Law Seminar 2007: The Northern Territory National Emergency Response Legislation by Dr Sarah Pritchard

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THE NORTHERN TERRITORY NATIONAL EMERGENCY RESPONSE LEGISLATION:

 NOTES FOR SEMINAR AT THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ON 17 SEPTEMBER 2007

 Dr Sarah Pritchard

INTRODUCTION

1. Allow me first to acknowledge the traditional owners of the land on which we are meeting, the Gadigal clan of the Eora nation.
2. Second, thanks to the Human Rights and Equal Opportunity Commission, and especially the Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, for the invitation to speak at today’s seminar.
3. My comments address some of the human rights issues presented by the so-called Northern Territory National Emergency Response Legislation. The three main components of the legislation are:
   • the Northern Territory National Emergency Response Act 2007 (“the National Emergency Response Act”);
   • the Families, Community Services and Indigenous Affairs Amendment (Northern Territory National Emergency Response) Bill 2007 (“the FACSIA Act”); and
   • the Social Security and Other Legislation Amendment (Welfare Reform) Act 2007 (“the WR Act”).
4. The “Emergency Response” legislation raises fundamental and far-reaching issues of concern in relation to the prohibition of racial discrimination, the human rights – including, in particular, land rights - of Aboriginal people, and compensation on "just terms".  
5. In my opinion, a number of the key provisions may contravene the fundamental human rights of Aboriginal people in the Northern Territory, and offend Australia's international human rights obligations. Of particular concern, from a human rights perspective, is the lack of consultation with the communities concerned, and the haste with which the legislation was prepared, and enacted. A number of the central components of the legislation raise issues in terms of individual civil and political rights, compounded by the racially discriminatory singling out of declared relevant Northern Territory areas for particular treatment. The legislation contains elements which are neither necessary nor justifiable as measures to address undoubtedly extremely serious problems of child sexual abuse highlighted in the June 2007 reportof the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, “Little Children are Sacred”.
6. Perhaps the most discriminatory aspect of the “Emergency Response” legislation are the provisions which suggest a land reform agenda unrelated to the protection of children from those who abuse them. These include provisions for the compulsory acquisition of Aboriginal townships for 5 years (National Emergency Response Act, Part 4), and which weaken the system for Aboriginal land permits (FACSIA Act, Schedule 4).

OVERVIEW OF MAIN PROVISIONS OF “EMERGENCY RESPONSE” LEGISLATION

3. In a presentation of this kind, it is possible to provide only a broad brush summary of the main provisions of this extremely complex legislation. The package is more than 500 pages in length. It interacts with numerous other complex statutory schemes, including the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the ALRA”), the Racial Discrimination Act 1975 (Cth) (“the RDA”), the Native Title Act 1993 (Cth), the Northern Territory (Self-Government) Act 1978 (Cth)and related legislation, the Social Security Act 1991 (Cth), and the Income Tax Assessment Act 1993 (Cth). The devil is, notoriously, in the detail.

National Emergency Response Act

Part 2 – Alcohol

4. Part 2 of the National Emergency Response Act introduces measures to modify the Northern Territory's Liquor Act 1d978, Liquor Regulations and Police Administration Act 1978 to give effect to restrictions on the possession, consumption, sale and transportation of liquor within prescribed areas. There is an exemption for people engaged in recreational boating and commercial fishing.

Part 3 – Filtering of publicly-funded computers

5. Part 3 introduces a scheme of accountability intended to prevent, and detect, the misuse of publicly-funded computers located within prescribed areas.

Part 4 – Acquisition of rights, titles and interest in land

6. Amongst the most controversial provisions of the legislation is Part 4 of the National Emergency Response Act, which provides for the immediate and later acquisition of five-year leases over certain Aboriginal townships in the Northern Territory for the purposes of the emergency response.
7. A “reasonable amount of compensation” will be paid for any acquisition of property if the requirement for just terms compensation in section 51(xxxi) of the Constitution applies.
8. Part 4 also provides for the Federal Government to exercise the powers of the Northern Territory Government to forfeit or resume certain leases known as town camps during the five-year period of the emergency response, and the option of acquiring a freehold interest over these areas.

Part 5 – Business management areas

9. Part 5 provides, inter alia, for 'Commonwealth management in business management areas'. Division 4 of Part 5 modifies Northern Territory legislation, so far as is necessary, in order to provide the Commonwealth with the same powers as the Northern Territory. These amendments bring 'community services entities' in 'business management areas' under external administration.

