Linda Kirk (SA, Australian Labor Party) Share this | Hansard source

I rise today to speak on the government’s legislative package, the Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 and related bills, to combat child abuse in Northern Territory Aboriginal communities. In late June, when the government announced its intention to introduce a package of legislation to protect Indigenous children in the Northern Territory, the Leader of the Opposition, Mr Kevin Rudd, was quick to offer Labor’s in-principle bipartisan support for such measures. We said at the time, and we maintain, that the test for whether the government’s package of laws should be passed should depend on whether they will improve the safety and security of Indigenous children.

Despite the gesture of goodwill on the part of the opposition, the government, I am sad to say, has not responded in kind. Last week the shadow minister for Indigenous affairs and reconciliation, Jenny Macklin, was given a copy of the five bills the day before they were introduced into the House of Representatives. In fact, the House of Representatives began debating these bills last week before some members had even had a chance to look at them. When the bills were introduced into the Senate last week they were fairly quickly referred to the Senate Standing Committee on Legal and Constitutional Affairs, of which I am a member. The committee was set aside just one day of hearings, last Friday, in order to hear submissions from witnesses. The timetable for reporting was such that we were to report the following working day—namely, yesterday, Monday. We had one day to consider 500 pages of legislation. I would like to take the opportunity to commend the witnesses who appeared before the committee last Friday and congratulate them on the submissions and comments they made on this legislative package when they had only a few days to digest and understand a very complex range of legislative measures.

The government has shown its contempt for this parliament in the manner in which it has sought to introduce this package of bills and in its insistence that the legislation be passed through both houses within a week of its introduction. Child sexual abuse is a very significant problem in Indigenous communities, but the seriousness of this problem, as we have heard emphasised here in people’s speeches, does not justify the manner in which this government has sought to ram these bills through the parliament without giving members, senators, the public and, in particular, the Indigenous communities of the Northern Territory adequate time for scrutiny of the legislation and to allow feedback about its potential impact on Indigenous communities.

In doing this, the government has ignored the No. 1 recommendation of the Little children are sacred report—a report that I will speak about in detail in a moment. This was the report which, of course, sparked the unprecedented intervention that the bills will authorise. The No. 1 recommendation of the Little children are sacred report was that any action must be taken in genuine consultation with Indigenous people. Dealing with this legislation in the manner in which the government has is not the way to gain the support and the trust of Indigenous communities, nor does it allow for a proper assessment of whether the measures are likely to make a positive contribution to addressing the problem of child sexual abuse in Indigenous communities.

Before I discuss in detail the measures contained in the legislation, I would like to make some comments about the report that spurred the government to action; namely, the Little children are sacred report of the Northern Territory Board of Inquiry into the Protection of Aboriginal children from Sexual Abuse, which was co-chaired by Rex Wild QC and Pat Anderson. I would like to take this opportunity to congratulate Rex Wild and Pat Anderson and the board of inquiry for their 317-page report. This report was the result of a nine-month inquiry. It is thorough and well considered, and its recommendations should have been given—indeed, still should be given—serious consideration. The inquiry was wide-ranging. It covered 35,000 kilometres by air and motor vehicle, with 45 community visits and more than 260 meetings conducted. The inquiry found evidence of child sexual abuse in all of the communities that it visited. It confirmed that sexual abuse of Aboriginal children in the Northern Territory is common, widespread and grossly underreported.

The inquiry also nominated reasons for the high incidence of this appalling form of abuse in Indigenous communities. The report’s authors say:

However, we quickly became aware—as all the inquiries before us and the experts in the field already knew—that the incidence of child sexual abuse, whether in Aboriginal or so-called mainstream communities, is often directly related to other breakdowns in society. Put simply, the cumulative effects of poor health, alcohol, drug abuse, gambling, pornography, unemployment, poor education and housing and general disempowerment lead inexorably to family and other violence and then on to sexual abuse of men and women and, finally, of children.

The title of the report was carefully chosen. It reflects the fact that, in traditional Aboriginal culture, little children are seen as sacred—child abuse is not tolerated. The overwhelming majority of Aboriginal mothers and grandmothers and indeed fathers and grandfathers—like the overwhelming majority of non-Aboriginal parents and grandparents—want to protect children from abuse. We know that child abuse happens everywhere in Australia. We also know that the number of child abuse notifications and substantiations right across Australia are rising significantly. There has been a 40 per cent increase in the past five years in the number of children removed from their family homes by authorities.

In my capacity as convenor of the cross-parliamentary group, Parliamentarians Against Child Abuse, I have spoken to child protection specialists about all aspects of child abuse and how it should be tackled. What the experts have been saying for years—and what the Little children are sacred report makes clear—is that there is a strong correlation between rates of child abuse within a community and the level of social dysfunction within that community. Preventing child abuse before it happens requires that we strengthen the capacity of families and communities to protect and nurture children—and it is no different in Indigenous communities. On this score, there is a long way to go. Numerous reports over the past 30 years, and particularly over the past decade, have documented the problems of alcohol and other substance abuse, violence against women and children, problems of substandard housing and overcrowding, unemployment, poor health and poor education outcomes within Indigenous communities.

Governments across Australia—both Labor and Liberal—at the Commonwealth and the state levels have failed to address these problems for years. Despite commissioning report after report, successive governments have done little more than leave these reports on the shelves to gather dust. I agree with Ms Jenny Macklin, who said in the House of Representatives last week:

But to lament that action should have been taken sooner does not lessen the imperative to act now ...

The Little children are sacred report contains 97 recommendations, and I would suggest that all senators and members take the opportunity to look closely at the report. I would like to say a lot more about the numerous recommendations made by the Little children are sacred report but, given the time, I will now move on and look more closely at the legislative measures that we have before us here today.

