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

And, with that, Senator Abetz left the chamber. We are dealing with clauses 90 and 91, which effectively forbid courts to take into account cultural practice and customary law with regard to passing sentence and certain bail applications. We support the Democrats’ amendment here and oppose these clauses. I have a question for the minister: is it not true that other organisations in Australia are privileged under the law in a way that makes this legislation cut across the rights of Indigenous Australians in what can only be described as racist?

The Exclusive Brethren, for example, along with other Christian organisations, have exemptions from having unions come into their workplaces under the Work Choices legislation of this government. We know that the government is funding Exclusive Brethren schools which are set up to isolate Exclusive Brethren children from the rest of the community, which is described as ‘worldly’—meaning unworthy and not fit. This isolation means that those children do not and cannot eat with other children, cannot go to university, will not be allowed to vote and cannot go for military service. If one or other of their parents goes to a different customary view, cultural practice or religious ideology, those children are forbidden for life to see their parents again.

That matter has been raised before the Australian courts, including the Family Court. The Family Court has taken those factors into consideration in deliberations, including the passing of sentences. I ask the minister whether he is aware of whether the Prime Minister met the Elect Vessel of the Exclusive Brethren, Mr Bruce Hales, last Thursday. Is the Exclusive Brethren getting special consideration under the law at a time when Indigenous Australians are having any court consideration of customary law or cultural practice struck down by the way this law is applied?

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

Perhaps the senator does not understand. I should just add some explanation, particularly with regard to his initial comments that this was just about Indigenous people: that is not the case. This provision is intended not only for prescribed communities; it is intended to extend across the entire Northern Territory community, consistent with changes made to the Commonwealth Crimes Act. There were some references yesterday—I hope that you are across it; in my mind I cannot go straight to the reference—to the fact that sometime last year we made some amendments to ensure that, in sentencing or applying bail conditions and determining the severity or otherwise of the circumstances, we could not take into consideration customary law.

I think it is important, initially, to outline exactly what the circumstances are with regard to the changes that this will make. This will apply right across the Northern Territory and, consistent with other aspects of this bill, when the Northern Territory takes it over—which, I understand they have undertaken to do through the COAG arrangements; that evidence was provided to me by Senator Evans last night—we will repeal this. I understand the same provisions are being provided around Australia. That is the general circumstance of the bill; it is not only about the particular aspects of the prescribed communities.

These amendments do not prevent customary law or cultural practice from being taken into account for bail and sentencing. That is not the case. When you are considering bail or sentencing matters customary law and cultural principles or practice can be taken into consideration, and will continue to be taken into consideration. The amendments ensure that in making an assessment about the seriousness of the offence the relevant authority cannot take into account customary law or cultural practice as a factor which aggravates or lessens the seriousness of the offence—for example, in exercising some sentencing discretion, the court could still take into consideration that an offender will be subject to tribal punishment or something of the like under customary law. In sentencing, a court could say, ‘Well, he has already suffered under customary law; we can take that into consideration by lessening that sentence.’ That may be the circumstance. That consideration can still continue and it is a very important aspect of the recognition of customary law.

A bail authority could perhaps also consider the fact that an offender lives in circumstances in a family or a community structure that operates under a customary law environment. They could take into consideration the particular circumstances of a very strong tie with customary law in a community or family when determining whether or not to grant bail or set bail conditions. So, again, these amendments do not prevent customary law or cultural practice from being taken into account in bail or sentencing decisions. An extreme situation that we are trying to avoid is a court taking into consideration the argument that in a person’s culture violence against women was not considered a serious offence. We would not be taking that aspect into consideration, because the cultural law diminishes the offence. So that is what we are attempting to create here. As I indicated earlier, I understand that all of the states and territories have agreed to amendments that are parallel to the amendments we made last year to the Commonwealth Crimes Act with regard to these matters.

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

Do customary law and cultural practice include Indigenous language?

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

In a definitional sense I am not in a position to provide an answer to that. I could not see how language would either aggravate the seriousness of an offence or diminish the seriousness of an offence, so in that context I would say that the answer is possibly no. But language is obviously a part of culture.

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

I wonder whether the minister would be good enough to take that question on notice and come back with an answer during the committee proceedings. I just go back again to my reference to the courts taking into account the special customs and practices of other groups including, for example, the Exclusive Brethren. Would this legislation cover customary law and cultural practices of the Exclusive Brethren as well?

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

I can provide some information to the question I had taken on notice. I am informed that I was correct: a person’s language would never be taken into consideration in terms of diminishing or adding to the seriousness of an offence. In terms of whether this extends to the Exclusive Brethren or any other culture, these amendments, in terms of how you define customary law or cultural practice, do not exclude any particular practices or culture. So, I would say that that is the case.

