Northern Territory Emergency Response Review

FaHCSIA home | NTER Review home

Contents

• Table of contents
• Cover Letter
• CLC Position Summary
• Introduction
• Principles for Action
• Funding
• NTER Measures
• Overall Discussion: What progress has there been in improving the safety and well–being of Indigenous children?
• Attachment A – 2007-08 Funding Allocation Summary by CLC

NTER Measures

Racial Discrimination Act

WHAT IS THE MEASURE?

The NTER legislation contains exclusions to the RDA to the effect that NTER measures are deemed to be ‘special measures’ according to the RDA, but that the discrimination provisions of the RDA do not in any event apply to NTER measures.

IS IT WORKING?

The labelling of NTER measures as ‘special measures’ does not have community and legal support.

The principle of ‘special measures’ is embedded in the Convention on the Elimination of all forms of Racial Discrimination (CERD). Under article 1 of CERD, any “special measures”, which may otherwise be discriminatory, taken for the “sole purpose of securing adequate advancement” of a particular group, are not discriminatory.

In interpreting article 1, the leading High Court discrimination case of Gerhardy v Brown notes that:

the wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement

In the past in the Northern Territory ‘special measures’ have been agreed in relation to alcohol on the basis that the communities themselves have agreed. In its 1995 Alcohol Report, the Human Rights and Equal Opportunity Commission concluded that alcohol restrictions which are incompatible with the policies of the community concerned will not be “special measures”.

The recent adoption by the United Nations of the Declaration on the Rights of Indigenous Peoples supports the primacy of informed consent:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Legal advice to the Senate Inquiry last year rejected that the emergency response legislation could be a ‘special measure’. Advice from the Parliamentary Library also raises significant questions about the legislation. This issue is also set out more fully in the Native Title Report 2007 by the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Income Management

WHAT IS THE MEASURE?

Income management has been introduced into most communities of NT at the discretion of the Minister. Income management involves the quarantining of 50 percent of income support and family assistance payments. If clients do not attend a face to face interview with Centrelink, they are auto-income managed and their payments accrue until they are interviewed. There is no clear objective of income management, although presumably the aims are to increase spending on children, reduce spending of alcohol and tobacco and to assist in budgeting of money. According to the legislation, the intensions of quarantining income is to:

promote socially responsible behaviour, particularly in relation to the care and education of children; to set aside the whole or a part of certain welfare payments; to ensure that the amount set aside is directed to meeting the priority needs of: (i) the recipient of the welfare payment; (ii) the recipient’s partner; (iii) the recipient’s children; and (iv) any other dependents (WPR Act 2007, s.123TB).

IS IT WORKING?

Given that there is no clear stated objective, it is difficult to assess the effectiveness of income management. There is no solid evidence available that income quarantining has improved and promoted socially responsible behaviour in individuals or meeting the priority needs of families. We can say that there is some evidence that community store takings have increased since introduction of income management and Aboriginal people are reporting increased expenditure on food items. CLC survey found the Aboriginal people perceived the advantages of income management as increased expenditure on food and clothing, young men starting to contribute to household and possible decrease in drinking and gambling. Yet, there is also some evidence that people are using store cards to gamble or are selling store cards in return for cash. In one community surveyed, people argued that gambling had increased as people are seeking more ways to access discretionary sources of income. The disadvantages Aboriginal people associated with income management was not enough discretionary income, discriminatory, problems accessing money, lack of choice and restrictions on use of money. Income Management have also created a range of administrative burdens for Centrelink clients, including waiting in long Centrelink queues for store cards.

Generally income management has not been supported with increasing people’s capacity to budget. The current blanket approach to welfare reform in designated communities is too simplistic. It offers little incentive for people to change their parenting behaviour and no meaningful access to treatment options. There is limited evidence base that supports its role in achieving better parenting or child outcomes. Moreover, the Cape York Institute argues that such financial sanction programs have a negligible effect on school attendance (Cape York Institute 2007: 66). The CLC believes that an incentive based approach to welfare reform that better targets the actual behaviour of individuals is more appropriate. This could be supplemented by income management arrangements that are voluntarily adopted by individuals already doing the right thing.

