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Cooper, Sonia --- "The Northern Territory Emergency Response - Report by the Review Board" [2008] IndigLawB 31; (2008) 7(7) Indigenous Law Bulletin 24

The Northern Territory Emergency Response
Report by the Review Board

By Sonia Cooper.

The Northern Territory Emergency Response Review Board (the Board) is a group comprising 11 independent experts drawn from the fields of public policy, health, child welfare, legal and economic development.[1] The Board was established to conduct an independent and transparent review of the Northern Territory Emergency Response (‘NTER’), also referred to as the ‘Intervention’.

The current Federal Government supported the introduction of the NTER by the former Federal Government. Initially introduced on 21 June 2007, it continues to operate 12 months on. The Intervention was designed to protect children in remote Aboriginal communities. It was also designed to create a better future for Aboriginal people in the Northern Territory (NT), and to make their communities safer.[2]

There was wide community response in relation to the Review released 13 October 2008; 222 submissions were put forward to the Review Board. Jumbunna Indigenous House of Learning,[3] Office of the Privacy Commissioner,[4] Warlpiri Youth Development Aboriginal Corporation[5] and Bungala Aboriginal Corporation[6] were just some of the organisations that responded.

What is the NTER?

The NTER is made up of a series of reform measures to welfare, employment, law and order, child and family health, housing, education and land. These measures are broken up into a series of ‘sub-measures’, such as income management and laws controlling alcohol, drugs and pornography.

The Law Council of Australia has expressed anger over the legislative constraints[7] and enforced quarantine measures placed upon Aboriginal people in the NT.[8] Law Council President, Ross Ray QC said:

the Review Board has identified several critical human rights concerns which must be addressed before the NT Intervention continues… The Racial Discrimination Act must be reinstated in respect of all legislation governing the intervention, and it must be made clear that all actions carried out under the intervention are subject to racial discrimination laws.[9]

The Law Council had condemned the suspension of the permit system, compulsory income management, prohibition against consideration of the cultural background of Indigenous offenders in sentencing and compulsory acquisition of Aboriginal land.[10]

The Review Board

Under the Terms of Reference, the Board was required to:

1. Examine and assess NTER measures in improving safety and wellbeing of women and children, with particular regard to education, health, community safety and employment outcomes;
2. Consider what is and is not working, whether the current measures will deliver their intended results, whether any unintended consequences have emerged and whether other measures should be developed; and
3. Assess the effects of each NTER measure to date and recommend any changes.[11]

The Board, led by Peter Yu, Marcia Ella Duncan and Bill Gray,[12] has examined the operation of all NTER measures and made the following recommendations. This article will only cover some of the recommendations that were made.

Recommendations by the Review Board

The Board recommended that compulsory income management cease and be applied on a voluntary basis only.[13] Peter Yu said income management should only apply to families whose children did not attend school or had been reported to child protection authorities. Tony Abbott responded that such an approach would not be workable and would ‘fatally undermine the Intervention.’[14]

In relation to law and order, the Board recommended that NTER laws prohibiting the possession and transportation of alcohol on prescribed lands be maintained and the number of police be increased.[15]

The Board found that there was general community support for the school nutrition program. There has been an increase in secondary school enrolment and attendance but a decrease in primary school enrolment and attendance.[16]

In relation to housing and land reform, the Board recommended that the Federal Government pay compensation to Aboriginal landowners for the acquisition and use of property without consent. The compensation should be paid on just terms and calculated from the date of the original acquisition.[17] The Government has been granted an exclusive five-year lease to take possession and control of land belonging to larger Aboriginal communities by compulsory acquisition. The Board concluded that the Government ought to pay rent to the Aboriginal owners of the land subject to the five-year lease.[18]

The Board recommended that the permit system under the Aboriginal Land Rights (Northern Territory) Act 1976 be reinstated to control general public access to the townships on Aboriginal land.[19]

The Board recommended that the Government respect Australia’s human rights obligations and conform with the Racial Discrimination Act 1975 (Cth)[20] (RDA).

