Wednesday, 15 August 2007
Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007; Northern Territory National Emergency Response Bill 2007; Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007; Appropriation (Northern Territory National Emergency Response) Bill (No. 1) 2007-2008; Appropriation (Northern Territory National Emergency Response) Bill (No. 2) 2007-2008
Consideration resumed from 14 August.
I seek some guidance. Yesterday I sought permission from the other parties to table a document. Unfortunately the document did not arrive in time for me to table it prior to the debate commencing yesterday. It was caught up in the docks at the front of Parliament House. I seek leave to table the document.
These are 12,947 letters to the Senate, asking the Senate not to rubber-stamp and assent to these bills through the GetUp! process. I seek leave to table the letters.
I am going through the proper process. I table the documents. I am holding in my hand a small fraction of them. There is actually a box in the Table Office, as I understand it.
The Greens will be supporting the Labor amendment; however, we do prefer the amendment that I understand the Democrats will be moving shortly because that amendment calls for a much more comprehensive review. As people know, the Greens do not support this legislation; however, if it is to go ahead we believe it is absolutely essential that we review the provisions in the legislation. We do not believe that the government has adequately demonstrated the connection between the acquisition of rights, titles and interest in land and child abuse. We agree that there should be review mechanisms in this legislation; however, we much prefer the Democrats amendment, which we will be supporting. It calls for a much more comprehensive and independent review, and it requires that something be done with the review. The ALP amendment has limitations because although it requires the review to be done—the minister must cause it to be done after the first anniversary—it does not say much beyond that about what is to be done with the review once it is done. The Democrats amendment calls for a much more comprehensive review. It is to be done independently and requires a copy of the report to be tabled in each house of parliament. We believe that is a much more transparent and accountable process than simply causing a review to be done. We will be supporting the ALP amendment but we do prefer the Democrats amendment.
I move Democrats amendment (1) on revised sheet 5340:
(1) Clause 6, page 9 (after line 27), at the end of the clause, add:
(3) The Minister must cause an independent and comprehensive annual review of this Act, the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007; and the Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 to:
(a) gauge their impact on Indigenous communities; and
(4) The person or organisation undertaking the review must give the Minister a written report of the review.
(5) The Minister must cause a copy of the report to be tabled in each House of Parliament within 15 sitting days of receiving it.
(6) These annual reviews are to continue until the end of the 5 year sunset clause, with the first review due to report 12 months after this Act is passed.
As Senator Siewert just very kindly outlined, in my view, the Democrats amendment is a more comprehensive mechanism for trying to ensure adequate review. It should be noted that the government members of the Senate committee recognised the need for a review but, for reasons best known to them, did not see any need to recommend that this be incorporated in the legislation. I appreciate that it gives maximum flexibility to the government to do some sort of review at a time and of a type of their choosing, and make it as public or not as they choose. That is the point of why these things are put in legislation, so that we are not leaving it solely up to government to pick timing and a type of review that suits them. We need to ensure that there are clear criteria in advance in the legislation that everybody knows are coming down and that there is some degree of requirement for compliance. As always needs to be said, before the minister or government takes offence and gives hand on heart commitments that reviews will be done et cetera, we have to consider the prospect of not just how the act might be utilised now, but how it might be enacted and utilised down the track. That includes a future government and obviously no commitment the minister gives here today can bind any future government or, I would suggest, even this government once the election is out of the way.
The amendment that I move on behalf of the Democrats requires an independent and comprehensive annual review of this act to gauge its impact on Indigenous communities and ensure that the act’s outcomes are consistent with the recommendations of the report of the Northern Territory board of inquiry into the protection of Aboriginal children from sexual abuse. It also requires the report of the review to be in writing and to be tabled in each house of parliament. That is not particularly out of the ordinary. As we all know, many acts have a requirement that various reviews and reports be provided to the minister and tabled within 15 sitting days of the minister receiving them. It is a fairly standard amendment in lots of ways requiring that an independent and comprehensive annual review be undertaken. It goes a bit further than some cases but, again, it is not totally unprecedented. What is unprecedented, of course—as has been widely acknowledged by all sides—are some of the powers that have been put in place in this act. They are unprecedented and extreme, and people on either side want to put cases forward about whether they are justified. This amendment does not go to that but makes sure we properly and independently review how the act is operating after a year, particularly in regard to its impact on Indigenous communities, which is what this legislation is meant to be about.
I note that when this amendment was designed it also had, as I said, the requirement for the review to assess whether the act’s outcomes are consistent with the recommendations of the report of the Northern Territory board of inquiry, which is better known as the Little children are sacred report. When I put together this amendment, I did not realise that the government’s attitude now, as detailed by the minister last night, was so dismissive of the Little children are sacred report. Perhaps the minister’s response might be that they do not intend this legislation to be consistent with the recommendations of the Little children are sacred report because they think the recommendations, basically, are ‘not worth a great deal’, to paraphrase the minister from last night. If that is a real problem for the government and if they do not want to have any review to refer to the recommendations of the Little children are sacred report, then the Democrats could, reluctantly, agree to have that part of the amendment removed and simply have the review gauge the impact on Indigenous communities, because that is the core issue.
Whilst I do not share the government’s dismissal of the Little children are sacred report, I do not hold it up as tablets brought down from the mountain or any form of holy writ. It is a good report but it does not address every single issue and, quite deliberately, had recommendations that it believed would be promptly implemented by consensus and cooperation. I do not in any way dispute that there is more beyond what is in that report that could be done, and I do not suggest that everybody has to sign up to every single sentence within it. It obviously has been used as the catalyst for the issues and the legislation that we are debating here today, and it is still regularly referred to by the government as justification even though they seem simultaneously prepared to trash it, or at least trash its recommendations, when appropriate.
The core issue, though, is not to have a dispute about the Little children are sacred report; we can do that separately. The core issue and aim of the amendment is to ensure an independent and comprehensive annual review of this act and related acts because, let us not forget, these powers are extreme. They are unprecedented in many respects and we need to gauge their impact on the people that we all say we want to help, which is Indigenous communities, families and children in particular. The Democrats believe there is a need for a requirement in the act that a review occur every 12 months and that it will be independent and comprehensive, will consider the impact on Indigenous communities and will be tabled in this parliament. The government may wish to give commitments that that will happen anyway, and I hope they do give that commitment, but, as I said before, they are not in a position to guarantee that that commitment will be followed through if it is not in legislation. I believe that even the spirit of the recommendations of the majority members of the Senate committee report recognised the need for review. This amendment goes to ensuring that review does occur and that it occurs properly, comprehensively publicly.
I will respond to that briefly, Mr Chairman. Again, I want to put on the record that there is no part of the Little children are sacred report that I intend to diminish. It was a shocking report and the evidence and the process of bringing out the evidence in those communities is to be applauded. It is the recommendations that we feel fall well short of what we read in the report and there is a clear difference.
We believe that these amendments—both the previous Labor amendment and this amendment—are unnecessary. What we have done is to ensure that we have picked up the recommendation of the Legal and Constitutional Affairs Committee report, which recommended a review in two years. And I understand that is the only difference—we both agree there should be a review. For those who believe the review should be in 12 months, we do not support that. Principally, because there are a number of issues in the Legal and Constitutional Affairs Committee report that we have picked up on and agreed to submit to, as I said yesterday, we will be making any strategic and operational plans public within six months, and any longer term plans within 12 months, and we will report publicly any changes or revisions to those plans. We have also agreed that we will provide a review in two years, but we have reserved our position on exactly what the framework of reporting will be. Whether or not we will use the Overcoming Indigenous Disadvantage framework is a decision we are yet to make, along with considering other frameworks. Obviously, it is very important to benchmark how we are going in the progression of this intervention. We believe the two-year process is a sufficient process within the revision, particularly if you take into consideration our acceptance of the other recommendations of the Legal and Constitutional Affairs Committee report.
I must admit that I do not agree that two years is sufficient when you have powers this extreme. We are all being told that this is an emergency that requires urgent action, and that is the justification for all of this being bulldozed through. To then say that we do not have to look at its consequences and its implementation until after two years is stretching it a bit. But, from the Democrats’ point of view, one could even concede to a two-year review—although I think it is far less than adequate—if it were actually put in the act as a legal requirement, along with the requirement that it be independent, comprehensive and that it be tabled in the parliament. The minister cannot give the guarantee that that is going to happen because he does not know who is going to be in government in two years—or who the minister will be, or any of those things. Even amending this by making it a review after two years, and each year after that, would at least give us some certainty that this would happen. Beyond requiring it to be independent and comprehensive, this does not constrain this government or a future government in how they would go about doing it or in the framing of that review, beyond assessing its impact on Indigenous communities, and it is hard to believe any review could do otherwise, given the focus of all these laws. So you really do have to wonder what the government’s objection is to just putting it in the law, even if we reluctantly go with two years instead of one year, which the Democrats would be prepared to do in the continuing spirit of trying to be cooperative and trying to find at least some common ground here and demonstrate some shared intent to deliver positive improvements. Putting this in the act simply means that people can be more confident. I really cannot understand the government’s refusal to allow that to happen even if we agree to make it two years rather than one. So I certainly at least make that offer on the public record. It is not, in my view, the best situation, but it is far better than nothing or the general but unenforceable commitment that the minister has given.
Likewise, I can see no reason why a review of the nature that we have been talking about is not built into this act. I think it is very reasonable. Given the extreme, extraordinary powers that the government has given itself, I think it is absolutely essential that it be reviewed. I do not actually endorse the concept of two years. I think it is essential that we do it within one year, given that these are extraordinary powers that we are talking about. I reiterate: the government has not demonstrated any link between taking over people’s land, these extraordinary powers, and child abuse. Therefore, it is essential that it be reviewed within 12 months. Giving the minister and the government these sorts of powers, the Greens believe, is unnecessary. They claim it is necessary. They should not be afraid to demonstrate in the act that they are prepared to review, to demonstrate that they are actually having an impact and that these powers are required. I do not believe that these Henry VIII clauses are a democratic approach to government in this country.
The government are taking onto themselves extraordinary powers that they have not demonstrated are needed to enable them to deal with child abuse in the Northern Territory. They have left it until one minute to midnight to actually do anything about it, after 11 years of neglect, and now they are not even prepared to submit their own legislation to a review to see whether the extraordinary powers they are taking onto themselves are actually having an impact. There is no excuse for the government not to be putting this into legislation to require that to happen. Quite frankly, I do not believe, and I believe many Australians do not believe, that they will in fact review this publicly, in either 12 months or even the two years that the government are talking about. We do not believe that they will do that. We need to hold the government accountable, and the only way we can do that properly is through the legislative process. Why is the government scared of putting this requirement for a review into the legislation?
I indicate on behalf of the Labor opposition that we will be supporting the Democrat amendment. It goes further than ours, and I perhaps would have dealt with it in a slightly different way, but the essence of the amendment is to require the government to account for progress and success or failure in the emergency intervention. It seems to me that that is not unreasonable. Quite frankly, the only reason the government are not agreeing to it is that they have the numbers. They say it is basically a reasonable proposition but they are not going to put it in the bill. They say, ‘Trust us.’ The point is that people do not necessarily trust the government. They look at the history of government intervention in Indigenous affairs and see it is not a very good track record. So is it unreasonable to insist that the government remain accountable?
One of the reasons given for this intervention is the failure of the Northern Territory government, in the view of the federal government. They say that the Northern Territory government has failed to deliver for Indigenous people, that it has failed to act. Well let’s have the federal government assessed under the same criteria they apply to the Northern Territory. Let’s have you measured on your performance. Let’s see if you meet your performance indicators in terms of this intervention. What are you afraid of? This is important stuff. You urge us to deal with this as a matter of urgency, and we agree. You ask for support; we give it. We ask that you accept a reasonable amendment that requires accountability. But, no, you say you are consulting; you say you are listening, but no-one’s view is ever taken into account. You are always right; you are always so clear. You pay lip-service to the committee’s report but you will not give any substance to it. You will not take the step that gives effect to the message that your own senators gave you. You say, ‘Trust us; we’ll do something about it.’
Quite frankly, that is not good enough. There are extraordinary powers in this legislation. We saw the Scrutiny of Bills Committee’s Alert Digest yesterday and the report which expressed serious concerns about how much power is passed from the parliament to the minister. A whole range of concerns have been raised by others about the extent of those powers. We on the Labor side accept that there is a need to give the minister certain powers to enable him to achieve the objectives of this urgent intervention, but they are not to be unfettered and the minister has to be accountable. This amendment is a mechanism for making the minister accountable.