As I indicated at the outset, Labor has said that, in the interests of children and women in Indigenous communities in the Northern Territory, it will support the government’s measures. A number of the measures in the government’s package seek to address the problems that are identified in the Little children are sacred report as contributing to child sexual abuse, particularly the measures related to alcohol restrictions. The Little children are sacred report found a strong association between alcohol misuse and the sexual abuse of children. The bans on pornography were also identified in the Little children are sacred report as being necessary in order to prevent the widespread exposure of children to pornography.

In the time that remains to me today I would like to focus on a matter that was raised during the Senate Legal and Constitutional Affairs inquiry and has been the subject of a number of speakers’ comments here today—that is, the ‘compliance’, if that is how you want to describe it, of this legislation with the Racial Discrimination Act. As I said, a number of witnesses before the Senate inquiry and some who made written submissions raised the question as to whether the legislation is contrary to the Racial Discrimination Act—a Commonwealth act of parliament—and Australia’s international obligations not to discriminate on the basis of race.

The Racial Discrimination Act is a very important legacy of previous Labor governments and it protects against racial discrimination, whether it be by legislative, administrative or other means. On the face of it the legislative package that we have before us today is contrary to section 9 of the Racial Discrimination Act because it discriminates on the basis of race. However, the bills provide that the Racial Discrimination Act will be suspended in its operation for the purposes of the legislation. For example, section 132(2) of the Northern Territory National Emergency Response Bill 2007 provides that the provisions of the act and any acts done under it are excluded from the operation of part II of the RDA.

The Law Council of Australia, in its submission to us, was extremely critical of this aspect of the legislation. The Law Council said:

The Law Council considers the inclusion in legislation proposed to be enacted by the Australian Parliament in 2007 of a provision specifically excluding the operation of the RDA to be utterly unacceptable. 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 Labor’s view, this exemption from the act is inappropriate and, what is more, is unnecessary if the provisions of the bill are special measures for the purposes of the Racial Discrimination Act. It is for this reason that Labor opposes the inclusion of that provision in this bill.

I will turn now to the special measures. The general prohibition against racial discrimination in the Racial Discrimination Act is accompanied by a provision that recognises that special measures can be legitimate and consistent with the RDA where they are implemented to promote the position of members of a particular race when that race is disadvantaged. Special measures are quite often referred to as positive discrimination measures or affirmative action. Accepted special measures have been policies or actions by organisations or governments which recognise that the past or present disadvantage suffered by certain groups based on their race has affected their access to equality of opportunity and basic human rights.

The bills before us today declare that the measures in their legislation are, for the purposes of the RDA, special measures. I mention, for example, section 132 (1) of the Northern Territory Emergency Response Bill. The central issue here is whether, in fact, the measures meet the definition of ‘special measures’. The way that the bills are drafted indicates that it is not intended that there be any judicial scrutiny of the question as to whether or not these measures qualify as a special measure for the purposes of the RDA. In fact, the matter appears to be pre-empted with the declaration that they are special measures—in other words, they are deemed to be so. It appears that, as a consequence, whether or not these laws are in fact special measures for the purposes of the Racial Discrimination Act is irrelevant. This is reinforced by subsection (2) which seeks to exclude part II of the RDA.

But I still think it is important to consider whether these matters meet the requirements of a ‘special measure’. In making this assessment courts have looked at both the benefits of a measure and any costs or disadvantage borne by the beneficiaries of the measure. If there is, in fact, no benefit conferred by the legislation then the measures will be regarded as inconsistent with the character of a special measure as recognised by the Racial Discrimination Act and the International Convention on the Elimination of All Forms of Racial Discrimination.

In the present case there are difficult issues of fact which arise, and close scrutiny of the arrangement and its impact is necessary. For example, in this present context the rights of children and the rights of adult individuals who will be subject to these measures may differ—indeed, they may well conflict. For this reason there are complex issues in relation to consent to special measures. The government has assured Labor that these laws are intended to be special measures because they are designed to protect especially vulnerable children, to help rid Aboriginal communities of the scourge of alcohol abuse and to provide much needed infrastructure and housing improvements to remote Aboriginal communities.

In its submission to the Senate committee inquiry last week, the Human Rights and Equal Opportunity Commission emphasised that, while it is appropriate to consider the effect of a legislative package as a whole when determining whether or not a measure is a special measure, you still need to look at the parts of the legislation in order to determine whether or not those parts are appropriate and adapted to the stated legislative purpose, which in this case is child protection. There remain serious questions as to whether or not a number of the measures, particularly the compulsory acquisition of property in circumstances where the lease has not been requested from the land owners, and also the changes to the permit system, can be taken to be special measures in the manner that I have described.

One of the essential features of a special measure is that it is done in consultation and, generally, with the consent of the people who are subject to it. As HREOC said in its submission:

Measures taken with neither consultation nor consent cannot meaningfully be said to be for the ‘advancement’ of a group of people, as is required by the definition of special measures.

The commission went on to say:

To take any other approach contemplates a paternalism that considers the views of a group as to their wellbeing irrelevant.

I have said here today that the absence of consultation with Indigenous communities about these measures is a fundamental flaw in this process. It could even be that it is fatal to their categorisation as a special measure. HREOC emphasised this in its submission to the Senate inquiry. They made clear that there should have been comprehensive consultation beforehand and significant input from the communities concerned, and this clearly has not happened.

It is interesting to compare what has gone on in the past week in relation to this legislation with the introduction of the Native Title Act in 1993, in which Indigenous leaders were actively involved in the negotiations surrounding its introduction. That contributed significantly to the finding that the measures under that act are special measures.

Debate interrupted.