Part 6 – Bail and sentencing

10. Part 6 amends Northern Territory law to prohibit relevant authorities, when exercising bail or sentencing discretion in relation to Northern Territory offences, from taking into consideration any form of customary law or cultural practice to lessen or aggravate the seriousness of the criminal behaviour of offenders and alleged offenders.

Part 7 – Licensing of community stores

11. Part 7 introduces a licensing regime that will apply to persons who operate community stores in indigenous communities.

Welfare Payment Reform Act

12. The Welfare Payment Reform Act amends Commonwealth welfare legislation to provide new national welfare measures “to help address child neglect and encourage school attendance”.

Schedule 1 – Income management regime

13. Schedule 1 to the Welfare Payment Reform Act establishes income management regimes in relation to the Northern Territory and Cape York, as well as nationally. Schedule 1, inter alia, inserts a new Part, Part 3B into the Social Security Administration Act 1999 (Cth) which identifies the broad circumstances in which the income management regime provisions are to be applied. In broad terms, Part 3 B provides that a person may become subject to the income management regime because:
    • the person lives in a declared relevant Northern Territory area; or
    • a child protection officer of a State or Territory requires the person to be subject to the income management regime; or
    • the person, or the person's partner, has a child who does not meet school enrolment requirements; or
    • the person, or the person's partner, has a child who has unsatisfactory school attendance; or
    • the Queensland Commission requires the person to be subject to the income management regime.
14. A person who is subject to the income management regime has an income management account, to which amounts deducted from the person's welfare payments are credited. Amounts are debited from the person's income management account for the purposes of enabling the Secretary to take action directed towards meeting the priority needs of the person, the person's partner, the person's children, any other dependants of the person.
15. In general terms, a person is subject to the income management regime in respect of a relevant Northern Territory area if, at a particular time (“the testtime”):
    
    1. the person, or the person's partner, is an eligible recipient of a welfare payment; and
    2. the person was physically present overnight in a relevant Northern Territory area at any time during the period: (i)  beginning at the start of 21 June 2007; and (ii)  ending at the end of the most recent instalment period in relation to the welfare payment; and
    3. the relevant Northern Territory area is a declared relevant Northern Territory area; and
    4. the person is not an exempt Northern Territory person in relation to the relevant Northern Territory area.
16. There are two mechanisms for determining that a person is an exempt Northern Territory person in relation to a relevant Northern Territory area. First, the Secretary may, by written notice, determine that the person is an exempt Northern Territory person in relation to the relevant area. In deciding whether to make a determination, the Secretary must have regard to matters including the person's family and kinship relationships;  the area in which the person is usually physically present overnight;  the area or areas in which the person's assets are located; whether the person has been physically present in any of the relevant Northern Territory areas on a temporary basis, and, if so the circumstances that resulted in the person being so physically present in the area concerned. A determination of this kind is not a legislative instrument. Second, the Minister may, by legislative instrument, determine that a specified person is an exempt Northern Territory person. This mechanism permits specification by class: see s 13(3) of the Legislative Instruments Act 2003 (Cth).

Schedule 3– Northern Territory CDEP transitional payment

17. Schedule 3 to the Welfare Payment Reform Act inserts a new part – “Part 2.27 - Northern Territory CDEP transition payment” – into the Social Security Act 1991 (Cth).
18. Under the Community Development Employment Projects (“CDEP”) program which commenced in 1977, members of participating Aboriginal and Torres Strait Islander communities or organisations can forgo any Centrelink Income Support benefit (except Abstudy or full time student Youth Allowance) for a wages grant paid to the community.
19. Beginning in September 2007, the CDEP Program in the Northern Territory will be progressively replaced with other "employment services". According to the Explanatory Memorandum, CDEP program participants, on a community-by-community basis, will move into “real jobs, training or to more appropriate income support”, including Work for the Dole.

FACSIA Act

Schedule 1 – Prohibited material

20. Schedule 1 to the FACSIA Act inserts a new Part 10 into the Classification (Publications, Films and Computer Games) Act 1995 (Cth). This part creates offences in relation to the possession and supply of pornographic material in prescribed areas. It also provides for new police powers in relation to the seizure and forfeiture of prohibited material.