I have to say that, on either side, the track record of government intervention in Indigenous affairs is not great. My experience of the COAG trials, your last go, the quiet revolution which you were all telling me two years ago was the answer and which has now proven to be an abject failure, is very fresh in my mind, as are a range of failures before that by this government and failures by governments before this one, including Labor governments. So I think it is perfectly reasonable for the parliament to say: ‘Hang on. If we’re going have such extraordinary powers, if we’re going to make such a major intervention into people’s lives we ought to have a very rigorous system for checking accountability and performance measurement.’ For the government to reject this amendment is outrageous because it asks only that there be a proper assessment of the measures.
As I say, I think the proposed amendment is an important measure that ought to be supported. It does not in any way undermine the government’s capacities; it just seeks to hold it to account. And I think it is a positive amendment both to the bill and to the general approach.
If the coalition are going down a big government response path, a very interventionist response path, then I think they who have always spoken about the limitations of big government intervention and the need for government to get out of the lives of people, who are taking a measure that is so at odds with their normal approach, for good reasons in terms of the serious reports of sexual abuse of Indigenous children and the amount of domestic and other violence in the communities, should themselves be anxious for reassurance that there will be proper accountability and assessment of the success or otherwise of the measures. I think this is a very reasonable amendment. I would urge the government to reconsider. They say they will have a review, so why not give application to that? Why not allow the legislation to make that clear?
I would like to respond briefly to the assertion that we have not listened to our ministerial colleagues. I draw the attention of the Senate to recommendation 3 of the Senate Legal and Constitutional Affairs Committee’s inquiry on this very matter. It says:
The committee recommends that the operation of the measures implemented by the bills be subject to a review two years after their commencement, particularly to ascertain the impact of the measures on the welfare of Indigenous children in the Northern Territory. A report on this review should be tabled in parliament.
We have accepted the review. We have said that it should be two years, and in two years time a report on the review will be tabled in parliament.
I indicate, then, to the minister that, in the spirit of goodwill and to give effect to his stated intention, if he were to move an amendment to reflect that in this amendment before the chamber, Labor will support it. If the minister seeks to amend it by changing the annual review to two years, we will vote for it. Let’s give some effect to the government’s stated intentions. If you are happy with that approach, Minister, amend the Democrats amendment, change the 12 months to two years, and we will vote for it.
Perhaps we should reflect on the COAG arrangements that the Leader of the Opposition in the Senate mentioned before. There was a series of reviews with regard to that suite of arrangements, and Senator Bartlett indicated that he understood well the need for flexibility in these arrangements. But we have been clear that there will be provided publicly to this parliament, both at a six-month and at a 12-month interval, detailed provision of the plans and the strategic direction of the intervention. We believe that the flexibility of the review needs to be maintained and we do not believe that it is necessary to provide for that in the legislation.
I think this really raises the question: what has the government got to hide? As I have said a number of times, whatever the commitment and however genuine the minister might be now, he cannot commit nor guarantee that a future government will follow through on those things. Whilst it is pleasing that the government will table plans, this is about reviewing the operation of the laws we are putting in place here. That is very specific to the operation of these laws. We all know that there is a lot to do with the so-called intervention that is already occurring and does not need these laws to occur. So I take the opportunity to make the point that that is precisely why the suggestion that these laws have to be passed today to protect a child from harm tomorrow is simply false.
We certainly do not want to hold up the laws unnecessarily—the Democrats’ position and record throughout this debate have demonstrated that—but we also want to make sure that, as much as is possible, the laws are framed in a way that will maximise their chances of being effective. That process is not only about what we pass through this chamber but about ensuring that there is proper scrutiny of the consequences. It is one thing to do everything possible to try to get laws right when we are passing them—unfortunately, though, we are not doing everything possible; in fact, the government is putting as many hurdles as possible in the way of our doing everything as well as we can—but, after we have passed the laws, the next stage is to review them, however good a job we tried to make of it. The Democrats offered the Labor Party—reluctantly but nonetheless on a better-than-nothing basis—a two-year review, to be put into the legislation. Given that is what the government has said it is committed to, the refusal to have it put in legislation simply begs the question: what is it that it has to hide?
This Democrat amendment provides enormous flexibility as to how that review would occur. All that it requires is an independent and comprehensive review of the act that gauges the impact on Indigenous communities and requires that the report be tabled in the parliament. There is a lot of wiggle room in that; it does not nail the government down very much at all. There is plenty of flexibility, and it is ludicrous to suggest that putting it into law as a requirement for a future government is somehow constraining the flexibility of any review. It raises the only other alternative: there is something there that the government thinks it might want to hide, and therefore it would want to have total control over the reviews so it can get the outcome it wants. It is the usual story of not having a review or an inquiry unless you know the answer in advance. That is the sort of thing we try to avoid here in the Senate when we put in requirements for reviews. Reviews should genuinely be informative and not just another predetermined snow job. And that is the only conclusion people can make—other than there being total intransigence of the government to any proposal that does not come from the government itself, which is also quite possible. Frankly, that is just as big a concern.
I will not keep repeating the remarks I made last night but I would re-emphasise that it is a grave mistake for the government to be totally intransigent to amendments to this bill—to refuse to accept any ideas just because they want to show that they are running the show, that they are in control and that nobody else has any role to play, that everyone else should just shut up and sit on the sidelines and get out of the way, including Indigenous communities themselves. That is the message that has been sent out by the government throughout this process. The attitude they are displaying in this debate reinforces that message. The key problem about that is not that it is irritating—whether I get irritated by it is irrelevant, frankly—but that it seriously compromises the opportunity for the government’s actions to be effective. It is simple reality and simple common sense that anybody who is the subject of significant government intervention into their lives is far less likely to be welcoming of that intervention, and the intervention is far less likely to be successful in the longer term, if the attitude and message that those people are getting from the government is: ‘We know what is best for you. Get out of the way.’ That is just human nature.
It is also a simple reality that we can find any amount of evidence we like to demonstrate that that is what has happened. It is extraordinary, even given the emergency situation and the importance of this issue, that a government that makes even a pretence of having any shred of liberalism in its philosophy could adopt such an attitude. It is such a monumental, interventionist, control economy, paternalistic, nanny state attitude of: ‘We know what’s best for you. Just shut up and take it.’ That is the attitude. I would have thought that this government, given at least one strand of its philosophical origins, would recognise that that sort of approach is not only anathema to liberalism but also anathema to effective activities, effective public policy, effective legislation and effective intervention.
The attitude being displayed even to this very simple amendment and the very generous offers by the Democrats and the Labor Party to water it down so that we at least get some guarantees in legislation simply highlights the real problem here. And unfortunately that real problem highlights the real risk that this government’s blinkered approach—its intransigence, its refusal to listen to anybody or to work with anybody—will make it far more likely, sadly, that all of the government’s activities and actions, however well intentioned, will not have a positive effect. That is the real tragedy. It is not about this amendment being successful but about the total effect of the government’s actions being less likely to be effective because of the completely blinkered attitude the government is displaying.
The government use the word ‘flexible’. To me, and I suspect to the broader community, ‘flexible’ means they will be flexible with the time lines; flexible about whether the review is independent, so that the government can decide who does the review; flexible about who is consulted—because we already understand the government’s definition of ‘consultation’ from the discussion last night; flexible about when the report is released; flexible about the benchmarks; flexible about whether the government will tell anybody they are doing it; flexible about what the government will look at; and flexible about what they will tell us, especially after they have done it. The government, in other words, want total control over how this legislation is reviewed. It is okay for the minister to shake his head, but that is what we interpret them to mean by ‘flexible’.
If the government were genuine about having a publicly available review, they would put it in the act. Not having it in the act guarantees that the government will call all the shots. They will decide when they want to do it—and, if the time line leaks a bit, they will say: ‘That’s okay because we do not have to meet any legislative requirement. We can decide who is going to do it; it does not have to be independent. We can decide what the terms of reference are. It does not have to be accountable to parliament, because it is not in the act. We can decide whether we are going to publicly release it, and we can decide who we are going to consult.’
As I said, we know what their definition of consultation is. It is: ‘We will tell people after the fact. We will go around and talk to people and we will make a decision. We then will not ask them about whether that decision is right or whether that decision is what they want.’ That is what the government did with this legislation: they went around and talked to people about general issues and got hold of and used as an excuse the Little children are sacred report to implement a whole lot of actions that were not recommended in the report.
By the way, the recommendation in the report does not say this is an emergency situation; it says it is of ‘urgent national significance’, which is entirely different to ‘emergency response’—the government decided that. They then did not go and consult with anybody about the plan they came up with, because they think they know best. Now they are telling people what they are doing, which is very different to consulting. Is that the definition of consultation they are going to have when they carry out the review?
The Australian public is cynical about this. This needs to be in the legislation. If the government were genuine about a review, they would put it in the legislation so that they could be seen to be doing the right thing. They are not. They want flexibility, which means they want total control. They want flexibility about the terms of reference, about how it will be done, when it will be done and about what they will tell the community. That is not good enough. Put it in the act.
That the amendment (Senator Bartlett’s) be agreed to.
by leave—I move opposition amendments (2) to (6) and (9) and (10):
(2) Clause 37, page 33 (line 21), omit “might”, substitute “must”.
(3) Clause 49, page 42 (line 13), omit “might”, substitute “must”.
(4) Clause 60, page 49 (lines 17 to 21), omit subclause 60(2), substitute:
(2) If the operation of this Part, or an act referred to in paragraphs (1)(b) or (c), would result in an acquisition of property, the Commonwealth is liable to pay compensation in ‘just terms’ to the person.
(5) Clause 60, page 49 (lines 25 and 26), omit “such reasonable amount of compensation as the court determines”, substitute “compensation on ‘just terms’”.
(6) Clause 61, page 50 (lines 1 to 14), omit the clause, substitute:
61 Amounts paid or payable
For the purposes of section 60, in determining just compensation that is payable in relation to land, the Court must take account of:
(a) any amounts of rent paid or payable in relation to the land under section 62; and
(b) any amounts of compensation paid or payable by the Commonwealth under the Special Purposes Leases Act or the Crown Lands Act in relation to the land; and
(c) any improvements to the land that are funded by the Commonwealth (whether before or after a lease is granted to, or all rights, titles or interests are vested in, the Commonwealth), including the construction of, or improvements to, any buildings or infrastructure on the land.
(9) Clause 134, page 94 (lines 13 to 17), omit subclause 134(2), substitute:
(2) If the operation of this Act (other than Part 4) would result in an acquisition of property, the Commonwealth is liable to pay compensation on ‘just terms’ to the person.
(10) Clause 134, page 94 (lines 21 and 22), omit “such reasonable amount of compensation as the court determines”, substitute: “compensation on ‘just terms’”.
These amendments go to the discussion we were having last night about the question of ‘just terms’ compensation. I will not go over all the ground we covered last night. Unfortunately, in our general discussion we ranged far and wide. This is a very important debate in terms of the bills. Both Senator Brown and I and a few others made contributions, and the minister responded. But, effectively, the argument comes down to the fact that in these bills the government does not provide for ‘just terms’ compensation. The government seeks to use an alternative term which causes concern among certainly senators and, I think, among Indigenous people that there is some attempt to water down what is seen as a constitutional right to ‘just terms’ compensation, although there is an argument about whether it applies in the Northern Territory et cetera. But I think it is broadly accepted, both by High Court interpretation and in the community, that people whose property rights are impacted by a government decision are entitled to ‘just terms’ compensation.
I think some people on the government side have difficulty coping with the fact that Indigenous people have property rights. The reality is that they do, and those property rights are going to be impacted by these measures. Labor is supporting that on the basis that the government has made a case that it is necessary to take control of the land and the property rights in order to facilitate the emergency improvements in housing and infrastructure, which will provide part of a response to addressing poverty and the conditions that allow child abuse and violence to occur. So we are supporting the intervention and the lease arrangements which interfere with those property rights.
