Thursday, 16 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
NORTHERN TERRITORY NATIONAL EMERGENCY RESPONSE BILL 2007
This is, in effect, a Democrat amendment that we are speaking to. Just before question time Senator Scullion spoke in response to a couple of the questions that I asked. I have one or two more, but I will wait until he is in the chamber before I ask them. In the meantime, note that Senator Scullion’s comments before question time in many ways reflected mine—the importance of ensuring that Aboriginal people across the board, but particularly Aboriginal children, have access to fresh food and that their community stores are reliable and not filthy with rats and all of those sorts of things. There is no disagreement here. This is where we are at so many cross-purposes in this debate: raising a concern about the application of the government’s policy via this legislation is not in any way disputing the intent. I said at the start of my contribution that this is one area where there is pretty widespread agreement amongst the Indigenous and non-Indigenous people whom I have spoken to in the Territory.
There is definitely room for improvement amongst some of the community stores. I was pleased to note the minister specifically acknowledged that in some communities the stores are fantastic. Wherever we can in this debate, we need to ensure that we do not create the impression that every community is a disaster and that every Aboriginal man is a paedophile and so on. I know nobody is saying that, but that can be the impression that people get. I am sure all of us know—and I am sure that even Senator Scullion has heard this in his feedback—that a concern is developing amongst some Aboriginal men that everybody instinctively thinks that they are probably a paedophile or a violent drunk. That is not directed at the government, but when there is a lot of focus on the issue of child sexual abuse there is that potential. We all know that that is a minority of people, but we need to state that as often as we can to ensure that that almost subconscious perception does not develop.
But to come back to community stores: it is the same principle but a different point. Clearly, there are stores which are good, and it is important to acknowledge that. The Democrats amendment before us is not in any way disputing the stated goal. As I said at the outset, getting fresh, good-quality, healthy food into kids a couple of times a day is probably as good a health measure as you would wish for and better than an endless array of medical checks. If you can get the healthy food into them, you will be doing a hell of a lot more good in the long term. If you do not do that, you can have all the medical checks in the world and you will still keep having problems. This is a crucial area and the Democrats have indicated our in-principle support for the intent. Our concern is about the application and the workability of measures in the legislation. I think that is what we should focus on: whether this will work and whether it is necessary.
I appreciate the minister’s concern that the expansive and very significant power in the legislation does not reflect the intention. I am not debating the intention. I am debating what is in the legislation and how this power can be used. As a legislator, you have to look at what sorts of things are enabled by the power, not what the intention is of the government of the day. With regard to that, I think there are a couple of issues here that do need acknowledging. I will read out a bit of division 4 so that it is clear and it is on the record what is actually enabled by this section:
The Minister may … make … declarations in relation to some or all of the eligible assets—
that is, the assets of a community store—
… to which this section applies …
These declarations may include:
(a) a declaration that the legal and beneficial interests in the assets are vested in the Commonwealth … without any conveyance, transfer or assignment …
… … …
(c) a declaration that a specified instrument relating to any or all of those assets … continues to have effect after the legal and beneficial interest in those assets … vest in the Commonwealth …
(d) a declaration that, immediately after the legal and beneficial interests in those assets or liabilities vest in the Commonwealth, the Commonwealth becomes the successor in law of the holder of those assets.
Those are very significant powers, and I accept that the minister said they are powers of last resort. Our concern is whether that is still an acceptable reason for giving such extreme powers, particularly given the basic issues with regard to lack of oversight of how those powers are used. They were flagged in the Alerts Digest report of the Senate Scrutiny of Bills Committee, which has been referred to a couple of times in this debate.
I will not go into hyperbole too much, but I note that we have some allegations about the five-year leases being privatisation of Aboriginal land, which I think is an overstatement of the case. But, having said that, yesterday at the Press Club, Minister Brough was, once again, talking about Aboriginal communal titles being communism. I think that is also a ridiculous concept. You can throw around labels suggesting that having land rights has not worked because it is a form of communism, then you have the state coming in and taking over ownership. That is, potentially, nationalising the assets of Aboriginal communities. Again, I accept it is a last resort, but that is the power which the Commonwealth is being given. That is why you need to have a very good reason for wanting to do it. It is not an argument about intent; it is an argument about the potential consequences of this legislation.
Let us not forget that this part in the legislation to do with community stores has a lot of other powers in it as well—powers which are also pretty strong, which the Democrats are not opposing. These include decisions with regard to granting and refusing licenses, assessments of community stores, conditions of community store licenses—there are very strong powers going to the federal government in relation to that—and surrender and transfer of community store licenses. The Commonwealth already has all those powers. This measure just goes to acquisition, and I think it is a step too far. I do not think it is necessary and I think it is potentially damaging.
Again, the government talks a lot about empowering people, and Minister Brough used that term again yesterday. I do not see how the Commonwealth moving in and taking ownership of a community store is terribly empowering. It certainly would be empowering for a community to have their store run better, for it to be clean and reliable and for it to have fresh food available. I totally accept that. But I do not think the Commonwealth coming in and taking ownership of it is the way to do it.
I wish to take the opportunity of asking a couple more questions of the minister, which go specifically to matters raised in the Scrutiny of Bills Committee report on the legislation—particularly while the chair of the committee, Senator Ray, is in the chamber; I am sure he would love to hear a response to issues raised in that report of the Scrutiny of Bills Committee. Issues were specifically raised with regard to this division and the excluding of merits review. Clauses 97 and 106 of the legislation, which are in the broader part 7, give the secretary of the department the discretion to grant or refuse a community store licence or to revoke an existing community store licence. The explanatory memorandum makes clear that that decision will not be subject to internal review or to external review by the Administrative Appeals Tribunal. Is it the best that the government can do to justify the lack of review to say, ‘This is an emergency; therefore, letting people have a review would slow things up too much?’ Is that seriously the only reason they will use to say that they can do what they want without even an internal review?
The other issue concerns the specific division which I am talking about here, which the Democrats are seeking to remove where the minister can, in writing, make declarations with regard to taking over the assets for a specified time. The Scrutiny of Bills Committee, again, drew attention to that and sought the minister’s advice. Subsection (6) of clause 112, division 4, says that such a declaration is not a legislative instrument. I, on behalf of the committee, thought I would seek the minister’s advice here about whether the declaration, although not legislative in character, is a determination subject to review under the Administrative Decisions Judicial Review Act and, if so, whether the exercise of the minister’s discretion ought not be subject to merits review. Is the intent of simply stating that something is not a legislative instrument to prevent any form of merits review and, if that is the intent, can the minister guarantee that that will also be the effect?
It certainly is the intention that, consistent with other areas of this nature in the act in terms of acquisitions, the appeal process will be the appeal process available through the courts. As to whether this is exactly what we were intending to reflect, I understand that is the case.
There were a number of other matters that Senator Bartlett referred to which require an answer. While the minister is thinking about that, I would take him to clause 86, which says at subsection (2):
If the Secretary, on reasonable grounds, suspects that a person other than the wrongdoer—
the person being convicted of something—
can give information relevant to an application for a civil penalty order in relation to the contravention, whether or not such an application has been made, the Secretary may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application.
Then subsection (5) says:
If a person fails to give assistance as required under subsection (2), the person commits an offence against this subsection.
Penalty: 30 penalty units.
So we have a situation where the secretary or somebody outside the court can penalise a person—not the wrongdoer but somebody who might have information—30 penalty units. I would ask the minister to justify that.
As I understand it, if we know a wrong has been done and the secretary suspects on reasonable grounds that a person other than the wrongdoer can actually provide information relevant to the application—in other words, a witness to an event—the secretary may in writing require the witness to give all reasonable assistance. So we are saying that, if a person witnesses an event, that person is required to provide assistance. If that person fails to provide that assistance, under subsection (5), that is an offence. I have been advised that your understanding of that part is correct, Senator.
So we have a person facing a 30-penalty unit fine because, outside the court procedures, the secretary has requested what is called ‘reasonable assistance’ from that person and, as the secretary sees it, that person has failed to give that ‘reasonable assistance’. So we have a system that is outside the rule of law and outside the courts and outside the Australian system of presenting an opportunity for a person to either put their case—and plead one way or another and be represented—or appeal. This is summary justice by ministerially appointed officials. Surely that cannot be.
How can the government justify a fine of more than $3,000 for somebody the secretary says has information and has not complied with their wish to get it? How on earth can you abandon the proper process of the rule of law in this country and say that the minister can give this person the ability to put a huge fine like that on another citizen without there being any proper opportunity for an investigation or a plea to put a case? That is Wild West justice, if ever I have heard it! Surely the government has made a mistake here and would want to rectify it. I ask the minister again: is that what was meant when this was written or has this hasty legislation failed a step—that is, the ability of the court to apply such a penalty, not some official appointed by some minister in the future through some secretary unnamed in this legislation?
This is incredible! I know all that. Is the government giving one citizen the ability to impugn someone, without any evidence and without any responsibility, and fine that person more than $3,000 because that person did not do what they wanted them to? That is not justice; that is flouting Australian law and the justice system as we know it. Surely there is a mistake here. Who is this secretary going to be? What is the evidence that they require under this section? Where is the reference to the requirements that must be met under this section before they have the ability to hand out fines of 30 penalty units to fellow citizens who have no opportunity under the proper judicial system to put their case? Surely this cannot be.
I am advised that, before the maximum penalty of 30 points or any penalty could be applied, the matter would have to go through a normal criminal court process to obtain a conviction, rather than the secretary being able to summarily impose 30 penalty points at his whim.
I have been advised that with regard to most legislation there is no need to specifically state that this is a criminal penalty and has to be dealt with by the courts. I am advised that that would be the normal process.
No. If you follow this through, it says:
(4) If a person fails to give assistance as required under subsection (2), the Federal Court may, on the application of the Secretary, order the person to comply with the requirement as specified in the order.
(5) If a person fails to give assistance as required under subsection (2), the person commits an offence against this subsection.
Penalty: 30 penalty units.
That is talking about assistance that is required to be provided to the secretary under subsection (2). I am sure that the minister is right; it is intended to go to court. What we have here is at best clumsy, badly written law which has been written in haste by the government and which will be regretted at length by the citizens. The minister ought to look at the clumsy, unsatisfactory way in which this section is constructed and correct it to make sure that it is clearly understood by anybody reading this section that charges have to be laid and that the courts have to be brought in to the matter—and not just for subsection (4) but for the whole of the clause.
As I understand it, the process would be that, if somebody is identified as someone who may be able to provide assistance, we would ask them to provide assistance. If they then decided that they were not going to provide assistance, we would be able to coerce them to provide assistance through an application to the Federal Court. If the Federal Court then found that the person had decided that they were at that stage still not going to help, then that would be a criminal offence, for which there would be a maximum penalty of 30 penalty units.
I move Democrat amendment (9) on sheet 5340 revised:
(9) Clause 93, page 71 (after line 3), after paragraph (1)(a), insert:
(aa) the community store’s capacity to train locally employed community members;
This is an alternative amendment. It is quite a small one and therefore one which would be given some genuine consideration if we were to assume that there was any degree of willingness to engage on the part of the government. It relates to the licensing of community stores. In the legislation, there is a list of criteria which are assessable maters in relation to the licensing of community stores. It includes the following:
(a) the community store’s capacity to participate in, and (if applicable) the community store’s record of compliance with, the requirements of the income management regime;
(b) the quality, quantity and range of groceries and consumer items, including healthy food and drink, available and promoted at the community store;
(c) the financial structure, retail practices and governance practices of the community store;
(d) any matters specified by the Minister under subsection 125(2) to be assessable matters;
(e) any other matter that the Secretary considers relevant to the provision of high quality community store services.
This is simply an amendment from the Democrats that seeks to add another assessable matter as a definite criteria, that proposed assessable matter being the community store’s capacity to train locally employed community members.
We are all—quite rightly—talking about the need for any type of positive result to have long-term benefits. Part of that with a community store is or should be the ability for that store to train up locally employed community members. That is not the be-all and end-all of criteria, and it is not the sole reason a licence should be issued, amended, extended or removed, but we believe it is a sufficiently important issue that it is worth having as an assessable matter the capacity to train locally employed community members to staff the community store. It is something that is minor in the scheme of the totality of the legislation, but something that the Democrats nonetheless believe would be beneficial.
I acknowledge that the senator is touching on employment in communities and we do need to maximise it where we can. We have taken the approach of encouraging higher rates of employment. There are a couple of reasons for that. Some of these community stores have only one employee. To suddenly make it prescriptive that that employee be a local individual would not in the short term bring about the outcomes that we require. But that is certainly not the norm. We have some special programs that will very much target store workers through some of the retail training packages. Why the notion of simply encouraging that to take place rather than being prescriptive? One of the great challenges about being prescriptive is that, if you do not have people who are trained, then it tends to backfire on you and the level of amenity that we are looking for may not be able to be achieved, particularly in the short term.
I have a final question on community stores. Another matter raised in the Scrutiny of Bills report which I do not think has been specifically raised and specifically answered goes to the issue of revoking a community store licence because the store does not comply with assessable matters—these newly developed matters that are in this legislation. The report says: ‘The committee expressed a concern that a decision to revoke a community store licence because the store does not comply with these newly developed assessable matters and a decision to refuse to grant a community store licence to a new applicant who has taken into account the new assessable matters in their application are treated in the same way in terms of access to merits review.’ The committee expressed a view, which I emphasise was a unanimous view of the committee, including coalition members, that the first decision—that is, revoking a community store licence because the store does not comply with these newly developed assessable matters—fits in more clearly within the emergency response scenario that the government is painting as justification for all this, as opposed to the second decision, which is with regard to a new applicant who has taken into account the assessable matters. As I understand it—I am not actually on that committee—if an existing store is as appalling as the one Senator Scullion described before question time, the sort that does exist in a few communities, you assess it against the assessable matters and if it clearly fails you can revoke the licence. Whether or not I agree that it should be merits reviewed, at least you can say that this is justifiable under emergency response powers: ‘That’s the immediate here and now. The existing store is terrible. We make this assessment, and no merits review; there’s no time.’ This also applies, as I understand it, to new applicants who take into account the assessable matters in their application.
When you are talking about someone who is a new applicant for a licence, the Commonwealth is still in a position where they can say, ‘No, we don’t think you meet the criteria here,’ but in that circumstance, according to the committee’s view—and I tend to agree with it—that is not the scenario that fits in an emergency response type of situation. You are talking about a new applicant who is yet to be given a licence as opposed to an existing applicant who is losing their licence and whether that person should also be excluded from merits review. So the committee sought the minister’s advice about whether a decision not to grant a licence to a new applicant should also be excluded from merits review, as this process would occur in full cognisance of the new assessable matters; it would not result in a non-compliant community store continuing to operate pending the review.
The justification for the emergency matters is: existing store; totally unacceptable; we cancel the licence; we do not want them to continue to trade whilst they are able to appeal under merits review. Whether or not you think that is a good thing is another matter, but that is very different to a new applicant that is not an existing non-compliant community store. The concern of the committee is that to exclude that also from a merits review is excessive and not consistent with the emergency response scenario. I would appreciate it if the minister could respond to that concern.
Thank you, Senator Bartlett, for the question. The answer is that the first situation that you agree with is simply on the basis that it is an emergency—and I accept and acknowledge that that is for an important reason that you have let that go. We have then the circumstance where there is no store, so we implement another one. It is still ‘the store’ and one would still say that the same sense of urgency or emergency—call it what you will, Senator—would still apply because we still at that stage do not have an operating store. For that reason, we would assert that we should keep that provision there because the emergency situation will still apply.
It has been a long time coming, but I have pleasure in moving amendment (7):
(7) Clause 132, page 93 (lines 12 to 17), omit subclauses (1) and (2), substitute:
(1) Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures and are consistent with Part 2 of the Racial Discrimination Act 1975.
(2) Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are not laws as described by subsection 10(3) of the Racial Discrimination Act 1975.
I am glad to see we are moving onto matters that might be a bit more substantial, although I am not suggesting the earlier ones were not important. There are a range of issues that we need to get to in this debate on these bills that are quite fundamental, and I am sure Senator Bartlett agrees with me that the question about the RDA is one of those. This amendment seeks to amend clause 132 of the Northern Territory National Emergency Response Bill 2007, and that clause provides that—and I will read the first two parts:
(1) The provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures—
So it declares that everything that occurs in the act are special measures:
(2) The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.
The second measure excludes the bill before us from the operation of the Racial Discrimination Act part II, and the Racial Discrimination Act part II is the section that prevents racial discrimination, so we are passing a bill which the government says should not be subject to the Racial Discrimination Act’s prohibition on racial discrimination.
I think on the face of it people will say: ‘Hang on! We’re passing a bill that’s for the benefit of Aboriginal people but we want to ensure that we’re not caught up by the Racial Discrimination Act that prohibits us from discriminating on the basis of race.’ I do not know about anybody else but it strikes me as passing strange that we should look to pass legislation that is for the benefit of Indigenous people, to deal with the crisis in terms of violence and child abuse in some Indigenous communities but, in doing so, we seek to exempt the legislation from the pretty fundamental requirement that it not be racially discriminatory.
I have had difficulty with this aspect of the government’s legislation, and Labor has had difficulty with it because we think it sends exactly the wrong message. As we know there are mixed views in Indigenous communities about whether these bills are discriminatory. There are mixed views in Indigenous communities about whether they are for their benefit.
Labor accepts that these are special measures, provided for under the Racial Discrimination Act, that are for the benefit of Indigenous people. Part II, section 8 provides that we can pass special measures for the benefit of persons under the Racial Discrimination Act—so we have the capacity to do that. Labor is assured by the government that these measures, in totality, are special measures, and we have agreed that that is the case. In fact, HREOC, in their submissions to the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs into the bill, conceded that these measures could be characterised as special measures; however, they expressed very serious concern at the failure to consult the Indigenous people affected.
One of the aspects of special measures has been a consideration of the question of consultation and consent. It has generally been viewed that the aspect of consultation is central to the question of a special measure. Consultation clearly has not occurred formally in this case. HREOC were urging the government and the parliament to ensure that that consultation took place, arguing that it was never too late. Labor supports that view. We would have much preferred that more consultation had occurred prior to this, and the Senate committee chaired by Senator Barnett also urged that there be more consultation with Indigenous people to try and build support for the special measures.
The key issue is that Labor supports the fact that these are special measures. We believe that the totality of these measures are capable of being implemented in accordance with the terms of the Racial Discrimination Act. I know some people want to argue that case, and it will be argued here. I approach it from this point of view: people in a society have a bundle of rights. People are entitled to exercise those rights and sometimes you have to balance those rights. The rights that are pre-eminent in this debate are the rights of children, which I have always taken very seriously, rights based on the Convention on the Rights of the Child. There are the rights of children to live in safety, to live free from violence, to live free from sexual abuse and their rights to an education and to proper food and clothing. Those are very basic rights but they are fundamental rights that need to be observed.
Labor takes the view that, on balance, these measures in this bill can be seen as special measures that are for the benefit of Indigenous people. In doing so we accept that some of the other rights of people—in terms of the welfare packages et cetera—are restricted. The welfare measures will require people to have some of their payments quarantined. You can argue that that is affecting some of their rights to dispose of their income as they see fit, but it is important when dealing with the special measures in this legislation to look at the totality of the package. I think that one can argue that, in total, the measures are for the benefit of Indigenous people, and that the package attempts to deal with very fundamental rights such as the right of children to live free from violence and sexual abuse and the right of Indigenous women—and men in some cases—to live free from violence. As I said, those constitute beneficial measures.