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

I want to go back to that definition. The cultural practice is the speaking of the language. I want to make it absolutely and abundantly clear here that the intention of the government is not to include Indigenous language in the term ‘cultural practice’.

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

I indicated in my previous answer, Senator, that language is a part of culture and it is a part of customary law. The advice is that it would not be seen in a way that would either aggravate or mitigate the seriousness of an offence.

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

If it is not to be taken into account, it can be seen as mitigating an offence. For example, if a person cannot read or does not understand an instruction given by a police officer in a language that is not their own, that is a mitigating factor. I need it to be abundantly clear that this legislation does not intend to prevent the court from taking into account customary law in, for example, excusing, justifying or lessening the seriousness of the criminal behaviour to which the offence relates. It may be very much a part of the consideration by a court, because a person’s understanding of instructions or, indeed, laws that are in a language they do not speak obviously affects their behaviour.

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

The circumstances affected by this particular provision are the circumstances where, when you make an assessment of the seriousness of an offence, in terms of both sentencing and bail applications, then you cannot take customary law into consideration. But we are certainly not asserting that mitigating circumstances in a criminal trial would not be taken into consideration. This only refers to both sentencing and bail applications. Of course, those sorts of circumstances would always be taken into consideration in any prosecution and defence of a criminal matter. These provisions are specifically in regard to sentencing and the circumstances of bail.

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

A person is found guilty or not, then a sentence takes into account such things as these clauses outline, mitigating or aggravating factors that are involved. The problem that I have with this is that the minister is saying that language can be taken into account in the finding of the person’s guilt or otherwise but cannot be taken into account then in the sentence that is applied. I think this is a law that cannot be supported.

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

As I have said many times, I am not a lawyer, I do not have a legal background, but there are some things that strike me about your question. A matter of understanding is a mitigating circumstance. But those circumstances could be established. The fact that somebody did not understand the law would obviously be a mitigating circumstance. But, in this context, whether or not it is a particular language, or whether that language is part of customary law or not, is not the issue. The issue just goes to the matter of whether or not they understood, and that issue would provide some mitigating circumstances in consideration of sentencing and bail, not the fact that it was a customary law or a customary language. The issue is whether or not they understood.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that clauses 90 and 91 stand as printed.

Question agreed to.

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

I would like to take this opportunity to correct the record. I paraphrased not verballed the Leader of the Opposition in the Senate. What I thought you had said last night, Senator, and what I indicated this morning is that the states are in fact intending to give effect to the COAG principles, I understand; I have been advised that is not exactly the case. Some advise that their existing law already complies so they will not need to amend their own legislation to ensure compliance.

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

I did not hear how Senator Scullion verballed me but I just assumed it was normal practice. I had to leave the chamber for a while. I did want to ask, while there is a break in proceedings, whether or not the minister can confirm the reported comments of the minister for FaCSIA that he was to introduce a government amendment to this bill. There has been much press coverage about it. Apparently the minister slammed the Territory and indicated that we are going to have to move amendments to protect ourselves from being in breach of the Northern Territory residential act. Unless it has been circulated in the last few minutes, I have not been able to find it in the chamber. I understood it would be to this bill before us. So perhaps the minister could advise whether that is just done for getting a headline in the paper or whether the government really has an amendment to this bill.

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

I am advised that there are some issues in regard to the tenancy arrangements. Should negotiations in terms of discussions with the Northern Territory be unsuccessful then there may be amendments brought to this place to do with that issue.

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

In this bill?

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

No.

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

The Greens oppose parts 3 to 6 in the following terms:

(1)    Parts 3 to 6, clauses 26 to 91, page 22 (line 2) to page 69 (line 11), TO BE OPPOSED.

This amendment opposes parts 3 to 6. I appreciate that we have substantial debates on parts 4, 5 and 6 so I do not want to go back over that old ground, but I do want to ask some specific questions about part 3, which is about the publicly funded computers. Again, these seem very broad ranging powers. I will put on record that I understand what the government is seeking to do with these amendments but they are very broad ranging powers that I want to clarify, the same as we did last night on the extent of the powers over the business management areas. I want to clarify the extent of these powers so that the community and this place are clear about the extent of them and what will and will not be done under them.

I have gone to the definition of a publicly funded computer and, as I understand the definition of a publicly funded computer: it is a computer that is owned or leased by any individual or a body whether incorporated or not that receives funding from a Commonwealth, state, territory or local government authority, or one that is on loan—in other words, as I understand it, the computer does not have to have been funded directly by any of those bodies; it just has to be owned by a body that is funded by the government. I also understand that this applies to any organisation that is being funded. Is that correct?

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

There is a suite of questions there. I am not saying they are out of order but out of order in the sense that we have already debated them. I think it would be useful later in the proceedings and I will undertake to get those particular details for you and provide them on notice.

