Northern Territory Emergency Response Review Board

Legal

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

Human Rights and Equal Opportunity
Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW
2001

Ph. (02) 9284 9600

Introduction
Summary
- Recommendations
Ten point plan to amend the NTER
- Impacts of the NTER
Alternative Measures
Appendix 1: Social Justice Report 2007 - Recommendations 3-14 for the NTER
Appendix 2: Social Justice Report 2007 - Human rights based indicators for programs addressing violence and abuse in Indigenous communities

Introduction

The Human Rights and Equal Opportunity Commission (HREOC) makes this
submission to the Northern Territory Emergency Response Review Board
(‘Review Board’) for its Review of the Northern Territory Emergency
Response (‘NTER’).
HREOC is Australia’s national human rights
institution.^[1]
HREOC welcomes the review of the NTER. HREOC supports the Review
Board’s endeavours to assess the progress of the NTER and the
effectiveness of the measures in achieving the intended effects and identifying
changes to improve the measures and monitor performance.

Summary

The need for government to take concrete action to address and prevent child
sexual assault in Indigenous communities remains a paramount concern. . All
children have the right to a life free from violence and abuse; and the
Australian Government has a responsibility to ‘protect the child from all
forms of maltreatment by parents or others responsible for the care of the child
and establish appropriate social programmes for the prevention of abuse and the
treatment of victims’.^[2] The
failure of the government to address family violence and child abuse is a breach
of its human rights obligations under the Convention on the Rights of the
Child (CRoC), the International Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW) and the International
Convention on the Elimination of All Forms of Racial Discrimination
(ICERD).
It is evident that the problem of child sexual assault is related to the
broader issues affecting Indigenous communities namely: poverty, disadvantage
and discrimination. Any intervention addressing child sexual assault must
necessarily address the well-being of the community as a whole and have a
particular focus on overcome Indigenous disadvantage.
Government action cannot occur without the full participation of affected
Indigenous communities or without the full protection of Indigenous
people’s human rights.
HREOC’s submission will discuss the effectiveness and impacts of the
NTER in terms of its compliance with Australia's human rights obligations.
A human rights based approach ensures the participation of those affected in
policy development and service delivery, 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.
HREOC’s submission refers the Review Board to the Social Justice
Report 2007^[3] which outlines:
- a ten point action plan on how the NTER could be amended to be made
  compliant with human rights standards; and
- a human rights based approach to family violence and abuse in Aboriginal
  communities.
HREOC also refers the Review Board to the community consultations with
affected Indigenous communities obtained from the Sex Discrimination
Commissioner’s Listening Tour in the Northern Territory (2008) and the
HREOC National Race Relations Roundtable Meeting held in October 2007.
HREOC’s submission notes that there is limited available data
collected by government on the impact of the NTER on the members of affected
Indigenous communities.
The effectiveness of the NTER will vary among affected individuals and
communities. However, where the NTER measures violate the human rights of the
intended beneficiaries it is more likely to undermine the overall well-being of
the communities in which they live in both the short and the longer term.
The analysis of the impacts also highlights the need for government to
sustain long-term commitments to: address child sexual assault and the
underlying issues of poverty, disadvantage and discrimination; and develop
appropriate participatory monitoring and evaluation structures to assess the
ongoing impact of these government programs.
Mindful of the importance of identifying improvements for measures and
programs, HREOC’s submission promotes:
- a human rights based approach to programs and service delivery and provides
  examples of effective human rights based projects that specifically address
  family violence and abuse;
- the need to shift away from rolling out ‘one size fits all
  programs’ to flexible and responsive community based, community
  development programs that are responsive to the differing needs and contexts of
  the many communities in the Northern Territory;
- the critical role of human rights education as a preventative strategy that
  can increase Indigenous people’s - including children and young
  people’s - awareness of human rights and strengthen their capacity to
  resolve disputes and address issues within the community.

Recommendations

HREOC recommends the Review Board:
- Call for the implementation of the ten point plan and associated
  recommendations made in the Social Justice Report 2007 [Recommendation
  No. 1];
- Call for the government to make substantial, long term sustainable
  commitments across all Indigenous communities to address child abuse, including
  child sexual abuse, and the underlying problems of poverty, disadvantage and
  discrimination [Recommendation No. 2];
- Refer to the principles and elements of a human rights based approach as a
  foundation for responses to family violence and sexual assault and underlying
  Indigenous disadvantage [Recommendation No. 3];
- Call for human rights education projects to be undertaken to raise awareness
  and build the capacity of communities to address family violence and sexual
  assault [Recommendation No. 4].

Ten
point plan to amend the NTER

Family violence and abuse has been a prevalent problem in some Indigenous
communities for many years. Unfortunately, while there has been no shortage of
reports and inquiries outlining the problem, there has been a severe lack of
concerted, long term action taken by governments working in partnership with
communities to address their findings.
When the Australian Government announced a ‘national emergency
response to protect Aboriginal children in the Northern Territory’ from
sexual abuse and family violence on 21 June
2007,^[4] the Aboriginal and Torres
Strait Islander Social Justice Commissioner (‘Social Justice
Commissioner’) welcomed the announcement, but cautioned that any response
must be conducted in line with Australia’s international human rights
obligations, and particularly, in a manner consistent with the Racial
Discrimination Act 1975 (Cth)
(‘RDA’).^[5]
In Social Justice Report 2007, the Social Justice Commissioner
further clarified the human rights obligations of the Commonwealth Government:

The government has an obligation to take action to address violence
and abuse, particularly where there is evidence that is it widespread.
Governments that fail to do so are in breach of their obligations under the Convention on the Rights of the Child (CRoC), the International
Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW) and the International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD).

Human rights are universal and indivisible. This means that they apply to
everyone, everywhere, all the time and that different sorts of rights have equal
importance. Governments should not privilege the enjoyment of one right over
that of another, as if different rights are in competition with each other or
subject to a hierarchy of ‘more important’ and ‘less
important’ rights.^[6]

The Social Justice Report 2007 considered the human rights compliance
and impact of the NTER with reference to Australia’s international
obligations and specifically the RDA. The Report found that the Government has
an obligation to take measures to address family violence and child abuse in
Indigenous communities. However, the NTER is not a situation that justifies
introducing measures that place restrictions on the rights of Indigenous peoples
such as over-riding the principles of non-discrimination and just compensation
or safeguards for procedural fairness. The NTER legislation cannot be
legitimately exempted from the RDA or Northern Territory anti-discrimination
legislation, or deemed to be a ‘special measure’ under the RDA, as
aspects of the NTER negatively impact on Indigenous people’s rights and
the NTER was not introduced with proper consultation or consent. Specific
elements of the NTER such as the income management scheme, the abolition of the
CDEP scheme and the introduction of alcohol bans in prescribed communities were
found to raise human rights concerns.
In order to address these concerns, the Social Justice Report 2007 includes a ten point action plan that identifies measures for amending the NTER
to ensure its consistency with Australia’s human rights obligations and
with equal treatment of Indigenous children and their families before the law.
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.^[7]

This ten point plan has three main aims. First, it articulates how to remove
formal discrimination under the NTER legislation (Actions 1-5). Second, it
proposes a method for ensuring that schemes for income management and alcohol
control are undertaken in a manner that is consistent with the RDA and that
qualify as a ‘special measure’ (actions 6-7). Third, it identifies
an approach to transition from a crisis/ emergency approach to a community
development approach through ensuring participatory processes, the creation of
community development plans and rigorous participatory based monitoring and
reviews.
In launching the Social Justice Report, the Social Justice
Commissioner commented that this action plan identifies:

changes to
the current framework for the intervention to ensure that the legislation is
applied fairly with the ordinary protections that apply for all other
Australians... I challenge anyone to explain how providing these basic
democratic protections could possibly hinder the goal of protecting children.
The only possible answer is ‘short term expedience’ prevailing over
guarantees of access to justice. And that is not a good enough
answer.^[8]

He further noted:

measures that violate the human rights of the intended beneficiaries are more
likely to work in ways that undermine the overall well-being of the communities
in which they live in both the short and the longer term.

For example, the Government has clearly stated that the NT intervention seeks
to address a breakdown in law and order in Aboriginal communities. And yet it
potentially involves introducing measures that undermine the rule of law and
that do not guarantee Aboriginal citizens equal treatment to other Australians.

If this is the case, then it places a fundamental contradiction at the heart
of the NT intervention measures. This will inhibit the building of
relationships, partnerships and trust between the Government and Indigenous
communities. It would also undermine the credibility of the measures, and
ultimately, threaten the sustainability and long term impact of the measures.

