John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

I understand that a running sheet has been circulated for the Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007. We will deal with that bill first.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

On behalf of the opposition, I am a bit surprised that we are going to deal with that bill first. I understand that there was a procedural reason for dealing with that bill first; however, it made sense to me to deal with the major bill first, which is the Northern Territory National Emergency Response Bill 2007. I spoke to the minister about this during the recent division, and I do not think he has any in-principle opposition to dealing with the bills in that order.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The opposition amendments to that bill are the difficulty and why it was put to me that that bill should be dealt with first.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I understand that. But it will be close to 6.30 pm, which is when we suspend for dinner, and we will not have got to the first amendment. I am seeking some indication from other parties on this. If the minister is happy with this proposal, as he indicated to me earlier, we will suggest that we adjourn a couple of minutes early and come back after the dinner break to deal with the major bill.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

So you are advocating that we deal with the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 first.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Yes, I am suggesting that.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

That is fine.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I would be interested in the views of the other senators. I have tried to consult. The other point I would make is that—

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Why wouldn’t we deal with the NT bill first?

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

That is what I was suggesting.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

You are dealing with the Northern Territory National Emergency Response Bill 2007 first?

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Yes, that was my suggestion.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

All right. We have a number of bills before us.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

That is why it would make some sense to do that. I understand there are some problems about running sheets and a couple of late amendments, including one of ours, and I apologise for that. But if we do it that way—and I thought the minister might indicate how he wanted to go in terms of the following bills—by the time we suspend for dinner at 6.30 we would all know what the rules of the game were, where we are going to start and the order. Then we would all come back less confused than perhaps I was a few minutes ago. I am suggesting we do it in that order, but I am open to views from other senators.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Yes, we should do it in that order. We are very well aware, by the way, that the guillotine will be used on this legislation within the next 24 hours or so and that the proper debate of this monumental legislation and its impact on this nation will be cut short by the government using its numbers to gag the Senate from such a debate. Let us not beat around the bush here. The measures that would protect children, including the movement of police into the communities, that the government set underway some weeks ago can and will continue.

This legislation we are dealing with now, and which it is proposed by the opposition should come on first, which we agree with, brings up a raft of very contentious matters, including the takeover of Indigenous communities without their consent and the end of the ability of Indigenous communities to regulate access to those communities. We saw just yesterday the police saying that that is a bad thing and that it is not going to give them the control with communities that they have had in the past to safeguard those communities. The legislation includes the taking away of just compensation when communities are taken over under this legislation. This is in breach of the Constitution, and people will have to go to the High Court, because there will be no appeal to this parliament.

This legislation will have been guillotined through here in the rush to the election, for the electoral purposes of the Howard government, supported by the Rudd opposition. It includes giving the coercive powers of the Australian Crime Commission over to be used against black Australians but not white Australians. These powers, which were there to help safeguard this country from international drug smugglers, triads and international criminal outfits, are now being used against individual Indigenous people, households and communities—provided they are Indigenous. You cannot do it if they are non-Indigenous, if it is the rest of Australians. This racist legislation, which, the indication is, the Labor Party is going to support—can you believe it?—will be guillotined somewhere in the next 24 hours. I would not be surprised if that is with the support of the Labor Party either, because, as Mr Rudd said in Tasmania on another matter—the support for the pulp mill and the burning of forests in Tasmania—’I am behind Prime Minister Howard 100 per cent of the way.’ Ditto this legislation.

What a failure of the democratic system. Where are the opposition when this nation needs them? Where is opposition leader Rudd when a stand should be taken for decency in the application of the law, in the parliamentary process and in the democratic relationship between the parliament and the people? All of that is out the window. The best the Leader of the Opposition can do is say ‘me too’ to Prime Minister Howard, this Prime Minister who marked his first month in office by cutting $400 million from what was required in Indigenous spending back in August 1996. And the Prime Minister this year defunded Aboriginal language wherewithal in this country.

This legislation is the death of culture. We know it and you know it. It has not even been debated in this place, and it will not be debated in this place because the guillotine is coming. Is that going to be regretted down the line? Let nobody in this chamber say they did not know—because they do. Everybody knows. Hands up anybody in this chamber who has read the 600 pages in this legislation. Let us see. Not one. Nor has the Prime Minister. Nor has the cabinet.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

Senator Lightfoot interjecting—

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The member opposite from the government side interjects, ‘There’s only about four members in this chamber.’ Actually, there are three government members. That is how much they care about Aboriginal Australians and their rights as equal citizens in this country. Rights are being ripped away from them by this government legislation, supported by the Rudd opposition—can you believe that in 2007? There is no choice with the Labor opposition, because there is no backbone there when it comes to difficult decisions like standing for the rights of First Australians and making sure that they do get the health, the education, the job opportunities and the security that they have been denied under Labor and Liberal governments and that would safeguard their communities but also honour their culture. There is none of that from Labor here tonight. This is a Howard Labor opposition. One of the worst, if not the worst, pieces of legislation brought before this parliament is being endorsed by the Rudd Labor opposition here tonight. They say, ‘12 months down the line, we’ll have a look at it.’ We will see about that. The Greens say no to this legislation. We will fight this while ever there is an hour left of debate in this chamber.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Order! It being after 6.30 I will procedurally make things correct. Before the committee at this stage for consideration is the Northern Territory National Emergency Response Bill 2007. There will be a running sheet provided when proceedings recommence at 7.30 pm for senators to refer to, to take them through this bill.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Minister, is it true that the application of provisions in this legislation to track and gain information using the coercive powers of the Australian Crime Commission apply to Indigenous people but not to other Australians?

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Before we proceed with some of the amendments, I am keen to ask the minister to respond to the Scrutiny of Bills Committee report on these bills and to some of the concerns raised by the committee in that report, which was tabled yesterday. I wondered whether the minister wanted to make a general response to it, or I could take him through some of the concerns raised. One of them relates to alcohol and the concern of the committee that the legislation might trespass unduly on personal rights and liberties in relation to the references in clause 12(6) and clause 20 to the volume of ethyl alcohol in liquor. I would be interested in the minister’s response to those concerns raised by the Scrutiny of Bills Committee.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

In response to the Leader of the Opposition in the Senate, it might be useful to give a suite of responses, generally, to the report and then he can come back and provide me with some questions on the gaps. The Australian government will be supporting, either in full or in part, the majority of the recommendations put forward by the Senate Standing Committee on Legal and Constitutional Affairs in relation to these bills.

We agree that the bills will be continuously monitored and to report to the public annually on the process. We reserve our position on whether the overcoming Indigenous disadvantage reporting framework is the best for this work and we will consider that matter further and report back to the committee as soon as possible. We also agree that the Northern Territory Emergency Response Taskforce will make strategic and operational plans public within six months and long-term plans within 12 months. Significant revisions to these plans will be reported publicly. We agree to the committee’s recommendation that the operation of the measures implemented by the bills will be subject to a review after two years and that a report will be tabled in the parliament.

The committee recommends that a public information campaign be implemented as soon as possible. This is already underway. Advance communication teams have visited all prescribed townships and most have been visited by departmental survey teams. Government business managers are starting to be deployed and will provide pertinent Australian government presence in the townships. Other communication measures are being rolled out, including written publication and electronic media. I was pleased that Senator Crossin complimented magistrate Dr Sue Gordon on radio advertisements that she participated in. The task force and the government will be working to build on these communication efforts in the coming months.

The committee recommends that explanatory material be developed to help people understand the phrases ‘a quantity of alcohol greater than 1350 millilitres’ and ‘unsatisfactory school attendance’. The Australian government accepts this recommendation and the department is meeting with representatives of the liquor industry tomorrow to begin to develop comprehensive information strategies and other tools in relation to the provision of takeaway alcohol. Steps will be taken to ensure that students, children, and parents and teachers understand exactly what is meant by ‘unsatisfactory school attendance’.

In respect of the committee’s recommendation on drug and alcohol rehabilitation services, the Northern Territory has already been provided with $15.9 million to support rehabilitation services flowing from the $130 million funding package following the 2006 Summit on Violence and Child Abuse in Indigenous Communities. The Australian Labor Party provided additional comments in the committee’s report. The $587 million funding package for the first year demonstrates the magnitude of the problem we are facing. The government will be considering at the earliest opportunity the level of funding required for future budget years. I should point out that funding for remote Indigenous housing was substantially increased in this year’s budget—$1.6 billion over four years will be provided for Indigenous housing and infrastructure in remote areas and much of this will go to the Northern Territory.

I assure the Australian Labor Party that the intervention will be part of a long-term strategy. The Labor Party provided additional comment to the committee that the intervention is silent on many recommendations set out in the Little children are sacred report. I point out to senators that this report was to the Northern Territory government and not the Australian government, and that the Northern Territory government had been sitting on that report for around three months. The Australian government intervention in the Northern Territory responds to the first recommendation of that report, that Aboriginal child sexual abuse in the Northern Territory be designated as an issue of urgent national significance. I say, though, that, whilst the findings of the report were very distressing and compelling, the recommendations contained in that report were just proposing more of the same. They did not even recommend additional sworn-in police officers, which is a fundamental ingredient in our intervention.

I have already outlined that the government is leaving the permit system in place for some 99.8 per cent of Aboriginal land in the Northern Territory. As well, I have outlined the reasons for lifting the requirement for permits in the townships and the roads that give access to the townships. The government therefore rejects the Australian Labor Party’s recommendation in respect of the permit system. I am pleased that Labor senators will not oppose the compulsory acquisition of five-year leases for prescribed townships; however, the government stands by its position that the recommendation for a 12-month review would not be appropriate. The recommendation of a 12-month review of welfare reform and income management systems specific to the Northern Territory would not take into account the fact that the measures would be applied progressively over a 12-month period, and the government would therefore not support that recommendation.

The government will not accept Labor’s recommendation in respect of the Racial Discrimination Act. We believe our obligations, including through international treaty, to protect the children are the priority. The Australian government are pleased that the Labor opposition has joined coalition senators in recommending that the Senate pass these bills; however, the government do not propose to go through the Australian Democrats and Australian Greens legislation, which is intended to delay and undermine the fundamentals of this legislation. The government will not accept their recommendations that would allow these children to remain at risk.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I asked the minister a moment ago about the coercive powers of the Australian Crime Commission. I asked him whether it is true that the powers used there—which are normally kept for surveillance and information gathering on international criminals and were specifically forbidden to be used against Australian citizens because they set aside all sorts of important provisions of the law—will now be used against people in the Indigenous community. The Australian Crime Commission has a range of special coercive powers similar to a royal commission—for example, the capacity to compel attendance at examinations, the production of documents and the answering of questions. It also has an intelligence-gathering capacity and a range of investigative powers common to law enforcement agencies, such as the power to tap phones, to use surveillance devices and to participate in controlled operations and, moreover, is able to coerce people to answer questions and to produce information and property in a way which is outside the usual law of this country. What I want to find out from the minister is whether or not it is true that these Star Chamber powers of the Australian Crime Commission may now be used against individual Indigenous Australians and communities but not against individual non-Indigenous Australians and communities.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I am advised that these powers will be used to protect Indigenous children and I am not suggesting that anything else in your submission would occur. As I understand it, the powers provided to the Crime Commission would be for the purpose of looking at perpetrators. I am advised that the perpetrators are not divided into any block of ethnicity by intent. The powers that the commission have been provided with under this legislation would provide them with the power to investigate perpetrators, whether the perpetrators were white or otherwise.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The matter is that an Indigenous person is involved, either as a victim or a perpetrator, but this cannot apply to a situation where a white person is the victim or the perpetrator. I ask the minister whether it is true that, in the last year of statistics in this country, there were some 34,000 cases of assault against children that were documented and that 6,000 of these involved Indigenous children; therefore, more than 80 per cent did not involve Indigenous children. I ask whether it is true that these coercive Star Chamber powers can be used on a minority—in a minority of cases in Australia—on the basis that black people, not white people, are involved.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I would refer the senator to the title of the bill: the Northern Territory National Emergency Response Bill 2007. The purpose of this bill is to provide further protection for the children—principally Indigenous children—and it is in response to the Little children are sacred report. While I accept the veracity of your statements, the intention of this legislation is to provide for those individuals in those prescribed communities. Whilst I accept that child abuse, wherever we find it in Australia, is something to be decried, this specific provision is in response to specific series of further protections so that we may further protect children in Indigenous communities. I again refer to the Little children are sacred  report, which did not indicate that we were dealing with large numbers of child abuse victims outside of Indigenous children in those communities. Whilst I accept your comment, this legislation is clearly targeted at providing for further protection of children in prescribed communities in response to a report that indicated that there was widespread, unreported and, in effect, serial abuse of Indigenous children in those communities. This legislation is specifically in response to that report.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No, it is not so. Minister, you know—and I would ask you to tell me if I am wrong about this—that these coercive powers of the Australian Crime Commission apply to Indigenous people anywhere in this country, whether they are in Launceston, Palm Island, Brisbane, Perth, Echuca, Woomera or wherever. If people are black, the coercive Crime Commission powers, which usurp the rule of law in this country, can be applied. But if they are white—and, notwithstanding what you have had to say, the majority of children in this country who need protection are white—those same coercive, intrusive, Star Chamber powers, which are outside the ordinary rule of law in this country, cannot be used. That is the case.

This is not confined to the Northern Territory. This report may have been, but these powers in this legislation—and this minister knows it—apply to black people in this country, wherever they might be. If they are in Redfern, they have no escape from those powers, unless they are white. That is the racist nature of this legislation. And it is not any accident; it is laid out in the explanatory memorandum that these coercive Star Chamber powers can be used against black perpetrators involved in child sex offences anywhere in the country. I ask this: if you are going to justify intervening to protect children—and we all want to protect children—using these Star Chamber powers, why not children in the white community? What is it in the white community that makes a crime against a child matter less than a crime against a child in a black community?

This is racist legislation, more appropriate in an apartheid South Africa than in this wonderful country of ours. I am not inventing this; this is the government’s own explanation in its own memorandum of explanation. No, it is not confined to the Northern Territory; it applies to black people across this country—Indigenous people. It does not apply to any other community. I ask why that is the case. What is it about crime perpetrated on Indigenous children that should invoke these laws when they are not invoked in the white community? Is it that the government thinks that sexual offences against children in the white community are of a lesser nature or do not matter as much as sexual offences against children in the black community? Frankly, Mr Temporary Chairman, you and I and the minister know that that is not the case.

What we have before us is pure, unmitigated, inexcusable racist legislation. If this coercive law is required for the Indigenous community and not for the more than 80 per cent of the rest of the community where this crime occurs, it is outrageous racism against Indigenous Australia—or, if you use another argument, it is a failure to use the law to protect non-Indigenous Australian children, and it would apparently follow that the government does not care about non-Indigenous Australian children as much. I do not believe that. This is racist legislation. It has no place in this Senate. It should not be supported by the opposition, the Democrats or anybody else. The government should be ashamed of it.

We will talk about the things that we will agree with. Senator Siewert will be talking about that later. We are concerned about children, communities, drug abuse, alcohol abuse, the breakdown of communities and the failure to act on this for so long. We want action, but we do not want racist legislation like this. It is beyond the pale. This is not the Botha government; this is the Howard government, and we should not have this legislation before this Senate. It should never have been conceived this way. That is why we say that we should take time over this and let the community look at it. It is a downright shameful piece of legislation, in just the dimension I have put—but there will be more.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

We, unashamedly, have directed this legislation to protect Indigenous children. We are very proud of that. We have crafted the legislation in that very way. As you have said, Senator Brown, you do not believe that the government are actually ignoring the other 80 per cent of the community—and we are not. This legislation is specifically targeting action in the Northern Territory in prescribed communities. In your own terms, Senator Brown, you said that 80 per cent of child abuse happens in white Australia. That means that 20 per cent of child abuse happens to Indigenous Australians—with only two per cent of the population. And as this report, the Little children are sacred report, and every other report has said, it is underreported. So any notion that it happens a lot more in white Australia is a nonsense. We are talking about 20 per cent of child abuse happening to Indigenous Australians, when they represent only two per cent of our population. That is the reason underpinning why this legislation specifically targets protecting those Indigenous children and that demographic that are being so cruelly treated.

