Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering the Northern Territory National Emergency Response Bill 2007 and amendment (4) on sheet 5340 revised and moved by Senator Bartlett.

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

When the debate was adjourned, I indicated that Labor was not inclined to support Democrat amendment (4) which relates to establishing, effectively, an Indigenous consultative land council. It seemed to me that the amendment would put a barrier in front of Indigenous people who owned their land to negotiate leases beyond the arrangement set out in this bill. The amendment would act as a barrier to their choosing what they wanted to do with their property rights, which are not encumbered by this bill. It also seemed to me that the amendment was not actually helpful to Senator Bartlett’s and the Democrats’ general objectives. It puts in another committee, which includes representatives of the federal and Northern Territory governments, that has to be consulted before the owners of the property right have a right to exercise their right to enter into lease arrangements over their land. That does not make a terrible amount of sense. I might have missed something but it seems to me that it does not improve the bill at all; in fact, it only adds to the confusion and seeks to limit the rights of Indigenous owners in a way that acts against their interests while the Commonwealth holds the five-year lease. So Labor is not inclined to support it.

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

I would like to commend Senator Evans on his contribution. It encapsulates the reasons that the government will not be supporting this amendment either. It is very clear that, according to our convention, we would not support amendments that are unnecessary. Australian Democrats amendment (4), which would establish a new body that would have to be consulted in relation to township leases, would only serve to create another unnecessary level of red tape. I support Senator Evans’s point about process, that it is inappropriate to have a whole new level of people from outside that would deal with issues that, fundamentally, should be decided on by the land councils, the landowners.

I also note that section 19A of the Aboriginal Land Rights (Northern Territory) Act already sets out comprehensive procedures that must be followed when a township lease may be granted. Township leases can be granted only at the direction of land councils and with the consent of a minister. Most importantly, a land council must be satisfied that adequate consultation has taken place and that the traditional owners understand the nature of the lease and the nature of the agreement prior to their consent. Also, other people in the community who may be affected by the township lease have to be consulted and the terms and conditions of the township lease have to be reasonable. That has already been encapsulated within section 19A of the Aboriginal land rights act. For this reason, we think that it is an unnecessary amendment. As I said, we will not be supporting it on that basis. (Quorum formed)

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

I understand we are debating sections of the Northern Territory National Emergency Response Bill 2007 and we are doing that until about five o’clock, when we have a first speech in this chamber. I know we are dealing with part 4 of this legislation, which goes to the compulsory acquisition of the leasing of people’s land, but I do want to take this time, while I have an opportunity this afternoon, particularly in what is a fairly significant week for people in the Northern Territory, to raise a few issues.

I am getting to a question, Senator Scullion. As the days in this debate roll on about improving lives of people in Indigenous communities, I notice that the object of this act does not mention the words ‘child’ or ‘children’ at all. I notice that in your opening presentations in the debate on these proposed amendments, a lot of emphasis was put on the Pat Anderson and Rex Wild report. I do want you to know, as minister representing Minister Brough in this chamber, that I vehemently tried to negotiate very hard with Guy Barnett, the Chair of the Senate Standing Committee on Legal and Constitutional Affairs, that we hear from the authors of that report in last week’s Senate inquiry, but the government members, of course, did not allow those people to be witnesses before the Senate committee. It makes me wonder how genuine this government is about focusing its efforts on children and on empowering communities.

I want to take this opportunity to mention references in a speech that was given on Tuesday night by Senator Heffernan. When I sit down from this deliberation, I want to ask whether or not this government has gone through the contribution of government members in this chamber and, either publicly or privately, sought to correct the record about their inaccuracies and their gross misrepresentation of Indigenous people in the Territory. In his contribution on Tuesday night to the debate on the second reading amendments, Senator Heffernan made accusations about the people at Yuendumu and the Mt Theo program. I am not going to insult my constituents in those communities by repeating what he said, but it is there in the Hansard record, as stated at about five o’clock on Tuesday night.

