Community Legal Centres NSW statement on the
Stronger Futures in the Northern Territory Bills
(2011)
October 2012
Position Statement
Community Legal Centres New South Wales (“CLCNSW”) deplores the recent
passing of the Stronger Futures in the Northern Territory Bill 2011, the Stronger
Futures in the Northern Territory (Consequential and Transitional Provisions) Bill
2011 and the Social Security Legislation Amendment Bill 2011. CLCNSW has three
major objections to these bills and the resulting acts:
1. It is most unfortunate that the Stronger Futures bills have not been
subject to specific human rights scrutiny by Parliament in compliance
with the requirements of the Human Rights (Parliamentary Scrutiny) Act
2011 (“the HRPS Act”). In particular, a statement of compatibility has not
been prepared in respect to this bills.
2. There are serious concerns regarding the compatibility of the bills with
human rights.
3. That for want of compatibility and for other reasons, including but not
limited to, a failure to conduct meaningful consultation, abandonment of
the principles of self-determination, and a lack of local ownership and
engagement, The Stronger Futures legislation constitutes an ineffective
policy solution for strengthening Aboriginal and Torres Strait Islander
communities.
CLCNSW advocates that the laws be repealed, or as an absolute minimum, that
the Parliamentary Joint Committee on Human Rights examine the bills and
resulting act for compatibility with human rights; and, if incompatibility is found,
that the laws be amended to protect and promote Human Rights.
1. Legislative procedures and the Stronger Futures bills
The Human Rights (Parliamentary Scrutiny) Act 2011
The Stronger Futures bills were enacted without the accompaniment of a
statement of compatibility with human rights pursuant to s 8(1) of the HRPS Act.
This was despite a call for such a statement by the National Congress of
Australia’s First Peoples in February 2012. The government’s failure to provide a
statement is allegedly due to the fact that the Stronger Futures bills were
introduced to Parliament prior to the commencement of the HRPS Act, and
therefore the Act has no operation with respect to these bills.
Human rights are fundamental and absolute, and should not be circumvented by
such a technicality. The future of the Northern Territory and of all Aboriginal and
Torres Strait Islander peoples is too important for our policy over the next
decade to be determined without consideration of its effect on human rights.
As the bills have now been passed through both houses of Parliament, debate on
the application of sections 8(1) and 7(a) of the HRPS Act is now purely academic.
However putting this aside, under section 7(b) of the HRPS Act, the
Parliamentary Joint Committee has the power to examine Acts for compatibility
with human rights. As this section applies to all Acts, not just those passed after
the commencement of the HRPS Act, CLCNSW implores the Committee to
examine the legislation resulting from these bills.
Passing of the bills
CLCNSW expresses concern over the circumstances under which these bills were
passed on Friday 29 June.
The bills were passed at 2:00am. This was after a 10 hour long sitting of the
Senate during which bills pertaining to Australia’s border protection policy were
debated. This was the last opportunity to legislate before a 6 week break. These
are not the circumstances under which laws pertaining to the future of the
Northern Territory and Aboriginal and Torres Strait Islander peoples should be
debated. Greens leader Senator Christine Milne, Former Chief Justice of the
Family Court of Australia Alistair Nicholson AO QC and the Australian Lawyers
Alliance are just some of the many bodies who have criticised the surreptitious
way these bills were passed, and now CLCNSW adds its voice to that criticism.
Any laws for the Northern Territory and any legislation attempting to address
Aboriginal disadvantage must be given time, focus, and meaningful
parliamentary scrutiny. The sad ancestry of failed past policies from the Stolen
Generation to the initial Northern Territory Intervention should serve as a
reminder to politicians of the need to get the policy right. The cost of yet another
failure is simply unacceptable.
2. Compliance with Human Rights
Special Measures
The Stronger Futures legislation does not explicitly discriminate against any one
racial group, however the application of these laws is likely to disproportionately
affect Aboriginal Australians. This will inevitably be in conflict with the indirect
discrimination provisions of the RDA in section 9(1A).