Schedule 2 – Law enforcement

21. Schedule 2 to the FACSIA Act amends Commonwealth law enforcement legislation (relevantly, the Australian Crime Commission Act 2002 and the Australian Federal Police Act 1979)relating to the powers and functions of the Australian Crime Commission and the Australian Federal Police to “facilitate implementation of the Australian Government's emergency measures to protect Aboriginal children in the Northern Territory from harm”.

Schedule 4 – Access to Aboriginal land

22. Schedule 4 to the FACSIA makes significant changes to provisions in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) governing access to Aboriginal land. The purpose of these amendments, according to the Explanatory Memorandum, is “to increase interaction with the wider community and promote economic activity”.
23. Most controversially, Schedule 4 contains provisions removing the requirement in the ALRA for people to obtain permits to enter and remain on certain areas of Aboriginal land, including common areas of townships, road corridors, airstrips and boat landings.
24. It also provides for a long list of people who may enter or remain on Aboriginal land, including government officials and members of Parliament.

HUMAN RIGHTS CONCERNS

25. Again, in a presentation of this kind, it is possible to provide only a very broad overview of some of the main human rights concerns arising from the provisions of this complex and detailed legislative package.

Timing and consultation

26. Of immediate concern from a human rights perspective is the lack of any consultation by the Federal Government in the preparation of the "emergency response" with affected Aboriginal communities, agencies and relevant experts, as well as the woefully inadequate timetable for considering the proposed legislation before its passage through both Houses of Parliament.
27. On any view, the “Emergency Response” legislation was prepared and presented to Parliament with extraordinary haste.
28. On 15 June 2007, the report of the Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, co-chaired by Patricia Anderson and Rex Wild QC, was released. The first recommendation of the report - Little Children are Sacred ­ - was:
    

    “Leadership

    1. That Aboriginal child sexual abuse in the Northern Territory be designated as an issue of urgent national significance by both the Australian and Northern Territory Governments, and both governments immediately establish a collaborative partnership with a Memorandum of Understanding to specifically address the protection of Aboriginal children from sexual abuse. It is critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities.” (emphasis added)

29. Less than one week after the release of the Little Children are Sacred report, and in disregard of its first recommendation, the Prime Minister announced that in response to the “national emergency” revealed by the report, the Federal Government would legislate unilaterally to intervene in the Northern Territory.
30. The 21 June 2007 media release of the Minister for Families, Community Services and Indigenous Affairs called the Little Children are Scared reportin aid to justify the styling of its response to “the national emergency”, quoting selectively from the first recommendation:
    

    “The immediate nature of the Australian Government's response reflects the very first recommendation of the Little Children are Sacred report into the protection of Aboriginal children from child abuse in the Northern Territory which said: "That Aboriginal child sexual abuse in the Northern territory be designated as an issue of urgent national significance by both the Australian and Northern Territory Governments…."

31. On 6 August 2007, 47 days after the announcement of the “emergency response”, and less than 24 hours after first providing to the Opposition parties and relevant stakeholders, including peak indigenous bodies, drafts of the proposed legislation, the Government introduced the Bills in the House of Representatives. The Bills were passed in the House in a single afternoon. The Senate was given less than one week to perform its function as a house of review.
32. It is striking that the “Emergency Response” legislation is silent on a majority of the recommendations in the Little Children are Sacred report. Despite the professed concern of its sponsor with the welfare of little children, specific recognition of the rights of children is difficult to discern amongst the myriad of complex changes to the administration of Aboriginal affairs in the Northern Territory. Particularly conspicuous are elements – in particular, in relation to land reform – which are not the subject of any recommendations by the authors. The response of one of the reports, co-author’s Patricia Anderson, to the package has been reported as follows:
    

    “Aboriginal families and Aboriginal people do want to own this problem, they want to be part of solving it. They want it fixed, they are sick and tired of their communities being sick …

     '[But] if we do this top down as proposed, there's a danger of it being seen as a cynical exercise.

    There's a real opportunity here to once and for all do something .... We need extraordinary interventions but not at the risk of infringing our fundamental human rights.”

