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Inquiry into the Welfare Reform and Reinstatement of Racial Discrimination Act Bill 2009 and other Bills

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Inquiry into the Welfare Reform and Reinstatement of Racial Discrimination
Act Bill 2009 and other Bills

Australian Human Rights Commission
Submission to the Senate Community Affairs Committee

10 February 2010

Table of Contents

1 Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to the Senate Community Affairs Committee Inquiry into the Welfare
    Reform and Reinstatement of Racial Discrimination Act Bill 2009 and other
    Bills.

2 Summary

  1. The Commission welcomes the intention of the Government to reinstate the Racial Discrimination Act 1975 (Cth) (RDA) in relation to the Northern
    Territory Emergency Response (NTER)[1] and to redesign identified NTER measures so that they are non-discriminatory and
    respect human rights.
  2. This submission assesses whether the Bills in fact bring the NTER into
    compliance with Australia’s human rights obligations, including the right
    to non-discrimination reflected in the RDA. In doing so, it refers to:

    • The RDA and the Draft guidelines for income management measures under the
      Racial Discrimination Act       (issued by the Commission in November 2009) (the
      Draft Guidelines) (see Appendix A)
    • The Aboriginal and Torres Strait Islander Social Justice
      Commissioner’s Social Justice Report 2007 recommendations for the
      Northern Territory Emergency Response (see Appendix B)
  3. The Commission maintains the view that measures that breach human rights
    will not enjoy the support of affected communities and will not be capable of
    meeting their intended purpose in the long-term.
  4. This submission identifies those proposed measures that make the NTER
    non-discriminatory and human rights compliant as well as outlining concerns
    where the proposed measures fail to remove the discriminatory impact of the
    legislation and where human rights concerns remain. The submission identifies
    further amendments necessary to ensure that the NTER measures put in place will
    be non-discriminatory and fully respect human rights.
  5. The Commission notes that, overall, while the proposed changes to the NTER
    do not address all the concerns of the Commission, they will improve the
    measures that currently apply to individuals in prescribed communities in the
    Northern Territory.
  6. In particular the Commission welcomes the following proposed measures
    included in the Bills:

    • Lifting of the suspension of the RDA for the NTER legislation
    • Redesigning the income management measures so that they are not applied on a
      racially discriminatory basis.
    • Redesigning the income management measures so that disability support
      pensions or age pensions are no longer being automatically income-managed,
      unless the recipient is determined to be a vulnerable welfare payment
      recipient.
    • Including provisions to enable affected individuals to apply for an
      exemption from income management where their circumstances so warrant as well as
      options for individuals to voluntarily participate in income management where
      they desire.
    • Enabling a shift from the blanket imposition of alcohol bans to restrictions
      that are tailored to the needs of communities.
    • Clarifying the objectives of five-year leases; and committing to move to
      voluntary leases through negotiations in good faith where requested.
    • Providing greater transparency in the community store licensing
      scheme.
  7. The Commission notes, however, that the proposed changes to the NTER
    legislation do not fully address all existing breaches of human rights and will
    not ensure full consistency with the RDA. Of particular concern are the
    following:

    • Practical limitations on the reinstatement of the RDA that emerge due to the
      absence of a notwithstanding clause in the Bills.
    • Delays in the reinstatement of the RDA and state/ territory
      anti-discrimination legislation until 31 December 2010.
    • The failure to require consent for measures that are intended to be
      ‘special measures’ for the purposes of the RDA and Australia’s
      human rights obligations.
    • The broad reach of some categories of the new income management measure that
      could result in a disproportionate number of Aboriginal people being
      unnecessarily income-managed.
    • Insufficient clarity in the definition for ‘vulnerable welfare payment
      recipient’ under the income management measures.
    • The continuation of the compulsory five-year lease arrangements and their
      exclusion from the protections against discrimination under the RDA.
    • The characterisation of five-year leases as a special measure is
      inconsistent with the RDA.
    • The continuation of the business management areas powers, which are
      unnecessary and unreasonable.
    • The limited monitoring and evaluation measures in place to ensure that
      reliable evidence is available as to the effectiveness of existing and
      redesigned NTER measures.
  8. The Commission has made a number of recommendations to address these
    concerns.

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3 Recommendations

  1. The Australian Human Rights Commission recommends that:
    • The Government Bills be amended to:
      • Include notwithstanding clauses in order to specify that the provisions of
        the RDA are intended to prevail over the NTER legislation and that the
        NTER legislation does not authorise conduct that is inconsistent with the
        provisions of the RDA;
      • Remove Item 4 of Schedule 1 of the Government Welfare Reform Bill
        (relating to retrospectivity and section 8 of the Acts Interpretation Act
        1901        ) [Recommendation 1].
    • The government lift the suspension of the RDA for all NTER measures no later
      than 1 July 2010 [Recommendation 2].
    • The government reinstate state/ territory anti-discrimination legislation
      for all NTER measures no later than 1 July 2010 [Recommendation 3].
    • The categories of ‘disadvantaged youth’ and ‘long-term
      welfare payment recipients’ be reformulated to apply on a case-by-case
      basis as follows:

      • Welfare recipients be offered in the first instance the option to be
        voluntary income-managed;
      • Welfare recipients that do not choose to be voluntarily income-managed,
        and who fit a defined category, are assessed for inclusion based on their
        individual circumstances;
      • The decision to income manage the welfare recipient be made reviewable;
      • The welfare recipient have the option to apply for an exemption from
        income management at any stage of the process; and
      • Provide for a defined period of income management and make continuation of
        income management subject to regular review [Recommendation
        4]        .
    • The government develop proactive strategies to provide sufficient and
      appropriate information about the new exemption provisions [Recommendation
      5]      .
    • The Government Welfare Reform Bill be amended to include a full definition
      of ‘vulnerable welfare payment recipient’ [Recommendation
      6]      .
    • The government supplement any income management scheme with additional
      support programs that address the rights to food, education, housing, and
      provide support in the form of financial, literacy/budgeting skills development
      for welfare recipients, safe houses for women and men, and alcohol and substance
      abuse programs [Recommendation 7].
    • The government establish rigorous and comprehensive monitoring and
      evaluation mechanisms to progressively assess the effectiveness of income
      management measures, in advance of the 2012 evaluation [Recommendation
      8]      .
    • The government:
      • Ensure the participation of Indigenous peoples in developing, implementing
        and monitoring alcohol management plans and ensure all alcohol management
        processes are consistent with the RDA
      • Ensure alcohol restrictions are supplemented by investment in
        infrastructure in the health and mental health sectors (including culturally
        appropriate detoxification facilities) and investment in culturally appropriate
        community education programs delivered by Indigenous staff [Recommendation
        9]        .
    • The Government Welfare Reform Bill be amended to remove clauses Schedule 3,
      item 10 (s 18), item 11 (s 19), item 12 (s 19A) in order that community
      consultation is a critical determinant of whether to support a community driven
      alcohol ban or not [Recommendation 10].
    • The Government Welfare Reform Bill be amended to remove clauses Schedule 4,
      Item 5 (s100A (5) and 100B (5)) [Recommendation 11].
    • The government Bills be amended to remove the capacity to compulsorily
      acquire any further five-year leases under Part 4 of the NTNER Act and commit to
      obtaining the free, prior and informed consent of traditional owners to enter
      into voluntary lease arrangements for existing compulsory lease arrangements [Recommendation 12].
    • The Government Bills be amended to remove the statutory rights provisions,
      set out in Part IIB of the Aboriginal Land Rights (Northern Territory) Act
      1976       (Cth) [Recommendation 13].
    • The Government Welfare Reform Bill be amended to remove the business
      management areas powers [Recommendation 14].

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4 Compliance of the
redesigned NTER measures with human rights standards

  1. In assessing the proposed redesign measures against human rights standards,
    the Commission considers the following human rights treaties and
    declarations:

    • The International Covenant on Civil and Political Rights (ICCPR)
    • The International Covenant on Economic, Social and Cultural Rights (ICESCR)
    • The International Convention on the Elimination of all forms of Racial
      Discrimination       (ICERD)
    • The Declaration on the Rights of Indigenous Peoples (the
      Declaration)
    • The Convention on the Elimination of all forms of Discrimination Against
      Women       (CEDAW)
    • The Convention on the Rights of the Child (CRC)
    • The Convention on the Rights of Persons with Disabilities (CRPD)
  2. Of particular importance is the UN Declaration on the Rights of
    Indigenous Peoples     (the Declaration). The Declaration sets out the
    human rights standards for laws, policies and programs that apply to Indigenous
    peoples. The Declaration while not legally-binding is constituted of human
    rights standards recognised in existing covenants and conventions that Australia
    has ratified. Further, the treaty body committees have looked to the Declaration
    to guide their interpretation of human rights standards, in their application to
    indigenous peoples.[2] Compliance with
    the Declaration is therefore an important means of ensuring that the NTER
    measures are consistent with human rights standards.
  3. A critical component of the Declaration is the principle of free, prior and
    informed consent. This requires appropriate community consultation and
    engagement in the design, development, implementation and review of laws,
    policies and programs that affect indigenous peoples. [3] The Commission notes that the
    government’s redesign consultations would need to be consistent with these
    components of the principle of free, prior and informed consent to be consistent
    with the Declaration. This submission notes the Commission’s concerns
    about the limitations of the government’s redesign consultations
    below.

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5 Draft guidelines for
ensuring income management measures are compliant with the Racial
Discrimination Act

  1. In November 2009, the Commission issued Draft guidelines for ensuring
    income management measures are compliant with the Racial Discrimination Act     (Draft Guidelines).
  2. The Draft Guidelines are intended to provide practical assistance to
    Parliament and the government in designing and implementing income management
    measures that protect human rights and that are consistent with the RDA. They
    are also intended to increase awareness among affected communities about the
    application of the RDA to income management regimes.
  3. Section 20(d) of the Racial Discrimination Act 1975 (Cth) (RDA)
    provides the Australian Human Rights Commission with a function to
    ‘prepare, and to publish in such manner as the Commission considers
    appropriate, guidelines for the avoidance of infringements of Part II or Part
    IIA’ of the RDA.[4] While not
    legally binding, they provide important guidance as to the operation of the RDA
    and will be relevant in assisting the resolution of
    complaints.[5]
  4. The Draft Guidelines contain two sections which should be read
    concurrently:

    • Section one poses three key questions to consider when developing and
      implementing an income management measure so it is compliant with the RDA and
      outlines the steps to achieve this.
    • Section two provides background information on the legal basis for the
      different elements discussed in the first section. It also provides the
      background on existing income management regimes nationally and considers the
      extent to which they are consistent with the RDA.
  5. The Draft Guidelines are also a practical tool that governments can look to
    when designing other NTER measures, in addition to the income management
    measures.
  6. The Draft Guidelines set out a practical, step-by-step approach for
    governments and policy-makers to adopt when considering the development of a
    special measure. These guidelines could be used to consider formulating special
    measures for the NTER that are compliant with the RDA.
  7. In the Commission’s view, taking the approach set out in these Draft
    Guidelines will not only ensure that all measures are compliant with fundamental
    human rights and discrimination laws, they will also help to ensure that they
    are effective.
  8. The Draft Guidelines provide a framework to ensure that competing human
    rights concerns can be balanced in a manner that is appropriate and consistent
    with Australia’s human rights obligations.
  9. These Draft Guidelines have been released in draft format on the
    Commission’s website to encourage feedback and comments by 12 February
    2010.
  10. The Commission has taken the approach set out in the Draft Guidelines to assess the consistency of the Bills under consideration with the RDA and
    human rights standards.