The approach I am recommending here sets out a major challenge to government
and to communities. It is also, however, a case of challenging the government to
deliver what it has promised to do through the intervention. And it would enable
the government to do this in a manner that respects human rights and human
dignity.^[9]

The Social Justice Report 2007 also made 12 recommendations for
implementing the proposed ten point action plan (see Appendix 1 for a complete
list of these recommendations).
To date, elements of the recommendations have been implemented. The
recommendation to reinstate CDEP in the 25 prescribed communities and five town
camp regions in the Northern Territory was implemented on 30 June 2008. The
government has also distributed a discussion paper on ‘The Future of CDEP
and Indigenous Employment Programs’ in May 2008, with a view to having a
report on the review of CDEP to be completed in 2009.
Secondly, the Minister has decided not to exercise her discretion to remove
permits, which is allowed for under the Families, Community Services and
Indigenous Affairs and Other Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007 (effective since 17 February
2008). The Minister also introduced a Bill in Parliament in February
2008^[10] to reinstate aspects of the
permit systems that were removed under the NTER. The Bill proposes to remove the
provisions enacted by the former Government, but will retain the capacity of the
Commonwealth Minister to permit selected individuals or classes of individuals
to enter any specified Indigenous land.
Thirdly, this review of the NTER implements the recommendation to independently monitor intervention measures 12 months following their
commencement.
The terms of reference for the review delineates processes that includes
inviting public submissions, undertaking consultations with Indigenous people
and commissioning its own data collection and research as appropriate.
HREOC notes however the limited time and capacity for the Review. Further
HREOC notes that this review of the NTER may be constrained by the lack of
benchmarking and monitoring data collected prior to the Review Board’s
formation in June 2008. At the commencement of the NTER HREOC noted that there
were insufficient baseline measures in place to allow a comparison of the
circumstances of Indigenous peoples before and after the
NTER.^[11] The lack of benchmarking
and monitoring data and processes limits the capacity to assess the
effectiveness of the NTER.
HREOC recommends the Review Board call for the full implementation of the
ten point plan and associated recommendations made in the Social Justice
Report 2007 [Recommendation No. 1].

Impacts of the
NTER

The problems of child sexual assault are related to the broader issues
affecting Indigenous communities namely, poverty, disadvantage and
discrimination.^[12]
The socio-economic disadvantage experienced among Indigenous people results
in children living in poverty, overcrowded houses, and a lack of access to
affordable and accessible health and education
services.^[13] The discussion on
abuse needs to consider the role of government in the failure to provide
accessible and affordable services and opportunities, and the consequent
fostering of conditions that can contribute to child abuse and neglect.
Any intervention addressing child sexual assault must necessarily address
the well-being of the community as whole, and have a particular focus on
overcoming Indigenous disadvantage. This includes improving housing and living
conditions, boosting educational and employment opportunities, providing more
funding to health services, establishing community and social development
programs on alcohol and substance abuse and supporting Indigenous early
childhood education and care and the provision of adequate legal services.
A human rights based approach requires that the NTER measures address the
underlying issues of poverty, disadvantage and discrimination in Indigenous
communities as well as the child sexual assault and abuse.
HREOC notes that much of the monitoring data collated by the government to
date has been limited to collating the level of resources committed and feedback
from government agencies and service providers on activities
implemented.^[14] For example, in
assessing the effectiveness of the income management scheme, the government
relied on a survey of community stores, rather than surveying residents in
prescribed areas that are directly
affected.^[15] Such information does
not adequately assess the impact of the measures on the community members
affected by them. There is no indication that the government has developed
monitoring mechanisms that directly consult Indigenous children and young people
affected by the NTER, about the impact on their lives with regards to their
rights to food, housing, education and safety from violence and neglect.
The government should consider developing better monitoring mechanisms that
collate information directly from affected communities. Children and young
people that are affected should especially be included in monitoring mechanisms.
The Committee on the Rights of the Child has suggested such monitoring
mechanisms could include child focused bodies, child impact statements,
children’s budgets and child rights
reporting.^[16] Specific indicators
of children’s wellbeing could be developed to monitor improvements in
children’s right to protection from violence or abuse and rights to
participation, health, housing and education.
In contrast to the government’s approach to monitoring, some land
councils and community organisations have done community surveys with affected
communities.^[17] HREOC has also
procured some anecdotal evidence from affected communities through the course of
its work.^[18]
Some of the impacts of the NTER in the areas of education, income
management, alcohol management, health, discrimination and access to information
are identified below:

(1) Education – Fulfilling children’s right to
education is a key element to addressing child abuse. In the Northern Territory
this right is not being fulfilled for Indigenous children as evident by the
comparatively lower levels of enrolment, attendance and retention of Indigenous
children of all ages in schools.^[19] One of the NTER strategies introduced to address this has been to link school
attendance to quarantining of welfare payments. The Central Land Council reports
that ‘after the introduction of the NTER attendance numbers were down in
five survey communities, from May 2007 compared to May 2008...The figures
suggest that the NTER has not had an impact on school enrolment and attendance
figures in survey
communities.’^[20] The Northern
Territory Council of Government School Organisations Inc., based on its surveys,
also reported that the NTER has not resulted in better educational
outcomes.^[21]

Evidence from evaluations of similar programs in other states and overseas
demonstrates that such measures are not
effective.^[22] The research shows
that the main causes of absenteeism from school are due to poverty and ill
health, rather than truancy.^[23] For
example, the Halls Creek evaluation noted research that showed overcrowded
housing can result in a lack of sleep, security and privacy, lack of washing
facilities and poor health from broken facilities – all contributing to a
lack of ‘school readiness’. In Halls Creek it was also found that
over and above the influence of parents, factors that can improve school
enrolment, attendance and retention include having skilled teachers who create a
stimulating learning environment in the classroom and a supportive
‘culture’ in the school that actively addresses bullying and
harassment of Indigenous
students.^[24]

Strategies that limit family income through linking income management to
school attendance and imposing eight week penalties for welfare breaches can
further hinder the capacity of a family to act in the best interests of the
child. Such strategies can restrict a family’s access to resources to
provide food, housing and access to education for the child.

The lessons learnt show that linking attendance to welfare payments is not as
effective in increasing school attendance as other measures that directly work
to reduce health inequality and poverty. Ongoing, long-term funding to close the
gap on health inequalities for Indigenous children and their families could
generate more positive outcomes for school attendance and for fulfilling
children’s rights to education and health, than the current strategy of
linking attendance to welfare
income.^[25]

(2) Income management – The Social Security and Other
Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth) provides for
the quarantining and control of welfare income available to Indigenous peoples
in prescribed Northern Territory communities. It also puts in place the
legislative framework for delegated legislation to be enacted to set up an
administrative body called the Queensland
Commission^[26] to regulate income
management in Cape York.

The Central Australian Aboriginal Legal Aid Service (CAALAS) and the North
Australian Aboriginal Justice Agency (NAAJA) (together, ‘ATSILS’)
have noted that while anecdotal information shows a range of both positive and
negative impacts of income management, there are particular examples of negative
impacts that have arisen that are of concern.

Senior leaders in one community reported to us that before income management
people had enough food to eat and that following income management people are
going hungry and are ‘criss-crossing’ family groups in the
community, looking for food. The community reported children were crying for
food, and at times being fed gruel made from powdered milk. In our experience,
some people have experienced having less money because they have been
unknowingly accumulating surpluses in their income managed accounts. For other
people, it is because they are now forced to travel long distances, incurring
additional costs, to be able to shop with income managed
funds.^[27]

The results of the Central Land Council’s more
recent community survey found that:

Disadvantages associated with income management included less discretionary
cash and restrictions on the use of managed money, blanket coverage being
discriminatory, problems with accessing managed money, incompatibility with
population mobility, difficulties for aged and disabled people, and cost
shifting to Aboriginal people and community staff to deal with the new
arrangements. There was some evidence that if income management was better
directed towards people with alcohol, gambling or substance misuse problems,
that people in communities would be more supportive of
it.^[28]

Anecdotal feedback provided to the Tangentyere Council similarly notes that
some people indicate that it has resulted in more money being spent on food and
clothes, whereas other people have been quite distressed by the sense of shame
of being treated in the same category as negligent or abusive parents, on the
basis of their race.^[29] The
Tangentyere Council also notes that some people have experienced problems due to
lack of immediate disposable cash for obligations such as travelling to
funerals.^[30]

During her Listening Tour in the Northern Territory the Sex Discrimination
Commissioner heard about implementation problems with the income management
schemes. Participants shared stories of older people and women with children
having to walk long distances in the searing heat to get their store vouchers,
then either walking or needing to take a taxi to the store and a taxi home with
heavy bags. Previously people may have pooled money to save on transport costs
and to share resources but income management does not allow for this, thereby
increasing transport costs for
individuals.^[31] For example, in
Arnhem Land participants reported that a shopping trip to the local chain
supermarket could cost up to $1400 because of a two to three hour taxi ride,
which could become a prohibitive financial burden if people were to take
individual shopping
trips.^[32] The Sex
Discrimination Commissioner also heard about problems with the accreditation
processes for community based stores arising from additional administrative
burdens.