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

These are critical to this debate. The point we are trying to get to is  that we are talking about any computer that happens to be owned or used by or on loan from an entity that is funded by the government in these prescribed areas, as I understand it. It does not have to be directly funded by the government. The point I am trying to make here is that these quite extensive and extraordinary powers go, for example, to any NGO that has government funding to provide services in these regions. They are subject to the laws. Am I correct in that?

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

Absolutely.

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

The computers just have to be located in the prescribed areas?

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

That is correct. It is consistent with the range of these initiatives. It does not matter who you are, you cannot take alcohol or consume alcohol or have alcohol. This is a prescribed community and we do not want pornography available anywhere within the community. So it does not matter who it belongs to, we are taking measures to ensure that the children are protected.

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

My understanding of the bills and the legislation is that this is not just about pornography. The list includes things that are slanderous, libellous or defamatory or what is offensive or obscene—I can understand the obscene bit, but people’s definition of what is offensive varies, I can tell you, because what I find offensive may be different from what other people find offensive. It goes to sending an anonymous or repeated communication that is designed to annoy or torment. I find some repeated communications annoying that other people would not find annoying. Who is the arbiter? Who decides, and what criteria are being used for what is offensive or what is abusive or what is annoying? I find some things extremely annoying. Who makes those decisions? Where will the criteria be outlined?

I would also like to know what happens in this instance: who identifies the person responsible for a publicly funded computer? How is that person designated and what happens if an organisation does not have someone that is responsible? I would also like to know what happens if there is unauthorised use of a computer. The person responsible for the computer is to keep a record of the use. What happens if some unauthorised person uses it? Is the responsible person still committing an offence, because if a person does not keep a record they are committing an offence? What are you doing about training people to know when something is slanderous or libellous or defamatory or offensive or annoying?

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

Again, there is a suite of questions there. We have said that there has to be a reporting process. Everybody would be issued with a password so that when you get on the computer we can trace who it was that accessed these things, if that is the case, and it is an offence not to do that. If it is a computer that has the capacity to access pornography, then we want to ensure that it is not there. I would have thought that this was a fairly straightforward process.

You re-asked a question about the details of how we would have a definition and appraisal of a few of the issues. I said that it would be useful for me to get back to you on notice. It is a detailed answer and I will try to do that as soon as I can. In terms of the training, there is a whole suite of ways in which the intervention team is being prepared both in a cultural way and in other ways. When they arrive, one of their first tasks will be to ensure that we communicate with the community exactly what all these things mean. In my original submission yesterday I went through the process. That is one of the fundamentals and, because part of the legislation is that that will be explained, we will ensure that people understand very clearly what a lawful use of a computer is in those circumstances and what is not.

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

You keep using the term ‘pornography’, and I understand the government’s intent. But, as I said earlier, you have not explained what materials, and why materials that could be considered offensive or annoying, are included in this. The definition does not just relate to pornography. There are lots of things that I find offensive that are not pornographic and there are lots of things that I find annoying that are not pornographic, and that is not defined here. You are also talking about computers that are owned by—potentially, again—non-government organisations that are not funded by government. But it is ‘any’ computer; you are not covering all computers. So aren’t you just going to all computers?

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

The head title of section 28, the section you are referring to, is ‘Development of acceptable use policy’. Effectively, the remainder of this is a guideline under which the policy should be constructed. A particular example of the use of ‘annoying’ is in the guidelines under 28(3)(a)(i) to (vi). Subsection(3)(a)(i) states:

(i)

that contravenes, or forms part of an activity that contravenes, a law of the Commonwealth, a State or a Territory ...

It is effectively saying that an acceptable use policy would go further than that, because continual, annoying messages are unlawful. So, rather than just having a provision that deals with one specific area, we have been efficient in ensuring that the lawfulness of computer use generally is also dealt with as part of these provisions.

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

The question that Senator Siewert asked is: why doesn’t this apply to all computers?

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

The answer to that is that this is within our capacity, and it applies only to the computers that we have a link to. The law, as part of these provisions, also extends to the illegality of having access to pornography in the community. If there are other private computers that have access to pornography in the community—and no doubt there are investigations of that within the community—it is unlawful and would be pursued. But we are saying that we have the capacity to have a look at those computers and put special provisions around the computers to which we have access or links so that we can maximise opportunities to ensure that pornography is not available in the community.

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

No; the Commonwealth has the ability to legislate on these matters and on unlawful matters relating to computers held by anybody. There are two components here. There are the things that are clearly unlawful and contravene a law of the Commonwealth, state or territory, but then there is a list of things that do not do that, such as being defamatory, offensive, abusive or harassing, and these are matters for which the legislation gives us no guide as to limits. It is fair and proper that we ask the minister, whose legislation this is, what the limits are outside the law to which this section is intended to apply. Why not apply those same limits to the use of all computers within the Territory? I think the reason the minister has given is that the Commonwealth cannot legislate to prevent legal material being disseminated by a computer. But the Commonwealth is legislating here to prevent legal material being disseminated by computers that are funded by the Commonwealth, if that material is considered defamatory or offensive. So here we are outside sexual matters, presumably, and into matters which are political. The Senate ought to hear exactly what the limits of those definitions are and who is going to be the judge when these matters are not breaches of law but are matters of government policy.