We are not ashamed of that at all. You can call it racist. That is a very harsh term. I will not take offence at that, because I think your intent is that we have discriminated specifically to provide an outcome for the young of our First Australians living in these communities—and that is exactly what we have intended. To glibly say that this is about 20 per cent and 80 per cent really flies in the face of the fact that only two per cent of our population is Indigenous yet 20 per cent of the cases of child abuse happen in that tiny demographic. And, of course, there is all of the underreporting; so the figure could be a lot higher. We are responding specifically to this particular disaster. We could be responding to a disaster in another context and you could criticise: ‘What about the other side of the world?’ This is very targeted legislation in which our clear intent is to provide further and appropriate protection for the children of our First Australians.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am not going to continue this fruitless discussion except to ask the minister to say that he is wrong in his assertion to the Senate—and he must not mislead the Senate—that the application of the ACC powers stops at the Northern Territory borders, because it does not. It extends to Indigenous Australians wherever they might be. The figures I used were less than 20 per cent and more than 80 per cent. I put it to the minister that underreporting of child sexual abuse is not confined to Indigenous communities; it is right across the community. The rapid increase in the number of reports of child sexual abuse in recent years attests to that. This is a racist application of laws which allow surveillance cameras and recording devices to be secretly put into people’s houses and which strip away people’s legal protections so that even if they are not suspected or charged with a crime they face interrogation. If they do not accede to that, they will go to jail. The minister knows that. If their property is requisitioned they must give it over or go to jail. This is legislation meant for international criminals, not for households in Australia. But it does apply now to households in Australia provided they are black. You cannot do it if they are white. There are no territorial borders in this. It does not matter whether they are in New South Wales, Western Australia or Victoria; this law applies if an Indigenous person is involved or suspected. That is what is wrong with it. There is no point in me debating this further into the night. Those are the facts. The minister can correct any of them but he has not so far. I am going straight from the provision of information from the government itself, and it is appalling. It is disgusting. It should never be and we should not be supporting it in this place.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

There was no intention to mislead. My intent was to show that it was the intent and focus of this legislation to deal with the further protection of Indigenous children. Yes, it goes right around Australia and those powers of protection and further protection for Indigenous Australians apply around Australia. They do not only apply to black perpetrators. The perpetrators who can go to jail are white or black.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Only if an Indigenous person is involved.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

You said they will go to jail. I have been advised—and that is as good as it gets—that jail will be for blacks or whites. There is no particular provision in the explanatory memorandum or anywhere else in the legislation for that. The principle is that this is a demographic that is hugely overrepresented, no matter how you spin it, and it is on the discovery of the huge overrepresentation of child abuse in Indigenous children that these provisions have been provided—to give them further protection around Australia. The notion that the only criminal proceedings taken as a consequence of those investigations will end up with Aboriginal people being locked up is a complete nonsense and it is not a part of this legislation.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

That is not so. If you look at figures for the reporting of child abuse, in Tasmania they are lower in the Indigenous community than in the non-Indigenous community but these coercive Star Chamber powers stripping away citizens’ rights do not apply in the non-Indigenous community. They only apply where an Indigenous person is involved or suspected and is under investigation.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

It would be interesting to return to the original question that was asked by Senator Evans, which Senator Scullion, the minister, did not answer. He may have misheard and gave the government’s response to the Senate Standing Committee on Legal and Constitutional Affairs, whereas Senator Evans was actually asking for the government’s response to the Alert Digest, which is put out by the Scrutiny of Bills Committee. Nonetheless, the minister’s response was informative and a trifle perplexing. I might have misheard something so I ask him to clarify that as well.

I would like to outline the approach the Democrats are taking here. As I indicated at the end of the second reading debate, we believe that this is an issue of great importance. A window of opportunity has been opened here, for whatever reasons, by the federal government to get a lot of public focus, public debate and commitment made about genuine, ongoing, long-term and effective action to address a wide range of areas of disadvantage faced by Indigenous Australians. But the key problem here, and the reason why there is such anguish around this legislation and such torn views by many Indigenous peoples themselves, is that there is almost a ‘Sophie’s choice’ being put to them—a cleft stick. The people who have been calling for so long for concerted action are now apprehensive about the nature of many aspects of the action being put forward. I find it astonishing when this is an issue where you have such common ground across the community and the political spectrum about the need to take concerted, comprehensive and long-term action with dramatic increases in resources and support to address significant areas of disadvantage for Indigenous Australians. There would be few issues where you could get more widespread support, particularly when you are talking about wanting to assist children. Yet somehow, on an issue where we have a massive area of common ground, the approach the government has taken to date has had the quite extraordinary and terrible effect of putting bazookas into every part of that common ground that they could find. They are forcing people to either side of the chasm and would have us throwing rocks at each other again. On an issue of this importance, where there is so much common ground, to end up in a situation where we are forced on one side of a great divide is a terrible outcome, and it is a particularly terrible outcome for Indigenous Australians.

In the face of that, the approach and efforts of the Democrats in this debate are focused on continuing to point to that common ground and to maintaining some common ground so that when we get to the end of this process there is still an opportunity to move forward collaboratively and cooperatively as much as possible. That is the reason we are seeking information and clarification from the minister and seeking a response from the minister on issues such as the many points raised in the Scrutiny of Bills Committee report. That is the reason we are putting forward amendments. There are two things that I need to say. It is really important that the government show good faith in this process for the longer term. This is not just about what piece of legislation we end up with; it is about the views that people—not only senators but people in the wider community—will take away from this debate about whether there is genuine intent here to listen and to walk forward together in what needs to be a long-term commitment down what will be an arduous path.

I heard in amongst some of the various speeches that were given in the second reading stage of this debate—particularly in those from coalition senators—regular quoting of Noel Pearson as a person putting forward justification for what the government is doing. I will draw attention to his comments as well, and specifically his comments from last weekend saying that this legislation ‘needs to be decisively improved in some crucial respects’. I will also raise his final comment, which was:

It will be a grave mistake for the federal Government to be as intransigent to amendments to its bill as those who have opposed the intervention entirely.

Unfortunately, as I said before, that is the divide that we have: total opposition to any form of intervention is the position some wish to take, while others are giving no consideration at all to any amendments, any change, any comments or any concerns. To have that sort of polarised outcome on an issue where there is such widespread agreement is a terrible result.

As I said, the viewpoint of Noel Pearson, which I share at least on this issue—I know that Noel Pearson does not share the views of many Indigenous Australians who I have spoken to, but they would all agree with this one—is that there is a real risk here of a grave mistake being made if the government takes that attitude, and it could be the difference between disaster and success. There is the potential for improvements through intervention, through a genuine long-term increase in resources and through a genuine willingness to work together, but there is also a potential for disaster, and let us not kid ourselves about that.

Having said all that, I know in my head and in my heart—or what passes for it—that the amendments that the Democrats and others put forward will almost certainly be rejected with total intransigence by the government. That will be a tragedy. But it is important to make the effort and at least provide the opportunity. It is also important to emphasise that, whatever happens in this chamber, the debate will continue and needs to continue. We need to continue to provide support to Indigenous Australians, who want to have effective solutions to the enormous disadvantage and hurdles put in their way.

Before specifically turning to the Alert Digest, I want to ask a question. From the comments that the minister made before, my understanding is that the government needed to act because the Northern Territory government had the Little children are sacred report and had not responded to it after eight weeks or so. This was rightfully a matter of concern and, because of the matters raised in the Little children are sacred report, the federal government felt the need to intervene. I was therefore perplexed to hear the minister then say that the government rejects the report because the report recommends more of the same. That is what I thought I heard him say; I hope he did not say that; I hope I heard wrong. But I do not see how you can justify all of this intervention on the basis that the Northern Territory government did not respond and then reject the recommendations by saying that they are more of the same. Imagine if the Northern Territory government had responded with that and just said: ‘We reject all this; it’s just more of the same. We’re going to do something completely different.’ The howls of outrage would have been enormous, and justifiably so.

The report does not outline every single thing that needs to be done; the report was not presented that way; that was not its terms of reference. But the report recommends 97 things that need to be done. I hope I misheard that the government is saying that all these 97 things would just be more of the same. How can the federal government not respond to all of those? The federal government justifies its intervention because the Northern Territory government has not responded, and then does not respond either, saying, ‘It’s just a report to the Northern Territory government; it wasn’t a report to the federal government.’ Then it says that it is justifying itself by relying on the first recommendation, which specifically requests action from the Australian government. We at least need some consistency.

The government continually says that it is responding to the first recommendation, when it is in fact responding to the first sentence of the first recommendation and not responding to the second sentence, which says that it is critical—and I emphasise that word—that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities. Is genuine consultation just more of the same? Is that part of the recommendation being rejected as well? If not, when is this genuine consultation in designing these intiatives going to start? It certainly has not happened to date. I repeat that, if this intervention is to have any hope of succeeding, there is an absolute need for there not to be an instransigent attitude and there is an absolute need to work with the leadership in the Northern Territory. They are Noel Pearson’s words, not mine.

The Alert Digest of the Scrutiny of Bills Committee—I would emphasise for those who are not aware that it is a non-partisan committee—is a unanimous report. The concerns raised by the committee were raised unanimously, including by government members. Let me emphasise that these are not policy criticisms; they concern the fundamental legislative approach of the government on core principles that should be applied across any type of legislation, whatever the policy intent. Those concerns go to issues like insufficiently subjecting the exercise of legislative power to parliamentary scrutiny. We all know that this bill and the accompanying bills provide enormous power. Minister Brough has said himself that he has more power than anyone has had in history. I am not sure he is quite accurate there, but that is basically what he said. He has enormous power. I do not know whether it is more than ever before, but it is certainly a hell of a lot. It is more than anyone has had for a long time, certainly in this area. Concerns were raised about excluding merits review, where major decisions by bureaucrats can be made affecting people’s lives with no merits review of those decisions. Concerns were raised about inappropriate delegation of power and about what are known as Henry VIII clauses, where you pass the law and then the minister has the power of deciding when to switch the law on and off in different circumstances, without coming back to parliament. Concerns were raised about whether the phrase ‘reasonable amount of compensation’ is actually consistent with the Constitution, and so were concerns about unacceptably trespassing on personal rights and liberties, particularly in relation to the Racial Discrimination Act.

Those categories I have just outlined are part of the Scrutiny of Bills Committee’s terms of reference, which they assess every single piece of legislation against. They are not going to the policy intent or otherwise of this legislation. The government simply say, ‘It is an emergency, so we need to be able to do whatever we want.’ How long will that excuse last? Five years? Does that justify doing whatever you want without reference to these basic fundamental core principles, albeit, ‘It is for the protection of children; therefore, we need to be able to do whatever we want.’ I would like to think all legislation we pass in this place is done with the aim of not harming children. I do not see any reason why most of these principles cannot still be applied, regardless of an emergency. In fact, sometimes they need to be applied specifically in an emergency because it is precisely in those sorts of circumstances where, if you give people an enormous amount of power, you have the extra risk they will misuse it.

If the government are to show any sign of being genuine here or any indication they will not just take an intransigent approach to every amendment then they should respond to reports such as this, with its concerns. My understanding is this is about a record number of concerns. Senator Ray, the Chair of the Scrutiny of Bills Committee, said that. He has been around this place for a long time, so he would know whether or not a record number of concerns were raised about a package of legislation by this particular committee. It is a non-partisan committee. You cannot just slap it down and say, ‘They do not care about the kids,’ or, ‘They’re trying to hold it up,’ or all of the excuses that have been thrown at any of us who raise any concerns. It is incumbent on the government to respond to these concerns in a comprehensive way on the basis of the concerns themselves and for the broader purpose of demonstrating some semblance of good faith, some semblance that they will take an attitude that is less than totally intransigent and some recognition that they will work cooperatively with people across the board in recognition that the stated goal of all of this is better protection of children. It is something that is held by virtually everybody as a desirable goal. But you need to do more than agree to the goal; you have to work together cooperatively if you are to have any chance of achieving it.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Senator Bartlett has spoken about a suite of issues with regard to these bills. But the notion that the government have created such anguish, the notion that we have created an extra burden upon these communities is a false one, because the fact is that, two or three days after the intervention occurred in the communities, the communities themselves were very happy with that. They were very calm. The notion that people would be fleeing into the sand dunes was as a result of some very mischievous misinformation. It was a tragedy that people brought that into the communities. Tragically, the principal resisters in the communities have been some of the white advisers. They are the sort of people who do not want change, for whatever reason.

Communities such as Elliott have rung up and said: ‘We’re excluded from this process and we want to be involved. Please let us also be involved. It is so important that we do not want to be seen to be left out of this opportunity.’ The notion that we have created anguish does not seem to me to reflect what is happening in the community. We have heard a number of Indigenous people, not just Noel Pearson but people like Warren Mundine, who have spoken very strongly about this legislation and have focused on the positive aspects of it and what we intend to achieve.

We have spoken of the recommendations in the Little children are sacred report, and I hope I will not be regarded as being flippant in making the throwaway line that these recommendations were not important. The substance of the report was that there was serial child abuse, if you like, which was happening throughout these communities and it was largely underreported. I do not think anybody is questioning that part of the report. They acknowledged that something has to be done. You talk about the second recommendation, Senator, where it says that we have to go out and consult. I can recall travelling with the minister for more than 14 months. There were six visits to Wadeye and four to Galiwinku—and the list goes on. We were not just having tea at all those places; we were talking to the community at all levels to find out how we could make the lives of those Indigenous people, particularly living in those communities, better across a whole suite of issues.

I find it very difficult to say what sort of questions we should have been asking. Perhaps we should have consulted and said, ‘There is child abuse happening in the communities,’ and I am sure they would have said, ‘Yes, we want that to stop.’ Would we have said, ‘Do you want alcohol to keep coming into the communities?’ Depending on who you asked, they possibly would have said, ‘We’d still like to have our alcohol.’ We could have said: ‘What about the provision of the infrastructure? We’re unable to do it.’ In Wadeye we did 14 months of discussion simply to provide infrastructure so that, when somebody pushed the button on top of the porcelain, that particular day’s breakfast went away. Everybody takes it for granted: push the button, it goes away; it is not part of your family forever, it is not part of the household. Of course, we should not be taking that for granted because when infrastructure is ageing and has not been maintained then you need to fix it, but after 14 months of negotiating and consultation we cannot get to a basic agreement to be able to repair this infrastructure.

In terms of this emergency, we know it is absolutely essential that we ensure there is a clear path so that we can do it swiftly. In fact, we are saying that we think we will be able to repair the infrastructure in the community in five years, and then this will just lapse automatically—it has a sunset clause. There is no mischief in that. It is simply the practical application of something we found out throughout our consultation process and through trying it the other way, the way of, ‘We’ll keep spending; we’ll keep talking,’ when we could not even put in basic infrastructure that way. Part of the challenge has been putting in the governance arrangements and the time that that takes. If we are fair dinkum about an emergency response we need to ensure that we have the capacity to make a difference now, not to simply be saying, ‘Well, what we’re going to do is try to achieve just the basic levels of amenity that we all take for granted.’ We have said that we will achieve this. While it is important that we listen and consult widely, we have already done that. In terms of the report, if you look at this whole suite of recommendations I think you will see that they are behind us.

The Northern Territory government is to be commended and we are working very closely with them in this. Yes, we have had our differences about things and about the speed at which things are going, but fundamentally we are working with the Northern Territory government. I have to say that the senator has made some good points. It is extremely complex legislation and in many ways it is unique. It is very rare that we would have legislation that says: we will apply this legislation, but if the Northern Territory applies legislation then ours will lapse. It is very complicated, and it is not the normal way we would provide legislation. We would prefer most of the legislation with regard to the alcohol, for example, to be a provision of the Northern Territory legislation. That would make sense, and that is the way that would be. But in the interim, to show that this is something that needs to be done, we have rolled it out in this fashion. We have worked very closely with the Northern Territory government so that if they are prepared—and we believe they are in most of the fundamentals—they will be putting in legislation that reflects these things and then our legislation will lapse.