We have no problem in accepting that these are special measures and we are happy to have that recognised in the bill. In moving our amendment, Labor look also to protect the observance of the Racial Discrimination Act. What we seek to do in moving this amendment is to recognise that the measures in the bill, or the totality of the bill, can be considered special measures under the Racial Discrimination Act, but we oppose the government’s attempt to exempt the bill from the Racial Discrimination Act—to, in effect, say, ‘This is a law of the land which does not have to comply with or recognise the Racial Discrimination Act 1975.’
Labor is very proud of the Racial Discrimination Act 1975. We see it as one of the most important pieces of legislation ever passed by this parliament. We think it is a fundamental bedrock of our modern democracy and that it provides for people protections from discrimination on the basis of race, gender, ethnicity and religion. This is a fundamental protection in our democracy. I have seen the technical arguments from the government as to why they think they need to exempt the Northern Territory legislation from the Racial Discrimination Act and quite frankly the arguments are not strong enough. We have to do better than this.
We had the same challenge when Labor brought in the native title legislation in 1993. We had the same question about how one could seek to make the native title legislation consistent with the Racial Discrimination Act. We had the same arguments put to us at the time that in passing the native title legislation we needed to exempt it from the Racial Discrimination Act. People were uncomfortable with that so a lot of work was done to try to work through that problem. I know my colleague from the other chamber Daryl Melham did a lot of work on this, and I am grateful for his advice because he has been interested in this subject throughout his time in the parliament. In the end, we managed to ensure that the Native Title Act actually invoked the Racial Discrimination Act and we used it as a positive part of enacting the Native Title Act. It invoked and embraced the Racial Discrimination Act.
Even though a range of the measures—particularly those in relation to the validation of title—could be seen in some ways to be acting against Indigenous interests, the totality was seen as being of benefit because, as well as validating some titles, it provided rights of native title and future acts that were beneficial to Indigenous people. So we faced the same dilemma in 1993. That was the first major debate I was engaged in in this place; I had been in the parliament for only six months and it was a very important debate for the parliament. We worked through the very problem that we are confronting now. We came out with a positive measure that allowed us to embrace the Racial Discrimination Act in the passing of the first native title legislation in Australia. What we have been asked to do today is to pass another measure which the government says is beneficial to Aboriginal people, which Labor accepts. But to also say, ‘Oh well, it is beneficial but we don’t really want to be bound by something that says you’re not allowed to be racially discriminatory,’ sends a conflicting message. I think it fundamentally undermines confidence in the legislation.
People rightly ask: ‘If you’re so confident, if you’re sure that this is beneficial for Indigenous people then why won’t you allow it to be subject to the Racial Discrimination Act? Why do you have to weasel out of meeting a fairly fundamental right for people to actually know that legislation passed in this parliament does not offend the Racial Discrimination Act?’ Quite frankly, that is the overwhelming consideration for Labor. We are supporting the bill. We are supporting the fact that these are special measures. We are committed to assisting the government in its endeavours to respond to the very serious issues in these communities—although every time Mal Brough speaks I am more inclined to vote against it, but that is a personal issue. I find his lack of good grace and his lack of any commitment to build support amongst either parliamentarians or Indigenous people abhorrent and I think his behaviour is very unfortunate. Labor are committed to supporting the bill. We recognise that these are special measures, but we see no reason why the government cannot ensure that we honour and invoke the Racial Discrimination Act rather than seek to exclude this legislation from the provisions of the act.
I know that there are all sorts of legal arguments. I have been taken through them and I do not pretend to understand all of the nuances, but I understand in broad terms the complexities involved. The bottom line is this: should the parliament really be passing an act which it says is for the benefit of Aboriginal people and at the same time seek to exclude that act from the provisions of the Racial Discrimination Act? It sends exactly the wrong message to the community. It sends exactly the wrong message to Indigenous people, who are nervous about how these measures will impact upon them. It says to them that we are not confident that this bill is not racially discriminatory. I am confident that it is not because the balance of measures are special measures for the benefit of Indigenous people. But it sends exactly the wrong message.
The bill has been drafted in haste. We have not had a chance to work through these issues. I know that during the native title debate we had a long period of time to really engage with the issues in order to find solutions, and we had extensive consultation with Indigenous people. That has not occurred on this occasion. I think we can do better than this. Labor is proposing this amendment to make that point and to try to ensure that the parliament does better. I have no confidence that the government will respond to any of this. The government have made it pretty clear that they are not interested in hearing from anybody else. But Labor firmly believe that we ought to do better in terms of ensuring this legislation is invoking and embracing the Racial Discrimination Act rather than seeking to exclude its provisions.
The Greens have an amendment to these clauses as well, which goes much further than that of the ALP. While we will not oppose the ALP’s amendment, we do not think you can fix this act with this amendment. It is quite clear that this act is racially discriminatory, and we believe that the provisions do not qualify as special measures. A lot of people have been quoted in this chamber as supporting or not supporting this legislation over the last couple of days. I have been sent some words by Professor Mick Dodson, who is well known to most of us. He is the Director of the Australian National University National Centre for Indigenous Studies. I think his comments are very pertinent to the issue we are discussing right now of racial discrimination. He has written:
None of us is in any doubt that we have to intervene to make children safe. We have a responsibility to do this, so does government. But we must draw the line on responses that involve racial discrimination.
My life is littered with abuse. When I was growing up I got abused because of who I was. I got called names for being black, I got excluded for being black. I was treated as inferior for being black. I got told I would not amount to much for being black. I was told I was unworthy for being black. I was told my culture was primitive because it was black.
I was told my mother’s language was unintelligible gibberish because it was black. I was told I was uncivilised because I was black. I was told I had to be white. This was all abuse.
And how did I react to all this abuse? I got abusive. I punched the kids in the playground and on the sports fields. I screamed at the teachers and headmaster. I threw tantrums and sulked. I wagged school to get away. What did this achieve? Bugger all! My abusive behaviour reinforced the views of me and mine in the eyes of my abusers. Just another useless black fella (“the whole lot of em”).
By the time I got to be about 14 or 15 I realised this. I realised that being abusive back didn’t get me far. What was the problem? Well I now knew it wasn’t me that was the problem in spite of all the conditioning.
I realised I shouldn’t be blamed for being black. Being black is not a blameworthy thing. In fact blame as a reaction is not particularly useful at all to any perceived problem. So being sick of being blamed for being black is not a way out of the problem until you realise, like I did, that it was not my problem. It’s not me who is uncomfortable with being black, it’s some other people. So it must be their problem. Bingo! All solved, I thought, but it’s not so.
Being able to identify the problem and who has it does not always make it go away. You see, most people who want to abuse you in this way do not accept they have a problem. Most of them deny it or make excuses. But the decent ones do not and you cling to them.
When I got older and went to university and got an ‘education’ I found a name for this problem. It’s called racial discrimination. It’s another form of abuse. By then, like nearly all kids who are different growing up in this country this form of abuse is part of everyday life for you and you build up defence mechanisms including identifying the problem as not yours. When you grow up you teach your kids the same defensive responses and you hope they will teach your grandchildren because you know the problem is going to be around for at least that long.
This does not mean you walk away from the problem—you try to fight it in different ways through education, awareness raising, information sharing and through other processes such as reconciliation. You endeavour to assist people to deal with their problem. You do not accept silence as an option. You certainly don’t make excuses or seek to excuse.
I know today our kids get abused, our women get abused, even we get abused from time to time. Indeed we are sometimes abusers—I know I have done so. I have not been immune from giving someone an abusive verbal spray, I have not been free from pouring scorn and ridicule on others. Abuse is all around us. We need to desperately do something about it when it’s our kids who are being abused. We all know that. It’s a given.
But, we now have draft legislation which uses a form of abuse in the name of stopping abuse. What an abuse of process this is. It is an assault on democracy and an abuse of decency. We are asked to accept abusive government behaviour in our name to stop abuse. We are asked to believe these are ‘special measures’ so we can be comforted that they comply with the Racial Discrimination Act. We are told we need to accept this so that the country can meet its international obligations. We are asked to accept that just to be absolutely sure our government needs to ‘disapply’ the RDA.
Just in case—just in case we are asked to name our problem. Just in case the ‘special measures’ turn out to be a big fat political lie. We are told we need to take people’s land from them and remove their right to control access to that land in the name of stopping abuse—yet we know in our heart of hearts that this has nothing to do with the issue of child abuse. Deep down we know it is something else.
I am at a loss as to what to do. I have been fighting racial discrimination all my life and I have run out of ideas. But I know that no Australian should accept that racial discrimination is necessary in any context. It is too high a principle to set aside—as sacred as the rule of law itself.
It is not excusable in any situation and is even more troubling when we know what needs to be done to make children safe and it doesn’t involve racial discrimination.
I could not put it any better than Mick Dodson did when he wrote that. These measures do not qualify as ‘special measures’. We do not believe that taking land away from people and taking away their permits and being discriminatory in welfare reform will lead to the advancement of Aboriginal people. We do agree that something needs to be done but we do not agree that we should set aside the Racial Discrimination Act to make that occur. Not only does the government count these as special measures, which we do not agree with, but just in case they do not count, everything is exempt anyway.
We have been through this debate: here we are talking about the taking away of people’s land; the taking away of the permit system; changing the system of welfare and taking people’s income support—50 per cent of it—whether they have children or not; and applying the Crime Commission to Indigenous child abuse and violence. That is racially discriminatory. When we asked Pat Anderson and Rex Wild, the authors of the Little children are sacred report, whether they thought any measures needed to be taken in order to address child abuse or whether they thought that any measures should be exempt from the Racial Discrimination Act, they said no. There is nothing in the report that says there should be any racially discriminatory measures taken.
Australia should be in no doubt that these are racially discriminatory laws. The government knows it because they are exempting themselves from the law. Special measures are supposed to be able to be taken to advance a particularly disadvantaged racial group. So why is the second clause in the bills there that exempts everyone? It is your ‘get-out-of-jail-free’ card. You get a get-out-of-jail-free card because we are going to exclude everything from the Racial Discrimination Act. That is what these laws do. Australia today should be in no doubt that parliament is about to pass racially discriminatory laws.
The Greens do not agree with the ALP. We do not think that these are special measures. We do agree that they should not be allowed to exempt other laws. If these laws go ahead—and it looks like they will because the government has got the numbers—this amendment makes it slightly better. So we will not oppose it. We think that the Democrats amendment to oppose this clause, and the Greens amendment, which is even more wide-ranging, are better because they actually oppose these clauses that are attempting to exempt these laws from the Racial Discrimination Act. There is no excuse for excluding these laws from the Racial Discrimination Act.
Perhaps I will try to deal with Senator Siewert’s questions first. You are quite right, Senator Siewert, the laws that we are bringing in here are discriminatory. But they do not discriminate against people; they simply discriminate in a way that treats one class of people differently from another. This is a targeted, emergency response in an Indigenous community. Senator Evans reflects that this is a fundamental part of what we want to do. Throughout this morning and yesterday we have accepted that we are moving forward. If there are impediments to our providing the levels of safety that we have said we would provide through this suite of initiatives, we need to remove that impediment. That is exactly what we have done. If we do not exempt some of these areas from the Racial Discrimination Act, they will be unlawful and they will not be able to proceed. That may suit the particular purpose of the Greens—that is your business—but it does not suit our purpose. That is why we promote it. We want to put these provisions in place because it is only this sort of suite of issues that will make any difference in these communities.
It is interesting that you are going to support Senator Evans’s amendment, which is an interesting amendment in that it is very close to our amendment; it is almost identical. There are two parts to the opposition’s amendment. The first part, which Senator Evans talks about, is quite right. That says that measures are consistent with the Racial Discrimination Act. So they have not declared it. They just said that they think they are consistent, so there is some risk involved in that. But, to be frank, Senator Evans, to go on about the sanctity of the Racial Discrimination Act and its sending the wrong signal is inconsistent with the second part of your amendment, which in effect excludes other parts from the act. I am not saying that you cannot have it both ways. I am very grateful for your very practical approach and for your support generally with the bill. But we are not going to support your amendment—and it is a good amendment; it is almost parallel to ours. It is unclear to us why you have chosen to deem the legislation as complying with part 2 rather than simply excluding it, as you have with the second part of your amendment. What I believe—and the advice I have been given is quite clear—is that it is just a high level of risk.
We are not looking at playing around the edges. The second part of yours does exclude it. The legislation reflects that we are not deeming it consistent; we are just simply excluding it. So there is no risk to these provisions going ahead. These are important provisions and I know that you accept that. I know that in all your deliveries here today, Senator Evans, you have ensured that there are no impediments to providing the levels of safety in these communities that we are going to provide. If that is the case, I would ask you look very carefully at my submission because the second part of your amendment does exclude it from the Racial Discrimination Act. I understand; it is very important to send the right signals. It is unfortunate that there are those in this place who interpret this as a discriminatory act and that somehow we are discriminating against them, instead of saying, ‘This is something we’re doing on behalf of Aboriginal people, particularly in these communities, and it’s something that should be supported. We contend that your amendment, whilst well meant, has no effect and therefore will not be supported.
I will leave most of my comments on this to the Democrat amendment, because it goes much more clearly to the specifics of the exemption to the Racial Discrimination Act. Senator Evans’s commentary is one I broadly agree with. With regard to making a commentary about the principle here regarding exemption from the Racial Discrimination Act, it is not just a matter of standing up in support of a principle because it is a nice noble principle, although it certainly is that. These measures were put in place in the law because people not only felt it was the right thing to do but also recognised it was necessary to prevent serious injustice. I just do not see how you can say something is a special measure just because we say so but then exempt it from the Racial Discrimination Act. I have read at least some of the lawyers’ advices and government advices flying around the place and some of the answers that were given at the Senate committee inquiry into this. I guess we all say, ‘I am not a lawyer,’ but eventually you can read all the legal opinions you like. It really boils down to the fundamental issue: if it is not a special measure, if it is not positive discrimination, then it is racially discriminatory and in a negative way it is in breach of the Racial Discrimination Act.
To me, it demonstrates the insecurity of the government’s position and the insecurity in their assertions that all of these are positive measures and will be positive measures. I have no doubt that is their intention—it is certainly the intent of the minister—but it is whether or not it will be the effect, and that is the key part in relation to the law. Without getting religious on people, because that is not really my forte, the road to hell is paved with good intentions, and stacking a whole pile of them in legislation is not necessarily going to pave a road that will get you to a good place. We do need to look at practical outcomes. But issues to do with racial discrimination and prohibition against racial discrimination were put in place because it is a way of preventing us getting to bad places. It is not just about good intentions and feel-good stuff and, to me, that is the core issue here as well. So it is a fundamental issue for the Democrats. That is why, frankly, we basically believe that that whole section, which we will move to shortly—clause 132—should just be struck out.
I think it is important to again make the key point. I hear what Senator Scullion says about what he thinks is a declaratory statement in the second part of the amendment. The key issue is this: should the parliament make an effort to comply with and invoke the Racial Discrimination Act when moving measures that are clearly directed at Indigenous people and that will apply different provisions to them than to non-Indigenous people in the same areas? It seems to Labor it is worth the effort.
I know this has been rushed and that the focus has been on other issues. I have seen a number of legal advices around the place, but this is exactly where we were with the Native Title Act. It seems to me that, for want of some effort and engagement with people, parliament can do better than this. It is easy for the government to say: ‘We’ve got the numbers so we don’t have to work too hard at this stuff. A lawyer has said to us, “This is the easy way to do it—just wipe out the Racial Discrimination Act and the bill will go through because you have the numbers, 39 to 37, and it will all be over.”‘ Quite frankly, if the government did not have the numbers it would not be going through like this. We would be making more of an effort.
Labor will not support the Democrats and Greens in wiping out the whole section of this bill, because we are not going to scuttle the bills. Fundamentally, we think they are capable of being seen as special measures under the Racial Discrimination Act. But it does send the wrong message that the parliament is legislating for Indigenous people but cannot do it in a way that preserves the observance of the act, which says that you cannot discriminate against people. It is pretty fundamental. I know that people get tied up in the minutiae of the legal argument, but fundamentally it says that we cannot have the right to be free of racial discrimination in legislation that is designed to be targeted at Indigenous people. It is just the wrong message.
Labor think we can do better. This amendment is our attempt to do better. Quite frankly, with more time and the goodwill of the government I am sure we could do better than this. I do not pretend our solution is perfect, and that is in part because we want to support the legislation and in part because we recognise the government has the numbers and it will go through anyway. But it is an important point of principle that the parliament think about whether or not we should do this in this way. I know that urging the government to reconsider is a waste of time, but I do think people should reflect on this. While we will support the legislation, I think the parliament could do much better than what we are doing here.
I think Senator Evans’s remarks deserve a response—and a level of response in terms of a legal mind. At least we are equals in that sense. Senator, what is at risk here? The reason we have moved to ensure that we have provisions in this legislation that clarify the operations of the Racial Discrimination Act is that we want to ensure that there is no risk of us not being able to go to the communities and do what fundamentally the opposition agree with.
When assessing that risk, it was not that we were saying, ‘Let’s just rush it through.’ In fact this area has had a great deal of scrutiny, and I am very pleased to see that it had a great deal of scrutiny on your side as well—and it is reflected. There is just a minute bit of difference. The question is whether deeming it rather than excluding it is a higher level of risk. If we get it wrong, we are putting at risk our capacity to roll out things that you agree with. We are definitely not being disrespectful of the Racial Discrimination Act. In fact, we just want to make it very clear we are not amending that at all. We are simply clarifying, through provisions in this bill, how to clarify the operation of the Racial Discrimination Act with regard to this particular piece of legislation.
That the amendment (Senator Chris Evans’s) be agreed to.
The Democrats oppose clause 132 in the following terms:
The Democrats are opposing clause 132 on the same principle we have just been discussing but our proposal is a much cleaner and clearer way of addressing it. Clause 132 states that the provisions of this legislation are, for the purposes of the Racial Discrimination Act, special measures and that the provisions of the legislation and any acts done under or for the purposes of those provisions are excluded from the operation of part II of the RDA. There are fundamental legal issues here. I will not go into all the legal arguments, but to say that something is a special measure under the Racial Discrimination Act just because you say so is not a sufficient test. You can assert all sorts of things—you can put something in a law saying, ‘The sky is red,’ but that does not make it red. Saying something is a special measure under the Racial Discrimination Act does not necessarily make it so either.
The key point here for the Democrats—I have made this point before; I will elaborate on it a little more—is that the provisions of the Racial Discrimination Act are there because of a recognition that legal processes and policy implementation that are discriminatory in a negative sense on a racial basis almost inevitably mean injustice. How the government can credibly assume or assert that these measures they are putting forward will work to the benefit of people even though they may be negatively discriminatory on a racial basis is beyond me. The government are quite confident that these are all special measures under the act and, therefore, they are all fine. Good; in that case they should not have a problem. But they should not be able to get away with just saying, ‘It is because we say it is.’ If other people have a view that it is not, then I think they should have a right to be able to ascertain and determine that. Frankly, it is hard when you look at some of the measures in this particular bill, which is a very large one, to do anything other than suspect that the practical implementation, as opposed to the stated intent, will mean a racially discriminatory outcome.
It is worth looking at the history of why the Racial Discrimination Act came about. It did not just come about because people back in the 1970s thought it would be a nice thing to do, that it would look really good and make us look good globally, that it would be a fine upstanding principle. The fact that there is the Racial Discrimination Act at federal level has been absolutely pivotal in preventing flagrant and deliberately racially discriminatory acts against Aboriginal people, certainly in my own state of Queensland by the Queensland government. We had Aboriginal people in reserves and missions all around Queensland being paid less than the award wages for years—consciously and knowingly—by the Queensland government. They had specific advice recited to them at cabinet level, we now know, telling them that these underpayments were in breach of the Racial Discrimination Act, and they still kept doing it. It is only because of the Racial Discrimination Act that those things stopped. And it is only today, in some cases 20 years later, that people are finally starting to get the money they are owed, that they were entitled to but did not get paid because of the racially discriminatory policy of the Queensland government of the time. So the act produced a practical outcome of ensuring equality.