There is some level of assumption that quarantining income will help to prevent child neglect and abuse. The absence of coherent policy logic to these welfare reform measures is concerning. Income quarantining in the Northern Territory was introduced as a ‘national emergency’ measure to ensure that a portion of 50 per cent of welfare income was expended on children rather than on alcohol and gambling. This logic assumes that there is a link between what is spent and who is fed, but does not explain why quarantining should be extended to both single and aged welfare recipients who may have no dependent minors.

Further consideration is needed so as to better target these measures at parents or carers who are behaving irresponsibly. The issue of who will document school attendance and who will breach individuals is yet to be resolved. The Australian Education Union remains unconvinced that teachers should be placed in this role. Moreover, there is little incentive for teachers to comply with enrolment and attendance data when so many schools in the NT are understaffed and under resourced. Problems remain in terms of identifying who actually is responsible for caring for children. For these reasons and to improve processes, it is vital that community members are involved in the discussion on welfare reform and appropriate triggers.

Withholding income from people does not automatically teach people how to manage family budgets. Quarantining income is not a magic financial literacy bullet, as pointed out by the Australian Council of Social Services (in their submission to the Senate Legal and Constitutional Affairs Committee on the Welfare Reform Act). Financial literacy support and training needs to be aligned with welfare reform initiatives. While there is some suggestions Australia Government is working on financial literacy support program, to date there is little evidence of program in communities.

Community Stores

WHAT IS THE MEASURE?

FaHCSIA may grant a community store licence having regard to the quality, quantity and range of groceries available, the finance and governance arrangements, and the store’s ability to participate in income management. Store must be licensed to receive managed income.

IS IT WORKING?

The store licensing process has benefited stores and is working. Store licensing has improved the quality of stock and store conditions, and increased total takings, in many communities. However, for many communities, the prices of goods have also increased. This maybe due to store licensing and/or may be a result of increased fuel prices. In any case, most community store prices are significantly higher and this, in addition to the lack and variety of store produce has in part led to poor nutrition in community members (National Health and Medical Research Council 2000: 2).

The CLC survey reported concerns by a small number of communities being pressured to sign agreements with Outback Stores. Stores represent key institution in communities and local decision making around the development of stores, through store committees and broader engagement, needs to be encouraged.

CLC also remains concerned by the lack of choice associated with provisioning of licensed stores and store cards. Income managed clients from Alice Springs were only entitled to shop at Coles, Woolworths, and Kmart, and were not given opportunity to shop at second hand stores or cheaper alternative stores. Central Land Council welcomes the introduction of Eftpos card, so that clients do not have to collect store cards.

CDEP

WHAT IS THE MEASURE?

Consistent with the rollout of income management, remote area exemptions from welfare work requirements were removed and CDEP was discontinued (abolition of CDEP was stopped by the new government). The objective of this measure was to increase numbers of income management and move people into full time employment. CDEP removal was intended to be matched with the creation of 2000 new jobs.

[CDEP is currently being reviewed by the Government. It was reinstated in communities on 1 July 2008, under transition arrangements until 2009. CLC made a submission to the CDEP review process (see Attachment C).]

IS IT WORKING?

The removal of CDEP has not worked. While around 1,000 full time jobs have been created, in many cases, the removal of CDEP has led to undermining of governance within communities and created new disincentives to work participation.

For example, in Titjikala, the abolition of CDEP impacted upon the community’s capacity to make decisions and enhance work participation within the community. Work for the Dole is organised by external organisations, rather than by the community.

Work for the Dole has also created new work disincentives because the programs have often been superficial and limited, programs have not built capacity to take on full time jobs, wages are lower than CDEP, and many people have been ‘breached’ or had their welfare cut off for up to eight weeks with little understanding of why (and no requirement to work during that period). The CLC survey in particular found that numbers of Work for the Dole participants in all survey communities was low.

Aboriginal households in remote communities are amongst the poorest in Australia. Community respondents involved in CLC survey reported that breaching was common in Papunya and Kintore, with some breaching also taking place in Hermannsburg. This indicates that some members of these communities are being deprived of a source of income for an eight week period of time. This imposes a further burden on already impoverished households which in turn has serious welfare implications for the entire household, including children.

