3. NTER legislation

As the legislative underpinning of the NTER, the Northern Territory National Emergency Response Act 2007 and related legislation¹⁴ is deeply flawed, and AMSANT is of the view that the appropriate course for the Australian Government is to extensively amend the legislation to bring it in line with human rights standards and to ensure that the measures contained within it are evidence-based.

The NTER and human rights obligations

In his Social Justice Report 2007, Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, analysed the claims of the Australian Government that the NTER legislation is consistent with Australia's human rights obligations. The report found numerous areas where the legislation breaches human rights. Responding to the Howard Government's stated position that any restrictions on rights is justified in terms of the fact that the NTER was a "special measure" comprising an "emergency response" to address "the safety and wellbeing of children" pursuant to Australia's obligations under the UN Convention on the Rights of the Child, the Social Justice Commissioner stressed that such a claim was not supported by human rights law and that:

"...it is entirely inappropriate to seek to justify measures that breach human rights on the basis that they are taken in furtherance of other human rights considerations."¹⁵

In particular, the Social Justice Commissioner found:

The NT legislation is inappropriately classified as a special measure.
The NT intervention legislation contains a number of provisions that are racially discriminatory.
The NT intervention removes protections against discrimination that occurs in the implementation of the intervention measures.
A range of specific concerns about the consistency of the income management regime with the rights to social security, privacy and non-discrimination.
An absence of effective participation of Indigenous peoples in decision-making that affects them, particularly with respect to Indigenous property.

One of the most controversial aspects of the NTER legislation and one that is widely resented and vigorously opposed within the Aboriginal community, is the specific provisions that suspend the operation of the Racial Discrimination Act.

Summarising the implications of such breaches and the exclusion of the operation of the Racial Discrimination Act, the Social Justice Commissioner noted that:

"So long as the NT intervention legislation permits the conduct of racially discriminatory actions, it will lack legitimacy among Aboriginal people and communities as well as the broader Australian society. It will also leave Australia in breach of its international human rights obligations."¹⁶

Accordingly, the Social Justice Commissioner's report provides an action plan and recommendations to bring the NTER in line with human rights standards. AMSANT supports the Social Justice Commissioner's recommendations and urges the Review Panel to strongly recommend that the Australian Government implements them in full. [See Recommendation 4]

14. A list of NTER-related legislation can be found in the Social Justice Report 2007, p205