Other community surveys and forums have also identified concerns with the
income management scheme including: widespread community opposition to the
scheme; less access to cash to cover travelling costs; difficulties in accessing
Centrelink, particularly elderly or disabled people who are unable to easily
travel; accessing payments made to deceased person’s accounts; and reduced
capacity to budget and save.^[33]

HREOC notes that under the income management scheme, the Minister has
discretion to exempt people from income management in any circumstances that the
Minister sees fit. There is value in ascertaining what benefit exemptions can
have in targeting the income management scheme to individuals within the broader
population, who are experiencing relevant problems. To this end the Review Board
could examine the number of exemptions granted to date, the reasons they have
been granted and the proportion of exemptions granted to Indigenous and
non-Indigenous people.

Since the commencement of the NTER, HREOC notes the government has also
introduced trial income management schemes under the national child protection
framework in other states that address some of these concerns. In conjunction
with the Western Australian Government, the federal government will commence an
income management scheme in September 2008, in the Kimberley communities of
Oombulgurri, Kununurra, Warmun and Wyndham and in the Perth suburb of
Cannington.^[34] Unlike the NTER and
Queensland Family Responsibilities Commission
processes^[35], the Western Australia
initiative is subject to the protections under the RDA. The Western Australia
regime is also distinguished by individual behaviour being the trigger for the
application of the regime^[36] (i.e.
individual families where children suffer neglect or engage in antisocial
behaviour including truancy will be identified and supported). The federal
government has said it will also fund money-management support services,
financial education training and financial crisis support for people affected by
income management.^[37]

The Social Justice Report 2007 noted that income management is based
upon removing the right of a person to make their own decisions about
expending their income, and removes their right to
dignity.^[38] The argument posited
for allowing this removal of rights is to ensure a family’s income is
directed towards the purchase of goods and services necessary for the child.
However, a human rights approach requires a proportionate response to a problem.
This means that governments are obliged to consider less intrusive or voluntary
options as a first response before moving to options as broad-reaching as
compulsory income
management.^[39]

HREOC does not support introducing mandatory income management schemes either
in the Northern Territory or as part of the national child protection framework.
The government could consider replacing existing mandatory income management
schemes in the Northern Territory with schemes that are non-discriminatory and
compliant with the obligations of the right to social security and the best
interests of the child. This could include voluntary income management
measures,^[40] exemptions from the
current mandatory income management regime, financial literacy programs for
welfare recipients and CDEP participants, any quarantining of welfare payments
to be an action of last resort, and making all income management schemes subject
to the protections under the RDA.

(3) Alcohol management - The Sex Discrimination Commissioner also
heard of problems with the implementation of the alcohol management scheme.
Participants from Darwin town camp communities reported that the scheme was not
working. These prescribed communities are declared ‘dry areas’ with
a sign at the entrance, but this does not prevent people bringing alcohol into
the community.

The Tangentyere Council has also reported that the alcohol management scheme
has only ‘moved the problem rather than addressed problem drinkers’
alcohol addiction.’^[42] In the
Council’s experience levels of drinking have increased near town camps,
the number of drinking spots around Alice Springs has spiralled and this has
lead to an increase in intoxicated people on the
camps.^[43]

Based on information provided by Tangentyere Council Board and the Social
Justice Commissioner’s visits to town camps it was reported at the HREOC
National Race Relations Roundtable Meeting in 2007 that police were smashing
bottles when they seized alcohol in the town camps. This is a particular concern
for two reasons: first, under legislation the police are required to document
the seizure of alcohol and provide receipts for the goods that are confiscated;
second, the glass is likely to cause injury to adults and children who walk
barefoot in the camp communities.

The Larrakia Nation Aboriginal Corporation, an Indigenous service provider
agency in the Northern Territory, also reported that as a result of the alcohol
bans there is a great demand for sobering up treatments with a waitlist of 50
people for their service.^[44]

HREOC encourages the Review Board to consider alternative measures that are
consistent with human rights and which have led to positive changes in other
communities. For example, in North-East Arnhem Land, the local Indigenous
community and remote homeland communities have a permit system for the purchase
of takeaway alcohol. Permits are awarded through a local committee made up of
local authorities and community representatives. Permits are generally available
to all community members, but are withdrawn if there is an alcohol-related
incident. This system has been effective in reducing alcohol-related violence on
the streets. At their own request, homeland community members are not eligible
for permits, given that the homeland communities are ‘dry’
communities.^[45]

Similarly the residents of Groote Eylandt and Bickerton Island introduced the Groote Eylandt and Bickerton Island Alcohol Management Plan that requires
every person in the region, Aboriginal or non-Aboriginal, to hold a permit to
buy or consume takeaway alcohol. An evaluation of the scheme completed in July
2007 found that the community reported ‘the system has led to marked
improvements in community...In particular there has been reduced violence and
... a significant improvement in community harmony and
function.^[46]’ The evaluation
found that ‘a key ingredient of the success ... is the ownership and
support of the System by the Aboriginal communities and by key local service
providers, employers and by the licensed
premises.’^[47]

In October 2006, Umbakumba, one of the communities covered by the Groote
Eylandt and Bickerton Island Alcohol Management Plan, the community
voluntarily agreed that no one in Umbakumba is permitted to drink at all
(regardless of the rights they may still possess under the Groote Eylandt and
Bickerton Island Alcohol Management Plan). This placed a complete community
wide ban on alcohol and Umbakumba has successfully remained a dry community
since. This process is case studied in the Social Justice Report
2007.^[48]

Voluntary schemes such as this, which are initiated by communities and based
on community participation, have demonstrated effective results.

(4) Health - Commentators have noted that ‘marginalisation,
poverty, disempowerment, colonisation and trauma are the upstream contributors
to psychological, physical and sexual abuse in the
present.’^[49] A respected
Indigenous psychiatrist, Associate Professor Helen Milroy advised HREOC
that:

If the emergency measures ... in the NT result in further disempowerment or a
sense of extreme powerlessness, then this is a re-traumatisation and will have
negative consequences on:

Mental health including possibly higher rates of depression, stress and
anxiety;

Social and emotional wellbeing through increasing anxiety and uncertainty
and hence this may precipitate family and community despair and dysfunction,
poor or maladaptive coping and contribute to substance use and possible violence
as well as loss of trust;

Physical health as there is a strong relationship with chronic stress and
poor health outcomes including diabetes and cardiovascular disease. ^[50]

Such unintended consequences of an intervention that is not
empowering or supportive of communities may mean that the government’s
initiatives will not adequately respond to the causes and consequences of
violence and abuse. Assessing the levels of disempowerment, traumatisation and
stress incurred in communities as a result of the NTER could be an important
area for the Review Board to look into.

(5) Discrimination – ATSILS have reported that Aboriginal people
have complained of increased racism from the police and more overt racism from
the non-Indigenous community.^[51] Examples of the racist behaviour by police forces include the targeting of
Aboriginal communities for personal and property searches because they are
Aboriginal and inappropriate treatment of cultural property.

The blanket application of the income management regime has also generated
discriminatory views within the wider community. ATSILS have reported that their
staff have witnessed shop assistants who have served Aboriginal people subject
to income management commenting that Aboriginal people are irresponsible with
their money and unable to properly care for their family. As such some
Aboriginal people have found income management to be an insulting and degrading
experience.^[52]

These experiences were confirmed during the Sex Discrimination
Commissioner’s Listening Tour in the Northern Territory. Participants
reported experiencing racism and harassment when using their vouchers to buy
food in the big chain
supermarkets.^[53] Other community
surveys have similarly reported concerns of discrimination under the
NTER.^[54]

As the Tangentyere Council has noted:

Having policies based on race, and suspending the Racial Discrimination Act
in order to be able to do so, sets us back on the path of reinforcing negative
stereotypes, and makes it just that much harder for those who battle against the
odds, but are nevertheless treated in the same way as those who are doing the
wrong thing.^[55]

(6) Lack of information - The lack of information provided to
communities about the NTER further disempowers communities and prevents their
participation in the implementation of its measures. Where information was
provided it was in English and there was limited if any provision of
interpreters to effectively communicate the information to affected parties.
ATSILS have noted this as a
concern^[56], as has the Central Land
Council (‘CLC’).^[57] In
particular the CLC noted with concern a lack of information and awareness among
young Aboriginal people who were the least informed and aware of what measures
were being put in place: ‘There has been a complete lack of information
for those under 25. For those in the 15-25 bracket, the vast majority would have
a limited idea about what the NTER is for and any of the measures’.^[58]

HREOC encourages the Review Board to consider the need for more extensive
community programs that can have positive preventative results:
- to stop violence and prevent it from reoccurring;
- to cater for alcohol and substance misuse rehabilitation;
- to provide adequate resources and community infrastructure.
These programs must be adequately resourced by
professional and support staff and have a long-term focus on capacity building
and community development.^[59]
To effectively address Indigenous disadvantage it will be important for
government to make long term commitments to adequately resourcing and supporting
all communities, and not limiting initiatives to selected hub communities.
Given the differing contexts of the many communities in the Northern
Territory the Review Board should consider the need to shift away from rolling
out ‘one size fits all programs’ to flexible and responsive
community based, community development programs that are responsive to
communities’ strengths, capacities and needs.
HREOC recommends the Review Board call for the government to make
substantial, long term sustainable commitments across all Indigenous communities
to address child abuse, including child sexual abuse, and the underlying
problems of poverty, disadvantage and discrimination [Recommendation No.
2].