But, in doing so, we are concerned to ensure that the rights of Indigenous people to ‘just terms’ compensation are not undermined. We think it is a fundamental principle of Australian society that the Commonwealth government should pay ‘just terms’ compensation for the acquisition of property from anyone. The fact that you are Indigenous should not deny you access to ‘just terms’ compensation. The government has run the argument that somehow the ‘reasonable compensation’ term they seek to use is interchangeable with ‘‘just terms’ compensation’, but they do not want to use it. Why don’t they want to use it? The answer yesterday was that the draftsman prefers the new term. As a senator, I prefer the old term. I had much more confidence and reassurance in the phrase ‘‘just terms’ compensation’ because of the way it has been interpreted over the years because of the broader understanding of it. I am strengthened in that concern by the submission from the Law Council of Australia. I have to weigh up, on one hand, the opinion of the Law Council of Australia, submitted to the parliament, and the minister’s assurance, on the other, that his draftsman has a different view, but that advice has not been tabled.
In paragraph 60 of their submission, the Law Council of Australia makes the point:
The Law Council notes that the legislation appears to shield the Commonwealth from its obligation to compensate the relevant Land Trust or pay rent, in circumstances where a lease is issued under section 31.
So they are asserting their concern that the Commonwealth is seeking to shield itself from its obligations. They also say that they think the legislation has been drafted to ‘pay as little direct compensation as possible’ but to ‘ensure the validity of the legislation’ in the event of a challenge. So the Law Council is expressing serious concern that the Commonwealth is attempting by its phraseology and the structure of the bill to prevent the full ‘just terms’ compensation rights being afforded to those affected by the takeover of their property.
Labor fundamentally thinks that is not right. We do not think that the parliament should take such a measure. The government’s explanation for its position quite frankly is unconvincing. We think that if the government is genuine about affording those peoples affected by interference in their property rights proper compensation then it ought to accept that the terms of ‘just terms’ compensation ought to apply rather than their alternative, which is a reasonable amount of compensation. I am assured there is a Federal Court decision et cetera that uses those terms, but, on the advice I have received, on the advice Senator Brown has received and on the advice of the Law Council, we still have concerns that that is not right and that ‘‘just terms’ compensation’ would be a much more satisfactory signal that we are not trying to undermine people’s property rights.
It is important that, even if the government have a preference for a different set of words, they also think about the perceptions. In my view, unless there is a very strong legal argument that somehow providing ‘just terms’ compensation undermines the integrity of the bill, then we ought to go with that rather than the alternative. A whole range of Indigenous groups and others interested in these issues have been concerned that this represents some sort of attempt to undermine proper compensation for the actions taken by the government under the powers granted by these bills.
If we are to breed confidence in the community that we are taking these actions on the basis of the desire to provide protection to Aboriginal children, not because of some other agenda in relation to land rights or the property rights of Indigenous people, then we ought to give them as much reassurance as possible. By passing these amendments, we think we will provide that reassurance and clarity, endorse a measure which will be much better understood and ensure that what the government says it wants to do is reflected in the legislation.
The Greens had a substantive discussion last night but we would like to go over it again and talk about a few extra points—that is, we believe it is quite clear that the government’s intention is to water down the concept of ‘just terms’. Why use a second term if they think they are interchangeable? ‘just terms’ is a term used in the Constitution and it has a specific meaning. There is an important body of law behind the meaning of that term. While to date there has not been a lot of case history in relation to the use of ‘just terms’ on Aboriginal land, we understand that ‘just terms’ would require compensation acknowledging the relationship of Aboriginal people to the land, not just in terms of land value or infrastructure values. That is a commonly understood meaning of ‘just terms’ as it relates to Aboriginal land.
‘Reasonable compensation’ is not a constitutional term and is much less specific in meaning. While you could potentially go to court as the government has been saying to argue that an amount of compensation is reasonable, you do not have the constitutional guarantee of the breadth of the term ‘just terms’. There is a difference between ‘just terms’ and ‘reasonable’. If the law is to use two different terms in the same piece of legislation—and even more so in the same section or subsection—then there is a presumption that they have a different meaning; otherwise, why are there two different terms? We believe there is no question on the basic principles of statutory construction that they would be seen by a court to have different meanings and that, given ‘just terms’ is the constitutional guarantee, ‘reasonable compensation’ would be read as requiring less than ‘just terms’.
If the government is genuine in intending that the two terms have the same meaning, then to avoid any confusion amend it to read ‘just terms’. If you do not want to amend it, it is quite clear that you have an intention to be confusing and for there to be two different meanings for ‘just terms’ and ‘reasonable compensation’. If nothing else and you are genuine in saying they are interchangeable but you want people to be able to go to court, it will reduce court time if you are very specific in your meaning. It is quite clear the government is intending to be confusing and for there to be a difference between the two terms.
If they are genuine, they would agree to amend it to remove the confusion about this particular bit of this highly complex and confusing legislation. I see no reason why the government is not prepared to clarify this point. It was raised in the committee. Unfortunately, they did not go far enough as to make a recommendation but it was raised as a point of confusion in the committee. The Law Council was very clear on it. All the advice that we have received on it is very clear: this is confusing and there are two different meanings. Resolve the confusion by amending the act; otherwise, the only interpretation that the community can make is that there is an intention for two different meanings, for there to be confusion and to force Aboriginal people into court to get compensation.
I note with some disappointment that we have two assertions in this place. One is that we do not seek to delay the passing of this legislation, yet we seem to be going over the same ground we went over last night. But I will respond again. I think we all need a bit of a reminder about what is going on here. The reason we are acquiring this land is that we have already tried to put infrastructure into these communities, and those attempts were delayed by about 14 to 16 months from even commencing. We know that if those delays occur with this intervention the intended outcomes are simply not possible. We are intending to provide new houses, infrastructure to those houses and street lighting—the level of amenity every other Australian takes for granted. That is what we are attempting to do; this is what this is about.
Even for someone with a very low level of knowledge of the law such as myself, particularly with regard to some of Senator Evans’s comments, the acquisition of property under the Constitution must be on ‘just terms’. Any bills that we bring into this place will not remove or diminish that aspect of the Constitution. I did not want to go into any further details but, perhaps for comfort, I mentioned the Customs Act last night and luckily it has been confirmed today that I was in fact correct. There are a number of acts, including the Commonwealth Service Delivery Act, which deal with compensation on ‘just terms’. It is exactly the same issue and exactly the same legislation. It is simply the convention that this wording is used. As I indicated last night, there was a Federal Court case to confirm that that convention was in fact correct. There are a number of other pieces of legislation—the Australian Hearing Services Reform Act, the Telecommunications Act and the Australian National Railways Commission Act—that refer to that exact wording. As I said, it is our simple intention to acquire the property. We have said, in this place, that the Constitution requires that, and we wish to acquire it on ‘just terms’. It is for a five-year period so that we can improve the infrastructure in that place. It will then automatically return to the landowners. We are not actually acquiring ownership of the land. The underlying native title remains. We have taken great care to ensure that that is the case. The wording of this is consistent with the wording of any legislation that provides for reflecting upon the Constitution, which says that any compulsory acquisition will be compensated on ‘just terms’, and this legislation reflects just that.
I remain, with all due respect to the minister, unsatisfied by his response. But it leads me to the other aspect of our amendments which I moved together, by leave— amendment (4)—which seeks to make it clear that the Commonwealth is liable to pay compensation on ‘just terms’. Clause 60 of the bill, paragraph 2, says:
However, if the operation of this Part, or an act referred to in paragraph (1)(b) or (c), would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on ‘just terms’, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
Putting away the ‘reasonable amount of compensation’ argument for the moment, there are two hurdles here. The second hurdle is that it says ‘only if that part of the Constitution applies’ which leaves open the question of whether it applies. I understand that this is driven by an argument that has been raging about whether the section of the Constitution about ‘just terms’ compensation actually applies in the territories as well as the states and I am equally as qualified as Senator Scullion to offer a legal opinion on this, so we will operate on the same level. I made the mistake of marrying a lawyer, so I have not won an argument like this for many years. But what is clear even to me is that there is a second hurdle. The Commonwealth leaves open the possibility that the ‘just terms’ guarantee in the Constitution may not apply. You have to pass the two hurdles, and our amendment seeks to make clear that the Commonwealth is liable to pay compensation. I do not understand why the Commonwealth seeks to leave that open unless it is part of some attempt to provide an opportunity to escape its responsibilities. Perhaps the minister could explain why it is that the second hurdle is placed in the way of someone seeking compensation and why the proviso that that section of the Constitution, paragraph 51, needs to apply. Does the Commonwealth think that it does not? If so, why not and what is the effect of putting that second hurdle in the way?
In circumstances of an agreement about the amount of compensation that would be paid, it is very important to know that if you get to a particular point at which somebody asserts that it is this much and the Commonwealth says, ‘We do not agree with that,’ then there must be a process that is independent from government for the resolution of that particular issue. Quite clearly, in almost every case in law, the trigger is that if you cannot agree then you will go to the judicial system, which is separate from both the plaintiff and the Commonwealth in those matters. The judicial system will then decide. It is simply a trigger that says, ‘At this point where there can’t be an agreement, a court will decide the amount.’ That is what it says clearly in the legislation and I would say that the legislation would be extremely lacking if it did not provide clarity around the circumstances where an agreement could not be reached between the parties.
I thank the minister for the answer but I do not think he answered my question. My question is: why are you requiring in this clause that it be ‘property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on ‘just terms’’? Why don’t you just state that that requirement applies? What we are offering in the alternative is a requirement that the ‘just terms’, if you like, guarantee or provision of the Constitution will apply in these circumstances, but it seems to me that you are trying to wriggle out of that. That is the advice that the Law Council provide, and they are the concerns that have been raised. I know there is this legal debate about whether it applies, so, given that there is this legal argument—this defensible legal proposition that that section may not apply under section 51 of the Constitution—aren’t you saying that compensation will only apply if it is found that section 51 applies to the Northern Territory? Only then will you have an obligation for compensation. Why are you putting that barrier in? Why don’t you accept that paragraph 51 of the Constitution applies to Indigenous people in the Northern Territory?
The Constitution applies to any action of the Commonwealth, wherever you may be in Australia and whatever your ethnicity. The Constitution requires that compensation is payable on ‘just terms’, and that is exactly what will apply.
I am not reassured. Again, I do not think that that answers the question, and that is an argument for Labor’s amendment, which makes it clear that the Commonwealth is liable to pay compensation on ‘just terms’ and omits this reference that draws into question whether or not section 51 of the Constitution applies. If the minister is so confident that it applies, and there is no doubt, why is he writing doubt into the bill? Why is he putting that hurdle into the bill? If it is clear, unquestionable and established then accept our amendment and take it out.
That the amendments (Senator Chris Evans’s) be agreed to.
The Australian Democrats oppose part 4, clauses 31 to 64 in the following terms:
Part 4 is to do with the acquisition of rights, titles and interests in land. This is a pivotal part of this legislation but it is not a pivotal part of ensuring better protection for Aboriginal children. These land related measures have been called lots of things by a whole range of people, but from my point of view they are clearly ideologically driven and, frankly, quite clumsy. No evidence that was put forward or provided to the admittedly disgracefully brief inquiry by the Senate Standing Committee on Legal and Constitutional Affairs into this legislation drew any linkage between the need for the government to acquire rights, titles and interests in land and the issue of addressing child protection.
If there was one single thing the government could do to demonstrate goodwill, to demonstrate its recognition of the need to reduce and remove apprehension and suspicion amongst many Aboriginal people about all that is happening at the moment in the Northern Territory, then removing this part of the legislation would be it. Everybody knows that land rights for Aboriginal people were hard fought and hard won, particularly in the Northern Territory. Everybody knows the initial implementation of the Aboriginal Land Rights (Northern Territory) Act 1976 was put in place by the Fraser government. It was one of their most significant legacies, which one would think the Liberal Party would be keen to claim and highlight. That legislation was backed on a cross-party basis at that time and retained cross-party support right through until very recent times.
That is not to say that land rights law is some iconic thing that should never be altered under any circumstances or that it operates perfectly in every respect, but to make amendments that remove people’s property rights in a capricious way and without consultation or any evidence to back up the assertions as to why this measure is needed to address issues such as child protection is bound to raise serious concerns across the board and particularly with Indigenous people.
As I have stated a number of times already, there is a very important responsibility on all of us not just to make this legislation as effective as possible but to do all we can in an ongoing way to maximise the chances of making a positive difference for Aboriginal children and families in the Territory and, ideally, more widely around the country. A key pathway for doing that is to recognise and embrace the common ground, the shared goals and those areas where there is widespread agreement and remove those parts that have no relevance to what is being proposed and the stated goal, such as this measure before us, and that increase suspicion and are a barrier to building trust and cooperation.