I heard the following from one of the speakers in the second reading debate, and I found the lack of awareness of history extraordinary. They were talking about how well, back in the old days, the pastoralists employed Aboriginal people on their pastoral properties. They did not pay them their full wages—they underpaid them a bit—and they kept some of their money, but they used that to buy food for them, so they were doing them a favour and it worked out well and it was only when they started getting paid equal rates of pay that everything went wrong, and wasn’t that terrible. I am not saying there were not consequences of that, in terms of people being consciously thrown off stations by the pastoralists, but quite why that is seen as an appropriate thing to have done, I do not know. But, in the context of speaking in favour of this legislation, we have had speakers in this chamber saying it was actually a good thing that Aboriginal people used to have their money taken away from them, kept by pastoral station owners and used to buy food for them. There was underpayment of wages.
The simple historical fact is that some of those pastoral people kept some of that money for themselves. That is what is known as the ‘stolen wages’. We have had a Senate committee inquiry into that. It was not just pastoralists; it was state government agencies as well. The state government kept the money. I am going partly into the quarantining issue, which is in a different bill, so I will save my comments mostly for there in terms of this example. The state government took the money that Aboriginal people in Queensland were legally entitled to. It was not just welfare money; it was earnings. But they also did it for their family payments. They took the money, saying, ‘We’ll keep this because we know what’s best for you.’ Then they just kept it. They used it for other things. Or they used it to buy them a building and say: ‘This building’s what’s best for you. We know what’s best for you. We’ll buy this building out of your money.’ It was flagrantly racially discriminatory. In some cases I have no doubt there was a genuine intent—’We know what’s best for you in terms of your money, in terms of what to do with your land. We have the intent to do this thing for your benefit.’ That is not good enough. That is why you have an act like the Racial Discrimination Act—because people did precisely these things before. And, in many cases, they did that with good intent. The outcome was gross injustice.
Let me hasten to add that I am not alleging in any way that the measures contained in some of the other bills we have not got to yet will mean that Aboriginal people will have their money taken away by the government and used for other things. They will still be able to use it; it will still in a legal sense be their money. So I do not want to overdo the parallel but I do want to point to the historical reasons for the Racial Discrimination Act. And there are plenty of other examples in Queensland alone, let alone elsewhere, of policies that were clearly discriminatory that were nonetheless put in place, at least in some cases, and where some people, with absolutely the best intent in the world, were saying, ‘This is what’s needed for people.’ That is why this suggestion that this is some great, huge leap forward, some big, visionary never-before-tried approach, is in many ways quite misleading, because there is a lot about this piece of legislation before us, and some of the other measures we have not got to yet, that is actually quite a big leap backwards. I like a bit of retro stuff too, occasionally, and I do not mind leaping backwards if I think it is actually going to work. But the key issue for me and the Democrats is whether this is going to work. I think anything that gives an exemption from the Racial Discrimination Act is actually going to increase the chances of it not working. I make that assessment because of history, because of evidence, not because of a feel-good thing.
I will also briefly note and touch on Senator Evans’s comments about the comparison with the native title legislation. There is obviously a deliberate propaganda campaign from some in the government—although I have not heard Senator Scullion drop to this level yet, which is appreciated, but it has come from others; we heard it from Senator Minchin and Senator Abetz today—that in going through the issues in this legislation we are filibustering, we are deliberately holding up the law. We certainly are not doing that. From the Democrats’ point of view we are not doing that. But I would make the point again that, if you do not have a proper committee inquiry process, this is the only opportunity to explore these points.
I would also say to you, Senator Evans, on the example of the native title legislation, that that did have quite a comprehensive Senate committee inquiry first. We still had a very drawn out—much more drawn out than this debate—committee stage of the process. There were a lot of negotiations over a number of weeks. We did have a sitting on a Saturday then as well. I note the minister saying today that we might be sitting on Saturday. So be it, if we are. I think we need to do what is necessary to explore and get sufficient detail on the record about this legislation, even it is not going to be improved.
I think we spent about an hour deciding whether or not to say prayers on one day, or something—not that there’s anything wrong with that. I think the key point there is the engagement that occurred between all the parties, including the Democrats and the Greens—although they were the WA Greens at the time, so I suppose there is a bit of historical appropriateness in having a Green from WA as part of this debate, even if they are not the WA Greens anymore. There was engagement of people across the board. And, most importantly, as Senator Evans pointed out, there was extensive involvement of Indigenous people, from all around the country—indeed, as people may recall, they came with different perspectives. As has been pointed out by a number of people in this debate, there are different views from Aboriginal people in the Territory on what the government is doing. I have tried to reflect that diversity of opinion in my contributions throughout this debate. I have no doubt there are different views. In fact, I have spoken to Aboriginal people who have said, ‘We need help so badly that we need to do whatever it takes—get rid of the permit system, take over the land, exempt the Racial Discrimination Act—as long as we get a big boost in funding and some extra attention. That is what we need; we need it so desperately we’ll take anything.’ I understand that view. The point is that it should not be an either/or situation. It should not be that you either take the whole lot or you get nothing.
We should be able to do this properly and with a fair bit of thought. I know there is always a tension when you have the desire to assist immediately, but it comes back to the issue of whether you do it quickly or you do it effectively. This goes to the effectiveness of the government’s actions. To specifically allow an embedded exemption from the Racial Discrimination Act for the entire provisions of this act and any acts done under or for the purposes of the provisions of this act, will compromise its effectiveness. Maybe it would slow things down a bit in some areas. There should not even be an implication that that will bring everything to a screaming halt, although I am not sure that the minister has actually said that. It would not bring everything to a screaming halt but it might mean that in particular areas you have to work through things. That is why, as Senator Evans said, it would be far better if the work had actually been done and we had the opportunity for a proper inquiry.
I repeat that the Democrats’ preferred option, and the option put forward by many Aboriginal people, is to continue this debate when we come back in the second week of September, having better thought through a range of ideas and consulted with a range of Indigenous people in the Territory. That is the Democrats position. It is not to put it off until later but to put it off until September, when we know there will still be opportunity for debate. Let us be clear about this: despite the government’s rhetoric and despite some of the frankly offensive commentary by Minister Brough—including yesterday at the Press Club, where he grossly misrepresented the Democrats for one by accusing us of not doing anything, not taking any action and not even raising the issue, which is blatantly false and yet another smear—the simple fact is that Aboriginal people want to make this work and certainly the Democrats want to make it work.
The government simply refuses to engage with people and refuses to work through what are some difficult issues. I fully accept that there are complexities in the different ways you can go about this, but if they made that effort and worked with people they would be far better placed in a month’s time—having done the work and built that support across a wide spectrum—than they would by pushing this through unchanged. You might feel like you have to do this today because we cannot wait another three weeks, but there is plenty that will happen in that intervening period and this is about the long haul and what is going to happen in five years. Taking a few weeks to get it right at the start can make a big difference in where we end up in five years time.
The Greens will be supporting this amendment. As I said earlier it is similar to one of ours but ours is a bit broader. As I have articulated in this place earlier in the debate, we believe that this clause is unacceptable. The issue of consultation was raised earlier in the debate. HREOC made a submission to the one-day inquiry, but unfortunately due to time we were not able to go through these issues as thoroughly as I, and I suspect as much as they, would have liked. They pointed out in their submission that they do not support the emergency response measures being exempt from the RDA. They also made some very pertinent points about the issues around special measures. They said:
These laws clearly have a number of significant actual and potential negative impacts upon the rights of Indigenous people which are discriminatory. The laws generally must therefore be justifiable as a ‘special measure’.
This is what we have been talking about. They went on to say:
HREOC submits that a fundamental feature of ‘special measures’ is that they are done following effective consultation with the intended beneficiaries and generally with their consent. The absence of effective consultation with Indigenous people concerning the NTNER measures is therefore a matter of serious concern. HREOC accepts the need for urgent action. However, the success of that action both immediately and in the long term will depend upon effective consultation. And such consultation is fundamental to respecting the human rights of Indigenous people.
We have heard it said many times over in the last hours of this debate that the Commonwealth have done extensive consultation in the past and it is time for urgent action now. The government use that to justify the fact that they did not go out to talk about the special measures or consult with the Aboriginal community and those affected by these special measures, because this was urgent action. We reject that notion. Talking to Aboriginal communities generally about issues around abuse and disadvantage—and I accept that the government have been doing that—does not justify the fact that the government are taking these most extraordinary measures. It does not justify that because they cannot say that they have consulted with the community.
During the short committee hearing that we had last week, I asked a question of Andrew Johnson, who appeared with the ACOSS delegation. He also happens to be an expert in international child protection and is a former consultant to UNICEF and the UNHCR on emergency interventions. I thought it was an ideal opportunity to ask for his opinion of what you do in emergency situations and in emergency responses. He said:
In an emergency setting, the first thing a UN agency would do, under the direction of OCHA, is to ensure proper consultation on the ground. That is done within the first 24 to 48 hours and it is quite extensive. They then sit down with the communities to find out what supports and services they need. They set up safe houses and ensure that there are safe places for children to play. The international community ensures that there is safe and proper housing, water and access to medical services. The international community is able to do things quite quickly in a refugee camp, and that is based on consultation and asking the population themselves what they need. The biggest lesson learnt from all interventions internationally is that they always fail when they do not involve and empower the local communities to take part in the interventions that are taking place. If you look across the world at the operations that have been successful in resource-poor communities, the fundamental thing that crosses through all those interventions has been the giving of ownership, empowerment and control to the people themselves to ensure children are protected and families and communities are safe.
I do not buy the excuse that this was an emergency response and that therefore, ‘We could not go out and talk to the communities about what a special measure is.’ The government have failed in the basic outline of justifying a special measure and in justifying these provisions as special measures. There is no excuse for not going out and talking to the communities about these extraordinary powers the government are taking upon themselves. HREOC goes on in its submission:
More broadly, HREOC is concerned that the … measures are likely to produce unintended negative consequences that adversely impact upon the rights of Indigenous people.
Some examples are given later in the submission. They then outline some examples of how they are concerned about the special measures and how the special measures may have negative impacts, which would then make them not special measures, because they are not to the advantage of Aboriginal people.
HREOC point out, for example, the phasing out of CDEP—we will have a substantive debate about CDEP later, so I will not go into too much detail right now—and that CDEP may increase unemployment, movement to urban centres and the risk of family violence. Bear in mind that 7,000 CDEP people are being moved off CDEP. Currently, they can only identify around 2,000 jobs. During the committee hearing, in answers to some questions that we asked, it became clear that $76 million is being taken out of CDEP and, to balance that, only $46.9 million is going into increased income support. That is a reduction of $30 million going directly into the pockets of Indigenous peoples in community. I would suggest that will have a negative impact on community. HREOC also talk about the unintended negative impacts on Indigenous physical and mental health and wellbeing and quote some evidence from overseas. They state:
International and domestic evidence links the mental health impacts of dispossession, the removal of children, loss of culture and a general sense of powerlessness that Indigenous peoples have experienced with the social dysfunction that is evident in some Indigenous communities.
For example, the landmark study by Chandler and Lalonde in Canada showed that those First Nations communities that had some form of self-government and settled land claims had much lower rates of youth suicide as a result. Those communities that did not, have excessively high suicide rates.
Given the highly interventionist approach of several aspects of the government’s emergency response, it is reasonable to expect that more functional communities will feel disempowered by measures that distance them from control over daily decision-making responsibilities. For example, the role and functions of the government business managers may have the unintended impact of undermining Indigenous authority structures and dispute resolution practices.
I would suggest that going in and quarantining 50 per cent of people’s income support, irrespective of whether they have children and irrespective of whether they are spending their money exactly how the government thinks they should be spending their money, will also disempower communities. HREOC state that the quarantining of welfare payments may increase the risk of violence against women. They also highlight the fact that quarantining payments for school attendance may disproportionately impact on families in areas without adequate schools and teachers. Further, they suggest that the amendments to the permit system may work against efforts to reduce substance abuse. They point out that alcohol bans may result in an increase in the prison population and that rapid intervention may result in undesirable compromises.
HREOC have very strong concerns that these measures do not necessarily qualify as special measures and they do not support measures that are being exempt from the Racial Discrimination Act. They have very strong concerns about these so-called special measures and believe that the measures should not be exempt from the RDA.
The government did not consult on these measures. They are saying: ‘These are special measures, give them a tick. We’re calling them special measures; therefore, they are special measures.’ These measures will have unacceptable impacts on many Aboriginal people. I do not dispute the fact that the government genuinely want to do something about child abuse in the Northern Territory. They are going about it the wrong way, which is why the Greens do not support this package. We do not support it because we do not believe that the measures outlined there will in fact deliver the outcomes that the government want. They are dressing up their response measures and the provisions in this legislation by saying they are special measures. Calling something a special measure that does not meet the internationally accepted criteria for what is a special measure does not make it a special measure.
I went onto the HREOC website and I looked at what the convention calls a ‘special measure’. The Greens do not believe that these measures qualify as special measures under the convention. In fact, I have very serious concerns that it takes the RDA outside the purview of the convention. HREOC expresses concerns, the legal community expresses concerns and the Aboriginal people, who have been inundating me with emails, do not believe these are special measures. They strongly highlight the fact that they have not been consulted about these so-called special measures. They have not been consulted about the bills, the acts or the measures that the government intends to put in place. They say that the government have not justified why they have to take our land as a special measure and how it will address child abuse. They say: ‘They have not consulted us about how changing the permit system will address child abuse or justified it and how it is a special measure.’ The government have not justified why the spelling out, specifically of Indigenous child abuse and violence, by the Crime Commission is a special measure. And they have not justified why they have to take such extreme measures in welfare reform and why they have to convert the jobs from CDEP to special measures.
But we know why they have done that. They have done that because they found out that they could not quarantine payments under the CDEP. People may remember that, when this plan was first announced on 21 June, the government said that they were going to be quarantining payments out of the CDEP. They backtracked on that one because they realised that they could not do that. That is why they are cancelling the CDEP. Not only is it the case that 7,000 people are going to 2,000 jobs but also many vital services that are being delivered in Aboriginal communities are dependent on the CDEP. So what is the government going to do there? Oh, that is right: ‘We’re going to come in and use those special provisions under the business management areas, where we can go and sit on the boards of community entities and put our spies on those boards and take their assets. That is how we are going to do that.’ That is a special measure as well!
It is ill thought out legislation that does not meet the absolute objectives that the government say they have, so they are giving themselves blanket exemption from the Racial Discrimination Act. The legislation is discriminatory—the government have acknowledged that it is discriminatory—and it will not deliver what they say it is going to deliver. They accuse us of filibustering, because they do not want these sorts of things exposed to the light of day. We are going to do everything we can to show how discriminatory this legislation is and show that it is not going to deliver the objectives that the government say that they are trying to deliver. If the government were genuine they would start listening to people and start listening to the communities that are saying, ‘We want you to do something, but we don’t want you to do this.’ Those communities have got really well thought out plans on how you can address these issues, but you do not want to listen to them or talk to them because they are saying things that you do not want to hear. The Greens will be supporting this amendment and opposing this racially discriminatory legislation and this specific clause, clause 132.
The Greens will of course be supporting this amendment, as there is no reason for Australia to be going back into the dark period of racial discrimination which beset this country from 1788 until the Racial Discrimination Act was passed under the Whitlam government. This legislation sweeps that aside and says that we can legislate on racial grounds against Indigenous people in a way that makes them second-class citizens to the rest of Australia. This is unacceptable in 2007. It is unacceptable because it is not necessary.
Suddenly, at the end of a long period of turning its back on the Indigenous people of this country, the Howard government has discovered that it should be putting a large amount of money into bringing the Indigenous people the services and the rights that the rest of the country has. That process is needed to end discrimination against Indigenous people—for example, to end the discriminatory situation whereby less is spent on health services for Indigenous people per capita than is spent on non-Indigenous Australians, even though Indigenous people die 17 years younger on average than non-Indigenous Australians. And I am talking about people right across this country, whether they be in the big cities in the south or the communities in the north.
What was required from the government was for them to move to give Indigenous communities the education, housing, skilling and security that other communities in the country have. The minister himself said in here today that, after it was understood that some of those things are being provided—belatedly—people felt better about it. And so they should, because they have been living under the discrimination of inadequate services for so long. But now to employ the Racial Discrimination Act, and to claim that it is a meritorious thing to do so because it will advantage Indigenous people, shows that the government’s philosophy, drive and reason behind doing this are based not on an equal partnership but on a discriminatory attitude of ‘We know what is best for you and we will do for you what we say, not what you say.’
So we have the situation where the Racial Discrimination Act is being set aside against not only existing national law but also international law. The Law Council of Australia said to the committee:
The Law Council considers the inclusion in legislation proposed to be enacted by the Australian Parliament in 2007 of a provision specifically excluding the operation of the RDA to be utterly unacceptable. Such an extraordinary development places Australia in direct and unashamed contravention of its obligations under relevant international instruments, most relevantly the United Nations Charter and the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”). In addition to its status as a treaty obligation, contained in all major human rights instruments, the prohibition of racial discrimination has attained the status of customary international law, and has been characterised as one of the “least controversial examples of the class” of jus cogens. Jus cogens or peremptory norms of international law are overriding principles of international law, distinguished by their indelibility and non-derogability. They cannot be set aside by treaty or by acquiescence. Other “least controversial” examples of jus cogens include the prohibition of the use of force, the prohibitions of genocide, slavery and apartheid, and the principle of self-determination.
What has now been accepted, without any exception, as international law—and Australia proudly led the move for such international law in the middle of the last century—is being removed in this country of ours to discriminate against the first Australians. It is simply inexcusable that racist legislation should be before the Senate in 2007.
Mr Brough has said that there will be more Indigenous sex offenders arraigned or incarcerated. Let us look at the statistics regarding Indigenous people in the prisons of the Northern Territory. These statistics come from the Northern Territory Quarterly Crime and Justice statistics from 19 March this year. Indigenous prisoners currently represent 82 per cent of the daily average prison population and Indigenous juveniles represent 88 per cent of the daily average prison population. It is discrimination that those figures are the way they are. The minister says that he is going to make those statistics worse. The minister is presuming a lot here. The argument is that removing sexual offenders and putting them in jail will in some way or other improve the basic conditions of Indigenous people—conditions that have led to those figures. What we should be aiming to do is improve those figures. One of the ways of doing that is to ensure that when people come out of jail—sometimes called the university of crime—they are better for it and have gained some pride, some skills and some better ability to take part in the community that they go back to. We are not going to see that manifest here.
We know that there are zero facilities for dealing with sex offenders in Northern Territory jails. We know that the ability to deal with drug addiction in those jails is not much better. I am told that at the moment there are only two people out of 900 prisoners in the jails in the Northern Territory receiving some form of medical treatment—including substitute substances—for their drug addiction. I am also told that there are no psychiatric facilities in the Alice Springs jail or at the hospital and that there is no other way of dealing with people who have a psychiatric crisis. Eighty per cent of prisoners Australia wide have been found to have some sort of psychiatric disorder. If we have such appalling shortcomings, surely the government should move rapidly to work at that end of the spectrum to help fix people up who have been traumatised in a way that has landed them in prisons on the racial basis that the figures show. But that is not what we are getting here today.
