Title 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
Database Senate Committees
Date 10-08-2007
Source Senate
Committee Name STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
Place Canberra
Page 64
Status Final
Questioner CHAIR
Senator PAYNE
Senator CROSSIN
Senator SIEWERT
Senator BARTLETT
Reference Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 and four related bills concerning the Northern Territory national emergency response
Responder Mr Daly
Mr Bookie
Mr Ross
Mr Dore
Mr Sheldon
Mr Levy
System Id committees/commbill/10473/0008


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. I now invite you to make a short opening statement, after which we will have questions.

Mr Daly —The NLC supports the Commonwealth program of assistance to NT communities. This is the natural result of decades of neglect by NT and federal governments of both political persuasions. While the current focus is on the failure of the present NT government, we should not forget the 25 lost years of CLP control of the Territory. One simple fact to ponder is that the provision of secondary schools outside Darwin is still extremely limited. However, we continue to question the need for the totality of this package of legislation. In fact, we doubt that most members of the lower house have any idea of the detail of the amendments they voted for this week. MPs used to be legislators, but now they appear to vote for press releases.

The land rights act was passed by this parliament on a bipartisan basis in 1976, and it marks the high point of Indigenous affairs in this country. Since then, our people in the Top End have been through a long land claims process, which is now largely completed. Our focus now is on economic development. We are turning our land and assets into investments, businesses and jobs which will eventually replace welfare. This is a lengthy and challenging task for all of us, requiring a new approach to how we live and work together. The cattle stations, timber works, aquaculture projects, feral animal harvesting, CO abatement, which is the only program in Australia, mining operations, railways, gas pipelines and major infrastructure projects throughout the Territory are proof of progress. The NLC also took the initiative of engaging directly with the Commonwealth to assist in resolving the national problem of safe storage of low-level nuclear waste. I reiterate that, as far as non-government organisations and government organisations are concerned, we are the only one that took the initiative to engage the Commonwealth on this issue.

The land rights act has been our great strength. It has defined our economic progress. This strength has been denied other Indigenous communities in Western Australia and Queensland. That has caused those communities to seek other solutions to the problems caused by welfare dependence—solutions which seem to us to cost the taxpayer a lot of money in various experiments such as hype by the media. We have been ahead of the game for a few decades because we have the land rights act. We do not wish to be compared with communities outside the NT or to have their solutions visited upon us. We do not have a public relations outfit which tells you about our successful communities, and we do not do weekly columns in national newspapers moaning about our failures; we are just getting on with it, slowly but surely.

The Commonwealth policy package includes some changes to the land rights act. We do not support these, particularly the removal of permits and compulsory acquisition. We do not think they are necessary for the current task. We question the right of a government at the end of its parliament to trifle carelessly with this iconic legislation when it has never campaigned on the matter or had a serious dialogue about it. We also address that point to the Labor Party. But we are realists; we take the long view, as always. We would like to think beyond the current short-term politics to the next decade. We seek some assurances from both major parties that essential strengths of the land rights act are still valued by senior people who can see the progress which it has caused. We hope that this tendency to trifle needlessly with the act is temporary. We invite both parties to study the history of this matter and understand how this act was born and the contributions of some great people who brought it about. These were people who knew the Top End and understood its potential. We would like to assume, as well, that senators who vote on this matter next week will have some idea of the detail of what they are doing. We commend the efforts of this committee in that regard.

CHAIR —Thank you. Mr Daly, would you like to table that opening statement?

Mr Daly —Yes.

CHAIR —Thank you. Who would like to make an opening statement from the Central Land Council?

Mr Bookie —I will say a few words, yes. With regard to the permit system, we would like the permit to stay. It is not causing any trouble on the communities. The people still go out; they just go through the communities. People do not stop them. They are free to go wherever they want as long as the people know where they are going. The Tanami is the main road that goes right through to the Western Australian border, and the people go on that road. They just get a permit to travel on that road; there is nothing to stop them. But they are not allowed to go off the road. The permit system has nothing to do with child abuse and things like that. Permits are there for travel. They get their permits with no trouble. Nobody is stopping people from getting permits.