33. The process leading to the enactment of the legislation was one which did not even pay lip service to the right of indigenous people in the Northern Territory to be consulted in relation to decisions affecting their rights and interests. Such a right is well-established in international human rights jurisprudence. For example, the Committee on the Elimination of All Forms of Racial Discrimination has confirmed the specific relevance of the Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) in securing the distinct rights of indigenous peoples, as indigenous peoples. On 18 August 1997, the Committee adopted a far-ranging and ground-breaking General Recommendation concerning Indigenous Peoples (General Recommendation XXIII(51)). The Committee called upon States parties to CERD to take a series of measures, including:
    

    “to ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent”. (emphasis added)

34. More recently, on 13 September 2007, the United Nations General Assembly, with an overwhelming majority of 143 votes in favour, only 4 negative votes (Canada, Australia, New Zealand, United States) and 11 abstentions, adopted the Declaration on the Rights of Indigenous Peoples. In some way or another, nearly all of the Declaration’s bear upon the issues arising from the “Emergency Response” legislation. Of most immediate relevance, perhaps, is article 19 which provides:
    

    “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.”

Racial discrimination

35. Also of considerable concern from a human rights perspective is the almost cavalier approach taken by the  “Emergency Response” legislation to Australia’s international obligations in relation to the prohibition of racial discrimination, and to the provisions of the Racial Discrimination Act 1975 (Cth). 
36. Section 132 of the NER Act provides: 
    

    “(1) The provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.

    (2) The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.

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

37. The inclusion in legislation enacted in 2007 by the Australian Parliament of a provision specifically excluding the operation of the RDA is disappointing to say the least. Such an approach places Australia in direct contravention of its obligations under relevant international instruments, most relevantly CERD.
38. Both the Government, and the Leader of the Opposition in the House of Representatives on 6 August 2007, have contended that that the “Emergency Response” legislation is consistent with the RDA. If such claims were correct, the Government and its advisers would not have considered it necessary to suspend the operation of the RDA. The position is, in my opinion, as described by former Federal Court Judge, Murray Wilcox, namely, that the legislation is “constitutionally valid, but discriminatory in the extreme”. 
39. By suspending the operation of the RDA and, at the same time, characterisng the provisions as “special measures” for the purposes of the RDA, Parliament is, in effect, having a bet each way. In any event, the claimed justification of the provisions of the legislation, and of acts done under or for the purposes of those provisions, as “special measures” for the purposes of the RDA is highly problematic.  Article 1(4) of CERD provides that special measures are:
    

    “measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure equal enjoyment or exercise of human rights and fundamental freedom, provided that such measures do not lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved ”.

40. International jurisprudence requires special measures to be a “reasonable and proportionate means of achieving substantial equality.” The United Nations Human Rights Committee, in its 1989 General Comment on Non-Discrimination pointed out that the “special measures” provisions in international human rights treaties are intended to permit, for a time, affirmative action or preferential treatment:
    

    “10. The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.”

41. It is difficult to see how the protection of “special measures”, or measures of so-called affirmative action, is available to justify a number of critical aspects of the “Emergency Response” legislation. In particular, proposals to weaken the permit system and to compulsorily acquire Aboriginal land have no demonstrated connection to the problems of sexual and substance abuse, and can not be regarded as related to the purpose of securing the “adequate advancement” of the targeted communities.
42. To the contrary, proposed changes to the permit system and Aboriginal land ownership involve weakening Aboriginal freehold title, as opposed to the freehold title of other property owners, and are racially discriminatory at a fundamental level.
43. There can be little doubt as to the utility of “special measures” in providing an avenue to secure the validity of State and Territory laws to protect women and children who are at risk.  Thus, for more than a decade, the Human Rights and Equal Opportunity Commission has supported the voluntary introduction of alcohol restrictions in some indigenous communities as a special measure on the basis that social benefits are likely to result in reduced violence and abuse and improved public safety.   However, this is in the context of communities seeking to avoid a potential problem of illegality under the RDA in circumstances where Aboriginal communities negotiate with publicans, other distributors of alcohol, the Liquor Commission, local councils and the police to prohibit or restrict purchases of alcohol by their members. Moreover, HREOC has consistently emphasised that such restrictions should be part of a broad range of measures to address the causes of alcoholism, rehabilitation and underlying social disadvantage.
44. In determining whether such discriminatory restrictions can be saved as “special measures”, the wishes of the community to whom the restrictions apply are critical. In its seminal 1995 Alcohol Report, HREOC concluded that alcohol restrictions imposed upon Aboriginal groups as a result of government policies which are incompatible with the policy of the community will not be special measures.
45. It is settled jurisprudence that the sole purpose of special measures must be securing adequate advancement of the beneficiaries in order that they may enjoy and exercise human rights and fundamental freedoms equally with others. The concept of “advancement” is not a paternalistic concept, determined by government alone.  As Brennan J observed in Gerhardy v Brown (1985) 159 CLR 70:
    

    “A special measure must have the sole purpose of securing advancement, but what is "advancement"?  … The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit.  The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement.  The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them.” 