Questions must be raised on effectiveness of breaching as a strategy for encouraging participation. Most people in remote Aboriginal communities suffer from intergenerational dependence on welfare payments and associated poverty. A meaningful agenda of participation for Aboriginal people in remote communities must be broader than simply moving people from ‘welfare’ to ‘work’. Many Aboriginal people are simply not job ready. Aboriginal people in remote communities face multiple barriers to employment. Some of these barriers are:

• low levels of education and literacy
• serious health issues, including mental health problems
• alcohol and substance abuse problems
• inadequate housing
• lack of access to childcare services and facilities, and
• lack of experience with mainstream employment.

In the context of multiple barriers to employment, job seekers need intensive case management that addresses the interrelated nature of these barriers. A recent Australian Council of Social Services (ACOSS) report (2008) suggests (from an international survey of workforce participation policies) that achieving employment while shielding jobless households from poverty is closely linked to the following factors: “intensive training, work experience and job search support for disadvantaged job seekers, skills development and career advancement for low skilled workers, better financial incentives to work (including lowering of effective tax rates), flexible activity requirements for those able to work, and adequate and accessible income support” (ACOSS 2008: 2).

Simply breaching people is not an effective strategy for encouraging participation. Activity tests that result in breaching can impact disproportionately on Indigenous people. Research by Saunders (1999: 10) showed that Indigenous Centrelink clients were 1.5 times more likely to incur an activity test breach and twice as likely to incur an administrative breach than other clients. Our survey found that people reported little to no understanding of why they, or others, had been breached. This approach offers little incentive to change behaviour and/or encourage participation. Removing income support from households that are already vulnerable has significant welfare implications. CDEP had a simpler and well understood rule of ‘no work no pay’ rather than long cut off periods where no work is required.

Policing

WHAT IS THE MEASURE?

The measure involved increasing policing numbers by 50 and setting up 10 new custodial facilities. The Australian Government’s NT Emergency Response resulted in the staffing of the Mutitjulu police post and the location of police at the Imanpa community, Haasts Bluff, Willowra. Nyrippi, Utopia and Santa Teresa. The Mutitjulu post was of course funded prior to the NTER by the (former) Australian Government following many years of lobbying by local residents, NPY, CLC and others who were concerned at the high level of violence and substance abuse in the community.

IS IT WORKING?

The presence of police in more communities has been beneficial. The resourcing of police across the region has reduced the reliance on police in some areas to attend other communities. For example, Yuendumu have a much more permanent presence in the community because near-by communities of Nyrippi and Willowra now have a police presence.

There would be value in a police presence in all large communities. Many large communities are large distances from their current police services: Epenarra, Titjikala, Engawala, Areyonga and Bonya. In saying this, increasing police numbers should only be consider as a starting point to working towards issues of community safety and law and order. It alone is insufficient measure to entirely address social issues, including abuse of children, in communities. Policing practices need to be developed with the community and particularly those working in night patrol services (which have suffered funding disruptions through the NTER).

The experience of Law and Justice Committees by communities (such as Ali Curung, Yuendumu, Lajamanu) in Northern Territory has been positive. Community driven approaches like these need to be further supported.

Alcohol

WHAT IS THE MEASURE?

The NTNER Act makes it an offence to take, possess, drink or supply alcohol on all Aboriginal land, community living areas, town camps and Canteen Creek, Finke and Daly River. The Minister may also declare further areas in the NT. A first offence is a fine up to $1100. If the amount of alcohol is over 3 cases of beer (‘grog-running’), the offence could be trafficking which is up to a $74,000 fine or 18 months jail. The Act also makes it an offence for any alcohol outlet not to record the name, address and place of consumption for purchases over $100 or over 5 litres of cask or flagon wine.

IS IT WORKING?

The issue of alcohol is complex and current measured reductions in consumption are likely due to the Alice Springs Alcohol Management Plan (see CLC survey 2008) and restrictions also applied in Tennant Creek (unrelated to NTER measures).

The CLC survey results found that 57% of Aboriginal respondents believed alcohol consumption lower following the NTER, due to roll out of income management, grog running laws and heightened policing presence. 37% of Aboriginal respondents believed the alcohol consumption remained the same. Results from December 2007 show that Alice Springs pure alcohol sales were down 17% over 2 years, but this was before the roll out of income management in most communities but after non NTER changes such as: restrictions on the hours of sale for port and wine, removal the sale of long neck beer bottles and other changes under Alice Springs Alcohol Management Plan.