What we are getting is the setting aside of the Racial Discrimination Act. That is totally unnecessary and ill-founded and breaches national and international law—certainly this overrides national law. It is a shameful thing for Australia in 2007, because it is so unnecessary. It suits the government’s philosophy. There is a punitive component here which is built into the racially discriminatory approach that we see in this legislation. There is no way that the Greens are going to support legislation in the Senate which says that you can discriminate on the basis of race and lays out how you will do it: ‘Here is how the Australian Crime Commission, with its coercive powers, can be used against Indigenous people—but not non-Indigenous people—not only in the Northern Territory but right across this nation.’ If you are black, you come under the scrutiny of the Australian Crime Commission, with its coercive powers, including its domestic spying powers and its ability to coerce the production of information and materials—powers which are way beyond what ordinary Australian law accepts.
Under this legislation, it does not matter whether you are in Brisbane, Perth or Adelaide: if you are black, you will come under this new police state regime. If you are white, you will not. It is appalling that there could be such highly honed racially discriminatory action against the whole of the Indigenous population of Australia. Can the fact that this legislation can be used against Indigenous people in Redfern be justified? How does that relate to this national emergency in the Northern Territory? When I asked the minister about this, he had no answer; there was no response. There is in this legislation a racist component—reflecting the view of this Howard government in 2007—against all the Indigenous people of Australia. When it comes to the argument that the racist laws are to help the people that they target, we will cop none of that. It is inexcusable and unacceptable, and we will be opposing it.
The Australian Greens oppose part 8 of this legislation in the following terms:
We have just had the substantive debate on the Racial Discrimination Act. Part 8 includes more than the Racial Discrimination Act. We have had the debate on clause 132, which as I said is the substantive part of part 8. This part also includes the delegation powers and various modifications to the Northern Territory law—compensation for acquisition of property, various regulations and some Northern Territory laws—that will be excluded under this law.
The Greens—as I think we have stated on several occasions; on more than one occasion—oppose this legislation. We oppose the racial discrimination amendments and we oppose the other elements of this legislation. I will not go through again all the issues that we are concerned about around racial discrimination and these bills being excluded from the act. I think we have got that well and truly on record.
I point out, as Senator Siewert has done, that this even goes further than removing the racial discrimination act as a bulwark against laws imposed on Indigenous people which do not apply to the rest of the country. For example, under clause 133, some Northern Territory laws are excluded. It says:
(1) The provisions of this Act are intended to apply to the exclusion of a law of the Northern Territory that deals with discrimination so far as it would otherwise apply.
It goes a step further. It removes any Northern Territory law which might prevent discrimination on the basis of race; which might prevent a discrimination on the basis of the colour of one’s skin; which might prevent discrimination on the basis that you are a member of the first Australian community or nation; or which might prevent discrimination on the basis of the fact that your ancestors were here before 1788.
Part 8 goes to give extra powers to the minister to discriminate on a basis not seen in this country for half a century or more, and it is all unnecessary. The good that could come from this belated decision to put money and services into Indigenous communities to help them get the longevity, the education, the skills and the wherewithal that the rest of the community has does not need to be based on laws which are overtly and blatantly racist. But that is what the government has. This is a division called ‘miscellaneous’ which should be declared ‘the promotion of racism’, and we oppose it.
That part 8 stand as printed.
The Australian Greens oppose schedules 1 to 4 in the following terms:
(1) Clause 4, page 3 (lines 11 to 17), omit subclauses (1) and (2), substitute:
(1) Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures and are consistent with Part 2 of the Racial Discrimination Act 1975.
(2) Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are not laws as described by subsection 10(3) of the Racial Discrimination Act 1975.
This is effectively the same measure that we moved in the previous bill, which related to the Racial Discrimination Act and Labor’s attempt to ensure that these bills complied with the terms of the Racial Discrimination Act. It is not my intention to repeat the debate. The debate occurred on the previous bill. Unfortunately the government refused to concede to make some measures to try to ensure that it was seen that these bills were invoking and consistent with the Racial Discrimination Act. As that debate has been had and lost I will not delay the Senate any further other than indicate that we will be supporting it again.
The Australian Democrats oppose clause 4 in the following terms:
This is basically a repeat of what we have just been through and opposes the exclusion of the Racial Discrimination Act provision in this bill, for the same reasons I have just outlined. I will not repeat all the arguments because people can look back at the Hansard from about 30 minutes ago. The same arguments apply with regard to this. I would just reinforce that in only speaking briefly to this, because we have just dealt with it, I do not want to in any way imply that it is not a serious matter. This is a very fundamental matter. To exclude the Racial Discrimination Act from legislation and just insert an assertion that something is a special measure just because you say so is just not good enough. It is nowhere near good enough and nowhere near enough effort has been made to find a better way of doing this.
The Australian Greens opposes clauses 3 to 5 in the following terms:
The Greens oppose clauses 3 to 5. This covers one of the clauses that we just talked about, on the Racial Discrimination Act. I appreciate that we have already had that debate and dealt with those two amendments, so I will not go there again. It also covers the Crime Commission, which we have had some debate about, and the permit system. I appreciate we will have amendments that specifically relate to some of the other issues later. This contribution goes to the fact that the government is amending the permit system. Again, we do not believe that the government has demonstrated the positive benefit that this is going to have for the community in terms of dealing with child abuse and violence. We believe there is evidence to suggest that this will in fact negatively impact on the community’s ability to deal with these issues. I do appreciate—it is splitting hairs to a certain extent—that the government says that these permits are only going to apply to a small percentage of Aboriginal land and will remove the need for permits on roads and town leases. However, as came out in the committee report on a number of occasions and as has been put straight to me as well, the community are very worried about how they are going to police the permit system. Once people are allowed into a community—for example, tourists—how will they know to stay to the town boundary? Who is going to police it? It is going to be impossible to police people coming in to make sure they just stay in the designated areas that they do not need a permit to go into. Those are very significant issues.
The other point that has been made on a number of occasions and that also came up at the Senate inquiry into Indigenous visual arts is that the permit system is very important for stopping carpetbaggers coming into communities. It was put to us very strongly by Marion Scrymgour, the Northern Territory minister who is now responsible for child protection and also appeared at the Senate inquiry into Indigenous visual arts, who made a very strong case for why the permit system was important for protecting community art centres, artists and the art industry in the Northern Territory. So, again, we do not believe that this is a necessary measure, and it could have a negative impact. We do not support the removal of the permit system.
The government said that they received, I think, 100 submissions—it might have been over 100 submissions—when they had a consultation period on this issue late last year and this year. They said that they regarded those submissions as confidential and therefore would not release them to the committee so that we could see what community members actually said about the permit system. They maintained that there was support for removal of the permit system. Well, I can tell you that the emails that I have had certainly do not support the removal of the permit system. I have had people email me many examples of why they think retaining the permit system as is is important.
As has been put to me on a number of occasions, the permit system is not perfect and some people who should have been excluded through the permit system have come into towns—I know that. As I said, it has not been perfect. But just because it is not perfect does not mean that you should take it away. People break other laws and you do not take those laws away. You do not amend the laws because some people break those laws. Just because the permit system has not been perfect does not mean you should get rid of it. Communities have argued very strongly to me that they want the permit system to remain because it is important to them to be able to control who comes onto their land. It is important to them to be able to manage who comes onto their land and to keep out perpetrators, grog runners and people that may be bringing in illegal substances. They do not think that it is a good measure to amend the permit system. The Greens do not think it is a good idea to change the permit system, and that is why we are opposing this particular provision by the government.
We went through the issues around the Crime Commission in quite a lot of detail in the previous debate. The Greens maintain our opposition to the changes the government wants to make to the Australian Crime Commission. We believe, as we articulated in the debate just then and in a previous debate, that it is racially discriminatory. We believe that, if you are going to give the Australian Crime Commission these powers, they should apply to all violence and child abuse. We do not support those provisions that the government is trying to bring in either.
This bill also deals with the provision of infrastructure on Aboriginal land, and this amendment covers those provisions as well. We have some very strong concerns about these particular provisions and the rights that the provisions give the Commonwealth under these clauses. What I would like to ask the minister specifically on this one is: how does the government think the provisions of the permits, where they are only applying to certain areas, are going to be policed? I think they say that the permits still remain in 98 per cent of cases. How does the government see the permits being policed for people remaining in the areas they do not have to have a permit for? When I asked Aboriginal community members, they did not know how they would be able to police access to areas where you do need a permit system and they are extremely concerned about how they would keep people out of specific sacred sites and off specific areas. They felt that this system was taking away their ability to control access to those areas. I would like the government to explain how they envisage this system being implemented.
The same circumstances would always apply—that is, if somebody breaks the law with regard to the permit system and they go somewhere where they are not permitted to go, it is unlawful. I would have to say that for the first time many of these communities will actually enjoy the rule of law and there will be a police presence as such. There is no difference from any other breach of the permit system. It is operating exactly the same as it operated in the past. It is a criminal offence if you do not have a permit under the Aboriginal Land Rights Act. There are some exemptions from that but that is pretty much the way it is. It would run in exactly the same way as it has always run. The amount of land that is exempted is actually 99.8 per cent.
While we are on this issue, can the minister explain to me whether or not the Commonwealth minister or the Northern Territory minister has the power to revoke a permit issued by a land council or traditional owner? If they do, where do I find that in the bill?
I should say that I do not know; that is probably more accurate than the answer I will submit. But I am reliably informed at the moment—and, if it changes I will inform you—that that is not the case.
That was what I thought based on advice given to me, but we could not find where that was in the bill. However it is a big piece of legislation and we have not had it for long. That raises the question then of what happens if a traditional owner issues a permit to someone of bad character and does not agree to revoke the permit. This government is very quick to identify traditional owners and people in Indigenous communities and to characterise them and accuse them of all manner of things, as Senator Heffernan did the other night in a most unscrupulous way. It then seems though that if a person who is of bad character is granted a permit by a traditional owner, who may be a close friend, co-conspirator, co-drug-user or grog runner or what have you, there is no power to revoke that permit.
I can add some further clarification to my first very vague answer—and I apologise for that. The minister can only revoke a permit that he or she has issued. So if the land council issues a permit, under the provisions of the Aboriginal Land Rights Act it is the land council that can deal with that permit. The notion of the adjustments to the permit system is that we are exempting the main road that goes into the township and the direct township area. That will be exempted. In terms of issuing any special permit, as I said, the minister can only revoke permits that he or she provides.
Just to follow up, is it the intention of the government that no-one has the authority to revoke a permit issued by an individual traditional owner if the land council, the minister, the Northern Territory government or the rest of the community believe that person to be of bad character and not someone who ought to be accessing Indigenous land that has not been made open automatically by the changes proposed by the minister?
I have a few questions I want to ask about this system, which perhaps the minister might be able to clarify for us. My current understanding is that, if a traditional owner issues a permit and the person is found to be someone of unscrupulous character, the land councils have the authority to be able to withdraw that permit. Is that correct?
They do indeed. But there is no difference now and there will be no difference in the future in terms of the provisions of these bills and as the Aboriginal Land Rights Act provisions stand.
I thought Senator Crossin’s question was: is it true that a permit provided by land councils or traditional owners under the Aboriginal Land Rights Act cannot be revoked by anyone else? My point is that outside the townships and the main street, where a permit is not required, that is the case. It is the case today before the provision of this legislation. That is the circumstance and, under the Aboriginal Land Rights Act, that is the case.
We need to get this really clear here. In some respects I think Senator Evans is correct. My understanding is that, under the current permit system, a traditional owner can issue a permit and the land councils have the authority to revoke that permit, but there has to be circumstances proved. My understanding is that that is the current provision under the Northern Territory Land Rights Act. Secondly, it was my understanding that either this legislation or one of the other three bills in this legislation gives the Commonwealth minister the power to cancel that permit if special circumstances are found to exist.
I understand that, at the moment, if a permit is issued by a traditional owner, the land council can cancel the permit that a non-land council person can provide. What the amendments change is that only the person who provided the permit is able to cancel the permit, which is consistent with my response about the minister.
I have an amendment that goes precisely to this point but it is a bit of the way down the track. I do not want to jump ahead of things but I think that, given we are already talking about this, it is relevant because it is a specific Democrat amendment.
It is a good one, let me tell you—page 53 of the issue that has just been given to me. Under this new legislation before us, a permit issued may be revoked only by the issuer of the permit. So, under the changes being made here, if a traditional owner issues a permit, it cannot be revoked by the land council or by the minister, or if the land council issues something it cannot be revoked by the traditional owner. This was a point that was raised in evidence to the committee, very fleetingly, of course. I do not think it was able to be explored in the verbal evidence but it was raised in the submissions from at least one of the land councils. That is a concern and I have an amendment going to it. But I think the point Senator Evans was raising is that if a traditional owner issues a permit to somebody who is an undesirable, for whatever reason, my understanding is that on very rare occasions—not very often—land councils have stepped in and cancelled permits. That now will not be able to happen in all the areas where the permit system will still apply.
It also raises another issue which I think was also raised in a submission—certainly in some of the multitude of correspondence I have seen in the last week or two—of what happens if the issuer of the permit dies. If a traditional owner issues a permit and then dies, what happens then if it can be revoked only by the issuer of the permit? I think it would be useful to clarify that. The Democrats, I hasten to add, have an amendment that specifically seeks to remove this new clause 74AA. I am not sure why it is there. I do not know whether it is meant to disempower the land councils in some way. There is some view that there have been lots of tugs of war between land councils and traditional owners or something like that and this is meant to stop those. I am not aware that it has been a big issue. I think that, even if it has been a small issue, if this is a solution it is more likely to create more problems than it solves. As I said, we have an amendment a bit down the track. I think the solution is just to scrap the new clause and enable the status quo, basically. I think the minister’s initial answer was that nothing is changing, but it is changing because of this new clause 74AA. I think it would be better not to have it changed, frankly. I do not know whether the minister can clarify it. Maybe he can tell me I am misunderstanding things, but that is as I see it.
If somebody who has issued the permit passes on, the notion is that the person who has issued the permit represents a group of people who own the land. In that case, the assumption would be that there would be other people who would be a part of the landowners’ group who, I am assuming, would survive that. That also takes into account the fact that, from time to time, individual traditional owners may issue a permit in their own right. But if they were not to survive, the responsibility for issuing the permit, or any responsibilities before issuing the permit, would then lie with the landholding group they represented. In the same way if somebody is of bad character or has some information about a permit that has been applied to someone who is behaving badly, the information would have to go back to the person who provided the permit so that, if they wished, they could act upon it.
I think that what has come to light through the proposed changes here to the permit system just complicates serious problems that have emanated from the Northern Territory in the last 12 months, and I think the government should give some serious consideration to this. There is an infamous newspaper article that was written by an Australian journalist about one particular community in the corner of the Northern Territory on the South Australian and Western Australian borders. It led to a traditional owner issuing a permit, which then led to a non-Indigenous person trading Viagra for Indigenous art. Under that system, the Central Land Council was able to step in. Under the system you are proposing in the nature of protecting children, if that same scenario exists in two months time the person who is driving into that community with a truckload of Viagra in exchange for Aboriginal art would not need a permit if he goes down the main road and stays in the main part of the town, or he could get a permit from a traditional owner who would be just as culpable in all of this.
Basically, what you are saying to me is that, under your changes in this legislation, nobody would be able to revoke that permit except that traditional owner. Having packets of Viagra and trading them for art is not breaking the law; it is not illegal to do that. It was that issue that was raised by that journalist, which is a real-life issue, which triggered Rod Kemp’s passionate need to get this parliament to inquire into Indigenous art so that some of that stuff could be stopped. I honestly have to ask you to sincerely think about how taking away the ability of the land councils to remove that permit in a situation like that could protect the children in that community.
Perhaps I can take the question regarding the traditional owner who has issued a permit. As I said, the traditional owner represents a group of individuals, and anyone in that group of individuals who represents the land that the permit has been issued for can cancel the permit. In terms of the tragic story about Viagra and the artwork, it is against plenty of laws—I do not know exactly how many—to resell prescription drugs. The whole matter is cast with criminality and common law will prevail.
Can I ask what I think is a more pertinent question. Senator Crossin raises a tragic example of potential exploitation, which is why we will be arguing against your changes to the permit system, but is it actually the legislative intent of the government that no-one else be able to revoke the permits once issued or is it an oversight in the legislation? Is it a policy decision by government that no-one else be able to revoke them? If so, why, given that the previous act did, as you indicated, provide for other people to revoke them? Is it an oversight, given the rush with which this legislation has been put through, or are you deliberately making it easier and restricting the ability to revoke these permits? Then the rest of us in the parliament can make a decision about whether or not we support that. I think we have agreed how it applies. Is this deliberate; and, if so, why?
There has been a great deal of confusion in circumstances where somebody with a permit has been legitimately going about their business and then someone else who had nothing to do necessarily with that person with that particular permit—it may have been a land council—cancelled that permit. And there have been circumstances where that has been the case. This is simply to ensure that we have no further confusion, and it will put beyond doubt that only a party who has issued the permit can revoke that permit. When I say ‘a party’, I am talking not necessarily about an individual but a group of individuals. So the same group of representative people are the only people who can revoke the permit. And, yes, it is deliberate, because there has been an amount of mischief where someone else who may have been unknown at the time has cancelled a permit, making the action on the land unlawful, even for the period of time whilst it was sorted out. When it is actually cancelled, they do not have a lawful permit to be on the land, and in that period of time that unlawfulness can be a bit embarrassing. We just want to make it clear that the person or the group of people who made the decision, the ones who were fully cognisant of the facts and the opportunities—the reasons why somebody said, ‘I want to come onto the land’—are the only ones able to cancel that permit, not some other individual or organisation, which has happened in the past.
That was an interesting response from the minister. I am quite taken aback, given that this act, like no other, gives the minister special powers—and the minister has actually boasted on TV that he is the most powerful Indigenous affairs minister ever—but that you do not give him the power to revoke a permit where someone of bad character has been given it. It just seems amazing that you do not give it to the minister or to the land council, that you actually do not provide for anyone else to be able to cancel the permit. One would have to say it is a little out of kilter with the general approach, which is to say that the minister can do anything he damned well likes in any circumstance. Senator Crossin, with her local experience, raises one particular occurrence, but the minister’s response seems to say, ‘Because we have had particular problems with people being inconvenienced because someone has revoked the permit, the answer is to give no power at all to revoke the permit.’ On the face of it, I am warming to Senator Bartlett’s amendments.
I am pleased to hear that. Our amendments are not before the chair, but in the interests of efficiency we may as well continue exploring this issue. We have a dinner break at 6.30, so perhaps the minister could look into that issue over the break. There are two questions that Senator Evans asked Senator Scullion and that he partly answered with regard to this new clause 74AA on page 53 and why this decision has been made to prevent a land council being able to revoke a permit given by a traditional owner and vice versa. If I heard the minister’s answer correctly, he said that it was because there had been some mischief from time to time that had led to confusion. I can certainly understand that, if someone had a permit and the land council in Alice Springs, Darwin or wherever cancelled it, it might take a while for the cancellation notice to be stamped on the permit—that sort of thing—and there could be some confusion in the meantime. I can understand that, but I would assume that the same thing could apply with any permit that is revoked—making sure that, whoever revokes it, the message gets through to the appropriate people that it has been revoked.
The statement the minister made—to paraphrase him slightly—is that there had been some mischief about this sort of thing. I would appreciate it if he could provide some details, perhaps after the dinner break, of where that mischief is. How big is the problem that exists that this is trying to solve? As other senators have suggested, there is a lot of concern that this could be creating some new and bigger problems. If it is trying to solve a problem that is actually very tiny and, in the process, creating a much bigger one then it is probably not a terribly good idea. So perhaps the minister could give us some examples of where this has been a problem and whether there was actually some ill intent, as opposed to either confusion or a difference of opinion. That would be useful. I have been told that it happens occasionally that a land council will revoke a permit issued by a traditional owner but that it is not done very often. It is usually, if not always, done on the request of other people who have said that there is a problem.