For all those reasons, yes, the legislation is complex, but this is necessary. Senator, the way you have to see this is that we need to get something done in our own lunchtime. For years and years, part of our failure has been that we have said: ‘We’ll think about it. We’ll take time.’ Clearly, that is not working. It has not worked. I am delighted to say that, in the communities where the intervention has moved in, people are in there helping other people in a practical way. That is all we are doing. I have heard the notion repeated in this place and in the media about the involvement of the Defence Force bringing guns and people in uniform. The only reason the Defence Force are in there is that they know the country—it is NORFORCE—and we needed some people who had licences to drive buses and trucks and the infrastructure to make it easier for people to get around. That was what that was about. Senator, you are quite right when you say people do get a bit anguished, but they will not be anguished when they actually understand what we are doing.

I have mentioned in my response to the Legal and Constitutional Affairs Committee report that principally we accept the recommendations in the report and we will be putting in a communications strategy. It is important that people understand exactly what our terminologies are and exactly what we as an Australian community are intending by these things. That is why we will be continuing to invest in those things. There will be a more comprehensive response to the report. In the first line of my response I said we will be supporting either in full or in part all of the recommendations in the report. The vast majority of the recommendations in the report are, I think, of most significance. But we will be properly responding to this report, and the minister is considering that response at the moment. But, again, with regard to the anguish on the ground, when people have learned the details they have welcomed it.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I want to return to the issue of the Crime Commission, because there was an important point that I perhaps misinterpreted from the minister’s answer. I understood from the minister’s answer that, while the provisions that are being put into the act in relation to the Crime Commission were to do with Indigenous violence and child abuse, it would be aimed at both non-Indigenous and Indigenous perpetrators. I have read the bill, and this is where I may be misinterpreting either what the minister just said or the bill. The bill identifies Indigenous violence or child abuse as serious violence or child abuse committed ‘by or against or involving’ an Indigenous person. My interpretation of that is that that means ‘by an Indigenous person’, not ‘by a non-Indigenous person’. Can the government please clarify what it means? Does this actually relate specifically to Indigenous people? The Little children are sacred report said Indigenous child abuse occurs by non-Indigenous perpetrators, yet if I am interpreting the legislation correctly it says it is just ‘by Indigenous’ persons.

Sandy Macdonald (NSW, National Party) Share this | Link to this | Hansard source

Senator Siewert, if I can interrupt, I think aspects concerning the National Crime Commission refer in fact to the families, community services and Indigenous affairs bill, which is the next bill we are going to deal with. I just make that point.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I understand that at the moment we are in general discussion. I understand we are asking general questions at the moment, as we were doing earlier.

The Temporary Chairman:

Point taken, Senator Siewert. I was just pointing that out to you.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Senator Siewert, as you read the explanatory memorandum, I hope you noted that it was ‘by or involving’. We are absolutely clear: the intent of the legislation is to protect Indigenous children. The perpetrators can be anyone, as long as the victim is an Indigenous person. If the victim is an Indigenous person, this is the trigger. It does not matter what the ethnicity of the perpetrator is. If the perpetrator is a white person then under this legislation the powers of the Crime Commission will equally apply.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

The minister still has not answered the question about the Scrutiny of Bills Committee report. He once again referred to the Legal and Constitutional Affairs Committee report. Maybe we have a new task for our new President; he can abolish the Scrutiny of Bills Committees because they are seen by the government as completely irrelevant. The committee tables this thing called an Alert Digest. That means be alert, look at it, read it. The committee report was unanimous across the parties with a record number of concerns touching on its terms of reference. They are not policy based but are based on fundamental principles that should be applied to every piece of legislation that is considered and passed by this chamber. Is there any recognition from the government that this even exists? We are talking about fundamental breaches of civil rights and freedoms. You can put forward a rationale and justifications for it, but do not just ignore the whole thing as if it did not exist, and do not just give us a bunch of assertions and a few travel stories.

Is there any intent or desire to engage genuinely on this issue or are we just going to get dismissal after dismissal? It is incomprehensible that there is no recognition of the role of this committee, which has been in existence for decades, and the importance of the issues that it looks at day after day. You are a minister now, Senator Scullion; you are supposed to look at this stuff. I know you are not the primary minister, but you should know that that is what it is there for. I am sure you have not been a minister long enough to forget what it is like not to be a minister and to forget about the role that committees play. These are fundamental, non-partisan, basic issues before we get into some of the policy detail. Is there going to be any response to that? Can the Senate expect that response whilst we are still considering the legislation or will we get some perfunctory piece of rubbish some time down the track when you can be bothered?

I am still very perplexed about the status of the Little children are sacred report. Even in some of the previous responses to the issues raised by others—and certainly in responses to the very short Senate committee process that we had—the government kept going back and saying, ‘Well, the Little children are sacred report raised this,’ or ‘as the Little children are sacred report said’, but now we are told it is all behind us. The Northern Territory government got slagged from one end of the country to the other—probably quite justifiably—for not responding to it quickly enough, and the next thing we knew, it was behind us.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

And they didn’t want the authors to be at the Senate committee inquiry.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

That is certainly correct, Senator Crossin. What is the status of that report? Can we just throw this out now? It has informed the government and now we can just forget about it! The recommendations are now gone and irrelevant! The Northern Territory government is actually about to respond to it, as I understand it; are you going to say: ‘Actually, don’t bother now; it’s past us. We’re on to some new world’? Is that the status of the Little children are sacred report? I think it is useful, because a lot of work went into this. There was a lot of trust-building with Indigenous communities. I would remind the minister that it was not the second recommendation but the second part of the first recommendation which said that it is critical that both governments—not just the Territory government—commit to genuine consultation in designing initiatives for Aboriginal communities.

If Senator Scullion thinks that he is the first person on the planet who can design an initiative to assist any community in a colonised society, let alone an Indigenous community, without consulting the community and that it will work, then he really has a messiah complex. That is not even basic public policy 101; it is whatever comes before that—it is high school stuff.

There is a notion that consultation means delay. I guess for a government that are not used to consulting it is understandable that they do not comprehend that it is possible to consult as you are doing things—working with people continually and moving forward. We had some indication in the Senate committee process that there was some intent to do that, and I know that there has been some consultation happening here and there. Consultation does not equal delay; consultation means making sure your implementation is more likely to work, because you are working with the people that you are implementing for.

The key question is: what is going on with the Scrutiny of Bills Committee report and the issues that were raised? Are they just some bit of arcane parliamentary trivia that we in the Senate—or certainly you in the government—do not need to concern ourselves with? What is the status of the Little children are sacred report? Many of the people in the Territory who put a lot of trust in the people putting this report together and who opened up on very difficult issues and provided the data that has been used to highlight the concerns and the need for action are still working off this as something of a guide for the way forward—obviously in conjunction with what the federal government is now doing and in conjunction with what the Territory government is now doing. Is that now all behind us? Has that now been superseded? Is that the understanding that people out in the wider community should have?

I think it is important to be here for the long haul, which we all say we are here for—I certainly commit to that on behalf of the Democrats and me. There is no point in one group of people being here for the long haul and working with this thing, and another group of people working for the long haul and saying that this is all passe. We have to try and get some common ground here. I am sure we will not get common ground on the legislation but we have to have some common ground about where we are going forward from. We need some clarification about what the government’s relationship, understanding and attitude is towards the Little children are sacred report. That is an important issue that we need answers to.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

We have been basically referring to two reports. Just for the record to make it absolutely clear, the Senate Standing Committee for the Scrutiny of Bills Alert Digest report says that the minister will consider carefully, as he always does, and he will make his report to the chairman, as he has always done. That is the convention. The minister will also consider the recommendations of the Legal and Constitutional Affairs Committee. I have already outlined the principles of our acceptance of the recommendations of the report—not all of them, but there is broad acceptance—and I support the majority of the recommendations put forward.

There was a comment that it was not the second recommendation but part 2 of the first recommendation. I was simply responding to your assertion that it was the second recommendation and I apologise if there was any error in my understanding of that.

In terms of the recommendations of the Little children are sacred report, frankly, I think that most people who have had much to do with this debate and those who have considered both the shocking content of the report and the recommendations could not help but be underwhelmed, Senator. I do not think that you should be anything but disappointed. As for it being very bureaucratic and having more consultation, you say that consultation does not mean delay. We have been consulting. If you look back over time, in July 2006 we had a summit that everybody contributed to about child abuse and violence. There was a series of reports, and Senator Heffernan made an excellent contribution earlier in which he referred to another report, and we are now saying: ‘We won’t really delay, but let’s go and talk about these things again. Let’s go and have another round of consultation about something we already know about.’ If we read the report, we are all, as Australians, absolutely horrified and shocked by it—and so we should be. Whilst the report talks about advisory bodies and frameworks and reviewers and coordinators, one of the things that it seems to lack, fundamentally, is action. Perhaps that is the difference between how this government views it and how others view it. We have spent years on consultation and there has been no action at all. I am very cautious and respectful, but, if you consulted with the kids or women who are being abused or the families of those people, they would say: ‘Act now. Act yesterday.’

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

What do you think they have been doing for the last few year in putting the report together?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I could not quite catch the interjection. As a response to the report, we are talking about consultation. We have had, as the Senate indicates, widespread consultation not only through the Little children are sacred report but through a series of reports. To damn this government for not consulting in this particular area is inappropriate. We have consulted to death and this government proudly stands by the fact that this situation deserves action, and that is exactly what has happened.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I do not want to delay the committee in terms of this debate but I do want to make a couple of observations. The key point that Senator Bartlett is making is not whether you have consulted but whether you actually listen to anybody or whether you press on in this determination that you know best and that no-one else’s opinion is of any value. Your having just trashed the Little children are sacred report again raises the question of whether you listen to anybody.

There has been a lot of concern in the community about failure to listen to Indigenous voices. It seems you have now dismissed the Little children are sacred report, and I know from the treatment of parliamentarians in the opposition what has happened. The opposition offered bipartisan support for the emergency response yet they saw the bills when the parliament resumed. Who did you talk to in between times? Who was consulted as you drafted the legislation? As I understand, it was all driven inside FaCSIA. The question is not whether you have consulted or have been engaged, but what happens next.

I think the minister has engaged with Indigenous issues in a way previous ministers have not, and I give him credit for that. He has actually taken a keen interest, while I think that some of the others prior to him did not do that. So I am the first to give him credit for that. But what worries me is his absolute conviction that, having come to Indigenous affairs in the last 18 months with no knowledge or interest before that, somehow he has got a magic solution to every problem and he knows best. I find that frightening. The one thing that I understand about Indigenous affairs is that the solutions are complex, difficult and hard to achieve. If there were a simple solution to all the issues in Indigenous affairs, someone would have come across it before Minister Brough. Certainly when I was shadow spokesman it struck me how enormous the task was and how complex the challenges were. I reject and cannot accept that somehow there is some simplistic solution, particularly when it means the minister taking over complete control.

I think that what Senator Bartlett is focusing on is that we have just had the Little children are sacred report trashed. We have had no response to the serious concerns raised in the Senate Standing Committee for the Scrutiny of Bills Alert Digest, which expresses and raises serious concerns about the transfer of power from the parliament to the minister. It gives the minister some of the widest powers in any legislation to override the act, to take powers unto himself that have traditionally not been powers that this parliament has granted. So it is a very serious question, but we get no answer. We do not get a sense that anyone is listening.

The government have said that they will pass the bill and look at that later. But people say: ‘Are you listening? Do you understand and are you responding? Or are you so convinced that you know everything that no-one else has anything to contribute to the debate?’ I would like the minister to indicate, for instance, whether the government are going to accept or support any of the amendments moved. I notice that for the first time in living memory, I think, on a large set of bills there are no government amendments. I cannot recall the last time on a set of large bills drawn up so quickly that we did not have any government amendments. Usually the government—even this government, unrestricted in the Senate, having the numbers to do what they want—move large numbers of amendments as they realise the faults in the legislation, as they listen to responses and as they listen to what people say to them. Therefore I would like to ask the question: will the government support any amendment moved by the opposition, the Democrats or the Greens and will the government respond in any way in terms of the legislation to the legal and constitutional committee report? They say they accept many of its recommendations, but there are no government amendments reflecting that—nothing reflects that report.

I do not want to know whether you are consulting, Minister. I want to know whether you are listening, whether you think anybody else has a view of any value in this debate, whether or not the Senate is going to play any useful role today or whether, as seems apparent, no amendments will be entertained. I know the minister was forced into having the Senate inquiry by other ministers concerned about another example of the government’s abuse of Senate power, so we had the farce of a one-day committee. It has been the minister’s practice in bringing legislation before this place that everything has to be passed within a week. Labor accepts this as urgent. We have given you the cut-off; we have brought it on and we have indicated that we are going to deal with this urgently. I think there is not enough focus from some of my colleagues in the Senate on the enormity of the threat to children and the need for an urgent response. Labor absolutely accepts that.

I am not going to bore people by going through all the reports similar to this that there has been no urgent response to. I am not going to score cheap political points about all the times the government has not responded in any way, let alone urgently or adequately, but I think it is important that we understand whether or not the government is at all interested in listening to anyone—be they senators, be they Indigenous people or be they anyone who has taken an interest in the matter.

I could not help myself, Mr Temporary Chairman: the references to consulting at Wadeye et cetera got my goat up because I understand the minister went out there and lectured people. I met with the local people not long after his first visit, and they were certainly very offended by the manner in which he treated them—I think he got some national TV coverage. I remind the minister that the last revolution in Indigenous affairs that this government championed was the quiet revolution. This was the last one before this one, not the one before that or the one before that in the 11 years of the Howard government, which has found the solution to Indigenous affairs. The last one before this one was what was termed the ‘quiet revolution’. Dr Shergold indicated it was a bold experiment in implementing a whole-of-government approach to policy development and delivery.

FaCSIA, which is driving these changes, was charged with the responsibility of transforming Wadeye and for providing answers to their housing, employment, youth, violence and other issues, and on the report that the department and the minister commissioned FaCSIA absolutely failed to meet its obligations to those people. The trial was a complete failure, as were the other seven, and the bureaucracy and government failed to deliver on its promises to those people. If you are going to talk to me about Wadeye, Minister, talk to the chamber: let us have the whole story. Let us have the story about this government’s failures in Wadeye as well and about its failures to deliver on the promises made by previous ministers and by the government.

I do not take any pleasure in this because I am the first to admit that previous Labor governments have failed in their experiments as well. I did not make myself too popular with a few of my colleagues by saying so a while back, but you have got to admit the reality. I do not want to be lectured about FaCSIA’s engagement with Wadeye, given their failure and the government’s failures there. We have got to admit that government has been part of the problem and has failed these people in the past. Having got that off my chest, the key question—

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I think they spend 10 times more now in administration money.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Yes. I will not go through it all. I refer you to a very good speech I gave on the matter, Senator Crossin.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Order! Please direct your remarks to the chair.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I apologise, Mr Temporary Chairman. The reason I rose is to say: do not tell the Senate that the government have consulted. The question is: are they listening? I suppose the best way of bringing that question to a head is by asking: will the government move any amendments following the Senate legal and constitutional report on the bill and will the government accept or support any of the amendments to this legislation proposed by anyone other than the government and their own department?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

The Leader of the Opposition  in the Senate accuses us of perhaps not listening, even if we have consulted, and reflects upon me not lecturing people, particularly about the circumstances of Wadeye. Senator Evans, it is tremendous to see that someone like you has gone out on the ground and has met people. I acknowledge the work that you have done in that area and I think it is important, but I cannot let some of those comments pass when you talk about FaCSIA going into these communities. I know that the minister has been in Wadeye five or six times, and I have been with him on a number of occasions and I was there on the first occasion that you reflect on.

The minister visited Wadeye in very troubled times—I think that has been well enough reported—but on a number of other occasions I know that he has gone out of his way to sit down for long periods of time, not in the council surroundings but under a tree with the women and the children. When you go to Wadeye now with Minister Brough, he is nothing less than loved because of the effort that he has put into sitting down and listening to the people on the ground—not necessarily the leaders, but at every level including the women and the children. He has spent a great deal of time there.