Nevertheless the Federal Government has asserted that the laws are compatible
with the Racial Discrimination Act 1975 (“the RDA”) by virtue of constituting
‘special measures’ per section 8 of the RDA.
This exception defines special measures by reference to Article 1(4) of the
International Convention of the Elimination of All Forms of Racial Discrimination
(“ICERD”). From this paragraph, there are a number of stated requirements in
order to satisfy the definition of ‘special measures’. These include:
- Measures must be for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals
- These groups or individuals must require such protection
- This protection must be necessary in order to ensure such groups or
individuals equally enjoy or exercise human rights and fundamental
freedoms
- Such measures cannot lead as a consequence to the maintenance of
separate rights for different racial groups after the objectives for
which they were taken have been achieved
Article 2(2) of the ICERD provides some further guidance:
- Measures are to be special and concrete
- Measures must ensure adequate development and protection of certain
racial groups or individuals
- Measures must be for the purpose of guaranteeing them the full and equal
enjoyment of human rights and fundamental freedoms
- Measures shall not lead to the maintenance of unequal or separate
rights for different racial groups after the objectives for which they
were taken have been achieved
General Recommendation 32 made by the Committee on the Elimination of
Racial Discrimination (which the Federal Government is clearly aware of as it is
the first footnote in the Department of FaCSIA’s ‘Assessment of Policy Objectives
with Human Rights: Stronger Futures in the Northern Territory Bill 2012’), also
outlines a number of features which give ‘special measures’ their legal
qualification:
- The objective of special measures must be to advance effective equality
- They must be appropriate, legitimate and necessary
- They must respect the principles of fairness and proportionality
- They must be temporary
- They must be designed and implemented on the basis of need
- Appraisals of the need should be carried out on the basis of accurate data
-
They must be designed and implemented on the basis of prior
consultation with affected communities and the active participation of
such communities
‘Adequate advancement’ in Article 1(4) implies goal-directed
programmes
‘Protection’ in Article 1(4) signifies protection from violations of
human rights, which may be preventative or corrective
Based on the definition of ‘special measures’ as enunciated by these documents,
it is doubtful whether the Stronger Futures legislation can qualify under this
exception. Former Chief Justice of the Family Court of Australia Alistair
Nicholson, AO, QC, has already stated that the Stronger Futures legislation could
fail a potential High Court challenge on this basis.
There has been a colossal failure by the Federal Government to adequately
justify how the Stronger Futures legislation fulfils this legal test. Considering that
the Federal Government itself has stated that one of the most pivotal messages to
come out of its consultations with Aboriginal communities was that compliance
with the RDA was a paramount concern, this failure is as surprising as it is
concerning. Simply stating ‘these are special measures’ is inadequate, as is
paying lip service to the RDA by the empty words ‘this complies with the Racial
Discrimination Act’; indeed wearing robes does not make one a monk.
Consistency
As we have stated, the Federal Government has based the validity of the Stronger
Futures legislation (with respect to its compatibility with the RDA) on the basis
of the ‘special measures’ exception; an exception which in turn based on
international law.
Our contention is that if the Federal Government wishes to rely on international
law in order to justify what would normatively be racially discriminatorily
legislation, then it must also comply with other binding international law. In
essence, it cannot pick and choose which laws it will abide by and which it will
not.
Self-Determination
The Stronger Futures legislation stands in conflict with the fundamental right to
self-determination. This primacy of this right is signified by its positioning in
Article 1(1) of The International Covenant on Civil and Political Rights (which has
been signed and ratified by Australia). This Article reads:
All peoples have the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue their
economic, social and cultural development.
Furthermore paragraph 3 of Article 1 established an affirmative mandate on
signatories (including Australia) to promote the realisation of and respect for,
this right. Articles 3 and 4 of the Declaration on the Rights of Indigenous People also
affirms this right to self-determination.
The Stronger Futures legislation vests a number of powers affecting Aboriginal
communities, not in those communities themselves, but in the Minister for
Families, Community Services and Indigenous Affairs. Examples include, the
provision of alcohol management plans, variation of liquor licences and permits
and declaration of alcohol protected areas etc, the power to make regulations
with respect to Aboriginal land, the placing of licensing conditions on community
stores, and the removal of welfare payments.
