Three years on since Kevin Rudd introduced to Parliament the motion of Apology to the Stolen Generations, many aspects of John Howard's Northern Territory Emergency Response (NTER), known as the Intervention, are still in place — to the consternation of many human rights advocates.
The Intervention was first instituted without any meaningful consultation with the Aboriginal people affected. Various aspects of that response were racially discriminatory.
Last year, the Australian Parliament passed amendments to that response — in part minimising the discriminatory effect of the law by extending compulsory provisions about income management of welfare payments to all Territorians and not just those living on nominated Aboriginal communities.
Most of the peak national bodies in the welfare sector have expressed principled objections to compulsory income management except for proven cases of recipients failing to discharge parental obligations. For example, Catholic Social Services argue that:
Adequate income support is an entitlement. It should not be a tool for governments or public sector managers to grant, withhold or modify in an effort to achieve 'outcomes'.
The government provided this rationale to Parliament, claiming to have conducted adequate consultation with those affected by these measures:
The Northern Territory Emergency Response Redesign consultations identified that income management had delivered discernible benefits. While there was a divergence of views, the majority of comments said that income management should continue. In the tier two meetings, people frequently said that income management should apply to all welfare recipients across Australia.
Critics of the legislation have been wary of government assurances about consultation. I have heard a variety of views in the Northern Territory. Some say their shopping trollies have never been so full, others that they must endure the shame of producing a welfare card in the supermarket checkout.
The Government explained to Parliament the other ongoing, discriminatory aspects of the Northern Territory intervention:
Apart from the income management scheme, which is designed to apply in a non-discriminatory fashion to any citizen in the Northern Territory within the specified categories, the Government has redesigned a number of the other measures dealt with by this bill so they are more sustainable and more clearly special measures under the Racial Discrimination Act.
The Government concedes that the new law still discriminates in four ways against Aborigines living on nominated communities. The new law states Parliament's view that the ongoing discrimination is justified as 'special measures' taken:
to reduce alcohol-related harm in Indigenous communities in the Northern Territory, to protect children living in Indigenous communities in the Northern Territory from being exposed to prohibited material, to improve the delivery of services in Indigenous communities in the Northern Territory and to promote economic and social development in those communities, and for the purpose of promoting food security for certain Indigenous communities in the Northern Territory.
I am prepared to concede the need for special measures in relation to alcohol and pornography, provided such restrictions are sought by local community leaders and are workable.
The other special measures are more questionable, especially given the compulsory acquisition of land that is the birthright of Aboriginal people. This is how the Government attempted to justify to Parliament the beneficial effect of government continuing compulsorily to lease 64 Aboriginal community living areas without the consent of the owners until August 2012:
This bill confirms the beneficial intent of the five-year leases to improve the delivery of services and promote economic and social development. The Government is committed to the progressive transition of the five-year leases to voluntary leases and the bill obliges the Commonwealth, at the request of land owners, to negotiate voluntary leases in good faith. The leases have already been improved by a substantial reduction in lease boundaries and the payment of rent has commenced, based on independent valuations undertaken by the Northern Territory Valuer-General.
Imagine if government had tried this approach with miners.
This is an instance of Indigenous Australians being denied the opportunity to speak for country and for themselves. If it is a good idea for government to lease land so as to provide greater services to a community, surely the community should be invited to negotiate freely the lease. If compulsion is required, you would think the government investment would be a case of good money after bad.
When this new law was passed, Jenny Macklin and Warren Snowden, the two Labor Ministers with the longest term commitment to Aboriginal policy reform, issued a joint statement saying:
The suspension of the Racial Discrimination Act (RDA) left Indigenous people feeling hurt, betrayed and less worthy than other Australians. Re-instating the RDA restores dignity and helps Indigenous Australians to take ownership of their lives and to drive change in the Northern Territory.
But not everyone thought this reform went far enough. There are still some Indigenous people and many of their supporters who feel hurt and betrayed by a Labor Government unwilling to take a principled stand, faithful to the letter and spirit of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) which was ratified by the Whitlam Government in 1975 and then legislated for Australian domestic purposes through the RDA.
Each time Parliament has debated native title (post-Mabo and post-Wik), there has been an esoteric debate about 'special measures' which affect only Aboriginal persons. Under the Convention, special measures should be temporary and taken 'for the sole purpose of securing adequate advancement' of the affected Aborigines, and they should 'not be continued after the objectives for which they were taken have been achieved'.
Back in 1985, Justice Brennan in the High Court of Australia insisted on the need for government to consult meaningfully with those persons to be affected by any 'special measure'. He said:
The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit. 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.