The CLC survey results also found that Hermannsburg clinic reported a reduction in the incidents of alcohol related harm. This is significant.

Legal bans are insufficient to reduce underlining cause of alcohol and drug abuse and as such, people will continue to access alcohol where they can get it, including going underground. There is a need to look at broader social issues that underline the issues of alcohol abuse.

Calma’s (2007: 90) assessment of the Umbakumba Alcohol Management Plan found that key factors in devising the plan included: it was community generated, involved community development, effective consultation, a partnership approach, holistic, empowered women, involved men in solutions to family violence and was applied with consideration to sustainability and flexibility.

The CLC survey also found that whilst a there perceived reduction in alcohol from many survey respondents, this was matched in Kintore by increased marijuana use. The experience in Kintore is consistent with the findings of the Alice Springs based, tri-state Substance Abuse Intelligence Desk (SAID). The head of SAID, Sergent Sachin Sharma, commented that (The Australian, 24 May 2008. p 7):

Cannabis use among those living in Indigenous communities had escalated when alcohol restrictions were expanded under the emergency Intervention into remote Aboriginal communities, and had also increased since the roll-out of Opal fuel.

Many Aboriginal people and their agencies in central Australia have difficulty understanding why the laws put in place by the Australian and NT Governments focus on alcohol, while not paying similar attention to consumption of other substances. There is a need to look more broadly at the issues of substance abuse in communities.

Pornography – Computer Checking

WHAT IS THE MEASURE?

The NTNER Act outlines a new system for checking computers in prescribed areas so organisations that receive government funding:

• ensure each computer is installed with a filter accredited by the Telecommunications Minister
• keep records of each individual who uses a computer
• develop a policy on acceptable use of computers which prohibits communications that break the law
• audit each computer on 31 May and 30 November each year in a manner determined by the Minister.

Although not stated, the objective appears to be to minimise the flow of pornography through computers and ensure computers are not used for unlawful purposes.

IS IT WORKING?

Without data on any of the auditing processes, it is not possible to know. CLC has been able to flexibly implement the changes. However, while computer checking is a measurable process to undertake, CLC is sceptical that community computers are the most likely place for storage or flow of pornographic material.

Housing

WHAT IS THE MEASURE?

The Australian Government has allocated $547 to the Strategic Indigenous Housing and Infrastructure Program (SIHIP). SIHIP aims to build 750 new houses in 16 ‘priority’ communities, 3 of which are in the CLC region: Hermannsburg, Lajamanu and Yuendumu. Housing management is to transfer from community housing organisations to Territory Housing.

The first year of the NTER has concentrated on Community Clean Up (CCU) repairs program. CCU is made up of 3 stages: initial audit to make housing in community safe, minor housing repairs and asbestos auditing.

IS IT WORKING?

While so far no new houses have been built in the CLC region under SIHIP, planning is well underway for issuing of contracts for SIHIP alliance partners and negotiation of the Australian Government’s precondition of a long term lease before investment into new housing.

However, significant questions remain about SIHIP both in terms of the numbers of houses proposed to be built and the housing management system which will back up the new construction.

SIHIP aims to build 1,000 houses over 5 years (the FaHCSIA Budget Statement for 2008-09 aims to build 350 houses across Australia). This compares to Community Housing and Infrastructure Needs Survey data which shows that in 2005/6 in the NT 170 houses were constructed in remote communities and 175 were written off. As stated, no houses, as far as the CLC is aware have been constructed in the last year in the CLC region, so new construction is already falling behind recent building rates. Based on an asset transfer audit by Territory Housing of 4,037 remote functional dwellings, estimated occupancy rates under different scenarios are as follows:

Scenario	Occupancy rate
Current average occupancy rate for functional dwellings	9.4
Average occupancy rate with 1000 new SIHIP houses and no more people and no more houses written off	7.5
Average occupancy rate with 1000 new houses and 5400 more people (at current 2.6% growth over 5 years) and no more houses written off	8.6
Average occupancy rate with 1000 new houses and 5400 more people and 875 houses written off (over 5 years)	10.4

Given the SIHIP proposal for significant upgrades of existing houses (in addition to new construction), the second last scenario might be the closest to what happens, but evidently significant inroads will not be made into housing occupancy rates over the next 5 years (even if all construction timelines are adhered to). As well, SIHIP proposes to build new houses in only 3 Central Australian communities. This decision was taken without any community consultation but on the basis of CHINS data only. No other reasons were given for selecting those communities.