If there is one part of this whole package that is a barrier to that trust and cooperation, it is the government simply moving in and giving itself the right to acquire rights, titles and interests in land. That would be something of massive concern to anybody in the country. It is of particular concern to Indigenous people because they had their land taken away from them the first time around without any consent and by processes that were immensely traumatic and destructive. They won back those rights after enormous struggles. To have them just taken away again without a very strong reason, without strong consensus, without consultation, without consent and without any evidence that it is in any way related to justification of the government’s action is simply unacceptable. The Democrats simply cannot support this part of the legislation. For the reasons I have just outlined, we cannot support this legislation if it retains this measure.
All of us have spent a lot of time over the last six or seven weeks trying to hear the views of the Australian community and particularly the views of Indigenous Australians—and, more particularly, the views of Aboriginal people in the Northern Territory. I fully recognise Senator Scullion as one of only two people in this chamber who are from the Territory. No doubt he has far more engagement on a day-to-day basis with people in the Territory and, I would assume, with Aboriginal people in the Northern Territory. I do not see any point in getting into a ‘someone told me this versus someone else told you that’ discussion, but from all of the responses I have heard from Indigenous people this is the one area, along with the permit system changes, that comes up most consistently—and that includes many of the people I have spoken to who, in broad terms, welcome the government’s intervention. I do think it is important to reflect and acknowledge in the Democrats’ contribution to the debate on this legislation those views that have been expressed to me.
There are a lot of Aboriginal people who are so desperate, who have been calling for assistance for so long, that they are willing to support the government’s intervention because at least it offers them some potential for hope compared with what was not happening and had not been happening for so long. I acknowledge that, as I said in my contribution to the second reading debate on this legislation. But, even amongst the strongest supporters of the government’s intent that I have spoken to and heard from, I have not heard a single Aboriginal person say, ‘Yes, this is needed.’ There are some who say, ‘If we have to cop this along with it, we’ll cop it because of what we hope will come with it,’ but I have not heard a single Aboriginal person say, ‘Yes, we need to allow the government to take over the land; yes, we need them to be able to do the five-year leases.’
Even more so than with the permit system, this issue is one where not a single voice has said, ‘Yes, this will make a difference to child protection.’ I am not denying that there are some out there who believe that; I am saying that the overwhelming view is that if you are trying to move forward in a way that will maximise the chances of working together with people and getting a cooperative outcome then removing this part of the legislation is absolutely key.
As I said at the start, these measures are clearly ideological. It is no secret that they barrel along with the ideological agenda of the minister with his 99-year leases and so on. I have said on the record that I am not 100 per cent opposed to any amendment to the land rights legislation, and I am not 100 per cent opposed under all circumstances to exploring forms of leases—99-year leases or anything else. What I am opposed to is imposing that on Aboriginal people and taking away their rights without their consent via legislation. This is a key principle. We have heard some members of the government, quite ironically, relying on international conventions to justify all they are doing—particularly the UN Convention on the Rights of the Child. I am pleased to hear the government focusing on the Convention on the Rights of the Child. I shall encourage them to look at it more frequently in all of their actions. But an overarching part of almost all international human rights conventions, whether it is the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights—particularly when you are dealing with Indigenous peoples and particularly when you are dealing with issues that are removing their rights—is consent. There is no consent here. There has not even been an effort to gain consent.
The sad irony of what the government say they need these powers for, which is to move in and be able to build infrastructure and houses, is that there are no proposals for new houses in any of the funding that is attached to the appropriations for this legislation. Can you name any Aboriginal community in the Territory that, if the government said, ‘We are coming in, we are going to build a new house and we are going to build a new something else,’ would say, ‘No, go away’? Of course they would not. They have been asking for it for years. It is no surprise that so many people think that there is some other agenda here.
These measures are clumsy and ideological. They are not necessary and they are not related to child protection. There has been no evidence put forward to draw any link between those two issues. All we have had, at best, are some general assertions that this is somehow holding back the development of infrastructure, with no evidence to demonstrate that the government’s proposal would fix that problem in any particular way or that that has been a problem. This is a crucial part of the legislation, and the Democrats call on the government to demonstrate some degree of willingness to work cooperatively with people at a community level, to endeavour to build essential forms of trust and to recognise the need to strengthen and empower people at community level. You do not empower people by taking away their rights, particularly in such a heavy-handed, unjustified and non-consultative way.
On behalf of the Labor opposition, we will be supporting the government’s clause and opposing the opposition from the Democrats to part 4. I understand some of Senator Bartlett’s concerns but I fundamentally reject his key argument. His key argument is that there is no connection between housing and child abuse. I think that that is just not right.
That is the core of your argument, Senator Bartlett. In fact, the Little children are sacred report draws attention to that—it is the first tenet of it. In my view and Labor’s view, there is a direct relationship between the poverty in which Aboriginal communities exist and the problems of child abuse. Some people like to try to run an argument that there is some sort of cultural reason why there is child abuse in Aboriginal communities. I do not accept that. I do not think that all Aboriginal men are abusers of children. I think that the reputation of Aboriginal men has been terribly damaged by this whole debate. What we do know is that reporting of Indigenous child abuse has reached a level that requires action and acceptance that child abuse in many Aboriginal communities has reached almost epidemic proportions, so we need to act.
Some people say that more police would solve the problem. I do not think that is right. I think that you have to attack the underlying causes of the poverty and the lack of hope and the dysfunction in these communities. That sort of dysfunction occurs in other communities that experience poverty. It is not an Aboriginal issue; it is largely a function of poverty: lack of employment, lack of education opportunities, lack of hope, lack of housing, lack of access to health care et cetera. Those things are fundamentally at the root of these issues. All governments stand condemned for their failure to invest sufficiently in supporting communities with the basic infrastructure which most people regard as a right of citizenship. Labor do accept that there is a very strong linkage between housing and infrastructure and the dysfunction of the communities, which includes child abuse. We do accept that.
Senator Bartlett, your focus is more on the question of whether one needs to deal with leases to intervene, but, fundamentally, you have to accept that. And if you accept that then you accept that you need to take action. If you want to take action in an urgent manner, it seems to me that you need to provide the ability to deal with those issues quite quickly and in a decisive way. This causes the Labor Party great difficulty in respect of what that does to the rights of Indigenous people to their land. That is the hard bit for Labor. I concede that.
We have had a huge commitment to land rights over many years. We see the relationship of Indigenous people to land and their rights to that land as being at the core of their culture, at the core of the recognition of their dispossession and at the core of their way forward. We do not accept the conservative demand for people to be driven off their land and made to integrate in capital cities in Australia as the solution to Indigenous disadvantage. We defend the right of Indigenous people to access their land, to land rights and to native title rights. In these measures, we interfere with that relationship to the extent that the government seeks to take control of the leases. Labor will be moving an amendment, in conjunction with the Democrats, to ensure that the enjoyment of those native title rights and access to land for culture et cetera are not interfered with. The amendment will ensure that these measures do not prevent people practising culture and observing cultural practice that requires access to the land. This is a very important amendment, which I think Senator Bartlett will be moving shortly.
However, Labor accepts that there is some need to interfere with the leasing arrangements in order to facilitate measures aimed at addressing the chronic failure in housing and infrastructure in these communities. You will not deal with child abuse merely by providing education, more police and some of the other measures. They are all important but, in the end, you have to deal with the poverty. It is about 20 people living in one house and their children being unable to get to sleep at night because of the pressure from the number of people living there and because of the breakdown of the social norms. This is where I do agree with Noel Pearson: there are fundamental problems with alcohol and drugs that have actually broken down Aboriginal social norms. This is not Aboriginal behaviour; this is the effect of alcohol, drugs and the loss of the social norms in Indigenous communities. Many Indigenous communities function perfectly well and their children are safe because there are established social norms. The relationships and controls in the communities that are normalised allow people to live in peace, not to be fearful or subject to violence and child abuse. It is in those communities where the social norms have broken down that the problems exist. They also exist in European communities where alcohol and drugs are rife. We get more incidents of violence and child abuse in non-Aboriginal communities where the social norms are broken down.
The weakness in this package is the failure to deal with those things. They are much more difficult. Like all emergency interventions, you can go in and stabilise the situation but then you have to build for the future. You have to deal with the next stage. We are going through that in Iraq at the moment. Winning the war was easy; winning the peace is the hard bit. I am not sure that the government understands just how big a challenge this is going to be, and that is why I think the minister is guilty of simplistic solutions on occasions. These things will be much harder than I think he realises. Also, it gets back to Senator Bartlett’s point—which is a key one—that there has to be not only consultation but also Indigenous ownership of the solutions. Without Indigenous ownership these measures are not going to work. You have to build trust; you have to build ownership of the solutions.
While we support the emergency intervention and the stabilisation of communities, the way forward has to be owned by Indigenous people. I am not sure the government have got that. They have not got it in the past. I am not sure that they understand it now. All the international experience tells us—and Noel Pearson has written very convincingly on this stuff—that Indigenous people have to own the way forward and that big government is not the solution to the problems in Indigenous communities. However, we can make a serious contribution to stabilising those communities by providing the conditions by which people have the opportunity to live without fear, without violence and without their children being subject to child abuse.
Senator Bartlett, we fall slightly to the other side of the line in terms of these measures because we think they are important. When I was talking to the doctor at Wadeye I was trying to understand what a future Labor government could do in terms of health initiatives to improve the health of the children at Wadeye, and he said: ‘Build better houses. Build more houses.’ I had expected that someone from the medical profession would run the argument of more doctors, more nurses and more medical facilities. People tend to focus on their area of expertise and their needs—and there is a need for all those things—but he actually said that housing was at the core. He said that if you have more houses there will be fewer people living in the houses and that if you have better quality houses, with better sanitation, a lot of the things that bedevil those communities will be overcome. That is the starting point. So Labor accepts that housing is at the core. The Anderson-Wild report entitled Little children are sacred also said those issues were central.
We have a very strong commitment to land rights. We are reassured that those rights will not be altered by the measures in this legislation because of the fact that the government has not gone down the 99-year lease path. We had serious concerns about that. The five-year leases do come to an end. That it is a temporary measure in that respect gives me some reassurance about the long-term Aboriginal interests in the land. The fact that the underlying title of the land remains in Aboriginal hands is one of the reasons we are able to support these measures. Senator Bartlett rightly points, as we have also done before, to the concerns and the cynicism in Indigenous communities about the land measures, particularly because of the agenda Minister Brough and the government have run over the years: opposition to native title and to land rights, the push on 99-year leases and the claim that private housing is the solution to all woes. I understand that Aboriginal people are worried that that is part of the agenda. This is why the review is important and why the failure to build trust with Indigenous communities and their leaders on these issues is a weakness.
Fundamentally, housing and infrastructure do have an impact on the way the community functions, as well as opportunities children have and risks they are exposed to. Housing and infrastructure are fundamental—they are building blocks. Police and social workers et cetera will do so much, but unless you change the conditions of poverty under which people live, those measures on their own will not be enough. I make the point and I agree with Senator Bartlett that, in the long term, that will not be enough either. You need to deal with the social norms—dealing with the grog and the drugs will be part of it, but that will not be a lasting solution. People will get access to those things down the track. You have to build social norms and you have to build Aboriginal ownership of solutions and the way forward. Although I understand Senator Bartlett’s concerns, we think this is fundamental to the approach.
Following this debate, I want to ask a couple of questions about investment in housing. I am concerned that there is a lot of money for administrators and for white officials to go into communities, and I want to be convinced that there is a lot of money on the ground going into housing. I know how expensive repairs are in the Northern Territory, as they are in the north-west of WA, so I have a number of questions I want to ask.
Fundamentally, we think the attack on housing and infrastructure is critical to the emergency response and we accept that there is a proven need to intervene in the leasing arrangements to facilitate that emergency response. We do not think that it needs to be there in the long term and we do think that the government needs to justify ongoing action in terms of the interest in the land. The five-year sunset clause gives us comfort, but we will also be holding the government to account to make sure that interest in the land is not maintained any longer than is necessary to stabilise the situation and that we will allow Indigenous communities to take back control of their land as they build on the opportunities that, hopefully, will be available for them to lead safer lives.
I want to correct a couple of things straightaway that I do not want to let stand. There are other points that I want to raise, but I will let others speak. I totally refute any suggestion that my position is based on a view that there is no link between housing and child abuse. I have stated repeatedly on the record in this place and outside that that is one of the key reasons why there needs to be serious extra investment in housing for Aboriginal and Torres Strait Islander people, not just in the Territory but around the country. That gap in the adequate provision of housing for Indigenous Australians is a key reason and a key factor of why we have so many other problems, whether it is child abuse, health outcomes or other situations.