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6 Continuation of the
NTER measures

  1. The Commission has consistently welcomed the Australian Government’s
    announcements to act to protect the rights of Indigenous women and children in
    the Northern Territory. In doing so, the Commission has urged the government and
    Parliament to adopt an approach that is consistent with Australia’s
    international human rights obligations and particularly with the RDA.
  2. While doing so, the Commission has noted the discriminatory aspects and
    human rights concerns of the NTER legislation and measures, including their lack
    of compliance with the RDA and international human rights standards. These
    concerns have been raised in:

    • Submission of the Human Rights and Equal
      Opportunity Commission (HREOC) to the Senate Legal and Constitutional Committee
      on the Northern Territory National Emergency Response Legislation       (10 August
      2007)
    • Social Justice Report 2007 (2008)
    • Submission of the Human Rights and Equal Opportunity Commission (HREOC)
      to the Northern Territory Emergency Response Review Board, on the Review of the
      Northern Territory Emergency Response       (15 August 2008).
  3. Actions to address family violence and child sexual abuse in Indigenous
    communities must be undertaken in a way that is consistent with Indigenous
    people’s human rights. To this end the Commission has previously called
    for the government to:

    • Reinstate the application of the RDA and state/ territory
      anti-discrimination legislation to the suite of NTER legislation.
    • Adopt a human rights based approach to: address family violence, child abuse
      and the underlying problems of poverty, disadvantage and discrimination; ensure
      the participation of those affected in policy development and service delivery;
      ensure rigorous benchmarking, monitoring and evaluation; and ensure access to
      forms of redress.
  4. The Aboriginal and Torres Strait Islander Social Justice Commissioner (the
    Social Justice Commissioner) has also developed a ten-point plan in the Social Justice Report 2007 that articulates how the NTER legislation
    could be made consistent with the RDA and human rights standards. (see Appendix
    C).
  5. The NTER Review Board similarly noted in its final report that while it was
    important for the NTER measures to continue, they needed to be amended to be
    compliant with the RDA and human rights standards:

    There is intense
    hurt and anger at being isolated on the basis of race and subjected to
    collective measures that would never be applied to other Australians. The
    Intervention was received with a sense of betrayal and disbelief. Resistance to
    its imposition undercut the potential effectiveness of its substantive
    measures.

    The crisis that prompted the NTER in June 2007 is real. It should remain a
    national priority for sustained attention and investment by the Australian
    Government. But the way forward must be based on a fresh relationship.

    If the various NTER measures are to operate as a genuine suite of measures
    there needs to be adjustments in the machinery of government enabling better
    coordination of services, greater responsiveness to the unique characteristics
    of each community and higher levels of community participation in the design and
    delivery of services.[6]

  6. The NTER Review Board’s overarching recommendations called for:
    • The Australian and Northern Territory Governments to recognise the
      continuing need to address the unacceptably high level of disadvantage and
      social dislocation being experienced by Aboriginal Australians living in remote
      communities throughout the Northern Territory.
    • Both governments to reset their relationship with Aboriginal people based on
      genuine consultation, engagement and partnership.
    • Government actions affecting Aboriginal communities to respect
      Australia’s human rights obligations and conform with the Racial
      Discrimination Act
      1975      .[7]
  7. UN treaty bodies and special mechanisms have also noted their concerns with
    the NTER legislation and measures not complying with Australia’s human
    rights obligations, and recommended they be redesigned:

    • Human Rights Committee:



      The Committee notes with
      concern that certain of the Northern Territory Emergency Response (NTER)
      measures... are inconsistent with the State party’s obligations under the
      Covenant. It is particularly concerned at the negative impact of the NTER
      measures on the enjoyment of the rights of indigenous peoples and at the fact
      that they suspend the operation of the Racial Discrimination Act 1975 and were
      adopted without adequate consultation with the indigenous peoples. (arts. 2, 24,
      26 and 27)[8]

    • Committee on Economic Social and Cultural Rights:



      The Committee
      recommends that the State party: a) address the human rights violations
      identified in the 2007 Little Children are sacred report bearing in mind
      the recommendations of the 2008 report of the Northern Territory Intervention
      Response Review board in this regard; b) conduct formal consultations with the
      indigenous peoples concerned regarding the operation and impact of the Northern
      Territory
      Intervention....[9]

    • UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people:



      Of particular concern is the
      Northern Territory Emergency Response, which by the Government’s own
      account is an extraordinary measure, especially in its income management regime,
      imposition of compulsory leases, and community-wide bans on alcohol consumption
      and pornography. These measures overtly discriminate against aboriginal peoples,
      infringe their right of self-determination and stigmatize already stigmatized
      communities...As currently configured and carried out, the Emergency Response is
      incompatible with Australia’s obligations under the Convention on the
      Elimination of All Forms of Racial Discrimination and the International Covenant
      on Civil and Political Rights .... as well as ... the Declaration on the Rights
      of Indigenous Peoples ... the Special Rapporteur urges the Government to act
      swiftly to reinstate the protections of the Racial Discrimination Act in regard
      to the indigenous peoples of the Northern
      Territory.[10]

    • Committee on the Elimination of Racial Discrimination:



      The
      Committee appreciates the information provided on progress in drafting of
      redesigned Northern Territory Emergency Response measures and the lifting of the
      suspension of the Racial Discrimination Act 1975 ... At the same time the
      Committee takes note of the assessment by the Special Rapporteur of the human
      rights of indigenous peoples following his recent visit to Australia that the
      Emergency Response, as currently configured and carried out is still
      incompatible with Australia’s obligations under the International
      Convention on the Elimination of Racial Discrimination. The Committee encourages
      the State party to give due consideration to the findings of the Special
      Rapporteur and continue its efforts to bring measures undertaken within the
      framework of the Emergency Response in full compliance with the provisions of
      the Convention.[11]

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7 Reinstatement
of the RDA and state/ territory anti-discrimination legislation

7.1 Reinstatement of
the RDA under the government’s Bills

  1. The Government Bills’ reinstatement of the RDA is consistent with
    recommendation 4 of the Social Justice Report 2007 and is welcomed by the
    Commission.
  2. The Commission is concerned, however, that the Government Welfare Reform
    Bill appears to leave unchanged potentially discriminatory elements of the NTER
    regime, such as the compulsory five-year leases.
  3. The Government Welfare Reform Bill lifts the suspension of the RDA over the
    NTER legislation and actions under it. It also removes those provisions that
    effectively deemed the legislation and actions done under it to be
    ‘special measures’. It does this by repealing those sections in the
    original legislation that dealt with the RDA and special measures (see Schedule
    1 of the Bill). The Bill does not, however, include a notwithstanding clause.
    The significance of this is discussed below.

(a) What will the RDA do
if the Bill passes?

  1. Once the RDA is reinstated, sections 9(1) and 9(1A) will apply to decisions
    and actions done under or for the purposes of the legislation. The decisions and
    actions of Government Business Managers and Centrelink Officers, for example,
    will be able to be challenged as being either ‘directly’ or
    ‘indirectly’ discriminatory.
  2. Section 10 of the RDA will also operate in relation to the NTER legislation
    itself. It will require the NTER legislation to be read so as to avoid operating
    in a discriminatory way (by denying or impairing the equal enjoyment of rights
    by people of a particular racial group). Mason J noted in Gerhardy v
    Brown     that s 10 'is not aimed at striking down a law which is discriminatory
    or is inconsistent with the Convention. Instead it seeks to ensure a right to
    equality before the law by providing that persons of the race discriminated
    against by a discriminatory law shall enjoy the same rights under that law as
    other persons'.[12]
  3. However, if the NTER legislation cannot be read so as to be consistent with
    the RDA, the NTER legislation, being the later legislation, will prevail. In
    other words, if NTER measures remain discriminatory, they will not be altered by
    the ‘reinstatement’ of the RDA.

(b) The need for a
notwithstanding clause

  1. The Government Welfare Reform Bill does not include a ‘notwithstanding
    clause’. This is a clause that would expressly state that the provisions
    of the RDA prevail notwithstanding anything to the contrary in the NTER
    legislation. The Social Justice Commissioner called for the inclusion of such a
    clause in recommendation 5 of the Social Justice Report 2007 (described
    there as a ‘non-obstante’ clause).
  2. Such a clause would require all acts authorised under the legislation to be
    undertaken consistently with the RDA. To be effective a notwithstanding clause
    should be unequivocal that the provisions of the NTER legislation are subject to
    the provisions of the RDA.
  3. The consequences of not including a notwithstanding clause are significant.
    Without such a clause, any provision of the amended emergency response
    legislation that is inconsistent with the RDA will still override the RDA.
  4. An example of this is in relation to the issue of five-year leases.
  5. The provision in the NTER legislation (s 31(1)(a) of the NTNER Act) that
    enables the Commonwealth to obtain a five-year lease from an owner of the land
    without their consent will remain in place despite the proposed amendments. The
    lifting of the suspension of the RDA does not alter the validity of this
    provision or the validity of leases that have been obtained by the Commonwealth.
    This is for three reasons.
  6. First, the repeal of the provisions that suspend the operation of the RDA do
    not have retrospective effect (Schedule 1, Item 4(a)).
  7. Second, it is a principle of statutory construction that where a provision
    of a later Act (the NTER legislation) is inconsistent with a provision of an
    earlier Act (the RDA), then the provisions of the later Act prevail. The purpose
    and effect of a notwithstanding clause is to counter the operation of this
    principle.
  8. Third, the Government Welfare Reform Bill expressly states that section 8 of
    the Acts Interpretation Act 1901 applies to the repeal and is unaffected
    by any contrary intention (Schedule 1, Item 4(b)). The effect of this provision
    is that any rights acquired by the Commonwealth under the leases continue. More
    generally, anything done under the current legislation will not be affected by
    the repeal of the provision that suspends the operation of the RDA.
  9. It appears, therefore, that the existence of all existing five-year leases
    will not be able to be successfully challenged under the RDA even if the
    suspension of the RDA is lifted by the Government Welfare Reform Bill. Likewise,
    nothing already done by the Commonwealth pursuant to the grant of the leases
    will be able to be successfully challenged.
  10. There may be other examples of discriminatory or potentially discriminatory
    elements of the NTER legislation that will also be protected from challenge in a
    similar way.
  11. Including a notwithstanding clause in the NTER legislation would serve to
    give full effect to the government’s intention to reinstate the RDA.
  12. There is precedent for this level of protection. The Social Security
    Legislation Amendment (Newly Arrived Residents’ Waiting Periods and Other
    Measures) Act 1997     (Cth) contained an equivalent section defining the
    interaction of the RDA with Social Security legislation. It
    reads:

    Section 4 - Effect of the Racial Discrimination Act 1975

    (1) Without limiting the general operation of the Racial Discrimination
    Act     1975 in relation to the provisions of the Social Security Act 1991, 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.

  13. The Commission therefore recommends that the Government Bills be amended to:
    • Include notwithstanding clauses in order to specify that the provisions of
      the RDA are intended to prevail over the NTER legislation and that the
      NTER legislation does not authorise conduct that is inconsistent with the
      provisions of the RDA
    • Remove Item 4 of Schedule 1 of the Government Welfare Reform Bill (relating
      to retrospectivity and section 8 of the Acts Interpretation Act 1901) [Recommendation 1].

(c) Delays in the
reinstatement of the RDA

  1. The Commission is also concerned by the delay proposed by the Government
    Bills for reinstating the RDA. Currently, the Bills propose that the RDA will be
    reinstated as of 31 December 2010, although it will apply to the redesigned
    income management measures from 1 July 2010.
  2. The Commission believes that a ‘staggered’ reinstatement of the
    RDA will lead to further confusion among communities as to whether their rights
    are protected or not and the remedies that are available to them. For instance,
    people who will continue to be income-managed under the existing income
    management scheme will not be able to access the protections of the RDA until
    the suspension is lifted on 31 December 2010. Whereas people who will be
    income-managed under the redesigned income management provisions, will be able
    to access the protections of the RDA as of 1 July 2010.
  3. This will operate to further undermine trust and confidence in the
    government within affected communities and will damage the overall intent of the
    Bills. The longer the reinstatement of the RDA is delayed, the greater the risk
    is for racially discriminatory measures to continue to operate without redress.
  4. Accordingly, the Commission recommends that the government lift the
    suspension of the RDA for all NTER measures no later than 1 July 2010 [Recommendation 2].