These provisions substantially disempower the individuals and communities
they affect, and seemingly amount to a direct breach of the right to selfdetermination. This breach is all the more execrable considering the likelihood of
these provisions to disproportionately affect Aboriginal and Torres Strait
Islander peoples, to whom the denial of this freedom has had such harmful
historical consequences.
Consent
Article 19 of the Declaration on the Rights of Indigenous People reads as follows:
States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order
to obtain their free, prior and informed consent before adopting and
implementing legislative or administrative measures that may affect them.
There is no doubt that the Stronger Futures legislation is such a legislative
measure affecting indigenous peoples, to which this article applies. The
multitude of critical submissions made on the legislation, and the outcry that has
followed the passing of the bills (see below), are anecdotal evidence that this
Article has been breached.
School Attendance and Enrolment Measure (SEAM)
The SEAM provisions of the Stronger Futures Legislation have the serious
potential to be in conflict with the fundamental rights of children as recognised
in international law.
Amendments via the Social Security Legislation Amendment Bill (2011) give the
Federal Government discretionary power to implement SEAM in the Northern
Territory. There is a disturbing inconsistency in these measures with respect to
their abrogation of the freedoms under the Convention on the Rights of the Child
(which has been signed and ratified by Australia).
Article 26(1) recognises the right “for every child… to benefit from social
security” and mandates that State Parties “take the necessary measures to
achieve the full realization of this right in accordance with their national law.”
Article 27(1) recognises “the right of every child to a standard of living” and
Article 27(3) mandates State Parties to “take appropriate measures to assist
parents and others responsible for the child to implement this right and shall in
case of need provide material assistance and support programs.”
Article 28(1) recognises “the right of the child to education”.
SEAM has the potential to abrogate all of these rights. In withholding social
security from a child’s parent or guardian, the child’s right to social security, a
standard of living, and education, are all put it jeopardy. Although Article
28(1)(e) requires State Parties “take measures to encourage regular attendance
at schools” per Article 31(1) of the Vienna Convention on the Law of Treaties, a
treaty must be interpreted “in the light of its object and purpose”. Therefore,
Article 28(1)(e) cannot be read as authorising abrogation of other rights, i.e.
SEAM cannot be justified on the basis of being a incentive mechanism to ensure
school attendance, when such an incentive results in abrogation of the child’s
other rights.
Article 3(1) states that “[i]n all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary
consideration.”
The high-profile case of Minister of State for Immigration and Ethnic Affairs v
Teoh famously found that these articles must be taken into account in the making
of an administrative decision to deport a father.
The same applies to SEAM. CLCNSW does not believe a decision to deprive
parents of income support, irrespective the rationale behind such the scheme,
can ever be one that puts the child’s interests first. This ‘sins of the father’
approach is indignant to Aboriginal children.
Alternatives to address Indigenous non-attendance rates have been suggested by
Northern Territory Elders and community representatives in the form of
rewards for attendance rather than punitive measures. Furthermore anecdotal
evidence has made it clear a large part of the problem behind these nonattendance rates is due to dissatisfaction amongst Aboriginal communities with
the current curriculum, and therefore a preferable solution would be to address
these concerns. This means the employment of more Aboriginal teachers, the
introduction of bilingualism in schools and an incorporation of traditional
knowledge in the syllabus – all of which have been proposed but not adopted in
the Stronger Futures legislation.
Social-Security Generally
Article 9 of the International Covenant on Economic, Social and Cultural Rights
(signed and ratified by Australia) recognises the right of everyone to social security.
It should be noted that the right to social security may not equate to the right to
receive it, as of course such government support is allocated on a needs basis.
However the right itself is fundamental such that receipt of such security cannot be
deprived on the basis of non-means tested bases. SEAM is such a basis on which
social security is divested, and therefore it may very likely be a breach of this human
right.
3. Inefficacy of the Stronger Futures legislation
in·ef·fi·ca·cy [in-ef-i-kuh-see]
noun.