46. In its recent (2004) General Recommendation No 25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures, the UN Committee on the Elimination of Discrimination Against Women noted:
    

    “The Committee recommends that States parties ensure that women in general, and affected groups of women in particular, have a role in the design, implementation and evaluation of such programmes. Collaboration and consultation with civil society and non-governmental organizations representing various groups of women is especially recommended.”

47. On proper analysis, there is a strong argument that critical aspects of the “Emergency Response” legislation can not be characterised as special measures, and hence offend the prohibition of racial discrimination in CERD and the RDA. This is because: 
    • the wishes of the putative beneficiaries of the measures were not sought to be ascertained; and
    • various of the measures do not represent a reasonable and proportionate means of addressing child abuse and violence occurring in some Aboriginal communities in the Northern Territory, but instead contravene the rights of indigenous people in the Northern Territory to culture, history, language, customs and way of life, including the right to own and control their lands and resources, and are contrary to the equal enjoyment or exercise of human rights and fundamental freedoms.

Changes to the permit system

48. As noted, Schedule 4 to the FACSIA Act contains amendments to the ALRA relating to the permit system, and which prevent Aboriginal people from excluding or removing unwanted elements from common areas of townships, access roads, airstrips and boat landings.
49. In his Second Reading Speech presenting the FACSIA Bill, the Minister stated:
    

    “The current permit system has not prevented child abuse, violence or drug and alcohol running. It has helped create closed communities which can, and do, hide problems from public scrutiny.”

50. It is significant that the permit system is not the subject of any recommendation of the “Little Children Are Sacred” report. In numerous submissions to the one day hearing of the Senate Legal and Constitutional References Committee into the proposed legislation, Aboriginal organisations argued that the permit system provides an important policing tool in remote communities, in which the application of the law of trespass is simply not practical. These submissions were supported by the President of the Northern Territory Police Association President Vince Kelly:
    

    "The Federal Government has failed to make a case in my view, about the connection between sexual assault in Indigenous communities and the permit system. These communities aren't like anywhere else in Australia; otherwise the Federal Government wouldn't be intervening in this matter. So to simply roll up the permit system I think is going to lead to problems that have probably been identified by Indigenous people around the Northern Territory".

51. Similarly, the Police Federation Australia submitted that:
    

    “In relation to the long-standing permit system for access to Aboriginal communities, the PFA is of the view that the Australian Government has failed to make the case that there is any connection between the permit system and child sexual abuse in Aboriginal communities. Therefore, changes to the permit system are unwarranted. …

    Operational police on the ground in the Northern Territory believe that the permit system is a useful tool in policing the communities, particularly in policing alcohol and drug-related crime. It would be most unfortunate if by opening up the permit system in the larger public townships and the connecting road corridors as the Government intends, law enforcement efforts to address the 'rivers of grog', the distribution of pornography, and the drug running and petrol sniffing were made more difficult.”

52. Of particular significance, from a human rights perspective, is that the changes to the permit system involve an erosion of the freehold rights and interests Aboriginal people hold under the ALRA. As a result of the amendments to the ALRA, the Aboriginal owners of freehold land in the Northern Territory will not have the right to say who may, or may not, come on to their property.  As Mr Justice Woodward said in the report of the 1974 Royal Commission into Aboriginal land rights:
    

    “The most important proof of Aboriginal ownership of land will be the right to exclude from it those who are not welcome.”

Compulsory acquisition of 5 year leases

53. Part 4 of the NER Act provides for the compulsory acquisition of approximately 70 Aboriginal townships and settlements in the Northern Territory. Five year leases will be compulsorily acquired by the Commonwealth using powers under s 51(xxxi) of the Constitution.  Existing interests will survive following the expiry or cancellation of the 5 year leases.  Native title interests will be suspended for that period, and the procedures of the Native Title Act 1993 relating to future acts, requiring notification, consultation etc will not operate: s 51.
54. In his Second Reading Speech, the Minister stated:
    

    “The leases will give the government the unconditional access to land and assets required to facilitate the early repair of buildings and infrastructure.”

