Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

The opposition oppose schedule 1 in the following terms:

(1)    Schedule 1, item 3, page 3 (line 9) to page 4 (before line 1), item 3 to be opposed.

(7)    Schedule 1, item 13, page 10 (lines 17 to 19), item 13 to be opposed.

(8)    Schedule 1, item 16, page 10 (line 28) to page 14 (line 6), item 16 to be opposed.

These amendments are proposed in order to prevent the possibility of proscribed communities in the area of the Northern Territory emergency intervention being placed in exactly the same circumstances they were in prior to the intervention. Under this bill, the transmission of R18+ pornography would be able to be transmitted into communities where, today, that is not permissible. Immediately this proposed bill from government gains assent, it will be permissible to transmit R18+ pornography to a greater or lesser degree—and we can talk about percentages—into these communities.

Everybody in this place, and in Australia, would, I think, agree that the intervention has moved these communities, in so many ways, in the right direction. This clearly is a retrograde step. In the current circumstances in these communities it is not the pornography that is the problem; it is the dysfunctional nature of the community that is the challenge. It is not in every suburb of Australia that groups of 20 or 25 children can be found, with absolutely no supervision whatsoever, sitting around a television set with a DVD or movie player. That is the real issue. It is not the nature of the pornography, or how much pornography you have.

We have already had a great deal of evidence, over a period of time, that tragically indicates that across Australia, and particularly across many of the remote communities in Australia characterised by large numbers of Indigenous people, this lack of supervision means that many very young children are watching pornography and have already been exposed to degrees of pornography to the extent that they have become sexualised. They become more sexualised than they need to be at four, five, six, 10 or 13 years old. That fact has provided by independent sources, whether it was the Little children are sacred report or one of the number of other reports that have looked into child abuse in other Indigenous communities in other jurisdictions.

I am sure that all those opposite would agree that there is no doubt in anyone’s mind that we want to avoid the further sexualisation of children, particularly as a lot of the children in these communities at the moment are not your average run-of-the-day children. It is very difficult to make generalities without giving offence, but many of these children—not all of them—have already been exposed. And that is the challenge. They have already been exposed. So they are the most vulnerable. The notion that we would in any way allow into these communities any further exposure to any type of pornography that is deemed for adults is, I believe, simply an unacceptable situation.

I will give the minister opposite an opportunity to explain, but I really have absolutely no understanding of the motives for this. I know that those opposite believe the same as I do that these children fundamentally need as much assistance and protection as possible. I know that you are convinced by the reports and the science that you have already received. You have not argued the case at any time. You have said, ‘We accept this.’ Yet you know that this particular part of the legislation allows for the potential for some increase of pornography in the most naive community, who have already been affected by this, to be once again exposed.

We all heard about the precautionary principle, and I think this is one of the ways that you can really do it. We can argue the technical aspects of it—maybe it is 35 per cent; is it on one channel; is it across a narrowcast spectrum? We can have all of those arguments but, if you are applying any precautionary principle about legislation, you would say: ‘Why would it be that we currently have a situation where there is no permissible transmission of R18+ material into communities and we are now moving to an area where there is potential for more pornography to be transmitted into the community where there are young children and where it has not been demonstrated that individuals within that community are suddenly being supervised or that the circumstances behind that has changed at all?’

So, Minister, I hope that, when you have an opportunity, you will reflect upon the motive behind this. It is beyond me. I have guessed at some things. I thought that maybe it is too hard—and I say that with some sincerity. With the Telecommunications Act it might be too hard or too difficult to stop subscriptions. I am not really sure. But what I know for sure is that it has to be a retrograde step to take if today we have a situation where the figure is zero. That is a really good figure. I think anybody who has been working in this field would say that. You can ask: ‘How much more pornography do you reckon these kids can handle? What is the level of pornography in addition to what they have been exposed to already?’ People might say, ‘This is the number,’ and say it is 10 per cent more, or five per cent, or one per cent. But everybody in Australia would agree with me that the only answer to that is zero.

It is a little bit like the last solution. You know you have that solution in chemistry and it is the last drop that changes the colour? Many of these children may well be at that stage. We do not want any further pornography transmitted into these areas. I do not think any other Australian wants it. I can see absolutely no benefit whatsoever in that regard. The communities currently enjoy protection under the law from pornography. I am completely miffed about what particular mischief it is that we want to prevent. Whenever we come to this place with legislation or amendments, it is some particular innocent passage or it is some particular mischief that we wish to prevent. Minister, I will be extremely respectful because I know that you believe in the same things that I believe in—and everybody in this place does—but I have absolutely no idea about the motive of bringing this particular change to the legislation that will allow more pornography into these communities.

There is an opportunity, I suppose, to talk about whether or not it is 35 per cent of one channel or whether it goes right across the spectrum at 35 per cent of an entire subscription. To me it does not matter. I am not going to go into that detail; that is for government. I am supporting an environment which is so important—and we are making such inroads there—and if one more iota of pornography gets into those communities we know it has the potential to do extreme damage with our most naive first Australians. And that is unacceptable. That is the reason I will spare you from going into the criticism of the details that have been proposed.

There is one other aspect where the minister has decided that there will actually be a declared prescribed area. At the moment we have prescribed areas but we now have a new notion—and it is a difficult notion to accept. If we support this legislation, what will happen is that, if you are a prescribed area, the rule changes. The day this legislation has assent, pay subscription pornography can be transmitted into these communities. Imagine: here I am, I have woken up on a Tuesday and it has been transmitted into my community. The government is expecting that someone—an Indigenous person—in that community will put their hand up and say: ‘Excuse me, I think we have a problem in our community. I would like you to have a look at my community. I would like my community to become newsworthy in the context of sexual abuse and the context of the intervention.’ Where have you been? With all due respect, we get advice from all sorts of people—and those in the advisers box may have had something to do with that process. We can all remember the voluntary welfare quarantine. We knew that voluntary welfare quarantining would not work because they would not put their hands up. Why wouldn’t they put their hands up? Because people have a vested interest in standing over the women in the communities and saying: ‘Oh, you are going to put you hand up for voluntary welfare, are you? We’ll see about that, mate.’

It is the same circumstance and environment. It is just foolishness to say that someone will put their hand up. One of my Senate colleagues suggested something to me today, and I think it is a good suggestion—certainly a lot better than this. He said: ‘We could come from a default position of no pornography, where you have to put your hand up to have pornography. The minister might consider that. That default position would at least be reasonable to most Australians. At least protection would be the default position, rather than something else.’ I think there is a great deal of difficulty with the assumption that people in these communities are going to stick their hands up, that the most vulnerable people in these communities are going to say, ‘I’m going to be a leader; I’m going to stick my hand up.’ Let me tell you, Mr Temporary Chairman, it has not happened before and I suspect it will not happen in the future.

By doing this, we are actually creating two types of communities: we are having a declared prescribed community and just a prescribed community. The practical difficulties in doing this are just mind-boggling. Take one of the places in the Northern Territory within the intervention area, Wadeye. Wadeye is about 1,200 metres away from Melpi Ville—that is how close they are. If Leon Melpi or one of his mob, or someone from Wadeye, puts their hand up and says, ‘I would like you to stop transmitting pornography into my community,’ how are we going to divide those communities? Is Melpi Ville actually going to be seen significantly differently? As we all know, aspects of these communities are not neatly divided up so that you can say, ‘That is an aspect of your community and therefore Wadeye will not get a transmission,’ or ‘Some will and some will not.’

This whole process is fraught with difficulties. I wonder that this is now being suggested. It just beggars belief when you understand the practicality of trying to implement these sorts of changes and know the environment in which we are trying to make these changes. I really wonder about how much effort has been made with regard to these changes. But I say, with all respect, that I know that everybody is trying to do the right thing here. I just do not think they really understand the communities if they think people are actually going to say, ‘I’m going to put my hand up,’ when we know that, in every other case, the people who need to put their hands up never will.

As I said earlier, one of my mates suggested not long ago that we should have a default position. At least the default position would be something you could have a sensible conversation about. The default position would be no pornography, but somebody could put their hand up and say, ‘I’d like to have the transmission of R18+ because we can demonstrate to the government and to the minister that our children are actually being looked after, we can demonstrate that they are supervised, we can demonstrate that the nature of our community has changed, we can demonstrate you do not have to wait until the sunset clause which is placed on this and all other legislation associated with the Northern Territory emergency response; you can do it today, because we can demonstrate and the minister can have a great deal of satisfaction and confidence that the community is up to the place where they can supervise the children and there won’t be any accidental or deliberate grooming or any of those horror stories that we heard before the intervention, from many reports.’

In the absence of that, I have to say that I hope all Australians would see why we simply think that those aspects of schedule 1 are laughable. They are only laughable because I do not understand the motive. I am trying to be really respectful. We have had a very strong bipartisan approach to this. I cannot see any motive of difficulty that makes these communities a better place than today with regard to R18+ transmission. There is none, there should be none, and that is exactly how we should keep it. If we support the legislation that is being put forward by the government, there will potentially be some that is viewed by people. There is some shaking of heads. I am looking forward to an explanation from the minister about how that possibly cannot occur—that you can have absolutely no adult material being transmitted into these communities. Because that is the only way. That is what is happening today. If that is happening, that is great. We do not need any changes whatsoever to the current circumstances. We certainly do not need any changes. Even if the current circumstances are that there may be opportunities for people to get access to it, we do not want to make that access any greater because of the naivety— (Time expired)

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens, as everybody in this chamber will be extremely well aware by now, oppose the Northern Territory intervention. I articulated our concerns about the elements of these amendments in both the minority report that the Greens submitted to the committee inquiry and during my speech in the second reading debate. We have some concerns about the workability of these issues. We have been, however, very clear in our support for the fact that these amendments are not exempt from the RDA. I made that very clear. So you can take it as read we will not be supporting the amendment from the opposition that puts this back under an exemption from the RDA.

As I said in our minority report and in my speech, at the moment there are an estimated 50 households in prescribed communities that may be viewing R18+ programs—50 houses in 73 communities. So we are talking about a small number of households that have access to this material. Secondly, if Senator Scullion had been at the two committee hearings we had on this, he would have had a demonstration from the pay TV people, who showed us the very detailed process you go through to get access to these programs. I do not want one person to go away from this place saying, ‘The Greens support pornography into these communities.’ We do not support the transmission of this material. However, as was pointed out on a number of occasions, there are very small numbers involved, there is a quite complicated process of excluding this, in terms of the narrowcasting, and we question the efficiency of going down this route.