Alternative
Measures

Human Rights Based Approach

HREOC supports a human rights based approach that would assist in: ensuring
the participation of those affected in policy development and service delivery;
rigorous benchmarking, monitoring and evaluation; and access to forms of
redress.
The Social Justice Commissioner has previously outlined the elements of a
human rights based approach to policy and program development in the Social
Justice Report 2005 and Social Justice Report 2007. The United Nations Common Understanding of Human Rights Based Approach to
Development Cooperation (‘UN Common Understanding’) outlines the
necessary elements of a human rights based approach as follows:
- People are recognised as key actors in their own development, rather than
  passive recipients of commodities and services;
- Participation is both a means and a goal;
- Strategies are empowering, not disempowering;
- Both outcomes and processes are monitored and evaluated;
- Analysis includes all stakeholders;
- Programs focus on marginalised, disadvantaged, and excluded groups;
- The development process is locally owned;
- Programs aim to reduce disparity;
- Both top-down and bottom-up approaches are used in synergy;
- Situation analysis is used to identity immediate, underlying, and basic
  causes of development problems;
- Measurable goals and targets are important in programming;
- Strategic partnerships are developed and sustained;
- Programs support accountability to all
  stakeholders.^[60]
The UN Common Understanding further outlines the following principles
for a human rights based approach:
- Assessment and analysis identify the human rights claims of rights-holders
  and the corresponding human rights obligations of duty-bearers as well as the
  immediate, underlying, and structural causes of the non-realisation of
  rights;
- Programs assess the capacity of rights-holders to claim their rights and of
  duty-bearers to fulfill their obligations. They then develop strategies to build
  these capacities;
- Programs monitor and evaluate both outcomes and processes guided by human
  rights standards and principles;
- Programming is informed by the recommendations of international human rights
  bodies and
  mechanisms.^[61]
The Committee on the Rights of the Child has also outlined general measures
to ensure that a child rights approach is taken in the development of policy. In
its General Comment 5, the Committee has said that ‘The development of a
children’s rights perspective throughout government, parliament and the
judiciary is required for effective implementation of the whole
convention’.^[62] The
central tenet to children’s rights perspective are the paramount
principles of the ‘best interests of the child’,
‘non-discrimination’, and the child’s ‘right to
life’ and ‘right to
participation’.^[63]
The Committee has identified several general measures for implementation of
the CRoC which could also form the basis of a rights-based approach to child
protection. These measures include establishing coordinating and monitoring
bodies, comprehensive data collection, awareness raising, and delivering
appropriate services, training and
programs.^[64]
Both the principles and elements of a human rights based approach highlight
the importance of proper participation and engagement with the intended
beneficiaries and affected communities of policies or programs.
HREOC also refers the Review Board to the United Nations Development
Group Guidelines on Indigenous Peoples
Issues^[65]which sets out the
broad normative, policy and operational framework for implementing a human
rights based and culturally sensitive approach to development for and with
indigenous peoples.
The right to participate has been articulated as an important standard for
governments to abide by within the human rights framework, particularly within
the CRoC and the Declaration on the Rights of Indigenous Peoples.
The CRoC (Article 12) obliges Governments to protect ‘the
child’s right to express his or her views freely in all matters affecting
the child, those views being given due weight’. The NTER is clearly a
matter affecting children.
The Committee on the Rights of the Child notes the necessity for children to
be involved in government decision-making processes and to this end state:

If consultation is to be meaningful, documents as well as processes
need to be made accessible. But appearing to ‘listen’ to children is
relatively unchallenging; giving due weight to their views requires real change.
Listening to children should not be seen as an end in itself, but rather as a
means by which States make their interactions with children and their actions on
behalf of children ever more sensitive to the implementation of children’s
rights.^[66]
The need for a participatory approach for Indigenous communities has also
been proven in research undertaken in Australia. Diane Smith argues,

Coercion as a policy instrument has limited developmental power for
Indigenous families and communities—history has demonstrated
that...Governments urgently need to provide enabling policy and legal
frameworks, and integrated program guidelines, to actively promote Indigenous
governance capacity and authority. Indigenous governance institutions and
capacity building should be built into any new interventions, right from the
start.^[67]
A human rights based approach also emphasises transparency and
accountability. The development of rigorous benchmarking, monitoring and
reporting systems allows the measurement of the exercise and enjoyment of
people’s rights over time. A human rights based approach offers an
integrated framework which connects and considers all human rights, thereby
providing a holistic response to, and addressing the causes and consequences of,
violence and abuse in Indigenous communities.
The human rights based approach is the essence of the approach taken in the
Close the Gap Campaign for Indigenous health equality. The campaign recognises
people’s right to adequate health and the need for a holistic approach to
realise that right. It utilises targets and benchmarks to ensure accountability
for achieving the goal of health equality. At the Indigenous Health Equality
Summit in 2008 the Government made accountable and measureable commitments to
achieve equality in health status and life expectancy between Indigenous and
non-Indigenous Australians by 2030. The government committed to:
- developing a comprehensive, long-term plan of action, that is targeted to
  need, evidence-based and capable of addressing the existing inequities in health
  services;
- ensuring the full participation of Aboriginal and Torres Strait Islander
  peoples and their representative bodies in all aspects of addressing their
  health needs;
- working collectively to systematically address the social determinants that
  impact on achieving health equality for Aboriginal and Torres Strait Islander
  peoples;
- respect and promote the rights of Aboriginal and Torres Strait Islander
  peoples, including by ensuring that health services are available, appropriate,
  accessible, affordable, and of good quality;
- measure, monitor, and report on our joint efforts, in accordance with
  benchmarks and targets, to ensure that we are progressively realising our shared
  ambitions.^[68]

The Government has committed itself to applying this
human rights based framework to address Indigenous health. This human rights
based framework is equally relevant to all aspects of Indigenous affairs policy,
programs and service delivery. Having committed itself to a rights based
approach the government can apply this framework to policy development in other
areas, including in relation to the NTER.