CHAIR —Thank you. We will move to questions.

Senator PAYNE —Gentlemen, thank you very much for your attendance today and for your opening statements and submissions. I have not had a chance to read all of them, but we will get there. I wonder, as this package progresses—and, Mr Daly, I heard clearly your concerns about the voting process, but let us assume it progresses—what positions are the land councils in to assist in the process? What role do you think you will have as the impacts of the legislation unfold?

Mr Daly —We always thought that we would be consulted all along. Unfortunately, some things have been dropped in front of us and now we are running at 100 miles an hour. But what we have always said to the Commonwealth—and we say this to all governments within Australia—is: ‘Come and talk to us. We’re practical people and we’re about getting the outcomes for our people.’

Aboriginal people have changed over a period of time. We are becoming better and better at what we do, and we see the need for us to do things independently. There is one thing in life that I have learned: you need to be able to do things for yourself to fix up some of the problems that you have within your own lifestyle. So a lot of the answers that we seek in regard to Indigenous communities need to come from within those communities; they will not come by writing legislation and overriding the communities.

I think we need to engage with all Indigenous people because we are talking about Indigenous people’s lives, and I think there is no better way to deal with the issue at hand than for you to consult with us. Let us work through the issues and let us try and get positive outcomes for our people. For too long, my people have been sitting in the doldrums like second-rate citizens within Australia, and we are now at the point where we need to move forward. We have always wanted to move forward.

The other thing I want to put to the senators here today is: does every Aboriginal person necessarily want to be like you guys? Or would they prefer to live their traditional lifestyle, which has been a milestone for this country? If you talk to any tourist who comes here, the main reason they come here is to look at our culture and our art, and Australia seems to sell itself on the back of Indigenous art and Indigenous culture. Yet we tend to hamper it.

I would also like to say something about tribal law and culture. There are people who do not know it, do not talk about it, have never done it and never lived it. If it is not your lifestyle and you do not understand it, you really need to become a part of this lifestyle to understand it and really know the dynamics of it.

Senator PAYNE —Let me be more specific then. The initiatives that are in the legislation cover a range of areas—health, education and housing, just for starters. If they are implemented, is there a role at all for the land councils—either of the two represented here today—in that process?

Mr Daly —Yes, definitely.

Mr Ross —The whole issue is that we have not been consulted on this legislation. It has been put together without anyone talking to us about these issues and how to make them work et cetera. We have put forward a number of areas that we think should be amended, which would make some improvements to the proposed legislation. We also say quite clearly that without those amendments we think you ought to throw it out and go back and start again, because it will be a mess without them. Having said that, we also see the need for addressing the areas of health and education, and we agree with that being done. We see that they are very important and need to be dealt with and addressed by everyone.

The issue of improving the lives of children we think is a huge issue and needs to be addressed properly. It is very important that the land councils are involved and consulted. If you pass this legislation next week and it becomes law, then, in terms of people getting out on the ground and getting work done, and in terms of infrastructure et cetera, the traditional landowners need to be involved and consulted as to what happens on their land. The land councils need to be heavily involved in that process. That gets to the guts of your question because, under the laws of the Northern Territory, on anything that happens on their land, any disturbance to land—regardless of whether it is in a major town like Alice Springs or an Aboriginal community—you must consult with the landowners to protect sacred sites so that there is no disturbance to sacred sites. It all comes back to the work that we need to do through that process. So, yes, we need to be heavily involved at that point.

Senator PAYNE —Thank you very much. I have one more question and it is in two parts. First of all, the Mayor of Alice Springs indicated that her position and that of her town council was to support the permit system’s removal. I am interested in your observations on that.