55. However, again, no justification was provided for compulsory acquisition on the scale proposed, or at all, to achieve the Government’s aims. In particular, there was no recognition that Aboriginal communities might wish to co-operate with the Government to obtain such desperately needed repairs and infrastructure development, and to ensure that they are implemented in a sustainable way.
56. Such a high-handed approach to the property rights of Aboriginal people in the Northern Territory is contrary to the international human rights jurisprudence to which I have referred, as well as to the first recommendation of the “Little Children Are Sacred” report, which provides, in part, that it is “critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities.”

Compensation

57. In Division 4 of Part 4 of the NER Act, s 60(2) provides for payment of a “reasonable amount of compensation” for any acquisition made in accordance with Part 4 if the acquisition is one to which the constitutional entitlement to “just terms” compensation under s 51(xxxi) of the Constitution applies: s 60(2) (emphasis added).
58. Section 60(1) of the NER Act disapplies s 50(2) of the Northern Territory (Self Government) Act 1978, which would otherwise have made for a statutory entitlement to just terms compensation in respect of any such acquisition.
59. It is by no means clear that s 51(xxxi) of the Constitution provides the basis for a constitutional entitlement to compensation for an acquisition of property in the Northern Territory. Under current High Court authority (Teori Tau v The Commonwealth (1969) 119 CLR 564, as limited by Newcrest Mining (WA) Limited v Commonwealth (1997) 190 CLR 513), there is no requirement to pay compensation for an acquisition of property where only the Territories power in s 122 of the Constitution is relied on.
60. Complex constitutional litigation may be necessary to establish whether there is any constitutional entitlement to “just terms” compensation under s 51(xxxi) of the Constitution. The Government has provided no explanation as to why s 50(2) of the Northern Territory (Self Government) Act 1978 has been disapplied, and why the statutory procedures for compensation displaced. These include not only the procedural rights under the ALRA, but also the criteria for deteremining compensation.
61. Moreover, the uncertainty surrounding the existence of any obligation to provide compensation for the compulsory acquisition of 5 year leases also extends to native title rights, as the future act regime in the Native Title Act 1993 has been disapplied:  s 51 of the NER Act.  It is extraordinary that an acquisition of native title in Western Australia or Queensland would most probably have to be compensated in these circumstances, but not in the Northern Territory.
62. The Minister for Indigenous Affairs has commented that compensation to indigenous people could be paid “in kind” from services and infrastructure1, presumably the same services and infrastructure Australians dwelling in urban areas take for granted.
63. Accordingly, despite claims by the Government that there will be “just terms” compensation for any compulsory acquisition of a 5 year lease, the “Emergency Response” legislation has been drafted to avoid, to the extent possible, the obligation to compensate Aboriginal people in the Northern Territory ensure that as little, if any, monetary compensation will be paid. The discrimination in this approach is manifest. As Sean Brennan argued in the Gilbert and Tobin Centre for Public Law’s submission to the Senate Legal and Constitutional References Committee’s one day hearing into the proposed legislation:
    

     “A non-Aboriginal property holder in the Northern Territory whose property rights are taken away by government has access to a statutory compensation regime. Why not accord the same respect to Aboriginal property rights in this instance? Why should traditional owners have to climb over numerous additional legal obstacles to obtain compensation, by proving that a constitutional ‘acquisition of property’ has occurred?

    This relegates Aboriginal property rights to a lower level of legal protection. Whether intentional or not, it has the effect of capitalising upon numerous complexities and doubts surrounding the meaning of section 51(xxxi), to the advantage of the Commonwealth and to the disadvantage of Aboriginal people whose sole valuable asset is frequently their property rights.”

64. Also of concern in Part 4 of the NER Act is s 54 – a so-called Henry VIII clause – which enables the Minister, by legislative instrument, to specify a law, or a provision of a law, of the Commonwealth, which law or provision has no effect to the extent that it would regulate, hinder or prevent the doing of an act in relation to the affected land.

Cultural background and customary law

65. Part 6 of the NER Act contains provisions prohibiting the consideration of the cultural background or customary laws of an offender in mitigation (or aggravation) in decision-making in relation to bail and in sentencing. 
66. The blanket prohibition on taking into consideration any form of customary law or cultural practice in the exercise of discretion in relation to bail applications and in determining criminal sentences is problematic from a human rights perspective because, as the Law Council of Australia has argued:
    • it requires decision-makers to treat Aboriginal and Torres Strait Islanders as if they do not belong to a specific cultural group; and
    • results in more Aboriginal people being incarcerated, for longer periods and with fewer options for rehabilitation within their communities; and undermines the positive achievements of Aboriginal courts, which have relied on flexible sentencing and bail options and community involvement in strengthening Aboriginal law, empowering Aboriginal leadership and, ultimately, reducing rates of recidivism.