I was not arguing that there is no link between housing and child abuse. I was, and am, arguing that there is no link between providing that housing and having the measure contained in this legislation of the government taking over the land for five years. At the end of his contribution, Senator Evans asserted that there is a link. If there is a link, I have not seen any evidence of it. There was no evidence provided to the Senate committee inquiry that I saw. The evidence provided to the inquiry from Professor Altman, who has been working on these issues for decades, is of the opposite, if anything. There is clear evidence that there is no link at all between the control of land and provision of housing.
As we all know, there are many parts of the Northern Territory where Aboriginal people are not living on land that is subjected to the Aboriginal Land Rights (Northern Territory) Act, and there are many areas outside of the Northern Territory, such as in northern Western Australia, where obviously Aboriginal people are not living on land part of the Northern Territory land rights act. I have not seen any evidence— in fact, I have seen evidence to the contrary—that shows that there is no better situation in the provision of housing in those places than there is in communities that come under the Northern Territory land rights act. I did want to clarify that issue once and for all. I do not like being labelled as having suggested there is no link between providing better housing and reducing the incidence of child abuse. I think there quite clearly is; I just do not see any link between the government taking over control of Aboriginal land for five years and providing the housing.
Senator Evans referred to Noel Pearson and his views about Aboriginal people needing to take ownership. I do not see how you can take ownership of things by having that ownership taken away. You will not get ownership of solutions by taking away control nor by taking away ownership of the land. It was Noel Pearson who described the land related measures of this legislation as ‘clumsy and ideological’. They are terms I agree with, which is why I am using them. As Indigenous people regularly remind me, there are many Indigenous people, other than Noel Pearson, who have views that we need to take into account. There are also many people in the Territory who say that Noel Pearson is not from the Territory and cannot speak for them. He is regularly held up by some in the media and the government as a key Indigenous leader who is giving the tick of approval to what the government is doing. So it is appropriate to point out that he is seen as giving a tick of approval to all this, yet he has called these land related measures clumsy and ideological. As recently as last Saturday Noel Pearson said:
It is absolutely imperative—
which is, I think, reasonably strong and clear terminology—
that the provisions relating to the holding of town leases and the subsequent disposition of leases not be within the sole and arbitrary power of the federal Government. Rather, this should be the province of an entity that is comprised of representatives of indigenous landowners.
I would love to hear from the minister whether or not they are taking heed of that call from Mr Pearson that this absolutely imperative measure be part of the government’s approach in regard to the holding of town leases, that it not be totally within the sole and arbitrary power of the federal government but there be some Indigenous representation from landowners involved in that. I cannot see it in this legislation and I would be pleased to hear from the government that they are taking those concerns into account.
The Greens will be supporting this motion. We will be moving a broader amendment that covers more than just part 4, but we do oppose part 4 so we will be supporting the Democrats motion as well. We do not accept the argument that there is a need to take away people’s land in order to deal with child abuse. I do not accept the argument that Labor put forward either. They seem to be supporting the government’s argument that you need to take away people’s land in order to provide housing and in order to deal with child abuse. I do, like Senator Bartlett just said, accept the argument that we absolutely need to provide safe, adequate housing to Aboriginal communities. We have been repeatedly on the record, both in this place and elsewhere, arguing that very strongly. We do not accept the argument that the government needs to take over townships and town leases in order to provide that housing.
We do not accept the argument that the government have to take on all these extraordinary powers. They are not just taking these leases and these townships in order to provide housing, it seems to us, because they are taking on all sorts of other powers under these laws, such as the minister’s capacity to terminate any rights, titles or other interests in the land at any time. The government can sublease or license their interest in the land. Last night we heard arguments being put forward that we need to open up these townships as well as get rid of the permit system et cetera to allow business and tourism to come in. It seems to me, therefore, that this will not be just about housing. This is about overriding communities’ control and decision making over their land in order to facilitate businesses and other entities building and operating in those townships.
Also during this debate over the last number of hours, particularly last night and this morning, the argument has been made that there has been lots of consultation and that the government have been trying to get this organised for 14 months. I am presuming that as part of that argument the government and the minister were referring to the discussions that have been held over the town camps in Alice Springs. To me that argument absolutely underlines the ideological nature of the government’s approach: ‘We will do this our way, and that is it.’ The minister knows full well that there were ongoing negotiations there and the community did not accept the government’s argument that they had to hand over the leases. They had fought hard for control of those town leases, which they had finally won. They were not prepared to hand them over, but they were prepared to compromise. As little as three or four weeks ago, as I understand it, they came back with another proposal that did not require them to hand over their leases. They came up with a compromise position. But even then the government were not prepared to accept that. If the government are genuine about providing houses, the position that Tangentyere Council and the communities there were willing to put up would have facilitated houses being built, but it did not meet the government’s ideological agenda, which is absolute control. That is the point here. It is not just about providing houses; it is about taking minutiae control.
I have a number of questions that I would like clarified. I know that Senator Evans and Senator Bartlett have also said that they have a number of questions they would like clarified. The depth of these changes is of such an extent that the government can, as I alluded to earlier, exclude and refuse to allow people to live on or access the land—including, as I understand it, traditional owners. I want to know: will the government be excluding traditional owners from living on and accessing the land? People want a cast-iron guarantee about this. It is all right continuing to quote Noel Pearson—and I think Warren Mundine was thrown in last night—but other Aboriginal people, including the Combined Aboriginal Organisations of the Northern Territory, have said very clearly that they do not support these amendments. These are the people whose land we are talking about. They do not support these amendments. Of course they support government support and the injection of funding by government into housing. They have been crying out for housing for years—$2.3 billion has been asked for for years for investment in housing.
It is not right for the government to say that they need to take these extraordinary powers in order to provide housing. I am disappointed that the ALP have bought that argument when just last year they were opposing the government’s changes to the land rights act. I know it was slightly different, because that was about 99-year leases, but the concept was still the same. The government’s argument was that we need to have these leases because we need to provide private housing in order to deal with the housing crisis and promote economic development. There is not the evidence to suggest that that in fact happens when you provide private housing. There is not the evidence to suggest that in order to provide housing you have to provide private housing. There is not the evidence to suggest that you need these extraordinary powers in order to provide housing and infrastructure. And there certainly is not the evidence to suggest that you have to have the power to terminate any rights, titles or other interests in the land. This is an ideologically driven agenda that will not deliver outcomes on child abuse. It does take away people’s rights, access to and enjoyment of their land and their decision-making capacity in relation to their land. That is why the Greens are opposing this.
I do not want anybody for one minute to say that the Greens are opposing increased housing and proper infrastructure for Aboriginal communities. What we disagree with is the over-the-top manner in which the government are approaching this. They are using this as an excuse to push their ideological agenda. I would like the minister to answer the question about traditional owners and then maybe we will get into some more detailed questions. I have some specific questions about town camps in particular that I would like to address through this ongoing debate.
I will try to cover all the issues. There have been quite a number of questions. I commend Senator Evans on the majority of his submission. I think it very articulately deals with the reasons that the government will not be supporting the Democrats motion. We keep hearing from the Democrats and the Greens that there is no scientific or empirical evidence about the connection between child abuse and infrastructure. Perhaps we could look simply to safety. This is not only about houses. Particularly in Northern Australia, much of the entertainment happens in the evening because it is the coolest part the day. Most of the communities, in fact the vast majority of the communities that I visit quite often, are characterised by having lots of kids outside playing, and there are no lights—there is no electricity—on the streets.
We know that in the current circumstances, or the circumstances before the intervention, particularly if you had domestic violence or substance abuse in the home, the kids would flee. They would go out and see each other and they would be outside of the home because that is the only place to be. But we know that when even outside of the home you do not have the basic safety of lighting it is very hard to observe inappropriate behaviour. So it is not just about houses; it is about simple normalisation.
For the benefit of Senator Siewert, I was not talking about the town camps. The 14 months of negotiation was in other places that we were attempting to put in infrastructure. The simple governance arrangements that are in place at the moment clearly inhibited us from doing that. Fourteen months of negotiations still could not get something done. Someone may be saying in some circumstances, and I am certainly familiar with this: ‘Yes, you can do that, but you’ve got to build me a house, although I’ve already got two and I really don’t fit the principle of most need.’ The people in most need are those who are staying in someone else’s house because they do not have a house themselves. If we are going to deal with this issue, we have to deal with it in a fair dinkum sense—dealing with the people who are most vulnerable and most in need, and the existing arrangements do not cater for that. What we are saying is that, as we did with the Public Works Committee, we know that there are aspects that we want to avoid—not because we are trying to avoid scrutiny but simply because they could be an impediment to the timing for rolling this intervention out.
We will be building homes and we will be building infrastructure. Senator Bartlett indicated that he could not see where the money for housing was in the appropriation bills attached to this legislation. I will repeat, as I did last night, that there is $1.6 billion in the budget for dealing with that issue. Whilst that is a generic sum for all of Australia, I believe that much of those funds would flow through the intervention to the Northern Territory.
It is interesting that it is said we are somehow tearing up rights. It needs to be understood that the Aboriginal Land Rights (Northern Territory) Act will continue to apply. Briefly, for the benefit of Senator Siewert, I will provide some more information, and hopefully we will not go through this again in another part of the debate. In terms of the continuation of rights of traditional owners to use or occupy land as they always have done, the Commonwealth five-year leases are in fact subject to the traditional rights that Aboriginal people have to use and occupy land under section 71 of the Aboriginal land rights act. That is going to continue, because that aspect of the land rights act has not been removed at all. This means that Aboriginal people can continue to use and occupy the land subject to the lease, provided that it does not interfere with the use and enjoyment of the Commonwealth lease. Consistent with section 71, it is the government’s intention to allow Aboriginal people to continue to exercise their traditional rights where this is consistent with the emergency intervention.
On this notion that the Commonwealth would somehow change that, I do not understand why we would possibly wish to achieve that when it is our clear intention to assist these communities, to provide normalisation and to provide infrastructure that will clearly help people’s wellbeing, whether it relates to crowded houses or completely failed and retarded infrastructure. These are absolutely essential elements of the intervention. The current governance arrangements have proved to be almost impossible to deal with. We know that that is an impediment, and it is an impediment this legislation removes for a five-year period so we can go in and build infrastructure to help the lives and the wellbeing of these communities. The notion that we are there to do anything else is false.
I seek clarification of the point about traditional owners. I think at the end of your speech you said ‘as long as it doesn’t interfere’—I am sorry I do not have the exact words in front of me—‘with what the Commonwealth is doing’. Sorry if I am paraphrasing you—I do not mean to verbal you—but that impinges on people’s rights. Their rights apply ‘as long as it doesn’t interfere with what the Commonwealth is doing’. My understanding is also that you can exclude people from those lands and that the people who can be excluded could include traditional owners. I am happy to be corrected, but that is my understanding and that is why I am seeking clarification—so that I do have a correct understanding. You can exclude people, that exclusion can include traditional owners, and their rights are subject to their not impinging on what the Commonwealth is trying to achieve.
I understand that the short answer is that it must be consistent with the emergency intervention, and we need to remind ourselves that the reason we are having this intervention is to prevent child abuse. There may well be circumstances where an individual in the community is not consistent with the intervention, and it may well be that they are under investigation for these perpetrations—there could be a whole suite of issues. But the Commonwealth maintains, so that there is the capacity to ensure that the emergency intervention protects children and families, the right to potentially exclude somebody—perhaps even a traditional owner—in those particular circumstances. I cannot go to the exact nature of the circumstances—I imagine they would be broad—but it would be consistent with the emergency intervention.
Perhaps I could be excused for being a little bit cynical about this. I can appreciate why you may want to exclude somebody who has been found guilty of a crime and is a perpetrator, but my understanding is that it is not limited to somebody who has been found guilty of crime and that it could be extended to somebody who you just think is causing trouble in the community or who may oppose or have a different opinion to what the government is saying. I think those powers are quite wide open in terms of the fact that, as I understand it, they are not limited to people who have been found guilty of child abuse.