Human rights based approach to family violence and
abuse

Over the past five years the Social Justice Commissioner has conducted
research into family violence and abuse in Indigenous communities. A summary of
that research was released in 2006 in the publication: Ending family violence
and abuse in Aboriginal and Torres Strait Islander communities - An
overview paper of research and findings by the Human Rights and Equal
Opportunity Commission,
2001-2006.^[69]
The research showed that policies and programs aimed at preventing violence
and abuse against Indigenous women and children must be designed and
developed with the input of Indigenous women and children. Indigenous men also
have a role in this process and should be engaged in addressing the causes of
violence as well as the solutions.
Based on this research HREOC has identified the following ten principles
that provide a foundation for policy and program development in family violence
prevention:
- Turn government commitments into action: Governments have been making
  commitments to address family violence for some time already. What we need is
  concerted, long term action which meets these commitments;
- Indigenous participation: This action must be based on genuine
  partnership with Indigenous peoples and with our full participation;
- Support Indigenous community initiatives and networks: There are
  significant processes and networks already in place in Indigenous communities to
  progress these issues. We need to support them to lead efforts to stamp out
  violence, including by developing the educational tools to assist them to
  identify and respond to family violence;
- Human rights education in Indigenous communities: There is a need for
  broad based education and awareness-raising among Indigenous communities.
  Working with communities to send strong messages that violence won’t be
  tolerated, that there are legal obligations and protections, and that
  individuals have rights, are critical if we are to stamp out family
  violence;
- Don’t forget our men and don’t stereotype them as
  abusers: Family violence is fundamentally an issue of gender equality. We
  need strong leadership from women, but we also need the support of Indigenous
  men if we are to make progress in stamping out violence. Indigenous men need to
  model appropriate behaviour, challenge violence and stand up against it, and
  support our women and nurture our children;
- Look for the positives and celebrate the victories: There are good
  things happening in Indigenous communities, even if the national media is not
  interested in reporting them. We need to confront family violence, but also do
  so by reinforcing the inherent worth and dignity of Indigenous peoples, not by
  vilifying and demonising all Indigenous peoples;
- Re-assert our cultural norms and regain respect in our communities:
  Family violence and abuse is about lack of respect for Indigenous culture. We
  need to fight it as Indigenous peoples, and rebuild our proud traditions and
  community structures so that there is no place for fear and intimidation;
- Ensure robust accountability and monitoring mechanisms: There must be
  accountability measurements put into place to hold governments to their
  commitments. This requires the development of robust monitoring and evaluation
  mechanisms. These will also allow us to identify and celebrate successes;
- Changing the mindset: We require a change in mindset of government
  from an approach which manages dysfunction to one that supports functional
  communities. Current approaches pay for the consequences of disadvantage and
  discrimination. It is a passive reactive system of feeding dysfunction, rather
  than taking positive steps to overcome it. We need a pro-active system of
  service delivery to Indigenous communities focused on building functional,
  healthy communities;
- Targeting of need: Let us be bold in ensuring that program
  interventions are targeted to address need and overcome disadvantage. As it
  stands, government programs and services are not targeted to a level that will
  overcome Indigenous disadvantage. Hence, they are not targeted in a way that
  will meet the solemn commitments that have been made. They are targeted to
  maintain the status quo.
The Social Justice Report 2007 reported on the findings of the
research which highlighted the importance of applying a human rights based
approach to address family violence and abuse in Indigenous communities (See
Appendix 2 for a list of indicators for how human rights based programs can
address violence and abuse in Indigenous communities).
Chapter 2 of the Social Justice Report 2007 provides 19 case studies
that exemplify approaches consistent with the principles above. The case studies
were chosen to encourage individuals and communities and inspire service
providers to think critically about how effectively they are delivering their
services; and to challenge governments to be responsive and flexible to
innovative programs that deal with family violence and abuse.
An examination of the factors that lead to the effectiveness of the case
studies showed that they share a number of common elements that have contributed
to their success:
- Community generated: The most successful programs are those developed
  by and for the community, which respond to individual community needs;
- Community engagement: It is crucial to consult the community
  throughout the program’s development, especially when the initiative comes
  from government;
- Community development: Communities need to be involved and supported
  before they can ‘own’ family violence initiatives. For example,
  men’s groups can help build leadership capacity and spread an
  anti-violence message;
- Partnerships: Many of the successful case studies were built on
  partnerships, with both government and non-government agencies;
- Holistic: Underlying, situational and precipitating factors of
  violence and abuse need to be addressed, often at the same time;
- Connection to culture: Respect for traditional law reinforces
  anti-violence messages and builds positive community identity;
- Involve men: Most responses to family violence are created by and for
  women, leaving some men feeling alienated. Men need to be part of the
  solution;
- Empowering women: Women’s traditional culture and authority in
  the community needs to be promoted;
- Building on community strengths: With resources, networks or
  knowledge in communities, programs have a greater chance of success;
- Indigenous staff: The expertise of Indigenous staff makes a crucial
  difference in successful services, often at personal cost to
  staff.
The lessons learnt from the case studies highlighted that effective programs
have to be sustainable and flexible and that the resources and capacity of
communities must be taken into account. Long term, stable funding is critical
and non-Indigenous staff can play an important role to support initiatives and
transfer skills and knowledge to Indigenous people.

Interventions need to target all of the causes and factors
holistically, from dealing with the trivial triggers through to history and
entrenched social issues. Some of the case studies do address all of these
factors and all certainly go beyond the superficial, band-aid approaches to
family violence and abuse that seldom deliver long term
results.^[70]
HREOC recommends the Review Board refer to the principles and elements of a
human rights based approach as a foundation for responses to family violence and
sexual assault and underlying Indigenous disadvantage [Recommendation No.
3].

Human Rights Education and Community
Development

The Social Justice Report 2007 noted that preventative activities in
the form of community development and human rights education is critical to
breaking the cycle of intergenerational violence and disadvantage that afflicts
so many Indigenous communities.
Indigenous people need to be part of a clear vision that articulates
approaches to ending the violence cycles that have beset Indigenous communities
for generations. This is a bigger role than simply consulting with Indigenous
people. It requires the active participation of Indigenous Australians in
solving the corrosive problem of violence and in creating sustainable societies
for the future.
Human rights education and community development approaches may hold the key
to preventing family violence and abuse and overcoming disadvantage in
Indigenous communities into the longer term. Human rights education sends the
message that family violence is not acceptable and will not be tolerated.
Community development activities go one step further to identify and build
community capacity to develop and sustain positive change.
Research into family violence and abuse has consistently highlighted the
need for community education and awareness-raising. Community education, in the
context of family violence and abuse prevention, can:
- raise awareness about the incidence of violence and abuse in the
  community;
- promote anti-violence messages;
- reinforce that violence is not part of Indigenous culture and won’t be
  tolerated;
- promote the legal obligations and human rights of individuals; and
- offer appropriate referrals information to services for further
  support.
Research has also consistently shown that effective education must be
community driven. Community members are best equipped to respond to issues as
they have first hand knowledge of the family violence and abuse dynamics and the
social capacity of the community
itself.^[71] This was further
supported in the Little Children are Sacred report that recommended a
range of community education projects be undertaken to raise awareness of and
prevent child sexual abuse.^[72]
For the past three years, HREOC has emphasised to government the importance
of undertaking broad-based community education in Indigenous communities about
human rights, family violence and customary law. These proposals have been
considered in light of the Ministerial Summit on Family Violence in 2006, as
well as through the regular budgetary process.
In 2007-08, HREOC ran a community legal education (CLE) training program on
family violence and human rights in conjunction with the
Attorney-General’s
Department.^[73] The aim was to train
CLE workers employed in Family Violence Prevention Legal Services (FVPLS)
throughout Australia. The CLE workers’ role is to raise awareness amongst
Indigenous Australians about the standards of Australian law that are relevant
to family violence, and to clarify the relationship between Australian law and
customary law.
HREOC developed a 40 hour training program that was delivered to 13 CLE
workers in 2007. The training program was underpinned by community development
theory and practice and the content of the training focused on Australian law
and customary law relevant to preventing violence in Indigenous communities. The
training program produced a Trainer’s Guide, Trainee’s
Workbook; and Resource Guides that contained customised materials for
all states and territories except Tasmania and the ACT.
The training program has been evaluated through participant surveys and site
visits to 3 Family Violence Prevention Legal
Services.^[74] The main findings of
the evaluation were:
- The CLEs reported a very high degree of satisfaction with the quality of the
  materials and the relevance of the content of the training program. In their
  evaluations, all CLEs reported an increase in relevant knowledge and skills as a
  result of the training;
- The CLEs reported a very high level of satisfaction with the quality of the
  teaching and training provided by HREOC staff;
- The training materials provide a useful resource for the CLEs in the
  workplace. Solicitors from FVPLS have requested additional copies of the Resource Guides from their state or territory claiming that this resource
  provides a good summary of relevant legislation, family violence systems,
  reporting guidelines and duty of care obligations from their jurisdiction;
- The Secretariat of National Aboriginal and Islander Child Care (SNAICC)
  described the training program as a useful and necessary resource for workers
  engaged in the prevention of both child abuse and family violence;
- The 40 hour training program was intensive with a large volume of content.
  All parts of the training were deemed relevant preparation for the CLEs and
  therefore no segments should be removed from the training module;
- A section on intergenerational violence should be added to the training
  module. By addressing intergenerational violence as an issue, blame and
  victim-hood are no longer focused on individuals. The issue of violence is
  treated as a problem in itself and all community members can take an active role
  in violence prevention;
- The CLEs would benefit from practicing their communication skills in
  simulated situations. Learning methodologies such as role-play would provide
  good opportunities for practicing these skills;
- Some of the high profile legal cases (that formed part of the training
  material) had links to families of the CLEs. As a consequence, these cases were
  not discussed. The CLEs requested that all case law examples should be
  identified at the beginning of the training to give participants an opportunity
  to veto any course content in confidence;
- There are rules and protocols for discussing customary laws and practices
  that make it difficult to discuss some subjects in mixed company. Some CLEs
  asked that protocols for these discussions be negotiated at the beginning of the
  training;
- CLEs strongly supported the need for follow-up training and development.
  They argued that they need opportunities to come together to problem solve, to
  share ideas and resources and to refresh and debrief from the arduous aspects of
  the role;
- Any substantial additions to course content (with the exception of a section
  on intergenerational violence) should be additional to the 5 day introductory
  training session;
- Future CLE training (additional to the introductory training) should be
  focused on: (a) developing group communication skills and strategies and (b); on
  addressing difficult topics. Some of these include: narrative therapy skills and
  practices; mediation skills and practices; interpersonal communication skills
  focused on gaining trust; examples of ways to provide advice about
  relationships; addressing difficult topics such as sexual assault, child neglect
  and elder abuse; information about the warning signs for family violence;
  examples of avoidance behaviours including concrete examples of ways to avoid
  the escalation of conflict and violence; assisting communities to address their
  experiences and feelings of victimization, and de-briefing.
HREOC submits that it would be prudent and timely for government to fund
such educative work to be undertaken immediately in the Northern Territory, as
well as nationally.
The Little Children are Sacred report called for governments
to engage ‘in a dialogue with communities to discuss the particular
education that might be needed in a specific community and how that education
can best occur’.^[75] This
partnership approach also reflects an essential component of a human rights
based approach to addressing family violence and abuse. Namely
that:

Partnerships require: the full and effective participation of
indigenous peoples; the opportunity for indigenous peoples to identify concerns,
prioritize them and propose solutions that are community driven; and respect,
and support indigenous peoples’ chosen form(s) of representation,
including traditional or customary authority
structures.^[76]
Community education goes hand in hand with community development. Community
development refers to a way of working with rather than for communities to increase their capacity and ability to find their own
solutions. Community development and capacity building often needs to take place
before communities are able to take ownership of community education activities.
Community development helps community generate their own solutions and build
on strengths. Often this leads to a recognition and revitalisation of
traditional laws and cultural knowledge to establish positive norms that
challenge violence and abuse.
As the case studies in the Social Justice Report 2007 demonstrated,
effective community development projects:
- are driven by the community;
- recognise the diversity of Indigenous people and respond to the needs of
  individual communities;
- build on community knowledge and strengths; and
- are based on partnerships with government and non-government
  organisations.
HREOC recommends the Review Board call for human rights education projects
to be undertaken to raise awareness and build the capacity of communities to
address family violence and sexual assault [Recommendation No. 4].

Appendix 1: Social Justice Report
2007 – Recommendations 3-14 for the
NTER^[77]

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 merit 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 section144 (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 Northern Territory (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.

Appendix 2: Social Justice Report 2007 – Human rights based indicators for programs addressing violence and abuse
in Indigenous
communities^[78]

Principle	Indicators for programs addressing violence and abuse in Indigenous communities.
Full and effective participation Participatory processes are built into program planning, implementation and evaluation.	Does the program or service explicitly encourage participation from Indigenous people? Does the program have community consultation mechanisms? Are the participatory mechanisms accessible to all intended beneficiaries? Are Indigenous people involved in program planning, design and monitoring and evaluation? For example, with the program or service having an advisory committee with Indigenous community representation Does the program or service have feedback mechanisms for people using the service? Does the program or service use community volunteers? Does the organisation or service participate in local community events?
Accountability Program builds capacity of workers to respect, protect and fulfil rights. Program includes stakeholders in program delivery and evaluation. Program communicates evaluation results and outcomes to intended beneficiaries.	Does the program or service makes its decision making processes (minutes, annual reports) available to the community? Does the program or service have child protection and workplace harassment policies and procedures? Do the staff receive ongoing cultural awareness training and development with specific reference to Indigenous communities? Are program decisions and changes communicated to the community? Does the program or service have partnerships and links with local organisations?
Non discrimination and equity Program is accessible to its intended target group. Program explicitly targets most vulnerable and marginalised.	Is the physical environment culturally appropriate? Does the location of the service enable access by the intended beneficiaries? Do the service users reflect the intended beneficiaries of the service? Is the service or program affordable? Does the program have outreach strategies to target people who are marginalised? Does the program provide materials that are accessible and culturally appropriate?
Empowerment The participatory processes of the program builds the skills, knowledge and resources of the intended target group to exercise and claim rights.	Does the program allow the intended beneficiaries to make decisions about their own care? Does the program have culturally appropriate procedures for explaining confidentiality and consent processes? Does the program have accessible and culturally appropriate resources available to explain relevant rights?
Express linkage to human rights standards Program acknowledges the immediate and underlying causes of the non realisation of rights. Program assesses its impact on the realisation of rights. Program contributes to the progressive realisation of human rights for its intended beneficiaries. Program should at the very least protect existing rights and prevent any set backs within the control of the program.	Are the stated aims and objectives of the program consistent with human rights standards? Does the program have solid referral pathways and partnerships to provide a ‘holistic’ service? Does the service participate in local inter-agencies?

Endnotes

^[1] HREOC is established by the Human Rights and Equal Opportunity Commission Act
1986 (Cth) (‘HREOC Act’). Sections 11 and 31 of the HREOC Act
set out HREOC’s functions relating to human rights and equal opportunity
in employment respectively. HREOC also has functions under the Commonwealth Sex Discrimination Act 1984, Racial Discrimination Act 1975, Disability
Discrimination Act 1992 and Age Discrimination Act
2004.

^[2] UN Convention on the Rights of the Child, 1989, Article 19. Article 22 of
the United Nations Declaration on the Rights of Indigenous Peoples (DRIP)
adopted by the UN General Assembly in 2007 recognises the rights and special
needs of indigenous elders, women, youth, children and persons with
disabilities, and obligates States to ensure that indigenous women and children
enjoy the full protection and guarantees against all forms of violence and
discrimination; Article 21 also recognises indigenous people’s rights to
the improvement of their economic and social conditions and allows for special
measures to ensure, this particularly for indigenous elders, women, youth,
children and persons with disabilities. U.N. General Assembly, United Nations
Declaration on the Rights of Indigenous, report of the Human Rights Council,
Sixty-first session, Agenda item 68, U.N. Doc. A/61/L.67, 7 September
2007.

^[3]The
full report is available at the HREOC website:
http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index…

^[4] Brough M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release,
21 June 2007, available online at:

http://www.fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm, accessed 1 February
2008.

^[5] Human Rights and Equal Opportunity Commission, ‘A human rights based
approach is vital to address the challenges in Indigenous communities’,
Media Release, 26 June 2007, available online
at:
http://www.humanrights.gov.au/about/media/media_releases/2007/45_07.html, accessed 9 November
2007.

^[6] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC, Sydney, 2008,
p3.

^[7] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC, Sydney, 2008, p294.

^[8] Aboriginal and Torres Strait Islander Social Justice Commissioner, “Essentials for Social Justice: Protecting Indigenous children”,
Launch of the Social Justice Report 2007 and Native Title Report 2007, HREOC, Sydney, 31 March 2008, (available at:http://www.humanrights.gov.au/about/media/speeches/social_justice/2008/20080331launch_sjrntr07.html)

^[9] Aboriginal and Torres Strait Islander Social Justice Commissioner, “Essentials for Social Justice: Protecting Indigenous children”,
Launch of the Social Justice Report 2007 and Native Title Report 2007, HREOC, Sydney, 31 March 2008, (available at:http://www.humanrights.gov.au/about/media/speeches/social_justice/2008/20080331launch_sjrntr07.html) ^[10] Families, Housing, Community Services and Indigenous Affairs and Other
Legislation Amendment (Emergency Response Consolidation) Bill
2008

^[11] Milroy, H., (Associate Professor, Centre for Aboriginal Medical and Dental
Health University of Western Australia) personal email correspondence with the
Aboriginal and Torres Strait Islander Social Justice Commissioner, 9 August
2007.

^[12] The World Health Organisation has identified the five risk factors that
contribute to child maltreatment and abuse: high density of people living
together; poor socio-economic status; social isolation; high levels of stress,
and; a history of abuse or violence in families. (Cited in ACOSS, “Open
letter to The Hon. Mal Brough MP

Minister for Families,
Community Services and Indigenous Affairs” 26 May 2006, available at: http://www.acoss.org.au/upload/publications/papers/939__indigenous_mal%20brough_sector%20letter%204%20web%202.pdf)
accessed on 28 July
2008).

^[13] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney
2007.

^[14] Examples of reports relied on to date include: Northern Territory National
Emergency Response (NTER): Stores Post Licensing Monitoring Report – Early
Indications of Impact of Income Management in Community Stores – First 20
stores (available at: http://www.facsia.gov.au/nter/reports.htm);
Northern Territory Emergency Response (NTER) Taskforce, Final Report to
Government, . As the Chair of the Taskforce notes in the cover letter for
the report, the report only documents the activities and achievements during the
last 12 months and identifies recommendations for future services for Indigenous
people in the Northern Territory. See also the FaHCSIA website at: (http://www.facsia.gov.au/nter/reports.htm)
which comments on activities implemented rather than the
impacts.

^[15] See Minister Macklin, Hansard, House of Representatives, Monday 23 June 2008,
page
44.