We would prefer to see the expense that is used here invested in, for example—as we articulated previously—education about access to this material, education for parents about exposing their children to these sorts of materials, and working with the Northern Territory government to provide more counselling services. For example, you can go up to Darwin, where this material is not banned—and the evidence we received during the committee hearings was that people are going up to Darwin and doing this—and access DVDs that are far more pornographic than the R18+ programs that we are talking about regulating here.

However, while we think that this legislation is going to a lot of trouble to regulate a low level of access to this material, when there is far worse material that people have access to, and would prefer to see the limited resources we have for dealing with these issues spent elsewhere, we will not be opposing these amendments, however unworkable we think they are. We support the government for the small step that they have taken in not requiring these to be exempt from the RDA. We will not be supporting any of the opposition amendments that seek to make these subject to exemption from the RDA and we will not be supporting amendment (1), which takes away appeals to the AAT.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I will make some more detailed observations about Senator Scullion’s comments in respect of the amendments he is moving. I would not disagree at all with his passion, concern and observations about the impact of pornographic material. I would, however, disagree with his analysis of the legislation and with what he is attempting to do in respect of the amendments and the conclusion he has reached.

The Liberal opposition are seeking to return to the measures that the then government tabled in a bill introduced in the previous parliament in September last year. I would contend that they know—they certainly should know—that the measures from last year were unworkable and that officials were developing amendments. Our bill will introduce practical measures to extend—and I want to emphasise this—the ban on X18+ rated and unrated material in prescribed areas to include pay TV channels with substantial R18+ content where restriction is requested and there is community consultation and involvement in decision making. Consultation and involvement makes for better implementation and better results. Importantly, our measure in schedule 1 of the bill is designed as a special measure compliant with the Racial Discrimination Act.

Our argument is, as I have emphasised, an extension—not a removal or part removal, as the Liberal opposition has been claiming. I say, respectfully, that I think this has been a deliberate misrepresentation for political purposes, because we have heard, time and time again, opposition speakers on this bill making this misrepresentation of the government’s position. The government supports the emergency response. We have extended its operation. The bill extends measures that work and repeals measures that do not work. The bill extends—for the benefit of the opposition—the banning of pornography to include R-rated pay TV. The extension of this ban follows consultation with people in the community, including women. Importantly, we have done this in a non-racially-discriminatory manner, unlike the previous government, and the consultation has led to better outcomes.

So, in conclusion, the Labor government oppose these three amendments, which we are dealing with together. The bill extends the ban, and it is quite mischievous, to say the least, to suggest otherwise. I would urge the Senate not to agree to the three amendments we are currently considering.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will put some questions firstly to Senator Scullion in relation to this, and then the minister may wish to comment. I want to get some clarity in relation to this particular amendment. As I understand the status quo, X-rated material is banned in communities; there is no debate about that. As I understand it—and I seek clarification from Senator Scullion—the coalition introduced a bill last year, before the election, that would have banned R+ material such as that coming in through cable TV, and the difference in approach between the government and the coalition in relation to this is that the government’s approach is only to ban such R+ material after requests from members of the community. So we are not actually drawing back from the current bans on pornography in these communities; it is simply a question of the extent to which you extend that ban. I want to make sure that there is absolute clarity in relation to that.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I will answer from the point of view of the opposition; the minister may want to deal with some of the other aspects, Senator. You are correct in that it is certainly our view that we should simply put a blanket ban on the extension of R18+ material. The differential clearly is that there is a process of, as they say, consultation and a process where the government will require one person or part of the community to put their hand up and say: ‘We feel vulnerable. We somehow feel threatened. There are things within our community that might need special consideration, so we would like that transmission to end.’

I will give the minister the opportunity to answer a couple of things, but while I am on my feet could I deal with the Greens’ submission. I acknowledge I was not there with the committee, Senator Siewert, but I did hear about it and I understand it is a very complicated issue for a child to be involved when a subscription is that complicated. There are a whole range of issues within that.

I guess my concern is, from anecdotal reports that I have, that this exact system had extensive use prior to the intervention. I do not know how it happened. Adults may have been involved. I am not sure how the children worked it out. But, because they were unsupervised for a long period of time, they have developed skills that are not normally associated with people of that age. That is my concern. I do recognise that it may seem to be such a long bow when you hear those sorts of submissions. I will not take you up on the issue of it being expensive. I understand that you think that there may be better things to spend it on in the general context, but I certainly think that this is very important at any cost. I do know that you really understand and sympathise with these circumstances, Senator, and I know that you are aware that there are pockets and demographics of children in these communities that have already been exposed to high levels of this material. I know that there is far worse material, but my concern is that exposure to any further extent—even to R18+ material for short periods of time—may rekindle issues. I am not sure about the technical details of it, but the fact that they have already been exposed puts them in a whole new area than what would be accepted under normal circumstances. We believe that these are not normal circumstances, so we need to take further steps. But I do understand the thrust of what you are saying; I am not being critical.

In terms of the government, perhaps the term ‘mischievous’ switched me on to a slightly new level, Minister, but I will do my best. The Rudd government in their first-100-day report said, ‘We are extending the ban.’ I am not sure how many Australians can do their sums. Perhaps those in the gallery might have a crack at it. Today there is zero per cent chance of R18+ pornography being transmitted into communities. On the day of assent, it will be 100 per cent. You can do the maths and say that that is an extension of the ban; in fact, it is quite the reverse. I object to being called ‘mischievous’. I believe that the opposition and most involved in this process—

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I could have been tougher!

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Not in this debate, Minister; I have been very reasonable. There is absolutely no mischief in my motives in this event. To say that the achievement of the Rudd government in its first 100 days was to introduce legislation that extended the ban on pornography when, the day after the legislation was introduced, it was increased by 100 per cent really beggars belief. I would say that that is the complete definition of ‘mischievous’.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

If I could, I will come to the issue raised by Senator Xenophon. As I indicated in my unruly interjection, I could have been a bit stronger than ‘mischievous’. I accept that Senator Scullion is very passionate and concerned about these issues, as we all are. He has demonstrated his passion and concern. But we do not accept the conclusion or observation and analysis of what the government is intending. Therefore, we do not accept or support Senator Scullion’s amendments.

The Minister for Families, Housing, Community Services and Indigenous Affairs will receive a request. There will be community consultation by officials according to FaHCSIA guidelines, including consulting an organisation such as the women’s centre et cetera. Community agreement is not required. The minister then decides whether to declare an area. Upon the area being declared, AUSTAR either self-declares channels or keeps records for 21 days to inform declaration. The Minister for Broadband, Communications and the Digital Economy considers whether to approve self-declaration or declare a station according to records. That is the process for the implementation of the provisions with respect to R18+ restrictions and is in addition to the provisions enacted by the previous government in 2007. I will conclude my remarks with this: the bans introduced by the former Liberal government remain in place. Our bill extends the former government’s measures via the process that I have outlined. It does not usurp or replace them.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Minister, perhaps you could answer this question for me. It is my understanding that there are around 50 houses. I understand from evidence received during the committee’s inquiry that it is a bit hard to count the number of houses or residences in those communities which are already receiving narrowcasting. There are already at least 50 houses in communities that can receive narrowcasting. Is that a correct understanding?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

There are two different methodologies. The methodological approach that AUSTAR takes in mapping is different. We would accept that it is in the order of 50. We cannot be any more precise than that.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Can they receive R18+ programs at the present time?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Yes, they can.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

If I understand this correctly, we think there are already around 50—we will not quibble about whether it is greater or fewer—locations that are in prescribed communities that are already receiving R18+ programs. The argument is that this extends this material into communities, when the fact is that it is already there. What this amending legislation does is enable a community to say, ‘Uh-uh, we don’t want it.’

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Correct.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Minister, I have a question with regard to the declaration and the prescribed area, and about the minister making the decision, on receiving information, that they would make a declared area. I would like to understand a bit more about the privacy issue. Somebody rings up and says: ‘Hi, how are you going? I’m Johnny Nabada, and I’m really concerned about this. I wonder if you can come and do something about it.’ The minister goes to the community and they ask who brought it up. What are the issues around giving some level of protection to the people or person who made that call, and what surety can the community have that somebody has, in fact, made that call?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Let us take Johnny, who has a concern. He obviously does not have to contact the minister directly. The minister does not have to go and do this firsthand. He contacts the department and the officials carry out the check, the interview and the conversation. There is no obligation on them to disclose to anyone in that community that Johnny has complained in whatever form. So that would be the process, followed by a recommendation to the minister.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

If you take away the current circumstances and the circumstances since the intervention with the intention of introducing legislation, the narrowcasting still occurs today. But at the end of a cent, if it was our way, it would be zero, but your way it would be 100 per cent. That is the differential between the government’s position and our position. I acknowledge that the differential effectively is about consultation. I acknowledge that the significant difference is in consultation. Has the department received any information or done any work on how the communities actually feel about this? Apart from the communities generally saying, ‘We did not like the consultation process of the intervention,’ do you have any indications about how many communities will be saying that they would like to be declared? I know that is a difficult question, but perhaps you could just give me some indication about whether or not the department has had any investigations in that regard.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

No. The department officials are not aware of any feedback in respect of a specific matter relating to this particular measure other than the general concern about pornography in communities.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

We know that material like this is very dangerous in these communities at this time. In the event that a period of time passed—let us say a year or so—and there were no applications and nobody said, ‘Listen, I would like a hand,’ is there any consideration of a fallback position in which you would say, ‘Well, we cannot naturally assume that they really all want to have R18+ material in their communities’? Is there a fallback position? For example, if you have police reports that the sexualisation of children is still continuing—they somehow find a whole bunch of kids sitting around watching ‘Debbie Does Godzilla II’ and they know that this is happening from information received anecdotally from police officers—is the minister then capable of independently declaring it a prescribed area?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I just want to provide some additional information as well. I want to make it clear that the person making a request does not need to be a representative or an official of a community organisation. It can be a person living in the prescribed area who makes a request on behalf of an Aboriginal person in that area. I just wanted to add that to clarify the process. The communities will be made aware, by the local business manager, if this new process is put in place as a consequence of the legislation, and there will obviously be ongoing monitoring of what actions flow as a consequence of the change in the legislation and any requests made by any individuals under the new provisions of the act in respect of R18+. So that will be the process. Beyond that and beyond what would be the normal and, I am sure, diligent oversight of the implementation of this by the department and the minister, there is nothing specifically proposed at this point in time.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can I get some clarification from the minister in relation to this. I say at the outset that it was very useful and helpful for me to visit a number of these communities, namely Hermannsburg, Santa Teresa and Papunya, on 6 and 7 November to talk to communities about the permit system and to talk to them about these issues. I had a number of informal discussions with people in those communities, both for and against some aspects of the intervention and the permit system. It was very instructive. I do not pretend to have the same depth of knowledge as, for instance, Senator Scullion or Senator Siewert would have, given their longer involvement in these issues. But in relation to the issue of R18+ programs, one of the issues that was put to me in these communities was that, for a number of reasons—whether because of social disadvantage or for cultural reasons—where you had a number of people living in a house there was an issue of a lack of supervision of kids and in some instances the kids would be exposed to pornography. That was one of the issues that was put to me. I am also mindful of the issues put in relation to the Racial Discrimination Act. But I ask the minister to clarify: this amendment relates to R18+ programs being broadcast, but what is the position on R18+ DVDs or videos coming into a community? Are those prohibited or does that only apply to X-rated material?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I am informed that there is no restriction in respect of R18+ material in the previous government’s measures or in this measure.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can I just clarify my position in the debate. For me it is a difficult issue. My preferred position on R18+ material being broadcast into communities is that there ought to be an opt-in situation for communities. That is not the way it is drafted here. So the minister can have a discretion to say that this material ought to be allowed—in other words, the first position is that it is banned but it can be allowed after consultation with communities. I know that is not the government’s position. I am not entirely comfortable with the opposition’s amendments, but I would support those, given the choice between the two. But I do acknowledge it is a difficult issue.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

The question is that items 3, 13 and 16 of schedule 1 stand as printed.