I am not being glib, Senator Evans, when I say that the minister has consulted and he has listened, and I think he has a very clear idea of the needs of the communities. That is why it is not an unsophisticated intervention that just deals with issue of child abuse. Those opposite, including Senator Crossin, remind us often that you cannot just deal with one part of this. This is a suite of challenges: infrastructure, education, having enough food on the plate and having a community store where you can buy food are all fundamental elements of this. That is why the intervention has dealt with this solution over such complex areas with a sophisticated and complex response.

I acknowledge the comment about the COAG trials: they were not the most successful. One of the elements of the COAG trials was the partnership approach, which ensured that the Commonwealth worked with the Northern Territory Labor government and the local councils. It was the intention on all sides not to duplicate. Perhaps we had the critical mass. I agree: the trials can reasonably be described as a monumental failure—and I was on that program. So we cannot keep doing the same sort of stuff. The circumstances in Wadeye often reflect those in many of the other areas around the Northern Territory. We have been listening not only to the senators opposite but to the many commentators in the media and, for a very long time, to the people on the ground. Senator, we have been listening. That is why, when we acted, we did things that we thought would make a great deal of difference on the ground.

You have made some remarks about the dismissal of the report. I certainly was not dismissive of the report. It was a fantastic report. I dismissed out of hand the recommendations of the report, and I stand by that. The report was not a report on us. The report, which was a series of recommendations, was given to the Northern Territory government. As I said, I am delighted to see that the Northern Territory government will be responding to those recommendations in a few days. What we have done is respond to the fundamental elements of the report. We knew that we needed to again provide the rule of law. We knew that we had to stop the amount of alcohol going into the communities and the degree to which that alcohol was impacting on the interaction within families. We also needed to deal with the issue of infrastructure, as well as the long-term issue of education: ‘You cannot have a passport to the front gate unless you have an education.’ There are a whole suite of issues that we have dealt with comprehensively.

I can understand your perspective on this. You would not have the intimate knowledge that I have of the minister’s capacity to listen and to interact with the community. He did that so many times, not just in one community but right across the Northern Territory. He has taken a personal role in this, as you acknowledge, which is rare. It has been a real privilege to be with him. He is very much a listener. Much of the response is a result of what he heard. It is an emergency response. The fundamentals for changing the nature of those communities are contained within that response. I acknowledge the fact that, principally, Labor are not debating those issues and that you support us on those fundamentals. I particularly acknowledge that you recognise this as a matter of urgency and that we have to get in there and move things. All I can recommended, shadow minister, is that you speak again with those communities. I am sure you will, because you have contacts in the Indigenous community. Certainly Senator Crossin has contacts in those communities.

All the feedback from the communities—which is unfiltered feedback—is that the intervention has been delightfully received. It was reported in the newspaper that a 10-year-old in Maningrida had been raped. This occurred some two weeks into the so-called ‘break’, but maybe it was about 10 days after the announcement. The article in the paper reported that the entire community surrounded the house where the incident occurred and had to be dissuaded from taking things into their own hands. I am not sure whether that would have happened before the intervention. I feel a sense that these communities are becoming empowered, particularly the women. This will ensure that the circumstances that we read about in the report will be a thing of the past. Senator, while I accept that those on the other side are allowed some cynicism and some leeway, I would assure you that the intervention is in the best interests of our most vulnerable First Australians.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I do not want to waste the Senate’s time this evening by going over a series of platitudes, because it is clear that this government does not listen and certainly does not want to work cooperatively with Indigenous people. I would like to spend some time drilling down into the detail of the legislation. I would like clarification on a number of questions. Could you clearly explain to me what the role of the business managers will be in the communities and how they will intercept, work with or replace the CEOs of community councils?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

The title of ‘manager of government business’ is in some way a recognition of the learnings we gained from the outcomes of the failed COAG trials, which were referred to a little earlier. We know that people in Wadeye and in other places need help—they need assistance—with their governance arrangements. It is not interdicting; it is not saying, ‘We’re going to usurp you and you are going to be moved aside.’ The manager of government business in the community will add another layer of assistance to ensure that communities have the administrative capacity. It will ensure that they can get assistance with any of the management arrangements. So it is not about usurping any of the original arrangements; it is about working alongside people and assisting and supporting them with those governance and administrative arrangements.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I want some specific answers here. I would like to know exactly what those people will be expected to do on a day-to-day basis and whether or not it is your intention that they will replace community councils, they will have the power to replace community councils, they will replace the CEOs of community councils or they will work closely with the CEOs of community councils.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Senator Crossin, just for propriety, could you address your questions through the chair?

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Yes.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

The notion that the government business managers will be working alongside people will vary from community to community. We accept that one of the most important parts of the intervention is to recognise the diversity of the communities and where they are up to. Many are wonderful, strong, vibrant, operational communities and, at the other end of the scale, there are dysfunctional communities, with very few governance arrangements that one could put any trust in. So, when the government business managers move in to improve the delivery of the services in the prescribed communities in the Northern Territory, they will do it in a way that reflects on the particular circumstances of a community.

Four FaCSIA staff have been deployed to cover Kintore, Imanpa, Titjikala, Santa Theresa, Finke, Mutitjulu and Yuendumu in the southern part of the Northern Territory. You may not be aware of this, but we would anticipate another 25 to 30 applicants who will be offered the government business management position. We have not determined the destinations, the designations and the deployment dates as yet. They will be affected by release dates from the current agencies. You can imagine the challenges with housing in some of these areas. There is no set time for these to be rolled out. The principle is that there are different circumstances in each community, and those circumstances will be taken into consideration in terms of the role of the government business manager.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I understand there currently is a representative of FaCSIA at Wadeye. Could you tell me whether that person will become the government business manager? Are there any protocols for these government business managers? As I understand it, that person at Wadeye fails to communicate quite regularly with the CEO and the councils. Are you telling me that that will now drastically change?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

The FaCSIA member, as is well known to the senator, has been in the community for some time and is not necessarily part of the deployment. The individual is an asset of FaCSIA. The capacity for that particular individual to be able to interact as successfully as he has in that community will continue. I have no information about his actual delegation, whether he has been blessed as a government business manager or not, but I know he remains in the community and he continues to assist us. But I am not able to provide you with information about his exact status. He has been in the community for a long time. We expect a valuable asset like this particular individual to remain in the community for some time to generally assist with governance arrangements, as he has, and no doubt in the future it will be in the context of the intervention.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Can you take that question on notice and at some stage provide me with a response?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Frankly, I would prefer not to. It is a lot of work to take something on notice. As I said, it is unclear in each community whether or not a particular delegation of one individual in one community is made. Frankly, I do not know how helpful it is in terms of the consideration of the legislation. As I said, at this stage my answer is that I am unaware of that. If you insist I take it on notice, I will. I just am not really sure of the context of the question in relation to the legislation.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

That is extraordinary. We have a situation where we have been given legislation less than 10 days ago and we have a very rare opportunity to drill down into how this legislation is going to work on the ground. I am asking for a specific response to how this will work on the ground at Wadeye, seeing that you already have a FaCSIA member there. My question is: will this person become the government business manager? I do not think it is unreasonable to take that question on notice and give us a response to that.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I will take that on notice. But, as I said, the delegation has not been made yet. If we make a decision to give him a particular job I am not sure at that time that I should inform the Senate. But between now and then I am unable to provide any more information because the delegation has not yet been made. I am not being difficult. I will give you as much information as the department can provide on that matter.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I did also ask whether there were any protocols being developed that government business managers would need to follow as guidelines in dealing with community councils and the CEOs of those councils.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Perhaps this is not in relation to that particular individual, because he is a very experienced individual, but the remainder will have to have predeployment orientation training. That has already commenced. That is going to include cross-cultural training, particular occupational health issues that one would meet in a community that one may not have experienced in other parts of their lives, four-wheel drive defensive driving—whilst one may raise their eyebrows about that, it is very important for those people who have not driven a four-wheel drive; it is a very different experience, particularly on some of the roads in those areas—and financial management. Some of the experienced applicants, as I said, will simply require a top-up in a whole range of those skills. But the orientation is to prepare individuals so that they can provide the very best level of amenity that they would normally provide outside the community. They will be able to provide that as best they can in a community context.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Perhaps I am not making myself clear enough, but I did not actually ask about induction or preparation for placement in these communities. I asked whether there in fact were protocols in place which were a clear line of principles or understanding between the government business managers and their interaction with community councils and CEOs.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

There will be, particularly in the area of trying to pick up some of the cultural sensitivities. Those protocols will be articulated. If you are asking whether I have some now: no, they are not available to me. I will pre-empt your next question: ‘When they are available, will you provide them?’ The answer is yes.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Can I now ask why Elliott Community Council has not been considered as one of the 70 communities, given that, as I understand it, the criteria were those communities of 100 or more residents? Elliott has 650 residents. It is deemed, as I understand it, to be a town camp. If that is the case, could the minister please explain a ‘town camp’? To which town is it associated, seeing that it is 700 kilometres south of Darwin and 780 kilometres north of Alice Springs?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

As the senator should know, the circumstances of Elliott are quite different. It is clearly not on Aboriginal land, which makes it quite different from a number of the other communities. But, as I said in an earlier submission, the community of Elliott have contacted us and said, ‘We would like to be added to the list.’ We are considering that, and we will be working very closely with the community. We will be listening to and consulting with the community and we will be ensuring that we make a decision on that. We have only just had the submission from them to join the communities. But the principal answer to your question on the difference between Elliott and other communities is that it is in fact not on scheduled Indigenous land as the remainder of the other communities that were prescribed would have been.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Even though other communities may be on scheduled community land but are under different kinds of schedules of community land. Can you clarify for me, then, why they may well have been assessed as a town camp?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I am sorry, Senator, could you repeat the question.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The community at Elliott have been advised that they are not part of the 70 because they were assessed as being a town camp and were, therefore, not consulted during the initial stage of the meetings.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I am sorry I am not able to provide the committee with a reason for that, but I am advised that we are considering the inclusion of the township of Elliott in the list. I am unaware of any conversation that provided information that they were, in fact, a town camp. As I said, the most important point with regard to Elliott is that they have contacted us and we are in active consideration of ensuring that they have the same level of amenity provided to them as to others on the list.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I do not know if the minister has seen the letter to Minister Brough from Elliott Community Council dated 19 July. Maybe he will get further or better information about that as the night proceeds. If nothing else is forthcoming, I will pass that on to Elliott council.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I have further information that four major towns have been excluded. As you have indicated, they are not covered under the Aboriginal land rights act, which is a significant difference between Elliott and other communities. Elliott is not on a Northern Territory community living area, which was the other determination, I suppose, to encompass the demographic. That is the reason it was left off. I am unaware of a letter. If you would like to pass it to me, I would be better apprised of it and I would be more than happy to take a further question later on the matter.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Senator Crossin, do you wish to table that letter?

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I am happy to table it, but it is actually a letter that was sent to Minister Brough, so I am sure it is somewhere in the bowels of the government. I am happy to table a copy of it; I am sure they would not mind. Minister Scullion, what you say reaffirms to me that these communities have been chosen for anything other than their level of child abuse. I do not know the answer to this, but I understand that, in Elliott, 12 children were identified as being alleged victims of child sexual abuse. It begs the question as to whether this government really has the objective of tackling child sex abuse when Elliott is known to have had 12 cases and yet is excluded from the mix. I seek leave to table the letter.

Leave granted.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I should clarify a couple of points in relation to the last submission from Senator Crossin. The government decision was not to exclude Elliott but, in the nature of a decision, sometimes things are excluded. In the description we said that there would be four major towns that have a strong association with camps. There was no intent at any stage to exclude towns or any Indigenous community that might be affected by these reforms. We are being extremely flexible. As you indicated, we have also received submissions from Elliott which indicate that they would like to be a part of it and, as I have said, the issues you spoke about are to be reflected and they are currently being considered by government.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I want to move on to some other areas of the legislation. On page 19, clause 22 allows the Commonwealth minister to repeal part of the bill. That is not subject to any parliamentary approval or disapproval. The clause says that the Commonwealth minister may declare that this division, or specified divisions of this division, cease to have effect. Could you give me an indication of under what circumstances this unprecedented action may occur from the minister?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Clearly, the intent of this particular aspect was a declaration by the Commonwealth minister in regard to alcohol. We understand that the Northern Territory government is preparing legislation over the next few months that will ensure that these provisions are covered by their legislation. That being the case, this legislation would then lapse.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I am trying to get some clarification here in some of the sections. On page 22, clause 26 talks about filters on computers. Again, the minister will determine what kind of filter is to be installed on computers and it is an offence not to have a filter. Why would this determination be authorised in the minister rather than delegated powers? My second question is: I have a computer issued to me through the federal Public Service, so when can I expect someone to come and install that filter on my computer before I go out bush again?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

The reason the power is vested in the minister is that it is simply a mechanism by which we can ensure that we apply the same standard. As you would be aware, there are a number of different filters. I am the standard Luddite but I am told that there are a whole range of different filters and the minimum level of filter that is required was to be determined by the minister and was not to be a choice, as I understand. Should you be travelling into the community, Senator, I would recommend that you get in touch with my office. I am more than happy to ensure that FaCSIA are directed to your particular equipment and they will make some sort of an assessment of it. I am quite sure that other individuals travelling through the community would have access to the same level of amenity. I am unable to provide any further information on the particular aspects of your computer or how we can provide you with a filter.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

What will the mechanism be for members of parliament and their staff to ensure that we comply with this legislation?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Probably the best way, since you are keen to travel to these communities, is that you should install a filter yourself. I am not sure of the particular technical level, but I will take that on notice and will advise the senator of the exact level of standards as they come to hand.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Thank you. We will be travelling to a community on Saturday, so I hope I am not in breach of this legislation if I happen to take my computer with me. We would like to comply as soon as possible if that is the case. On page 45, clause 53 exempts the Public Works Committee from examining any work under this legislation for five years. Why is that the case?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Again, it does go to the nature of the intervention. This is an emergency. While the intent of the Public Works Act is, in normal circumstances, to provide a series of standards and processes under which you may need to move to dig a ditch or to plan something, we think in the nature of the emergency we need to ensure that we can do this in a timely fashion. As with the other governance arrangements that I touched on in a previous submission, it is clear that we do need to move swiftly. We want to ensure that standards will be maintained, but we also need to ensure that we do not have to refer to some other piece of legislation that may not assist us in that matter. With regard to your previous question, I understand that we will not be enacting this legislation for some 28 days. So one would hope, as we will be sitting again before that time, that I can provide information to you. You will not be unlawful travelling to the community on Saturday, and it gives us some time to provide you with this highly technical piece of information.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

What a relief! Minister, could you give me an indication of what works you might anticipate will be built on communities that would need to be exempt from the Public Works Committee?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

That is a technical question. I could probably say pretty much anything that you would build on a community is within the scope of public works. The general infrastructure that we are dealing with is housing and associated infrastructure. So the infrastructure that we would put in is the houses and the supporting infrastructure. It is the intention that that would be the basic and principal activity that we would wish to be exempted from the public works process.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Did the minister just say that the act will not be implemented for another 28 days? I am not sure that I was aware of that. I understood that we had to deal with the bill this fortnight because of the urgency, and Labor supported the urgency of these measures. In fact, we were going to have the parliament recalled. Am I now to understand that it will not be enacted for 28 days?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I did not intend to mislead you, Senator Evans. It is only criminal offences that flow from the legislation that will not be enacted until 28 days after assent. I understand that is the usual process.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The rest goes on assent?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Indeed.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I would like to get some further clarification about the Public Works Committee. I am not on the Public Works Committee, but I understand they only kick in and look at work to be built by the Commonwealth if it is above a certain threshold. I am not entirely sure what that threshold is, but I am pretty sure it would not be the cost of a house on a community—I am pretty sure it would be many more hundreds of thousands of dollars beyond that. Minister, I still ask what it is you might envisage you would build on a community that would exceed that large amount of money and that this would prohibit the Public Works Committee from looking at.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

It is not the matter of a single house or infrastructure. As you would know, a large amount of infrastructure is required on these communities, and it may well be a large number of houses and associated infrastructure. Like you, I have no knowledge of the threshold required by the Public Works Committee, but I would imagine that the nature and the size of the infrastructure required in this particular challenge would be something that might well fall within their purview.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Minister, can I take you to page 51 of the bill and ask you to explain clause 63(2), where it talks about appropriation. It says:

Amounts referred to in subsection (1) are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

Are we talking about funds that will be appropriated, with the passage of these bills, to the amount of $587 million, or are we talking about funds in addition to that?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

There are a lot of blank faces here, Senator Crossin. Perhaps I can take that on notice. I intended to discuss the appropriation bills at the time they were discussed. I recognise that this is in general discussion but, if you can give me leeway of a few minutes, I will do my best to find out exactly what that particular part of the clause refers to and perhaps give you some more information with regard to the consolidated revenue fund.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I am not clear, but I think it perhaps refers to funds that are needed for just terms compensation, which we might get to debate. This is under division 4: ‘Compensation for acquisition of property’. Are we talking about funds that will be appropriated accordingly under this section and which will be released with the passage of these bills, or are we talking about funds that are yet unknown which will need to be released over the course of the next five years because the appropriation bills before us are only for 12 months?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

The application of my reading glasses has revealed that you are in fact correct—that this does apply to that. I would make an assumption that it would follow that, as those circumstances have not yet been scrutinised, a particular sum has not been established. However, I think it would be more useful if I provided on notice the answer to your question.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I had hoped that the minister would do just that while the committee is deliberating, because the clause is a continuing appropriation of an amount unknown to the Senate or to the parliament. We do not know what the parliament is committing the taxpayer to, and we should know. Before moving on from the appropriation clause, the committee needs to know the limit of the appropriation that the government can assure the parliament of. If the government cannot make that assurance by giving us the sum, what will the mechanism be for coming back to the parliament to properly account for the appropriation that would then be made by the government? Or is it that the government is planning to simply appropriate money without reference to the parliament by dint of this clause, which is open-ended and has no limit to it?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

As the senator would be aware, since the time of the announcement of the intervention, we have said that a compulsory acquisition would be compensated on just terms. We have said that will be the case. But we do not have a capacity at this stage, as you have indicated, to come up with a dollar figure for that amount. In terms of a further appreciation of what that sum may be, we will not be able to know that until such time as the negotiations are entered into or there is some sort of settlement. I understand that in the explanatory memorandum we look to the Valuer-General in the Northern Territory for an appreciation of what that may be. They are difficult issues. I will have to take the question on notice in terms of exactly how you will be able to scrutinise any further appreciation of funds at that time. I hope to get that information to you very shortly.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

That is an important matter for the parliament to be considering—because, otherwise, we hand across to the government unlimited access to consolidated revenue to fund legislation without there being parliamentary scrutiny or an ability to review the situation. The minister just said that compensation for properties taken off Indigenous people will be on just terms. He would be aware that section 51(xxxi) of the Constitution says:

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.

The question then arises as to why ‘just terms’ is not used in the legislation. Division 4, clause 60, ‘Compensation for acquisition of property’, says:

However, if the operation of this Part, or an act referred to in paragraph (1)(b) or (c), would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

So, immediately, this legislation goes outside the Constitution and contemplates the acquisition of property other than on just terms. The Constitution says that it must be on just terms, but the government’s legislation says ‘otherwise than on just terms’ and, where that occurs, the legislation says there will be a ‘reasonable amount of compensation to the person.’ What is reasonable here?

What we have in this situation is the Commonwealth taking the property of Indigenous communities against their wish and their will. I think there is little doubt that the Commonwealth has the power to do that under the Constitution—but, when it does that, it must come to a just terms arrangement. And the basis of a just terms arrangement, as the minister will know, is an agreement coming out of a mutual discussion and understanding between the parties. But there has been none here. The government are simply saying: ‘We’re coming to take your land; end of discussion. What’s more, instead of discussing what would be just terms, we are going to go outside just terms—we’ve got that in our legislation—and we’ll pay a reasonable amount.’ This is unconstitutional behaviour, drawn up by unreasonable people, saying, ‘We will resort to our reason, not the other party’s rights under the Constitution to be involved in the just determination of compensation.’

The minister just mentioned that the Northern Territory Valuer-General would work out what the property is worth. Is the minister not aware that property is not just land value according to the big end of town; that, for Indigenous people, property, amongst other things, has an inheritance. For Indigenous people, there is a deep bond with the land which cannot be duplicated somewhere else. It has an extremely valuable non-tangible component for the people who are being dispossessed here. You cannot simply go to the Valuer-General as if that bond means nothing and simply say, ‘Give us a value of this land,’ as if some itinerant real estate agent wanted to sell it to somebody. That is not how it works. The minister may not understand it and Prime Minister Howard may have no idea of the relationship that there is between Indigenous Australians and their ancestral lands. It goes beyond owning it; it is a relationship which is being part of that land. I ask the minister how he is going to assess the value to Indigenous Australians of that relationship, that spiritual connection, that ancient connection.

Where is even the beginning of a talk to make an assessment of this dispossession of Indigenous people’s land at a calculated value according to a Valuer-General using simple real estate values? It is a terrible prospect and I think it is illegal. The opinion of Mr Brian Walters SC ought to be noted here because it is important that the government understands that there are broad legal opinions which find that the government is acting outside the just terms required by the Constitution. In fact, the committee was furnished with Mr Walters’ opinion. The end of that opinion states:

In my opinion the legislation purports to authorize the acquisition of property on terms other than the “constitutional guarantee” of just terms.

In those circumstances, the courts would not have a role of correcting the legislation by inserting just terms. Rather, the legislation purporting to authorise the acquisition of the property would be struck down as void.

In my opinion all of the provisions in the legislation providing for acquisition of property other than on “just terms” would be struck down as void ab initio if they were enacted into law in their present form.

This is a breach of the Constitution being tried on in the Senate. This is the conservatives breaking the highest law of this land, which is the Constitution. This is a conservative government—and isn’t it so often the case?—saying, ‘We are above the Constitution.’ The Prime Minister stands in front of the flag and uses all the symbols of this nation, but when it comes to Indigenous people he wants to override the Constitution through this legislation. Chair, you will understand, even if the minister and the Prime Minister do not, that you cannot do that.

This legislation challenges Indigenous Australia. It says: ‘If you want to get your constitutional rights you’re going to have to go to court. The parliament is not going to fix it up.’ Why isn’t the parliament going to fix it up? Because the government has the numbers and the parliament is being used as a rubber stamp by the executive office of Prime Minister Howard. They are saying: ‘We’ll fit out the Constitution. We’ll put it on the shelf because we have a political aim here.’ Not to put too fine a point on it, that aim is to defraud the Aboriginal people of their land using a valuation system which ignores their relationship with their own land. It ignores their rights and it ignores 60,000 years of cultural heritage and puts it in the hands not of the Constitution, justice or fair-mindedness but of the Valuer-General of the Northern Territory, whoever that might be. It is left to Indigenous Australians to try to get their justice not in this parliament, because this government is turning this parliament into a hall of injustice here tonight, but through the court in order to undo legislation which should never be in here in this form.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I was just musing on a contribution from Senator Bartlett when he said that it is very sad on this occasion that we seem so split on this. I agreed that it was very concerning, but it is because of the sorts of submissions that we are getting from Senator Bob Brown. We come up here to look at something and he has to throw in ‘dispossession’, ‘unconstitutional’ and ‘the hall of injustice’. Maybe Senator Brown will get a moment on television and no doubt that is what he is here for. But, in terms of clarity, he could not have misled the Senate more on any of those issues. But he did ask two questions which I think are important. He asked how you reflect on ‘just terms’ and ‘reasonable compensation’ and those issues. Whilst I am not a lawyer, the government would not bring legislation into this place that is unconstitutional. We know that it would not get the support of our own members.

Perhaps I should go to the particular question of reasonable compensation and just terms. I am advised that that these terms are interchangeable for legislative drafting. When I made the inquiry I was told that the requirement is an objective one enforceable in the courts and is not left to the discretion of an official. By ‘an official’ I mean any legal authority. This formulation has been accepted by the courts and in particular was approved by the full bench of the Federal Court in the Minister for Primary Industry and Energy v Davey, which held that reasonable compensation fulfilled the requirement to pay just terms. While I am sure that you have had some legal advice that this is unconstitutional and this is a ‘hall of injustice’, Senator Brown, the facts of the matter are that we have checked this and ensured that this is not unconstitutional.

With regard to a couple of Senator Brown’s other throwaway comments, because we like to ensure that those who are listening remain outraged by your opposition to the fact that we are trying to help, remember that the background to this—and I know that Senator Brown perhaps failed to pass the background on—is that this is not compensation on just terms where we would own or take the land. This is a very unique circumstance. We will not own the land. We are not taking the land away. We are simply ensuring the governance arrangements for the swift provision of housing and infrastructure. We have specifically said that after five years, which is the general intent, we will have completed the job and the land will be automatically returned. It would need no act of parliament as it is simply a sunset clause and the land would be returned. They are very different circumstances.

The reason that I said that I was heartened by the fact that the Northern Territory Valuer-General was involved is that he is not any ordinary valuer-general. In fact, the Valuer-General is not some assistant to some grubby real estate agent, as perhaps Senator Brown would have us think. His organisation is internationally acclaimed as an organisation that takes into consideration cultural issues. His organisation is on the cutting edge. It takes into consideration spiritual issues, cultural issues and sacred sites. Even between Indigenous cultures there has to be recognition of compensation for those things. The Northern Territory Valuer-General has vast experience in that—and probably unique experience, even internationally. I have a great deal of faith that the Valuer-General of the Northern Territory is probably the only place that you would have the sorts of issues that Senator Brown brought up taken into consideration.

This legislation has been carefully thought out. Senator Brown has the notion that this is something that is unconstitutional or somehow dispossessing people. He well knows that they still own the land. Let us take away for a moment the cloak of mischief that you place on the legislation currently before the Senate. We are not there to create mischief; we are there to help provide the rule of law and order. We will help to provide the ordinary amenities, services and houses that the rest of Australia takes for granted. I know that you wish to paint me and the government as usurpers or as being in there to dispossess land or to somehow do mischief to Indigenous Australians. But all Australians know—and they have carefully watched the interdiction process and are widely supportive of it—that there is no mischief intended by this; none whatsoever. I hope that that provides some clarity and specifically answers your question.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

In referring to the process that is being undertaken here, the senator introduced the word ‘mischief’ from deep in his own mind. Specifically in response to that effort to answer my questions—which ducked the central point of those questions—could he turn to clause 60(1), which says:

(b)      any act done in relation to the following land:

…            …            …

(ii)

land that has been resumed, or land in respect of which a lease has been forfeited, by the Commonwealth under the Special Purposes Leases Act or the Crown Lands Act …

The minister indicated that they were not going to do that; they are simply taking it over and are going to give it back. Why is there this clause, then, talking about land that has been resumed or in respect of which a lease has been forfeited? Clause 60(2) reads:

However, if the operation of this Part, or an act referred to in paragraph (1)(b) or (c), would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

What does that clause mean if the Commonwealth does not intend, as the clause says, to acquire property ‘from a person otherwise than on just terms’? What on earth is that clause doing in there if it is not meant as it is written? Can the minister answer that?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I have been informed that it means exactly what it says. As I said earlier, that is what it means: just terms or reasonable compensation.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The minister is totally caught out by this legislation and cannot give an answer. But I will tell you what the legislation says: it says that there are going to be acquisitions of land on unjust terms. Where that happens, what is now called a ‘reasonable amount of compensation’ will be afforded to the person. You cannot read it any other way. The minister is unable to answer. I am sorry for him; he has been put in this position by the people who wrote this legislation. But it means what it says. I have here the opinion of Mr Brian Walters, senior counsel, which I read from earlier. I seek leave for this opinion to be incorporated into the Hansard.

Leave granted.

The document read as follows—

Legislation concerning the “National Emergency Response” in the Northern Territory

I have been asked to consider the legislation introduced into the Commonwealth Parliament in relation to the so-called “national emergency response” in the Northern Territory.

Due to the very substantial size of the legislation, which comprises several Bills, and the complexity and novelty of its provisions, and the short notice available for its consideration, only a brief and provisional advice is currently possible.

I focus for the purpose of this advice on one aspect of the legislation: the compulsory acquisition of property.

Several provisions of the Bills (I will not list them all) provide for the acquisition by the Commonwealth of property. I do not propose to set out in this advice the extended meaning that concept has in the Australian Constitution. However, there are constitutional limits to the power of the Commonwealth to acquire property.

It seems to me, without going into the detail, which is voluminous, that several of the rights in question are properly to be characterised as property rights, and that the legislation purports to authorize the acquisition by the Commonwealth of those rights.

Section 122 of the Constitution provides:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit

Section 51 (xxxi) of the Constitution provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-

(xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:

In 1969 the High Court, in Teori Tau v Commonwealth, unanimously held that section 51(xxxi) did not fetter the plenary terms of section 122, and that no limitation applied to the Commonwealth’s power to acquire property in the Territories.

Almost 30 years later, in Newcrest Mining v Commonwealth the majority held that s 51(xxxi) provided a “constitutional guarantee” in relation to the acquisition of property, and that this applied in Territories as well as in the States.

After a detailed analysis, Gummow J held:

Neither the identification of s 122 as conferring “plenary power” nor the absence from the section of a phrase such as “subject to this Constitution” supplies the necessary contrary intention to displace what otherwise, upon a textual analysis of the Constitution as a whole, is the operation of the constitutional guarantee upon laws made for the government of the Northern Territory.

His Honour went on to consider the decision of the High Court in Teori Tau v Commonwealth.

Following a detailed critique of that decision, his Honour held:

Leave to reopen Teori Tau is sought by the appellants who are supported in this by the Northern Territory. Leave should be given. Teori Tau did not rest upon any principle carefully worked out in a succession of cases. Rather, it is contrary, at least as regards this tenor, to the reasoning which underlay Lamshed v Lake and Spratt v Hermes. Where the question at issue relates to an important provision of the Constitution which deals with individual rights, such as s 51(xxxi) or s 117, the “Court has a responsibility to set the matter right”. Ultimately, it is the Constitution itself which must provide the answer.

Reference has been made to Teori Tau in discussion in subsequent decisions of this Court of the scope of s 51(xxxi), but in contexts where neither its correctness nor its direct application was in issue. As I have indicated, Teori Tau does not appear to have been significantly acted upon by the Parliament or territorial legislatures. It did not represent a fully considered decision which was reached after full argument by both sides. It has been overtaken by subsequent developments.

Once leave be given, it follows that Teori Tau should no longer be treated as authority denying the operation of the constitutional guarantee in par (xxxi) in respect of laws passed in reliance upon the power conferred by s 122.

Gaudron and Kirby JJ agreed, and added their own reasons.

Toohey J did not see it necessary to overrule the decision in Teori Tau v Commonwealth (1969) but made clear that the Commonwealth did not have unfettered power to acquire property in the Territories:

Indeed, it seems almost inevitable that any acquisition of property by the Commonwealth will now attract the operation of s 51(xxxi) because it will be in pursuit of a purpose in respect of which the Parliament has power to make laws, even that acquisition takes place within a Territory. It will only be if a law can be truly characterised as a law for the government of a Territory, not in any way answering the description in par (xxxi), that Teori Tau will constitute such an obstacle. And that is an unlikely situation on the view I take of the operation of the paragraph. If that be right, any implications overruling Teori Tau would have would likely be for the past rather than the future.

More recently, in a judgment of the Full High Court in Bennett v Commonwealth (a case concerning the franchise in Norfolk Island) Kirby J made reference to these cases. His Honour held:

The grant in s 122 is not expressed as a “power” to make laws “with respect to “ particular and specified subject matters. Instead, the subject of permissible law-making is nothing less than “laws for the government of any territory”. Because of its language and purpose, the width of that power has been repeatedly described as very broad. Thus in Teori Tau v The Commonwealth, which survived a challenge to its authority in Newcrest Mining (WA) Ltd v The Commonwealth, the whole Court said:

“Section 122 of the Constitution of the Commonwealth of Australia is the source of power to make laws for the government of the territories of the Commonwealth. In terms, it is general and unqualified ... The grant of legislative power by s 122 is plenary in quality and unlimited and unqualified in point of subject matter. ”

These words have been repeated many times.