Perhaps we could have been given some information about just how frequently this has been an issue at all, for good as well as for ill. I am sure that it has been done for good purposes; in fact, I know it has. I know of one example where some people were given a bunch of permits by someone to have a party in a dry area, a lot of other people complained, and the land council stepped in and revoked the permits to resolve the problem. That is one instance I have been given. That will not be possible anymore under this new section. You might be trying to deal with a problem but you are also preventing land councils from dealing with a problem, so I am still far from convinced that it is a desirable solution, and it would be good to have some evidence about this. I cannot help but repeat the comment that we should have had the opportunity to examine this properly in the Senate committee process when we had the land councils there. I think they got 30 minutes between them, maybe 35 if they were lucky, and we did not get the opportunity to ask them these sorts of questions. We would obviously have asked them then if we had had the opportunity. We cannot ask them now, so we have to try and do it via the minister.
I want to track back to make as clear as possible the meaning of this new clause that the minister was explaining, because certainly from some material I have seen from the land council that is not how they perceive it. I am not doubting the minister but I think it would be good to get it absolutely beyond doubt. The wording says:
A permit issued under section 5 of the Aboriginal Land Act of the Northern Territory may only be revoked by the issuer of the permit.
I take what the minister has said to mean that if a traditional owner issues a permit for the purposes of this new section, the issuer is not just a traditional owner; it is any traditional owner, and it becomes a matter of whether the issuer is within the traditional owner class, if you like, or the land council class—or, indeed, the minister, I presume. It would be useful to clarify that because, on the face of it, the way it reads to me is that the issuer of the permit is a traditional owner, they issue it and no-one else can revoke it except them. The minister indicated that if that person passes on, the issuer is deemed to be the traditional owners as a group. Does that group ability to revoke only kick in if the original issuer passes on or is it there all the time that any traditional owner can revoke it? And if it is the case that any traditional owner can revoke it, does that leaves us in the circumstance where one traditional owner could issue a permit and another one could say it is revoked, and we would then have that same sort of confusion? That is something that springs to my mind with regard to that, whether that is relevant to the new clause or the existing system.
I will just explain again some of the background. There has been a history of traditional owners cancelling permits that have been issued by land councils, and land councils cancelling permits issued by traditional owners. I know of some circumstances when it has in fact been for their spouse. It is very difficult to have a distant land council, which is often the case, cancel someone’s permit when it is for a spouse. The fundamental right to invite someone or to have your spouse live with you in the community is something that should not be able to be overridden by a distant land council. So, again, it is removing the power of the gatekeepers over some of the traditional owners who live on country. This just seeks to provide a clarity on that matter to stop this confusion. In terms of the law and order issue, it is always going to be a matter for the police rather than the land councils.
There are a whole range of scheduled intentions that are associated with the proclaimed communities. When those communities that we have identified have been proclaimed then the roads that lead from wherever else that connect with the community will be scheduled.
I understand that we will have a whole suite of scheduled areas. I am not sure if we have them at hand; as I am speaking, someone can perhaps provide me with that. Whether or not that particular road is the one that joins Nhulunbuy is something that I will be able to ascertain in a few moments.
You know about the exact bit of track that I am talking about—the 700 or so kilometres that join Nhulunbuy to the Stuart Highway. I would like an answer from you, if not now then certainly after the dinner break, as to whether you would need a permit to travel along that track. From memory, there are plenty of roads leading off that track that go into communities, but they are hundreds of kilometres away, as you well know. The other question I would like you to give me an answer to is whether or not you would need a permit to travel from Nhulunbuy out to Baniyala.
When the permit system is amended so this can happen, you will not require a permit to travel from the Stuart Highway to Nhulunbuy. If other communities adjacent to the highway were prescribed communities, it is my understanding that if it was on the left-hand side of the highway you would simply turn left along the track that led directly to the other prescribed community. In terms of whether or not a permit would be required to drive from Nhulunbuy to Baniyala, it would depend on whether or not Baniyala was a prescribed community.
You are talking about the road from Nhulunbuy which comes from the Stuart Highway. Let’s say you wanted to get to Baniyala and it was a prescribed community; you would not require a permit to get there. There would be no permit required to move from the highway via Nhulunbuy to Baniyala. I think it is important to note that there are a number of ways you could get to Baniyala, but we will be prescribing the route that would be taken. There is only one road from Nhulunbuy to Baniyala, but there are a number of other tracks that lead to the south-west from the highway to Baniyala, and I appreciate that.
Sitting suspended from 6.30 pm to 7.30 pm
Minister, I want to pick up where we left off before the dinner break—that is, your declaration that people would no longer need a permit to travel on the road between the Stuart Highway and Nhulunbuy. Can you advise me what this government is proposing in two aspects there. You would be well aware that the current permit system has been required on that road for people’s safety. It is extremely unsafe at times, and extremely corrugated. There are two rivers to cross, one of which is the Goyder, which can be extremely unsafe. My advice from the land council is that the issuing of permits was not so much so that people did not go where they were not advised to go but as a safety measure. After the permit was issued, if you went across that road and you had not arrived in 48 hours people started to be concerned about your safety. There is no mobile phone coverage along the road. We are talking about a 780-kilometre stretch here. People I have spoken to recently tell me that satellite coverage is intermittent. So, in revoking the permit system, what is this government’s plan to protect the safety of people who travel on that road?
Secondly, Dhimurru land management people tell me that tracking the number of people who use that road by permit allows them to also track the quality of the road, to get an idea of how much it is being used and when they ought to get out there and grade it. If this is now not something that can be monitored through the permit system, what are the federal government’s plans for both of those measures in the future?
Perhaps we could have a fair dinkum comparison. In my experience the Gibb River Road is the same sort of terrain with pretty much the same sort of vegetation. The Gibb River Road is not quite the same length, but it is pretty similar. A number of people go along that road, with a variety of different equipment—whether they are Indigenous people, tourists or just travelling around Australia; it is a very popular destination—and there is no permit system on that road. People just make the normal provisions for safety. We know the order of the road. You can find out the state of the road from the police station. There are a number of weather observations, particularly during the wet season, about which roads are cut. There is the website from the weather bureau, as you would be aware, that you can access to work out where you can get to. I know that you, as a well-travelled senator from the Northern Territory, would be aware of those issues. It is effectively just like anywhere else. To cling onto the permit system on the basis of safety I think is drawing a bit of a long bow.
If I could go back to my answer just before the break, I understand that you asserted that Baniyala—
As with the Gibb River Road, and any other graded road, there is scheduled maintenance. One of the ways you can nut out exactly what is happening along the road is to drive along it. This is not rocket science. A road has to be graded when a road has to be graded. This happens all around Australia without the permit system to tell you when to grade the road.
With all due respect, who will be responsible for that then? Under the permit system my understanding is that the people who did that were doing it through some sort of benefit derived from the permit system. My question to you really is: who is now going to take responsibility for that, seeing that you are opening up this avenue of access as a public thoroughfare, when it has not normally been?
I understand that roads of that nature are the responsibility of the Northern Territory. If I could go again to my submission before the dinner break, when you said that you thought Baniyala was to be a prescribed community: I have been advised that that is not the case. It may well be that it is under another name. I advise that prescribed communities have over 100 people. I thought there were about 60 in Baniyala, but perhaps we got that wrong. But, for your benefit, it may not be the case that Baniyala is intended to be prescribed.
I thank the senator for the question. It gives me the opportunity to briefly outline what the benefits will be. You talk about sightseers. Generally, people who travel in this way, while they are sightseers, when they go to a place they will require fuel, they will require a sandwich or a milkshake—the normal provisions for just driving in or out. When they get there, there are a huge range of opportunities. In fact, one of the biggest employers is the provision of artworks. We have many artworks for sale in these communities. It is unfortunate that they sometimes only have a couple of outlets. Those outlets by and large are excellent outlets—like Papunya Tula. There are a whole range of cultural artefacts and artworks available.
Artists are at different stages of development. There is the quality of artwork of someone like Papunya Tula and there is the bottom end of the scale, in terms of experience and style, which would be quite attractive to tourists. But that opportunity may not necessarily be available to the community. To touch on the committee that was chaired by Liberal Senator Eggleston which reviewed Aboriginal art and was tabled in federal parliament in June, today’s Australian says:
... Eggleston’s committee wanted the permit system abolished to “outmanoeuvre the carpetbaggers”, as he puts it. “By letting tourists come in and buy from the arts centres directly,” he says, “it would undermine the carpetbaggers, who come in and set up exploitative relationships with the artists.”
I do not have sufficient knowledge of the inquiry of the committee but, like all Senate committees, they have probably done a pretty good job. This reflects that there are a range of opportunities that tourists will be able to bring to the communities.
I was a member of that committee. I was on that inquiry and I attended not quite all but virtually all of the hearings. I would not pay too much attention to what they quote in the media because the Australian has got it wrong. The committee did not recommend that, because the committee could not reach agreement on it. We were very careful not to make a recommendation, as I recall, on that.
Yes, art centres already allow access. We did not reach consensus on the issue of permits because we disagreed over all the evidence that we received and what it actually meant. The committee received very strong evidence from a number of submitters and people who appeared at the inquiry who said that they were very strongly concerned about the removal of the permit system and the impact it will have in allowing carpetbaggers into community. We received some evidence where people were saying, as Senator Scullion just quoted, that they did not mind having the permit system removed. But we received a lot of evidence that people were very concerned about the removal of the permit system and the inability to then control carpetbaggers coming into community. There were some very good examples given of how the permit system had in the past helped to control carpetbaggers. The committee did not reach a conclusion on that because we could not reach a consensus.
There is anecdotal evidence of non-Indigenous people, particularly men, who have sexual relationships with young people and then move on and are very difficult to track down. Does the minister feel that the removal of the permit system is not going to make that situation potentially worse? What moves have been made by the government to ensure that that situation not only does not get worse but also is stopped and retrospectively investigated?
I am making an assumption—and I am sure you will correct me if I am incorrect—that the nature of the relationship that you are talking about is an unlawful or an inappropriate one. That would be a matter for the police. Tragically, over the years the permit system has usurped the real force of the law because people have said, ‘Well, we’ve got the permit system and that’s how we control things, so we do not need any police officers’. I am assuming that was the rationale because there are hardly any places where you can say, ‘There are sufficient police officers here and they are sufficiently resourced.’ We are moving to a model where there is the rule of law and if people travel into those places and they behave unlawfully then that is against the law. The law is there now to deal with it, not some notional system of permission where you say, ‘I’ll be able to have a bit of a chat to this person and I’ll be able to make an immediate appreciation if he is someone who is likely to be unlawful or not.’ The position we are moving to now is far superior to the one that we are leaving behind.
It has not been a case of saying, ‘We don’t need any police officers.’ It is a case of the police officers and the facilities not being supplied. Governments are the lawful authority there and they have failed in their job. The question of now opening up communities to everybody who might want to, of their own free will, go there puts a big responsibility on to the government. There is no good intersection in this legislation for asking some of the very pertinent questions about the situation which exists, particularly about the much-quoted—by the government—’rivers of grog’. This is as good an opportunity as there will be to ask the minister: who has been profiting from the rivers of grog? Has that been Indigenous people? If not, who has it been?
I can hazard a guess at that. I do not have any evidentiary process that gives me a clear sign about that, but it might exist. Who profits from it? It has been my experience that it is both of those demographics, tragically. Certainly there are people outside of the communities—white people—who profit from the trafficking in human misery and there are also Indigenous people and, perhaps even more tragically, members of those communities who invariably profit as part of the deceit or the sale of the products.
The point I make here is that it has been non-Indigenous people who have profited, who have been the source of the rivers of grog mentioned in the Angry Australians by Ward McNally in 1974. I ask the minister: what will be done to look at how that profit system worked and what checks were put in place by the white community, which do not suffer the discrimination—for example, the removal of the Racial Discrimination Act—which the Indigenous people are now suffering through this legislation? What can the government say about this destructive behaviour by the community which brought grog to Australia at the expense of Indigenous people and who have made huge profits out of that? What has the Commonwealth done about that and, now that it is taking this action, what does it have to say about the profiting from liquor at the expense of Indigenous people, who have not been the source of it, who do not have it as part of their culture? What does the government have to say about that?
I was not here in the late 1700s and, again, I am only making personal observations. I am trying to be helpful. Just to clarify, do not mistake from my answer that it is both Indigenous and non-Indigenous. A substantial amount—at least 50 per cent—of the profit-takers in the delivery of alcohol to communities are Indigenous people. But, in the context of this discussion—and for a whole range of reasons I think it is important to keep it in the context of the provisions we are putting in place to ensure that these communities are kept safe—these provisions reflect what this government is doing. We recognise the close association between alcohol and violence and sexual abuse. That is very clear and you can look to some very good science and some very good material on that. This government has moved, through the prohibition of alcohol provisions in this suite of legislation, to ensure that we can provide an environment where it is much easier to ensure that alcohol does not continue to affect the communities in the way it has in the past.
Again, I stand to be corrected, but I understand that it is about an importation permit, and the technical nature of how you go about preventing import of these products is not under my portfolio or that of the senior minister. It is not that I am obviating; I am just not aware of the process. But the decision has already been made not to import. That was the mechanism, rather than putting it in this legislation.
Senator Scullion, perhaps you can explain to Senator Brown why it is that the importation of kava is restricted under a current regulation. The minister has just now decided to ensure that that regulation is implemented—which is the change—which is why it does not need legislation, as I understand it. The regulation is now simply just being enforced, which is why there will now be this ban on kava. There always was a ban, technically, in this country on kava, but the regulation was not in force. Perhaps you could explain to us why there has been a sudden change of attitude?
As I have said to Senator Brown, that decision is clearly in another portfolio. Again, I am being as helpful as I can. I have no knowledge of that process; it is another portfolio decision. But, in terms of the consequences of that decision, as I have indicated to Senator Brown, it is another good decision by this government to further provide protection for women and children in communities.
The legislation we are dealing with sweeps up matters from a whole range of portfolios and puts them into one. I ask the minister: could he inform the committee what representations there have been to the Howard government over the last 11 years about kava?
That has been a question for over 11 years, which, as you would be aware, I cannot give you an answer to right now. Just in the interests of ensuring that we are targeting exactly what you require so we ensure that we are spending taxpayers’ money efficiently, can you specifically state what sorts of approaches? Just for the sake of completeness—it could be a whole range: conversations, submissions or requests—perhaps you could be a bit more specific before I would be prepared to take that on notice.
I appreciate that—although it appears we will be sitting for some time tomorrow. I might make the same request about alcohol, but I think a very large truck indeed would be required to come to the Senate. The point to be made here—Senator Crossin has made it—is that, even where regulations or laws have been in place, the Commonwealth has failed in some circumstances to carry those out. When it comes to alcohol, the entreaties to this government by Indigenous people over the last 11 years failed. We regret that. Now the government is coming in and saying, ‘We’re not consulting with you; here’s a set of laws.’ How much better it would have been had representations been listened to by the government and had there now been a spirit of consultation with the people who know best—and that is the Indigenous people of Australia—about the impact, about what they require and about how to handle the terrible situation that has occurred, instead of now having a sledgehammer racist set of laws put through here with no consultation with the very people who have asked repeatedly to be given, through law, the protection they have been denied but which is being brought in now in this unsatisfactory fashion.
Going back to the permit system, I just want to make the point that the government must take responsibility for removing the rights of Indigenous people to the permit system in the way that has been debated here in the last hour or two, and the government must accept and shoulder the outcomes of that. But there is one outcome that they will not take responsibility for, because it is not measurable—and that is the death of culture. The powerful Western culture is moving in on an Indigenous culture which has nowhere else to go, no place to flee and no defence mechanism. Defences like the permit system are now being removed by law—and behind that is the thinking of this government that Indigenous people must integrate.
I listened to the former Minister for Immigration and Multicultural and Indigenous Affairs, Senator Vanstone, talking about the prospect of ending many remote communities. Talk about that prospect would never have been dreamt of if they were non-Indigenous communities, but these are Indigenous communities. What is being put forward here is ‘integrate or else’. In this legislation we are talking about the death of culture, and enormous damage. The permit system, which is being interfered with here, is a major factor in that. I do not think the government has done any assessment whatsoever of that.
Yesterday or the day before, I listened to Senator Milne talking about the government removing the support for Indigenous languages. I have not heard the minister in this chamber say that part of the suite of measures that we are dealing with tonight is the re-funding of Indigenous languages to make sure that, now that we have removed the permit system and everybody can go to these communities, the languages will be kept alive. With those languages comes culture and pride. We know from experience right around the world—from the Gaelic experience to the experience of people in the Americas—that the loss of language brings great anguish and depression, which visits people for centuries afterwards. Yet this government seems to have put that aside in the move—which must be very clear about here—to say to Indigenous people, ‘Take up the predominant culture or else.’ And we will be dealing with that a little bit later with the next motions to be dealt with here.
I want that on the record, so that no-one reading about this moment in history 10, 50, 100 or 500 years from now can say, ‘If only they had known what they were doing to Indigenous culture in Australia.’ We all know. The government has made its choice. It has the bulldozer; it has the numbers, and we do not. But let nobody in this place say that it did not know what this would do to Indigenous culture, custom, law, language, pride and wellbeing into the future of this nation. And if there has been a measure of what the impact will be, besides selling more paintings to more tourists, which the minister was talking about—but I will not go into that in any length; that is an obvious matter—the government has in this debate made no contribution on that hugely important assessment for the Indigenous people of Australia and this nation.
I want to make that part of the debate tonight and I want it noted. I want to put it on the record that we all knew that this was going to have a massive impact on Indigenous culture, particularly across Northern Australia where its stronghold exists after the devastating of such culture across southern Australia. Here we go again, but this time many of us care—and this time the eyes are wide open. And the government has made no assessment of the impact.
I thank Senator Brown for bringing this very important issue to this place. Culture is an absolutely central part of this debate and a central part of Indigenous communities. I do not have to acknowledge that; I think all of Australia realises that. Senator, you are right: the culture in these communities is at threat. Many people in the communities I visit tell me that their culture is dying, that their culture is collapsing. But, Senator, unfortunately, I cannot follow the process that it is collapsing and dying because of anything this government has done. It is collapsing and dying because of the drunkenness, the violence and the sexual abuse in those communities. That is why it is dying. And I am not the only one saying that. Anyone who has been to those communities and has sat down with the people in those communities—as I have done over many years—know that those are the things that are killing the culture that you quite honourably say that we should look after.
Senator Brown, I have to say that the culture is not dying everywhere. Daly River in the Northern Territory is a wonderful community, mate. You drive into there and it is absolutely clean. It has very low levels of crime. It is fantastic stuff. There is great leadership. It has no permit system, Senator Brown. That is what makes it a stand-out: it is just an ordinary place with the rule of law and order. Do you know what the strongest thing in that place is, Senator? It is culture. They have maintained the strongest culture. With respect, do not come in here lecturing me or other Australians in this place about what has either damaged culture or is going to fix culture. At best, it is misleading. It is probably misinformed, and I like to be respectful about those things. Then there is Tjirrkarli. For $1,000 a night, people go there to spend time with Indigenous people and to get an understanding of the wonderful spirituality and diversity of their culture. That is a great thing for jobs. There is employment and prosperity. To become part of the economy is the future. They need opportunities—the same opportunities that you and I take for granted, Senator Brown.