Secondly, in quickly looking over your submission, there is one specific item you refer to, from the Central Land Council, in relation to community stores and the store assessment process. Could you expand slightly on your suggestion that you think it would be useful to include an assessment measure for the capacity of the store to train and employ local community members. What did you have in mind there?

Mr Ross —Mayor Kilgariff raised the permits and, from listening to her, she put it from two points of view. One was from the town council. All non-Aboriginal people make up that town council. They voted some six months ago, as she said, to support removal of permits from Aboriginal communities and townships. She also mentioned that some of the local traditional owners of Alice Springs, some of the members of Lhere Artepe, have made noises about having permits removed from communities because everyone comes into their country.

They are the personal opinions of a few people. What they need to understand is that the understanding between Aboriginal people to visit and remain on each other’s country is a personal thing between Aboriginal people. There is no such thing as Aboriginal people requiring another Aboriginal person to have a permit. It has never been a part of any understanding. Aboriginal people have the right to come and go on each other’s country if they are going to behave themselves. If they are going to go there and run amok then, yes, people want to do something about it. That was pretty much the point that she raised.

In terms of the stores, yes, we think there should be assessments done as to how the takeover of stores is to take place. We think that some stores are operating really well. Others are not. We just recently helped the IBA with their community stores program to help a community with that process. There are a different variety of things that are taking place within stores, and there has to be some analysis of what is being proposed before anything takes place on the ground.

CHAIR —Thank you very much. Senator Crossin?

Senator CROSSIN —Good afternoon to you both. I want to ask you some specific questions about the submission that you have given us. You talked about the operation of section 50(2) of the self-government act being excluded from the bill. As I understand it, that then leaves a question over the intent of the Commonwealth to compensate landowners justly in terms of the lease of the land. Is that correct?

Mr Dore —That is correct. The self-government act does have a provision requiring the Commonwealth to pay just terms compensation. This bill sets aside that provision and just gives compensation by reference to the Constitution, which, arguably, is a different standard. On current law, I think it would be fair to say that the Commonwealth will still be required to pay compensation, but it is certainly less clear.

Senator CROSSIN —That is the question that we were trying to drill down to this morning when the departments were before us: exactly what a definition of ‘just compensation’ would be. Is it your understanding that it would be monetary, or could the Commonwealth say that they have justly compensated Indigenous people by virtue of the fact that this measure is in place and they will be fixing up housing and infrastructure in communities?

Mr Dore —I think that would be a matter for negotiation.

Senator CROSSIN —If, though, section 50 of the self-government act is overridden, and therefore the Constitution’s just compensation terms apply, does it not lower the bar in terms of compensation? Are we really talking about monetary compensation or are we talking about compensation in kind by actions of the department because they are applying the test against the Constitution and not the self-government act?

Mr Dore —I think the issue we have alluded to the submission is whether or not just terms compensation applies, not necessarily the level or standard of that compensation.

Senator CROSSIN —I see.

Mr Dore —They are both about just terms compensation, but the standard of accessing that just terms compensation under the Constitution is a little higher in a territory.

Senator CROSSIN —I see. Mr Levy or Mr Sheldon, do you want to say anything?

Mr Sheldon —I would emphasise it a little differently. An issue has been raised as to whether the just terms provision applies in the Northern Territory. It probably does. The Commonwealth might want to argue otherwise, but I suspect that they will not. It is not just about houses. We do not have maps yet, but we have looked at the coordinates and mapped them. It is quite clear, understandably, that the Commonwealth wants to control areas where there are extractable minerals—that is, gravel, sand and that kind of thing for construction. We regularly do agreements with local councils and others close to communities about that gravel, and we know what the rate is. We would expect to be paid for that immediately, not paid in the form of houses or things built for people to live in. I would imagine that the Northern Land Council will write to the Commonwealth shortly wanting to have a position on that—to have it all sorted out and have the government paying immediately for use for extracting minerals.