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

I thank the senator for supporting us in ensuring that these communities do not get access to pornography. We believe the measures that we have put forward here go a long way towards that. There are some technical issues, and these processes are continually being reviewed. Should we find the need to further extend provisions in this area, we will do so.

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

No, that was not my question. My question was: what is the definition of ‘defamatory’, ‘offensive’ or ‘abusive’ that will guide the implementation of this law being applied by the government? It is very important that the Senate understand what the government means by those terms and who is going to judge those terms in applying this law.

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

A moment ago I took the same question, on notice, from your colleague Senator Siewert. I understand that there is a clear definitional process under law, and there will be a clear definition of those terms. I would hope to supply those to you shortly.

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

There are a couple of issues here. I appreciate the fact that the minister has to take things on notice—and it is certainly preferable that he does that rather than not answer or give us an incomplete or misleading answer—but it goes back to the core problem we have here. As was mentioned earlier today in this chamber, Senator Abetz—I appreciate that it was not Senator Scullion—has been out there, around the media, slagging off the Senate and saying that we are deliberately dragging out this debate, deliberately filibustering, deliberately trying to hold it up. I do not think that anything the Democrats could have done would have made it clearer that we are not trying to hold this up. But this is what happens when you do not let the Senate have a proper Senate committee hearing. You have to ask these questions here in the chamber because there is no other way to get the details on the record. It is not just for us to make an informed decision in our vote, although that is important; it is for the community. It is just not good enough to pass laws and say, ‘We’re still working this stuff out.’ You cannot continue to use the excuse that it is an emergency to keep doing that. Frankly, it just reinforces the reason why the Democrats consistently argue that this bill should be brought back in the first sitting week in September—when we will be sitting, when an election will not have been called and when we will have a clear idea of what all this stuff means. Basically, as has just been indicated, these things are still being worked out. The powers are far reaching, and there are more far-reaching areas than this in the legislation, but certainly this in itself has its own significance in the imposition it puts on people. It is not a matter of arguing about the intent; it is a matter of talking about the implementation and the consequences.

Having made that comment, the question I would like to ask is with regard to the auditing of publicly funded computers under section 29 of part 3, where people responsible for a publicly funded computer must ensure that the computer is audited twice a year, on 31 May and 30 November, and on any other day determined by the minister—so, potentially more than twice a year. Is the cost of conducting that audit going to be worn by the body that has the publicly funded computer? Senator Siewert asked a question earlier about the definition of ‘publicly funded computer’, which is any computer owned by an organisation that is publicly funded. So it is not actually that the computer is bought with public funds but that the organisation that owns the computer is publicly funded in some way. Of course that means non-government organisations, some of whom are already active in these communities, bodies like Oxfam and Mission Australia and, I am sure, others. Are they going to have to bear the cost of auditing these computers? To use the example that was given in a slightly different context yesterday or the day before by Senator Crossin of people who are taking computers—laptops and the like—in and out of communities, is there any requirement for them to be audited or checked, or is it just those computers that are in the communities on those particular audit days? If that is the case, does that mean that as long as the computer is not present in the relevant place on that day then it is not going to be subjected to an audit?

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

I will go to the questions on notice I took from both the Greens senators. In terms of the definitions, I am advised that general law covers those definitions and that they are clearly set out in general law. For example, the definition of ‘defamatory’ is that it tends to lower the persons about who it is said in the estimation of right-thinking people. There are a whole suite of those definitions that are available and that the courts would look to.

With regard to the questions from Senator Bartlett and, firstly, the cost of the audit: I am advised that this is a technical audit. It is an IT based audit. While the Commonwealth would not be paying the cost of the audit, I am advised that one of the principal costs of the audit is in fact the software used for the audit and at the moment issues surrounding the supply of software are under active consideration. In terms of a computer coming into the community and the example given by Senator Crossin, the legislation specifically says that the computer would ordinarily be in that location, so obviously it would not apply to somebody travelling in or out. An audit would not be required in those circumstances. If it was ordinarily located in the community then it would.

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

Minister, I may have missed it but you said that the definitions are the standard ones as they apply in law. I also asked a question about defining ‘a responsible person’. I may be mistaken, but I do not know if that is defined in law.

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

For the record, ‘responsible person for a publicly funded computer’ is described in the act.