When you say that we are out here with the bulldozers and that the government is going to push ahead because, after all, we have the numbers, although I have probably only been here a blink next to you, I have to say that my observation is that we represent Australians. Each one of these seats here represents a group of Australians. Let me tell you, if you want a vote on this, it will not be in this place. If you go outside the doors and talk to people out there, the vast majority of informed Australians think that this is the best thing that has ever happened. We can look back on a horrific past, which was a train crash of cultures in which the older culture lost out. They have gone through a great deal of change; we all acknowledge that. But I do not think it is reasonable, in the context of this debate, to come in and paint our intervention as anything other than stopping a further deterioration of culture and providing those individuals who live in Indigenous communities with the same opportunities in life for law, order, protection and anything else you want to name as the rest of us.
It was a Greens bill, supported by the Senate before the government got the majority, that forced the Prime Minister’s hand. It made him go to the previous Chief Minister of the Northern Territory and say, ‘We want you to take children out of mandatory sentencing.’ Aboriginal kids were being locked up for stealing biscuits. The Prime Minister did not act on that until the political power of the Senate expressed itself, legislation went to the House of Representatives and there was a backbench revolt. The Senate also said that we wanted Indigenous languages available in the courts so that youngsters there understand what is going in. The Senate committee had found that they did not know and that tragically one youngster did away with himself because he did not understand that he was going to be freed three or four days later.
I am talking here tonight about the vacuum in all this legislation. There is money for this, money for something else and money for a third thing, but the government has defunded language programs in the Northern Territory. Where built into this suite of laws is not just the protection but the fostering of the rights of Indigenous people to their languages, customs and laws? What we have dealt with today are simple mechanisms for saying that the courts cannot take those into account. Where is the rest of it? I will tell you: it is not here.
When I moved also for a Senate inquiry and action in this place against petrol sniffing—that scourge of young people, 400 to 600 of whom were active petrol sniffers in Indigenous lands in the Northern Territory and adjacent states—it was this government that held that up. It did not want that rolled out in Alice Springs—you will remember that very clearly, Minister—until the force of public argument finally overcame the government resistance, and the vested interest behind that government resistance, to immediately making available non-sniffable petrol. That rollout has finally taken place, which will not only save the culture of those kids but their ability to appreciate it, take part in it and to enjoy it into the future.
The government says that it has some special moral authority to arbitrate what is going to happen through these laws, that that is best for Indigenous people and that it knows that because it did not consult them. It did not consult the Northern Territory government or the Indigenous people; it just brought the laws in, announced they were going to happen and started to enact them at the earliest moment. They are here in the parliament and will go through this week. What I am warning about is that the lack of probity, prudence and consultation here will have a very big cost, and that cost will be on the Indigenous people; they are going to bear it. The minister can make his argument in the way he has just done and cite examples, but we are talking about scores of communities here and about laws that reach into every black household in the country without consultation. I am warning about the impact that that will have on Indigenous culture into the future. There has been no assessment of it; there has been no account of it; there has been no consultation about it with Indigenous people. And there is nothing in this legislation which advocates it. That is the problem.
There are a couple of points I want to make to clarify the record or at least give my perspective on some of the things people have said. I think we are getting into a waxing lyrical stage here, which is sort of interesting. I also have some questions about other aspects of the bill to do with the permit issue we dealt with before dinner and some other sections to do with pornography et cetera. It might be my anal nature but I would rather move onto those sections before we have to ask more of those questions. So I am suggesting it might be good to put the question, although having said that I want to say a few things before we do because I am being a bit helpful—but not too much.
There has been some useful broader philosophical contributions from the previous speaker. I want to give my recollection of the record in regard to a couple of the points that were made with a purpose beyond just correcting the record. I am 99.9 per cent certain the legislation that Senator Brown is referring to that dealt with mandatory sentencing was a joint piece of legislation of the Labor Party, the Democrats and the Greens—Senator Bolkus, Senator Greig and Senator Brown from memory. As you would know, Madam Chair, that sort of cooperative effort tends to increase the chance of success that occurred on that occasion. Purely for the record, I want to acknowledge the Democrats’ equal contribution in that particular process but also to use the petrol sniffing inquiry example and contrast it with what we are doing now.
As you would know, Madam Chair, having been heavily involved in the petrol sniffing inquiry yourself, my recollection is that there was an initial Senate inquiry put up by Senator Brown which focused on petrol sniffing, which I think the Democrats supported but some others felt was too narrow. It was focused too much or solely on Opal and not on other things. There was an effort, if I recall—it might even have been by Senator Scullion—to try and amend the motion put up by Senator Brown, and that was not agreed to. He did not want to amend it, so it did not get up and everybody got nothing; no inquiry at all. It did not help anybody very much; a chance to beat up on the government of course for not going ahead with the inquiry.
I think it was Senator Scullion’s motion that did initiate the final inquiry after consultation with other people, including me. It might have been a bit broader than others wanted it to be, but we worked through it and we got an inquiry up. That inquiry was conducted over a period of a few months and went to a number of places, including Mount Theo, which I think got recognition through the Order of Australia award today for their work in that area. We produced a unanimous report after that consultation. The government acted on it because of ongoing political and public pressure and all those things, but it was recognised to have been a great success—although I would caution to say it was not the universal problem solved forever, as has occasionally been reported, but it was still a great success done in conjunction with and listening to Indigenous people.
My points are firstly to acknowledge that it was partly the role of people within the government, specifically Senator Scullion, who wanted to work constructively with people to get that inquiry initiated and then it was conducted properly and a good result was produced. I acknowledge the contribution that Senator Scullion made because he might have been, no doubt inadvertently, left out of history in the way it was described. I use that to contrast with what we are doing now, which is exactly the opposite: no consultation, no cooperation, no listening, no engagement, no nothing on a range of issues far more complex than petrol sniffing. That is why I have concerns about this working. It is nothing to do with all the philosophical to-ing and fro-ing we have had, interesting though it is. I hate to be a stick in the mud and put all that great, broad philosophical encountering to one side and pull it back to what is before us now and whether or not it will work in practice on the ground—that is my concern. I have some more questions on that but perhaps I should focus things and move it forward a little bit. It might be worth putting the question and moving on; it is just a suggestion.
Sheet 5341 is to do with leases—I am sure someone will correct me if I am wrong—but I think it is contingent on the major aspect of this link to the previous bill and the five-year leasing provisions in it. I think it is redundant, given that my previous amendment did not get up—although it is redundant anyway in one sense because it is not going to get up whether I move it or not. I think the points and the argument have been made, and I withdraw amendments (1) to (6) on sheet 5341.
by leave—I move opposition amendments (2) to (9) on sheet 5354:
(2) Schedule 4, item 12, page 41 (after line 12), insert:
70AB Designated persons
(1) For the purposes of sections 70B to 70F inclusive, a designated person refers to:
(a) a person referred to in section 70(2A);
(b) a journalist acting in their professional capacity; or
(c) a person performing functions as an agent of the Commonwealth government or of the Northern Territory government on official business;
journalist means a member of a professional organisation recognised by the regulations for the purposes of this subsection.
(3) Schedule 4, item 12, page 41 (line 13) to page 43 (line 30), section 70B, omit “a person” (twice occurring), substitute “a designated person”.
(4) Schedule 4, item 12, page 44 (line 3) to page 45 (line 26), section 70C, omit “a person” (three times occurring), substitute “a designated person”.
(5) Schedule 4, item 12, page 44 (line 1) to page 45 (line 26), section 70C, omit “the person” (three times occurring), substitute “the designated person”.
(6) Schedule 4, item 12, page 46 (line 1) to page 47 (line 23), section 70D, omit “a person” (three times occurring), substitute “a designated person”.
(7) Schedule 4, item 12, page 46 (line 1) to page 47 (line 23), section 70D, omit “the person” (twice occurring), substitute “the designated person”.
(8) Schedule 4, item 12, page 47 (line 24) to page 50 (line 9), section 70E, omit “a person” (twice occurring), substitute “a designated person”.
(9) Schedule 4, item 12, page 50 (line 10) to page 53 (line 5), section 70F, omit “a person” (twice occurring), substitute “a designated person”.
It is good to get up every three or four hours and move one of these. We have had some discussion about the permit issue but the Labor Party regards this as a very important debate. This set of amendments seeks to put in an alternative regime to that proposed by the government. The government is effectively looking to remove the permit system from roads and townships and only apply it to land beyond those boundaries. Labor fundamentally thinks this is an issue of safety; this is an issue of child protection. The test we set when we agreed to support the legislation proposed by the government was that it would get our support if it improved the security and safety of children in a practical way.
There has been a lot of aspects to the government’s legislation where people have argued that the measures are not directly targeted towards the protection of children and that they are peripheral matters or matters that reflect a broader agenda that the government has been trying to get adopted. But clearly when it comes to the permit system I think the opposite is the truth: the government has not gone far enough and its measures to abolish the permit system is contributing to the thing they say this legislation is aimed at combating—that is, protection of Indigenous women and children, their ability to be safe.
We believe that the government’s proposals fail the test that we set for them. We think that the alternative regime that we propose will achieve some of the objectives the government argued for in support of their measures but will still allow those Indigenous communities to exercise the permit system in order to provide safety in their communities. It would provide them protection from the grog runners, drug runners and other undesirable characters who seek to prey on some of these communities.
We are supported in that by the views of the Northern Territory Police and the Northern Territory government. There was a submission to the Senate inquiry from the Police Federation of Australia, which I thought was quite compelling. It said:
In relation to the long-standing permit system for access to aboriginal communities, the PFA is of the view that the Australian Government has failed to make the case that there is any connection between the permit system and child sexual abuse in Aboriginal communities. Therefore, changes to the permit system are unwarranted.
The submission goes on:
Operational police on the ground in the Northern Territory believe that the permit system is a useful tool in policing the communities, particularly in policing alcohol and drug-related crime. It would be most unfortunate if by opening up the permit system in the larger public townships and the connecting road corridors as the Government intends, law enforcement efforts to address the ‘rivers of grog’, the distribution of pornography, and the drug running and petrol sniffing were made more difficult.
So the police are saying that they do not support the government’s proposals. They do not think we should go as far as the government are proposing in terms of amending that permit system. So Labor are offering an alternative regime which seeks to recognise some legitimate arguments made by the government and others about access for certain classes of individuals to townships. We propose a regime which provides for designated persons who can get access to the communities. It will allow those with proper reasons for visiting the communities to go there but it will still allow the permit system to restrict those who go for purposes that might offend the inhabitants, and those who might go there for purposes of criminal or inappropriate behaviour.
Our amendments allow access to roads and town community centres only to the class of people that we define in our amendments as ‘designated persons’. These designated people are members of parliament or candidates for election, as per the existing legislation; Commonwealth or Territory government employees, or agents of the Commonwealth or Territory governments acting in an official capacity; and journalists acting in their professional capacity.
Labor believes that there is a good argument for extending access to journalists. I think we all agree that being able to report on occurrences and what is going on in communities or in our society is part of a free society. That transparency is a useful part of our democracy so we think that there is an argument to put journalists on that list of designated persons. But we still think that we need to provide the protections that the permit system has afforded Indigenous people so that they can control who is coming onto their communities. It is a measure that will assist in protecting communities from sly groggers, paedophiles or whoever else comes onto the community without due cause.
We think our alternative regime is preferable to the government’s regime. We think it ensures that access to those with business in visiting the communities is guaranteed, but that those who are not designated persons ought to go through the current practices and apply for access through permits. We think it is a better balance between providing openness and transparency about what occurs in communities and the need for those communities to have their culture and tradition protected, and the security of the people who live in those communities assured.
It is not often understood that this is a question of people entering Aboriginal property. Just as I like to control who comes onto my property, it is not unreasonable for Indigenous people to want the same. This is their property. People tend to forget, when they are discussing Indigenous rights, that people have property rights. We do a lot in this act to suspend those property rights but I think it is important that the people in those communities retain that sense of control which in no way prevents the police or proper authorities coming onto their land.
I do not accept that the current system prevents that either, but if one wanted to make that argument, this amendment provides for designated persons. It provides access for those people who need to be there to ensure law and order and to provide proper services, including health services or any of the measures that need to be supplied to communities. It allows the communities to control who else comes into their communities, and who uses the roads to those communities. The government argues that they have protected something like 99.8 per cent of the lands in the sense that people cannot go beyond the major roads and communities, but the point is that they can go where the people live. They can get access to the people who are in the communities. If we are serious about the security of children and protecting them from some of the activities that have been associated with people visiting communities, then the alternative regime we are proposing is preferable to the government’s regime. We think that the complete destruction of the permit system, which is achieved by the government’s legislation, is not supported on the evidence.
I know it has been a bugbear of the minister’s for some time; it is an agenda he has been running for some time. But this is not the opportunity for the minister to keep running his personal agendas; this is a question about whether the Parliament of Australia should pass legislation that deals with emergency concerns about child abuse and violence in the Northern Territory Aboriginal communities. We have to make a judgement about whether the government’s arguments for the changes it is proposing are solid. I do not think they are. I think we ought to fall on the side of the Northern Territory Police and the wishes of those communities and limit the changes in the permit system to the ones proposed by Labor rather than accepting the approach the government is proposing.
I want to make a few comments about this section of the legislation because I think the government has got this fundamentally wrong. Despite the fact that there may be some elements of this bill I have supported, I seriously think this part of the legislation is driving a personal agenda. I am not sure if it is the personal agenda of this minister or of the member for Solomon, who has advocated long and hard to have the permit system abolished. I am not sure because this does not actually cover any of the seat of Solomon.
The government got the opportunity to make this move into the permit system and, looking at their history, I think it will be just the start of further changes to come. We had an announcement last year that this minister and this government were going to conduct a review of the permit system. That happened. They say they got over 100 submissions. Funnily enough, I got three-quarters of those cc-ed to me. I am not sure on what basis they came to their conclusion but, on reading those submissions, I could come to no other conclusion than that the permit system needs not only to be kept in place but enforced. I have heard the minister say that a couple of people dragged him aside at a meeting and said, ‘Look, I didn’t want to say anything publicly, but I’d like the system abolished.’ Well, we do not usually operate like that in this country. When you call for submissions to an inquiry, people need to have the tenacity to front up and put in a public submission, a submission that is available for all time for others to see. We do not usually make changes by Chinese whispers or word of mouth. So I am not convinced that your submissions overwhelmingly said the permit system should be changed in any way at all. I think that, if you were so convinced that that was the evidence before you, those submissions would have been public, a paper summarising those positions would have been public. But we have not seen that at all.
I think this is the beginning of taking away some of the control that the land councils have in the Northern Territory. I do not say that there would be no communities in the Northern Territory that want changes to the system. So why don’t you consult with Indigenous communities and, for those who want the changes to the permit system, do it? It would be quite easy to schedule those by regulation to say that you will make changes to the permit system when and if required by individual communities, but I do not see that happening.
I went to Maningrida nearly seven weeks ago along with the member for Lingiari, Warren Snowdon, and I made it my business to talk to the police in that community. I did not talk about this in my speech on Tuesday night because I was leaving it for now. The afternoon that we were there we sat with those five police officers and had a cuppa, and they said to us both categorically: ‘Look, to be quite honest with you, we rely on the permit system as our key to stopping intruders in this community. Twice in the last 12 months we’ve noticed strange vehicles in this community, and the permit system was our opportunity to stop those vehicles. The first one took off and we weren’t able to chase them. We were immediately suspicious then about why they didn’t stop, but they got away. The second one didn’t get away; we were able to stop them. They had a stash of marijuana under the seats in the back and we were able to prosecute them.’ That, to me, is real hard evidence that the permit system works.
The police officers I spoke to three weeks ago said to me, ‘The reality on the ground is that the federal government needs to put more police into communities’—and, let’s face it; it is not going to happen overnight in these 70 communities—’or, when they take away the permit system, give police the power to stop a car.’ For what reason? You actually have to have a reason to stop a car; you cannot just flag down a car and say, ‘You’re a stranger in this community; I want to search your car.’ The police tell me that, if the permit system is revoked on the main road, they will have no key, no mechanism, no trigger to stop, talk to or question people who may be suspect. The government has to seriously look at the implications of this on the ground and have a bit of common sense in this. I do not see any common sense prevailing in this.
I cannot believe that the federal government would turn their backs on the Northern Territory police force, on the Northern Territory Police Association and on the Australian Federal Police Association and say to those well respected members of those police forces, who seriously know what they are doing and seriously know how well the permit system can be used and implemented: ‘We know better than you. You guys out there on the ground are dealing with this 24/7, but your thoughts and ideas are really irrelevant in all of this.’ I would have thought that this week, with the Police Association meeting in Darwin and the strong representations that have come from the Australian Federal Police Force and from Vince Kelly, they would at least put a hold on this section of the legislation. They could just take it away and rethink it for another fortnight, and perhaps they say to themselves: ‘All right, we’ll make these changes but we’ll do it community by community, or we’ll implement these changes when more police get into communities.’ The way they are currently going about it does in no way in the world convince me that this is being done in the best interests of the children—in fact, quite the opposite.
The example that I gave earlier this evening is a real example. It was an example that moved the nationally renowned journalist from the Australian to write about it. He was so disturbed about it that he finally decided he would blow the lid on this operation between a senior traditional owner and a fellow from interstate. I heard what you said before, Senator Scullion, about the supply of Viagra, but, let us face it, you can get it over the internet. If you are like me and thousands of other Australians who access their email every day, the spam for the purchase of Viagra is coming at you day and night. You can buy it. You do not need a prescription and it is being peddled out there in the community. That is the reality.
This is the one area, I would have thought, in the whole saga of child abuse and child neglect that we have heard about that you might seriously try to turn around. But I am blowed if I can understand why you will not give either the land councils or the minister the power to revoke a permit if a TO is given that permit. I think that this sort of situation is going to be exacerbated. You know that as well as I do—you are from the Territory—and I think you know deep down that this is not going to work either.
Secondly, if you want to turn your back on the police forces in this country and suggest to them that you know better about how policing on the ground works, then I think you have seriously got this aspect of the legislation wrong. Finally, the irony is that somebody said to me the other day: ‘You know, Trish, if this government wants to abolish the permit system so that more tourists can go into the 70 communities, at the end of the day that will be the ultimate evaluation of this government. They have been an abysmal failure in Wadeye and a dramatic failure in Mutitjulu. So, if more tourists in this country witness what a devastating effect some of their policies have on these communities, maybe people on the eastern seaboard might suddenly wake up to what is actually going on in those communities and demand that more action be taken and the money be better targeted.’ Maybe at the end of the day, opening up these communities to more tourists might actually be the one form of scrutiny and evaluation that this federal government finally needs.
I will speak to the Labor amendments which, as I understand them, seek to provide us with a bit of a halfway house from the government’s approach. The Democrats prefer an approach, which is reflected later on, to just scrap the schedule altogether. I still have not seen any evidence that it is necessary. I have heard plenty of assertions. We got a few assertions at the Senate inquiry and some during the debate in the chamber but I have not actually seen any evidence that this works. We got one page given to us without notice in the Senate committee hearing by officials from FaCSIA and, without being too harsh, it was not the most thorough in-depth justification I have read for a significant public policy change. It was basically a few dot points with a few assertions.
There are a couple of issues here. I am not here to defend the permit system as the be-all and end-all that should never be touched—I do not really see that as something I can speak about with sufficient justification—but I certainly feel quite justified in saying that it is not something that should be touched without consultation and at least some indication of a reasonable amount of consent from the people affected. It has been a longstanding provision and I have not seen any solid evidence, as opposed to theories and assertions, that it causes the sorts of problems that are being alleged. But we are certainly quite happy to look at it if evidence is provided. Even so, it is clearly far better to do that, unless it is absolutely necessary, with some reasonable degree of consent and consultation. I have reasonable suspicion that there would possibly be a few places that would not mind having some variation to the system, but having a review with secret submissions that are not published and then saying that you have made a decision on the basis of that is not exactly terribly comforting.