Changes to CDEP

67. Also of concern is the proposed abolition of the CDEP program in the Northern Territory. As indigenous organisations have argued, many of the affected communities depend heavily on CDEP because there is, apart from that, little or no economic activity. The Hon Marion Scrymgour MLA, Northern Territory Minister for Child Protection, has noted that the Government will create only 2000 jobs, and expressed concern that the remaining 6000 CDEP participants will not be provided with jobs. There is also concern that the abolition of the CDEP program will have a devastating impact on the Indigenous art community.
68. The Bawinanga Aboriginal Corporation (BAC) has identified as expressed concern that the abolition of CDEP may lead to a depopulation of the Outstations in the region. This is due to perceived severe problems in the workability of the Work for the Dole program. Other organisations fear the collapse of generally well functioning organisations because of the precipitous withdrawal of funding without time to plan or structurally adjust, the climate of extreme uncertainty, and the uncertainty as to security of land and assets.

Income management regime

69. Finally, from a human rights perspective, the establishment of a compulsory income management regime under the Security and Other Legislation Amendment (Welfare Reform) Act 2007 squarely challenges the principle of self-determination of indigenous peoples which has been recognised in international human right standards, and jurisprudence.
70. As noted above, on 13 September 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples. Article 19 provides for to “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.” Of relevance, as well, as reflecting accepted international standards concerning the rights of indigenous peoples are the following provisions of the Declaration:
    

    Article 3

    Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

    Article 4

    Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

    Article 5

    Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

71. That the general thrust of the “Emergency Response” legislation is contrary to international developments in relation to indigenous rights has been candidly acknowledged by commentators such as Janet Albrechtsen who, in an opinion piece published in The Australian on 10 October 2007, entitled Labor's politics of symbolism forfeit future opined:
    

    “Labor's commitment to the UN declaration evinces a wilful ignorance of indigenous politics and the law. It will have dangerous and divisive consequences, dragging indigenous people back into a vortex of victimhood politics premised on collectivism, separatism and treaties.  …
    
    Just as indigenous leaders are recognising that the past focus on collectivism has strangled the prospects of their people, Labor issupporting a UN declaration founded on collective rights. Just as indigenous people are moving away from lopsided talk about rights to a more meaningful future that embraces rights and responsibilities, Labor supports a convention that ignores responsibilities.”

72. The Australian Council of Social Service (“ACOSS”) has argued that the establishment of a compulsory income management regime will not, in and of itself, change the way people behave at a fundamental level. Rather, ACOSS argues, indigenous people should be encouraged to take responsibility for their own lives by adoption of voluntary approaches to welfare:
    

    “The Bill implements an apparently simple solution to a complex set of problems – attaching new conditions to social security payments and taking over family budgets to combat child abuse and truancy generally, and prolonged joblessness and social breakdown in remote communities. In practice, the income management system outlines in the Bill is very complicated. It is of concern that despite the complexity of this legislation, there is still a lack of precision as to who will be subject to income management, under what circumstances and for how long.”

73. Again, from a human rights perspective, the provisions of the Welfare Reform Act relating to the removal of rights of people who are subject to the Income Management of their welfare payments to appeal to the Administrative Appeals Tribunal (“AAT”) and the Social Security Appeals Tribunal (“SSAT”) can be seen to adversely discriminate against people living in declared relevant areas in the Northern Territory. The right to appeal to the SSAT provides a fundamental protection for social security recipients against bureaucratic neglect and error. However, the legislation denies this protection to an entire group of Australians based on where they live, and indirectly their Aboriginality.
74. Finally, it remains to say a few words about the approach to welfare reform which is being trialled in Cape York in Queensland. The Cape York trial can be readily distinguished from the “Emergency Response” legislation. This is because it (a) was developed with a reasonable degree of local community involvement and engagement; (b) involves a significant degree of local community control; (c) is part of a wider package of integrated measures; and (d) is a trial.  The “Emergency Response” legislation, by contrast, is fundamentally non-consensual, was developed without any consultation with affected communities and their representative institutions, involves no community input or control, and was not intended to be a trial.

Footnotes