Indigenous Law Bulletin
By Raelene Webb QC.
I bring to you a direct message from Indigenous elders in the Northern Territory who have urged the Commonwealth Government to abandon key aspects of the Emergency Intervention (‘Intervention’) into Aboriginal communities.
Northern Land Council chairperson, Mr Wali Wunungmurra, is one of the last surviving signatories to the 1963 Yirrkala bark petition which led to the Gove land rights case in 1971. In that case, the Yolngu sought legal recognition of their traditional rights to land. Although the claim was rejected by the Supreme Court, the case prompted the 1973 Woodward Royal Commission into Land Rights, leading to the enactment of the Aboriginal Land Rights (Northern Territory) Act (‘ALRA’) in 1976.
Mr Wunungmurra has asked me to pass on his perspective of the Intervention, which he describes as having ‘created a mess’. While he believes that some of the measures could be made to work, he emphasises the importance of a case by case approach, rather than the current reliance on blanket measures, or ‘one-size fits all’. Mr Wunungmurra, together with 52 other elders from the Top End, has made a public statement regarding the Intervention demanding the scrapping of ‘Intervention bureaucracy’. Many of these sentiments have been endorsed in the Final Report of the NTER Review Board (‘NTER Report’); but despite this support, it seems that little will change in the short term.
Mr Wunungmurra has been particularly critical of three aspects of the Intervention: compulsory income management, compulsory acquisition of land and excessive bureaucracy.
With her permission and that of her Balanda ‘son’ John, let me share with you the story of Julie, who lives at Galiwin'ku, Elcho Island8
Julie has worked all her life supporting her family and her community. In the 1970s, Julie started working for the local council, first as a cleaner and later as a pay clerk. Julie worked at the council for many years while her children attended the local school. Later she found a job at that same school so that she might accompany her grandchildren to classes every day. Julie believed it was important that they receive an education and believed that, if she was nearby all day, they would be more likely to attend their lessons. In 2007, Julie suffered a stroke; unable to continue working, she started to receive a Centrelink invalid pension.
Towards the end of April 2007, Julie rang John and asked him to find out what this ‘income management’ was about, and why she was not receiving her full pension. She was outraged that half her pension was being quarantined without her permission, that she was being treated like a child. Mistakenly, Julie believed that all Australians on Centrelink payments – black and white – were having their incomes managed.
After discovering the true nature of income management, Julie asked John to assist her in seeking an exemption. John approached the Centrelink office and asked one of the officers why Julie’s pension payments were being quarantined. John recounts that the officer answered,
‘It's a response to the Little Children are Sacred Report’.
John was surprised, ‘You must think she is a child abuser. I want my mum exempted from income management.’
The officer asked, ‘What are the reasons she should not be income managed?’
John thought, then demanded, ‘First you tell me the reasons she is on it.’
At first the officer could not answer; eventually he replied, ‘Because she lives on Aboriginal land.’
John went on to explain that Julie had never touched alcohol (Galiwin'ku is a dry community), had never smoked, gambled or abused children. But the officer informed John that there were no exemptions to the income management scheme; the only relevant determinant was whether the relevant person lives in a ‘prescribed area’.
The NTER Report refers to widespread disillusionment, resentment and anger among many Indigenous people as a result of the blanket application of income management throughout their communities. Taking Julie’s case as an example, it is not difficult to see why. The severe and negative impact of such measures on the spirit of Indigenous people cannot be underestimated. John recounts the words of one elderly Aboriginal woman,
The tide is in, we are drowning. Why don’t they just come and shoot us?
The NTER Report recommended that:
• blanket application of compulsory income management in the Northern Territory cease;
• income management apply only on the basis of child protection, school attendance and relevant behavioural triggers;
• the provisions apply throughout NT; and
• all welfare recipients be given access to external merits review.
Despite these recommendations, the Federal Government has indicated that it will
continue comprehensive, compulsory income management as a key measure of the Northern Territory Emergency Response (NTER) because of its demonstrated benefits for women and children.
Compulsory income management will be extended for at least twelve months; during this time, a scheme that is consistent with the Racial Discrimination Act 1975 (Cth) (RDA) will be developed in consultation with Indigenous communities. Legislation in early 2009 is intended to ensure ‘access to the full range of appeal mechanisms afforded to other Australians’.