7.2 Reinstatement of
the RDA under the Greens’ Bill

  1. The Greens’ Bill provides for the reinstatement of the RDA and
    includes a notwithstanding clause in line with recommendations 4 and 5 of the Social Justice Report 2007. The Bill allows for the reinstatement of the
    RDA to commence on the day of assent. The Commission supports an approach that
    confirms the operation of the RDA and reinstates it as soon as possible.
  2. However, the Commission notes that the Greens’ Bill provides that the
    legislation as an entirety, and all the acts done under the legislation, are
    intended to constitute special measures.
  3. The Social Justice Commissioner noted his view in the Social Justice
    Report 2007     that it is not possible for the entire legislation to be a
    special measure.[13] This is because
    a number of the measures in the legislation are not a proportionate response to
    the problems they seek to address and were introduced without community consent.
    While the Commission supports the change in legislative language away from
    special measures being ‘deemed’, the Commission does not accept the
    characterisation of the legislation as a whole as a special measure.
  4. Further, the Greens’ Bill does not include a redesign of the
    individual NTER measures to be compliant with the RDA. While it leaves
    individual measures open to legal challenge under the RDA, the Commission
    suggests that Parliament should seek to make the NTER compliant with the RDA,
    rather than leave it to individuals to challenge aspects that may be
    discriminatory.

7.3 Reinstatement of
state/ territory anti-discrimination legislation

  1. The Government Bills reinstate the Queensland and Northern Territory
    anti-discrimination laws that are also currently suspended by the NTER
    legislation. This is consistent with Recommendation 8 of the Social Justice
    Report 2007    . It recommends that the Minister declare that the Anti-Discrimination Act 1992 (NT) continues to have effect in all
    prescribed communities under the NTER legislation and that the Anti-Discrimination Act 1991 (Qld) continues to be of effect in relation
    to welfare reforms in Cape York.
  2. The Commission again notes its concerns about the long commencement
    timeframe proposed by the Government Bills. The reinstatement of the state/
    territory anti-discrimination legislation is currently scheduled to commence on
    31 December 2010.
  3. The Social Justice Report 2007 noted that the Minister had the
    authority under the NTER legislation to declare the anti-discrimination
    legislation to have effect, as a short term measure, until legislative
    amendments to this end were in place.
  4. The Commission recommends that the government reinstate state/ territory
    anti-discrimination legislation for all NTER measures no later than 1 July
    2010 [Recommendation 3].

7.4 Special measures
under the RDA

  1. The Government Bills remove existing provisions that deem the measures under
    the NTER legislation to be special measures and provisions that deem the whole
    of the legislation to be a special measure under the RDA. This is in accordance
    with recommendation 6 of the Social Justice Report 2007and is supported
    by the Commission.
  2. The Government Welfare Reform Bill inserts references to special measures in
    the object clauses of the various Parts of the NTER legislation. Each Part
    states that its object is 'to enable special measures to be taken...' This
    intention is confirmed by the government’s policy statement which
    indicates that it considers the following measures to be special measures for
    the purposes of the RDA:

    • Alcohol restrictions
    • Prohibited material restrictions
    • Five-year leases
    • Community store licensing.
  3. Similar object clauses are not provided for the other three measures -
    controls on use of publicly funded computers, law enforcement powers and
    business management areas powers. These three measures are intended to continue
    without amendment. The government has indicated that it considers these three
    measures to also be special measures for the purposes of the
    RDA.[14]
  4. The Commission’s Draft Guidelines outline the requirements of a
    special measure under Article 1(4) of the International Convention on the
    Elimination of all forms of Racial Discrimination     (ICERD):

    • the special measure must confer a benefit on some or all members of a
      class;
    • membership of this class must be based on race, colour, descent, or national
      or ethnic origin;
    • the special measure must be for the sole purpose of securing adequate
      advancement of the beneficiaries in order that they may enjoy and exercise
      equally with others human rights and fundamental freedoms;
    • the protection given to the beneficiaries by the special measure must be
      necessary in order that they may enjoy and exercise equally with others human
      rights and fundamental freedoms; and
    • the special measure must not already have achieved its
      objectives.[15]
  5. The redesigned measures will not meet these requirements where:
    • The government’s redesign consultations do not meet the standard of
      consultation and consent of the affected group
    • There is insufficient current and credible evidence which shows that the
      measure will be effective
    • There are alternative means of achieving the objective that are not as
      restrictive of affected persons’ human rights
    • There are inadequate mechanisms for monitoring and evaluating the measure to
      ensure if it is working effectively and if its objective has been
      met.
  6. The Commission notes that there are limitations to the redesign consultation
    processes which undermine the claim that measures under the Bills are special
    measures for the purposes of CERD and the
    RDA.[16] Some of these limitations
    include:

    • The limited scope of the consultations – the consultations did not
      cover all measures under the NTER. They are therefore not capable of evidencing
      community support for continuation of all measures. Some of the measures that
      were not identified in the government’s Future Directions for the
      Northern Territory Emergency Response - Discussion Paper       (Discussion Paper)
      included:

    7. - Modifications to the permit system

    - Compulsorily acquisition of Aboriginal town camps

    - Provision for statutory rights powers to be obtained over Aboriginal
    land.

    - Removal of consideration of customary law or cultural practice in bail
    applications and sentencing

    - Provision of services related to health, child protection and police
    enforcement.

    • The scope of the consultations was also limited by the parameters set around
      the options for the measures in the government’s Discussion Paper.
      For example, the Discussion Paper proposes certain changes to five-year leases
      but it does not encourage consideration of their
      removal.[17] In the Native Title
      Report 2009       the Social Justice Commissioner expressed concern that community
      residents were only being asked for comment on the proposed amendments and that
      the Australian Government had already formed the view that five-year leases had
      operated for the benefit of Aboriginal
      residents.[18]
    • The government’s Discussion Paper noted the purpose of the
      consultations was to ‘hear community views about continuing the NTER
      measures and how they could be changed to deliver greater
      benefits’.[19] The
      consultations did not seek consent for the purposes of developing special
      measures under the RDA, or obtain participants’ free, prior and informed
      consent for the redesigned measures.
    • The limited availability of interpreters and the lack of clear understanding
      among some participants of some of the measures being discussed, undermined the
      informed participation of
      participants.[20] For instance the
      government’s Report on the Northern Territory Emergency Response
      Redesign Consultations       (the Redesign Report) states:

      [t]here were frequent comments that people did
      not understand the leasing arrangements and there was some confusion between
      five-year leases, township leasing and voluntary
      leasing.[21]

    This was confirmed in the independent review of the consultations undertaken
    by the Cultural and Indigenous Research Centre Australia (CIRCA), which
    noted:

    There was very little awareness of several of the measures, and it was
    therefore not possible to adequately explain the measure and gather feedback in
    the timeframe allowed for the Tier 2 meetings. .... This was true for publicly
    funded computers, business management powers, and law enforcement
    measures.[22]

    The measures for pornography restrictions and the controls on use of
    publicly funded computers were not discussed in many communities due to a high
    level of discomfort to talk about these issues in large, mixed public
    forums. [23] As a result it is not
    possible to draw informed conclusions about communities’ views on these
    measures.

  7. The Commission discusses in further detail below whether individual measures
    meet the requirements of a special measure under the RDA.
  8. The Special Rapporteur on indigenous peoples, during his recent visit to
    Australia, noted that ‘any special measure that infringes on the basic
    rights of indigenous peoples must be narrowly tailored, proportional, and
    necessary to achieve the legitimate objectives being
    pursued’.[24] Further he
    stated that in his view the existing NTER measures did not meet the requirements
    of special measures.[25]
  9. The Commission also notes that the following recommendations related to
    special measures from the Social Justice Report 2007 have not been
    addressed under these Bills:

    Recommendation 6: ... insert new
    provisions that require that in the performance of any actions undertaken to
    implement the measures contained in the legislation, the intended beneficial
    purpose of the legislation must be a primary consideration.

    Recommendation 7: Subject the intervention measures to regular monitoring and
    review to establish whether they meet the purposes of a ‘special
    measure’



    That the Government ensure strict monitoring and
    evaluation provisions to ensure that only those measures that are appropriate
    and adapted to the purpose of child protection are maintained. Such monitoring
    should particularly focus on measures relating to income management, alcohol
    bans, changes to the permit system and compulsory acquisition of Aboriginal
    land.

^top

8 Income management
measure

  1. Under the existing NTER measures income management applies to most welfare
    payment recipients in prescribed areas in the Northern Territory (including
    communities, town camps and
    outstations).[26]  There are 73
    prescribed areas.[27] The current
    income management measures are set out in Part 3B of the Social Security
    (Administration) Act 1999     (SSA
    Act).[28] Sections 123TE and 123UB
    of the SSA Act outline the conditions for a declared relevant Northern Territory
    area and outline the persons subject to income management in those areas. Income
    management involves directing a portion of a person’s welfare payments for
    the purchase of priority items as outlined in the SSA Act including food,
    clothing and rent.
  2. It was clear that the income management measures as enacted under the 2007
    NTER legislation were racially discriminatory as well as denying procedural
    fairness to those to whom they
    applied.[29]
  3. The NTER Review Board Report noted that the blanket imposition of the
    measure ‘resulted in widespread disillusionment, resentment and anger in a
    significant segment of the Indigenous
    community’.[30] However, the
    Board also noted that many Aboriginal people, especially women, felt that
    families and children have benefited from income management in the form of
    greater quantities and better quality of food being bought at community stores,
    reduction in tobacco sales, better management of family incomes and savings, and
    reduced vulnerability of pensioners and women to
    'humbugging'.[31]
  4. The NTER Review Board recommended that income management be available on a
    voluntary basis to community members who choose to have some of their income
    quarantined for specific purposes, as determined by them; and that compulsory
    income management should only apply on the basis of child protection, school
    enrolment and attendance and other relevant behavioural
    triggers.[32]
  5. The objective of the redesigned income management measure has shifted from a
    focus on Aboriginal and Torres Strait Islander peoples to individuals and
    families reliant on welfare who are living under severe social pressure.
  6. The redesigned income management measures change the income management
    measures from a blanket approach based on race, to measures that are more
    generally applicable. They are intended to ‘target assistance to the most
    disengaged and disadvantaged individuals in the welfare
    system’.[33]
  7. Due to their general application, the income management measure has not been
    developed as a special measure under the RDA and does not raise issues of direct
    discrimination. In order to comply with the RDA then, it only remains to
    identify whether it raises concerns of indirect discrimination.
  8. People living in the 73 prescribed areas currently subject to the income
    management measure under the NTER legislation will continue to be subject to
    income management.
  9. The current income management measures relating to child protection, school
    enrolment, school attendance and the Queensland Family Responsibilities
    Commission will also continue to apply.
  10. The new income management scheme will be gradually rolled out across the
    Northern Territory. The transitional arrangements provide for people subject to
    the current scheme of income management in the Northern Territory to either
    transition to the new scheme or move off income management altogether within 12
    months of the commencement on 1 July
    2010.[34]
  11. The Government Welfare Reform Bill introduces a new defined term
    ‘declared income management
    area’[35] which defines an
    area as either a specified State, specified Territory or a specified area, that
    the Minister determines by legislative instrument.
  12. The Commission recognises that with the introduction of the redesigned
    income management measure the number of people currently subject to income
    management in Indigenous communities may reduce.
  13. The redesigned income management measure identifies three new categories of
    people that will be subject to income management:

    • disengaged youth
    • long-term welfare payment recipients
    • people assessed as
      vulnerable.[36]
  14. The redesigned income management measure also provides for eligible welfare
    recipients to seek exemptions from income management. [37] Exemptions will be available in the
    categories of disengaged youth and long-term welfare payment recipients as
    follows:
    • parents with dependent children who can demonstrate their children attend
      school regularly and consistently or
    • people without dependent children who can show they are participating in
      regular paid employment, or engaged in full-time formal study or an
      apprenticeship.
  15. In addition to the three new categories, the Government Welfare Reform Bill
    allows for a person to voluntarily agree to be subject to the income management
    regime.[38] The provision for
    welfare recipients to be voluntarily income-managed is accompanied by a
    financial incentive for entering voluntary income
    management.[39]
  16. The Government Welfare Reform Bill also provides for a matched savings
    incentive to build recipients’ financial management skills and
    capabilities.[40]
  17. The redesigned income management measure will be subject to the RDA by 1
    July 2010, while the existing income management measures in prescribed
    communities will only be subject to the RDA and state/ territory
    anti-discrimination legislation as of 31 December 2010.
  18. The redesigned measure is also subject to external merits review and appeal.