Other recommendations addressed place-based agreements, governance arrangements, adjustments to professional training and integrated data systems.[21]

Differing Responses to the Report

The release of the Report did not enter the public quietly; it has been met with significant controversy.

Paul Toohey of The Australian newspaper reported that the Draft Report that had been handed to the Federal Government was a dramatically different document from the Final Report, suggesting that the Draft had been rewritten in response to political pressure.[22] The Final Report finds that

the situation in remote communities and town camps was - and remains - sufficiently acute to be described as a national emergency. The NTER should continue.’[23]

However, Toohey reported that the Draft Report offered no such support for the continuation of the Intervention. Instead, it likens the impact of the Intervention to ‘an experience of violence itself’ and argues that ‘the way forward must be based on a fresh relationship.’[24]

In a powerful submission, the Australian Indigenous Doctors Association noted that,

on the whole, the response to income management has been ineffective, discriminatory, and harmful …[and] does not take into account the size of Aboriginal families and high cost of food in remote Aboriginal communities. Therefore many community members reported that there is insufficient money for food and other essential items.[25]

NT Minister for Aboriginal Policy, Marion Scrymgour, says that the Intervention must engage with Aboriginal people.[26]

On the other hand, the Federal Coalition has confirmed that it will oppose any Government move to soften welfare controls in Northern Territory Aboriginal communities;[27] former Indigenous Affairs Minister Mal Brough has reported having no regrets about the Intervention.[28]

Indigenous academic Marcia Langton has criticised the Board’s recommendation that the RDA should remain suspended to allow the radical measures to continue. Professor Langton considers that watering-down of welfare controls would be dangerous for communities.[29]

Initial Response from the Federal Government

The Federal Government released an initial response to the recommendations on 23 October 2008. The proposed transition period would be to develop and implement ongoing and adjusted policies on Indigenous disadvantage. This would involve an immediate renewed emphasis on community engagement and development. Existing NTER measures would continue while legislation is developed and considered.[30]

The Government has agreed to pay rent to the traditional owners and has asked the NT Valuer-General to determine a reasonable rent for all existing five-year leases. After determining the relevant amount, payment will commence automatically. Further, the Government will examine whether the five-year leases might be reduced.[31]

The Government has said that it will design special non-discriminatory measures consistent with the RDA. This would not require the suspension of the RDA.[32] Legislative amendments to bring existing NTER legislation within the scope of the RDA will be introduced in the Spring Parliamentary session in 2009.[33]

Conclusion

The Review Board says that the Intervention was fuelled, accelerated and flawed by the heightened emotion that surrounded its inception.[34] The Board concluded that, no matter how good the framework, no matter how much money is available, change ‘cannot be driven into a community and unloaded off the back of a truck.’[35] That is the lesson learned from the Intervention.[36]

Genuine improvements to the lives of children and their families in remote parts of the NT will not be achieved simply through the strength of our feelings about the need to resolve the problems addressed by the NTER.[37]

Australia is a member of the UN Convention on the Rights of the Child, a legally binding international instrument. By signing up to the Convention, Australia has committed itself to protecting and ensuring that Australia’s children’s rights are recognized. Article 2(2) writes:

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.[38]

For Indigenous peoples, the right of free, prior and informed consent is a requirement, prerequisite and manifestation of the exercise of their fundamental right to self-determination as defined in international law.[39]

The Government has clearly chosen a direction that shows obvious disregard for human rights and fundamental freedoms. These rights are universal; respect towards Aboriginal communities in the NT, and observance of human rights and fundamental freedoms, should no longer be ignored.

The NTER has and will continue to raise great debate and mixed views over the Government’s approach, intent and future dealings in the NT. The Government is due to release a full response to the Report over the coming months.