Going back to the specific link here, we are told that we have to do this now without consultation and without consent because it is an emergency and the emergency is linked to child sexual abuse and assault. But there has been no evidence at all to suggest that the permit system in any way exacerbates the problem. We are getting dodgy logic: that the permit system is in place in some communities and there is abuse in those communities therefore the permit system is not stopping it. Whatever the permit system was set up to do, I do not think that it was ever set up to stop child abuse. We have child abuse, it needs to be said, and child sexual assault at very serious levels in pretty much every town and community in the country to varying degrees, and to quite high degrees in many parts of the non-Indigenous community. That has been acknowledged by this chamber by a range of resolutions and, indeed, by the minister himself, Minister Brough. It is a very serious problem across the country—and that is everywhere where there ain’t no permit system!
The idea that by opening up a community, people will be able to see what is going on and they will see that there is child sexual abuse somewhere and it will stop, or people will not do it because there are other people wandering through their communities, is just ludicrous. People can think that way in regard to any city or any town of any size in the country. In many respects, it is the most secretive of grievous offences for all sorts of reasons. To link the permit system to child sexual assault and say that it gets in the way of that being mitigated, let alone eliminated, and to do that without evidence, is pretty lame, frankly, and that is being polite.
The wider issue then added on top of that is that it gets in the way of economic development et cetera. There is a debate that could be had there but it should not be tied to an emergency situation to do with child sexual abuse. I fully accept—before I get immediately misrepresented again—that improving the economic situation in some of these places would probably improve the strength of the community and reduce some of the psychological and social malaise that can be a contributing factor to child neglect and assault. I am certainly not saying that it does not matter whether we get improved economic circumstances, but that should be a more thorough debate rather than ramming this through under the guise of an emergency to do with child sexual abuse.
Again, I would ask, even on that point, whether there is some actual, decent, documented evidence, a good, peer-reviewed, thorough study, that demonstrates that those communities that have the permit system, on average, have a worse economic situation or worse child abuse statistics than those Aboriginal communities without the permit system. Certainly, in my state of Queensland, there are a number of communities and areas where there are serious problems with child neglect and abuse and there are serious problems with no economic development, and there is no permanent system in almost all of those. Senator Scullion mentioned a community before—I am not sure whether I can remember it now—that he was praising as being wonderful. Maybe it was the Daly River.
That will give me the incentive to go there. That is good, and that does not have the permit system, apparently. I am sure there are other communities that are on the not-so-positive side of things that also do not have permits in the Territory and certainly in Western Australia and Queensland. I would also hazard a guess that there are some pretty good communities in the Territory that also operate under the permit system. To try to single it out as some key delineating factor in the absence of some pretty decent evidence is pretty sloppy reasoning, and that is why I think people make the reasonable conclusion that there must be some other ideological agenda—and, people are allowed to put forward ideological agendas. We probably all do it in different ways with different degrees of consciousness or self-awareness that that is what we are doing. But, if you want to have things passed in a rush because it is an emergency, you need, firstly, to make it clear that all the measures relate to that emergency; and, secondly, as has been said a number of times, if you want that emergency intervention to be effective, you need to build trust. To me, this is one of the areas, along with the five-year lease area—probably the area of permit removal, even more so, on the basis of what people have said to me, anyway; I do not want to be too conclusive about that—where people have said, ‘I just cannot see any logical reason for this; there has to be some other agenda and, if there’s some other agenda, it makes it really hard to trust what’s going on.’ A key issue for long-term success with this stuff is building trust. I am not saying that this is the be-all and end-all and it will never happen if this goes through, but I am saying you are making it a lot harder for yourselves for no particularly good reason.
Certainly, amongst the people I have heard from and talked to, a number of whom, as I have freely acknowledged, have been broadly quite supportive—a few very strongly—of what the federal government is doing, none of them has said that the permit system needs to go as part of this. There have been some who have said that that is the price we have to pay, that doing something about child abuse is more important and that, if it means getting rid of the permit system in the way that is proposed, that is the price we will pay. But it does not have to be the price they will pay, and that is what these amendments are about—and, more so, the Democrat amendments.
To me, the key issue is: where is the evidence? There have been lots of good assertions. On the face of them, you can even see how they might make some logical sense until you dig a bit deeper. But, without some decent evidence, I cannot support this sort of change. We got some pretty good evidence from John Altman, and whilst he, I am sure, says things the government does not like, I do not think they accuse him of not knowing what he is talking about or of not having a clue or those sorts of things. They might say he is outdated and living in the past and all that sort of stuff, but he knows a fair bit about this sort of area. He provided research to the committee—it was done on behalf of Oxfam, from memory—which pretty much demonstrated the opposite of what the government is asserting. That is why I believe this whole section should not be supported.
As to the specifics of the Labor amendment, they, as I understand it, basically seek to allow automatic access for a designated group of people. I think that is about right. That is a group of people listed in the legislation, which includes MPs, I note, and candidates. That leads me to one question, which I will float out there for the minister to answer whenever he does so. Groups of people listed under section 2A on page 39 as basically having automatic access included members of parliament, the Governor-General and government officials et cetera. But it also says ‘candidates for election’. I was wondering whether the definition of someone being a candidate for election means in the period after they have put in a nomination or whether it is—
Right. Perhaps that could be clarified for me, as it sounds like a nice, clear-cut one. Or perhaps it goes from whenever a person announces that they are a candidate, which obviously they do well before they put in the nominations.
As well as that, I note that the Labor amendment allows in journalists who are acting in their professional capacity, so there is a special privilege status for journalists. I suppose there would be clarification in advance as to whether they are doing things on or off the record. I understand why that is put there but, again, I am not overly convinced about that. I am not in any way casting aspersions on journalists, let me hasten to add—that there is any particular reason for singling them out above all else. I can understand the reasons why it is put there. I think there is some merit in the halfway house that Labor has put forward. I am not overly keen on it because I do not see that the argument has been made at all for change, but that is another matter.
I have reviewed what the minister said before dinner about the specific issue of the revoking of permits. Perhaps I am a bit slow and it is getting a bit late, but I still do not understand 100 per cent what he said about that. I might leave that until we get to it specifically, because I note that there is a Democrat amendment and a Labor amendment around that same section. I think we can have the general debate about permits first and get to the specific, niche issues a bit later.
I am not sure whether I am looking forward to another debate about permits. I thought we had been through that, but no doubt we will deal with that when you are prepared to. I will speak to the opposition’s amendments and the effect of those amendments. With respect, I have to accept that this is a bit of a Clayton’s amendment. I can understand, perhaps, how difficult it must have been to try to find some sort of balance in this.
The effect of the proposed amendment is pretty much to allow government related persons and journalists access to areas as a designated person. I have been quite familiar with the permit system for very many years. When you work in a community as a government officer, you actually get a permit that has ‘ongoing’ on the bottom of it. It is just a once-in-a-lifetime thing whilst you are associated with a government department. I think that is pretty much the case at the moment. Allowing journalists is certainly something new. Journalists have often complained that they do not get access to communities, and I certainly support that part of the amendment, whilst it is generally caught up in the government legislation. I think Senator Crossin made my case very well: if people come to these communities—some of these communities are in a pretty poor state—they will know and they will travel back to their homes on the east coast and, as Senator Brown and others in this place have said, they will be part of the appropriate public outrage. If it is not right, people need to know about it, and that has been part of the problem, Senator Evans.
So what are the real changes here? There are a couple of changes. We sort of agree to the permit system as long as it does not really change anything. I really appreciate the difficulties you must have with this, Senator Evans, but effectively these limited changes would fail to open up the communities to the outside world. And they will not remove the climate of fear and intimidation in those communities. Senator Crossin reflected on a submission that we made that the minister had said to me both publicly and privately that people were coming up to him not only to say, ‘We think you should scrap the permit system’; they were saying: ‘I’m afraid. The reason I have to talk to you here is that I cannot stand up and say something in a public arena when other people in the community may not like what I say.’ That happens a lot in Indigenous communities, and it makes the consultation process very difficult.
If you have anything to do with consultation in those communities, Senator Crossin, you will understand that it is very difficult in a public arena to be able to ask, ‘Okay, what is actually going on?’ Like parliament, some aspects are a little bit wedded to a secret ballot and some are not. In my view, a secret ballot provides a far better indication of what people really think, and I think that is pretty much the situation here.
Senator Crossin touched on a couple of issues relating to the police, and I think the Leader of the Opposition in the Senate did as well. The police apparently have said that the government have failed to make any connection at all between child abuse and the permit system. Perhaps I will give it another crack. The police will well know that one of the issues, particularly in the younger generation, is that if you do not have a job you have a lot of time on your hands. You do not have to tell that to the police force, because that is certainly what police officers in the Northern Territory are telling me. That is the demographic that is extremely likely to provide a market for substance abuse in the communities. They are the ones who are saying: ‘I’ve got absolutely nothing to do. I don’t feel very good about myself. I don’t feel a great deal of self-worth.’ They are in the demographic that makes the market for substance abuse. The behaviour patters around substance abuse are very destructive not only to the individual but to those around them—the destruction of culture and the destruction of brothers, sisters, families and communities.
Whilst that may not touch directly on child abuse, surely without employment these communities are without the normal opportunities that come with a community of 100 people on the east coast. If you drive into an east coast community, there are small businesses—the hairdresser, the baker, the petrol station and somewhere to buy hamburgers and a milkshake. Wherever it is, there are always businesses. But these communities are not characterised by that. These communities are not characterised by the same opportunities for employment, and employment provides, not with a long bow, the sense of wellbeing so that we can start breaking the cycle of substance abuse.
I am not sure how much consideration was given to that statement, but I have had a lot of discussions with a lot of police officers in the Northern Territory about the permit system and about a whole range of other issues as I travel around the Territory. I think Senator Crossin is fundamentally right. I will have to be very cautious, because I am very respectful of police officers in the Northern Territory—they are a great bunch—but I think if you said to police officers anywhere, ‘By the way, you have the right to pull anyone over and have a bit of chat,’ they would all say, ‘Great stuff.’ It is difficult sometimes when you know someone is a bad guy but you cannot pull them up.
It has been my experience in the sorts of small communities we have that, if a police officer thinks that someone is doing the wrong thing, there are a whole range of other quite legitimate ways in which he can have a chat to the people concerned. It is certainly not something that I think has any legitimacy as another impediment to providing levels of safety—and that is what it is about. It is about providing the normal rule of law and order.
We will be providing $14 million in the first year and 66 police officers. That is what is going to change. There will be no more intimidation. People will actually feel that they can stand up and report someone who is behaving inappropriately. These are the sorts of fundamental changes that will do away with any particular idea that is wedded to the need for a permit system because it is a policing role. I am sorry, but I do not think that case has been made at all. The case that we should be making is that we need law and order. We need more police officers, and those police officers need to be properly respected and resourced. That is what will make the fundamental changes in these communities. The amendments fail to open up the communities and therefore are not going to be supported by the government.
With regard to your last question, Senator Bartlett, I understand that it is from the time of nomination.
Reluctant as I am to keep going over some old ground, the minister just made a comment which may have been in the heat of a moment or may be what is driving some of these permit changes. He made a comment that it is only when people from the east coast travel through and get outraged and go back to the east coast and start stirring—he did not use the word ‘stirring’; that is my paraphrase. Now, I am sorry, but how many reports have we had about child abuse in the Northern Territory? You are not honestly telling us that it is just because people may have seen what is going on in these areas and gone back and caused outrage that you are taking action? Firstly, that is just a nonsense argument. But, secondly, does that mean we are going to open up every home in Australia for people to go in and see if there is abuse going on and then we will all get outraged? Because that is what you are doing—you are opening up Aboriginal owned land for people to go into to express outrage. Is that what you are doing it for? Let us do it for every Australian home. I know you are not implying—because we have been over this ground—that it is only in Aboriginal communities that child abuse occurs. So should we go out and tell the rest of Australia: ‘It’s okay, we’re going to open up all your homes so we can go in and get outraged and then do something about child abuse’? That is nonsense.
I am happy to say something here, and in the spirit of some sort of cooperation I probably should say something. Senator Siewert, I had mentioned in my contribution on the permit system that, if the intent of removing that system along main roads into these communities is to allow more tourist access to these communities, one of the things that may well occur as a result is that eventually people on the eastern seaboard may realise, if they have a long hard look at some of these communities, what this government’s funding and fundamental policy failures have been. Most people, if they had an opportunity to drive to Wadeye or Mutitjulu, would be quite shocked. In fact, I remember meeting James Hird on the night of my birthday this year when he had just come back from Wadeye, having been up there with the Bombers on a bit of a talent camp out in the communities. He spoke to me about how shocked he was at the condition of Wadeye. I mentioned to him that it had been one of the COAG trials, and he said that if that was the best the federal government could do—or words to that effect—he was pretty stunned. So my contribution on this matter was that if this opens up more Aboriginal communities to show some of the funding problems of this government then they may well get quite a surprise.
While I am on my feet, I will take this opportunity to ask the minister a couple of questions about the permit system, and I will try to be very quick. During the dinner break I was advised—and your advice may well be different—that if a traditional owner issues a permit and subsequently dies, it will be impossible for that permit to ever be revoked. I believe land councils have a view that it is a drafting problem in this legislation, since this legislation only allows the issuer of a permit to revoke it. There is a view that this appears to be an unintended consequence of the drafting. I understand that the issuing of the permit does not go to the ownership of the group, it stays with the individual. I wonder if you have had time to clarify that.
That is not our advice and we do not agree with that. But if you do have some advice we would be more than happy to look at it. As I said earlier, it is our advice and view that all the land is communally held and, if someone passes away, the responsibility for that country still lies perhaps with an individual leader but certainly with the group of people, who would then be responsible for the maintenance of permission to travel upon that land. However, if you have some other advice, we would be happy to look at it.
I will pass that answer on. Can I raise two other issues? My understanding is that the land councils currently also use their power to revoke permits that might be issued by a traditional owner as a circuit breaker to resolve disputes within those communities, those Aboriginal groups. I understand that this is a function that has been called on regularly and it occurs usually in consultation with the police. So when the police have called in the land council to assist, the land council has been able to use its power to assist the police and therefore withdraw that permit. Of course, this amending legislation removes the capacity of the land council to perform that function.
The other issue I want to raise is that there is now a question over whether this proposed amending legislation is inconsistent with the scheme of the land rights act, particularly section 5(1)(b), and the basic principles of trust law. I will explain this. Aboriginal land is legally vested in a land trust which, at the direction of a land council, must exercise its function as trustee and owner of the land in a responsible fashion for the benefit of Aboriginal persons who are beneficiaries of the trust. So it is a basic principle of trust law that a beneficiary cannot direct a trustee how to perform its function. However, I understand the proposed amendment vests in a beneficiary the power to override the trustee, notwithstanding that the section I mentioned provides that a land trust may exercise all the powers of an owner of land, including the power to make decisions in the interests of the trust beneficiaries regarding entry to the land. My question is: is it an intention that this amendment would be inconsistent with that clause?
Senator, I have to say I had some difficulty understanding all of that. I understand what you are saying, but there are some quite complicated aspects and I do not have the Aboriginal land rights act in front of me. I will say a couple of things. The permit system, in terms of whether somebody is behaving or not, at the end of it, should not be an alternative to the law. If, for example, a traditional owner has said or the group have said, ‘You can come on country,’ it is up to the police to pass information about bad behaviour back to the permit holder if it is just inappropriate behaviour; if it is unlawful behaviour, the police should act. Whether they have a permit to be there or not is really immaterial. We often hear of people saying, ‘What we have got in the permit system really helps us provide law and order.’ It probably has in the past because the shield of law and order simply has not been present.
I am advised in a more technical sense that land trusts are in fact not trusts for the purpose of the land rights act; they are shells for the purpose of holding land.
On this point, as we have gone onto it now with those questions from Senator Crossin, I think it is worth putting on the record that the issues being raised were raised by the Northern Land Council in a supplementary submission. Because of the absurd time frame put on them, and on the Senate and the Senate committee, it was not actually submitted until after the hearing. So they put in that submission on Monday this week, after the hearing had been held, obviously when they were finally able to go through the legislation in detail and find this single clause in there. It is on the Senate committee website as additional correspondence, I think, for anybody who wants to check it out. It raises the issues that Senator Crossin was drawing on. Without disputing or getting into the competition of different advisers, whatever the opinion of the government about land councils, I do not think they would suggest that they do not know what they are talking about when it comes to permits. They live that stuff pretty regularly. Having said that, my understanding is that most of the day-to-day stuff with permits, in terms of individuals, is done at local level through traditional owners.
The one point I wanted to clarify goes back to that particular clause that we were discussing before the dinner break, section 74AA—item 14 on page 53. The minister has just said again that his advice is that, in the context of somebody passing on, the issue of the permit, while it is an individual, is in that category of being ‘traditional owner’ and therefore somebody else who is a traditional owner could revoke it. I want to clarify, because I really was not 100 per cent clear before dinner, whether that collective revocation power only applies in the context of the original issuer having passed on. Or is that something that applies all the time—forget about whether or not somebody dies? Is a permit able to be revoked by another traditional owner or is that only in the context of where someone dies? If it is able to be revoked by another traditional owner, doesn’t that create the same potential problems of confusion?
I want to respond briefly to Senator Scullion’s opposition to our amendments. All I can say is that I appreciate that he is very tired, but I found the response a little rambling. As I am very tired as well, it may be that I was not hearing well. But, quite frankly, claims that ending the permit system will create employment, end the drugs, remove the climate of fear and bring about world peace seem to me to be claims a little beyond what is rational or defensible. If Senator Scullion thinks that, I will take him around a few of the Western Australian communities, where there is no pass system, and I will show him the drugs, the unemployment, the hopelessness, the poverty and the abuse. Then we could both agree that the pass system has not protected people from that, but nor has the nonexistence of a pass system provided the sorts of protections that opening up is allegedly going to provide.
Quite frankly, I also do not share Senator Crossin’s optimism about non-northern Australians visiting the north, visiting Aboriginal communities, seeing the shocking state of those communities and somehow coming back and doing something about it. Hundreds and thousands of Australians who have been through those communities settle back into their peaceful existence and pretend it is not happening. In fact, successive ministers have done it. I remember in this government all those ministers who went for photo opportunities at Wadeye—successive FaCS ministers. I think the Prime Minister went there. They all have the photo opportunities. Then when the report comes out and we assess what has happened there it is a complete disaster—failure to follow through on promises, failure of big government to deliver to those people. But what we are now to understand is that the government are saying: ‘We got the previous one wrong, and the one before that wrong, but we’ve got the answer this time. We’re going to give ourselves more power to control their lives and we’re going to really fix it this time.’
Maybe I am getting old and cynical, but I actually think we have to get some empowerment of Indigenous people, some ownership of solutions. We cannot change social norms. We can provide support but we are not going to change the social norms that apply in Indigenous communities. That is only going to happen if you empower the local Indigenous people. Part of that is protecting them from fear, giving them the rule of law and providing them with services—services that this government and its predecessors have not delivered them. You can go on about police. I cannot see us maintaining a police station ongoing in all these communities for the next 50 years. It will not happen. We all know it will not happen. You have already blown your funding from what was supposed to be tens of millions to $500 million and rising. When it goes off the political radar, as it has every other time, some of the commitment will wane and some of the funding will wane. While there is that enthusiasm, while there is that focus, we must build the Indigenous communities’ capacity to develop social norms, develop economies and develop a sense of ownership of a future that has hope. That is much easier said than done. These measures are about putting in place some of the building blocks for that. That is why Labor is supporting them. But I am not sure enough thought has been given to the next step. And the failure to consult with Indigenous people, the failure to give them a sense of ownership of this, is a fatal flaw at the moment. Unless the government actually listens and thinks about that, we will fail in this endeavour.