I want an opportunity to read into Hansard this afternoon this response from the people of Mt Theo, given that tomorrow is an extremely significant day for the people in those communities. Those people who run the Mt Theo sniffing program, Peggy Nampijinpa Brown and Johnny Japangardi Miller, along with a non-Indigenous support person, Andrew Stojanovski, will be awarded a Medal of the Order of Australia. On behalf of those people, I want the Australian public to hear a statement I received from the people at Mt Theo-Yuendumu:

The Mt Theo Program (MYSMAC) is deeply saddened by accusations made by Senator Heffernan in Parliament on Tuesday 14th August 2007.

The Senator alleged that one of the managers had been “having sex with all the children” at Mt Theo Outstation during their rehabilitation from petrol sniffing. We are distressed that the Senator would make such damning unsubstantiated comments stated as fact under Parliamentary privilege. Mt Theo categorically denies this allegation.

It is even more offensive in the light of the fact that on Thursday 16th August Mt Theo founders—

the three people I have just named—

will receive the highest honour conferred on Australian citizens, the Order of Australia Medal, for their work with young petrol sniffers through the Mt Theo Program.

The Mt Theo Program has been repeatedly hailed as an outstanding and unrivalled success in its efforts to fight substance misuse and promote hope and meaning for young Warlpiri youth. Furthermore, we are acknowledged as a model of excellence in community initiated solutions in two recent inquiries ...

One inquiry was conducted by the Senate Standing Committee on Community Affairs Committee. Its report, Beyond petrol sniffing: renewing hope for Indigenous communities, was tabled in this Senate in June 2006. The other inquiry produced the Little children are sacred report, which we now know as the Anderson-Wild report. The statement continues:

Our representatives have traveled internationally to represent the Australian Government as an innovative and successful approach to substance misuse.

In June 2006, at the tabling Beyond Petrol Sniffing. Renewing Hope for Indigenous Communities, Senator Heffernan publicly congratulated Mt Theo staff present on their hard work and the success of the Program, and held a subsequent meeting with them where he reiterated his praise for the Program and made no mention of the claims he has now made in Parliament.

We are at a loss to understand why the Senator would not formally raise this grave issue with the Mt Theo Program prior to using Parliamentary privilege in such a defamatory manner. Such a discussion would have saved the Senator the embarrassment of making false accusations of such an inflammatory nature and casting an undeserved cloud over 13 years of extraordinary community commitment to the safety and well-being of young Warlpiri people.

Mt Theo Program calls for an apology from Senator Heffernan.

My question to you, Senator Scullion, is: from this moment forward will we see a change in some of your government members in not assuming and not making false and wild, grossly inaccurate comments about Indigenous people, particularly those people who are running successful programs and have done so for most of their lives? Can we now see a change in attitude so that everybody works cooperatively and on the same program to achieve the same outcome with the passage of this legislation?

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

I was not present during the complete contribution by Senator Heffernan; I was here for the latter part of it and it is not appropriate that I comment on that. I respect the fact that you have made assertions here and provided that statement as some sort of assertion to this, and you have asked Senator Heffernan to take some action on it. I think you will respect that I take issue about the remainder of my colleagues. I can understand that you or someone takes an issue with a contribution from Senator Heffernan. I find it very confusing that you immediately pass on some assumption that other people have been making allegations. I am not aware of them, either privately or publicly, and the matters that you raise are well outside the scope of the discussion we are having at the moment. I respect the fact that you brought that to the attention of the Senate, but for me to comment any further would be inappropriate.

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

I have now read the statement that was provided to me by the Mount Theo-Yuendumu Substance Misuse Aboriginal Corporation. I seek leave to table the document that I have just read.

Leave granted.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendment moved by Senator Bartlett be agreed to.

Question negatived.

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

The Democrats oppose part 5 in the following terms:

(5)    Part 5, page 52 (line 1) to page 67 (line 27), TO BE OPPOSED.

This relates to the section of the legislation to do with business management areas. Part 5 of this bill gives the Commonwealth a broad range of powers in communities to unilaterally alter funding arrangements; to direct how services are to be provided; to acquire community assets from service providers; to appoint observers to attend meetings of service providers in communities; to suspend community councils on service related issues, provided funds have been received by the Commonwealth or the Northern Territory that could be used to fund those services; and to appoint a statutory manager to administer associations on service related issues, provided funds have been received by the Commonwealth or the Territory.