Question negatived.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

by leave—I move opposition amendments (2) to (6) on sheet 5566 revised:

(2)    Schedule 1, item 5, page 4 (line 9), omit “declared”.

(3)    Schedule 1, item 5, page 4 (line 19), omit “declared”.

(4)    Schedule 1, item 9, page 5 (line 22), omit “declared”.

(5)    Schedule 1, item 10, page 6 (line 1) to page 9 (line 16), omit clause 12, substitute:

12 Condition applicable to certain subscription television narrowcasting services provided in the Northern Territory under class licences

        (1)    The provision by a person of a subscription television narrowcasting service under a class licence is also subject to the condition that the licensee will not broadcast an R18+ program in a way that will enable a subscriber in a prescribed area (within the meaning of the Northern Territory National Emergency Response Act 2007) to view the program.

Sunset provision

        (2)    Subclause (1) ceases to have effect at whichever is the earlier of the following times:

             (a)    the end of the period of 5 years that began on the day after the day on which the Northern Territory National Emergency Response Act 2007 received the Royal Assent;

             (b)    if a shorter period is specified in a written instrument made by the Minister for the purposes of this paragraph—the end of that shorter period.

        (3)    An instrument under paragraph (2)(b) is a legislative instrument, but section 42 (disallowance) of the Legislative Instruments Act 2003 does not apply to the instrument.

R 18+ programs

        (4)    For the purposes of this clause, an R 18+ program is a program that has been classified and/or assessed R 18+ by:

             (a)    the Classification Board; or

             (b)    the provider of the subscription television narrowcasting service concerned.

(6)    Schedule 1, item 10, page 9 (after line 16), after clause 12, insert:

12A Application of Racial Discrimination Act 1975

        (1)    Clause 12 of this Schedule and the remaining provisions of this Act in so far as they relate to clause 12 of this Schedule, and any acts done under or for the purposes of those provisions:

             (a)    are special measures for the purposes of the Racial Discrimination Act 1975; and

             (b)    are excluded from the operation of Part II of the Racial Discrimination Act 1975.

        (2)    In this clause, a reference to any acts done includes a reference to any failure to do an act.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

In view of the previous outcome there is no need to make any further contribution. I have already made it on behalf of the government.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I reiterate the Greens’ opposition to these amendments. We have opposed all along the exemption from the Racial Discrimination Act. We continue to oppose that—in fact, I will very shortly be putting amendments to overturn the exemption from the RDA. I point out that the point about the government’s new approach on this one is that there is no exemption from the RDA and requiring consultation is consistent with the very first recommendation of the Little children are sacred report, which gets misquoted widely and used as justification for this discriminatory and racist approach that is taken through the NTER. The authors of the report disassociate themselves from that approach. The very first recommendation says:

It is critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities.

So, even though I do not agree with the government’s approach on a whole range of things on the intervention, I do agree with the government’s approach on this—that is, they are implementing that recommendation requiring consultation with Aboriginal communities before the decision is made by the minister over the R18+ exclusion. We definitely will not be supporting the opposition amendments.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I do want to make it clear to the chamber that, in indicating that I was not going to speak on these consequential amendments, I was adhering to my earlier position consistently—we do not support them. But the debate has been well had, and they are consequential amendments.

Secondly, in terms of Senator Siewert’s comments, the government has indicated that it does want to ensure in future, and indeed has foreshadowed legislation to ensure, that provisions are consistent with the Racial Discrimination Act. We have indicated that, so I agree with you in principle. Whatever happens on this legislation, we will maintain that principle and we will be continuing to advance that legislation we foreshadowed next year.

Question agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens oppose schedule 1 in the following terms:

(1)    Schedule 1, item 10, page 9 (line 17) to page 10 (line 2), clause 13 TO BE OPPOSED.

The two amendments I am moving basically relate to removing the exemption from the Racial Discrimination Act. As I have already said, and I will reiterate for people who may not know or may be under false illusions, the Greens have been opposed to the nature of the NT intervention ever since this discriminatory legislation was introduced by the then government last year. I have also said for the record that we do not object to the increase in resources that are available under the NT intervention for spending on the ongoing disadvantage in the Northern Territory. We object strenuously and loudly to the way the NT intervention was applied and continues to be applied and continues to be supported by the current government.

When the current government were in opposition they objected to the exemption from the Racial Discrimination Act quite loudly but supported the legislation nevertheless. Despite their loud protestations at the time, the government continue to support the continuation of exemptions of the various measures in the NT intervention—there are five pieces of legislation that cover the Northern Territory emergency response—from the Racial Discrimination Act.

Let me remind people that the government at the time sought to say that these intervention measures were special measures that were supposed to be of benefit to the Aboriginal community. In case they were not—because there was a pretty strong likelihood that they were not special measures and would not be considered as such under the Racial Discrimination Act—they gave themselves the all-out dropout clause, ‘Let’s exempt everything from the Racial Discrimination Act,’ which then allowed them to change the permit system and to quarantine people’s income despite the fact, contrary to what Senator Scullion said, that there was a voluntary income-quarantining system being run by Tangentyere Council, which had over 2,000 people on the books and 800 people voluntarily quarantining their incomes on a regular basis. And, by the way, Tangentyere Council was underwriting that scheme quite substantially at the time by covering the transfer fee that was being charged. The measures also enabled the government to come in and take control of townships and to prescribe the townships.

The Greens always said that was racially discriminatory, and we still say that it is racial discrimination. That is in fact why the government had to exempt those measures from the Racial Discrimination Act. In the Social justice report 2007, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, included a human rights analysis of the Northern Territory intervention. The report raised very significant human rights concerns with the intervention legislation and the approach taken by the then government. It also made some very strong comments about deeming these acts as special measures and about excluding them from the RDA. On page 295—and I will not quote all of the things that Mr Calma said about the RDA because it would take a significant amount of time—the report says:

It is entirely unacceptable to remove the protection of the RDA for any acts performed under or for the purposes of the NT intervention legislation. This is particularly given the broad discretion that the legislation vests in decision makers at various levels.

The report notes that the exemption from the RDA means:

… that there can be no challenge to any exercise of discretion by officials purporting to act in accordance with the legislation (for example, decisions of government business managers, variations of contract conditions, seizure of assets and so on).

He goes on to say on page 266 that the rationale for the exemption is partly:

… to address the consequences of section 10(3) of the RDA. Section 10(3) of the RDA makes it unlawful to manage the property of Aboriginal and Torres Strait Islander people without their consent …

…            …            …

Such a measure cannot also be classified as a special measure …

The report goes on to say that this provision would affect the compulsory acquisition of Aboriginal land and the powers of government business managers. Quite clearly this legislation is racially discriminatory. If you need no further evidence, the Social Justice Commissioner, who is now the Race Discrimination Commissioner as well, has found that to be so.

The Little children are sacred report has been misused in a number of way. Specifically, it was used as the justification for the intervention despite the fact that we have known about child abuse and Aboriginal disadvantage in the Northern Territory for years and years, and it was not until last year that it suddenly became an issue that the government felt it had to do something about—and what better report to use than the Little children are sacred report, of which I have the executive summary here with me. Nowhere in this report does it say that you should take measures that contravene the Racial Discrimination Act and then exempt those measures from the Racial Discrimination Act.

The Greens were dismayed and continue to be dismayed that this government continues to foster and progress the discriminatory Northern Territory emergency response because we believed that it would take a much more socially inclusive approach and would act on the comments it made before about the fact that the emergency response contravened the Racial Discrimination Act.

The minister for Indigenous affairs ignored the Northern Territory emergency response review report, which recommended that the minister remove the exemption from the Racial Discrimination Act and make compulsory income quarantining a voluntary scheme and which made many other recommendations, instead announcing the extension of the compulsory income quarantining. I was further dismayed when the minister said, ‘We’re going to do that for at least another 12 months, and maybe in spring next year, when we will have continued this racially discriminatory approach for another 12 months’—and, by the way, we will then have had that discriminatory approach for longer under this government than under the last government—’we’ll remove the exemption from the Racial Discrimination Act.’

That is not good enough. We cannot afford to wait that long with the shame that Australia now suffers from the fact that we have introduced measures that we have had to exempt from the Racial Discrimination Act. We cannot wait until at least spring next year. The Greens are moving these amendments to ensure that the measures that are being put in place in the Northern Territory, which are supposedly designed to end Aboriginal disadvantage and to close the gap—as the government keeps saying is one of its priorities—can be put on a footing that is not racially discriminatory and can genuinely help communities.

Let’s start genuinely implementing the recommendations of the Little children are sacred report, the first of which, as I said, is to commit to genuine consultation with Aboriginal people. I might add that that was reiterated in the review of the NTER. They also said the government need to re-establish their relationship with Aboriginal communities after the damage that has been done in the last 16 months. They need to repair that and go back and talk with and genuinely consult Aboriginal communities. I commend both this amendment and the amendment I will move in the future to the Senate.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

The opposition will not be supporting the Greens amendments. I acknowledge the position of the Greens, who are representing a particular view in these communities that pretty much does not support the intervention. I acknowledge that, and that is their right. If I were not supporting the intervention, the first thing I would do is say, ‘Listen, we need to get rid of that suspension of the Racial Discrimination Act so we can immediately take the whole thing to court and throw it out.’ I acknowledge that that is their right and I acknowledge that that is what it is about.