(a) Compliance with
non-discrimination and human rights standards

  1. There has been a significant debate on whether income management is an
    effective policy tool for supporting the welfare of disadvantaged individuals
    and families, and in particular, Indigenous individuals and families. The
    redesigned measure extends income management beyond the prescribed Indigenous
    communities in the Northern Territory, to Indigenous and non-Indigenous people
    in disadvantaged locations across the Northern Territory. However, this
    submission will focus its assessment of the redesigned income management measure
    on the specific impacts on Indigenous peoples.
  2. The Commission has previously noted that the preferred features for an
    income management measure include:

    • voluntary/ opt-in approaches - rather than automatic quarantining or an
      exemption approach
    • a last-resort approach for targeted risk areas such as child protection
      (that is supported by case management and support services), akin to the Family
      Responsibilities Commission model in Queensland - rather than automatic
      quarantining and
    • a defined period of income management, where the timeframe for compulsory
      quarantining is proportionate to the context.
  3. An income management measure with such features would be consistent with
    international human rights standards, and in particular the standards for
    self-development of Indigenous peoples recognised in Article 23 of the UN
    Declaration on the Rights of Indigenous peoples    , which
    states:

    Indigenous peoples have the right to determine and develop
    priorities and strategies for exercising their right to development. In
    particular, indigenous peoples have the right to be actively involved in
    developing and determining health, housing and other economic and social
    programmes affecting them and as far as possible, to administer such programmes
    through their own institutions.

  4. The Commission welcomes the provisions in the redesigned income management
    measure that are in line with the above preferred features of an income
    management measure. That is, the provisions for voluntary income management and
    the provisions for the last-resort approach for targeted risk areas that are
    continued in relation to child protection, school enrolment, school attendance
    and the Queensland Family Responsibilities Commission.

(i) ‘Disengaged
youth’ and ‘long-term welfare payment recipients’
categories

  1. In contrast, the ‘disengaged youth’ and ‘long-term welfare
    payment recipients’ categories are the only categories for which
    quarantining will still be automatically applied under the new income management
    measure. That is, within the relevant declared area, all welfare recipients who
    satisfy the criteria applicable to these two categories are subject to being
    income-managed. These two categories of income management are not consistent
    with the preferred features for income management identified above.
  2. The Commission is concerned that Indigenous peoples will be more vulnerable
    to being subjected to income management under these categories than
    non-Indigenous peoples. This risk stems from the limited access to education,
    training and employment for Aboriginal people, particularly in remote
    communities in the Northern Territory, and the consequent high proportion of
    Aboriginal people accessing welfare payments for extended periods. There is also
    a large Aboriginal youth population in the Northern Territory, many of whom also
    have difficulties accessing education, training and employment.
  3. The Commission recommends that the categories of ‘disadvantaged
    youth’ and ‘long-term welfare payment recipients’ be
    reformulated to apply on a case-by-case basis as follows:

    • Welfare recipients be offered in the first instance the option to be
      voluntarily income-managed;
    • Welfare recipients that do not choose to be voluntarily income-managed, and
      who fit one of the two defined categories, are assessed for inclusion in the
      scheme, based on their individual circumstances;
    • The decision to income manage the welfare recipient be made reviewable;
    • The welfare recipient have the option to apply for an exemption from income
      management at any stage of the process (for example, after a period of time
      where their circumstances may have changed or the concerns that led to them
      being income managed having changed); and
    • Provide for a defined period of income management and make continuation of
      income management subject to regular review [Recommendation
      4]      .

(ii) Exemptions

  1. As noted above, the redesigned income management measure makes provision for
    people within the categories of disadvantaged youth and long-term welfare
    payment recipients to apply for exemptions from the scheme and for merits review
    of the outcomes of their applications.
  2. The Commission notes that due to the lower education levels, the
    difficulties of living in rural and remote areas and living in disadvantaged
    situations, Aboriginal welfare recipients subject to these categories of income
    management may face difficulties in accessing the exemption processes.
  3. The information about exemptions needs to be readily accessible and in
    appropriate forms and be supplemented by the increased presence of government
    departments and services in Indigenous communities in rural and remote areas.
  4. The Commission recommends the government develop proactive strategies to
    provide sufficient and appropriate information about the new exemption
    provisions [Recommendation 5].

(iii) ‘Vulnerable
welfare payment recipient’ category

  1. A further category for inclusion within the income management scheme is for
    people who are determined to be a ‘vulnerable welfare payment
    recipient’. There is no indication in the Government Welfare Reform Bill
    as to who will fit within this category, and what the criteria for making the
    determination will be.
  2. The Bill foreshadows that decision-making principles may be set out in a
    legislative instrument by the Minister for the purposes of this measure, but it
    is not clear how or if this will be done. As decisions by administrative
    decision-makers will have a significant impact upon the rights and liberties of
    affected persons it is imperative that clear definitions are contained in the
    legislation.
  3. The explanatory memorandum suggests what maybe included in a possible
    definition of the term includes situations of vulnerability such as domestic
    violence, economic abuse and financial crisis.
  4. The Commission is concerned that there maybe negative, unintended
    consequences of including domestic violence as a trigger for being
    income-managed as a vulnerable welfare payment recipient.
  5. Centrelink Social Workers currently provide women who have experienced
    domestic violence with information on entitlements and services available. The
    concern is that including domestic violence as a trigger for income management
    could discourage women experiencing domestic or family violence from seeking
    assistance from Centrelink and consequently place women at greater risk, and
    result in under-reporting of domestic violence.
  6. 60% of income-managed clients are
    female.[41] Given the majority of
    domestic violence victims are women there is a risk that the inclusion of
    domestic violence in this category will have a particular effect on
    women.[42]
  7. This is a further reason why the Bill should include a clear definition of
    the term 'vulnerable welfare payment recipient’ and clear criteria and
    processes for determining a person to be subject to income management as a
    result of being determined to be a vulnerable welfare payment recipient.
  8. The Commission recommends the Government Welfare Reform Bill be amended to
    include a full definition of ‘vulnerable welfare payment recipient’ [Recommendation 6].

(iv) Veterans’
benefits

  1. The Commission notes people in receipt of Veterans’
    benefits[43] could be automatically
    subject to income management. This is in the circumstances where persons fall
    within the category of ‘disadvantaged youth’, ‘long-term
    welfare payment recipients’, or if they are determined to be
    ‘vulnerable’.[44]

(v) Community support

  1. In transitioning from the existing blanket approach to quarantining into the
    redesigned income management measure, the Commission notes the importance of
    ensuring the participation of affected people in all aspects of the design,
    delivery and monitoring of the measure.
  2. This process would allow for a transition that does not compromise the
    safety of vulnerable community members. It would enable the government to
    respond to the specific circumstances of individual people and communities and
    it would allow for individuals and communities to decide on the most appropriate
    measures to meet their particular needs.
  3. A community-based approach is likely to result in some communities electing
    to have a community wide income management scheme, such as the Families
    Responsibilities Commission process, while others would elect to continue to
    participate in income management on a voluntary basis.
  4. The Commission commends COAG for its Closing the Gap commitments in the
    Northern Territory in the areas of governance and leadership, early childhood,
    schooling, health, economic participation, healthy homes and safe
    communities.
  5. The Commission notes that commitments to Closing the Gap in the Northern
    Territory need to be continued and expanded to supplement the extended income
    management measures.
  6. The Commission recommends the government supplement any income management
    scheme with additional support programs that address the rights to food,
    education, housing, and provide support in the form of financial
    literacy/budgeting skills development for welfare recipients, safe houses for
    women and men, and alcohol and substance abuse programs [Recommendation
    7]    .

(b) Monitoring and
evaluation

  1. The Commission also notes that the Government Welfare Reform Bill allows for
    a national roll-out of the income management measure subject to the outcomes of
    an evaluation in 2012.
  2. However, to date there have been concerns regarding the availability of
    sufficient and reliable monitoring data to assess the effectiveness of income
    management. Some of the reasons for this, which the government has itself
    acknowledged, include the absence of baseline data available from before or at
    the time the NTER was introduced; and the lack of uniformity in available
    data.[45]
  3. The government has relied on selected statistical and anecdotal reports for
    evidence of the effectiveness of income
    management.[46] However, these
    sources fail to provide conclusive evidence of the effectiveness of these
    measures. The AIHW Report for instance notes that:

    The research
    studies used in the income management evaluation (point in time descriptive
    surveys and qualitative research) would all sit towards the bottom of an
    evidence hierarchy. A major problem for the evaluation was the lack of a
    comparison group, or baseline data, to measure what would have happened in the
    absence of income management... the overall evidence about the effectiveness of
    income management in isolation from other NTER measures was difficult to
    assess....The evaluation findings would have greater strength if these views
    were supplemented by empirical indicators that showed evidence of the changes
    reported by the various
    stakeholders.[47]

  4. Further the anecdotal evidence gathered both by the Central Land Council and
    the government’s Redesign Consultations, also shows that some people have
    benefitted from and support income management, equally they show that
    significant numbers of people have not benefitted from and do not support income
    management.[48]
  5. With the redesign of the income management measure, new monitoring processes
    will need to be established to properly assess the effectiveness of the measure
    against the new objectives.
  6. The Commission recommends the government establish, in advance of the 2012
    evaluation, rigorous and comprehensive monitoring and evaluation mechanisms to
    progressively assess the effectiveness of income management measures [Recommendation 8].

^top

9 Other
measures

  1. With the exception of the income management measure, all other redesigned
    measures under the Government Welfare Reform Bill apply only to the 73
    prescribed Indigenous communities in the Northern Territory. This submission
    assesses whether the government has met its stated intent to redesign these
    measures to comply with the RDA and human rights standards.

9.1 Alcohol
restrictions measure

  1. The original NTER measures issued a ban on drinking, possessing, supplying
    or transporting liquor in prescribed areas, but allowed for the continued
    operation of licensed premises and individual permits issued under the Northern
    Territory Liquor Act and for some recreational, tourism and commercial
    fishing activities.[49] It also
    monitored takeaway sales across the whole of the Northern
    Territory.[50] Under the NTER
    measures, road signs were erected notifying the restrictions on alcohol and
    prohibited materials in prescribed communities. Police were also provided with
    powers to enter private residences in prescribed areas as if they were public
    places.
  2. The Commission welcomes aspects of the redesigned alcohol restriction
    measure that provide for greater discretion in placing appropriate signage and
    publishing notices, and for a more consultative scheme regarding entry by police
    into private residences.
  3. The Commission also welcomes the introduction of provisions that will enable
    communities to introduce voluntary alcohol management arrangements, and to apply
    to be exempted from the existing alcohol bans where those community mechanisms
    are deemed appropriate. The Commission notes the comparative success of
    community-based alcohol management plans over blanket alcohol
    bans.[51]
  4. The Government Welfare Reform Bill states that the object of the alcohol
    restriction measure is to enable special measures to be taken to reduce
    alcohol-related harm in Indigenous communities in the Northern
    Territory.