The Democrats understand why it might appear very convenient to the government to take such wide-ranging and sweeping powers. I am sure it feels very convenient to basically have the power to do whatever you want and to ignore the people at community level whenever you want—indeed, when service providers in communities have meetings, to even be able to appoint observers that those meetings have to allow to attend to observe what is happening in those meetings. I am sure it feels great to have all those powers, but in our view they are not only far beyond any existing powers in relation to communities; they are powers that could—and, I would argue, almost certainly will, in some circumstances at least—result in arbitrary interventions in community affairs, far beyond the stated intent of the legislation.

Concerns have been raised that these powers are ambiguous because the unilateral variation of contracts via legislative authority is against the usual presumption against interference in contracts by the parliament—normally a fairly simple and fundamental matter when it comes to contracts. Triggers for ministerial discretion are ambiguous and indeed could capture services provided by volunteer organisations. The minister could be able, in some circumstances, to summarily acquire assets that were not funded by the Commonwealth. And because of the broad, sweeping and to some extent ambiguous powers—as always happens when you get sweeping powers, there is ambiguity about how they can be applied—there is significant potential for many unintended consequences.

Expressing concerns about this part of the legislation does not mean that the Democrats do not accept that there is a good case, indeed a valid case, for improving the situation with regard to management of various aspects of communities. But we do not believe that giving such total, sweeping, unilateral powers is necessary, and we do not believe there are sufficient checks and balances in place to oversee how those powers are used and to provide adequate protection against misuse of those powers, whether deliberately or inadvertently. It really comes back to that broader issue of whether or not the Commonwealth actually thinks that it will get everything right all the time. Even the Prime Minister accepts that the government will make mistakes along the way. Again, that is inevitable—that is human nature. But the aim and purpose of the Senate in considering legislation is to minimise the amount of mistakes that are likely to be made along the way, rather than just saying, ‘Oh, well, some will happen; them’s the breaks.’ That is the real concern we have here: they are very broad, very sweeping powers.

Some of the concerns raised in the Alert Digest report from the Scrutiny of Bills Committee, which has been touched on a few times already in this debate, go to issues in this section. A lot of the feedback I have had from Aboriginal people in the Territory in this area is that they believe that there is potential for government to act in a way that will assist in an area that does need improvement, but it really is a matter of how you go about providing that assistance. The continuing inability of the government to provide that assistance and support in such a way that it is done in conjunction with people, instead of coming totally over the top and saying, ‘We’re running the show now; everybody out of the way—even with the meetings you are having, we’re going to appoint an observer to sit in and watch what you’re doing,’ is a completely disempowering model. I believe it is acknowledged even by the government that disempowerment is one of the reasons why there are serious situations here that we need to address.

So the Democrats’ concerns are not purely based on objecting to something on a philosophical basis. Our concerns are based on the fact that we believe these provisions are not likely to be effective, that they are not likely to achieve the goal that the government says they are going to achieve. That, to us, is the core issue. Our philosophical objections, our in-principle objections, are important, and those basic issues of empowerment, of control at community level and of business management within a framework are important principles that we stand by.

I am one who recognises that all principles come in competition with other principles at various times. If you can make a compelling case that the practical consequence of a particular course of action will provide a net benefit, I am willing to consider it. But that case has not been made. The only case has been: ‘We know best.’ Frankly, even without this government’s pretty bad record, where they have shown they do not know best when they have intervened in the past a couple of times, as Senator Evans has pointed out, the nature of governments is such that governments coming along saying, ‘We know best,’ is not something that fills me with a great deal of confidence. But that is basically what this section does. It allows the government to come in and say: ‘We know best. Get out of the way; we are running the show.’ I do not believe that is going to be effective. That is my core concern. Another concern goes to what happens after this phase when the framework of intervention and stabilisation is put forward and is then followed by a rebuilding. If the stabilisation phase involves total disempowerment of business management and community activities, you are going to make the re-empowerment 10 times more difficult.

I do not believe a case has been made as to why the Commonwealth needs to have these sorts of extreme powers. I am not at all surprised that the Commonwealth wants them. It is a natural feature of governments to want to take as much power as possible to themselves—not only in Australia across political parties but also around the world. It does not seem to matter what the initial philosophical approach is of various political parties; as soon as they get a significant amount of power, they seem to like grabbing more and more of it to themselves—always justifying it as being in the public interest, of course. Sometimes it is in the public interest, but the majority of times it is not. That is certainly one of the reasons that I find it all the more curious that any government that professes to have any interest in liberalism would be supporting approaches like this, which are total command and control, total government control, over very fine details of people’s lives.