^[16] General Comment 5: General measures of implementation for the Convention on the
Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, paras 9, 37 and 39,
available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June 2008.

^[17] Central Land Council, Reviewing the Northern Territory Emergency Response:
Perspectives from Six Communities, Central Land Council, Alice Springs, July
2008; Intervention Rollback Action Group, ‘Quarantining
Questionnaire’ 2008; Darwin Aboriginal Rights Coalition, ‘Survey on
Income Management’, February-May
2008.

^[18] HREOC obtained anecdotal evidence through the Sex Discrimination
Commissioner’s Listening Tour in the Northern Territory (2008) in which
the NTER was a chief topic of discussion; and the HREOC National Race Roundtable
Meeting
(2007).

^[19] For statistical evidence of this see Larissa Behrendt and Ruth McCausland, Welfare payments and school attendance: An analysis of experimental policy in
Indigenous education: An Issues Paper for the Australian Education Union,
Jumbunna Indigenous House of Learning, University of Technology Sydney, August
2008.

^[20] Central Land Council, Reviewing the Northern Territory Emergency Response:
Perspectives from Six Communities, Central Land Council, Alice Springs, July
2008,
p77-78

^[21] Northern Territory Council of Government School Organisations Inc.,
“Submission to the Senate Select Committee – Inquiry into Regional
and Remote Indigenous Communities”, 30 May 2008 (available at:http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub10.pdf).
They noted that due to alcohol bans some children are being taken out of home
communities to areas where parents can drink and often are not returning to
school until several months
later.

^[22] See Department of Employment and Workplace Relations, Halls Creek Engaging
Families Trial, February–July 2006, Evaluation Report, September 2006;
David Fein, Wang Lee and Christina Schofield, The ABC Evaluation: Do Welfare
Recipients’ Children Have a School Attendance Problem? Delware Health
and Social services, Delware, August 1999.

^[23] David Fein, Wang Lee and Christina Schofield, The ABC Evaluation: Do Welfare
Recipients’ Children Have a School Attendance Problem? Delware Health
and Social services, Delware, August
1999.

^[24] Department of Employment and Workplace Relations, Halls Creek Engaging
Families Trial, February–July 2006, Evaluation Report, September
2006.

^[25] For suggestions from the community for alternative ideas such as increased focus
on education, youth programs, stopping underage drinking and increased
recreational and after school activities, see Central Land Council, Reviewing
the Northern Territory Emergency Response: Perspectives from Six
Communities, Central Land Council, Alice Springs, July 2008,
p78.

^[26] This body has since been established under the name of the Queensland Family
Responsibilities Commission.

^[27] Central Australian Aboriginal Legal Aid Service and the North Australian
Aboriginal Justice Agency, “Joint submission to the Senate Select
Committee on Regional and Remote Indigenous Communities”, June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub24.pdf<,
p17.

^[28] Central Land Council, Reviewing the Northern Territory Emergency Response:
Perspectives from Six Communities, Central Land Council, Alice Springs, July
2008,
p4.

^[29] Tangentyere Council Alice Springs, “Submission to the Senate Select
Committee on Regional and Remote Indigenous Communities” 9 June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub31.pdf),
p8.

^[30] Tangentyere Council Alice Springs, “Submission to the Senate Select
Committee on Regional and Remote Indigenous Communities” 9 June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub31.pdf),
p8.

^[31] Human Rights and Equal Opportunity Commission, 'Bagot
Community Consultation, Darwin'
(2008)

^[32] Human Rights and Equal Opportunity Commission, 'Meeting
with Laynhapuy Homelands Association'
(2008)

^[33] Intervention Rollback Action Group, ‘Quarantining Questionnaire’
2008; Darwin Aboriginal Rights Coalition, ‘Survey on Income
Management’, February-May 2008; NTCOSS Income Management Forum, Alice
Springs, 13 March 2008.

^[34] Jenny Macklin MP and Mark McGowan MLA, Media Release 18 July 2008

^[35] The Families Responsibilities Scheme Trial was introduced in Hope Vale, Coen and
Mossman Gorge communities inQueensland in July 2008. The scheme applies to both
Aboriginal and non-Aboriginal people who have lived in the trial communities for
3 months. The four triggers to bring a person before the Commission are:

- The person’s child has three absences in
a school term without reasonable excuse or a child is not enrolled in school
without lawful excuse;

- The person is the
subject of a child safety notification or report;

- A magistrates court convicts the person of an
offence; or

- The person breaches his or her
State or council owned housing tenancy agreement (illegal purpose, nuisance,
condition report, malicious damage, rent arrears).

People who come before the Commission can face a range
of actions from a warning to agreements that force them to attend community
support services. As a last resort, the commission will have the power to order
that people have their income be managed for up to 12 months. The trial will be
run until January 1, 2012. (Premier’s
Media Release, ‘Ground-breaking legislation:
Families Responsibilities Commission to be introduced into Queensland Parliament
today’ 26 February 2008, available at:
http://www.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=56680)

^[36] Gilbert + Tobin Centre of Public Law, “Website Project on Northern
Territory Intervention: Fact Sheet on Income Management”, 11 March 2008,
(available at:
http://www.gtcentre.unsw.edu.au/Resources/docs/irlg/Fact_Sheet_Income_M…).

^[37] FaHCSIA, ‘First Steps in Closing the Gap: Welfare Reform’ Budget
Statement by the Hon. Jenny Macklin MP, Minister for Families, Housing Community
Services and Indigenous Affairs, 13 May 2008, (available at:
http://www.facsia.gov.au/budget/ministerial_statement/part3_9.htm).

^[38] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney 2007,
p278.

^[39] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC Sydney 2007,
p278.

^[40] The Tangentyere Council (in Alice Springs) voluntary scheme which supports over
800 Aboriginal people to use Centrepay to pay bills and rent. Under this scheme,
Centrepay provides part of people’s welfare payment in the form of food
vouchers. Combined Aboriginal Organisations of the Northern Territory, A
proposed emergency response and development plan to protect Aboriginal children
in the Northern Territory: A preliminary response to the Australian
Government’s proposals, 10 July 2007, p16, available online at: http://www.rachelsiewert.org.au/files/campaigns/extras/CAO-report-10%20july.pdf,
accessed 2 November
2007.

⁴¹Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2007, HREOC Sydney 2007,
p280.

^[42] Tangentyere Council Alice Springs, “Submission to the Senate Select
Committee on Regional and Remote Indigenous Communities” 9 June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub31.pdf),
p11.

^[43] Tangentyere Council Alice Springs, “Submission to the Senate Select
Committee on Regional and Remote Indigenous Communities” 9 June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub31.pdf),
p11

^[44] Human Rights and Equal Opportunity Commission, 'Bagot
Community Consultation, Darwin'
(2008)

^[45] Human Rights and Equal Opportunity Commission, 'Meeting
with Laynhapuy Homelands Association'
(2008)

^[46] Kate Conigrave, Elizabeth Proude, Peter d’Abbs, Evaluation of the
Groote Eylandt and Bickerton Island

Alcohol
Management System, A report produced for the Department of Justice, Northern
Territory Government, July 31, 2007, p4 (available at:
http://www.nt.gov.au/justice/licenreg/documents/reports/Groote%20Eyland…)

^[47] Kate Conigrave, Elizabeth Proude, Peter d’Abbs, Evaluation of the
Groote Eylandt and Bickerton Island

Alcohol
Management System, A report produced for the Department of Justice, Northern
Territory Government, July 31, 2007, p5 (available at:
http://www.nt.gov.au/justice/licenreg/documents/reports/Groote%20Eyland…)

^[48] Aboriginal and Torres Strait Islander Commissioner, Social Justice Report
2007, HREOC, Sydney, 2007, pp81-91. ^[49] Alex Brown and Ngiare J Brown, The Northern Territory intervention: voices from
the centre of the fringe, (Ref. Medical Journal of Australia 2007; 187 (11/12):
621-623, available at:
http://www.mja.com.au/public/issues/187_11_031207/bro11318_fm.html; Chandler, M.
J., and Lalonde, C., Cultural continuity as a hedge against suicide in First
Nations youth, 2000, available at http://web.uvic.ca/~lalonde/manuscripts/1998TransCultural.pdf accessed 9 August
2007.

^[50] Milroy, H., (Associate Professor, Centre for Aboriginal Medical and Dental
Health University of Western Australia) personal email correspondence with the
Aboriginal and Torres Strait Islander Social Justice Commissioner, 9 August
2007.

^[51] Central Australian Aboriginal Legal Aid Service and the North Australian
Aboriginal Justice Agency, “Joint submission to the Senate Select
Committee on Regional and Remote Indigenous Communities”, June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub24.pdf),
p3.