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

I understand that that is the definition of a publicly funded computer, but could you point out to me where the definition of ‘a responsible person’ is, or does it come under the relevant owner? I beg your pardon; I do understand.

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

Minister, why is it that under section 26 ‘the responsible person for a publicly funded computer must ensure that a filter that has been accredited, in writing, by the telecommunications minister is installed on the computer’ but that that accreditation is not a legislative instrument? Why is it that the minister is given this power but parliament is not given an overview of it?

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

I have no idea, Senator Brown, but if you give me a few moments I will try to get back to you.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am particularly interested as to the application of these filters on computers and the use of these publicly funded computers. Do these particular requirements apply in any part of the Commonwealth Public Service or anywhere else?

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

With regard to Senator Bob Brown’s question, the reason that the filter is accredited by the minister is that it is simply a technical decision. They will receive advice that this is the standard of filter, not any old filter but a particular filter that might have a number or a brand. It might even be that the filter may have to meet a standard. It is simply a technical thing, so the minister has decided, through the process, that this is the standard that applies. Rather than the minister making a decision on what type, it is just that it meets a standard.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you. Was this the filter that applied in the Department of Agriculture, Fisheries and Forestry, where recently 11 staff were sacked and 14 others resigned for abusing the department’s internet system, including accessing pornography, when a departmental spokesman confirmed that 71 staff had been investigated after a tip-off about the misconduct et cetera? I want to know if this particular standard of filter that is being applied in these communities was the standard that was being applied before this incident occurred or post this incident occurring?

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

Clearly, Senator Milne, the decision about what filter will be used has not been made yet. Obviously they will be taking into consideration issues and the most recent technology. No doubt they will be taking into consideration all those factors when that decision is made.

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

The minister said that the parliament will not have an overview of that. That has been taken away by the government in this legislation. The minister gets the power, and the parliament is sidelined. But the important matter that Senator Milne is asking about is: does this application of a filter requirement apply to the whole of the Commonwealth Public Service?

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

These provisions apply specifically within the prescribed communities under the bill.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Yes, but that is the concern that I have here. We are applying this to the areas that are being designated under the bill, and I understand that. What I thought I understood you to say a few moments ago, in answer to my first question in relation to this, is that there is already a standard filter that applies across the Public Service and that this is that particular filter. It is not just any old filter; you said it is one that is a ‘standard’ application. That was the inference I took from what you said, which is why I then asked: is that the standard that applied such that these breaches occurred in the department and have since been dealt with? Obviously, new standards are going to apply—or I would hope that new standards are now going to apply—in the Department of Agriculture, Fisheries and Forestry. I just need to have clarity about whether what you are putting on in the Northern Territory is what has failed in the Public Service already, or is it different from that? If it is different from that, will it also be applied across the Public Service, given that we have proven breaches and proven access to pornography on the government’s own departmental systems?

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

My term ‘standard’ was not as in ‘common or garden’; it was as in specific requirements. So when you go to a ‘standard’ I was referring to a standard being a series of prescribed measures to give a particular benchmark for use technically or otherwise. I am sorry there was some confusion about that. With regard to the remainder of your question, what happens in the remainder of the Public Service outside this bill is beyond my capacity to respond.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Then I think there is a very important issue here. We are being told that what is happening under this legislation is to stop people accessing pornography using publicly funded computers. We have examples now of people under the government’s watch, in its own backyard in Canberra in the Public Service, accessing pornography with a standard, a benchmark of some kind, that the government applies. I do not think it is adequate to answer the question by saying you are unaware of what goes on elsewhere. I want to be sure that whatever standard you apply is a standard that you will apply in the Public Service following these clear breaches and access to pornography. I think the public are shocked enough about the statistics that have been released about the Northern Territory. They will also be shocked to know that in the Department of Agriculture, Fisheries and Forestry 11 people were sacked, 14 have resigned and several have walked and that there are investigations going on. What I am asking is: are there different standards being applied to publicly funded computers in areas prescribed under this legislation from those that are prescribed in the Commonwealth Public Service, given that in the Commonwealth Public Service people have been accessing pornography?

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

This is an emergency situation in the Northern Territory. The provision in this legislation applies specifically to that. A decision on the standard of the filters has not been made. But no doubt, in the making of that decision, consideration of the previous issues mentioned by the senator will be taken into consideration.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I have always believed that this is racist legislation, and clearly it is, because the government is seeking to exempt itself from the provisions of the Racial Discrimination Act. You cannot have a situation where you say that certain standards will apply about the level of filter on publicly funded computers for one group of people in the population but that a different standard will apply when you are talking about the government’s own Commonwealth Public Service. Given that the State of the Public Service report published in 2004-05 said that 283 employees in 29 agencies were investigated for improper use of email or the internet—and that is not all pornography, I absolutely acknowledge that, but some of it is—we have a situation where the government is going tough on pornography in Indigenous communities but has a different standard for the Commonwealth Public Service. That is not a good look. That is very discriminatory. I would like to hear from the government an undertaking that the same standards will apply to all publicly funded computers. Otherwise, what is the justification for saying that Indigenous people have to have one level and other people have to have another?