When I first went to the communities, many people said to me: ‘This is just dreadful, Nigel. Under the Racial Discrimination Act people can just discriminate against me now. People have told me that you can beat me now and I can’t do anything about it because I’m not covered under Racial Discrimination Act.’ There is a whole range of that stuff. For whatever reasons that poisonous story got amongst them, that is very sad. But I think as I move amongst the communities that, since the communities are much better off in every measurable way, anything that would move towards removing aspects of the protection the intervention provides is something I will not support.

I have to commend the government for continuing to look for ways to take away the suspension of the Racial Discrimination Act. When Minister Brough was here, of course, they were declared ‘special measures’ and consideration was undertaken—as I am sure those advisers can recall. It was not something they just rushed into, saying, ‘We’ll just suspend that’. They considered things at the time. We would, of course, over time continue to look at ways to ensure that this was not something that hung over our heads—well, that may not be the case, but I am reasonably assuming that history will paint it that way. So we would certainly commend the fact that the government is continuing to look at approaches and that in time it will look at lifting the suspension. I commend the government on what is a very difficult task, but I certainly think that the lifting of it at this stage as per these amendments would simply be the death knell of the intervention, and that is something the opposition will not be supporting.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am sorry, Senator Scullion; history will not paint this as an appropriate way to deal with Aboriginal disadvantage in the Northern Territory. It just will not. It is discriminatory. They are not special measures; they clearly do not meet the definition of ‘special measures’, which is why you had to exempt this from the RDA in the first place. History will show this for the discriminatory measure and the waste of money that it is. Not one of the safe houses that were supposed to be built under the intervention is operating yet—unless they have managed to get one operating since estimates. Yet how many houses have they managed to build for government business managers? Not one safe house is operating to protect anybody—men or women. Some of them were built in the wrong location. There was no consultation, which is the first recommendation of the Little children are sacred report. They were built in the wrong location because there was no proper consultation. Going around and consulting specific people so you get the answers that you want is not the way to start addressing Aboriginal disadvantage in the Northern Territory. Putting in discriminatory, punitive measures does not work. The international evidence shows it does not. The review showed that there needed to be significant reform, and the government has chosen to amend it. That is what will go down in history. It does not work and it will not work.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The government will not be supporting these amendments. It is a subject which does warrant proper consideration. The government is firmly committed to the Racial Discrimination Act and will not make any laws which are inconsistent with the principles of that act. That is why we have carefully crafted the bill we are currently considering to ensure there are no new provisions which exclude the operation of the Racial Discrimination Act, and the new R18 measures we were debating earlier were designed as a special measure.

The amendment moved by the Australian Greens seeks to amend the original racial discrimination provisions enacted by the previous government—cross-amend, effectively—across the whole package of Northern Territory emergency response laws. That goes well beyond the limited range of issues we are considering in this bill, and it enters into a much broader discussion which warrants its own consideration and debate.

The independent review board specifically considered the issue of the application of the Racial Discrimination Act in the review of the emergency response measures. The government takes the view that the NTER will not achieve robust long-term outcomes if measures do not conform to the Racial Discrimination Act. I repeat: this particular bill contains no new provisions that exclude the operation of the Racial Discrimination Act. This bill is not the place for that wider consideration. Legislative amendments to bring existing NTER legislation within the scope of the Racial Discrimination Act, as I have already indicated on a number of occasions, will be introduced in the spring parliamentary session next year. Therefore, the government does not agree with these amendments.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I appreciate the commitment by the government that they will not introduce any further legislation that seeks an exemption from the RDA, but that has not stopped them making use of exemptions from the RDA, as is evidenced by the extension of income quarantining, which is clearly contrary to the RDA. It has not stopped them continuing to take control of townships. So while they may be trying to appear squeaky clean by not making any further laws that seek to exempt them from the RDA, they are already making use of exemptions to the RDA.

They could either move their legislation right now, or as soon as possible, or they could support these amendments right now—amendments that will deal with it straightaway. They will not do that because it is very convenient for them to keep the exemption to the RDA in place while they progress measures that would not meet the requirements of the RDA. Australia needs to be very clear about this: they are keeping the exemptions in place while they use those exemptions to push their agenda.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

The question is that clause 13 in schedule 1, item 10, stand as printed.

Question put.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I oppose schedule 2 in the following terms:

(9)    Schedule 2, page 15 (line 2) to page 16 (line 22), Schedule to be opposed.

This relates to schedule 2 of the bill, which is about the transportation of prohibited material. This is a matter of nuance. We understand what the clear intent is: to make some clear consistency in terms of alcohol. But we want to ensure we are sending a consistent signal in the circumstances where pornography may occur in communities. We accept that it is on the grey end of the nuance but we thought long and hard about this. We are not accepting that a defence needs to be provided in the same way as for alcohol, because of the nature of the way pornography is transported. It may go in the post or by courier. We believe that that could provide a potential defence for anybody who has it on their person but is carrying it in such a way that it could be for someone else’s consumption.

Knowing the prescribed areas as I do—and no doubt as those in government do—that there could be circumstances under which you would say, ‘I am just carrying this pornography via Kintore to Perth,’ or some other place is a little far-fetched. It could create a defence when there is clearly an offence. I think a defence exists if you are a postal worker, but to take pornography to a place outside a prescribed area by necessarily driving through a prescribed area—

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Not Kintore. Elliott community is on the Stuart Highway.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Some elements are a prescribed area, if I can take the first and only interjection in this debate from Senator Crossin. She wants to interject about elements of the Stuart Highway, which is not part of the intervention area, although there are elements of Elliott there. It is very disappointing to see her come into this place and make such an unconstructive contribution, but, frankly, I am not surprised.

There are a number of ways that can occur. We believe that in any event there is a judicial system and a defence exists. If this were a strict liability offence, I would understand why you would have to create a particular defence around that. It is not a strict liability offence and I believe the government has made quite a significant effort to provide a reverse onus of proof in that regard. We simply do not think it goes far enough, and that is the reason we will not be supporting these changes.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The government opposes the amendment moved by the opposition. I note the very helpful contribution of my colleague, Senator Crossin, in pointing out one of the communities—Elliott. From the government’s perspective, it is unclear why the opposition is opposing this sensible workability measure. The prohibited materials ban was intended to be consistent with the alcohol ban, which allowed transit. Schedule 2 to the bill addresses this anomaly by allowing prohibited material to be transported through prescribed areas as long as its destination is outside a prescribed area. We just cannot see why the Liberal opposition is persisting with this amendment in light of the eminently sensible position—even half-conceded or a bit more than half-conceded by Senator Scullion—that the government is advancing.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that schedule 2 stand as printed.

Question agreed to.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I am sorry, Mr Temporary Chairman. I was just having a conversation with another senator at the stage the question was put and he has indicated that he wished to vote with the government if the wish was to divide on the matter. We did not want to rush that. Perhaps you may wish to put the question again.

The Temporary Chairman:

No. I put the question in the positive—that schedule 2 stand as printed.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

The opposition opposes items 1 to 9 in schedule 3 in the following terms:

• (10)   Schedule 3, items 1 to 9, page 17 (line 10) to page 18 (line 12), items 1 to 9 to be opposed.

I think the fundamental amendments that have been brought to this place relate to schedule 3. Next to those, the rest pale into insignificance. I question the motive behind the government’s insistence on this schedule, but I would like to acknowledge the consistency of the Labor Party on this. From the day of the intervention they have consistently said that they support every aspect of the intervention. They actually divided on the permit system in this place, so their position has been consistent and I acknowledge that. But I would have thought that you would have to question the motive or have a little understanding of the motive. Much of the discussion at the time of the intervention revolved around the capacity, for example, of the police force. We have had Police Federation of Australia representatives come out and say that this is a very important piece of legislation because it allows a great deal of leeway in being able to have discussions with people moving in and out of the community. They said: ‘We just simply pull them up and have a bit of a chat to them. We can search their cars. We can ensure that they are not bringing drugs, alcohol or other substances in the community, and they are generally good guys.’

As the government well knows, since the intervention became law there have been a raft of significant legislative changes in the Northern Territory in regard to the movement of alcohol in the prescribed areas. You can run out terms like ‘draconian’ but, whatever they are, there is now legislation that gives the police the right to stop anybody and search the car—and they do. I was pulled up the other day—

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Do you think they’re draconian, Senator?

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

No, I do not. That is one term that has been used, but I think they are very significant laws.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Senator Crossin interjecting—

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I absolutely think they are needed, Senator Crossin. But they are laws that mean the permit system is no longer required. People like Senator Crossin say that you absolutely need the permit system so you can pull cars over. What I am saying is that significant legislation has been put in place that does just that. It gives the police powers not only to pull over people and ask, ‘Hi, how are you going—do you have a permit?’ but also to question people and to search the vehicle. I was pulled over the other day. I went out to have a look at a tree and a rock, as you do when you are in Alice Springs of an evening. On my return to Alice Springs the police stopped my car. They searched my car for alcohol and went right through the car—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Sterle interjecting—

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

There was absolutely no alcohol on board, which was very pleasing. I think these powers really negate any argument at all that the permit system needs to stay to give police extra powers to protect people within the community.

There is another issue that I am still a bit miffed about. Before the intervention and the Little children are sacred report and all of the other reports about the circumstances in the communities, what was absolutely self-evident to the people who visited the communities was that the communities were under the permit system. The permit system existed, yet it did not provide any level of protection. We had unbelievable circumstances prior to the intervention, and the permit system did not protect any of those people. People said that with the permit system there was this notion that someone with villainous and evil intent could say, ‘I know: I would like to smuggle some drugs into the community,’ or, I’d like to go to that Aboriginal community to go and do things; I’d better go and get a permit.’ That would be important on the list of a villain. He would go to the Central Land Council and submit an application for a permit. The police themselves have said that the permit system does not actually stop any of the substance abuse and other criminal behaviours of people visiting the communities. In fact, I think it is widely accepted that most of the apprehensions—in the high 90s in percentage terms—are in fact people who live in those communities. The others are unknown but, principally, that is the case.

I am not really sure what else you need to discuss in terms of the permit system. I do know, as does Senator Crossin—she talked about this in her speech on the second reading—that there was a terrible lot of resistance in the communities. People have come to me in this place and said: ‘I think it is an outrage, Nigel, that you are supporting legislation that lets people come in and walk all over our sacred sites, lets them come into our house,’—imagine that—‘lets them watch the television, lets them walk around the place and lets them do what they like, with whoever, all over my country with no permission at all. I think that is an outrage.’ So do I, I have to say. But that is not what the cessation of the permit system was really all about. It was about one specific road, a gazetted road into a community—not the myriad roads that go in but one specific road. It was generally the communal area or a part of the township. Generally speaking, it gave access to facilities like the medical facility, the post office and, potentially, the barge landing or the airport. That is what it really did.