The state or quality of being incapable of producing a desired effect or
result.
The Stronger Futures legislation is the successor to the Northern Territory
National Emergency Response Bill (2007) and its accompanying legislation;
legislation that made no apology for its controversy and questionable
compatibility with the Racial Discrimination Act (1975). When the intervention
was announced, then Prime Minister John Howard defended it with the following
statement:
It is interventionist, it does push aside the role of the Territory to some
degree; I accept that. But what matters more: the constitutional niceties
or the care and protection of young children?
Such a justification under a utilitarian ideology, rests on the premise that the
objective achieved is such that it warrants compromise if not total abandonment
of a society’s values (or in that case, laws); for the end to justify the means, the
‘little evil’ of the means must result in a ‘greater good’ in the ends.
There is a real danger that ‘Stronger’ Futures will result in nothing of the sort. Dr
Dafwa Al-Yaman and Dr Daryl Higgins’ report, “Closing the gap: what works to
overcome Indigenous disadvantage” highlighted a number of features that are
requisite for any policy affecting Aboriginal and Torres Strait Islander peoples to
succeed. When one goes through their list, none seem to have been considered or
incorporated into the Stronger Futures legislation.
There has been little community involvement and engagement in the form of
consultation with Indigenous communities, as demonstrated by the plethora of
outcries against this legislation and in particular the inadequacy of the
consultation that was held. There has been little respect for language and culture,
as evinced by the failure of the legislation to reform the education curriculum as
a means to address non-attendance rates of Aboriginal children. There has been
little regard to recognising underlying social detriments or to understanding that
issues are complex and contextual, as demonstrated by the punitive measures of
SEAM.
Compulsory Income Management
Furthermore there is a lack of evidence to support the efficacy of many of the
policies contained in the Stronger Futures legislation. For example, there has
been no evidence to suggest that income management results in better outcomes
for the people it affects or the children under their care. The Menzies School of
Health, Darwin has found that income management leads to no reduction in
tobacco or cigaratte sales, and no increase in fruit or vegetable sales. At the same
time, those subjected to such a scheme are stigmatised and humiliated. The
financial cost to the taxpayer is also unacceptable, with income management in
the Northern Territory costing $4400.00 per person per year in administration.
There are also potential undesirable economic impacts, such as inflation in
prices of ‘priority items’ in ‘government approved’ stores, through the removal of
the free market mechanisms of price competition for those forced onto a basics
card.
As income management is being implemented, not just in the Northern Territory,
but in five other trial sights, including Bankstown NSW, this issue is all the more
pertinent to CLCNSW. Like the Stronger Futures legislation, the choice to
implement this policy in Bankstown will disproportionately affect a number of
minorities. Empowering people to make the right choices for themselves is
categorically preferable to this extension of the Nanny State ideology, and
CLCNSW advocates for an abandonment of compulsory income management in
both NSW and Australia generally.
Punitive Measures
The Stronger Futures legislation favours punitive measures in the pursuit of its
policy goals. Punitive measures have been shown to fail with respect to
Indigenous issues. Perhaps the best example of this is the pinnacle of punitive
measures in Australian society – criminal justice. Aboriginal Australians are
hugely overrepresented in Australian prisons; Aboriginal prisoners represent
27% of the total full-time prisoner population, despite Aboriginal and Torres
Strait Islander peoples making up 2% of the Australian population. Indigenous
Australians are 14 times more likely to be imprisoned than non-Indigenous
Australians. Recidivism and reconviction rates are higher than non-Aboriginal
prisoners. Nearly three-quarters (74%) of Aboriginal and Torres Strait Islander
prisoners had a prior adult imprisonment under sentence, compared with just
under half (48%) of non-Indigenous prisoners. The failure of criminal justice to
deter crime serves as a red flag for the monumental failure of punitive measures
with respect to Australia’s First Peoples, and therefore, the Federal Government
should abandoned this approach and instead start working and engaging with
communities to developed consensus based solutions.