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

The motion we are discussing here from Senator Siewert is opposing that parts 3 to 6 of the bill stand as printed. Before we go to a vote on that I want to ask about the other components in that section, on the acquisition of rights, titles and interest in lands. Division 1 is the grant of leases for five years. I wonder if the minister could explain what is the national emergency that requires the action that the government has taken in this acquisition of rights, titles and interest in the land.

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

We discussed the very same issues yesterday as part of the Democrats amendment. There was some comprehensive discussion on that, but I respect that you need to have the discussion, Senator Brown—you may have been elsewhere then. The five-year leases are a fundamental part of the intervention. We believe that the leases are a necessary part because we have a clear understanding that, without the acquisition, the infrastructure and the changes that need to be made will not be able to be made in an efficient and timely way in the context of the intervention.

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

I am aware of the debate yesterday. I ask the minister again if he could explicitly put to the Senate—this is a key question which was not specifically answered by the minister—the relationship between the abuse of children and other members of the communities being targeted and the title to their land. Could the minister put in explicit terms how you are going to advance the cause of ending abuse and violence in selected communities by taking the land off those people?

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

First of all, I will make it quite clear that the ownership of the land will always remain with those people. The leases are for a five-year period. There are some clear connections between the violence and child abuse and the reasons we need to acquire unfettered access to the land to provide for changes—principally in infrastructure—to provide for further protection of children and families within these communities. That connection needs to be clearly articulated in the context, usually, of governance arrangements. It has been very difficult. I could cite examples, but it has been pretty difficult around communities in terms of a decision-making process to ensure that these infrastructure placements are done in a timely manner.

Often the townships are owned by traditional owners. Often not all of the people living in the townships are traditional owners. The process to establish, for example, where there may be three or four groups of different traditional owners, who own parts of a township is an extremely long process, and a process that is a requirement when, let us say, we have to go and put in a sewerage pipe. It might cut across four or five of these. Because their rights are still protected in terms of consultation in other places in Australia, not when they are in the community—under the Aboriginal land rights act—the process to find the traditional owners and to go through the consultation process may take 12 months.

If we are going to make some changes to these communities in terms of infrastructure in a timely way then we need to ensure that the governance arrangements—which, in other circumstances, would have been okay, but might take a fair while—are okay. It may also be that the governance arrangements that are in place are the reason that the infrastructure is, frankly, so poor. But in any event, as you would well know, Senator, there is a very clear connection between the abuse and violence in the communities and the level of amenity. If we have 22 people living in a house then the stress and the tension—as well as the general hygiene and a whole range of other issues—within the house are obviously going to impact on the suite of issues that we are trying to ameliorate. So there is a very close connection between that and this government’s need to be able, in an emergency, to do this. I am not sure whether you accept that that is the case, but the government and the Australian people see it as an urgent situation—an absolutely urgent situation.

We know that we need to deal with this crisis on every front. One of the fronts that is absolutely fundamental to change—and I know you will accept it—is the provision of and changes to infrastructure that every other Australian takes for granted. We also know that you are not going to be able to provide that infrastructure in a timely way unless impediments to the swift application of that, by law, are removed. It is for a five-year period. I would hope that, well within that five-year period, the changes we are able to provide will change the circumstances of particularly the women and children who are living in these communities.

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

The removal of consultation that is involved in this legislation is one of the great grievances from the Indigenous communities who handle their affairs well. If it is for five years, it may well be for 50 years or forever. The question remains about the government’s intention here. The minister talks about 22 people per household and this being an emergency. This was an emergency early in 1996 when Prime Minister Howard took over the reins of government in this country. For 10 years he turned his back on that emergency. In fact, he began by taking money out of the Indigenous communities, some of which would have gone into housing, health and so on—and I am talking about very large amounts of money: $400 million in that first budget. So things were made worse. This emergency has been made worse by the government’s own behaviour, and that comes right from the Prime Minister.

Now there is action being taken here which cuts right across the rights of First Australians to even be consulted. I want to ask the minister: after this decade or more not just of failure but of compounding and making the situation worse by the Howard government, what is the estimated cost of the house-building program for the next five years that will bring Indigenous household habitation to the levels of the rest of the community? I agree that there is evidence—including from the World Health Organisation—that, where you have massive overcrowding, the rate of violence including child abuse goes up, and that it would be a good thing if we can bring that down.