Senator CROSSIN —What is the process if, in fact, the government is not prepared to compensate readily, or the negotiations over that compensation—

Mr Levy —Go to court?

Senator CROSSIN —take more than a year?

Mr Levy —First, you try and negotiate an arrangement. There are pastoral leases, for example, on clapped-out pastoral properties. We regularly do agreements where, for the first 10 years, there is little or no rent, but in return the land is improved, so that in 10 years time traditional owners have viable, productive, improved land. That is not uncommon in commercial deals. But, if you cannot reach agreement about a compensation package, then you have to go to court.

Senator CROSSIN —Your submission talks about amending clause 35 in section 4. Unfortunately, I did not get to ask the department today about what they meant by ‘quiet enjoyment of the land’. Unless that is a legal term, I found it a fairly quaint combination of words in legislation, I would have to say. Regarding compulsory acquisition of leases, according to the GPS coordinates we have seen in the legislation, does that actually mean that, if a certain block or blocks of land within that lease are going to be used by the Commonwealth to put demountables on, build a new school oval or create something different, they do not necessarily have to consult the TOs under this proposal?

Mr Levy —That is correct, except in relation to sacred sites. I notice that the document provided by the Commonwealth this morning, I understand, says that the changes regarding the permit system do not apply to sacred sites; they only apply to towns. But, of course, almost every town includes sacred sites.

Senator CROSSIN —So in this legislation there would be nothing stopping the Commonwealth from building any sort of facility by any means, with any structure, within a town lease, at this stage?

Mr Levy —Legally, there is nothing stopping the Commonwealth. It needs to be remembered that the Commonwealth, no doubt, can put in temporary accommodation and that kind of thing—that is one thing—and that might last for a year or two or five, but I would have thought that for practical reasons it is unlikely that the Commonwealth would build major infrastructure that will last for 40 or 50 years, without legal title being organised. Under this legislation, that would require the consent of the land trust on behalf of the traditional owners.

Senator CROSSIN —So your recommendation to this committee is that we should at least propose that clause 35 is amended?

Mr Levy —I think that is the Central Land Council’s submission. We certainly would have similar views. I think you are looking at their submission.

Senator CROSSIN —Yes, that is right.

Mr Levy —We have not yet got to the detail of it in the time available. I am sorry.

Senator CROSSIN —I think some of us can relate to that, actually. The Central Land Council have also suggested—and maybe, Mr Ross, I will ask this of you—that clause 60 be amended to ensure that Aboriginal landholders are entitled to just terms compensation. Does that mean that, as the legislation is currently written, you do not believe that that is guaranteed?

Mr Dore —I think that was the question we were dealing with before. That is exactly the point that we were raising: that the bill, as it stands, does not guarantee that there will be just terms compensation; it just makes a reference to the constitutional provision for that.

Senator CROSSIN —Yes. Clause 60 says that ‘just terms’ has the same meaning as section 51 of the Constitution. But the clause does not actually say that that will then be applied. Is that correct?

Mr Dore —In that clause it has the words ‘if required’, so it is clearly leaving open whether just terms compensation would be required.

Mr Levy —I think the Law Council has made a submission about that issue.

Senator CROSSIN —You can appreciate that some of us are still trying to read 500 pages of the bill, let alone the 65 submissions that have come in overnight!

Mr Levy —I do not want to take up time, Chair. I will let that go to the Law Council.

CHAIR —Thank you. Senator Crossin, we need to leave time for Senator Bartlett and Senator Siewert.

Senator CROSSIN —Can I just ask about one other issue in the land council submission. You are suggesting that we should amend clause 93—this is in relation to the community stores—regarding the assessable matters, by adding a new assessable matter for community store capacity to train locally employed community members. So you would be suggesting that in part 7 of the bill, relating to community stores, the legislation should guarantee that local Indigenous people are trained as part of these changes?

Mr Ross —They certainly should be. That is what Aboriginal people need to be involved in. If part of the government’s argument is about getting people off welfare and into real work then proper education and training need to be put in place. If they are going to put in some requirements then some of these things probably should be looked at.