The lease is like any other lease. The lease provides the Commonwealth with the same capacity as with any other leased piece of land. As with any other piece of land the Commonwealth would lease, the Commonwealth reserves the right to exclude any person. That is just the way it is. Anybody who owns and provides land has the capacity to exclude people in one way or another. You are inferring that somehow we will go down the road of excluding them for reasons such as criminal behaviour or that we do not like them. The lease allows people, under common law, to exclude people and to exercise certain rights of the lease—just as they can in respect of any other piece of land in Australia. All I can do is to reiterate that the reason for acquiring the land is to provide infrastructure. That is the government’s clear intention. The nature of the acquisition of land is in accordance with the circumstances of any other lease of land that the Commonwealth would make anywhere in Australia.
Thank you for answering my question; you did provide the answer and you clarified the circumstances for me. You talk about the provision of infrastructure. Last night you referred to the issues around business and tourism. The government has the ability to provide subleases and to license their interest in the land, so is it the government’s intention to sublease to businesses in these areas that we are talking about?
This is the nature of a lease. There is the capacity to say, ‘I would like to set up a power station here so we can provide infrastructure,’ which may be regarded as a sublease, although at some stage it could be then handed over to the control, for example, of the power company in the Northern Territory. These are just mechanical aspects of a lease under which the Commonwealth, on the basis of an emergency response, may see fit to sublet a part to ensure that, on the basis of the emergency response, some level of amenity could be provided.
The minister, I am sure, knows very well why I am asking these questions. There are many people who have been very careful about controlling the types of businesses that operate in their communities. I know there are issues around negotiation but, as far as the Greens are concerned, there is unequal capacity to negotiate in respect of traditional owners having an ongoing say in the areas we are talking about. I want to be very clear about whether, under these provisions, the government will allow other businesses onto the leases that the communities now control. That is what I want to know. If I am wrong, I will be really happy to be told that I am wrong, but I want to clarify it.
No, you are not wrong—the Commonwealth does have the capacity to do that; however, I think you need to see it in the context of a five-year lease. Any lease or sublease within that process will expire at the end of the five-year lease period. With respect, I cannot see someone rushing in and setting up a business that is not in the interests of the community in the context of a five-year lease. All those leases will collapse at the end of five years.
That is interesting. I appreciate what you are trying to tell me but, in comments you made last night in reference to the debate we were having on permits, you were very clear that you wanted to open up these communities to businesses and to tourism. To me that sets alarm bells ringing, as I am sure it does in the communities, as to what the government is trying to achieve. It is opening up the permit system, and one of the reasons you gave last night was that it was for business and tourism. That can only mean that you want businesses and tourism to come into those areas. I am very deeply concerned that that may be in conflict with what the communities themselves want, and they have expressly said that in the past.
I must confess that the government believe it is in the interests of the communities to develop business. It is in the interests of the communities to develop employment. We unashamedly support that, and all of the communities I go to unashamedly ask for more opportunities for business. As a clarification—and I know you are not being mischievous, Senator Siewert—my answer last night was directed to a question you asked of me with regard to the permit system. When I talk about businesses, I am talking about the sorts of businesses that spring from tourism—from people who simply drive in and drive out, thereby providing opportunities principally for people in the community. A range of opportunities exist. The vast majority of tourists to Australia want an experience that is an Indigenous Australian experience, and those experiences can only be had with Indigenous Australians—for example, a bushwalking or a fishing operator. Opportunities are acquired from tourists driving into the town, as happens in any other town on the east coast of Australia. I certainly was not alluding to businesses that might need some special lease arrangements. The Indigenous people already live in the communities. They have access to infrastructure in the communities for those sorts of things. I certainly was not making any connection between the leasing and the operation of businesses in the Indigenous communities. I stand by my first comment: we are absolutely behind opportunities for employment and the sense of wellbeing that it gives individuals in communities. Taking away the necessity for a permit system along the main road and in the township area will provide great opportunities for, and will increase the wellbeing of, Indigenous people living in the communities.
I have a couple of questions to ask the minister but before doing so can I indicate to Senator Bartlett that I might have phrased my contribution badly. I do not for a moment question his support for housing and investment in Indigenous communities, nor his interest in the area, but I suspect sometimes the Democrats are not looking at things in the context of the child abuse intervention. Some of these issues on their own perhaps do not stand up to individual assessment, but you have to put them in that context. I guess that is where we have a disagreement.
First of all, I want to ask the minister about the Aboriginals benefit account. What intentions do the government have in relation to any spending out of the Aboriginals benefit account in regard to the emergency intervention and do they intend—as the minister has in the past—to use money out of the Aboriginals benefit account for government initiatives or for events in the minister’s electorate? I would like to have a clear understanding of the relationship between the intervention and the Aboriginals benefit account and to know whether the government has any intention, as part of the intervention, to access the moneys held in trust in those accounts for Indigenous people in the Northern Territory.
I note the ongoing general interest in Indigenous affairs of the Leader of the Opposition in the Senate, and I am more than happy to provide a briefing to him on those matters. In the interests of process: the legislation that we are discussing at the moment does not deal with those matters. I am not trying to get around the question, but at the moment we are considering the Democrats amendment, which does not deal with that. I think it may be useful if we can provide a briefing from the department on exactly where we are up to on the ABA and any processes associated with that.
I will ask the minister to address it in the consideration before we finish with these bills, rather than have him take it on notice. I started there, but the major line of questioning I want to raise with the minister is the investment in housing and infrastructure and the amount of money that is going to be applied. Given what has occurred in the last couple of years, I saw that the minister might be seeking to use some of the funds out of that. That is, if you like, the secondary question.
I will start with the primary question. It really goes to the overall housing issue, which is what we are considering: the intervention in land to facilitate housing. One of the concerns expressed about the intervention is that there is a lot of focus on paying for officials, four-wheel driving lessons and all of those things which are necessary when moving people into the communities. I think we have already seen that the cost of the intervention has grown significantly. I think that is not unexpected. You cannot do things in remote areas without it being costly.
I want to ask a question about the investment in housing. The minister used the figure of $1.6 billion for Indigenous housing. I take it he means that that is the total, not new money. In fact, the new money in the budget last year was about $300 million over four years, in my understanding. So we are talking about an additional $300 million over four years to overcome what everyone accepts is the crisis in housing that has occurred under the previous allocation. It seems to me that all we are saying is that there is $300 million in new money over four years over the whole country. I do not mean to reflect that $300 million is not a lot of money, but, on the face of it, this does not appear to be a massive extra investment in Indigenous housing and, given the recognition of the costs of building in the Northern Territory and the size of the task, it will not go all that far.
First of all, is it actually only $300 million in extra money? Is it over four years, as it appears? Is it to be spread over the whole of Australia? How much will go to the Northern Territory? Is there any intention to provide any other funds to support the intervention, and to provide a contribution to new housing? As the minister knows well, while improving the maintenance of housing in the Northern Territory is a matter of urgency, if you still have 18 or 20 people in the house then having a better quality house does not solve the problem, because the house will not stay in good condition if you have 20 people trying to use the one toilet. That is the reality of the experience in the Northern Territory—and Senator Scullion knows more about it than I do. I will come to the matter of maintenance in a moment. Is it a fact that the amount is $300 million over four years? Is it over all of Australia, and is there any other provision or intention to invest more money into new housing in the Northern Territory?
Whilst this is departing substantially from the legislation, I will discuss it briefly. In addition to the $300 million, the senator may recall some announcements about the change in the policy for the Community Housing and Infrastructure Program. The CHIP is now being targeted at remote Australia, rather than at urban and metropolitan Australia. Indigenous housing in urban and metropolitan Australia is now mainstream, with other public housing. The vast majority of the CHIP now—which is the $1.6 billion—will flow to remote regions, and a large percentage of that will go to the Northern Territory. So, whether it is new money or not, I hope you can take something from that—the $300 million. It is redirected money.
The other thing that is very important is that we will not be continuing to do the CHIP in the same way it was invested under ATSIC. The building of $500,000 to $600,000 homes that have only three bedrooms will not be done anymore. We have the opportunity for some critical mass efficiencies, and we have the opportunity for design efficiencies.
For the benefit of Senator Crossin, who interjects, to perhaps further understand what I was talking about: if you buy one house, it is going to cost you far more per house than if you buy 20 houses. We have some efficiency dividends and we also have a policy that moves housing investment away from metropolitan and urban housing and invests in regional and rural housing. That is principally where the funds will come from for housing. In terms of the investment in infrastructure, the infrastructure investment build goes further than just the housing.
I thank the minister for his answer and for attempting to answer the question. I do not think it is irrelevant. You are asking us to approve leases so that you can invest in housing quickly. That begs the question: are you investing in housing quickly? In terms of these bills, there is not a lot there, so the question is: where is it, what is it and how much is it? It is directly relevant to whether the parliament says you need the power. Quite frankly, if you were not investing in housing, we would not be giving you support for the bill. That is the whole purpose of you telling us of the intervention, so let us get down to tintacks: what are you going to put in that will alleviate the problems that lead to child abuse, violence and the other concerns?
I think your answer indicates that the new money is the $300 million over four years. You indicate that you have taken the emphasis off urban housing, but I would still like some firm indication of how much money is likely to go to the Northern Territory as a result of this package of initiatives and how much of that is new money. I accept that you will make some savings from doing things differently, although I do not accept that it is all ATSIC’s fault—ATSIC has been gone a while—but I will not go down that gully. How much is new money and how much is going to the Northern Territory? Will that be over four years or is that front-end loaded? These are serious questions that go to whether or not we are making the intervention effective in terms of housing.
I am keen to tie down what you can tell us about that and also to be clear about what appropriations there are for improved maintenance of housing in the Northern Territory. I note that some of the capital appropriations are for housing for officials. I want to be clear: in terms of the investment in housing, repairs and maintenance, what extra money is going into housing, repairs and maintenance in Indigenous housing in the Northern Territory over the next few years? What sort of money are we talking about?
In terms of the process, at the moment we are negotiating with each of the jurisdictions in splitting up the entire amount of money that is available. I am advised that the Northern Territory will be doing very well out of that, with the lion’s share, if you like, because of the intervention. The actual figures and what will be going to the intervention will not be known until such time as those negotiations are complete, but as soon as the negotiations are completed we will let you know.
I understand that a number of weeks ago Minister Elliot McAdam in the Northern Territory urged this government to look at a debt that is owed to the Commonwealth government. It is a hangover from self-government days. I think that around $92 million or $94 million is still owed to the Commonwealth as a result of self-government. It goes back to a debt—right back to 1978—that the Northern Territory government and successive governments have been paying off each year. There was a suggestion from Elliot McAdam that the Commonwealth write off this debt in return for the Territory government putting that money towards Indigenous housing. Has any thought been given to that offer from the Northern Territory government? This is apart from the additional $100 million they have committed; this would be an additional $92 million on top of that $100 million. Has any thought been given to those representations from the Northern Territory government? If not, why not?
I am not aware of any negotiations or discussion between Elliot McAdam and the minister in that regard, and I do not see any reason why I would be. I am here representing the minister specifically to discuss this legislation before the house, and that is what I will continue to do.
With all due respect, I would have thought that, as the minister responsible for housing under family and community services, you might well have been in the loop about that representation from the Northern Territory government. I am wondering whether you can take that question on notice if you do not know the answer.
I am unaware of any of the details of those circumstances. I am reluctant to take it on notice, but I am more than happy to ask about and see what information can be provided. It is the nature of these negotiations that often not all parties are prepared to provide where they are up to with regard to the negotiations. I am unaware of them, but what information the minister can supply I will provide to you.
I have a number of questions that I want to ask about the special purpose leases, particularly as they relate to Tangentyere Council. In clause 44, this legislation seeks to give the Commonwealth minister the power to forfeit special purpose leases and to resume them. If the government forfeited leases in the Alice Springs town camps, what would be the basis for that? Would it be because of a failure to comply with a covenant of the lease or would it be that rent has remained unpaid for at least a year without the minister’s consent?
In general terms, the notion of acquisition of any interest in lands or resumption, forfeiture or acquisition of town camps is an issue that would come as a secondary action. It would be secondary, of course, where the Northern Territory government does not take early action to resume or forfeit the town camp areas. That is when the Commonwealth would undertake that action. That is to ensure that early action can be taken to improve the living conditions of the camps. So, where the Commonwealth considers it necessary in order to improve the living conditions, it is going to have the power to acquire long-term lease freehold interests over the town camps. A freehold interest would give the Commonwealth sufficient control of the land to make real improvements. It is important to note that native title will not be extinguished in dealing with the town camps. The future act regime of the Native Title Act will be disapplied for government and related actions in the town camps to ensure that there are no delays in providing improvements.