I do not accept, Minister, by the way, that consultation is out the window here. I think it is a grievous stealing of the right of Indigenous people to be treated as adults who know their own lands, their own communities and what is best in those communities. That being swept aside by this legislation, I ask the minister, who has given a justification: if we are going to end this emergency within five years, what is the plan and what is the price being applied to that plan to bring house occupancy levels in these communities to those which approximate those of the rest of the Australian community?

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am interested in the minister’s response on the need for infrastructure. I am aware that the legislation provides that, after the five years, the Commonwealth will maintain an interest in the infrastructure, but there is no definition of what is possible under the broad definition of infrastructure. In particular, I would like to ask whether the Commonwealth will be working with the private sector not only in building the infrastructure but in allowing members of the private sector to have access to that infrastructure. I am interested to know whether any of the infrastructure that is to be built will be built for or in conjunction with, or will be leased to, the mining industry in any shape or form.

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

I will answer Senator Brown’s questions first. In the statement that you made before you put the question, Senator, you implied that consultation was out the door. Then you said that you did not think that it was and you made some other assertions. I agree with you in that sense, Senator. We will be working with these communities. That is absolutely essential in building a partnership and is reflected across all of the communities that have been visited by the intervention task force. Consultation and talking about a partnership role are absolutely a certain matter. Under the law, there are certain provisions with regard to consultation. The expectation that we provide the level of amenity that is needed in a very short period of time may put that at risk. Any piece of legislation that underlines our capacity and our absolute determination to make things better for the women and children in these communities will continue to be supported.

In terms of how much money has been spent on housing and where all the housing has gone, I have to agree with you there too, Senator. We put $100 million each year into the houses in the Northern Territory—I am not sure why we are always having discussions about these matters—but we have fewer houses now than we had five years ago. Those are matters that concern us.

We have had a number of questions about where the money is going to come from for the housing. I think it might be useful to place on the record some additional information about this. The new fund that has taken over from the CHIP fund will provide an additional $287 million in funding for Indigenous housing for three years from 1 July 2008. The additional funding is on top of existing funding that has been provided through the CHIP. The total ARIA funding from 1 July 2008 will be $1.24 billion over three years. This fund will also increase the proportion of funding that is provided to remote Indigenous communities, as a result of a greater focus on remote communities. The increase of funding to these areas will be greater than the additional amount provided under ARIA. The CHIP will continue to operate in 2007-08 as it has done; it has an allocation of $306 million for this year. There is also a payment of $6 million from ARIA to the Torres Strait Regional Authority in 2007-08. The amalgamation of these two programs—as they step over—will provide funding for new housing and for the repair and maintenance of existing housing, including in the communities that are a part of the Northern Territory emergency response.

In response to Senator Milne’s question: the transferral of infrastructure to private interests will only be to the Northern Territory government, a Commonwealth authority or a Northern Territory authority. As to whether we would be preventing a mining lease or similar things, I am not sure that we would move to prevent any particular activity, because this legislation is not intended, in any way, to have any unintended consequences such as impeding business. If Indigenous people in a particular area decided that they wanted, for example, a hairdressing shop, I am quite sure that the Commonwealth would ensure that we had the capacity to provide for whatever businesses were available.

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

The minister did not answer the question about household occupancy rates, and I ask him if he will. What is the household occupancy rate in Indigenous communities expected to be at the end of the five-year period compared to the rate at the start of the five-year period?

The minister said that government funds had been spent on housing in the Northern Territory and that there are now fewer houses. We all know that that applies to the whole of the Australian community. Billions of dollars have been put into housing, but there are fewer houses held in government hands now than at the outset, simply because they have been privatised or disposed of in other ways.

We have to be very careful with the statistics here. It is important that we know what the government’s game plan is. When it comes to this housing allocation in the Northern Territory, the land is being taken from the Indigenous people—for five years in the first instance—without consultation. That is what I meant. This government did not consult with Indigenous communities in the Northern Territory before taking this action. The government says it is going to consult from here on in, but its record belies that will be anything other than paternalistic approach to the future for Indigenous communities. If this is so serious that it is going to lead to the removal of the Indigenous people’s authority over their own land, what is the outcome in terms of reducing the household occupancy rates, which the minister cited as being the problem which connects us to the violence and abuse?

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

I would go firstly to the complex nature of the circumstances in communities, to the complex nature of the provision of housing and to the complex nature of the occupation of the houses. It is a seasonality issue. There are a whole range of issues about the number of houses. Do we have a target for how many people should live in each house? No, we do not. I certainly am not aware of one. I am not sure that that is absolutely essential. The term ‘normalisation’ means we want to have the number of people living in houses at the level that you and I enjoy. That is the vision. It is not a five-year vision; we are in this for the long haul.