It is a significant area of the legislation. I would not say it is as compelling a reason to vote against the legislation as the areas to do with taking over the land, but it is another area that does raise significant concerns. It is certainly an area about which a lot of concerns have been raised with me. I would assume that the government are aware of those concerns. I presume they open their ears to all views, not just the views of those who agree with them. It is another area where I believe the case has not been made that giving governments these sorts of powers is justified.

Let me restate the case and the core principle. For a parliament, and particularly for the Senate, which is the house of review, to give a government broad, sweeping powers and to take away power from individual people and give that power and control over their lives to a government in such a sweeping way, the case must be made, and it must be made in a credible way and in an evidence based way with sufficient details—not just on the basis of sweeping assertions and general statements about it being an emergency. I do not have a problem with people treating this as an emergency, but I do have a problem with using that as a catch-all justification for giving a government any amount of power they like—and I think that is the danger here.

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

The Greens will be supporting the Democrats amendment. In fact, it is very similar to the one that we have. Ours is broader, opposing a number of parts; whereas the Democrats are opposing some of those parts individually. We find that the breadth of these powers are unacceptable, and I have a series of questions that I would like to ask the minister in order to clarify some of the points. On our reading, some of these proposals are extremely broad, and I am not quite sure of their intent and would like the government to clarify their intent. For example, with respect to the issue around which organisations they apply to, I would like to ask whether they include non-government organisation working in the prescribed areas in the Indigenous communities. Do these apply to all NGOs, including those that are purely voluntary? I would also like to confirm whether or not I understand correctly that services and assets that are included in this provision do not have to be directly funded under this provision. In other words, is it the case that, if you have assets that are funded by government, you are caught up under this provision even though they are not necessarily funded by the specific agreement?

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

The intent of this particular piece of the legislation is to deal with a number of the issues that we have seen very clearly in these communities that add to their dysfunction. That is the basic principle of service delivery. We know that a number of the services that should be being provided are not being provided for a whole suite of reasons. It might be the way that the funding is being released. It might be the way that the funds are spent. It might be about the requirements for reporting about how the funds are spent, depending on the agreement. It might be the nature of the appointment of a particular person to control the funding. It might be the way that assets are acquired and how they are used. They are the fundamental parts of service delivery in communities in a whole suite of agreements.

Whilst Senator Bartlett indicated that there were a number of ways under which these powers could be seen as extreme powers, they are in fact seen by the Commonwealth as reserve powers. As we have indicated, these powers would be used only where negotiations to introduce these changes have in fact been unsuccessful. We have not just delegated these powers to officer level. These powers will be held at a very senior level of the Australian Public Service or solely by the minister. It is interesting to note that these powers will not actually apply to the Northern Territory shire councils, the town camps or outstations. In other words, they will apply to those areas that have been prescribed under the act.

A sunset clause applies to these powers—the same sunset clause that goes to the provision of the five-year lease. These powers would lapse at the same time the five-year lease does. We would hope that, by the end of the five-year period, the level of amenity in terms of infrastructure and the delivery of services that every Australian would take for granted has in fact been delivered. So it is important to note that these powers would lapse and, in fact, are limited to a five-year period.

The notion of this particular aspect of the legislation is that there will be a range of governance related powers that will ensure we have the necessary authority to implement the full scope of the improvements we intend to provide to these communities. As I have said, the scope of these powers is broad enough to cover the nature of service delivery in the communities, which—as honourable senators would be aware—is extremely broad. I cannot stress enough that this is in the event of a failure to provide a satisfactory outcome from negotiations. As part of our negotiations, we will be insisting that services delivered in these communities are delivered to an acceptable standard and in an acceptable way so that occupants in the prescribed communities will be getting a level of amenity that is satisfactory in terms of a benchmark with the rest of Australia. I think this level of amenity is parallel to the infrastructure amenities—of housing, behaviour and the shield of law and order—that we take for granted in so many other areas of Australia. I am not sure whether I have completely answered Senator Bartlett’s questions, but I hope I have contributed to his understanding of these issues.

Progress reported.