Housing management has now transferred from community housing organisations to Territory Housing. As an interim measure, Territory Housing has contracted the shires to provide housing services. Before any new constructions can take place, the Australian Government’s precondition of a long term lease must be met. Territory Housing is currently proposing a 60 year lease for peppercorn rent.

Ultimately, it is a matter for communities whether they wish to sign up for long term leases for housing, however, the CLC has a number of issues about the current proposal. First, Territory Housing is still working out how it will provide remote housing services while expecting remote communities to sign up to long term leases. Second, there has been no consultation (as above) with remote communities about the housing plan and how they might be involved in decisions. Third, the accountability mechanisms on Territory Housing, as a monopoly provider, are not clear, and there are no proposed pathways, for example, for other housing providers to enter those markets and provide competition. The CLC articulated these concerns in a paper on a future housing system for Central Australia (see Attachment D).

The CLC survey provided a generally negative report on the CCU program. The survey found that many communities complained of numerous surveys without significant changes to their houses. Communities also reported the program was ‘window dressing’ because it primarily involved the delivery of fencing and painting the outside of houses, without properly considering the poor condition inside houses. There was limited involvement and development of locally based housing team and no results of the housing surveys were returned to the communities or these teams. While there was some support for the CCU in a small number of communities, the program was often criticised because of the lack of quality and efficacy in the repairs and maintenance undertaken on the ground.

The CCU program involved each house being allocated $10,000 for repairs which included labouring costs. The CLC perceives that much of these resources were delivered to outside contractors, surveying teams and project managers with little delivery in improved housing in communities, but a proper audit would reveal more.

The significant concerns raised by the finding of asbestos in community buildings and houses needs to be addressed promptly. The responsibility for the removal of asbestos should remain with the Australian and NT government and should not be placed onto to communities or their representative organisations. CLC is aware of one community who used significant amounts of the Community Council resources to remove building with asbestos last year, with little help or assistance from the government.

Health Checks

WHAT IS THE MEASURE?

Health checks were available voluntarily to children in prescribed areas. By 18 June 2008, approximately 11,000 NTER child health checks were undertaken, 8857 provided through NTER (Australian Government 2008). This represents approximately 65 percent of children eligible for checks.

IS IT WORKING?

There is little evidence that health checks are improving the well being of children. The CLC survey found that in some of the communities the health checks were an unnecessary duplication of resources. Other communities argued that the NTER health checks captured a better coverage of children in the community than previous community clinic health checks. Presumably, this could be because NTER health checks were undertaken by greater numbers of staff and increased resources. In any case, health checks need to be co-ordinated with local clinic staff and build on their existing knowledge base and work.

There is some level of concern that health checks were undertaken without any follow-up or provision of treatment. Access to appropriate health services remains an essential part of reducing disadvantages that Aboriginal people have. However, there is no evidence that health care services are improving in remote areas. Just recently, CLC was informed that NT Department of Health and Community Services were down to 2 District Medical Officers for all remote clinics in Central Australia. The available DMOs were advised that community visits are no longer viable. This means that DMOs are currently only answering the phone when required to give advice to community health clinic nurses and health workers. This raises serious question as to how NTDHCS is meeting its community service obligations.

There is already a large knowledge base of the primary public health concerns that need to be addressed in remote communities. For children, there are particular high occurrences of eye, ear, skin and lung infections. The development of appropriate public health programs and campaigns would add an additional level and layer to the child health checks and is needed if a proactive community response to health issues is to be developed. Many health organisations have provided expert advice on initiatives in this area.

5 Year Leases

WHAT IS THE MEASURE?

Under Part 4 of the NTNER Act the Australian Government compulsorily acquired 5 year ‘leases’ over 65 communities without any negotiation or guarantee of rent or compensation. In a further determination the Minister gave the Commonwealth further powers to repair, demolish or replace any existing buildings and infrastructure. No rights are noted in favour of landowners.