Mr Bookie —There are young people who work in the shop. They go away and learn to run the shop. They go to town and have training and they come back. The people in the shop never train them, so they go away for training. Then they come back and get work packing stuff and unpacking, instead of working the tills and things like that. There is not enough training in the shops. You have white people there with their five- or six-year contract. They never train anyone up. Young people go away and do these courses to run the shop but they never get the opportunity to do it. So they go back and say, ‘Oh, well, we can’t get in there, so what’s the good?’

Senator SIEWERT —I want to go back to the issue of the permits for a minute. This came up earlier, during HREOC’s presentation. The permit system applies to communities and supposedly not beyond them. The issue of policing came up. When I first read this legislation, it seemed to me that it was going to be very difficult once somebody got a permit to go into a township to explain to them that they were only allowed to stay there. Who or what is to stop them going anywhere they want to after that? Is that a concern that groups have or am I jumping at shadows?

Mr Daly —It is extremely difficult in the Territory to police the whole permit system. The police use the permit system as a deterrent for criminals. There was a question asked earlier about whether there was a town that did not have a permit system. There is an Aboriginal town that does not have a permit system. It is a privately owned Aboriginal town, and that is my community, which is also Miriam-Rose Baumann’s community, which is Nauiyu Nambiyu. If you have a look at the crime statistics there and the crime statistics in a community that has a permit system, you will see that there is no difference. So it does not really matter whether you have the permit system there or not; there is still the same amount of crime. Whether that helps you a bit, I do not know.

Senator SIEWERT —Mr Ross, did you want to say something?

Mr Ross —I think part of what you are saying is correct. People will go onto Aboriginal land, permit or no permit. There are a number of them around, and it is a matter of people reporting them, then we follow that through. That is a part of policing. The police have picked up people on that basis, and people have been reported on that basis. There was a big thing a year or two ago where all these people who worked at Yulara decided to go and have a big party on Aboriginal land in the middle of the night—some New Year’s party or something, a big celebration—with no permits at all. The traditional owners were very upset about that, and most of these people were taken to court and fined. A couple of them were Aboriginal people from interstate. Part of their defence was that they were Aboriginal people. As I said earlier, it is an agreement between Aboriginal people that you can come and go on their land if you behave yourself. If you are going to go on there carting grog and drugs and having a party, which is what they were doing—the traditional owners were happy for those people to be prosecuted like anyone else, and they were. These things go hand in glove with policing and permits.

CHAIR —Senator Siewert, I have to make time for Senator Bartlett.

Senator SIEWERT —I just wanted to clarify something, because I think I may have slightly misstated my question. When people are going into town in the future, without permits, because they can go into the designated town, they obviously will still require permits to go beyond the town. Is that going to be a policing issue?

Mr Daly —Definitely. It will definitely be a policing issue. Currently, if you have a look at the situation of policing in the Territory, you will find that policing is inadequate as far as Aboriginal land is concerned. That is a major concern for us, but it is also a major concern for the police department with regard to safety. But it will definitely be an issue with regard to policing.

Senator BARTLETT —Given the reality, I will just ask one question. Perhaps each of you could answer. I think you both mentioned that, despite all of your concerns, you are both realists, and the realistic situation is that this is going to be guillotined through the Senate next week, probably unamended, regardless of—

Mr Ross —That would be very sad.

Senator BARTLETT —I note that. The question is: assuming that happens—which I think is a reasonable assumption, although I do not pre-empt what this committee may do; perhaps they may make some recommendations and perhaps the government will listen—what do you think is the most important thing that should happen next to try and maximise the chances of all of this activity actually generating some positive results, as opposed to negative ones?