I am not surprised that people were absolutely outraged by this legislation in the consultation on it, because they completely had the wrong end of the stick. I do not know how they got that idea. I am told that people came to the community and told them that that was the way. I would really love to know who those people were, because that would be about the most evil thing you could perpetrate on a community—to tell a community that naive that this was what was going to happen and to frighten people, saying, ‘We are going to do nasty things to your sacred sites and come into your house.’ I think that is nothing short of evil.

We do not seem to have a motive to now say we really need the permit system. In this legislation it is suggested that we give the minister the power to provide permits. I will not verbal the government, but I understood they were saying, ‘We’re going to be providing access to journalists.’ That is a great thing, except that, in the legislation, the fine print talks about defined areas and community areas. Well, first of all, the notion that journalists are somehow exempt from this system is not the same as going to a minister and the minister saying, ‘Here is specifically where you can go.’ That is not what I understood. I understood that the proposal from Labor was that journalists would be exempt from the permit system, that they would not need a permit. No doubt the minister or government advisers will be able to show me that aspect of the legislation that says journalists are exempt and how they will exempt them, but I certainly cannot see it. As I see it, journalists are still going to require permits. That is an interesting process, and I thought they might be able to explain it. Of course I and the opposition support it, but we think it should go much further than that.

These are closed communities and they continue to be closed. There are all sorts of closed communities, and I have been thinking about what it is like to live in a closed community. If you speak to people in prison, they will tell you what it is like to be in a closed community. There are no journalists. There is no reporting. You are shut off from the outside world. Yes, you get visitors and those sorts of things, but fundamentally that is how it is. Not surprisingly, the sorts of violence and the sort of abuse that we find in prisons, which is largely unreported because people always feel intimidated, is not completely different from the issues that we find in some of these prescribed communities.

I think we need to move to the single most important reason why we should be able to open these communities up by having a single gazetted road and access to aspects of the communal area. The reason is that the intervention has a number of phases. There are ones that are perhaps unpopular, where it is hard to see how they are going to really help these children and how they are going to make intergenerational change. But the roads are the arteries to opportunities that other people around Australia take for granted. Every other community on the east coast of the same size as these Indigenous communities enjoys access to the economy. People drive in, they put fuel in their car, they have a hamburger, they stay in the hotel, they go and look at the magnificent products and they do all sorts of other things.

Within the Northern Territory we have the single best, most magnificent tourist products on offer. People come to Australia looking for two things: a biodiversity experience and an Indigenous experience. Only six per cent on exit from Australia say they had the Indigenous experience that they wanted. I have a vision that, if we open these communities up, people will be able to go there and experience Indigenous Australia, and the Indigenous Australians will benefit in so many ways, not only because other people will understand their culture but also because they will be exposed to economic opportunities.

So many people who live in Indigenous communities that I know and visit have had training. They know all about interpretive work, but there is nobody there to take out. There are very few opportunities to actually use the skills that they have beyond their natural skills and their wonderful knowledge of country. I remember going to many places during the election where people from the Labor Party had quite reasonably said, ‘If we are elected, we’ll keep the permit system.’ Because of what the people in the communities thought the permit system actually was, they gave some pretty overwhelming support to the Labor Party, and I am not surprised about that.

If we allow the permit system as it stands today to remain unchanged, these communities will remain unchanged and there will not be the opportunities that my sons and daughters take for granted. I think that everybody in this place should think very carefully, because this is the most fundamental reversal of the intervention. It was clearly the intent that we would have an emergency intervention for the sake of normalisation and stabilisation, because these places should be like everywhere else. Making sure that the permit system provides all of the things I have been talking about is fundamental to the future of intervention.

We will not be supporting schedule 3, items 1 to 9 of the bill, and the reason for that is very clear, as I have indicated. There is really no motive any more to say we need a permit system. We are talking about public roads, not private land. If you go anywhere off those roads you are on private land. It is a bit like driving down the highway—there is a fence on the side of the highway and you might see a sheep on the other side of it, but you do not go over the fence because that would be trespassing. You will still require a permit to go and do things like that, so there is no motive any more to keep the permit system.

The ministerial power to somehow allow journalists to go into these communities of course is a good thing, but obviously it does not go anywhere near far enough. They will remain closed communities. If you compare the communities in some of the prescribed areas that are closed with communities on the east coast that are similar in terms of size, demographics and opportunities, the fundamental difference is the latter are doing fantastically and the former have absolutely no bloody opportunities at all. The single reason for that is that they do not have access to economic opportunities and they are closed communities. They will continue to be closed communities, and that is why we will not be supporting these parts of the legislation.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise to provide some commentary on and response to some of the comments that Senator Scullion made, because I think it is important that there be a response to this element of the debate. I am glad, Senator Xenophon, that you are in the chamber, and I must say publicly that I welcome your willingness to go to the Northern Territory and to look at and talk to a number of communities. However, it is unfortunate that you did not get to some of the communities in the Top End and get a more balanced view about what people think about the permit system in the Northern Territory. I am aware that you went out with Adam Giles, a candidate for the seat of Lingiari in the last federal election, who is quite clearly not in this parliament because of the outstanding result that Warren Snowdon got, which was based on a platform of, amongst other things, listening to Indigenous people and ensuring them that we would reinstate the permit system as they had asked us to do. They voted for us to do that. Outside the two or three communities that you went to in the Northern Territory, you would find that there is a much, much broader, stronger and more prominent view about why Indigenous people want to keep the permit system and had asked us to do that. Our position following the last federal election clearly shows that the member for Lingiari, Warren Snowdon, was re-endorsed and put back into this parliament to represent those people, as well he does. The reason he does an outstandingly magnificent job is that he listens and talks to Indigenous people. He is one of the best members of the House of Representatives that I know in terms of representing his constituents.

I talk about the places we went to during the election. Senator Scullion and I were actually at one place together on the same day. We were both at Galiwinku, on Elcho Island, and people there were lined up 100 deep every hour for nearly eight hours of the day. I can tell you now that, when they were given a how-to-vote card for the Country Liberal Party, they squashed it up, screwed it up and threw it on the ground. So they not only were keen to vote for the Labor Party because of our policies but also physically showed to everyone at that polling booth exactly what they thought of the policies of the then government.

Senator Scullion talks about closed communities. It is a furphy. There are no closed communities. They are not closed communities. It is simply a term that Senator Scullion and the coalition use to try and justify their position. Hermannsburg is not a closed community; it has a tourist outlet. On Groote Eylandt there is now a tourist resort. Titjikala has tourist operations happening. Look at communities that have allowed mining to occur in and around their communities. To say that the permit system is a barrier to economic development is an excuse and an argument that is used to justify the position that is given by those who quite clearly want to see—let us get to the bottom line here—the abolition of the Aboriginal Land Rights (Northern Territory) Act. That is what this argument from the previous coalition government is about. Getting rid of the permit system is the thin end of the wedge. They would probably then hand the land rights act over to the Northern Territory government and make any other changes they possibly could to chip away at the rights of Indigenous people in the Northern Territory.

Land that is acquired under the land rights act is different to any other land in this country. It is land that is owned by those Indigenous people and they have the title to that land. Why do people like the permit system? Because it protects their culture, their sacred sites, their language and to some extent their way of life. This is a culture that has survived for 40,000 years. So who are we in Canberra to act, I will say here, in quite a racist way? This is a white people’s policy. We go into a community, and we probably spend fewer than three hours there—if we are lucky, we might sleep there overnight—and suddenly we come away with a view that they are a closed community and that permits are actually a barrier to economic development. We do not really understand why they want the permit system, but somehow we think that getting rid of it is going to be one way to start to solve some of the problems, rather than looking at it in a positive way and seeing that keeping the permit system is one way of recognising these people’s culture. One way of building bridges in our relationship in this country and handing out a token of reconciliation would be to say to Indigenous people in this country: ‘Yes, you have a permit system. You got that because of the land rights act. You got that because a Prime Minister, Gough Whitlam, with Vincent Lingiari, decided that this legislation would give you the title to this land forever.’ I might say that that legislation was finally put through this parliament by Malcolm Fraser. So these are rights that have finally been hard won by Indigenous people. There are reasons that they want the permit system in place.

In my speech on the second reading of this bill, I demonstrated that there are in the Northern Land Council region alone 22,000 permits given out per year. There are very few examples of permits being rejected. There was a case where one particular journalist breached the permit system—and quite rightly was taken to task about that. But, by and large, I have not seen examples of people in communities rejecting an application for a permit. In other words, I think there is demonstrable evidence to prove that the permit system is not a barrier to economic development on Indigenous land. In fact, if anything, it enhances the cultural rights of Indigenous people in those communities.

We might talk about the fact that crimes are committed in these communities and argue that perhaps without the permit system these crimes suddenly will not exist or these people will not go to these communities. The reality is that none of that is going to change. Crimes will continue to exist in these communities whether people do or do not have a permit. And most times they probably do not have a permit. We were able to hear directly from police officers in north-east Arnhem communities, who clearly said to us: ‘One of the reasons I can stop a car is because I can ask them whether they have a permit. If you take that ability away from us, you lessen our policing role.’ We have had evidence from the Northern Territory Police Association and the Federal Police Association that that is one tool they use. The new laws in the Northern Territory with respect to alcohol are another tool that they can use.

Do Aboriginal people need permits to go in and out of each other’s communities? Predominantly, no, they do not. If I live at Yirrkala and I am down at Hermannsburg, I do not need a permit. And, if you have a look at the crimes that are being committed against children and women in those communities, it is predominantly Aboriginal people committing those crimes. The police are out there on top of, arresting people for and tackling those crimes. So it is an excuse and a fabricated reason for why the permit system has to be abolished. We do not have closed communities in the Northern Territory. Indigenous people do not consider them closed; I do not consider them closed. I simply ring up, I ask and I am welcome to go there. Evidence from the CLC and the NLC during the community affairs inquiry showed that that is predominantly the case: where there have been permits refused, there have been good reasons given.

We do have people coming in and out of these communities without permits. We know that there are carpetbaggers going in and out, trading in the arts industry. That is one of the reasons I would have thought you would keep this kind of permit system. It is a bit of a track for Indigenous people, as to who can come in and who can come out. Has it been successful in the past? By and large, I say, yes, it has been. It gives Indigenous people a reason to ask people to leave their community. If you remove the permit system, then you have no means by which you can ask people to leave the community, other than to go through a court process and an unwieldy process of issuing a common law trespass notice. But Aboriginal people do not want that; they want a system that they have liked, that they have designed, that they are committed to and that they want retained. The Labor Party was elected at last year’s election on a platform to not abolish the permit system and to protect the permit system. Warren Snowdon represents Lingiari. All of the people affected by this legislation live in that seat—not the seat of Solomon. Every single Indigenous person affected by this legislation in this country only lives in the seat of Lingiari. We got a 94 per cent return in the polls up there.