Mr Wunungmurra expresses deep concern about compulsory acquisition of Aboriginal land by the Commonwealth. He considers the grant of exclusive five-year leases over Aboriginal townships and settlements to be outrageous; the leases are breaking down the rules and principles of the ALRA legislation, making it an Act that is now easily undermined. In his view, compulsory acquisition destroys the essence of traditional ownership: the relationship between Indigenous people and their land. He describes how compulsory acquisitions have damaged the culture of the communities: by introducing this element of greed, the community lifestyle has been ‘blown to pieces’. He is particularly concerned about the potential for illegitimate land-grabs – both by Indigenous and non-Indigenous people.
The NTER Report recommended that the Federal Government pay to Aboriginal landowners
• compensation on just terms for acquisition and use of property without consent; and
• rent for land subject to the five year leases.
In recognition that the land is, in fact, Aboriginal-owned, the Government has agreed to pay reasonable rent in respect of the leases. While a positive step, the difficulty with this response is that it fails to redress a fundamental incursion on traditional land rights: Aboriginal people are still prevented from exercising their right to speak for, and make decisions about, their land.
Mr Wunungmurra is concerned about the millions of dollars being spent on the Intervention. The widespread community perception is that most of the funds are being spent in support of bureaucracy; very little is reaching people ‘on the ground’. Importantly, neither Mr Wunungmurra nor the people he represents consider that all aspects of the Intervention should be scrapped. Rather, the key to protecting children from harm is community consultation. It is a mistake to assume that Indigenous people in the Northern Territory are unaware of the troubles within their communities. It is equally false to assume that they are unable to find the solutions necessary to address these problems.
Like any small community in Australia, whether Indigenous or non-Indigenous, what is needed is an honest and transparent partnership with key government agencies. Importantly, it is necessary that such a partnership receive adequate funding ‘on the ground.’ It is not enough that the Government be accountable to both the Intervention ‘program’; it must also be accountable to the people it purports to serve.
A particularly concerning aspect of the Intervention legislation is the explicit exclusion of the RDA The NTER Report recommended that Government bring all measures affecting Aboriginal communities in line with the RDA For its part, the Government recognises that ‘long term measures cannot rely on the suspension of the ... RDA’ and the Government ‘intends to introduce legislation to lift the RDA suspension in the Spring 2009 sittings of the Parliament’
To be blunt, as introduced and in its present form, the Intervention is seen by most Indigenous people in NT as a racist regime and a fundamental breach of human rights. It is seen as damaging the culture of the communities it affects. As the Law Council of Australia said:
Such an extraordinary development places Australia in direct and unashamed contravention of its obligations under relevant international instruments, most relevantly the United Nations Charter and the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’). In addition to its status as a treaty obligation, contained in all major human rights instruments, the prohibition of racial discrimination has attained the status of customary international law, and has been characterised as one of the ‘least controversial examples of the class’ of jus cogens. Jus cogens or peremptory norms of international law are overriding principles of international law, distinguished by their indelibility and non-derogability. They cannot be set aside by treaty or by acquiescence. Other ‘least controversial’ examples of jus cogens include the prohibition of the use of force, the prohibitions of genocide, slavery and apartheid, and the principle of self-determination.
Of course, the express suspension of the RDA under the Emergency Response legislation may be superfluous: the RDA, as earlier legislation, has no impact on the interpretation or validity of subsequent legislation. However, as the Law Council said, the express repudiation by a national government of the fundamental rights of its Indigenous population is a cause for deep concern in any liberal society.
In the rhetoric surrounding the measures suspending the RDA under the Emergency Response legislation, it has been claimed that the measures represent a ‘balance’ between Australia’s international treaty obligations to protect the human rights of women and children, who may be subject to abuse, and the rights of Aboriginal and Torres Strait Islander people to freedom from discrimination. Such statements appear to suggest that these important objectives are somehow incompatible.
It might be argued that there is a philosophical conflict between protecting Indigenous children from abuse, and protecting an Indigenous community’s right to self-determination. The conflict is between ‘the best interests of the child’ and ‘the best interests of the community’. But to fully understand the best interests of an Indigenous child, we must explore the ‘fundamental links between culture and identity and the concomitant importance of family and community to the meaningful existence and survival of …Aboriginal children’.
The Australian legal system tends to individualise people; in traditional Indigenous culture, children are viewed as part of the community identity. Relevant elements of this identity include community responsibility for child welfare; often children reside in an extended family or kinship network rather than with biological parents. There is often a practice of moving children between responsible adults rather than an emphasis on stability of residence. While child safety must be the paramount consideration, it cannot be divorced from its cultural context.