The previous Australian Government’s stated reason for the 5 year leases was to:

allow the government to improve conditions in communities without having to go through long approval processes… money spent on housing, infrastructure and repairs has often been wasted because the Government does not have control of the assets. (see previous Australian Government fact sheet 24)

The ‘long approval processes’ were not described or explained. Previously, it has been easier to construct houses on Aboriginal land than on other places where the Planning Act (NT) and other requirements apply. The government has constructed and repaired houses without any process, other than sacred site clearances. The CLC is not aware of an instance where housing construction has been held up because of community or process concerns.

Likewise, the previous government provided no evidence to show why investment in housing and infrastructure has often been wasted because of a lack of control over assets. It did not describe why it has not had control of assets (presumably by way of a lease) or why assets have not been maintained even without a lease (with effective government administrative control). The current Australian Government states:

The leases will assist in establishing reformed tenancy arrangements for better housing. (see Australian Government township fact sheet)

The fact sheet does not explain how 5 year leases will do this.

IS IT WORKING?

The 5 year leases are not delivering the objective of providing security of investment over an extended period. The GBMs, through the CLC survey, could not identify any practical use of the 5 year leases. In addition, 85 per cent of Aboriginal residents were against the 5 year leases. All that can be said for the 5 year leases is that they make clear that the government, according to the lease terms, has the authority to repair, construct or remove any existing buildings without any consultation or process for a 5 year period.

However, far from delivering improvements in the planning and development process, the 5 year leases have simply added another layer to negotiate. Previously, the NT Government had responsibility for planning and the land councils had responsibility for consulting with traditional landowners. Now, through the advent of 5 year leases, the Australian Government believes it has a role in assessing any proposed land uses as well as consulting with communities through the GBM. The FaHCSIA factsheet explains that any proposal will be assessed to be:

consistent with the objective of the NTNER Act.

There is no further explanation of what this means or who makes the assessment. The factsheet implies that the GBM now has a planning role even though the GBMs have no formal planning powers or training. The factsheet does not even acknowledge a role for the NT Government in planning even though this is an NT Government responsibility and no regulations have been created under the NTNER Act to displace NT planning laws (although the power does exist – NTNER Act s 58).

The FaHCSIA fact sheet dealing with this new approval process acknowledges that proponents may still seek to directly negotiate a longer lease with traditional landowners, however, in practice, confusion and frustration has been created between the NT Government, land councils and proponents about who is responsible for which decisions.

In addition to the mess created, there are a number of legal problems with the 5 year leases:

• Longer leases: While long term leases under s 19 of the Land Rights Act are still possible while there is a 5 year lease in place (with the Minister’s consent), it is doubtful the same applies to freehold and community living area communities where no such special allowance is made. In this way, without amendment, the 5 year leases prevent long term leases on these communities.
• Compensation: The leases do not require the payment of rent or compensation nor do they provide any appropriate formula or mechanism for dealing with it. It is simply not clear whether the “just terms” requirements in the Constitution apply to acquisitions of property in the Northern Territory. Historical case law is divided and the point is arguable. In this respect the NTNER Act specifically excludes operation of s 50(2) of the Self Government (Northern Territory) Act 1978, which would have ensured “just terms” compensation applied to any acquisitions for emergency response measures. Therefore, rather than providing certainty, the NTNER Act removes the guarantee of compensation and creates uncertainty. The new Bill does not ameliorate that uncertainty. This issue is also set out in the Native Title Report 2007 by the Aboriginal and Torres Strait Islander Social Justice Commissioner.
• Other interests: Other interests in 5 year lease areas are preserved but may be terminated by the government at any time.
• Resident rights: The leases do not guarantee Aboriginal people right of residence in their own communities. On the face of it the government may be able to exclude residents who are the owners of the title held by the Land Trust under Australian law.
• RDA: The leases likely breach the RDA because they cannot reasonably be held to be a special measure for the benefit of communities (see section on the RDA).
• Boundaries: The initial boundaries of the 5 year leases incorporated many inappropriate areas such as culturally important areas including sacred sites, sorry camps and ceremony areas, commercial initiatives on Aboriginal land, large areas of vacant land outside the footprint of the community and in some cases adjacent pastoral leases. In the case of community living areas, the leases simply annexed the existing title, in many cases a large area which incorporates places of cultural significance by design. A resurvey of boundaries being undertaken now will mitigate many boundary issues but comes after the fact.
• Loss of authority: Many traditional owners and community residents perceive the leases as a ‘land grab’ resulting in a diminution of their limited authority over their lives and culture without any consultation or input into the new structure. This was a prevalent theme in the CLC survey.