Sonia Cooper is a Yorta Yorta woman from Cummeragunja, NSW. She is currently in her fourth year of Bachelor of Laws and will resume full time studies at UNSW in 2009. Sonia is currently working as a Research Associate at the Indigenous Law Centre, UNSW.


[1] Minister for Families, Housing, Community Services and Indigenous Affairs, Press Release, 6 June 2008, NT Emergency Response Review Board, 2008 <http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/nt_emergency_reponse_06jun08.htm> , at 17 October 2008; the full NTER Review Report is available at <http://www.nterreview.gov.au> .

[2] Northern Territory Emergency Response Taskforce, Final Report (2008) 7.

[3] Jumbunna Indigenous House of Learning at the University of Technology Sydney (UTS), August 2008, <http://www.jumbunna.uts.edu.au/research/pdf/NTNER_Submission.pdf> .

[4] Available soon at <http://www.privacy.gov.au> , listed as a received submission on <http://www.nterreview.gov.au/subs.htm> .

[5] Australian Government, NTER Review, ‘Submissions’, 22 October 2008, <http://www.nterreview.gov.au/subs.htm> .

[6] Ibid.

[7] Law Council of Australia’s submission to the NTER Review Board available online at <http://www.lawcouncil.asn.au/get/submissions/2455926396.pdf> .

[8] Law Council of Australia, ‘Reinstate Racial Discrimination Act in NT, Law Council Urges’, 14 October 2008, <http://www.lawcouncil.asn.au/read/2008/2458812324.html> .

[9] Ibid.

[10] Ibid.

[11] Australian Government, NTER Review, ‘Terms of Reference’, 15 October 2008, <http://www.nterreview.gov.au/tor.htm> .

[12] Northern Territory Emergency Response Taskforce, above n 2, 65.

[13] Ibid 23.

[14]Adam Gartrell and Julian Drape, ‘Opposition will Oppose any Intervention Welfare Changes’, National Indigenous Times, 15 October 2008, <http://www.nit.com.au/breakingNews/story.aspx?id=16264> .

[15] Northern Territory Emergency Response Taskforce, above n 2, 28.

[16] Ibid 29.

[17] Ibid 43.

[18] Ibid.

[19] Ibid.

[20] Ibid 47.

[21] Ibid 58.

[22] Paul Toohey, ‘Rewrite Takes Sting out of NT Report’, The Australian, Sydney, 15 October 2008, <http://www.theaustralian.news.com.au/story/0,25197,24499037-601,00.html> .

[23] Northern Territory Emergency Response Taskforce, above n 2, 10.

[24] Toohey, above n 22.

[25] Larissa Behrendt, ‘A Successful Intervention Needs Less Emotion, More Evidence’, Sydney Morning Herald, Sydney, 16 October 2008, <http://www.smh.com.au/news/opinion/a-successful-intervention-needs-less-emotion-more-evidence/2008/10/15/1223750125263.html> .

[26] ABC News, ‘Intervention must Engage with Indigenous Communities’, ABC News Online, 13 October 2008, <http://www.abc.net.au/news/stories/2008/10/13/2389971.htm> .

[27] Gartrell and Drape above n 14.

[28] ABC News, ‘Brough Has No Rregrets Over Blanket Intervention’, ABC News Online, 16 October 2008, <http://www.abc.net.au/news/stories/2008/10/14/2390164.htm> .

[29] Patricia Karvelas, ‘Report is More Touchy-Feely Nonsense’, The Australian, 14 October 2008, <http://www.theaustralian.news.com.au/story/0,25197,24492522-5013172,00.html> .

[30] Minister for Families, Housing, Community Services and Indigenous Affairs, Press Release, 23 October 2008, Compulsory Income Management to Continue as Key NTER Measure, <http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/nter_measure_23oct08.htm> .

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Northern Territory Emergency Response Taskforce, above n 2, 58.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Available at <http://www2.ohchr.org/english/bodies/ratification/11.htm> .

[39] Available at <www.treatycouncil.org/PDFs/FPIC_ENG_072708WEB.pdf>.


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