Effective protection of Indigenous children in communities requires that communities be empowered to play an active role in the protection of their children. The first step to empowerment is, as the 2007 Little Children are Sacred Report highlights, ‘genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities’ If the Intervention measures are to have any prospects of long-term success, this step is essential.
Fortunately, although belatedly, the Government appears to have accepted the need for detailed consultation, stating in its Interim Response:
Improving NTER measures ... is a complex policy task that requires detailed consultation and technical work. The Government is committed to doing the job properly in conjunction with the NT Government and Aboriginal people.
In undertaking these consultations I urge that the Government implement Recommendation 71 of the Little Children are Sacred Report:
That, as soon as possible, the government facilitate dialogue between the Aboriginal law-men and law-women of the Northern Territory and senior members of the legal profession and broader social justice system of the Northern Territory. That such dialogue be aimed at establishing an ongoing, patient and committed discourse as to how Aboriginal law and Northern Territory law can strengthen, support and enhance one another for the benefit of the Northern Territory and with specific emphasis on maintaining law and order within Aboriginal communities and the protection of Aboriginal children from sexual abuse.
Otherwise, with the continued implementation of the Commonwealth plan in taking control of Indigenous communities, the sad words of a Western Arrente Elder will remain true of Indigenous law and culture in the Northern Territory:
Australian law has knocked us out.
Certainly, Indigenous people are vulnerable to being ‘knocked out’ by discriminatory, destructive Government policies such as the Intervention. This is why, as he explained to me, Mr Wunungmurra is seeking constitutional reform: to recognise and protect Indigenous cultural and political rights, and to enshrine a prohibition against racial discrimination. As Mr Wunungmurra says:
The attainment of this constitutional recognition will close the chapter in our struggle that was opened when we petitioned the Government in 1963. Let's take this journey together.’
Raelene Webb is a barrister at William Forster Chambers, Darwin and a long-time resident of the Northern Territory.
 This article is based upon a longer paper delivered at the 3rd National Indigenous Legal Conference held at Melbourne, 12-13 September 2008.
 Interview with Mr Wali Wunungmurra, Chairman, Northern Land Council, Northern Territory,
 Milirrpum v Nabalco Pty. Ltd (1971) 17 FLR 141.
 Above, n 2.
 Tara Ravens, ‘Aborigines Want End to NT Intervention’, The Sydney Morning Herald (Sydney), 25 July 2008, <http://news.smh.com.au/national/aborigines-want-end-to-nt-intervention-20080725-3ksk.html> .
 Peter Yu et al, Northern Territory Emergency Response: Report of the NTER Review Board (2008), <http://www.nterreview.gov.au/report.htm> .
 See the interim response to the Report of the NTER Review Board, Minister for Families, Housing, Community Services and Indigenous Affairs, Compulsory Income Management to Continue as Key NTER Measure, Press Release (23 October 2008), <http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/print/nter_measure_23oct08.htm> , (‘Interim Government Response’).
 John Greatorex: ‘NT Intervention: How Income Management is Hurting My Mum’, Crikey, 23 June 2008, <www.crikey.com.au/Politics/20080623-NT-Intervention-How-income-management-is-hurting-my-mum.html>.
 Northern Territory National Emergency Response Act (Cth), s 4.
 Yu et al, above n 6, 20.
 Greatorex, above n 8.
 Yu et al, above n 6, 23.
 Interim Government Response, above n 7.
 Yu et al, above n 6, 43.
 Interim Government Response, above n 7.
 Yu et al, above n 6, 46.
 Ibid, 47.
 Interim Government Response, above n 7.
 Law Council of Australia, Northern Territory National Emergency Response Legislation, submission to the Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, 9 August 2007, 4.
 Janet Stanley, Adam M Tomison and Julian Pocock, Child Abuse and Neglect in Indigenous Australian Communities, National Child Protection Clearinghouse, Issues Paper No 19 (2003) 20, <http://www.aifs.gov.au/nch/pubs/issues/issues19/issues19.html> .
 Philip Lynch ‘Keeping them home: The best interests of Indigenous children and communities in Canada and Australia ‘ (2001) Sydney Law Review, 23(4), 501, 508-509.
 Stanley et al, above n 21, 20.
 Patricia Anderson and Rex Wild, Little Children are Sacred: Inquiry into the Protection of Aboriginal Children from Sexual Abuse 2007, 7.
 Interim Government Response, above n 7.
 Anderson and Wild, above n 24, 179.
 Yu et al, above n 6, 176.