or what aspect of customary law are we looking at?’ It is a very involved area, and it is fraught with real issues. But I think we should be looking at where we fit into the mainstream of Australian society.

Senator BARTLETT —You do not think any cultural practices of Indigenous people should be taken into account in bail and sentencing decisions?

Dr Gordon —Senator Bartlett, if I could answer that: I was the one who actually raised that at the NIC, as a magistrate, along with Tammy Williams. We have protective bail conditions in our legislation in Western Australia. We were talking specifically about Commonwealth crimes. The Commonwealth cannot expand that out to states which do not have it. Under protective bail conditions we can put a person on bail with varying conditions. One of the things that we raised for protective bail conditions, which the federal government took on board, was that if there was a man who had been violent to his wife, as happens on a regular basis through alcohol or drug related incidents, then there should be a cooling down period. So protective bail conditions could see that person being excluded from the community, so as not to remove the victim but the perpetrator, to reside at another residence and not go back. That is how we were viewing the protective bail conditions. We also felt, as part of those protective bail conditions, that a man who is drunk or under the influence of drugs and who then bashes his wife—or perhaps an Aboriginal woman who bashes her husband; it would relate more to a man—could not say, ‘I have the right to bash my wife under customary law.’ That is the context that we were putting it in.

CHAIR —Thank you, Senator Bartlett and Dr Gordon. I would like to, in conclusion, ask you, Ms Baumann, if you would like to make a concluding comment. You have been very patient and have not made a contribution as yet.

Ms Baumann —Yes, I would like to say something in relation to what John Moriarty said, because we are both from the Territory—if I can class John that way. I agree with what John said earlier in the piece because, in the area of the once-in-a-lifetime opportunity, if it is going to make things for the betterment of the people in our communities, why not take up the opportunity that is there with both hands? This community is 50 years old, and there have been several attempts made before by various government departments and nongovernment organisations, whether it be in health, education, housing or the various other issues that are included in the intervention, such as the welfare of the people and the children especially.

—Thank you very much for that. Mr Aird, would you like to make a concluding comment?

Mr Aird —Yes. I think that one of the longstanding problems with Indigenous affairs has been low expectations, the removal of people, the removal of responsibility from individuals, and some bad governance and bad funding arrangements. I am hoping that the emergency response is able to start looking at how to build communities, how to build their capacity and to overcome some of the problems that have endured in the past.

CHAIR —Thanks very much for that. Thanks to the witnesses for appearing today.

[11.09 am]