Statutory Rights in Buildings

WHAT IS THE MEASURE?

The Families, Community Services and Indigenous Affairs Amendment Act 2007 (Cth) provides for statutory rights in government funded buildings.

The government will have statutory rights to occupy, use, construct, maintain and repair any building or infrastructure which is:

• funded by the government or partly funded by the government where the Minister
  determines statutory rights apply
• is not covered by a lease (except a 5 year lease), and
• has been consented to by the land council.

If a 5 year lease is in place, any statutory rights in buildings do not apply while the 5 year lease is in place. If statutory rights apply, the government and the land council must negotiate in good faith for a lease over the Construction Area. If a lease is in place, the statutory rights do not apply while the lease is in place.

The objective appears to be to protect future government investments.

IS IT WORKING?

As far the CLC is aware, the measure has not been utilised. The measure does have a number of potential problems:

• For significant upgrades ownership of the existing building can pass from the land trust to the government funding the upgrade, irrespective of who may have originally constructed the building.
• Rather than streamlining an existing system, statutory rights is a new system which will require another level of consultation with traditional owners.
• Governments may choose to refuse to construct new housing on the basis that the land trust will not agree to statutory rights (but may well agree to a lease under s 19 of the Land Rights Act which would also provide security of investment with a standard transferable property title).
• Statutory rights are not transferable, except between the Commonwealth and the Northern Territory, further restricting dealings on Aboriginal land.
• Once in place, statutory rights can go on forever, until the government decides it no longer wants them. Even if the government and land trust negotiate a s 19 lease, the statutory rights will survive the lease.

Native Title

WHAT IS THE MEASURE?

Under the NTNER Act, the “future act regime” of the Native Title Act 1993 (Cth) is suspended in relation to anything which might happen under that Act. If any action under the Act affects or extinguishes native title rights, native title holders will have no right to negotiate over that action. The “non-extinguishment principle” will apply and any native title in conflict with the action will be of no effect for the duration of the action.

IS IT WORKING?

It is unknown how many acts, if any, have been taken under the NTNER Act which might be future acts.

Permits

WHAT IS THE MEASURE?

The previous Australian Government introduced a number of changes to the permit system under the Land Rights Act:

• a new defence of permission of occupier (s 70(2C))
• a range of public rights of access to communities, notably to ‘public areas’ within communities (ss 70B-70H), and
• revocation of permits only by issuer (s 74AA)

The stated objective was to open up communities on Aboriginal land to more external scrutiny and economic opportunity. However, there was no evidence to support these assertions.

All communities in Central Australian face real and significant barriers such as remoteness, climate, small populations, poor health, poor education, and poor infrastructure, and the outcomes in terms of journalist visitation and development are similar for communities on and off Aboriginal land.

The current Australian Government proposes to repeal those changes but leave in place an additional power of the Minister to authorise a person or class of persons to enter Aboriginal land (s 70(2BB)). These proposed changes are locked in the Senate.

IS IT WORKING?

In the CLC community survey, Government Business Managers could not identify any practical effect on communities as a result of the changes made by the previous Government.

As part of the permit review in late 2006, the CLC comprehensively consulted Aboriginal communities and made a substantial submission in March 2007 (submission available upon request). Aboriginal people voiced a strong opposition to forced changes to a permit system which complements responsibility for country under Aboriginal law and custom, and is consistent with the land title held under Australian law. This was backed up by the recent CLC community survey which found that 95% of people were against the changes made to the permit system.

Specifically, the CLC remains concerned with a number of practical matters. First, our overall view is that the permit system is an effective and appropriate tool under the Land Rights Act for negotiating third party access to Aboriginal land for miners, pastoralists, developers and visitors. Where Aboriginal landowners have identified a need for more open access for visitors – for example at the heritage precinct in Hermannsburg and the tourist facilities at Wallace Rockhole – permits have been relaxed.