I am not entirely sure that my question was answered. Were you answering my question in terms of the Northern Territory government forfeiting the leases? My question was in response to the federal government forfeiting the leases, and I am not sure it has specifically been answered.
We are actually debating part 4, five-year leases—that was the amendment put by the Democrats. The debate has been had and, in terms of process, it would be useful if we could stick to the program if we are going to make any progress at all on this, Senator. With respect, you make some very valid points and ask some questions that deserve an answer but, in terms of trying to move through the process, we should try to have these discussions at a time where the amendments or the issues that are indicated are in that part of the debate. I assume we have reached the end of the debate with this particular Democrat amendment, and if we could move forward on that we would be better off.
Thank you for that. There are, as I understand, no specific amendments that go to the Alice Springs town camp area. I am seeking to raise this because it does actually go to special purpose leases, which is the section of the act under which I would assume this is to be discussed. I have specific questions about the leases in the Alice Springs camps. Could the minister enlighten me, if the government intends to exercise the power of resumption, for what purpose the minister would intend to resume the land and how that land will be used in the future? If any land is resumed or forfeited under the act, would it be used exclusively for the benefit of Aboriginal people?
With regard to the town camps, the bill also provides for the Australian government to exercise the powers of the Northern Territory government to forfeit or resume certain leases. The notion of the failure to provide for the lease in an arrangement would be the same issue, an identical and parallel issue, to that under which the Northern Territory would move to cancel a lease because of noncompliance between the parties. But I do not think this is the place to surmise what those may be. They would be around the same conditions of the current leases that exist between the Northern Territory government and the occupiers—certain leases known as town camps—during the five-year period of the emergency response. I understand the Northern Territory government has announced that it will not resume or forfeit the town camp leases. Again, it has walked away from its responsibilities for Indigenous citizens in the Northern Territory, and that is why this bill provides for the government to do what the Northern Territory government has refused to do.
The government has been in negotiations with Alice Springs town camps for some time and we remain hopeful that they will agree to subleasing the housing areas of their land to the Northern Territory for 99 years to be run as normal public housing. You would be aware that negotiations are under way in Tennant Creek to deal with some of the town camps there. It is very promising, and those negotiations will continue.
Let us disaggregate the situation in Tennant Creek. My understanding is that people at Julalikari Council and the town camps in Tennant Creek are happy to have 99-year leases, whereas Tangentyere Council have quite clearly put to you and your government that they would be able to move forward on these negotiations if 20 years was accepted as the lease period. I think this clause is in this legislation simply because this minister has no power to negotiate and no will to negotiate. If you wanted to see a way through the stand-off that has occurred with the Alice Springs town camps, you would be prepared to lower the threshold and go to 20 years as a means of moving through this rather than digging your heels in the sand and insisting on 99 years. That is the difference between Alice Springs and Tennant Creek: Tennant Creek are happy to have 99 years; Tangentyere Council have consistently said that 99 years is too long but they are happy for 20 years. So you might explain to this parliament why this government is not prepared to negotiate and accept 20 years in the interest of moving forward. Secondly, why is it appropriate for the notice period for the resumption under this section of the act to be 60 days when it is currently six months; why is it going from six months down to 60 days?
Tangentyere Council are in fact responsible for the circumstances in the town camps in Alice Springs—that is their job; they are responsible for it. So they are responsible for the most shameful, outrageous and disgusting living conditions at the moment. Tangentyere Council—
Through the chair, Mr Acting Deputy Chairman, they are responsible, so we have said we are happy to provide for a 99-year lease where people can have confidence in the infrastructure that we put in, that it is there for their lifetime and for a long time. This government is not happy to hand back in 20 years to a governance arrangement that is responsible for the current living conditions. No, we are not—unashamedly so. I commend Julalikari Council for their leadership in saying that a 99-lease is the standard lease arrangement in Australia. Those are the terms under which the offer was made—and quite reasonably made—and that has been well reported.
This is in the nature of the remainder of these things. This is an emergency response and we need to change the circumstances on the ground quickly. The reason that the time has been reduced is exactly the same reason as for a whole range of issues that we have changed—that is, to ensure that there are no delays in providing appropriate levels of amenity for these communities and families and for the safety of children.
I have to take issue with the minister trying to put the blame for the conditions in the camps on the Tangentyere Council when he knows very well that they have been carrying out and providing many services to those camps that would otherwise be unavailable to the camps’ residents. It is disingenuous of the minister to try and blame the council for the conditions in those camps. However, I would like to re-ask the question that Senator Crossin asked and which I did not hear a satisfactory answer to. Will the government guarantee that, if it exercises the power either to resume or forfeit the leases, they will then be used exclusively for the benefit of Aboriginal people and they will only be used for that?
The intention would be that, if you would look at any other suburb in Australia, that would be the circumstances of the lease arrangements. It would be the same as Mawson or Belconnen in the Australian Capital Territory. There will be no difference. They will just be like normal suburbs.
That provides the answer but it is not a satisfactory answer. In other words, you are making no guarantees when you take away these people’s land, because that is what you are doing. Let us be clear: that is why Tangentyere Council and the members of that community said, ‘No, we won’t hand over the leases because we do not want to hand over the hard fought for control of our land.’ What you are saying—if I have interpreted you correctly, and again I am happy if I am wrong—is that it will not now be for the benefit of Aboriginal people. You are going to treat those lands like any other suburb. That is what you just said. You have answered the question but it is a totally unsatisfactory answer and I think the community, when hearing that answer, will be extremely distressed. That is why they did not want to hand over the leases in the first place and it is why they said no. You would not negotiate; they were prepared to negotiate. What you have just said is exactly what they are scared of.
Tragically, from all of the conversations that I have had with people who live in those circumstances, they quite clearly see that the provision of infrastructure—housing, roads, gutters and environmental health, like garbage disposal so that people actually have a garbage bin and someone picks their garbage up—is not something that they are afraid of. I do not want to get into a debate about what is in the wider benefit, but I would have thought that, yes, it is normalisation. We stand by that. It will be just an ordinary place where people live, not a dark place that is completely different from the surrounding suburbs because of some particular difference in the way that it is governed. You can say that $18 million was nothing to do with Tangentyere Council, but obviously someone had their eye off the ball. They were responsible. They were paid the money to provide the services in that area and they have not been provided, so they have to take some responsibility for it. But at the end of the day this is just simply normalisation, and normalisation means a huge improvement in the living standards of those people. It will be for the benefit of the Indigenous people who currently occupy the town camps.
I would like to encapsulate and pull it back to the amendment before the chamber, which is to remove that part of the legislation that empowers the government to acquire rights, titles and interests in Aboriginal land in the Northern Territory. Almost all of the questions that have been put to the minister have been relevant to that, because the reason that the government is seeking this power to take control of Aboriginal land is because it says it needs to do so to put in place housing and infrastructure. I did not intervene, but I think both Senator Evans’s and Senator Scullion’s contributions created the inference that the Democrats do not see any link between child abuse and poor infrastructure and housing. I presume that was unintended but it is still very frustrating to be so grievously misrepresented. As much as anybody in this place, the Democrats have pointed to the need to significantly and substantially improve housing and other infrastructure in Aboriginal communities both inside and outside the Territory for a whole range of reasons—one of which is that it would improve child safety and child protection.
What we are disputing is the need for the government to take complete and total control of the land for five years in order to do that. There has been no documented evidence to demonstrate that that is needed. There have been assertions, and I am not in any way suggesting that those assertions are dishonest, but there has been no evidence. There has been evidence provided to the contrary. I accept Senator Scullion talking about normalisation, but I am not quite sure how far you would want to go with the parallels of having the suburbs of Canberra replicated in every aspect in the Territory or anywhere else. But there is a general principle—which I am sure that he is trying to apply when making that comparison—that people have the same rights to services, security, safety and opportunity as they do in city areas. That is a principle that the Democrats support and have long advocated.
But there has been no attempt to demonstrate why it is necessary to take these sorts of very extreme measures in order to achieve that. If there was any link then we would be able to point to all of the Aboriginal communities outside of the Territory that are not under the land rights act and do not have a permit system in place which would have all of this housing, infrastructure, security of services and safety that the minister says will flow from this measure. The simple fact is that there is no evidence to demonstrate that those communities have that in a better way than the communities whose land is going to be taken over by this measure. That is what this is about, from the Democrats’ point of view. We really need to try to keep this debate as honest as possible, because this misrepresentation, where people are suggesting that you do not need to improve housing or infrastructure, is ludicrous. Of course you do and we should be doing it even apart from the link with the issue of child abuse. We should be doing it anyway because of the basic issue of all Australians having equality of opportunity and equality of access to safety, security and services regardless of the extra, very important, imperative of child abuse and child protection. It is important to pull the issue back to that.
I make one more comment. There has been—appropriately, I believe, for this issue—some focus on what is being proposed and what is being done in terms of extra resourcing for housing. The minister has understandably pointed to the $1.6 billion of funding in the federal budget, spread out over a number of years. I find it interesting that the government can spread out over a number of years measures such as remote area housing funding and all the other measures in the budget but when it comes to this particular measure they will give us costing and money until 30 June. There are no forward estimates at all. I make that comment in passing.
On the key point of housing, when the budget was put out the Democrats welcomed the extra resourcing for housing but concerns were expressed—which remain—that, firstly, you are robbing Peter to pay Paul, partly. You are taking resources away from Indigenous housing in urban centres where there are also significant, different types of need and perhaps not as extreme but still a need to put resources into Indigenous communities in more remote areas. The second thing the government is doing is once again tying it to its ideological agenda, that all of this money can only be applied in circumstances where the housing is either state housing or provided via this quasi ownership under 99-year lease or other types of arrangements. Again, I would say I am not opposed to having some housing provided through public housing. I am not opposed to some housing being provided through 99-year lease arrangements, where appropriate. Indeed, I point to other areas such as the Yarrabah Aboriginal Shire Council in Far North Queensland, which is willingly exploring this 99-year lease option and doing so in a way where they retain control of the land, rather than handing it over to a government. I hope that their approach will meet the favour of the federal government in terms of the application of some of this funding.
To stick to the territory, we need to ensure that money is provided in a way that gives maximum value. Frankly, the assertions that the government keeps making that providing any sorts of funds to Aboriginal community housing organisations does not provide any value is predominantly ideologically motivated. The evidence and report which the government have put forward to justify refusing to provide funding to Aboriginal community housing organisations is, I think, very thin and very selective. It suits the government’s ideological agenda. It is a classic example of a report that is done to produce the result you want but does not take into account the evidence in the real world and all of the evidence on the ground. The Democrats are concerned about practical results. We are not interested in ideological flourishes or symbolism. There is too much of that from all sides in the debate over Indigenous issues. Symbolism is important and has its place but not when it becomes a determining factor for policy measures where the value for public money being spent and, even more importantly, the benefits for Aboriginal people on the ground are being compromised because of ideological obsessions and the need to squeeze the policy measures through the flavour of the day.
While it is welcome that there is some extra money, there are very serious questions about whether it will be applied in a way that ensures maximum effectiveness. Nonetheless, the opportunity of providing that housing in terms of the economies of scale which Senator Scullion referred to does present a genuine opportunity. Whether that will be the way it happens on the ground I do not know. I think Senator Crossin’s interjection was regarding the cost of housing provided recently at an outstation near Wadeye, which was certainly very expensive in the amount per house. I hope the government’s efficiencies of scale improve dramatically on that one. At this stage there is no extra money being provided in the context of these emergency measures; it is a measure that was previously in place. While it is welcome, there are still question marks over whether it will be provided effectively.
The sole question I would ask of the minister, which I believe is relevant to this section of the bill as well, goes to the point I made earlier about the statement by Noel Pearson that it is absolutely imperative that the provisions relating to the holding of two leases and the subsequent disposition of leases not be within the sole and arbitrary power of the federal government but rather the province of an entity that is comprised of representatives of Indigenous landowners. Is there any scope or intent within the government’s approach that would allow any form of Indigenous representation in regard to the decisions made or the holding of town leases?
In answer to Senator Bartlett’s specific question, I reflected to Senator Siewert that the nature of these arrangements are for a five-year lease. I am assuming you are discussing the five-year lease process that is in front of us. The five-year lease process is, in terms of governance arrangements, a relatively short time. Our principal focus is to provide in that five years a very different level of amenity, particularly in services. We think we can provide that level of amenity but we do not think that changes in terms of the ongoing negotiations about the government arrangements are really necessary. Each of the town camps and the communities have leadership arrangements in place that we can consult with from time to time. For this to work it has to be a partnership. We have already had some outstanding feedback from where those intervention teams have gone in. We are working very closely with the leadership on the ground and that will be an essential element in how we go forward.