(a) Alcohol restrictions
as a special measure

  1. The Commission has supported the introduction of alcohol restrictions as a
    ‘special measure’ to address the impact of alcoholism within the
    community where such restrictions have community support. Such community-led
    initiatives have occurred in Halls Creek and Fitzroy Crossing in the Kimberley
    region.
  2. The Commission is concerned that the alcohol restrictions measure in the
    NTER have not been developed with adequate community consultation and do not
    meet the requirements of consent for a special measure.
  3. The CIRCA Report notes that in the consultations conducted by the government
    ‘it was difficult in the Tier 2 meetings to have an open discussion as the
    level of understanding and knowledge of the measure varied and there was not
    time to fully explain the measure. This was true for five-year leases and
    alcohol
    restrictions’.[52]
  4. Where a special measure operates by limiting certain rights of some, or all
    the affected group, the issue of consent to the measure becomes of paramount
    concern. In the Commission’s view such measures will not be special
    measures where they are implemented without the consent of the group to whom
    they apply.
  5. The Commission notes the level of consultation or consent required will vary
    depending on whether the measure to be introduced involves a limitation on
    certain rights or is entirely beneficial in nature. Measures that seek to
    provide a benefit to a racial group or members of it, but operate by limiting
    certain rights of some, or all of that group, should be approached with
    particular care. At a minimum, consultation with the ‘beneficiary’
    group is essential and consent should be obtained unless there are legitimate
    reasons for not doing so (for example, because a measure is a short-term one to
    be introduced at short notice).
  6. The Commission reiterates its recommendations from the Social Justice
    Report 2007     for the government to:

    • Ensure the participation of Indigenous peoples in developing, implementing
      and monitoring alcohol management plans and ensure all alcohol management
      processes are consistent with the RDA
    • Ensure alcohol restrictions are supplemented by investment in infrastructure
      in the health and mental health sectors (including culturally appropriate
      detoxification facilities) and investment in culturally appropriate community
      education programs delivered by Indigenous staff [Recommendation
      9]      .

(b) Community
consultation

  1. The Commission notes that the Government Welfare Reform Bill enables the
    Minister to support community initiated alcohol restrictions in lieu of the
    alcohol bans in the NTER legislation. The Bill provides for community
    consultation to be undertaken before making a declaration or legislative
    instrument pertaining to the redesigned alcohol restrictions measure but does
    not require it for the declaration or legislative instrument to be
    valid.[53]
  2. This undermines the objective of community consultations, and contravenes
    the government’s intent to engage in more community driven processes.
  3. The Commission recommends the Government Welfare Reform Bill be amended to
    remove clauses Schedule 3, item 10 (s 18(4)), item 11 (s 19(6)), item 12 (s
    19A(5)) in order that community consultation is a critical determinant of
    whether to support a community driven alcohol ban or not [Recommendation
    10]    .
  4. The Commission notes similar clauses are included in relation to the
    prohibited materials measure.[54] These should also be removed to ensure a consistent approach that promotes
    community engagement.
  5. The Commission recommends the Government Welfare Reform Bill be amended to
    remove clauses Schedule 4, Item 5 (s100A (5) and 100B (5)) [Recommendation
    11]    .

9.2 Five-year leases
measure

(a) The continuation of
five-years leases under the NTNER Act

  1. Five-year leases are created under s 31 of the NTNER Act. Section 31 deems a
    lease to be granted to the Australian Government over certain types of land for
    a period of 5 years. The government currently holds five-year leases over 64
    communities.[55]
  2. The proposed Bill inserts a new object
    clause[56], and outlines that the
    Commonwealth is entitled to use, and to permit the use of, land covered by a
    section 31 lease for any use that the Commonwealth considers is consistent with
    the fulfillment of the object of the
    Part.[57]
  3. The proposed Bill also provides for the development of guidelines for the
    Commonwealth to consider when subleasing or otherwise dealing with its interest
    in the lease,[58] and specifies that
    regard must be had to the body of traditions, observances, customs and beliefs
    of Indigenous persons when administering
    leases.[59] In addition, the
    proposed amendments would require the Commonwealth to enter into negotiations
    with the relevant owner on the terms and conditions of another lease covering
    the land in good faith, if requested to do so by the
    owner.[60]
  4. The Commission is concerned that the compulsory grant of five-year leases
    under the NTNER Act was discriminatory and the current drafting of the
    Government Welfare Reform Bill protects these leases from challenge under the
    RDA. Retaining and protecting potentially discriminatory aspects of the NTER
    from challenge appears contrary to the intention of ‘reinstating’
    the RDA.
  5. The Commission further notes that recommendation 9 of the Social Justice
    Report 2007     called for the Minister for Indigenous Affairs to place a
    moratorium on five-year compulsory leases over Aboriginal land. The Social
    Justice Commissioner also called for the Minister to direct public servants and
    Government Business Managers to conduct negotiations with Aboriginal communities
    to obtain access to Aboriginal land for infrastructure and related purposes.
  6. The Commission recognises that the government has made efforts to put in
    place processes to make compensation payments for the five-year leases. In 2008,
    the Indigenous Affairs Legislation Amendment Act 2008 (Cth) included a
    process for land owners and the government to agree on an amount to be paid by
    the Australian Government for the five-year leases.
  7. The Australian Government also commenced a process in 2008 for making
    payments by asking the Northern Territory Valuer-General to determine a
    reasonable rent for the five-year
    leases.[61] In 2009, the Australian
    government finalised a review of the boundaries of five-year leases and reduced
    the size of the land to which the leasehold arrangements apply to those lands
    that are necessary. This was due to concerns that the boundaries of leases were
    excessive and took in land that was not necessary to deliver essential services
    to communities.

(b) Five-year leases are
not a special measure

  1. The Bill proposes a new section 30A which expresses that the object of Part
    4 of the NTNER Act is to enable special measures to be taken to improve the
    delivery of services in Indigenous communities in the Northern Territory, and to
    promote economic and social development in those
    communities.[62]
  2. The Commission notes, however, that the RDA explicitly excludes from the
    ‘special measures’ exemption laws that authorise management of
    property without the consent of Aboriginal and Torres Strait Islander people or
    prevent them from terminating management by another of land owned by them (see
    ss 8(1), 10(3), RDA).
  3. To be consistent with the RDA, measures relating to the management of land
    must be taken with the consent of the landowners. The redesigned five-year
    leases therefore remain inconsistent with the RDA in this respect.
  4. Further, in the Native Title Report 2009, the Social Justice
    Commissioner has commented that it is wrong to suggest that the provision of
    safe houses and Government Business Manager (GBM) accommodation, or the
    refurbishment of housing, required the acquisition of the five-year
    leases.[63] These could easily have
    been achieved in other ways as this infrastructure has been installed and
    refurbished for years without the compulsory acquisition of five-year
    leases.[64]

(c) Intended transition
to voluntary leases

  1. The government has indicated that it is committed to the progressive
    transition of five-year leases to voluntary leases and that the Bill obliges the
    Commonwealth, at the request of a land owner, to negotiate voluntary leases in
    good faith.[65] The Commission
    supports the intention of the government to enter into voluntary lease
    arrangements with traditional owners.
  2. So long as compulsory five-year leases remain in place and are only applied
    to Indigenous communities these provisions will remain inconsistent with the
    RDA.
  3. The Commission recommends the Government Bills be amended to remove the
    capacity to compulsorily acquire any further five-year leases under Part 4 of
    the NTNER Act and commit to obtaining the free, prior and informed consent of
    traditional owners to enter into voluntary lease arrangements for existing
    compulsory lease arrangements [Recommendation 12].

(d) Continuation of
Statutory Rights

  1. ‘Statutory rights’ were introduced by the Families, Housing,
    Community Services and Indigenous Affairs and Other Legislation Amendment
    (Northern Territory National Emergency Response and Other Measures) Act 2007     (Cth). This created a new Part IIB into the Aboriginal Land Rights
    (Northern Territory) Act 1976     (Cth).
  2. This is a procedure under which the Australian or Northern Territory
    Governments can obtain a set of rights over certain Aboriginal land. It applies
    when infrastructure is installed or repaired and funded wholly or partly by the
    government.[66]
  3. The Native Title Report 2009 analysed these provisions, expressing
    concern about its effects:

    While aspects of this process are similar
    to applying for the grant of a lease, statutory rights are very different from a
    lease. They provide no benefits to the land owner, only rights in favour of the
    government occupier. Those rights include the exclusive and perpetual right to
    occupy the land without having to pay rent.

    Statutory rights are like a one-sided lease, under which the interests of the
    traditional owners are ignored. Traditional owners are unlikely to agree to such
    an arrangement by choice when they can instead negotiate a
    lease.[67]

  4. The Commission notes that the proposed Bills do not remove the statutory
    rights provisions, set out in Part IIB of the Aboriginal Land Rights
    (Northern Territory) Act 1976     (Cth).
  5. The Commission recommends the Government Bills be amended to remove the
    statutory rights provisions, set out in Part IIB of the Aboriginal Land
    Rights (Northern Territory) Act 1976     (Cth) [Recommendation
    13]    .

9.3 Community stores
licensing measure

  1. Under the existing NTER measures, community stores can be assessed to
    determine whether they are to be granted a community store
    license.[68]  The basis of
    assessment is whether:

    They have a reasonable quality, quantity and
    range of groceries and consumer items available and promoted at the store,
    including healthy food and drinks; demonstrate the capacity to participate in
    the requirements of the income management arrangements under the social security
    law; and have sound financial structures, retail and governance
    practices.[69]

  2. The Commission welcomes redesigned the community stores licensing scheme for
    introducing greater transparency in the licensing procedures for stores.
  3. The object clause for this measure enables special measures to be taken for
    the purpose of promoting food security for certain Indigenous communities in the
    Northern Territory. It is the Commission’s view that the terms and
    conditions of the measure are reasonable, able to be complied with and do not
    have a negative impact upon the equal enjoyment of rights in public life by
    people of a particular race - and therefore are not racially discriminatory.
  4. The Commission notes that the Government Welfare Reform Bill will insert a
    new Division 4 into the NTNER Act that provides for the Secretary to give
    written notice to the owner and manager of a community store to become
    registered under the Corporations (Aboriginal and Torres Strait Islander) Act
    2006     (CATSI Act) by the day specified in the
    notice.[70]
  5. The Explanatory Memoranda states:

    New Division 4 assists in
    improving the governance and capacity of Northern Territory Indigenous corporate
    associations that own community stores....Poor governance practices and
    resourcing issues have been a recurring problem in relation to community stores
    and corporate governance has been identified as a key area for improvement in
    Indigenous communities.[71]

  6. The Social Justice Commissioner has raised concerns about the application of
    the CATSI Act since its commencement in 2007 and noted some of the difficulties
    experienced by organisations in meeting the requirements of the CATSI
    Act.[72]
  7. The Commission notes the need for additional support and resources to be
    provided to stores registering under the CATSI Act for the fist time, to ensure
    that community store owners can comply with the CATSI Act and build capacity to
    govern themselves.
  8. The Commission further notes, that in an effort to avoid over-regulation of
    community stores, where stores are given notice to register under the CATSI Act,
    that this be in place of, rather than in addition to, registration under other
    federal or territory registration schemes (i.e. through the Australian
    Securities and Investments Commission (ASIC)).

9.4 Business
management areas powers measure

  1. The NTER created powers that provide the Australian Government with the
    ability to vary and terminate funding
    agreements[73] and for the
    Commonwealth Minister to make directions relating to the provision of services
    and assets required for the delivery of community
    services.[74]
  2. The NTER laws also allowed the government to cease funding to a community
    organisation if it felt the organisation was not properly doing its job of
    delivering services.[75]
  3. The business management areas powers are proposed to be continued without
    amendment and the government considers the measure to be special measure for the
    purposes of the RDA.[76]
  4. These powers are disproportionate and unnecessary. As the government notes
    in its Policy Statement, there are other avenues already in existence for
    addressing service delivery and governance issues (i.e. the CATSI Act and ASIC).
    Further, the fact that the powers have not been used since they were enacted
    over two years ago is evidence that they are not necessary.
  5. The Commission recommends the Government Welfare Reform Bill be amended to
    remove the business management areas powers [Recommendation
    14]    .