Second, the permit system has not impeded the provision of services. This was summed up in the NT government’s submission to the permit review:

No Northern Territory Government agency could identify an instance where the permit system impedes program and service delivery.

Third, the permit system is an important policing tool in remote communities. Police routinely ask unwanted visitors to leave communities because they do not have a permit. If more unwelcome visitors turn up in communities, such as grog runners and unscrupulous art dealers, there will be greater demand for policing with fewer powers of enforcement. Police resources are already overstretched and the permit system has been supported by the NT Police Association. Therefore, from a practical point of view, the CLC is of the view that the permit system offers a measure of protection for children, rather than putting them further at risk.

Government Business Managers

WHAT IS THE MEASURE?

GBMs were placed in communities as ‘the face of the intervention’. There is no publicly available position description. Their role includes (FaHSCIA website, 2008):

• Providing the key liaison and consultation point in communities, including communicating the NTER measures at the local level, engaging with elders, and working collaboratively with other government representatives, including at the Territory and local levels;
• Managing and coordinating the day-to-day activities of staff from different Australian Government agencies based in the community; and
• Providing feedback on progress and local issues and concerns to government and to the NTER Operations Centre. Their knowledge and information guides coordinated government action and decision making tailored to the particular needs of a community.

According to FaHCSIA, the role of GBMs will evolve as the emergency response moves into its next phases and the Northern Territory Government’s local government reforms are implemented. The medium term focus will be more on improving cross-government coordination, monitoring and management.

IS IT WORKING?

The effectiveness of the GBM positions has been haphazard in communities. Although, it is somewhat difficult to effectively assess their role and contribution. The CLC survey showed that there is very little awareness of GBM by community residents and almost no understanding of the GBM role. The lack of clear definition in the role means that interpretation of the exact role is variable with both people in the position and by the communities they are working with. This lack in definition can partially be attributed to lack of clarity and line delegation of GBMs and partially because they do not sit neatly within any government department. The work of GBMs has also appeared somewhat superficial because the process of engagement with communities has been inconsistent. In many cases, GBMs have only engaged with community council and/or community agencies, with little consideration to wider community.

Furthermore, the disparity between the GBM wage and entitlements to those already working in communities needs to be addressed. The difference in payment levels has created unnecessary tension and conflict in the workforce within communities. There is no doubt that a local position can be effective in achieving whole of government co-ordination.

With the reform of local government there are very few positions on the community that now have a whole of community approach. The abolition of community council has reduced the number of personnel responsible for co-ordinating projects and programs across the community. Shires are arguing that their responsibilities lie with local government service provision. There is a need to look at filling the gap, so that a role is created that looks at whole of community planning and is not siloed in government departments service provisioning.

Business Management Powers

WHAT IS THE MEASURE?

The NTNER Act gave the Commonwealth Minister a broad powers with respect to remote communities to:

• unilaterally alter funding agreements
• direct how services are to be provided where the Minister is not satisfied with the current service
• direct how assets are used by or acquire assets from community organisations
• appoint observers to attend meetings of community organisations including committee meetings
• suspend community government councils or appoint managers for associations on service related grounds.

The Act also created civil penalties where Entities fail to comply with a direction or to inform an observer of meetings where one has been appointed.

The previous Australian Government stated these powers were necessary to facilitate rapid improvements in communities but will only be used as ‘a last resort’. How this would happen was not explained.

IS IT WORKING?

The CLC is not aware of any instance of the business management powers being utilised or delegated by the Minister.

The conditions on these powers do not ensure they could only be used as ‘a last resort’. For example, the Minister’s power to direct services could apply to an organisation that has not received Commonwealth funds. This is so because the services power is only conditioned on the basis that the Commonwealth has provided funds which could be used to provide a particular service, not that a particular organisation has received funds to provide that service. Similarly, the Minister’s new power to give directions related to assets could extend to seizing assets that are not even located in an area where the business management powers apply. Again, this is so because the assets power is only conditioned on the basis that the Commonwealth has provided funds which could be used to provide a particular service, not that a particular asset was purchased with funds to provide the service in a particular place.

Return to top

Copyright & Disclaimer | Privacy policy | Contact us

© Commonwealth of Australia, 2008
Last modified 23 October, 2008