In Bennett Callinan J also referred to these cases, but did not express a view on them. No other judge found it necessary to refer to Teori Tau or Newcrest.

It is true that Teori Tau was not expressly overruled by Newcrest, but nevertheless the majority clearly upheld the principle that s 122 was subject to the provisions of s 51(xxxi). Nothing that either Kirby J or Callinan J said in Bennett is to the contrary effect.

No subsequent decision of the High Court has doubted or overruled Newcrest.

Accordingly, as the law currently stands, acquisition of property by the Commonwealth in the Northern Territory must be on “just terms”.

Although some provisions in the legislation do require acquisition of property on “just terms”, several provisions in the legislation refer to the acquisition of property but subject to the payment of “a reasonable amount of compensation”, as distinct from “just terms”.

For example, proposed subsection 60(2) of the Emergency Response Bill, dealing with the acquisition of leases, states:

However, the operation of this Part, or an act referred to in paragraph (1)(b) or (c), would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

No substantial guidance is contained in the legislation in respect of what is “reasonable” compensation.

In some cases there is limited guidance, but this is quite confused. For example, clause 61 of the Bill requires the court to take into account certain things in determining a reasonable amount of compensation payable in relation to land - including rent paid by the Commonwealth, amounts of compensation paid under the Special Purposes Leases Act or the Crown Lands Act and any improvements to the land funded by the Commonwealth, including improvements to buildings or infrastructure. However, when the Valuer-General is to determine what is a reasonable amount of rent to be paid by the Commonwealth the Valuer-General must not take into account the value of any improvements in the land (clause 62(4)).

In public statements, the Minister has referred to “in kind” compensation, including by way of education grants, and renovation to buildings. This novel concept is quite distinct from what has normally been regarded as “just terms”, but whether or not it would be considered “just terms” must depend on the content, which at present is not clearly set out in the legislation.

A litigant challenging the compensation in the courts would be confronted with the legislative term “a reasonable amount of compensation” but would not be able to call in aid “just terms”. In some cases, “a reasonable amount of compensation” probably would, in terms of content, amount to “just terms”, but much will depend on factual detail. For example, the provision of educational services—which normally are available to all Australians of learning age—is unlikely to be seen as something which satisfies the requirement of “just terms”. Native title rights are of particularly profound significance to the holders, and the acquisition of those rights—often over land of little commercial value—is unlikely to be on just terms if the compensation offered is the mere payment of the monetary value of the real estate, in circumstances where there is no viable real estate market for the land in question in any event.

Dixon J held in Grace Bros v Commonwealth that the inquiry as to whether “just terms” have been afforded should not be directed just to the question of whether the individual owner is placed in a situation in which in all respects he will be as well off as if the acquisition had not taken place.

The inquiry must rather be whether the law amounts to a true attempt to provide fair and just standards of compensating or rehabilitating the individual considered as an owner of property, fair and just as between him and the government of the country. I say “the individual” because what is just as between the Commonwealth and a State, two Governments, may depend on special considerations not applicable to an individual.

In Georgiadis Brennan J held:

In determining the issue of just terms, the court does not attempt a balancing of interests of the dispossessed owner against the interests of the community at large. The purpose of the guarantee o f just terms is to ensure that the owners of property compulsorily acquired by government presumably in the interests of the community at large are not required to sacrifice their property for less than its worth. Unless it is shown that what is gained is full compensation for what is lost, the terms cannot be found to be just.

The present legislation in some places uses the expression “just terms”, but in other places, in contradistinction to that expression, deliberately chooses to use the term “a reasonable amount of compensation” rather than “just terms”. This evinces a drafting intention to provide protection other than the constitutional guarantee of “just terms”.

In my opinion the legislation purports to authorize the acquisition of property on terms other than the “constitutional guarantee” of just terms.

In those circumstances, the courts would not have a role of correcting the legislation by inserting just terms. Rather, the legislation purporting to authorise the acquisition of the property would be struck down as void.

In my opinion all of the provisions in the legislation providing for acquisition of property other than on “just terms” would be struck down as void ab initio if they were enacted into law in their present form.

I thank the Senate. That will save me from going further into the matter. But let me say that the intention of this clause is to take land under unjust circumstances. The minister says—quite rightly—that down at the bottom of the clause it says:

If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth—

not of just terms compensation but—

of such reasonable amount of compensation as the court determines.

What you have here is an admission that it is going to end up in the courts. But what it says is that all the power and the might of the Commonwealth will take away the constitutional right of Indigenous people by appropriating property in unjust terms and that the Indigenous people will have to take court action to restore their rights and to have their constitutional guarantee of compensation in just terms put in place. What a deplorable process that is.

Parliaments are required, obliged and—you will know this, Mr Temporary Chairman—honour bound, to write legislation which is in accordance with the Constitution and which does not try to get around it, change it, defraud it or degrade it. But that is what is happening here. Of course, there will be long, expensive, heart-rending efforts by people to get just terms, as under the Constitution. Ultimately, one would hope that the court would understand the complexities of appropriating land owned in communal bond by Indigenous communities in the Territory. What a terrible thing that this legislation says to them: ‘We’re coming to take your land. We’ll give you what we think is reasonable recompense and then you have to fight to get your constitutional rights.’ Can the minister cite any piece of legislation which does that to non-Indigenous Australians?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

There are a couple of issues, again. I now completely understand the question, and the answer goes to the answer that I have already provided. Partly in answer to your last question: with the process that is laid down here for finding an alternative to ‘just terms’, there has to be a trigger. If you cannot come to an agreement on ‘just terms’, what do you do? You then go to the independent judicial system that we have and go down that path. It is consistent with, for example, the Customs Act; the same words are used. This is just a red herring.

You are trying to assert that ‘reasonable compensation’ suddenly means something different from ‘just terms’. I refer you to my earlier submission on that: in terms of drafting, they are interchangeable. I have cited a specific case of precedent under which this was ascertained. There has to be a process. Can you imagine circumstances where we would say: ‘We’re going to acquire this on just terms and we will not have a trigger system. We will not have a fallback position, so, if a negotiated circumstance is not able to be arrived at, we will have no circumstances under which people will be able to exercise their rights’? Of course we have to, which is why we have relied on the judicial system. I suppose we can continue to fool around with words but, at the end of the day, if it is an acquisition under our Constitution it will be paid on just terms.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The minister’s explanation just begs the question: why not just make it ‘just terms’ and satisfy us? Why do you not just say: ‘We’ve heard your legal opinion, we’ve heard the concern of Indigenous people, we’ve heard the concern of senators and we think the terms are interchangeable. Why don’t we just interchange them?’ Labor has an amendment which seeks to interchange them, so there is no problem. I expect you to vote for it. Given there is serious concern in the Indigenous community that somehow their compensation will be undermined or the capacity to gain compensation will be undermined by this particular phrase in the bill, why do you not just listen to those concerns and provide the reassurance by using the term which you say is interchangeable? If your answer is correct and that is the extent of it, then you should have no problem. You would be happy to say: ‘Senator Brown, Senator Evans, we are happy to help. We will make you feel more at ease. We will make all those Indigenous people who worry about this more at ease and we’ll interchange it. There is no problem because it does not make any difference.’

But if that is not the case, you have not told us why it is different and what the impact will be on people who have a property right, acquired by you the government, and why you choose to use this term. I, like the bloke in The Castle, do not have a great legal understanding of what ‘just terms compensation’ means, but I know that you are taking away Indigenous people’s ownership or enjoyment of that property right for a period. They are entitled, under the Constitution, to just terms compensation, putting aside the arcane legal argument about whether it applies in the Northern Territory—and I do not want to go there; I am way out of my depth on that constitutional argument. But if you are so convinced and are able to so reassure us that there is no difference and that the terms are interchangeable, then why do we not go with a term that everyone else has understood and which has been in other legislation for years? That would provide the level of reassurance to the chamber that you say we ought to have anyway.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

As I have already stated, whilst I, like the Leader of the Opposition in the Senate, am not a lawyer, from time to time we have to rely on legislative draftspeople. This particular aspect of those two words has been strongly considered over some time. The Commonwealth believes that this is the way that the drafting process should work—and there is extensive precedent, particularly in the OIPC legislation—and that this is the standard way that this type of legislation is drafted. I have been advised that you can also find these words in other legislation. The reason that they use these words is that they are well understood by the courts, and this has become the pro forma for how we do this. It has been tested and it is the best way to reflect exactly what we wish. It is not just a matter of turning something around. The advice was that that was part of the discussion process to arrive at this circumstance. Certainly, they have said, ‘Not only do they enjoy a similar role, when we stuck to the legislation in another matter, precedent decided that we were in fact correct.’ I am simply taking the advice of the legislative draftspeople: this is the standard procedure and this is the wording that should be used, simply because the courts understand it, and if the trigger is that it goes to the courts then they will be able to deal with that. That is the advice I have. We take advice from the legislative drafting people, as you well know. They give very good advice, they are very experienced in these matters and the advice I have is that the courts understand this matter very well and this is in fact the standard drafting process of this sort of legislation.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I understand, perhaps better than the minister, because I am more experienced than the minister in this, that the drafting people try their best to produce legislation according to the instructions of the government of the day. It is not something that just comes out of drafting people in some back room. They get instructions from the government of the day as to the outcome that is required, and that is the problem here.

The indecent thing behind all this is that Indigenous people are having their land taken off them in a way which requires compensation, and that is what this section of the legislation is about. If the government were in a mood to be just about that and felt that the need to do that was compelling—and we have heard no argument here at all as to why taking land off Indigenous people is going to protect the children in the way that Mr Brough or the Prime Minister, Mr Howard, would have it—then why isn’t there a description of the values that ought to be taken into account in the just terms arrangements, including the Indigenous values that we are honour bound to respect in this situation? They are swept aside as if they do not exist—well, they do not exist in this legislation. The minister says there is a provision in the Customs Act that is similar to this. Nobody’s land is being taken away in the Customs Act, I can assure you—certainly no land with which people have had a relationship for thousands of years, which is their spiritual heartspring, their ancestral land. There has never before been anything in legislation that is like this. Land has been taken in Australia from Indigenous people. That is part of their history that has led to the horrendous circumstances we know about that are part of the reason we are dealing with this legislation here tonight. But this legislation is compounding that.

Senator Evans is quite right, and Senator Siewert has made the same point, that you do not need to use terms other than ‘just terms’ in here—but you have, quite clearly, because this phrase is in the legislation:

... an acquisition of property to which ... the Constitution applies from a person otherwise than on just terms ...

So it is contemplated that it is not going to be just terms. It says so in the government’s legislation, for goodness sake. There is not going to be an answer out of this. Do you know why? Because the government and the Prime Minister, in their arrogance and disdain, and in the racism that is written right through this legislation, say: ‘Oh, they can go to court. We’ll use the might and power of this government to take from them, and they can go to court and see what they can get back on that.’ We know the trauma that that will cause. We move the balance here off their land—Indigenous people’s land—and put it into our courts. What a dreadful thing to be writing into legislation and asking this Senate to pass. But there it is, and the Prime Minister has got the numbers. This chamber is being used as a rubber stamp, despite the entreaties in today’s paper from Indigenous people not to do that, but that is the morality of this government.

It just needs to be said again that the outcome the government wishes, to protect the children, could be done without all this. But, no, there are other agendas at play here. This is unjust. It is unconstitutional. I would have thought we would never see a piece of legislation like this in the 21st century in the Australian parliament, but here it is. We will live to regret it. The government will live to regret it.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I am still at a loss to understand why the government refuses to accept the ‘just terms compensation’ phrasing which it accepts in a whole range of other legislation. The Minister for Community Services says to me, ‘Oh, well, the phrase we are now using—reasonable compensation—has been the subject of legal decision making.’ I can counter by saying the ‘just terms compensation’ phrase has been subject to High Court decisions for years, so there is no suggestion that that phrase is somehow not well-established or has not been refined by the High Court. As the minister knows, there is a great deal of cynicism among many in the community about the government’s motives for including these land acquisition proposals in what is supposed to be a child protection measure. Labor accepted on face value the bona fides of the government in saying that we need these acquisitions to make the adjustments to housing and infrastructure that will allow us to address the underlying issues, which are effectively of poverty, that beset those communities. But, if these terms are interchangeable, why can’t you provide the reassurance of using the term that, from the evidence I have seen, is much more broadly understood in the community and among the legal community—that of ‘just terms compensation’?

There is cynicism about your motives. There is concern that proper compensation will not necessarily be paid. If the terms are interchangeable there should be no problem with the government accepting the well-established legal term ‘just terms compensation’. You defend your position, Minister, on the basis that ‘this is what the draftsman likes’. Well, bully for the draftsman! This is about what the parliament likes. This is about whether the parliament is reassured. The draftsman, as Senator Brown indicated, receives instructions from the government, and the government tick-tacks with them about how the legislation is drafted. If you want to table the advice from your draftsman that says there is a problem with ‘just terms compensation’ I would be happy to see it. But this parliament and senators in this parliament are very concerned that you do not seem to have any particular legal argument that says ‘just terms compensation’ has to be replaced by the term that, I concede, is in the Customs Act.

Again, I do not particularly care whether it is in the Customs Act. I do not particularly care what the draftsman does or does not like. What I know is that the legal advice Senator Brown has received and the submission from the Law Council raise concerns about the approach you are adopting. We are concerned that the terms are not interchangeable. The Law Council expressed the view in their submission that the drafting of the bill may shield the Commonwealth from a requirement to pay compensation. Their submission said:

The Law Council notes that the legislation appears to shield the Commonwealth from its obligation to compensate the relevant Land Trust or pay rent, in circumstances where a lease is issued under section 31.

So if the Law Council and Senator Brown’s legal opinion from Mr Walters both raise concerns, it seems to me that it is not unreasonable for the Senate to share those concerns. If you are really interested in building support more broadly for these propositions and if you are really interested in reassuring people about your motives it seems to me that you could support the amendment that replaces the term ‘reasonable compensation’ with the more broadly understood ‘just terms compensation’. While you refuse to do so people will be confirmed in their doubts and concerns. If, as you said to this place, those terms are interchangeable and there is no difference, why not provide the reassurance that changing the term to ‘just terms compensation’ would provide for the Senate, the Law Council of Australia and a lot of Indigenous people who made submissions on the bills? If not for me or the Indigenous people, do it for the Law Council of Australia. Provide some reassurance that somehow the provision that you are proposing does not shield the Commonwealth from meeting its obligations for just terms compensation.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

All I can provide for you, Senator, is that when we asked for the outcome you indicated, we said, ‘We’d like to provide compensation on just terms.’ These are not just a bunch of dodgy drafting people. I have been informed that the modern use—probably over the last nine years—in all of the applications is the term that is referred to in front of you. I do not need to table advice. The advice is the exact words that are used in the legislation.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Chris Evans interjecting—

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

We have taken on the comments by the Law Council, and the advice that we have received is that that is not correct. The reason that the precedent I quoted exists is to put clarity behind that. This is the modern way of everybody who writes the legislation for this place. We may not have time to go through different pieces of legislation but I am assured that the reason for that is that it is the way the legislation is currently crafted in any of these matters—and has been for a number of years.

In relation to the terms used beforehand, I am not sure of the history of the change. When I first made a speech in here and reflected on what we were doing I used the words, ‘We will compensate on just terms.’ We have provided a precedent of a case—’What would happen if you put this word in here?’—and the court, which will be making any judgement on this matter, found that ‘reasonable compensation’ means that. I am sorry that I cannot go into the history of that but it is not just that in this case somebody said, ‘I know; we’ll use this term and not this one.’ This is the normal term which has been used for some time in drafting of this type.