^top

10 Monitoring and
Evaluation

  1. Since the inception of the NTER the Social Justice Commissioner has called
    for proper monitoring and review processes to assess the efficacy of the NTER
    measures:

    Given the complexity of the NT intervention measures and
    their potential to negatively impact on the human rights of Indigenous peoples,
    it is essential for transparent monitoring and evaluation processes to be set in
    place and for regular review to take
    place.[77]

  2. The Commission also noted the importance for proper monitoring in it’s
    submission to the Northern Territory Review Board:

    A human rights
    based approach...emphasises a holistic, integrated approach, which promotes
    transparency, accountability and the development of rigorous benchmarking,
    monitoring and reporting systems and access to forms of
    redress.[78]

  3. The NTER Review Board’s Report noted that as at the time of the review
    in 2008, there were insufficient monitoring processes in place for the
    NTER:

    ...little or no baseline data existed to specifically evaluate
    the impacts of the NTER....Apart from some initial scoping data, there was
    little evidence of baseline data being gathered in any formal or organised
    format which would permit an assessment of the impact and progress of the NTER
    upon communities. The lack of empirical data has proved to be a major problem
    for this Review and is an area that requires urgent
    attention.[79]

  4. The AIHW also noted similar difficulties in its recent review of income
    management under the NTER:

    The research studies used in the income
    management evaluation (point-in-time descriptive surveys and qualitative
    research) would all sit towards the bottom of an evidence hierarchy. A major
    problem for the evaluation was the lack of a comparison group, or baseline data,
    to measure what would have happened in the absence of income
    management.[80]

  5. While, the Commission welcomes the proposed evaluation of the NTER in 2012,
    the concerns about data raised by both the NTER Review Board and the AIHW
    highlight that the government has still not collected adequate data to be able
    to conclusively demonstrate a positive impact of the NTER measures. The
    Commission encourages stronger data collection structures be established to
    develop a proper evidence based approach for determining if the NTER measures
    are effective and should be continued or expanded in the future.

^top

11 Inadequate
consultation timeframes for the Senate Inquiry

  1. The lack of adequate consultation processes and timeframes has beleaguered
    the NTER since its introduction in 2007.

    Our visits to communities
    left us with a clear impression that there has been a progressive disengagement
    by government agencies from Aboriginal communities. By this we mean that not
    only are there few government personnel located in communities but that
    decisions affecting the communities in a very direct way were seen by the
    communities to be made by unknown people ‘in
    Canberra’.[81]

  2. When the initial NTER Bills were submitted to the Senate Committee for
    review in 2007, the Commission commented on the lack of consultation time
    provided during the Senate Inquiry for meaningful consideration and
    review:

    Almost every witness before the Senate Inquiry, as well as
    those that made written submissions to Parliament on the legislation, noted with
    regret the inability of the primary stakeholders to meaningfully interact with
    the process that was being set up to govern
    them.[82]

  3. Proper and adequate consultation with affected
    communities and organisations is a central and necessary component of the NTER.
    This was highlighted in the NTER Review Board’s Report in 2008, which
    recommended that:

    In addressing these needs both governments
    acknowledge the requirement to reset their relationship with Aboriginal people
    based on genuine consultation, engagement and
    partnership.[83]

  4. The importance of proper consultation with affected Indigenous communities
    is also recognised in the Declaration. It is also central to the principle of
    free, prior and informed consent, contained in the Declaration, which should
    frame the Governments model of consultation.
  5. The timeframe for this Senate Inquiry has been too short to allow for proper
    and extensive consultations or for it to receive submissions from a wide range
    of affected persons. This is primarily because both the Christmas holiday period
    and the Northern Territory’s wet season fall within the reporting period.
    The impact of this is that very few organisations and communities will be
    operating at their full capacity during this period. Consequently, the capacity
    of individuals and organisations to provide submissions and engage in public
    hearings with the Committee will be noticeably limited.
  6. The Common Understanding on free, prior and informed consent indicates that
    the time frame should respect the requirements of Indigenous peoples in the
    consultation process.
  7. The Commission notes that the inadequate timeframes provided for this Senate
    Inquiry, once again, has inhibited the process for adequate consultation and
    engagement with affected communities and primary stakeholders.

^top

Appendix
A: Draft guidelines for ensuring income management measures are compliant with
the Racial Discrimination
Act[84]

Visit: http://www.humanrights.gov.au/racial_discrimination/publications/RDA_income_management2009_draft.html

^top

Appendix B: Social Justice Report 2007: Recommendations
3-14[85]

The Northern Territory ‘Emergency Response’ intervention
– A human rights analysis

Recommendation 3: Provision of external merits review of
administrative decision-making

That the Parliament should immediately repeal all provisions which deny
external merits review. These provisions should be replaced with provisions
which make explicit that merits review processes do apply. This includes, but is
not limited to, the following provisions:

  • sections 34(9), 35(11), 37(5), 47(7), 48(5) and 49(4) of the Northern
    Territory National Emergency Response Act 2007     (Cth) relating to
    determinations about Indigenous land;
  • section 78 and sections 97 and 106 of the Northern Territory
    National Emergency Response Act 2007     (Cth) in relation to decisions by the
    Minister to suspend all the members of a community government council, and
    decisions of the Secretary of the Department of FACSIA in relation to community
    store licences respectively; and
  • new section 144(ka) of the Social Security (Administration) Act 1999 (enacted by the Social Security and other legislation amendment (Welfare
    Payment Reform) Act 2007     (Cth)) in relation to the right to seek a review by
    the Social Security Review Tribunal of decisions that relate to income
    management.

Note on implementation: This action can
only be achieved through amendments to the legislation.

Recommendation 4: Reinstatement of the Racial Discrimination Act 1975 (Cth)

That the Parliament immediately repeal the following provisions that exempt
the NT measures from the protections of the Racial Discrimination Act 1975 (Cth):

  • section 132(2), Northern Territory National Emergency Response Act
    2007     (Cth);
  • section 4(2), Families, Community Services and Indigenous Affairs and
    Other Legislation Amendment (Northern Territory National Emergency Response and
    Other Measures) Act 2007     (Cth); and
  • section 4(3),(5) and section 6(3), Social Security and Other Legislation
    Amendment (Welfare Payment Reform) Act 2007     (Cth).

Note on
implementation: This action can only be achieved through amendments to
the legislation.

Recommendation 5: Subject the NT intervention measures to
the safeguards of the Racial Discrimination Act 1975 (Cth)

That
the Parliament amend each of the following Acts by inserting a non-obstante clause in order to ensure that the NT provisions are subject
to the protections of the RDA in the exercise of all discretions under the
legislation:

  • section 132, Northern Territory National Emergency Response Act 2007 (Cth);
  • section 4, Families, Community Services and Indigenous Affairs and Other
    Legislation Amendment (Northern Territory National Emergency Response and Other
    Measures) Act 2007     (Cth); and
  • section 4 and section 6, Social Security and Other Legislation Amendment
    (Welfare Payment Reform) Act 2007 (Cth).

Section 4 of the Social
Security Legislation Amendment (Newly Arrived Residents’ Waiting Periods
and Other Measures) Act 1997 (Cth) provides a model for such a clause.

Such a clause might read as follows:

‘Without limiting the general operation of the Racial Discrimination
Act 1975 in relation to the NTNER measures, the provisions of the Racial
Discrimination Act 1975 are intended to prevail over the NTNER Act. The
provisions of this Act do not authorise conduct that is inconsistent with the
provisions of the Racial Discrimination Act 1975’.

Note on implementation: This action can only be achieved
through amendments to the legislation.

Recommendation 6: Amend the ‘special measures’ provisions of
the NT legislation

That the Parliament amend the following provisions of the NT intervention
legislation to clarify the status of the measures as ‘special
measures’ under the RDA:

  • section 132(1), Northern Territory National Emergency Response Act
    2007     (Cth);
  • section 4(1), Families, Community Services and Indigenous Affairs and
    Other Legislation Amendment (Northern Territory National Emergency Response and
    Other Measures) Act 2007     (Cth); and
  • section 4(1), (2) and (4), and section 6, Social Security and Other
    Legislation Amendment (Welfare Payment Reform) Act 2007     (Cth).

In particular, Parliament should:

  • remove those provisions which deem the measures to constitute a
    special measure;
  • replace these provisions with language which clarifies that the measures are intended to constitute special measures; and
  • insert new provisions that require that in the performance of any actions
    undertaken to implement the measures contained in the legislation, the intended
    beneficial purpose of the legislation must be a primary consideration.

Note on implementation: This action can only be
achieved through amendments to the legislation.

Recommendation 7: Subject the intervention measures to regular monitoring
and review to establish whether they meet the purposes of a ‘special
measure’

That the government ensure strict monitoring and evaluation provisions to
ensure that only those measures that are appropriate and adapted to the purpose
of child protection are maintained. Such monitoring should particularly focus on
measures relating to income management, alcohol bans, changes to the permit
system and compulsory acquisition of Aboriginal land.

Note on implementation: This action can be achieved through the
exercise of powers vested in the Minister for Indigenous Affairs. It may require
amendments to the legislation by Parliament at a future time.

Recommendation 8: Application of the Anti-Discrimination Act 1992 (NT)

a) That the Minister for Indigenous Affairs declare that the Anti-Discrimination Act 1992 (NT) continues to have effect in all
prescribed communities under the NT intervention legislation and that the Anti-Discrimination Act 1991 (Qld) continues to be of effect in relation
to welfare reforms in Cape York.

b) That Parliament repeal the following provisions of the legislation to
remove this restriction on Indigenous peoples right to obtain remedy:

  • section 133, Northern Territory National Emergency Response Act 2007 (Cth);
  • section 5, Families, Community Services and Indigenous Affairs and Other
    Legislation Amendment (Northern Territory National Emergency Response and Other
    Measures) Act 2007     (Cth); and
  • section 5, Social Security and Other Legislation Amendment (Welfare
    Payment Reform) Act 2007     (Cth).

Note on
implementation: This action can be achieved in the short term through
the exercise of powers vested in the Minister for Indigenous Affairs. This
should be backed up by amendments to the legislation by Parliament to confirm
that discriminatory provisions have no place in Australian law and to ensure
full compliance with Australia’s human rights obligations.

Recommendation 9: Negotiate with Aboriginal owners in relation to access
to Aboriginal land

That the Minister for Indigenous Affairs place a moratorium on 5 year
compulsory leases over Aboriginal land. Further, that the Minister direct public
servants and Government Business Managers to conduct negotiations with
Aboriginal communities to obtain access to Aboriginal land for infrastructure
and related purposes.

Note on implementation: This action can be achieved through the
exercise of Ministerial discretion (such as by choosing to not exercise
her discretion to compulsorily acquire property and instead instructing
government officials to negotiate with Aboriginal communities).

Recommendation 10: Amend the legislation to ensure the entitlement to
‘just terms’ compensation

That the Parliament amend sections 60 and 134 of the Northern Territory
National Emergency Response Act 2007 (Cth) to remove the exemption from
section 50(2) the Northern Territory (Self Government) Act 1978).

Note on implementation: This action can only be achieved
through amendments to the legislation.

Recommendation 11: Reinstate CDEP and develop community based options for
income management

a) That the CDEP scheme be reinstated in the Northern Territory, with
community economic development plans developed into the future to ensure the
transition from CDEP into ‘real jobs’ where possible.

b) That voluntary income management measures be introduced for CDEP
participants.

c) That the income management regime under the Social Security and Other
Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth) be reviewed
and amended to ensure compliance with human rights standards as outlined in this
report.

d) That the government support the development and introduction of voluntary
income management and financial literacy programs for welfare recipients. When
such programs are operational in prescribed Aboriginal communities, individuals
and potential communities should be exempted by the Minister from the mandatory
income management regime as set out in the Social Security and Other
Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth).