I put to you that we have a mandate to ensure the permit system is protected and retained. I put to you that if we are true about reconciliation in this country, about building genuine relationships with this country, we will drop this mantra of ‘Canberra knows best’, of ‘non-Indigenous knows best’, we will start to work with these people and we will start to make changes to their lives and listen to what they say. One of the things they have clearly said to us—loud and strong, last year and for many years—is that they want the permit system retained. I put to you that I do not think any changes should be made to the permit system unless there are discussions, consultations and agreement with people. Do some communities want some aspects changed? Yes, they do. I know of some communities that are quite happy to have no permits in their community but I know of others who want the permit system retained. The current act does not allow for opting in or opting out. So let us just talk to people about what future changes might be. But the way the previous government moved on those communities last year and simply decided to ensure that the permit system was restricted and now hold to that view, despite the outcomes of last year’s federal election, shows they are not listening to Indigenous people in the Northern Territory.

In fact, Senator Scullion, I am embarrassed to think that you would want to represent those Indigenous people right across those 70 or more communities when they quite clearly would have said to you, as they have said to me thousands and thousands of times: ‘We want the permit system retained. We want you to go to Canberra and represent us, and that representation means standing up for our permit system, standing up for our culture and standing up for protecting, maintaining and strengthening the Land Rights Act.’ So I put to this chamber today that, if you really want to build bridges with Indigenous people and start to turn the corner in our relationship with Indigenous people—particularly in the Northern Territory, given the last 18 months—you will listen to them, to all of them, not just to two or three communities but to all of the communities around the Territory, who resoundingly voted for the Labor Party at last year’s election because we stood on a platform of protecting and maintaining their permit system.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens will be opposing the opposition’s amendment to this bill. I endorse the comments of Senator Crossin. In all the travelling that I have done in the Northern Territory—which I acknowledge is nowhere near as extensive as Senator Crossin’s and Senator Scullion’s—I have overwhelmingly been told that the communities want to retain the permit system. The evidence to the Senate committee from communities all said, ‘We want to keep the permit system.’ When Minister Brough introduced this legislation, in particular these measures to abolish the permit system, he referred specifically—and I know Senator Crossin touched on this in her speech on the second reading as well—to the review of the permit system conducted by FaCSIA in February 2007 and used that to justify taking away the permit system. He implied that there was a large level of community dissatisfaction with the permit system. In fact, he even said that in his second reading speech:

The government has been considering changing the system since it announced a review in September 2006 and the changes follow the release of a discussion paper in October 2006 and the receipt of almost 100 submissions.

Over 40 communities were visited during consultations following the release of the discussion paper. It was disturbing to hear from officials conducting the consultations that numerous people came up to them after the consultations, saying that the permit system should be removed. … They were afraid to say this in the public meetings.

However, despite requests, the minister refused to release this report and did not substantiate his claims of the numerous calls to remove the permit system.

In evidence to the committee of inquiry into this bill, the Law Council of Australia, through a freedom of information request, found:

All 80 consultations—

and the minister, I might add, said almost 100—

revealed unanimous support among Aboriginal communities, individuals and organisations for NO CHANGE to the permit system.

The minister was implying that a lot of people came up after consultations and implied that really they could not say they did not want the permit system when they were in the consultations. But these submissions said, ‘No, we don’t want any change.’ The submission from the Law Council of Australia said that they could find no record, in any of the documentation provided, to support the minister’s claims that individual community members had made private submissions to departmental officers. All the records showed that the submissions and the consultation process supported no change to the permit system.

The Greens have said all along that we do not support the permit system. Besides that, we have seen no evidential base to support the abolition of the permit system. The rationale given for its abolition in fact seems to be at odds with the evidence that was provided during the official consultations, which clearly the minister hoped would say, ‘Yes, the community wants change,’ but which in fact said, ‘No, we don’t want change.’

It has often been said that we need the permit system so that people can go in and reveal the child abuse in these communities. But for 20-odd years report after report has indicated the level of disadvantage, child neglect and child abuse in communities, and do you know what? They were done with the permit system in place. Governments of various ilks failed to take any notice of those reports. But, when it became politically advantageous to the then government to start raising those issues, all of a sudden it was the permit system that was hiding this child abuse. We knew about it; we just did not do anything about it! There was nothing in the Little children are sacred report that said, ‘Take away the permit system’; it was what the minister wanted. The government had been after it for ages and could not achieve it, so they used this excuse to get rid of it. To be fair, Minister Brough had been absolutely clear about his agenda; he just could not achieve it. So he used this as a way of achieving that agenda. There is no evidence that communities want to get rid of the permit system; there is ample evidence that they want to keep it. That evidence was provided to the Senate committee and it has been provided to me in innumerable emails.

Senator Crossin mentioned that when she was on Elcho Island people were screwing up how-to-vote cards. I would also put to this place that it is no coincidence that the Greens vote in the NT went up substantially during the last election, and I would say it partly reflected our strong stance on the intervention and our strong opposition to changes to the permit system. It is very clear that communities do not want the permit system removed. If this chamber does not support this legislation it is flying in the face of what the community wants, again taking a paternalistic, discriminatory approach to the Aboriginal communities in the Northern Territory. I have not had one email, letter or phone call from an Aboriginal person in a community saying: ‘Senator, you are wrong. You shouldn’t be supporting the permit system. We want you to support getting rid of it.’ Not one! The Greens will be strongly opposing the opposition’s amendment. We support the government’s intention and the amendments in this bill to ensure that the permit system in the Northern Territory remains.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I will try to keep this brief but I think that some of the remarks, particularly those from Senator Crossin, need a response. To Senator Siewert: if you think this is politically advantageous you certainly were not standing in Lingiari with me; I can give you the drum. But I will get to that in a minute.

I would like to take the opportunity to thank Senator Crossin for making my argument. She does make the point that of course open communities are doing so much better—places like Hermannsburg—and the developments in some other places are always associated with open communities. This whole notion of the permit being somehow part of reconciliation and somehow part of recognising culture is absolute and utter garbage. It is the sort of leftie statement that belongs back in the ‘I don’t even get it’ days. It makes absolutely no sense whatsoever to connect a lawful right of access with reconciliation.

I am not sure if you have been listening to your own media, Senator Crossin, but do not get us wrong: I support the permit system too; of course I do. I believe that for those people who have land we should have the permit system to go there. But I believe the excision of a main road to a hospital, a post office or an airport is entirely legitimate because it provides opportunities for those communities and in fact opens up those communities. But all other areas, 99.8 per cent of Indigenous land, will still require a permit, and of course we support that.

I want to revisit for a moment what Senator Crossin said, which was that the permit is still an important tool for police officers. I do not know how many times you change a tyre, Senator Crossin, but one spanner at a time is really advised, and you use the best one. The capacity for police officers in the Northern Territory to pull people over and search them completely is a far greater and more comprehensive power than the permit system. That is the point I am making.

I turn back to Senator Siewert’s remarks—I am not directing this at you, Senator Siewert—about how politically foolish this all was. Perhaps it might have been, but I can recall being in those areas and people coming to me very angry. In fact, when they were screwing those how-to-vote cards up they were throwing them at me. I was spat on; I was threatened. Many of these people are my friends. I have known them for some time. I asked them, ‘What is the problem?’ They said there were three problems with this. They said that they had been told; they understood what was happening: I personally was going to come and take their children from them, Senator Crossin. They were pretty cross with that, I can tell you, and I do not blame them.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

You are making that up.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

No, I am sorry; I am not making this up, Senator Crossin. Then they said, and you are aware of this because you were there, that I was somehow going to take away their sacred sites. There was somebody who suggested we were going to bulldoze them, but there was a general belief that there was going to be an impact on their sacred sites and, with their great connection to the land, we were going to take their land from them. I understand completely why a community that thought that a government was going to impose those sorts of impositions on people would absolutely reject you in an election. Of course they would. If I believed that, I certainly would. But make no bones about the conditions and circumstances in those communities. I am not aware of who misled them with such poisonous disinformation, but it is a great sadness when that happens to that sort of people, and it was a great sadness to me on that day. With no amount of rhetoric will you ever convince most Australians, and I think most people, certainly in the Northern Territory, that hanging on to this antiquated permit system either is going to continue to protect people or provide a further level of protection to people in the communities or is somehow going to protect their culture.

What the intervention has done is fundamentally protect their culture because it stopped the rivers of grog; it stopped so many of the things; it stopped the violence. Anybody who goes there, as you do, Senator Crossin, would recognise that that is the case. I do not intend to get into a diatribe with you over this matter, but I thought, since you provided your commentary, there were some aspects that needed some clarification.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

As I indicated earlier, I had the privilege of visiting only three communities, Papunya, Hermannsburg and Santa Teresa, on 6 and 7 November and I wish I could have spent more time there. I spent several hours in each, and it was very useful for me to go there. I did go with Adam Giles, who is a Country Liberal Party member out of Alice Springs in the Territory parliament. Though initially there were plans to go with a Labor Party member, unfortunately that fell through and I did not get the benefit of that. I will say this about Mr Giles. Whilst he has firm views about the permit system and introduced me to several people on communities that he knew, I was left to my own devices with my adviser, Rohan Wynn, and we spoke to quite a few people in each of those communities, on many occasions well away from Mr Giles, so there was no question of any interference on his part. I think it is fair to say that I got mixed messages, that there were some people who were quite in favour of the permit system and others who were not. I appreciate what Senator Crossin said, that I have not visited other communities that she referred to. I think Senator Siewert said that she has not had the same exposure and does not have the same degree of knowledge as Senators Scullion and Crossin would have in terms of visits to Aboriginal communities. I probably do not have anywhere near the level of knowledge, in a sense, or experience visiting Indigenous communities that Senator Siewert has.

In those communities, there were mixed views. I was concerned at what some people put to me—that there was a misconception. They said that removing the permit system would allow people to go onto sacred sites. That was put to me by a couple of people, and that clearly is wrong. There was a concern that it would allow access into people’s homes. One person put that to me, and clearly that is wrong. I think it is fair to say that there has been a degree of misapprehension and misinformation in relation to that.

I will canvass the arguments about the permit system briefly. There is an argument that it encourages self-determination for Indigenous people, that it gives some control as to who is able to work on or go onto Aboriginal land. There is one argument that it could hurt the economic development of local artists. I think Senator Crossin is right in that the permit system has not hurt economic development in relation to mining. That is clear. But I think it is also fair to say that the permit system in its current form could provide a disincentive to tourists to visit Indigenous communities where they have to apply and go through a process to visit an art centre, for instance, or an art gallery. I think it is fair to say that in those circumstances that could be a negative factor in terms of tourism.