Let's hope that by the fourth anniversary of the Apology, our statute books are stripped of measures which single out Aborigines for special treatment except in those instances where that treatment is voluntarily sought if not by the overwhelming majority of persons affected, then at least by community leaders speaking for their communities plagued by the abuses of pornography and excessive alcohol consumption.
Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.
Comments should be short, respectful and on topic. Email is requested for identification purposes only.
Brian Haill - Melbourne
14 February 2011
What a patronising outburst!
Take the following:
"I am prepared to concede the need for special measures in relation to alcohol and pornography, provided such restrictions are sought by local community leaders and are workable." adding that"The other special measures are more questionable.."
Clearly Fr Brennan has never gone hungry or been denied critical services or he would not have so readily dismissed the other ingredients:"to improve the delivery of services in Indigenous communities in the Northern Territory and to promote economic and social development in those communities, and for the purpose of promoting food security for certain Indigenous communities in the Northern Territory"
As for his references on government consultation (the lack thereof),this has applied to all governments, of all persuasions, since time immemorial....which is why the arrival of WikiLeaks has been so warmly acclaimed around the world, except by those who prefer to keep things hidden.
As for "There are still some Indigenous people and many of their supporters who feel hurt and betrayed by a Labor Government unwilling to take a principled stand...." where has he been these past months when the federal government's been doing that on a wholesale basis on a range of issues...to black and white alike..with nary a squeak from him?
14 February 2011
Beautifully rendered by a great Australian, Consider this; if the federal government succeeds in rolling out income management on a national scale this year as proposed (this July?), how soon will the uproar drown out the agendas of national media outlets? Of course, any white suburban family treated this way will not be confronted with the demands to cede sovereignty and land rights to gain aid, as Indigenous communities have been and are. I believe that the hysteria that the Howard Government drove up re the inception of the intervention (Child abuse! Girlie mags! Booze!)will be nothing compared to the backlash if 'skippies' suddently get treated the same demeaning, dehumanising way we have allowed Indigenous Aussies to be treated. Child abuse, porn, alcohol, intergenerational poverty and neglect - surely they can't have a negative impact in 'normal' Australian homes? Racism by any means and for any purpose cripples motivation with hypocrisy and cruels the pitch for future generations.
14 February 2011
Thanks for an eloquent article. I hope someone is listening.
14 February 2011
I am curious. Do the lease areas connect in any way with mineral deposits?
Has anyone connected the dots?
The Intervention is a top-down construct which shows no genuine respect to the First Australians.
14 February 2011
"I am prepared to concede the need for special measures in relation to alcohol and pornography..."
Ah yes, because the blacks just can't handle their porn like we white people can.
Freedom of speech, anyone?
14 February 2011
People assault their children when the feel that they are losing control over their lives. This is a fact. Welfare quarantining has caused an epidemic of child abuse. This can be seen in the official child abuse statistics. This is what you would expect. Why is no one talking about this aspect of the matter ?
A. McGregor - Dysart - Qld
15 February 2011
I thought that Noel Pearson, (another great Australian, Barry G), was in favour of the intervention. Please tell me if I have misconstrued what I have read and heard in the media.
19 February 2011
Frank reckons ‘If it is a good idea for government to lease land so as to provide greater services to a community, surely the community should be invited to negotiate freely the lease. If compulsion is required, you would think the government investment would be a case of good money after bad.’
I don't understand Frank's reasoniong.
Firstly, "the community" [i.e. residents of the houses on the town lands] doesn't own the land in any but a couple of the NT prescribed communities. The title to this land is held by Land Councils, on behalf of relatively small groups of Traditional Owners, some of whom are residents, on advice from an even smaller sub-group of TOs comprising Land Trust members.
The problem is, many of these TOs/Land Trusts have been advising the Land Councils to take 'hard lines' against many developments that would advantage the mass of the people living on the community/town lands. This opposition has usually been aimed at increasing the remuneration to very small groups of mainly dominant individuals, who in most cases have not used this remuneration wisely or for community benefits. In fact, many communities have been left stagnating or worse because of these arrangements.
20 February 2011
I'm still waiting to hear the Apology from the Society of Jesus for its abandonment of the Daly River Mission in 1899.
Established in 1893, the new mission gathered in several hundred aboriginal people to form a family-centred working and educated community.
Devastated by flood and famine by 1898, the Order decided, because as there was "no evidence of success" at Daly River, that it had to be closed. The plug was pulled in 1899. The Jesuits left NEVER to return.
In 1954 the Sacred Heart Fathers re-opened the Mission. Of the Daly River tribes which existed in the 1890's one-third is now extinct and the others so decimated that they have had to try to co-exist within other groups.
Surely the Jesuits' contribution to the demise of the Daly River aboriginal peoples, despite being totally unintended, is worthy of an Apology.