Mr Ross —I think the government have to be realistic about some of the things that they are putting forward in terms of education, health and housing. If, tomorrow, every Aboriginal kid in the Northern Territory turns up to school—you have probably already heard this—there are not enough classrooms, there are not enough desks, there are not enough chairs and there is nowhere near the amount of teachers that are needed. It is not going to happen. You have all of these problems. So, to start quarantining people’s money up front and removing the CDEP—you are going to put this logjam in place.

This needs to be done properly. We are not saying, ‘Don’t do it’; we are saying that it needs to be done properly. There needs to be a hell of a lot more thought and effort and involvement of Aboriginal people in this whole process and how we move it forward. There are long-term solutions, and Aboriginal people certainly want to be involved in this whole thing. There are no two ways about that. You need to involve Aboriginal people and you need to involve the Northern Territory government. We are going to live with this for the rest of our lives, not for just five years. We are going to be there forever, and our kids are going to be there and our grandchildren. So we need to deal with this properly.

The housing situation needs to be dealt with properly. I heard what the department said earlier about 12 houses at Kintore. Okay, that is 12 houses, but what about every other community that does not have enough housing and that needs all these problems addressed? So there are housing issues.

There are the health problems. It is fantastic that we have got people running around out there at the moment checking children; that is great. But there is not much point just having them run around checking people. We have got to look at the long term. How do we address having people employed full time, long term, to address these issues? There have to be proper clinics so that all these things—the diabetes problems, all these things—are addressed properly. There are the issues about stores and the food that is in those stores, and about employment. We are not saying: chuck the baby out with the bathwater. We are saying that long-term solutions are needed for what are long-term problems. In order to address them properly the government, the Commonwealth, need to think seriously about what they are doing and stop banging the gavel and saying, ‘We will tell you what to do,’ and ramming this legislation through without some amendments, as we have suggested. They need to get to the table with the Northern Territory government and with Aboriginal people and start working out what the long-term solutions are. That is what I think is the starting point.

CHAIR —Thank you, Mr Ross. Do you want to make a concluding comment, Mr Daly?

Mr Daly —Can you repeat the question?

Senator BARTLETT —Assuming this legislation passes basically unamended, regardless of what we might or might not like, what do you think is the one key thing that needs to be done and that perhaps the Senate, through another mechanism, could try to keep a focus on to make sure it does happen and maximises the chances of this opportunity producing positives rather than negatives?

Mr Daly —I think the key thing in the whole exercise—and this is a must for the government and for future governments as well—is full engagement with Indigenous people on the ground there. I agree with everything that Mr Ross said with regard to education, health and things like that. The systemic breakdown in society itself out in those communities is due to a lack of education, to a lack of funding basically. I think all of this can be seen qualitatively through the John Taylor report, which was commissioned by COAG out at Port Keats.

For me, the key point in this whole amendment that I would like to see them come and talk to us about is landownership, and when you get down to landownership, the permit system specifically and these communities it is a breakdown of property rights within Australia. If it starts here with the Indigenous peoples and Indigenous lands, where does it end? Property rights are the same all around Australia. Quite a few of us have individual properties of our own. If this law is applied to Aboriginal land then why isn’t it applied to the rest of society with regard to child abuse in major centres?

Other than that, I think there needs to be more work done by the Commonwealth and the Territory to come together with regard to addressing education out there. Education is the key within all of this, and that has been left out on its own. I think that is the key issue we need to fix for our people on the ground there. The key is education and employment, and I am talking about full-time employment. We also need to build an economic base for Aboriginal people to get ahead in life. For far too long we have been left out in the cold. All the money has been spent in the major centres around town within the Northern Territory. The Northern Territory have failed miserably to come to the table with Aboriginal people and work out good systems of governance within the Territory government so they can come out and talk to us on the ground and we can deliver good economic outcomes for our people. We need to get our own economic future coming up ahead and we need to move on it now for the future generation of kids.

CHAIR —Thank you very much to both the Northern Land Council and the Central Land Council for your evidence and your submission. We appreciate it.

[12.44 pm]