One of the key issues that I have canvassed is the whole issue of wrongdoers, of having undesirable elements in Territory communities, and the fact that the permit system acts as a measure to block those undesirable elements. I note that in response to the emergency intervention the Police Federation of Australia argued in support of the permit system, but there have also been some contrary positions put. I am relying on the briefing paper provided by the Parliamentary Library research service for information on assertions and counterassertions in relation to this. Vince Kelly, the head of the Northern Territory Police Association, has more recently asserted, according to the information provided by the library research service, that there is no evidence that the permit system hinders illegal behaviour. He said:

The permit system does not stop grog running or sexual assault. It did not stop these things in the past, it will not stop them in the future. These are policing issues unrelated to the permit system.

I do not know if Senator Crossin wants me to take her up on her invitation, but I would be happy to visit communities at some stage in the future with Senator Crossin.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Come fly with me!

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Time is my enemy, Senator Crossin.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

And the weather.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Weather does not worry me.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

It will.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

In the three communities that I went to, I spoke informally to police officers, to government officials and particularly to members of those communities, including people with a leadership role. It seems to me that the key issue is that there needs to be an adequate police presence: Indigenous police, liaison officers or police assistants and police aides. That link between the police and the Indigenous communities is very important. That is the key issue. As I understand it from my formal discussions with a number of police officers, they already have pretty broad powers to deal with the issue of pulling people over. To me, it is a key issue of policing. That, to me, is fundamental. If the argument about the permit system is that it is keeping undesirable people off communities, then I do not believe that that is the strongest argument. I think it is clear from a number of reports that, in terms of grog running and drug running, the perpetrators have been people who have not needed permits.

One issue that does trouble me is that the permit system can be open to abuse. There was a report in the Australian earlier this year relating to the APY lands. I know this does not relate to South Australia, but the principles are still the same or very similar, and I should disclose that, as a member of the South Australian parliament, I attempted a couple of times, unsuccessfully, to change the APY lands act to allow journalists to go onto those lands. Senator Siewert is right that, in the context of what has occurred, these issues—of abuse, of child abuse and of the terrible living conditions in some of these communities—have been around for many years and yet no action has been taken. But there is merit in the argument that, if you have actual scrutiny of these communities, if they are opened up and, at the very least, journalists have access, then you do get some action.

I remember several years ago there were front-page stories in the Adelaide Advertiser by Miles Kemp, a senior journalist, who did get permission to visit the lands, and he reported quite graphically on petrol sniffing. As a result of those reports, the state government were prompted into action. I am sure the government were acting in some way with respect to that, but it spurred them on to spend more money to take further steps in relation to petrol sniffing. And I note, from a coronial inquest that Coroner Johns in South Australia is undertaking into the death of a person in relation to petrol sniffing, that there has been a significant improvement in the APY lands as a result of some very sensible measures that have worked in discouraging kids from being petrol sniffers or taking up petrol sniffing. But that was a clear case where media focus, shining a light on this problem, made a big difference. I have spoken to journalists who had trouble in getting permits. To put it colloquially, they were mucked around, stuffed around, over a number of days on the APY lands, and they put to me that by the time it was—

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

That is not the Territory.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I think Senator Crossin says that that is not true.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

No, I just said that that is not the Territory. There’s a different principle.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I apologise, Senator Crossin. But I think the principle is the same—that, with respect to permits, there is still that discretion and that power on the part of the permit-issuing authority to delay the issue of a permit to any individual. I spoke to two journalists who had a real complaint about getting access to lands when they were aware of some issues that they believed it would be in the public interest to reveal.

There is a claim in relation to the permit system that it can be manipulated by those people who have the power to issue the permits. There have been allegations. I hope Senator Scullion does not mind me mentioning this. There was a claim made with respect to a person whose permit was revoked, and that may have been linked to that person’s political affiliations or getting CLP endorsement. I have not checked the veracity of that. I am not doubting Senator Scullion, but I am concerned that that power can be abused to issue permits, and the key issue here is one of policing. I understand the arguments, but my concern is that the principal arguments that have been put to me in relation to the permit system about undesirable elements can be dealt with by adequate policing and adequate resources—that, on balance, in terms of policing powers, if there are undesirable elements, the police can pull over vehicles and make inquiries. There has been a degree of misinformation in some quarters of communities that this goes even beyond public roads, public buildings and the actual townships to sacred sites. That is not the case.

Senator Crossin has expressed a concern that this is the thin end of the wedge in relation to the abolition of the Northern Territory Land Rights Act, or indeed that that the Northern Territory Land Rights Act could be put under the control of the Territory parliament. I do not support that. That is not my position and I would not support that. So, on balance, I cannot support the retention of the permit system in its current form. It is a vexed issue, it is a difficult issue and it is an issue that I have struggled with. But I believe that there are safeguards in place with adequate policing, and that the permit system has not worked insofar as it has protected, in some cases, people who have done the wrong thing from appropriate levels of scrutiny. I believe that where there is common ground is the belief that these communities do need significantly more resources to deal with huge issues of social disadvantage. The fact that there is still a very significant gap between the life expectancy of Indigenous Australians and non-Indigenous Australians is a matter of great shame. That is my position. I expect I will be criticised for it in some quarters, but it is the best decision I could reach in good conscience.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I am anticipating closing the contributions on this. I did want to just respond briefly to some of Senator Scullion’s points. On the issue of journalists, the ministerial authorisation power, proposed section 70(2BB), allows the minister to specify persons or classes of persons authorised to enter and remain on Aboriginal land without a permit. The ministerial authorisation power operates only for the duration of the emergency response. The previous minister made an authorisation allowing people working on the emergency response access to Aboriginal land without a permit. This bill is refining the authorisation power in order to clarify that authorisations can be limited to particular areas of Aboriginal land. Authorisations will also be able to be issued subject to specified conditions. If a person breaches a condition, they will no longer be covered by the authorisation. These refinements will allow for better targeting and effective authorisations to be made.

Following the passage of the bill, it is proposed that an authorisation be made allowing journalists to visit major communities without a permit. The authorisation would allow journalists to visit communities in their professional capacity to report on events in the communities. We would expect the authorisations to include conditions preventing journalists from entering sacred sites, premises or living areas and from interfering with ceremonies. The government has consulted with the Media, Entertainment and Arts Alliance and the Northern Territory land councils on the details of the proposed authorisation.

On the general issues, the government opposes the amendment moved by Senator Scullion on behalf of the opposition. The opposition has obviously stated that it opposes the restoration of the permit system. I just want to make some points briefly. I referred to them in my earlier remarks at the conclusion of the second reading debate. The permit system has nothing to do with protecting children. That is why we made an election commitment to restore the permit system for major communities. Schedule 3 of this bill restores the permit system for major communities. Policing, income management and improved infrastructure can all be delivered without interfering with the privacy of Aboriginal people. Everyone associated with delivering the emergency response can access Aboriginal land.

We reject the amendment about access roads into Aboriginal communities. The minister has made the decision not to exercise this determination power, in line with our election commitments. We are getting to that shortly, I know, but I am anticipating a reasonably rapid conclusion. We are refining the ministerial authorisation power so that the government can ensure access for journalists to major communities. I have outlined the issues in respect of journalist permits helping to keep grog, drugs and criminals out. The Northern Territory Police Association says that permits are a useful tool in protecting communities. Unfortunately, the opposition continues to simplistically support the abolition of permits. We need to base our policy on evidence and not ideology.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

The question is that schedule 3 stand as printed.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

In speaking on the bill as a whole as there is no amendment in front of us, I would like to speak about schedule 2. I was not in the chamber when the question was put for the opposition’s amendment (9) on sheet 5566 revised. It was in regard to the transport of prohibited or pornographic material. I was not in the chamber to air my voice of ‘no’, and I know that the Senate does take making sure that votes reflect the will of the chamber fairly seriously. With that as a background, I seek leave to have that vote recommitted.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The rest of us who care about this bill were here in the chamber voicing our opinion on it, so I do not think we should be putting the question again. That is my opinion.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I am always happy to recommit a vote if the will of the Senate was not properly reflected or if a senator missed a division et cetera. But I took Senator Fielding to be saying he wanted to vote against it. My understanding was that it was defeated anyway, in which case I do not understand why we would recommit. If Senator Fielding wanted to vote ‘no’ and Senator Xenophon wanted to vote ‘no’ and the result was recorded as negatived, what are we doing?

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

The amendment, when put, would have been put as ‘that schedule 2 stand as printed’. Quite clearly from my second reading debate speech, I was opposed to that schedule. If the vote were recommitted now, with the opposition’s and my vote, schedule 2 would be knocked out from the bill. That would not reflect what is current at the moment.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can I indicate for the sake of clarity that I did indicate that I supported the government earlier in relation to this particular amendment. There may be some ambiguity there. I indicated earlier that there may be some senators who were of the view that I supported the coalition. But in relation to that amendment I supported the government.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Could I outline the events that occurred during that call of the vote. Firstly, the question was put and Senator Bishop, who is in the chamber at present, was in the chair at the time. What occurred was that when the vote was put the first time we called ‘no’, which in effect meant that we were not supporting the schedule to stand as printed. Senator Sherry, who was the duty minister at the time, called the same as we did. Senator Sherry then wanted to know whether we had made the incorrect call. We said no, we had made the correct call and Senator Sherry had in fact made the incorrect call. We accept that; it happens from time to time. It is confusing when you have the reverse onus on the amendments.

The chair, Senator Bishop, put the motion again. At that stage, I think Senator Xenophon was confused as to what was happening with the motion. Senator Xenophon then attempted to speak with our duty shadow minister after it had been put a second time. We wanted to divide on that particular amendment, as we did on amendment (10). For amendments (9) and (10) we had always had the intention to divide because we were unsure of exactly the position of Family First and the Independent, Senator Xenophon. We wanted to test that on the floor of the chamber. In doing so, with the interruption from Senator Xenophon, and Senator Scullion and I in consultation with Senator Xenophon, we missed the opportunity to call for a division. Once that occurred, Senator Scullion got to his feet and indicated that Senator Xenophon was voting with the government and asked where we would go from there. The chair, Senator Bishop, ruled that he had already put the vote, and that was the end of the matter.