Note on implementation: Aspects of this action require
amendments to the legislation, while others can be achieved through the exercise
of Ministerial discretion or at the operational level in delivering services to
communities.

Recommendation 12: Supporting community based initiatives for alcohol
management

That the alcohol management scheme established in the Northern Territory
National Emergency Response Act 2007 (Cth) be reviewed to establish its
workability as well as whether it adds value beyond the measures relating to dry
community restrictions and permits adopted by the Northern Territory Liquor
Commission.

That all alcohol management processes should occur consistent with the RDA.
Central to this is ensuring the participation of Indigenous peoples in
developing, implementing and monitoring alcohol management plans.

Note on implementation: Aspects of this action may ultimately
require amendments to the legislation, while others can be achieved through the
exercise of Ministerial discretion or at the operational level in delivering
services to communities.

Recommendation 13: Ensuring Indigenous participation and developing
community partnerships

That the Minister for Indigenous Affairs direct the NT Emergency Response
Taskforce and all public servants to ensure the participation of Indigenous
peoples in all aspects of the design, delivery and monitoring of the
intervention measures.

That the Minister task Government Business Managers operating at the local
level to develop Community Partnership Agreements as the basis for
shared action by the community and governments. Such agreements should be
developed with the express purpose of setting a comprehensive community
development plan for communities as an alternative that can ultimately supersede
the application of various intervention measures (such as mandatory income
management).

Note on implementation: This action can primarily be achieved
through the exercise of Ministerial discretion or at the operational level in
delivering services to communities. A process of Community Partnership
Agreements may ultimately require amendments to the legislation in the
future.

Recommendation 14: Monitoring and evaluation of the NT
intervention

That the intervention measures be independently monitored 12 months following
their commencement to establish whether the legislation is achieving its
intended purposes; is resulting in unintended negative consequences; and to
assess appropriate alternative approaches or mechanisms that would enhance the
ability of the legislation to achieve its purpose.

Such a review should ensure the full participation of Indigenous peoples in
affected communities in the NT and should also address the specific concerns
raised in this report relating to human rights compliance

Note on implementation: This action can primarily be achieved
through the exercise of Ministerial discretion or at the operational level in
delivering services to communities.

^top

Appendix C: Social Justice Report 2007: Modifying the NT intervention measures
so that they comply with human rights – a ten point action plan for the
future of Aboriginal children in the Northern
Territory[86]

In this final section of this report I outline a Ten Point Action Plan for modifying the NT intervention so that it respects the human rights of
Aboriginal people and treats us with dignity. This ten point plan is as
follows:

Action 1: Restore all rights to procedural fairness and external
merits review under the NT intervention legislation;

Action 2: Reinstate protections against racial discrimination in the
operation of the NT intervention legislation;

Action 3: Amend or remove the provisions that declare that the
legislation constitutes a ‘special measure’

Action 4: Reinstate protections against discrimination in the Northern
Territory and Queensland

Action 5: Require consent to be obtained in the management of
Indigenous property and amend the legislation to confirm the guarantee of just
terms compensation

Action 6: Reinstate the CDEP Program and review the operation of the
income management scheme so that it is consistent with human rights

Action 7: Review the operation and effectiveness of the alcohol
management schemes under the intervention legislation

Action 8: Ensure the effective participation of Indigenous peoples in
all aspects of the intervention – Developing Community Partnership
Agreements

Action 9: Set a timetable for the transition from an
‘emergency’ intervention to a community development plan

Action 10: Ensure stringent monitoring and review processes.

In putting forth this plan, I note that the newly elected federal government
has emphasised the importance of ensuring that the NT intervention proceeds in a
manner that is consistent with Australia’s human rights obligations. For
example, they have stated that ‘Observing the integrity of the Racial
Discrimination Act is a basic principle for this country and a basic principle
for the Indigenous community of this country’.

Accordingly, this action plan provides a platform for the newly elected
government to meet their stated commitments in relation to the NT intervention.
The overall objective of this action plan is to remove the discrimination from
the legislation and in its operation. There are three main ways that the NT
intervention can be modified:

  • amending the NT intervention legislation;
  • utilising the powers provided under the legislation (predominately through
    powers to make non-reviewable legislative instruments, vested in the Minister
    for Indigenous Affairs); or
  • in the operation of the measures in communities.

So long as the
NT intervention legislation permits the conduct of racially discriminatory
actions, it will lack legitimacy among Aboriginal people and communities as well
as the broader Australian society. It will also leave Australia in breach of its
international human rights obligations.

^top

[1] The five acts that constitute
the NTER are:

  • Northern Territory National Emergency Response Act 2007 (Cth) (NTNER Act);
  • Families, Community Services and Indigenous Affairs and Other Legislation
    Amendment (Northern Territory National Emergency Response and Other Measures)
    Act 2007     (Cth) (FCSIA Act);
  • Social Security and Other Legislation Amendment (Welfare Payment Reform)
    Act 2007     (Cth) (SSWP Act)
  • Appropriation (Northern Territory National Emergency Response) Act (No.
    1) 2007-2008     (2007) (Cth) (Appropriation Act No 1) and
  • Appropriation (Northern Territory National Emergency Response) Act (No.
    2) 2007-2008     (2007) (Cth) (Appropriation Act No 2).

Collectively these acts are referred to as the ‘NTER
legislation’ in this
submission.

[2] Committee on the
Elimination of Racial Discrimination, Concluding Observations on the United
States of America, UN Doc CERD/C/USA/CO/6 (2008), par 29. At
http://www1.umn.edu/humanrts/CERDConcludingComments2008.pdf (viewed 20 January
2010).

[3] The UN Permanent Forum
on Indigenous Issues has issued a common understanding on the principle that
outlines the requirements of free, prior and informed consent (Common
Understanding). Permanent Forum on Indigenous Issues, Key elements of the
principle of free, prior and informed consent (2005). At http://www.humanrights.gov.au/social_justice/nt_report/ntreport05/pdf/ntr-nx03.pdf (viewed 20 January 2010).

[4] Part
II relates to the prohibition of racial discrimination and Part IIA to the
prohibition of offensive behaviour based on racial
hatred.

[5] Note that these
guidelines do not alter the operation of the RDA and compliance with them does
not constitute a defence to an allegation of discrimination under the
RDA.

[6] Northern Territory
Emergency Response Review Board, Report of the NTER Review Board (2008),
pp 9-10. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 20 January 2010).

[7] Northern Territory Emergency Response Review Board, Report of the NTER Review
Board (2008), p 12. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 20 January 2010).

[8] Human
Rights Committee, Concluding Observations of the Human Rights Committee:
Australia, UN Doc CCPR/C/AUS/CO/5 (2009), par 14. At
http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO-5.doc (viewed 20
January 2010).

[9] Committee on
Economic, Social and Cultural Rights, Concluding Observations of the
Committee on Economic, Social and Cultural Rights: Australia, UN Doc
E/C.12/AUS/CO/4 (2009), par 15. At
http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-A…
(viewed 20 January 2010).

[10] UN
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Preliminary Note on the Situation of the Indigenous Peoples
in Australia, UN Doc A/HRC/12/34/Add.10 (2009), pars 6-9. At
http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A.HRC.12…
(viewed 20 January 2010).

[11] Committee on the Elimination of Racial Discrimination, ‘Correspondence to
the Australian Government following up on the Early Warning and Urgent Action
Procedure on the issues raised before the Committee in relation to the Northern
Territory Emergency Response’, 28 September 2009. At
http://www2.ohchr.org/english/bodies/cerd/docs/early_warning/Australia2…
(viewed 20 January 2010).

[12] Gerhardy v Brown (1985) 159 CLR 70,
94.

[13] Aboriginal and Torres
Strait Islander Commissioner, Social Justice Report 2007 (2008), p 265.
At http://humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html
(viewed 20 January 2010).

[14] Department of Families, Housing, Community Services and Indigenous Affairs, Policy Statement: Landmark Reform to the Welfare System, Reinstatement of the
Racial Discrimination Act and Strengthening of the Northern Territory Emergency
Response, (2009), pp 12-14. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 20 January 2010).

[15]. Gerhardy (1985) 159 CLR 70, Brennan J (133). The CERD Committee in
General Comment 32 has outlined similar requirements of a special measure under
ICERD as follows:

16. Special measures should be appropriate to the situation to be remedied,
be legitimate, necessary in a democratic society, respect the principles of
fairness and proportionality, and be temporary. The measures should be designed
and implemented on the basis of need, grounded in a realistic appraisal of the
current situation of the individuals and communities concerned.

17. Appraisals of the need for special measures should be carried out on the
basis of accurate data, disaggregated by race, colour, descent and ethnic or
national origin and incorporating a gender perspective, on the socio-economic
and cultural 35status and conditions of the various groups in the
population and their participation in the social and economic development of the
country’.

18. States parties should ensure that special measures are designed and
implemented on the basis of prior consultation with affected communities and the
active participation of such communities.

(Committee on the Elimination of
Racial Discrimination, General Comment 32 - The meaning and scope of special
measures in the International Convention on the Elimination of all forms of
Racial Discrimination (2009), pars 16-18. At
http://www2.ohchr.org/english/bodies/cerd/docs/GC32.doc (viewed 1 October
2009)).

[16] Article 19 of the
Declaration states: 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.

[17] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2009 (2009), p 154. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/pdf/ntr2009.pdf (viewed 28 January 2010).

[18] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2009 (2009), p 155. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/pdf/ntr2009.pdf (viewed 28 January 2010).

[19] Department of Families, Housing, Community Services and Indigenous Affairs, Future Directions for the NTER - Discussion Paper (2009), Section 5: Next
Steps. At http://www.fahcsia.gov.au/SA/INDIGENOUS/PUBS/NTER_REPORTS/FUTURE_DIRECTIONS_DISCUSSION_PAPER/Pages/next_steps.aspx (viewed 20 January 2010).

[20] Cultural and Indigenous Research Centre Australia (CIRCA), Report on the NTER
Redesign Engagement Strategy and Implementation (2009), p 13. At
http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/red…
(viewed 20 January 2010).

[21] Department of Families, Housing, Community Services and Indigenous Affairs, Report on the Northern Territory Emergency Response Redesign
Consultations (2009), Executive Summary. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_consultations/exec.htm (viewed 28 January 2010). The executive summary also reported ‘In some
consultations, this topic was not discussed, or was discussed only briefly,
because the community was not subject to five-year leasing or the people present
deferred to the Traditional Owners or the Land Councils on this matter’.
See also Cultural and Indigenous Research Centre Australia (CIRCA), Report on
the NTER Redesign Engagement Strategy and Implementation (2009), p 13. At
http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/red…
(viewed 20 January 2010). See also some limitations of the consultation process
identified in A Nicholson, L Behrendt, A Vivian, N Watson, M Harris,
‘Will They Be Heard – a response to the NTER Consultations June
to August 2009 (2009). At http://indigenouspeoplesissues.com/attachments/3094_WillTheyBeHeard_NT_2009.pdf (viewed 28 January 2010).

[22] Cultural and Indigenous Research Centre Australia (CIRCA), Report on the NTER
Redesign Engagement Strategy and Implementation (2009), p 13. At
http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/red…
(viewed 20 January 2010).

[23] Department of Families, Housing, Community Services and Indigenous Affairs, Report on the Northern Territory Emergency Response Redesign
Consultations (2009), pp 39 and 51. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_consultations/sec2.htm#t2 (viewed 20 January 2010).

[24] UN
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Preliminary Note on the Situation of the Indigenous
Peoples in Australia, UN Doc A/HRC/12/34/Add.10 (2009), par 8. At
http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A.HRC.12…
(viewed 20 January 2010).

[25] UN
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Preliminary Note on the Situation of the Indigenous
Peoples in Australia, UN Doc A/HRC/12/34/Add.10 (2009), par 8. At
http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A.HRC.12…
(viewed 20 January 2010).

[26] FaHCSIA, Policy Statement: Landmark Reform to the Welfare System,
Reinstatement of the Racial Discrimination Act and Strengthening of the Northern
Territory Emergency Response (2009), p 6. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 4 February 2010).