Quite frankly, I worry about this sort of big government response where people think that they are going to run Indigenous lives and that somehow we are going to fix all of this. We can provide the building blocks but, in the end, we have to provide the capacity for Indigenous people to do it. The pass system is not the problem. What it does is recognise that Aboriginal people have property rights—this is their land. As well as being a system, it is a symbol of their control over their land. This is about empowering them. They decide who comes there—’and the terms on which they come’. This is about them having some say. Fundamentally, this government cannot cope with that. It cannot cope with the idea that Aboriginal people have control over their land.
The Country Liberal Party in the Northern Territory have not always been great fans of the land rights act. The current government have not been fans of the land rights act. A number of these measures seem to be more about that ideological obsession about challenging Aboriginal control over their land and about making them more like us with 99-year leases so they can have a private home et cetera. Economic opportunity is a key part of the solution. This is more about the government’s inability to cope with Indigenous control and ownership of land, and that reinforces the concerns of communities that other measures in this package, which are well motivated, are somehow to be held up to suspicion. In a number of areas, like the Racial Discrimination Act and this area, you undermine the package. You go too far. You go in a way that adds to cynicism and suspicion and which will ultimately help undermine the success of the program. You do not need to make these changes to the pass system to make these things work. It is a bonus for you, because these are things you want to do anyway. You will actually undermine your capacity.
Labor’s alternative ensures that all those people who should be able to get there can get there. It provides a system by which people can apply to go on to the land. If somebody wants to go in and open a hairdresser’s shop on the corner and wants to get a permit then I am sure they will get a permit. I can take you to a lot of communities in Western Australia, Queensland and New South Wales et cetera where they do not have permit systems but they cannot get anyone to open a hairdresser’s shop on the corner either. It is not the permit system that is stopping that. We would be much better off in passing this set of laws, which so fundamentally take away from Indigenous people a whole range of current rights over land, to provide some recognition that we respect their relationship with the land and their property rights and we do not take away some of those rights just because we can.
We sometimes need to remind ourselves just what we are doing here, not on the issue of intervention—I will not lecture you on that—but just on the scale: 99.8 per cent are exempted from all of this. This is just simply one prescribed road, and it was important that I had that clarified because I was not sure about it. There are no shortcuts. There is only going to be one prescribed road into a community. It is normally a public road paid for by taxpayers. It would require maintenance and a fence on each side. Anywhere else outside the township area, when you go off a road and there is a house and fence, is private property. The norms of anybody travelling in a town will provide. People are not going to be walking into houses, and I know that you are not asserting that. But it is a very small area and the relative benefits are a safer, more prosperous community. I accept your experience in Western Australia and it is a tragedy to know that there is no silver bullet for these issues. There has to be a suite of answers to this. I concede that if nothing else happens, if you just have open communities as they have in Western Australia, that is insufficient—I acknowledge that. We are providing a wide range of initiatives and this suite of initiatives is going to make a real difference. Part of those initiatives is the lifting of the permit system for the road in the way in—just on the township. We believe that a net benefit will be the prosperity and safety in the communities.
That the amendments (Senator Chris Evans’s) be agreed to.
On behalf of the opposition, I move:
(10) Schedule 4, item 14, page 53 (after line 29), at the end of section 74AA, add:
(2) A Land Council may, by writing, request that the Minister revoke a permit issued to a person under subsection 70(2BB) where there are, in the opinion of the Council, reasonable grounds to believe that the person is of bad character.
I know we have gone over some of this ground earlier, but the bill proposes giving the minister the power to issue permits. The other section has limited to the person who issued the permits the power to revoke them and we have been through that discussion. This amendment will give a land council a right to ask the minister to revoke a permit, if there are reasonable grounds to believe the person to whom he has issued the permit is of bad character. It is just providing a facility for the land council to request the minister to make a decision within his powers. Labor think it would be helpful in the sense of dealing with people who perhaps should not have a permit and it would give the land council the capacity to bring that to the minister’s attention. Obviously, the decision still rests with the minister.
We think opposition amendment (10) is unnecessary. The power of the minister to authorise a person or class of persons to enter or remain on Aboriginal land includes the power to revoke the authorisation. I am further informed that the situation now is that, if the land council has information that a person is of bad character, the land council should give that information to the minister and the minister can consider whether to revoke the authorisation. It is a given that, if there is unlawful behaviour, the matter should not really go through the minister; it should go to the police officers who can then deal with it.
The Democrats oppose schedule 4 in the following terms:
I feel that we have already debated this issue ad nauseam but it is nice to finally have it before us. The Democrats oppose schedule 4. It is our view that we should not be removing the permit system.
I appreciate all the arguments that have been put forward, both for and against, but, as I said before, there has been no evidence put forward to actually suggest that it is necessary. I do not believe such a major change should be made without evidence, particularly given that it is a proposal that has, I think undeniably, caused a lot of concern amongst many Aboriginal people in the Territory. It is seen with suspicion and, unless you have a very good reason, I do not see why you would do something that is going to be viewed with suspicion. I have heard no good reason to do that—certainly not one that is backed up with any evidence—so I oppose schedule 4.
That schedule 4 stand as printed.
I move Democrat amendment (4) on sheet 5341:
(4) Schedule 4, item 12, page 52 (after line 31), after paragraph 70F(20)(b), insert:
(ba) land covering areas of cultural significance, ceremony or storage of sacred objects;
This concerns an issue that I do not think we have talked about until now. It is a small but still important amendment. It deals with the issue of the definition of ‘common areas’ under the new part 70F of the act. Under the new regime put in place in this legislation, a person may enter or remain on a common area that is within community land. The definition of ‘common area’ as put in the legislation is:
an area that is generally used by members of the community concerned, but does not include:
(a) a building; or
(b) a sacred site; or
(c) an area prescribed by the regulations for the purposes of this paragraph.
The intent of that, I assume, is for the government to make clear that opening up the permit system to some extent does not mean that people can go into buildings, as Senator Scullion said, or on to sacred sites.
The Democrat amendment would add an additional criterion to also include land covering areas of cultural significance, ceremony or storage of sacred objects. From my recollection, that is based on suggestions made to the Senate committee through some of the submissions that the exclusions of areas from the definition of ‘common area’ really need to be a little broader and should go beyond just a sacred site to also include the words that I stated. Areas of cultural significance, ceremony or storage of sacred objects would not come under the formal definition of ‘sacred site’.
The legislation says that the minister will have the power to add other areas by regulation for the purposes of the paragraph. So it may be that the government will indicate the minister’s preparedness to look at including a definition like that as one that would be prescribed by regulation, and that would have the same effect. If we can get that commitment, that would be a positive thing. It would be better if it was put into law, which is why I am moving it as an amendment. But, if we can have some indication that putting it in the regulations may be considered, that would at least go some way to addressing the concerns of those who raised this as an issue.
I know we have already voted on this, but I undertook to provide the senator with some information regarding his questions about the circumstance where a person who has provided the permit dies and how that works. I am advised that the Aboriginal Land Rights (Northern Territory) Act is in fact the mechanism for the administration of the permit system. This legislation needs to be read in conjunction with the Aboriginal Land Rights (Northern Territory) Act, which refers to traditional owners in the plural. That means that, if the traditional owner who issued the lease dies, another traditional owner can be delegated. This is taken, I understand, straight out of the Aboriginal Land Rights (Northern Territory) Act, so this legislation reflects that. It is in the plural in the original legislation, and it is reflected here.
With regard to the Democrat amendment, we think that the suggested additional exception to the definition of ‘common areas’ is a bit vague and unnecessary. The definition of ‘common areas’ already excludes sacred sites, which has a comprehensive and longstanding definition in the Aboriginal Land Rights (Northern Territory) Act. It would be unnecessary and confusing to add the proposed provision, so the government does not support the amendment.
My apologies, but I wish to ensure the accuracy of the record: I referred to the Northern Territory Land Act as the Aboriginal Land Rights (Northern Territory) Act. I apologise for that; that was not my intent. I just want to clarify that. Senator Brown, I wonder if you would be so good as to repeat your question.
You would understand from the scope of the question that it might take me a moment to see how long it will take to provide that information, but I will attempt to do that as soon as it becomes available.
Would the minister also describe what a common area is in relation to a community? We know what it is not: it is not a building, a sacred site or an area prescribed by regulations, but I would like to know what it is. Is it all other areas in a community or all other areas that a community uses?
I understood, Senator Brown, that for the purpose of clarity the act will provide a schedule specifying, as we did with the prescription process, exactly where this particular act applies. It will be a place on the ground or a map with latitude and longitude that provides for the prescribed community. I am sure you will either continue to question me or someone will correct me but my assumption is that the common areas would obviously be the road areas and other public areas. It would differ from community to community, but most of the communities I go to have a large community space adjacent to the community centre. Normally, the community council or the community hall is in a hub where they have the childcare centre, the health centre and those sorts of things. One would assume that the common areas are all those areas that are not held privately within a prescribed area, so obviously private land would be a house, a front yard or whatever. Clearly, it would be the road areas and areas that are not held as private land.
There are two things there. Firstly, you talk about areas used by communities. I presume that does not extend outside the definition of the area of each community which follows in this act to beyond what is defined as the areas that the government is assuming control of. Secondly, it says a building or a sacred site but it does not talk about land, so it means that common land is the backyard, the front yard and the side yard of dwellings, does it?
I have a series of facts, but we need to recognise that I am providing this information under the proviso that each community will be quite different. You cannot just be prescriptive about the common area, so this is a series of facts that will help us put that information together in most circumstances but it may change from community to community. Common areas are defined as areas which are generally used by the community concerned. The arrangements which will apply will be no different to other townships, including Aboriginal townships such as Daly River, where the permit system does not apply. It will be clear from fencing and other improvements whether land is of a public or private nature—for example, land surrounding a residence will clearly be private. Sacred sites will continue to be protected as they are now whether they are on Aboriginal land or not. Aboriginal townships already have visitors who are not allowed to enter sacred sites. If a problem arises then, quite clearly, practical measures can be taken as has been done in the past to ensure that people are aware that there is a sacred site in the area. The Sacred Sites Authority have provided us with great deal of knowledge about how to make their signs unattractive to people as well as ensuring that people understand the significance of the site. It has been done in a number of other areas.
I understand that the minister is saying that land outside of a community—the term used by the minister—this circumscribed township area, is not common land in the definition for the purposes of this legislation. I want to make it clear that we are not talking about Indigenous lands in the main; we are talking about those lands within prescribed areas. It says that it does not include a building, and the minister said that private households will be excluded and fences will be put up. I presume it will be like Canberra, but it is all going to be laid down in the regulations. There is nothing here to say that everybody’s houses are not open to anyone who wants to go through them, past them, by them. I am thinking here particularly about the influx of people from outside, including busybodies, who are now permitted to enter Aboriginal land under this legislation. I want to make it clear that this problem has been thought out and dealt with before we pass by this part of the legislation tonight.
As I indicated from my seat but shall repeat for the record, the common areas we are speaking about lie only inside the prescribed areas which are only going to be prescribed areas for a five-year period. Nothing in my response to you refers to any lands outside of those areas. In terms of busybodies or other people, I think you made a good analogy—Canberra is probably a poor analogy—but like in a small country town where areas with buildings are private property. All other places would be considered to be communal areas. As I have said, we will be taking a very practical approach as with sacred sites. If this becomes a problem, then we need to look at it and try to resolve it.
Like in any community—these are very different and I do not think it is useful to be prescriptive—this is private land. By and large, people know exactly where their private land on communities is. Norms about travelling upon private land exist now in those communities. You do not just wander across land or do those sorts of things; you walk up to the front door, knock on the door and ask to speak to the people inside, in exactly the same manner as you would in any other community. That is consistent with our approach across a range of these issues.
Yes, but the legislation does not say that. We are left to trust that the regulations will. I was with Senator Siewert up at Karratha last year, looking at the Burrup. There was one place there which tourists could readily access. Signs pointed to where you could park and where you could go and look at the rock carvings in a very vast area. There were warnings asking people to respect the area and so on, and I was horrified to see that the places most proximate to the tourist parking areas had been defaced. One only has to look at other accessible human and natural heritage places around the country to see how some people cannot help but leave their mark. It is a reaction to their fear of mortality.
I am concerned that in removing the permit system and opening up these communities to whomever might come, the sacred sites will be a source of attraction to the curious, those who do not respect Indigenous culture—they are not few in number—and souvenir hunters. I want to know what it is in this legislation that is going to protect those sites now that the government is opening them to the greater threat of invasion by people who simply do not understand the significance of them to Indigenous people.
The senator reflects on what we would all agree is a great tragedy. There are those in our community whom I simply do not understand. They go to some of our iconic natural heritage sites and want to carve their names in the trees. It is beyond me; I do not understand that and I am sorry that you were affected by the same sort of thing. There are laws against it.
I know of a well-known sacred site that is right in the middle of Tennant Creek. There is a fence around it and people know about it, but the experience is that none of those sorts of things happens there. Maybe it is because there is a high Indigenous population. It is right at the Julalikari Arts Centre, where tourists come in, have a cup of coffee and do those sorts of things. Perhaps it is not the perfect analogy because there are always people there but those sites, because people see and understand them, have never been desecrated.
Generally speaking, I think people are extremely respectful of our sacred sites. The way that you put the signage and manage the interaction are things that we have had a great deal of experience with in the Northern Territory. It is a criminal matter and very significant penalties apply under the Northern Territory Aboriginal Sacred Sites Act, and those will still apply. In any event, we would place a lot of confidence in that process—it is sad that we would have to—because it works so well in other parts of the Northern Territory that have the same sorts of visits as any proposed visits to some of these communities.
I did not quite catch the last part of the question. But you would recall that, when we amended the Land Rights (Northern Territory) Act last year, we moved to increase the penalties for defacing sacred sites. I cannot recall when it was last year, but we will always move to ensure that there are disincentives. I am absolutely mystified by that sort of behaviour, but we will continue to provide penalties that are appropriate to act as a disincentive. Having said that, Senator, I wonder if you could ask the last part of your question again?
I asked whether the warnings—which may include penalties for people who might approach sacred sites illegally—and the appropriate management will be in place before the permits which currently restrict people going to communities are lifted.
I understand that we have the capacity to roll out the lifting of the permit systems at some time. As I have been saying, the first thing is that a whole range of assessments are happening, but we will ensure that people have the capacity, as soon as possible, to manage the interaction between people and sacred sites. We have done it in other places and we need to ensure that that is on the ground. All I can say is that, like a lot of other things, generally speaking—I do not want to over generalise—the sacred sites that occur within these areas already enjoy that. Because of the nature of the communities, there are not many sacred sites but there certainly are some. That is a general statement. Those sites enjoy a management plan for the visitors that currently go to the communities under the permit system to ensure that they are aware of the penalties. So this is not something that we are starting from scratch. We will improve on a level of amenity that has to deal with an increased amount of visitors. I respect that, but we are not starting from a greenfields site in this regard.
Let me put it this way: I expect the government will put in place protective plans and management authority before the situation changes—before the added visitation and the open entry to these communities take place. That responsibility sits very squarely on the shoulders of the government.
Just for clarity and to ensure you understand, Senator, you would probably be aware that the Northern Territory government will need to legislate. We expect that to happen around November, and it will happen before the permit system is lifted.
by leave—The Democrats oppose schedule 4 in the following terms:
(6) Schedule 4, item 16, page 150 (lines 18 to 22), TO BE OPPOSED.
This deals with an issue that we have already talked of in about three different places, and I think the minister has answered the question that I have asked—at least as far as I am going to be bothered to pursue it, anyway. But it does still bring us back to the key point, I hasten to add, which is that I think the government is making a mistake here. The Democrats are opposing new section 74AA, which states:
A permit issued under section 5 of the Aboriginal Land Act of the Northern Territory may only be revoked by the issuer of the permit.
This means that if the permit is issued by a traditional owner then only that traditional owner can revoke it, unless they die—and we have dealt with that—and if it is issued by the land council then only the land council can revoke it. To a large extent we have talked about this, so I will not go on at length, but I think the core issue still has not been demonstrated—that is, why this is needed. I asked the minister prior to dinner if he could give us any more concrete details of just how widespread was the problem of land councils cancelling permits that had been issued by traditional owners in ways that had caused problems, had seemed to be capricious or had caused confusion. I am not denying that that could happen but I think it would be useful to get an idea of how frequent and how big a problem this actually is, because I am not aware of explicit examples.
The other side of that coin is what happens if you remove that power. Certainly my understanding—Senator Crossin referred to this and the supplementary submission from the Northern Land Council also referred to this—is that it is sometimes used as a circuit-breaker to resolve disputes within an Aboriginal group. In those circumstances, at least according to them—and I do not have any reason at all to doubt them—that is usually done in consultation with the police and often by the request of others in the community or Aboriginal group. It would seem to be logical to still allow that power.
There is a detailed process in the act for issuing and revoking permits, appeals and all of those sorts of things. The Northern Land Council’s supplementary submission indicates that ordinarily when they cancel a permit revoked by a traditional owner it is done in consultation with the police, other traditional owners and affected Aboriginal persons. In doing so, they must take into account all relevant considerations and ignore irrelevant considerations, and any decision to revoke a permit may be reviewed in the courts under administrative law principles or via complaint to the Ombudsman. So if there is some suggestion that there is improper revocation happening then there is some form of review available there.
It seems that you would want to have a good reason for taking away this power. I suspect that it is just a bit of a shot across the bow at the land councils or just to take away a bit of their power because you can, because they are seen—and I think this terminology was used by the minister—as the gatekeepers. I do not know whether or not the minister was using that pejoratively on this occasion, but I have certainly heard it used in a pejorative sense. It is not my position to defend anything and everything that every land council does, by any means. There are issues there that one could have in a wider debate. But to take away their ability to cancel or revoke a permit issued by a traditional owner without reasonable evidence to demonstrate why this would be a good idea is a bit of a problem. The Senate has received evidence from land councils saying this will be a bit of a problem. It could make it a bit harder in some circumstances.
The fact that a traditional owner has the right to issue a permit is without dispute. I think it is eminently plausible to say that from time to time you will have a traditional owner who may not have the best intention in giving a permit to somebody of less than ideal character. I have certainly been regularly told that cancellation of permits can be used as a way of assisting in having a person removed. I totally accept what the minister has said a few times—that the permit system should not be a replacement or an alternative to a proper police presence. I am not suggesting it should be. Inasmuch as it may have evolved that way, that is not ideal, and certainly we should ensure a proper police presence. But it is not just about catching lawbreakers. If you are talking about dealing with culture, lines of authority and good public order, sometimes it is not about people who have actually committed crimes; sometimes it is about other related issues.
The permit system is staying in place to some extent, so there are still issues about ensuring that that permit system works as effectively as possible. It just seems that, unless there is a good case being made—and I seriously have not heard it—for removing this power from land councils, there will be one less avenue available to them to revoke a permit in circumstances where it is causing a problem for the community and it cannot be revoked in any other way. In the absence of some reasonably solid evidence presented by the minister indicating the number of times and perhaps some examples of where this has been done in a capricious or unfair way or in a way that is causing significant confusion, I do not think that the case has been made to have this new section put in. A reasonably good case has been made in submissions to the Senate that it will do more harm than good.
I should say that the land council suggested an alternative form of wording and I have not gone with that. I do not think that that has been adequately explored either and I am not 100 per cent convinced that it would be the way to go based on the evidence I have before me. I am not here just to be a parrot for the land councils, by any means. I have not adopted their alternative solution. I think it is better just to keep things as is. The case has not been made and, until it is, we should not have this section in there.