The government have accepted the advice from the drafting people on this matter. This discussion has been had. It is not something that applies just to this; it has been used in all legislation for probably nine or 10 years. For those reasons the government accepted the advice of our legal section in this regard.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I would like to raise an issue that I do not think has been canvassed so far tonight, and that is the Prime Minister’s announcement about schools delivering meals and the provision of boarding schools. What happened to that announcement by the Prime Minister? Is it part of this bill and, if not, why not?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I can provide an answer to the first part of the question; I am just seeking advice on the question about breakfasts and lunches at schools. The boarding schools were provided for in the most recent budget; that is not part of an appropriation for this legislation. If you just give me two seconds I will find out the answer to the other aspect of the question. Perhaps I could take the second part of your question on notice, Senator Allison.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

Perhaps, Minister, you could enlighten us about the boarding schools. When will the first be constructed? Where will it be? How many children will it provide for? Can you give the Senate some details on those boarding schools?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

We are currently engaged in discussions with a number of spatial groups in areas that we think may fit the bill. You may well be aware—and this is typical, I suppose—that we would be looking at building a boarding school on the Tiwi Islands. That would meet a spatial catchment of people who have difficulty because of the travel arrangements between Tiwi and Darwin, so they have had to go to school outside of that area. Clearly north-east Arnhem Land is a particular catchment, and we will be discussing the location of a school with the residents of that area. We will be looking at the notional application of a location on the basis of a catchment, on the basis of need and on the basis of the current location of boarding schools. Those negotiations and discussions are ongoing.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

What is the number of children to be accommodated?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

That will obviously depend very much on the catchment. The Tiwi Islands is pretty much a known population. I do not have, off the top of my head, the exact numbers that will be catered for, even for the boarding school that is well into development. I can take that on notice but I say again that there is no particular or prescriptive number of people that we are catering for. Clearly, different catchments will have different demographics. There will be larger or smaller amounts according to the forward estimates of the numbers of people who will be requiring those facilities. So I do not think we will be able to place some sort of particular prescription and say that each boarding school will have so many people. The boarding schools would be required to be flexible enough to reflect the existing facilities and boarding facilities in the region, and also the projected use of the boarding school. I am sure that will differ from area to area.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I would like to come back to the question of meals in schools. Why is it necessary for this to be a question taken on notice?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I did not know the answer when you asked the question but I do have the answer now, and it is a part of the appropriations. I can provide a little bit more information. I understand that early interest has come from Borroloola, from Weipa and, as I said, from north-east Arnhem Land, in the Nhulunbuy area, and discussions will soon commence in the Kununurra region.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

Are there details of how the school food programs will work? How much is going to be made available to each school? How is that to be organised? Will schools be obliged to serve meals whether they have the capability to do that or not? What will the funding cover? Will you be putting kitchens in schools? What are the arrangements?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

As I understand it, these are specifically for the schools in the prescribed communities. There are a number of very successful models in the Northern Territory. The primary school in Tennant Creek—and I know Senator Crossin would be across that one—has a particular model. Each model varies according to its resources, particularly the human resources that are available. They provide what I think is an excellent model for a breakfast and a lunch program. Will kitchens be built? It will all be about an assessment of the availability and capacity in each community. There will obviously need to be some level of amenity, and you will assess whether that amenity is there. If it is not, it will be provided. If it is, it will have to come up to a particular standard. It may well have to be adjusted for the number of children who are going to school, which we hope very much, as part of the interdiction, will increase. So we will need to ensure that the capacity is there for all those people who, we believe, should be going to the school.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

It does not seem like much of a plan. Is it just a sum of money and you have yet to figure out how you are going to distribute it, or is there something more by way of detail on how this works? Like you, Minister, I have been into many schools and I know that there are lots of models for providing schools. What is being proposed in this case? How soon will it be rolled out? How is the available funding going to be distributed? Will all schools be entitled to it or expected to do it? What exactly is the plan?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

We will be spending about $6.4 million. Parents will be expected to pay for the food itself, as in those other models. The salaries for the preparation of the food—and that will also be a function of how many meals are being prepared and how many salaries are required—will be paid for by the Commonwealth. The equipment used to prepare the meals will also be paid for by the Commonwealth. The amounts will differ as a function of the number of people we will be catering for.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Just one matter, Senator Allison—while it is part of the package, the bill that you are actually referring to at the moment is the Appropriation (Northern Territory National Emergency Response) Bill, whereas the Senate is really debating the Northern Territory National Emergency Response Bill.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I understand that, Chair. We were, as I understood it, asking general questions about what was in or out of the bill and this has developed into a more detailed discussion. I accept that.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Do you wish to pursue that or take it up later on when we discuss the detail of the bill?

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I just have one further question about how this program is going to be rolled out. Will the schools be making applications for the money? Will the Commonwealth determine how it is going to be spent? What is the next step in order to deliver on this program?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I understand that there is obviously some urgency in this. I will offer a more comprehensive briefing than I am able to give you here. In terms of the timing, there is a sense of immediacy. As part of the intervention we are ensuring that we will go and assess the schools. Some schools have quite a level of amenity; some have none. So we will make an assessment of the level of amenity. We will assess what level of amenity is needed and we will make up the difference. We will provide the salaries required against the assessment and the amount of equipment that is required to provide those meals to a standard. It is probably best for me to provide a more comprehensive briefing on exactly where we are up to in what communities, and we are more than happy to provide that.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It is as good a time as there will be for me to ask about Indigenous culture and languages. What is the government’s plan to vouchsafe Indigenous culture and languages? These are important. Our own culture and language is part of who we are and part of the essence of our pride in ourselves and the wherewithal to be fulfilled in life. There is very great concern about this move by the government, integrating Indigenous people into non-Indigenous culture in a way that sheds their Indigenous culture out behind them. That would be an absolute and cruel tragedy. The whole world is full of experiences where you do not do that, including in this country. We know that the government has defunded programs for Indigenous languages in the last year or two. What is the funding base and the plan in this comprehensive and quite historic move to skill Indigenous people to be able to have a more rewarding role in the Australia of the 21st century to ensure that the price isn’t the further loss of Aboriginal culture and languages?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

This process is about strengthening communities, strengthening families and strengthening culture. No part of this legislation says that we are going to take away culture or that we are going to take language away. I have not read any part of this legislation where I have seen that, nor has there been any indication that that would be the case. This is about providing safety and a better level of amenity for communities and families.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Exactly. I did not ask about where it says it is taking away culture—that is inherent. I am asking: where is it safeguarding culture and language in this legislation and in this program? We are talking about boarding schools. To come to boarding schools people move away from home, in most cases. Will there be facilities for the Indigenous language to thrive as well as English in those circumstances and, if so, how is that going to be provided? The same goes for the culture. I am not asking where this legislation says it is going to damage culture or language. I am saying that this enormous move is, by dint of the announcements made by the Prime Minister and the minister, one of reacculturation to have Indigenous people become integrated more into the prevailing and dominating Australian culture and to be schooled to take part in it. Where are the guarantees that that will not be at the cost of Indigenous language and culture, and where are the provisions for promoting language and culture in this legislation?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

As I have indicated already, this is something that was discussed in the budget, but I will answer the question. Perhaps you will have a word to Senator Crossin. There are a number of boarding schools that already do this. One of the fundamental tenets of being at the boarding schools is ‘both ways and cultures’. These boarding schools have been funded by the Commonwealth—almost every level of government has something to do with them—and they are not characterised by people losing their culture or losing their language. In fact, it is quite the opposite. One would assume that the very good model for boarding schools in the Northern Territory would be continued with the provision for boarding schools that was in the budget and not a part of the discussions on this legislation.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

In summary, we have very definitive legislation here for the taking of land, removal of permit systems and a whole range of other things, but when it comes to culture and language we can assume that there is nothing in here at all.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I want to change tack a little bit and go back to a question I asked earlier about the continuing appropriation of indefinite amounts in clause 63, on page 51. I have had a chance to look at the Scrutiny of Bills Alert Digest in the time since I first asked the question. I understand that the Scrutiny of Bills Committee normally table their reports on Wednesdays, but, in fact, they tabled this report yesterday specifically on these bills and it was sent under a covering letter to the minister in time for his consideration and response prior to debating this legislation today. My first question is: why is there not a response from the minister in relation to this Alert Digest? When I chaired that committee, and when the committee went out of its way to meet specifically and specially on certain legislation that was deemed to be highly important and to unprecedentedly table a report earlier than it normally does in a sitting week, it was customary, if not courteous, for the minister to at least respond prior to the second reading stage of the bill.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I am informed, Senator Crossin, that the minister received yesterday afternoon an embargoed copy of the report. I have been informed that he is examining closely those processes and, as is the convention, that he will respond to the chairman of the committee.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I want to clarify this. I think there is misunderstanding, perhaps, about what the Scrutiny of Bills Committee does. It highlights problems or deficiencies in legislation and usually alerts the minister in time for the minister to respond to or amend legislation accordingly. My experience, having chaired that committee, is that ministers usually take advice from the Scrutiny of Bills Committee very seriously, and it is not a matter of responding to that committee report like normal Senate committees. The response is usually by way of amending legislation or otherwise.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I understand the minister has scrutinised the report and will be responding, as I said, formally. He will be explaining why the government do not believe that any particular amendments to this legislation are required. The details of the reasoning behind that, I understand, will flow to the chairman of the committee in the usual way.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I seek some clarification on the comments in the Alert Digest that go to clause 63, the special standing appropriation. That clause makes a special appropriation out of consolidated revenue. The committee seeks the minister’s advice regarding why this special appropriation is considered necessary. I ask you now why you believe that this appropriation is considered necessary, whether any limit has been forecast as to the total amount of such an appropriation and why an explanation could not have been included in the explanatory memorandum on this provision.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Senator, I have already explained that this is paragraph 63—appropriation. We have already had a discussion about the fact that we are unable to provide a particular number or say how much it is going to be. That will be included in the appropriation bill that we are wanting to pass.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Why wasn’t that explanation included in the explanatory memorandum to this legislation?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

As I understand the convention, there is no explanatory memorandum for an appropriation bill. I know it has been confusing; we are trying to discuss in general terms all five bills.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I am not talking about the appropriation bill. I am talking about clause 63 of the NT emergency response bill. It has been my experience that the Scrutiny of Bills Committee regularly points out deficiencies in explanatory memoranda. I just want to add the comment that this is another area where the highly expert Scrutiny of Bills Committee has sought an explanation as to why the use of this special appropriation was not outlined in the explanatory memorandum.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

You are right, Senator; it should have been included in this. I provided the wrong information. It should have been included in the explanatory memorandum. That is the normal place it would be, if the government had decided that it required an explanation. I also understand that no explanation was provided.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

In another area of the legislation, on page 65, clause 86, I would like clarification on what is meant by ‘the wrongdoer’. Perhaps I could start my questions by seeking that first.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I am advised that, with ‘the wrongdoer’ having been highlighted in that way, there would be a definition attached to it in the normal place. I hope that is the case, and I will just ensure that it is.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

There is no definition of it in the definitions section of the bill, so perhaps you could provide me with a definition of it.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I am just getting some advice on that. Perhaps I could take that on notice. Clearly, with the process of having it in italics, that was the intent. I am sure someone will provide me with some advice on that in just a moment.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I certainly cannot see it in section 3 under definitions, unless you can point it out to me. Still concentrating on that clause, can I just get you to clarify this for me: a person who is merely suspected by the secretary of the department of having contravened a civil penalty provision is termed a wrongdoer, as I interpret it—you could tell me whether I am right or not—and that person is then obliged to produce information. Subclause 4 provides for an application for a Federal Court order to comply, but subclause 5 appears to make the wrongdoer subject to a penalty for failing to produce information, even in the absence of a Federal Court order. Can you explain to me why there is that inconsistency?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Again, if you can just give me a moment to consider that particular matter, I will get back to you. You may have another question for me.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I have a question on prohibited pornographic material. There appear to be significant seizure powers here on the part of police. What system will be employed? Will every household be systematically searched for pornographic material and will all that material be automatically seized and removed, or will people be invited to give it up? Will there be a process of them handing it in?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

As in all these matters, first of all we would start off with an education process to explain exactly what pornography is. Then we would ensure that people handed any such material over. The next process would be to examine whether people who had a video machine, a DVD machine or a computer had in fact handed over all the material that this legislation seeks to prohibit from those lands. So it would be a three-tiered process: firstly, the educational process; secondly, the voluntary hand-over of material, which is what would happen in this case; and, lastly, a search of areas to ensure that this sort of material did not exist.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Which bill are you referring to, Senator Allison? That would help us.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

The bill we are referring to at the present time—the emergency response bill; that is my understanding.

The Temporary Chairman:

If you could give us a reference to that, it would help.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I am looking at the explanatory memorandum—page 13. Perhaps the minister could indicate how this will work in practice. Will all these three stages take place within a couple of days? Also, can you tell us what the education process is? Are people going to be given leaflets or brought together in the nearest hall? What form will that education take? I notice that there is provision for appeal and request for seized materials to be returned. Is there a warrant required before police officers can go into households and search if they suspect that all of the pornographic material has not been handed up?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Again, the important part is to ensure there is an educational process. Exactly how that will take shape, I will have to take on notice. But I am informed that it will be as any educational process would be. There would be a whole suite of ways you would help and assist the community to understand what our intent is. That would be done through a variety of ways. It is normally a suite of either media or interaction. One would imagine that in these communities most of the time it would involve public forums. So there would be networking and interaction of individuals who had a better understanding, who would be able to talk to other members of the community. There is a whole suite of consultation processes that take place quite often in these communities, and we would be utilising those processes.

In terms of what would happen at the end of that, it is simply unlawful to be in possession of a certain classification of pornography. That is a matter for the police, and the police will have to behave lawfully in that matter. When the police are ensuring that there is no pornography in the community, it will be in the same way as if there was alcohol in the community. It is a matter for the police. The police have processes of investigation—people will tell them, and they have processes of networking. It is the same way that police would operate in any criminal matter.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

What evidence does the government have about the knowledge or lack of it within Aboriginal communities about what pornography is?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I am sorry, Senator, could you repeat the question?

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

In order to embark on an education program, and presumably you have a reason for doing that, the assumption must be that you need to educate people about what pornography is because they do not know. Is that the conclusion you have reached on the basis of research that has been done in communities? Minister, you also did not answer my question about how this will be done—whether it will be township by township; whether it will be a process over three months, two days or three hours—and how this is going to be dealt with in terms of the time frame and the process.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

It will be dealt with township by township. The reason for the education is not that we want to describe what pornography is; it is simply about having a clear understanding of exactly what the legislation says you can and cannot have—for example, what the penalties are and the whole process of introducing new legislation. That would be done at the same time as having a clear understanding about alcohol and other prohibited substances under the act. It would be an educational provision. But it is not only about saying, ‘So, you understand what pornography is.’ That is not the intent. It would be a discussion about what were the prohibited items so that everybody would have a clear understanding of what was a prohibited item and what was not. That would be the clear intent of the educational process. As I have indicated, it would be done township by township. There are some townships, for example, that we have not gone into yet; and there are some townships that would require, simply because of our knowledge of the assessment, an interdiction later in the piece than those with a much higher level of requirement. We will rolling them out as a matter of priority, but it will also be in the context that some communities are extremely dysfunctional and the people in those communities are at a higher level of risk than those in the other communities that have been assessed. We will be doing it in terms of the priority of protecting those townships that have been assessed as being most at risk.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Crossin, coming back to your theme?