Immediately after that I approached the chair privately and also then discussed it with Senator Siewert, Senator Xenophon, the duty minister and also Senator Farrell, who was the duty whip, asking if we could put that vote again. Everyone agreed, and we were going to do it after the next vote. Unfortunately, at 7 pm, at the very end of the last division, we could not put that vote at that particular time. We were going to seek to put that vote again now, but Senator Fielding has come into the chamber and sought it before I had an opportunity to do so. Those are the facts of the matter. I think it would be in good spirit of the Senate to allow that vote to be put again. We may very well not win that vote; I do not know the intention of the two minor parties.

Opposition Senators:

Opposition senators interjecting—

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I understand that potentially we may have Senator Fielding voting with us. We may have Senator Xenophon voting with us. I am not sure. But I think that in the spirit—

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

They may abstain!

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

They may abstain. Thank you, Senator Forshaw. Irrespective of what the outcome would be, it is in the best interests of the Senate and the people of Australia that we put the vote again and enable a division to be called where one was not called because of two errors in the previous calling of the vote.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I reiterate—and perhaps Senator Parry did not hear me earlier—that I made it clear that I am supporting the government in relation to this particular amendment with respect to the transportation of material and defences therein. I just want to reiterate that that is my position. I indicated that before the dinner break as well.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

As I have indicated previously, we have always taken the view that the chamber’s view ought to be properly reflected, and that has been a longstanding position of the Labor Party. But I think some of this has been a bit disingenuous in the sense that what is clear is that, given the indication of the two Independents and the Greens, this will change the vote in that what was carried will now be defeated. I am happy for that to be the case if we are honest about it—and I do not think that contribution was all that frank, Senator Parry—but, if that is your claim, be upfront about it and say that you think the will of the chamber was not reflected and that senators were not in the chamber. Quite frankly, Senator Fielding, we are happy if people miss a division, but to come in and say, ‘I wasn’t here; can we do it again?’ is pushing the courtesies to a great extent.

Having said all that, as long as we are upfront about this—not misleading and not having Senator Xenophon talking or whatever—and if the claim of the opposition is that they did not win the vote because it got mucked up and they would rather that we extend them the courtesy of having the vote again so they can get a different result, and they are prepared to say that, I am prepared to agree to it.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I need to respond to two matters in that. Firstly, we gave the courtesy to Senator Sherry of enabling that vote to be put again. Otherwise, it would have been clearly in our favour without any question. That was the first issue. The second issue is that Senator Fielding was not in the chamber and there was no division—I say through you, Chair, to the Leader of the Government in the Senate—so we did not know the will of the chamber. It was carried on the voices, and clearly Senator Fielding was not in the chamber at the time, so that could not have exposed the will of the chamber without a division. Our intention was to call a division. We were distracted (a) because of Senator Sherry calling it incorrectly and (b) because of the interruption of Senator Xenophon, and the chair indicated that the vote had been put. So I think it is quite clear that we were very tolerant at the time. All we are asking now is to test the floor of the Senate on that particular amendment.

The Temporary Chairman:

Is leave granted for the question to be recommitted?

Leave granted.

The Temporary Chairman:

I put the question again that schedule 2 stand as printed.

Question negatived.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I move opposition amendment (11) on sheet 5566:

(11)  Page 18 (after line 12), after Schedule 3, insert:

Schedule 3A—Access to Aboriginal land

Aboriginal Land Rights (Northern Territory) Act 1976

1  Subsection 70B(2)

Omit “may” (first occurring), substitute “must”.

This is a very simple amendment. This is an issue that simply deals with the current discretion of the minister in whether or not they change regulations or impact on regulations to ensure that the permit system changes are invoked. I am not sure of the exact events, because we are no longer in government, but I am simply assuming that this was a drafting error that was not picked up in the House of Representatives. It certainly was not picked up here in the dozens of hours that we have been here. It is a bit of an old chestnut in politics—‘may’ is one term and ‘must’ is another. One is a compulsion and the other is obviously a matter of discretion. The legislation says that it is a matter of discretion.

As I have indicated before, the Labor Party have been consistent on this matter. During the debate on the intervention, they actually voted against the permit system. They lost that vote. Everybody thought it became law. That in fact was not the case, and my best recollection is that the legislation said, ‘On or before 18 February the minister may make regulations with regard to changing the permit system.’ On 17 February this year, the Minister for Families, Housing, Community Services and Indigenous Affairs released a media statement to say that the permit system currently in place for the use of major roads to communities in the Northern Territory will continue, so certainly any notion that people have had that this is a reinstatement of the permit system is a falsehood. It is no mischief that there has been always been a permit system. You have always been required, in any part of Indigenous land, to have a permit. I think a lot of people were confused by that, and perhaps the media release was not circulated widely enough, but certainly that is the way it is. As I said, I am quite happy to accept the fact that the Labor government have done that—that has been completely consistent with their position.

What I think is so important is that when we go from this place, whatever the vote is on how we go about this matter, this is not a matter of discretion for the minister. It was never intended to be a matter of discretion for the minister and should not have been. When we pass things in this place, we do not say, ‘Whatever you reckon.’ We say that this is the way it should be, and that is why I think it was a drafting error. Our amendment simply puts beyond doubt the fact that the minister actually has to regulate to ensure that there are changes to the permit system that allow economic benefits to flow to these Aboriginal communities.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

We oppose the amendment on two grounds. One is the basic argument about the attempt to undermine the capacity to issue permits where appropriate. This is part of that overall approach by the opposition. The other aspect is that it is a nonsense. It does not have any effect, as far as we are concerned. The idea is that the minister must make a determination, but it does not say about what, where or when. I think it does not make any sense. But, in the sense of the main argument, it is just a continuation of the earlier and longstanding arguments about the role of the permit system.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I accept a couple of your principles, Minister—that it does not really make a great impact. I take you on face value, in that you may not understand why we are putting it forward and you may not understand the importance of it. But the importance is that, without this change—and I think it was a legislative drafting process—on 18 February, the minister would have made the changes to the permit system. We would have been in a considerably different position now. As I have said, it is entirely consistent with Labor policy, and there is no mischief in this.

But I think it is really important that we ensure that, if regulations are to be made and if that is a determination of parliament, that is the way it should be. We should not have a vote in this place about the permit system, vote that the permit system should be changed and then say, ‘Except, of course, if the minister just says, “No, I don’t feel like it”,’ which is what happened last time. There is no mischief, but it was clearly not the intention to say, ‘We are going to give the minister discretion to be able to either change a regulation or not.’ Clearly it was the intent of parliament. Certainly it was my view that that was the case as we went through the permit system. In fact, the minister in her press statement indicated that it would continue on the day before the regulations said it had to be done by. I think that was timely, and, as I said, there is no mischief to it. But it is not the intent of the opposition to have the will of the Senate say, ‘We have to change these things—unless, of course, the minister decides otherwise.’ It really would not be a direction at all.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I want to register the Greens’ opposition to this amendment. We have been through this discussion on the permit system, so I am not going to hold up the chamber any longer, but we do not support this.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I would like to record that Family First supports this. I know this is a new parliament, but the will of the last parliament was that permits be removed. Until the will of the parliament reflects a change to that, that should be the intention of it from there. The parliament so far has not agreed to have those permits put back in place. That is the reason why Family First supports the amendment by the opposition.

Question put:

That the amendment (Senator Scullion’s) be agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (2) on sheet 5555:

(2)    Page 19 (after line 8), at the end of the bill, add:

Schedule 5—Application of National Emergency Response Laws

Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007

1  Section 4

Repeal the section, substitute:

4 Racial Discrimination Act

        (1)    Without limiting the general operation of the Racial Discrimination Act 1975 in relation to the following Acts:

             (a)    Aboriginal Land Rights (Northern Territory) Act 1976;

             (b)    Australian Crime Commission Act 2002;

             (c)    Australian Federal Police Act 1979;

             (d)    Classification (Publications, Films and Computer Games) Act 1995;

                 the provisions of the Racial Discrimination Act 1975 are intended to prevail over the provisions of this Act.

        (2)    The provisions of this Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975.

        (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 , intended to qualify as special measures.

        (4)    Any act done, any decision made and any discretion exercised under or for the purposes of this Act must be consistent with the intended beneficial purpose of this Act.

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

2  Section 5

Repeal the section.

Northern Territory National Emergency Response Act 2007

3  Section 132

Repeal the section, substitute:

132 Racial Discrimination Act

        (1)    The provisions of the Racial Discrimination Act 1975 are intended to prevail over the provisions of this Act.

        (2)    The provisions of this Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975.

        (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 , intended to qualify as special measures.

        (4)    Any act done, any decision made and any discretion exercised under or for the purposes of this Act must be consistent with the intended beneficial purpose of this Act.

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

4  Section 133

Repeal the section.

Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007

5  Section 4

Repeal the section, substitute:

4 Racial Discrimination Act

        (1)    Without limiting the general operation of the Racial Discrimination Act 1975 in relation the Social Security (Administration) Act 1999, the provisions of the Racial Discrimination Act 1975 are intended to prevail over the provisions of this Act and the provisions of the Social Security (Administration) Act 1999.

        (2)    The provisions of this Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975.

        (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 , intended to qualify as special measures.

        (4)    Any act done, any decision made and any discretion exercised under or for the purposes of this Act must be consistent with the intended beneficial purpose of this Act.

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

6  Sections 5, 6 and 7

Repeal the sections.

This is the second part of the amendment that I referred to earlier regarding removing the exemption from the Racial Discrimination Act. The two amendments are designed to reinstate the Racial Discrimination Act. I acknowledge that we have had the substantive debate. I am pleading to the government to have a change of heart and realise that this is implementing what they said they would do but earlier so that the exemption from the Racial Discrimination Act can be applied from now on. It is unjustifiable that they are waiting until a year from now before reinstating the Racial Discrimination Act to ensure that the Northern Territory emergency response and the provisions under that are no longer exempt from the RDA. As I said, we have had the substantive debate, so I simply move the amendment.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

Senator Siewert made the point that we had the debate earlier when Senator Sherry had carriage of the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008 for the government. As we made clear there, the bill before the Senate was crafted to ensure there were no new provisions which exclude the operation of the Racial Discrimination Act and, as the Senate is aware, our response to the review of the Northern Territory emergency response on 23 October was to commit to introducing legislation in the spring sitting of next year to bring the NTER legislation within the scope of the Racial Discrimination Act. I know Senator Siewert was urging us to do that earlier, but that was the view the government took. I do not think we ought to delay too long because, given what has happened to the bill with the amendments carried, the bill will be dead on arrival.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I will just reiterate some of my earlier remarks for the benefit of the minister. I acknowledge the work that is being done by the government. When the previous government dealt with this, it was an emergency response. We acknowledge the time that it takes. It is a very difficult area, and we run the risk that, if extended legal proceedings take place, it will put at risk some of the principal planks of the intervention. That is something the opposition would be opposed to.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.