Senator Bartlett, you said earlier that we had perhaps misrepresented you. That certainly was not my intent. I accept now that you do see an association between the provision of infrastructure and child abuse generally, in terms of the intervention. I was not trying to suggest otherwise. I think the recognition is that we have to deliver the infrastructure in an emergency sense, in a timely way. I think you would accept that the evidence we have and the experience we have is that, unless we change the governance arrangements, it takes well over a year to come to the most basic agreements—so, without the provision for the compulsory acquisition of these areas, a delay will occur in the further protection for children that you have indicated that you support. If that is this case—and, as I have already said, there was no intention to misrepresent you—then I think the very best thing to do would be to withdraw your amendment.
It is no great surprise that we are not going to reach agreement on this. The simple position the Democrats are putting forward, and why we will certainly persist with our amendment, is that we do not believe that taking total control of Aboriginal land—in the way that the minister is now reaffirming they are doing—is necessary to achieve the extra provision of infrastructure and housing that the government say they are going to fund. I think it is good that we get on the record as often as possible the government’s commitment to fund and resource the provision of that infrastructure over this full five-year period, but the core issue before the chamber at the moment is whether or not the total takeover of these parts of Aboriginal land is necessary to achieve that outcome.
I point back to the question I asked about the reason behind it, the motivation behind it. I do not want to keep referring to Noel Pearson, because, as I said, there are many other Indigenous people other than him, including many from the Territory, but the key point of his argument—and it reflects the feedback I have received from many Aboriginal people in the Territory—is that it is absolutely imperative for them to retain some control over their land. I have heard nothing that the minister has put forward today that indicates why they have to lose total control over their land and total control has to go to the federal government to enable these things to be done. That is why it is imperative that there be some degree of representation of Indigenous landowners in the decision making about what happens on their land. Frankly, I just do not believe there are any that would say, ‘No, we don’t want you to build extra housing on our land.’ That is just a ludicrous suggestion. When you boil it down, that is what is being put forward here—that unless we take total control we are not going to be able to build these houses. That is just ridiculous. It is not something that would be accepted anywhere else in the Australian community and I do not see why it should be accepted here.
That part 4, clauses 31 to 64, stand as printed.
I, and also on behalf of Senator Evans, move Democrats amendment (3) on sheet 5340:
(3) Clause 35, page 32 (after line 26), at the end of the clause, add:
(12) The rights of traditional Aboriginal land owners, notwithstanding their absence from their traditional lands and in accordance with section 71 of the Aboriginal Land Rights Act 1976, continue despite this section.
I am moving this amendment jointly with Senator Evans. It is second best, or probably third best, compared with what we tried to achieve with our previous amendment. In many ways it has its own great significance. As I have emphasised a number of times, this debate is not just about the final legislation but the way the debate is conducted, the information that comes out in the debate and the attitudes that are displayed. I believe that one of the key issues is the ability to build—or, in many cases, to rebuild—trust and opportunities for cooperation at both community and leadership level. This amendment is important in that regard, because it is very straightforward and reaffirms and puts into law assurances that the government has given, including the assurances that the Minister for Community Services gave earlier today in responses to some of the questions that were put to him this morning.
This amendment goes to the section of the legislation regarding the grants of leases for five years, and it simply ensures that one of the conditions of the leases is that the rights of traditional Aboriginal owners will continue despite this section. The section as a whole deals with the terms and conditions of leases. The amendment is a simple way of reaffirming that the traditional rights of landowners will continue. This is something that the minister earlier sought to reassure the Senate will be the case. Putting it in the law would put that beyond doubt and, I suggest, would go some way towards increasing the ability of traditional owners to work cooperatively with government officials. I commend the amendment as eminently sensible, very fundamental and very valuable.
I have pleasure in moving this amendment jointly with Senator Bartlett. As he explained, it is an attempt to ensure that Indigenous people’s access to their land, in accordance with their traditions and customs, is not interfered with unnecessarily by what we do today. In taking the quite dramatic and major step in terms of Aboriginal property rights of taking out five-year leases over townships compulsorily, it seems to us that we have to be sensitive and protect the capacity of Indigenous people to observe cultural and traditional practices.
This amendment is about ensuring that Aboriginal property rights are protected. It will send a signal to Indigenous people that this intervention is not about removing their right to practise and observe their culture and that we are conscious of and sensitive to their needs in taking this action. We think it is an important amendment in that it makes clear the sort of assurance that the government has provided. We also think it is important that the legislation reflects that, because it will allow confidence in both the operation of the act and the intentions of the parliament, and that the parliament expresses the intention reflected in the act. This will send a very clear signal to Indigenous people that it is not the parliament’s intention to interfere with their right of access to land or with their observation of traditions and customs.
The Greens will support this amendment. If we take at face value what the government said this morning in answer to our questions about not interfering with people’s rights, they will accept this amendment because it is putting in the legislation what they have said. This amendment clarifies their intention of not taking away people’s rights. The Greens do not support this legislation, but, if it is going to go ahead, we would like to see this amendment in the legislation to reassure Indigenous communities about their rights.
As I said earlier, it is really important to recognise that the Commonwealth’s five-year lease does not affect the operation of the Aboriginal land rights act. Specifically, section 71 provides for traditional owners who may not even live in the community to continue to exercise their traditional rights. Since this legislation will not have an impact on the land rights act, particularly section 71, this amendment is unnecessary.
If the minister thinks that sort of response is going to reassure people—it is not about reassuring us; it is about reassuring Aboriginal people—he has to be kidding himself. To say that the legislation has no intention of interfering with people’s rights, that it does not have any effect and therefore we do not need to have this amendment is, I think, frankly a non sequitur. If the government is genuinely saying that the legislation does not have any effect then there should be absolutely no problem with including the amendment so as to put the issue beyond doubt.
Legislation, including the bills before us, will have clauses that start with the words: ‘To put it beyond any doubt, the following is the case ...’ That is the purpose of this amendment: to put it beyond any doubt, because there is doubt. Notwithstanding the assurance of the minister, that doubt will continue. Indeed, I would suggest that that doubt will be much stronger because of the intransigence being displayed by the government once again.
Following some questions from Senator Siewert during the debate on the previous amendment, the minister again made the statement that the rights of traditional owners would continue. I thought he then qualified that by saying that they will continue as long as they do not get in the way of what the Commonwealth wants to do. I am obviously paraphrasing somewhat, but his words were to that effect. We need to know what it is: either the rights will continue except when they get in the way of what the Commonwealth wants to do or the rights will continue. The minister has just said that they do continue and that they are not affected, at least in terms of rights under the land rights act. If that is the case then the amendment should be supported. If that is not the case and the rights continue ‘except for’ or ‘in a qualified way’, that should be made clear as well. I would prefer that the amendment was agreed to. If the amendment is not going to be agreed to, it should be made crystal clear just how far those rights will not be continuing.
I move Democrat amendment (4):
(4) Clause 37, page 34 (after line 11), after subclause (6), insert:
(6A) If the Land Trust proposes to grant, terminate or vary a town lease, it must not do so until after it has consulted with an Indigenous Consultative Land Council (ICLC) comprising:
(a) one (1) representative of the federal Government;
(b) one (1) representative from the Northern Territory Government; and
(c) three (3) representatives from the local Indigenous land councils,
all of whom must have had relevant experience in town leases.
This amendment proposes a new Indigenous body for township leases. It seeks to ensure that, if the land trust proposes to grant, terminate or vary a town lease, it must not do so until after it has consulted with an Indigenous consultative land council comprising a representative of the federal government, a representative of the Territory government and three representatives from local Indigenous land councils—all of whom must have had relevant experience in town leases. This amendment goes to the section dealing with rights, titles and interests of leases. It seeks to do what I have raised a number of times before and what has been described as absolutely imperative—that is, there should be some scope for representatives of Indigenous landowners to have a say in the holding or varying of town leases.
To some extent we have gone over this debate, so I will not labour the point excessively, but it does go to the core issue and is why it has been highlighted as absolutely imperative. Even if one accepts—and the Democrats do not particularly—that, because of the emergency nature of the government’s intervention, there needs to be more immediate and stronger powers given to the federal government, to do so in a way that completely removes any degree of Indigenous control, any say at all over what happens with these leases with regard to Indigenous people, is (a) unnecessary and, therefore, (b) quite dangerous.
Let us not forget that one of the overreaching philosophies underlying this—and one I have a fair degree of sympathy with, at least in principle—is that we need to be empowering and strengthening Aboriginal communities; we need to be getting Aboriginal people to own the solutions to their own situations and problems; and we need to be shifting away from a passive mentality. There is a lot of merit in recognising the dangers and damage of both passive welfare and being a passive recipient of services in other ways. I do not think that it is the be-all and end-all of the situation, but there is a fair bit of merit in acknowledging the negative contribution that can make. That is why, when you do act, it is crucial, as much as is possible, to ensure that it is not done in a way that reinforces that passivity. But that is what the government is doing here with its approach.
We have bizarre cognitive dissonance from some on the government benches in justifying their approach in recent times. On the one hand they are saying that passivity is terrible and we need to move away from it and get people to take responsibility for their own lives. Then, in almost the next breath, they are saying: ‘We openly admit these measures are paternalistic and paternalism is great. And isn’t it good that we are finally able to accept that paternalistic approaches are ones that we are not ashamed to take up.’ The very essence of paternalism is reinforcing a passive recipient culture towards the people who are being subjected to the paternalism.
This amendment seeks to mitigate that by ensuring that there is a degree of involvement from people with relevant experience in town leases and from local Indigenous land councils. I would submit that it does not fatally compromise the government’s approach of taking much greater control over Aboriginal land. It removes the problem of exacerbating a passive recipient response from the situation for Indigenous people. It deals with the issue of enabling Aboriginal people to be part of the solution and part of the process. To say that you will get around to that in five years time, which is the implied position of the government—we will do all the rebuilding of communities after we have done all of the emergency intervention—I think reveals a fundamental misunderstanding of how to go about these things. You cannot switch from one to the other. If you put in place foundations that people do not have ownership of and involvement in then you are making it almost impossible, particularly in these sorts of circumstances, for them to then develop ownership. That is a mistake that has been made in the past by governments of all persuasions and it would be rather silly to repeat it here.
This is an important amendment for the reasons I have outlined and it provides another effort to recognise the common ground that needs to be identified and maintained, rather than letting the government blow away that middle ground and force the people to either side of a divide. That, apart from anything else, will make the chances of success of this intervention much more difficult. The Democrats’ focus on and approach to this issue is about maximising the chances of success in the long term rather than any short-term positioning opportunities that present themselves.
The Greens will support this amendment, although I am not convinced that it is going to address some of the issues that Senator Bartlett outlined, because it merely requires consultation. Even if they say, ‘We think this idea isn’t a very good idea,’ there is no requirement for those comments to be taken on board. The benefit is, however, that the government or the trust will be forced to explain their reasoning to an Indigenous body and, hopefully, they will put a brake on some of the government’s potentially more outrageous attempts to lease land against the wishes of the community. The amendment will require them to explain what they are doing and also give them the opportunity to hear what people from the Indigenous community think about it. Given the strong concerns we have about this whole legislation package, I am a bit pessimistic about what impact the amendment will have. It is, at least, a mechanism that will provide a level of consultation that is otherwise noticeably absent from this legislation. The Greens will be supporting this amendment.
I am not inclined to support this amendment, because I am not sure that I understand it or that it adds to the operation of the act. To say that Labor has been consistently arguing the question of 99-year leases et cetera should be dealt with separately. This debate is about the emergency intervention and should not be covering issues of broader land management. I think that issue has been accepted by the government generally. The legislation does not deal with land issues, in general terms, beyond the five-year lease.
I understand that what is occurring here is that the government has made provision for a land trust to negotiate a longer lease while their five-year lease is in place. It effectively says, ‘Despite the fact that we are taking control of your land, if you want to do something more long-term, your right to do that is not usurped by the five-year lease.’ So, I have to try to understand why a Democrat amendment would seek to unsettle a provision that provides that opportunity to a land trust—that is, to the Aboriginal owners of the land—and instead seeks to insert a committee, partly made up of whitefellas, to tell them whether or not they can enter into a lease of their land. It seems to me to be counterproductive to everything the Democrats and I argue.