^[52] Central Australian Aboriginal Legal Aid Service and the North Australian
Aboriginal Justice Agency, “Joint submission to the Senate Select
Committee on Regional and Remote Indigenous Communities”, June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub24.pdf,
p17.

^[53] Human Rights and Equal Opportunity Commission, 'Bagot
Community Consultation, Darwin'
(2008)

^[54] Intervention Rollback Action Group, ‘Quarantining Questionnaire’
2008; Darwin Aboriginal Rights Coalition, ‘Survey on Income
Management’, February-May
2008.

^[55] Tangentyere Council Alice Springs, “Submission to the Senate Select
Committee on Regional and Remote Indigenous Communities” 9 June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub31.pdf),
p2.

^[56] Central Australian Aboriginal Legal Aid Service and the North Australian
Aboriginal Justice Agency, “Joint submission to the Senate Select
Committee on Regional and Remote Indigenous Communities”, June 2008
(available at: http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub24.pdf,
p6.

^[57] Central Land Council, Reviewing the Northern Territory Emergency Response:
Perspectives from Six Communities, Central Land Council, Alice Springs, July
2008,
p74.

^[58] Acting Manager, Yuendumu’s Mt Theo program, cited in Central Land Council, Reviewing the Northern Territory Emergency Response: Perspectives from Six
Communities, Central Land Council, Alice Springs, July 2008,
p70.

^[59] Aboriginal and Torres Strait Islander Commissioner, HREOC National Race
Relations Roundtable Meeting,
2007.

^[60] United Nations, The Human Rights-Based Approach to Development Cooperation:
Towards a Common Understanding Among the UN Agencies, United Nations, New
York 2003, available online at: www.unescobkk.org/fileadmin/user_upload/appeal/human_rights/UN_Common_understanding_RBA.pdf.

^[61] United Nations, The Human Rights-Based Approach to Development Cooperation:
Towards a Common Understanding Among the UN Agencies, United Nations, New
York 2003, available online at: www.unescobkk.org/fileadmin/user_upload/appeal/human_rights/UN_Common_understanding_RBA.pdf.

^[62] General Comment 5: General measures of implementation for the Convention on the
Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June
2008.

^[63] The Committee on the Rights of Child have determined these four principles
contained in Articles 2, 3(1), 6 and 12 respectively, are essential to ensuring
the effective implementation of the Convention on the Rights of the Child.
General Comment 5: General measures of implementation for the Convention on the
Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June
2008.

^[64] General Comment 5: General measures of implementation for the Convention on the
Rights of the Child, U.N. Doc. CRC/GC/2003/5, 03/10/2003, paras 9, 37 and 39,
available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June 2008.

^[65] United Nations Development Group Guidelines on Indigenous Peoples Issues, February 2008, available at:
http://www.un.org/esa/socdev/unpfii/documents/UNDG_Guidelines_indigenou…

^[66] General Comment 5: General measures of implementation for the Convention on the
Rights of the Child :U.N. Doc. CRC/GC/2003/5, 03/10/2003, para 12, available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En?OpenDocument,
accessed on 11 June 2008. The obligation to consult with children is further
articulated by the Committee in relation to Indigenous children in the
Committee’s “Day of general discussion on the Rights of Indigenous
Children – recommendations”, 3 October 2003, available at: http://www2.ohchr.org/english/bodies/crc/docs/discussion/indigenouschildren.pdf,
accessed on 11 June
2008.

^[67] Diane Smith, From COAG to Coercion: A Story of Governance Failure, Success
and Opportunity in Australian Indigenous Affairs, Centre for Aboriginal
Economic Policy Research, College of Arts & Social Sciences, The Australian
National University, Canberra, 2008, p 13, available at:
http://www.aph.gov.au/SENATE/committee/indig_ctte/submissions/sub25_att…

^[68] Close the Gap, Indigenous Health Equality Summit Statement of Intent,
Canberra, 20 March 2008 (available at:
http://www.hreoc.gov.au/Social_Justice/health/statement_intent.html). For
examples of equality targets see HREOC, Close the Gap National Indigenous
Health Equality Targets; Outcomes from the National Indigenous Health Equality
Summit, Canberra, March 18-20, 2008, HREOC Sydney, 2008 (available
at:
http://www.humanrights.gov.au/social_justice/health/index.html)

^[69] Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
family violence and abuse in Aboriginal and Torres Strait Islander communities:
Key issues, HREOC, Sydney,
2006.

^[70] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC, Sydney, 2007,
p188.

^[71] Memmott, P. ‘Community- Based Strategies for Combating Indigenous
Violence’, in UNSW Law Journal, 25(1), 2002,
p221.

^[72] Anderson, P., and Wild, R., Ampe Akelyernemane Meke Mekarle ‘Little
Children are Sacred’ Report of the Northern Territory Board of Inquiry
into the Protection of Aboriginal Children from Sexual Abuse, Northern
Territory Government, Darwin, 2007,
p160.

^[73] This initiative was in response to COAG’s 2006 commitment to ‘invest
in community legal education to ensure Indigenous Australians are informed about
their legal rights, know how to access assistance and are encouraged to report
incidents of violence and abuse’. Council of Australian Governments, Communiqué, Indigenous Issues, COAG Meeting 14 July 2006,
available online at: http://www.coag.gov.au/meetings/140706/index.htm#indigenous accessed 15 July
2008

^[74] The evaluation was carried out at three Family Violence Prevention Legal
Services (FVPLS):Cape York East and West Service FVPLS, the Central
Australia FVPLS and the Northern Territory
FVPLS.

^[75] Anderson, P., and Wild, R., Ampe Akelyernemane Meke Mekarle ‘Little
Children are Sacred’ Report of the Northern Territory Board of Inquiry
into the Protection of Aboriginal Children from Sexual Abuse, Northern
Territory Government, Darwin, 2007,
p160.

^[76] Human Rights and Equal Opportunity Commission and United Nations Permanent Forum
on Indigenous Issues, Engaging the marginalized: Report of the Workshop on
Engaging with Indigenous Communities, United Nations Workshop- International
Conference on Engaging Communities, Brisbane, 15 August 2005, available online
at: http://www.humanrights.gov.au/social_justice/conference/engaging_communities/index.html#link1 , accessed 18 November 2007.

^[77] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC, Sydney, 2008,
pp303-309.

^[78] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, HREOC, Sydney, 2008, pp192.

Search

Northern Territory Emergency Response Review Board

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

Contents

Introduction

Summary

Recommendations

Ten
point plan to amend the NTER

Impacts of the
NTER

Alternative
Measures

Human Rights Based Approach

Human rights based approach to family violence and
abuse

Human Rights Education and Community
Development

Appendix 1: Social Justice Report
2007 – Recommendations 3-14 for the
NTER^[77]

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

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

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

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

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

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

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

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

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

Recommendation 12: Supporting community based initiatives for alcohol
management

Recommendation 13: Ensuring Indigenous participation and developing
community partnerships

Recommendation 14: Monitoring and evaluation of the NT
intervention

Appendix 2: Social Justice Report 2007 – Human rights based indicators for programs addressing violence and abuse
in Indigenous
communities^[78]

Endnotes

Search

Northern Territory Emergency Response Review Board

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

Contents

Introduction

Summary

Recommendations

Ten point plan to amend the NTER

Impacts of the NTER

Alternative Measures

Human Rights Based Approach

Human rights based approach to family violence and abuse

Human Rights Education and Community Development

Appendix 1: Social Justice Report 2007 – Recommendations 3-14 for the NTER[77]

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

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

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

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

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

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

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

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

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

Recommendation 12: Supporting community based initiatives for alcohol management

Recommendation 13: Ensuring Indigenous participation and developing community partnerships

Recommendation 14: Monitoring and evaluation of the NT intervention

Appendix 2: Social Justice Report 2007 – Human rights based indicators for programs addressing violence and abuse in Indigenous communities[78]

Endnotes

HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION (HREOC)

NORTHERN TERRITORY EMERGENCY
RESPONSE REVIEW BOARD

REVIEW OF THE NORTHERN
TERRITORY EMERGENCY RESPONSE

Ten
point plan to amend the NTER

Impacts of the
NTER

Alternative
Measures

Human rights based approach to family violence and
abuse

Human Rights Education and Community
Development

Appendix 1: Social Justice Report
2007 – Recommendations 3-14 for the
NTER^[77]

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

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

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

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

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

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

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

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

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

Recommendation 12: Supporting community based initiatives for alcohol
management

Recommendation 13: Ensuring Indigenous participation and developing
community partnerships

Recommendation 14: Monitoring and evaluation of the NT
intervention

Appendix 2: Social Justice Report 2007 – Human rights based indicators for programs addressing violence and abuse
in Indigenous
communities^[78]