Lack of Consultation
Whether adequate consultation has been conducted in the framing of the
Stronger Futures legislation is contested between the Federal Government and
Aboriginal communities and individuals that have spoken out against the
legislation. In such a disagreement, the perspective of the Aboriginal Australians
themselves (rather than the Government) must be given precedence (as it is in
fact these communities with whom consultations must be made). To a very large
extent, the satisfaction of consultation requirements, must be assessed on the
subjective basis of whether Aboriginal communities feel they have been
adequately consulted, as satisfaction of this is precursory to all the features of a
policy that ensure its success; engagement, ownership etc.
The fact that the consultations that were made were not transcribed, also
undermines the legitimacy of the Federal Government’s claim that the
consultation process was adequate.
Over 450 submissions on the bills were made. Of those, a reported 95% of them
were largely opposed to the legislation.
Since the bills were passed, there has been an outcry from the Aboriginal
community, including: Dr Djiniyini Gondarra OAM on behalf of the Yolngu People
of east Arnhem Land and the Yolngu Nations Assesmbly; the Ampilatwatja
Nations, the Gurindji People of Daguragu and Kalkaringi, Rosalie Kunoth Monks
on behalf of the Alyawaar Nation, National Aboriginal and Torres Strait Islander
Legal Services, the Aboriginal and Torres Strait Islander Social Justice
Commissioner Mick Gooda, Kim Hill on behalf of the Northern Land Council, the
National Aboriginal Community Controlled Health Organisations, the Secretariat
of National Aboriginal and Islander Child Care, the National Congress of
Australia’s First Peoples, and the National Native Title Council.
Non-indigenous bodies have also been as vocal in their opposition to the
legislation. Opponents of Stronger Futures include Amnesty International, the
United Nations High Commissioner for Human Rights, Former Chief Justice of the
Family Court of Australia Alistair Nicholson AO QC, Catholic Religious Australia,
the Australian Greens, Australian Lawyers for Human Rights, the Stand for
Freedom Campaign, the Uniting Church, Australians for Native Title and
Reconciliation, Concerned Australians and the Australian Lawyers Alliance.
Such widespread and uniform opposition should at the very least give the
Federal Government pause for thought on whether such a policy that lacks
support from any section of its stakeholders, has any chance to succeed. What
this opposition does display is that the consultation process has clearly been
inadequate.
Racial Discrimination
The Federal Government has asserted that the Stronger Futures legislation is in
conformity with the RDA. What they have failed to realise is what is far more
important than the legal consistency between federal statutes, or even the legal
opinion of the High Court, is the perception of Australia’s First Peoples who are
subject to these laws.
Irrespective of whether these laws are racist according to any legal or
philosophical authority, there is now an overload of anecdotal evidence that the
perception of Aboriginal Australians is that these laws target them to the
exclusion of others. This is not to mention the likely potential for these laws to
indirectly and disproportionately discriminate in their application. For any
policy affecting Aboriginal and Torres Strait Islander peoples, the Federal
Government must ensure that the law both is and appears to be, nondiscriminatory.
Self Determination, Local Ownership and Culture
Government has never understood and still fails to understand, that badly
needed funds must be accompanied by the willingness to allow us to
determine the direction of our lives.
These words by Dr Djiniyini Gondarra OAM and Rosalie Kunoth Monks OAM
express what is an unconditional requirement for any policy affecting Australia’s
First People. A policy done for Aboriginal and Torres Strait Islander peoples, and
not with them, is doomed to fail. The Stronger Futures legislation displays all the
hallmarks of the former, most prominently the centralisation of power in the sole
discretion of the Minister, the failure to adequately conduct consultations with
communities and subsequently address their concerns, are all antithetical to the
principles of self determination.
Conclusion
The Stronger Futures legislation is not only an inadequate response to Aboriginal
disadvantage, but it is counter-productive to realising the goal of true equality
for all Australians. The dubious circumstances under which these laws were
enacted, their potential conflict with human rights, and their utter inability to
achieve the desired result of racial equality, are as patent as they are concerning.
CLCNSW calls on the Federal Government to have a real hard look at whether
this is what they desire for Aboriginal and Torres Strait Islander peoples for the
next ten years.