[27] Department of Families, Housing, Community Services and Indigenous Affairs, Future Directions for the Northern Territory Emergency Response –
Discussion Paper (2009). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/future_directions_discussion_paper/Pages/default.aspx (viewed 4 February 2010)

[28] Welfare payment recipients may also be subject to income management where
required by a child protection officer or the Queensland Commission, or where
school enrolment or attendance requirements are not met, see Division 2, SSA
Act.

[29] Aboriginal and Torres
Strait Islander Commissioner, Social Justice Report 2007 (2008). At
http://humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html (viewed
20 January 2010); Northern Territory Emergency Response Review Board, Report of the NTER Review Board (2008), ch 2. At www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/nt_eval_rpt/NT_eval_rpt.pdf (viewed 20 January 2010).

[30] Northern Territory Emergency Response Review Board, Report of the NTER Review
Board (2008), ch 2 (2.1 Measure 1: Welfare reform and employment). At http://www.nterreview.gov.au/docs/report_nter_review/ch2.htm#2_1 (viewed 20 January 2010).

[31] Northern Territory Emergency Response Review Board, Report of the NTER Review
Board (2008), ch 2 (2.1 Measure 1: Welfare reform and employment). At http://www.nterreview.gov.au/docs/report_nter_review/ch2.htm#2_1 (viewed 20 January 2010).

[32] Northern Territory Emergency Response Review Board, Report of the NTER Review
Board (2008), p 12. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 20 January 2010).

[33] Department of Families, Housing, Community Services and Indigenous Affairs, Policy Statement: Landmark Reform to the Welfare System, Reinstatement of the
Racial Discrimination Act and Strengthening of the Northern Territory Emergency
Response (2009), p 6. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 20 January 2010).

[34] Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare
Reform and Reinstatement of Racial Discrimination Act) Bill 2009 (Cth),
14.

[35] Welfare Reform Bill,
Schedule 2, item 29 (s 123TC).

[36] The Government Welfare
Reform Bill identifies seven categories of welfare recipients in total who can
be subjected to income management:

(a) a child protection officer of a State or Territory requires the person to
be subject to the income management regime; or

(b) the Secretary has
determined that the person is a vulnerable welfare payment recipient; or

(c)
the person meets the criteria relating to disengaged youth; or

(d) the person
meets the criteria relating to long-term welfare payment recipients; or

(e)
the person, or the person’s partner, has a child who does not meet school
enrolment requirements; or

(f) the person, or the person’s partner, has
a child who has unsatisfactory school attendance; or

(g) the Queensland
Commission requires the person to be subject to the income management regime.

Welfare Reform Bill, Schedule 2, item 25 (s
123TA).

[37] Government Welfare
Reform Bill, Schedule 2, item 37, (ss 123UGB, 123UGC,
123UGD)

[38] Government Welfare
Reform Bill, Schedule 2, item 25 (s 123TA), items 46-53 and
61.

[39] Government Welfare
Reform Bill, Schedule 2, item 61 (ss 1061W, 1061WA,
1061WB).

[40] Welfare Reform
Bill, Schedule 2, item 61 (ss 1061WG,
1061WH).

[41] Australian
Institute for Health and Welfare, The evaluation of income management in the
Northern Territory (2010), Executive Summary. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/nt_eval_rpt/0_summary.htm (viewed 20 January 2010).

[42] Australian Bureau of Statistics, 2005 Personal Safety Survey (Reissue) (2006). At: http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/056A404DAA576AE6CA2571D00080E985/$File/49060_2005%20(reissue).pdf (viewed 5 February 2010)

[43] Veterans’ benefits are distinct from welfare benefits, as the former are
provided to support those who serve or have served in defence of the nation and
commemorate their service and sacrifice. Eligible veterans, serving and former
defence force members, their war widows and widowers and dependants are provided
appropriate compensation, income support, health care and other services in
recognition of the effects of war and defence service (Department of Veterans
Affairs website, http://www.dva.gov.au/Pages/home.aspx (viewed 20 January 2010)).

[44] Government Welfare Reform Bill, Schedule 2, item 42 (ss 123XJA, 123XJB, 123XJC,
123XJD).

[45] Rita Markwell,
Adviser to Minister Macklin, Department of Families, Housing, Community Services
and Indigenous Affairs, Email sent to stakeholders, 18 December 2009.

[46] The sources relied upon by
the Government include: the Australian Institute for Health and Welfare, The
evaluation of income management in the Northern Territory (2010); Department
of Families, Housing, Community Services and Indigenous Affairs, Report on
the Northern Territory Emergency Response Redesign Consultations (2009);
Cultural and Indigenous Research Centre Australia (CIRCA), Report on the NTER
Redesign Engagement Strategy and Implementation, (2009); Department of Families,
Housing, Community Services and Indigenous Affairs, Final Stores Post
Licensing Monitoring Report (2009); Central Land Council, NTER:
Perspectives from Six Communities (2008); and analysis of Centrelink data
(Rita Markwell, Adviser to Minister Macklin, Department of Families, Housing,
Community Services and Indigenous Affairs Email sent to stakeholders, 18
December 2009).

[47] Australian
Institute for Health and Welfare, The evaluation of income management in the
Northern Territory (2010), Executive Summary. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/nt_eval_rpt/0_summary.htm (viewed 20 January 2010).

[48] Central Land Council, NTER: Perspectives from Six Communities (2008).

[49] Department of
Families, Housing, Community Services and Indigenous Affairs, Policy
Statement: Landmark Reform to the Welfare System, Reinstatement of the Racial
Discrimination Act and Strengthening of the Northern Territory Emergency
Response (2009), p 6. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 4 February 2010).

[50] Department of Families, Housing, Community Services and Indigenous Affairs, Policy Statement: Landmark Reform to the Welfare System, Reinstatement of the
Racial Discrimination Act and Strengthening of the Northern Territory Emergency
Response (2009), p 6. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 4 February 2010).

[51] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007 (2008), Ch 2. At http://humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html
(viewed 20 January 2010).

[52] Cultural and Indigenous Research Centre Australia (CIRCA), Report on the NTER
Redesign Engagement Strategy and Implementation (2009), p 13. At
http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/red…
(viewed 20 January 2010).

[53] Government Welfare reform Bill, Schedule 3, item 10 (s 18 94)), item 11 (s 19
(6)), item 12 (s 19A(5))

[54] Government Welfare reform Bill, Schedule 4, Item 5 (s100A (5) and 100B
(5)).

[55] Department of
Families, Housing, Community Services and Indigenous Affairs, Policy
Statement: Landmark Reform to the Welfare System, Reinstatement of the Racial
Discrimination Act and Strengthening of the Northern Territory Emergency
Response (2009), p 6. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 4 February 2010).

[56] Government Welfare Reform Bill, Schedule 5, item
1

[57] Government Welfare Reform
Bill, Schedule 5, item 2

[58] Government Welfare Reform Bill, Schedule 5, item
3

[59] Government Welfare Reform
Bill, Schedule 5, item 5

[60] Government Welfare Reform Bill, Schedule 5, item
6

[61] J Macklin (Minister for
Families, Housing, Community Services and Indigenous Affairs), ‘High Court
decision on NT five-year leases’ (Media Release, 2 February 2009). At http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/high_court_decision_02feb09.htm (viewed 5 December 2009).

[62] Government Welfare Reform Bill Schedule 5, Item
1.

[63] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2009 (2009), p 155. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/pdf/ntr2009.pdf (viewed 28 January 2010).

[64] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2009 (2009), p 155. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/pdf/ntr2009.pdf (viewed 28 January 2010).

[65] J
Macklin (Minister for Families, Housing, Community Services and Indigenous
Affairs), Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Bill 2009 Second Reading
Speech (25 November 2009). At http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/ss_legislation_amend_25nov2009.htm (viewed 28 January 2010).

[66] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2009 (2009), p 155. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/pdf/ntr2009.pdf (viewed 28 January 2010).

[67] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2009 (2009), p 156. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/pdf/ntr2009.pdf (viewed 28 January 2010).

[68] Department of Families, Housing, Community Services and Indigenous Affairs, Policy Statement: Landmark Reform to the Welfare System, Reinstatement of the
Racial Discrimination Act and Strengthening of the Northern Territory Emergency
Response (2009), p 6. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 4 February 2010).

[69] Department of Families, Housing, Community Services and Indigenous Affairs, Policy Statement: Landmark Reform to the Welfare System, Reinstatement of the
Racial Discrimination Act and Strengthening of the Northern Territory Emergency
Response (2009), p 6. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 4 February 2010).

[70] Government Welfare Reform Bill, Schedule 6, item
49.

[71] Explanatory Memorandum,
Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Bill 2009 (Cth), p 75. At: http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4265_ems_e258b1c4-a0cb-427d-b501-84f885b5ca90/upload_pdf/336802.pdf;fileType=application%2Fpdf (viewed 1 February 2009)

[72] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2009 (2009), Ch 1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/pdf/ntr2009.pdf (viewed 28 January 2010), Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2008 (2009), Ch 2. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap2.pdf (viewed 1 February 2010), Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2007 (2008) Ch 6. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/chapter6.html (viewed 1 February 2010).

[73] Northern Territory National Emergency Response Act 2007 (Cth), s
65.

[74] Department of Families,
Housing, Community Services and Indigenous Affairs, Policy Statement:
Landmark Reform to the Welfare System, Reinstatement of the Racial
Discrimination Act and Strengthening of the Northern Territory Emergency
Response (2009), p 6. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 4 February 2010).

[75] Department of Families, Housing, Community Services and Indigenous Affairs, Future Directions for the NTER - Discussion Paper (2009), Section 5: Next
Steps. At http://www.fahcsia.gov.au/SA/INDIGENOUS/PUBS/NTER_REPORTS/FUTURE_DIRECTIONS_DISCUSSION_PAPER/Pages/next_steps.aspx (viewed 4 February 2010). See Northern Territory National Emergency Response
Act 2007 (Cth), s 78, outlining the suspension of council
members.

[76] Department of
Families, Housing, Community Services and Indigenous Affairs, Policy
Statement: Landmark Reform to the Welfare System, Reinstatement of the Racial
Discrimination Act and Strengthening of the Northern Territory Emergency
Response, (2009), pp 12-14. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Documents/landmark_reform_welfare_system.pdf (viewed 20 January 2010).

[77] Aboriginal and Torres Strait Islander Commissioner, Social Justice Report
2007 (2008), p 32. At
http://humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html (viewed
20 January 2010).

[78] Human
Rights and Equal Opportunity Commission, Submission to the Northern Territory
Emergency Response Review Board (2008), Summary. At http://humanrights.gov.au/legal/submissions/2008/20080815_nt_response.html (viewed 20 January 2010).

[79] Northern Territory Emergency Response Review Board, Report of the NTER Review
Board (2008), p 16. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 20 January 2010).

[80] Australian Institute for Health and Welfare, The evaluation of income
management in the Northern Territory (2010), p iv. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/nt_eval_rpt/.htm (viewed 20 January 2010).

[81] Northern Territory Emergency Response Review Board, Report of the NTER Review
Board (2008), p 48. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 20 January 2010).

[82] Aboriginal and Torres Strait Islander Commissioner, Social Justice Report
2007 (2008), p 211. At
http://humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html (viewed
20 January 2010).

[83] Northern
Territory Emergency Response Review Board, Report of the NTER Review
Board (2008), p 48. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 20 January 2010).

[84] Australian Human Rights Commission, Draft guidelines for ensuring income
management measures are compliant with the Racial Discrimination Act (2009).
At http://humanrights.gov.au/racial_discrimination/publications/RDA_income_management2009_draft.html (viewed 20 January 2010).

[85] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007 (2008), pp 303-308. At
http://humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html (viewed
20 January 2010).

[86] Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social Justice Report
2007 (2008), p 294. At
http://humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html (viewed
20 January 2010).