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I am waiting for a response to my question about section 86. But can I ask a question to follow up from Senator Allison’s. If you actually read the Anderson-Wild report, you will see that their concern is not the level of pornography; their concern is access to Austar, and adult channels which are available on Austar, and the fact that they are on day and night and there is no understanding or appreciation from adults that it might be a channel that you should only access after kids have gone to bed or they are not around. Quite clearly, I do not believe you can prohibit people from purchasing those channels on Austar. So, in the government’s attempt to get on top of this in communities, what focus will there be on educating people or focusing people’s attention on the access to Austar that they currently get? My understanding when I go to communities is that it is not actually pornography that is sent into communities that is very explicit that children are being exposed to; it is just the average viewing that you would see on adult channels on Austar that is being made available during the afternoon and early evening. What are you planning to do to get on top of that problem?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

Since our intervention I think many of the reports have validated that there is explicit pornography in those communities, and I think substantially we have dealt with that. We are currently discussing ways of ensuring that there are some adult channels that you can purchase at the moment that you will not be able to purchase. We are having discussions with the providers of those services, to look at ways that we can have more control of that. We are in a discussion process at the moment. The current provisions are for specifically classified pornography. It is quite a clear classification. As I understand it, those channels, whilst they may well be harmful—and we understand that may be the case—are not the intention under the existing provisions. But we are looking very carefully at ensuring that we do have provisions, community by community, to ensure that there is some capacity to ensure that they cannot be delivered in certain areas, should that assessment be made. We are in the middle of discussions on that particular issue.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Will the government try and convince providers of those channels to only make them available at certain hours of the day?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I am not sure whether that is part of the discussion, but I will ensure that we pass it on. On the original question of the wrongdoer, I understand that the term is simply used to refer to the person who, it appears, may have contravened a civil penalty, and there is no express definition. That is the intent of wrongdoer. In terms of a discrepancy, I am advised that there are two matters. In the first matter, if a person is not a wrongdoer and is requested to give information and they do not give information then it is an offence, and, in the second matter, a person can be compelled by a court to give information.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I have two questions. I acknowledge that Senator Scullion is what I would consider a good friend but, nonetheless, this is the committee stage, so I will ask the questions. That is what we on the side of conservative politics do: we believe in the integrity of the Senate and ask questions. Can you please tell me what the consultation process has been with the Indigenous community in its present form and what is the intended consultation process with the Indigenous community into the future? I will leave the next question. The first question is on the consultation process with the Indigenous community, because I know there is a discrepancy. I know Warren Mundine is completely on side with us and believes it is a good program, but there are people who have every right to and have been lobbying the Senate in their belief that the consultation process has not been adequate. Can you please comment on that?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I thank Senator Joyce for the question. We have been over some of these questions, but for the benefit of the senator I will go over the two aspects. The first is the present consultation. I think you were referring not to consultation right now but to the consultation leading up to the interdiction. I understand what you are asking. There was a large process of consultation that, as a consequence of a whole range of government inquiries over many years, was effective. Senator Heffernan was referring to a substantive report he chaired on the matter some years ago. We could all recognise that this has been an issue for a number of years and, in the media, this government has been roundly criticised for what it has done in 11 years.

In relation to the consultation and recognition of the crisis of child abuse that is occurring in some Indigenous communities, the Little children are sacred report indicated very clearly that the sexual abuse of children was not only happening but happening across a whole range of communities and was largely underreported. When we have gone into the communities, we have been welcomed. As we move into the communities, we are providing an education package to ensure that people understand exactly what we are trying to achieve and to explain what the legislative changes will mean to them, including particular aspects of the requirements—it might be alcohol or pornography; it might be a whole range of things. It is very important that the intervention teams have a good network and are able to communicate to the communities what their roles are and exactly what is going to happen. This has been happening and, I have to say, I am very heartened by the reports back from the intervention teams that they have been very welcomed in the communities.

For the future, for all the changes in the community, we now know that we have to have an education package that is consistent with every aspect of the interdiction. As people become more aware of the interdiction, we will have a sharper package and we will have a package that, I suspect, becomes more and more effective. At the moment, every aspect of the package that we are rolling out comes with an education system, ensuring that everybody in the community understands what we are on about and particularly understands some technical aspects of the law in what we are trying to achieve. They can then have an understanding, for example, of what the 1,350 millilitres of alcohol means. It is very important that we can explain it in ways that people understand. We can talk about personal penalty points, but we have to explain exactly what that means, so part of the role of the intervention team is an education role. We have been rolling that out and it is a fundamental plank of the intervention. We will continue to ensure that people are as completely informed of the intervention as they can be.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Thank you very much and I appreciate your answer, Senator. My second question is about pornography. This is obvious but needs to be restated because there are some minor queries brought by some. Why do you believe that pornography has a detrimental affect on the kids who are exposed to it? I am stating for the record that I have clear beliefs about how it affects them and why it is detrimental, but I think it is very important to get on the record why we have made a specific statement against pornography and are getting it out of these communities.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

A particular concern in respect of this tragedy, in my view—and in the view of those who have read many of the reports or who have been associated with the communities—is the very young age of some of the offenders. That is a fundamental concern for me. I wonder how people thought that this behaviour could be normal—that children of 11 and 12 years of age could be perpetrators. It is a difficult area to even understand, let alone talk about, but some of the experts say that the use of pornography grooms young people—that, if they are exposed to explicit pornography, it is perhaps seen as a function of a normal physical relationship. If young people see that as being the norm—as something people do all the time—it is a great problem.

There has been much documentation on the impact of pornography on young people. As Senator Crossin pointed out, it is not so much that it is explicit pornography but the fact that it is available to such young people. We have laws in this country that prohibit young people from accessing pornography and laws that prohibit the showing of pornography to them. The laws in respect of protecting people from pornography are often related to age. These circumstances are no different. I think the nature of the isolation of the communities and the length of time that people in some of these communities are exposed to television put them at an even higher risk. That is why removing pornography is a fundamental part of the intervention. Pornography is a very negative aspect of their lives and, as with alcohol, we need to remove pornography whilst we provide some normalisation to the community.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

My final question goes to the issues that have been so clearly pointed out by you and your department with regard to Indigenous children in the Territory. Do you believe these issues are also prevalent in the states? If so, how do we deal with that? Should we explicitly concentrate on children in a certain part of Australia when the same maladies are present for other children of other races and Indigenous children in other parts of our nation?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

There are reports from the Northern Territory and also in a general sense that indicate that there are alarming trends. Many of the communities that are found outside the Northern Territory have the same demographics—the circumstances of the communities are exactly the same, and I am quite sure that drawing a political line would not change the behaviour of any demographic. I cannot provide you with any evidentiary, scientific process but I do not believe that political borders on a map would differentiate anything. I think it is important that the states and territories provide law and order. This legislation is about intervening to prevent current criminal behaviour. States and territories that enjoy large populations of Indigenous people, particularly in remote communities, should look very carefully at the leadership that has been shown by this government. I am sure that the Commonwealth government would be more than happy to work with any other state and territory should they need assistance with a similar intervention. The government has a great deal of experience in these matters. One would hope that the states and territories that have communities of a similar demographic would move swiftly to ensure that those communities get the same level of safety that those in the Northern Territory communities will shortly enjoy.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I would like to move to the aspect of this legislation that relates to the extraordinary powers over Aboriginal lands that the emergency bill will provide to the minister. Those powers do seem quite extraordinary. They give the minister the ability to terminate any right, title or other interest in the land at any time. The Commonwealth can sublease and license their interest in the land. The minister can amend through regulation certain provisions of Commonwealth laws as they apply to land the government holds under this act. The Law Council calls these provisions ‘Henry VIII clauses’. They give the government the power to exclude anyone from the land—and I would like the minister to confirm that—including the people who live there, which is quite extraordinary. I would therefore like to ask a couple of questions. As I understand it, the reason that the government wants to amend the permit system is so that Aboriginal communities cannot exclude people from the communities, yet the government wants that same power for itself. What sorts of laws does the government envisage that the Commonwealth would be able to exclude itself from applying on lands that it will be administrating under this bill?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

The answer to your question is that these extraordinary powers are there to cope with an extraordinary situation in the Northern Territory. With regard to the circumstances that were there prior to the intervention, the Northern Territory government failed to provide law and order. Perhaps that was a circumstance of their legislation. We are not sure of this, but we suspect it was probably more resource driven and that there was no mischief about it as it happened for a long time over different governments. These extraordinary powers are necessary to deal with an extraordinary situation. In terms of the capacity for the minister to exclude a particular person, it is recognised that there may be somebody who should be expelled from the community—for example, a recidivist smuggler or a paedophile. It may seem inconsistent with our moves in respect of the permit system but the permit system is too broad a footprint and with it come a lot of disincentives for business and for tourism. I am sure you will cross-examine me about all those issues when we get to them but this is simply a power that is provided to the minister to exercise over a particular person. Fundamentally, these powers that are provided to the minister are there to protect the children. That is what we are about. So the purpose of the power of the minister to exclude a particular person is to ensure that children are further protected by not having that person in the community.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

With respect to the removal of the permit system, you were just talking about allowing business and tourism in. You have previously argued that it could not be used to address child abuse but, if I understand your comments correctly, you essentially want the same powers to address child abuse.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I realise that there is no question there, but I would just say that the permit system was used time and time again to say, ‘We don’t need police and we don’t need the rule of law and order; we’ve got this permit system and it protects us.’ Senator, as you would know, the permit system has not protected those communities. All the communities that are mentioned in the report were supposed to be protected by the permit system—and it simply has not been enough.

We are saying that we need to replace that notional protection with real protection—the rule of law and order—and police officers, so people feel happy, comfortable and free to be able to report inappropriate behaviour or inappropriate people, knowing that there will not be some sort of payback, bullying or those sorts of behaviours. You do not need the permit system when you have the rule of law and order. The other thing is that there are benefits in having an open community. There are not only the obvious benefits that come from tourism, business and the opportunities of an economy but also the benefits that come from job opportunities. When we lift the permit system, it will only be from the road into the community and a specific discrete area of the township itself. As you would be aware, the permit system applies in all other areas.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I want to return to addressing the permit system later. I realise that we will be getting into that issue under some of the amendments, so I will leave that for the time being. I would like to follow up on the question I asked earlier on what operations of Commonwealth laws the government envisages will be potentially excluded under regulation from applying to the lands that the Commonwealth controls. Let me give you a specific example. Would, for example, the Environment Protection and Biodiversity Conservation Act be excluded?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I understand that this is a general power and, as such, the consideration of what it would exclude or otherwise has not been considered. But at this stage it is not envisaged that it would say that the Environment Protection and Biodiversity Conservation Act would be void. That is not a specific yes or no answer to your question, but that has certainly not been envisaged as part of the intent.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

To a certain extent, you have hit the nail on the head, Minister. Another area of concern for us is that it is general. It is not specific and it is left wide open for a number of pieces of legislation to be excluded. The Environment Protection and Biodiversity Conservation Act is just one example that is causing concern in the community—and it is certainly causing concern for the Greens. So I ask why it is not specific. Why is it so wide open? What guarantee does the community have that the power will not be abused—maybe not by this minister but by a future minister? I am not casting aspersions on any particular minister; I am just saying that the provision is there and, because it is such an extraordinary power, it could be abused in the future.

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

I suspect, Senator, that that is why the particular provision, being such a broad-ranging power, is done by regulation and therefore is disallowable in this place.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

How many regulations have been disallowed since the coalition has controlled the Senate?

Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Link to this | Hansard source

We do not control the Senate; we have a certain number of senators—as do others. Senator, I do not have the answer to your question. Since I have been here, I think there may have been one. I think that probably reflects more on the responsible attitude of this particular government than any incapacity of somebody to disallow a motion. This is a regulation. It could have been done in another way. I believe it reflects your concerns. It is a broad-ranging power and, as such, should be disallowable in this place and the issues should be able to be brought back before the Senate.

Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I move opposition amendment (1) on sheet 5352:

• (1)             Page 9 (after line 14), after clause 5, insert:

5A  Review of operation etc. of Part 4

                 The Minister must cause to be conducted, as soon as practicable after the first anniversary of the day on which this Act receives the Royal Assent, a review of the operation and effectiveness of Part 4 (Acquisition of rights, titles and interests in land).

This amendment seeks to provide a review of the operation of part 4. This amendment requires that:

The Minister must cause to be conducted, as soon as practicable after the first anniversary of the day on which this Act receives the Royal Assent, a review of the operation and effectiveness of Part 4 (Acquisition of rights, titles and interests in land).

The bill has some provisions for sunset clauses et cetera but no formal provision for a review of the impact of the legislation. I notice that the Democrats have a similar amendment, more broadly expressed, which I think comes up as the next amendment. But the intent of our amendments is really the same, and that is to ensure that a formal review of the act takes place one year after the commencement of the act. Our amendment only seeks to review part 4—the sections dealing with the acquisition of rights, titles and interests in land. This is principally the section that gives the new five-year leases over township areas but also includes the town camps. The government’s argument for these provisions is that they need these leases to provide better housing and infrastructure. They are effectively taking on the responsibilities of the town landlord in an endeavour to quickly improve the vital infrastructure in these communities necessary for better housing and improved economic development. Labor supports the attempt to deal with what are effectively the underlying causes of poverty in these communities. It has been our view for a long time that housing is at the core of Indigenous disadvantage. It has impacts on health, on violence, on all aspects of life. If you are living in housing with 18 or 20 other people then that is fundamental to all the other aspects of your life, including health and educational disadvantage, and leaves people more prone to the issues of domestic violence and child abuse. I have always accepted that housing is central to resolving the terrible issues of poverty that affect many of these communities.

There is a great deal of distrust about these measures in many Indigenous communities and particularly among the Indigenous leadership. They are concerned about why these leases are necessary. Their argument has been that the government can provide housing and infrastructure without needing to take control of the leases and they argue that there are other provisions that could allow this to occur. We heard the minister talking before about the need to act more quickly, that he has been frustrated by consultation and that the government believes that the lease arrangements are necessary to be able to drive the investment in infrastructure. I am a bit concerned that the funding for housing does not seem to be specified, and that is something we will come to later. We support the need to make serious investments in infrastructure and housing and the need to take action to resolve those things and to provide better opportunities. You cannot provide security for children if they are living in houses where there are 18 or 20 people to a two- or three-bedroom house. The whole nature of that living arrangement puts those children at risk. There are questions not only of violence and sexual abuse but also of health.

I mentioned in my speech in the second reading debate the issue of disease brought about by those cramped living conditions and often failing sanitary provision. Just imagine 20 people using the same toilet. Domestic bathrooms are not designed to deal with that number of people. All of those things are central to people’s lives, and housing is at the core of many of the issues we are seeking to address.

There is concern about whether these measures will be effective in addressing the issues of child abuse and that is the basis for the package. People say, ‘Well, if you are interested in child abuse what has acquiring land got to do with that?’ The connection is not nearly as obvious as police, pornography and measures to tackle those things. It is not unreasonable for people to say, ‘Explain to me what the link is and explain to me why this has to occur.’ People want some reassurance on those matters. One of the things that is most important is that action on Indigenous affairs is based on evidence and not on ideology. While the government and others often accuse Labor of being driven by ideological obsessions, there is some suggestion that perhaps a sort of anti-self-determination flavour to government action has been driving a lot of the approach of government. I listened to some of the second reading debate speeches and there seemed to be a bit of an ideological tinge to some of the addresses by government members, which concerns me.

But basically Labor support an evidence based approach. We are going to take very serious measures here. Let us quickly assess the evidence on whether it is working or not. What we learned from the COAG trials was that there was not enough focus on the evidence, there was not enough accountability, the program rolled on without people looking at whether it was meeting the objectives and action was not taken to ensure those objectives were being met, so we did not get results. We think that by moving for a review after a year we can look at what is occurring, whether the objectives of the intervention are being met and, if not, what steps have to be taken to correct those. It holds us accountable. We are taking measures to intervene. We ought to be held accountable for whether those measures are working and whether or not they are delivering what we say they are going to deliver. Labor takes that very seriously. We are taking a very big step. We are making a huge intervention in people’s lives and communities. We think it is for good reason, but we have to test whether or not that intervention has worked, whether or not we can do things better or differently and we have to assess whether there are unintended consequences. This stuff has been done in a rush. The legislation is going through in a rush. I would like to think we will get it perfect but we will not. We know we will not get it perfect. I hope the minister does not think we will get it perfect. That is not a reason to necessarily delay; urgent responses are needed. But it is a reason for caution. It is a reason for assessing whether or not we are meeting our objectives. The best way to do that is to have a proper review of whether these measures are meeting the objectives we have set for them.

I have concerns that the objectives, the KPIs if you like, are not spelt out. We are going to charge in and do a whole range of things but what are we going to measure those against? The 12-month review at least provides an opportunity for the intervention to be formally assessed, for a report to be made public and for that assessment to hold the minister, the government and this parliament accountable for the measures that we take. It is important that we give people reassurance that we are going to assess whether we are meeting our objectives. It will help to allay concern about the intervention and we will get much better public policy. I know the minister indicated that the government was sympathetic to some sort of two-year review but he is not prepared to put it into the legislation.

Progress reported.