Communities’ needs are vastly different and we should respect that. For the sake of practicality, some communities have very low levels of occupation and some have very high levels of occupation. Townships which have a language difference have higher or lower occupation depending on what is happening. Independent assessments, which are being conducted at the moment, of each of the communities will provide us with some ideas and direction about the nature of the housing. You have already heard of some of the pilots we have conducted in terms of the nature of housing. We believe there can be some economic efficiencies in terms of critical mass, the numbers of houses we are able to purchase. We are in this for the long term. We know that, if a house is overcrowded, that house will function for a much shorter period. We acknowledge all of those things, and those issues will be taken into consideration as we further roll out our strategy. As I have indicated, it is the government’s stated intention that we will bring the strategy to this place within six months and report back again in 12 months. That will include a housing strategy which will reflect the needs and diversity we find among communities and within those communities.

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

The problem with that is that, yes, you report back, but the legislation is through the parliament. If the report indicates that there are problems with it, unless things change in terms of the parliament—and well they might—we have no power to change the government’s trajectory. What surprises me here is that there is no ultimate plan involved in taking away the authority of people over their land—this incredibly important relationship and empowering factor in Indigenous communities—on the basis that the government is going to roll in and build new houses but it does not know how many and, as the minister says, it is incredibly complex. I agree with him on that. It is an extremely complex matter, but what the government has decided here is not complex—and, I submit, right at the heart of that complexity is the relationship of Indigenous people with their land. The government said: ‘We’re cutting through that. We’re taking that at the outset. We’re disempowering communities and we will do as we want over the next five years in consultation with you.’ But we know what that means, and that is the problem here.

It did not have to be this way. These outcomes could have been achieved, particularly if the Prime Minister had not turned his back on Indigenous Australians, with much better outcomes by now and moving through into the future. The minister says it is long term. I would agree with that and I agree that really earth-changing action has to be taken but not earth take-away action like this. It is very important that these communities do not have their spirit taken from them.

Can you imagine if this were legislation taking away for five years church property around the country because there has been child abuse in certain church properties, leading to millions of dollars in damages suits? Indeed, some church property is being put on the market to pay for it. Can you imagine, if that legislation were before the parliament, what the mayhem would be? No. That has not happened and it is not going to happen, but Indigenous people are suffering the taking away of their relationship with and authority over their land because this government thinks that is a simple thing to do which appears to them like a first move but it cannot explain what it is doing after that. It is wrong, you see. This whole plan was devised even without cabinet, let alone consultation with this parliament, let alone consultation with the people who matter most—Indigenous Australians.

I go back to what Senator Milne asked. Minister, you said you want hairdressers, that they can do that now. There is a real concern that this will not be the end of the takeover of land by the Commonwealth and that big vested interests have a stake in this. Can the minister say that none of these lands which are being taken over will be given to entities other than those Indigenous communities involved, in terms of infrastructure?

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

It is probably useful to take the last question first. No, that is not the case. I would like to reflect for a moment on something that is close to my heart—that is, the spirituality of Aboriginal people and the communities in which they live. I respect the fact that the senator acknowledges that. I have to say that, as the intervention task force moved in, their spirits lifted. You assert that it is like taking a brick out of the church. You can make those assertions, but the land always belongs to them. It is not having an impact on native title. The Aboriginal land rights act still applies. When I speak to Aboriginal people about this matter I find that, yes, there was some concern over the first couple of days and there was a lot of mischief in the communities. It is very difficult to communicate in the communities and I acknowledge that perhaps we could have done that better. But, at the end of the day, the spirits of the people in these communities have been lifted. They have not been disempowered; they have been empowered. Now, for the first time in years and years, they enjoy the same rule of law and order that everyone takes for granted, that you and I take for granted.

If somebody threatens you with a stick or smacks you in the side of the ear when you are going down to the ATM, you have someone you can complain to about that. You do not just hold your ear and go home. The little people, particularly the women and children, in these communities, can now stand up to such threats in the same way that women and children in our community can. I have to say that their spirits have been lifted, and that is why I am such a strong supporter of the intervention and the legislation that is so necessary to provide for that. The land always remains Aboriginal land. The only difference to the land from the time we arrive until the time we leave will be the five-year strategy—it is a clear strategy—in which we will move over a range of fronts to improve the lives, wellbeing, safety and security of the Indigenous people who live in those communities. It is simply not reasonable to assert anything else, Senator. You find it difficult—and I accept that—to understand why there is a tie between our need to acquire this land and the safety of its people. I have been quite clear in my attempt to explain why that is the case. We are not going there with any other reason than to reflect the will and the feeling of the Australian people. The Australian people are saying to us: ‘This is a great thing. Go and help these Indigenous communities. Let’s make a real change.’ These laws do just that.

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

The Greens do not disagree with lifting the spirits of Indigenous people. I note the letter from the Elliott Community Council, which says, ‘There’s a huge amount of money to be expended here, effectively, and we have infrastructure needs and we want to be part of what the government is doing here.’ The minister himself says, ‘People have got to understand that they are feeling better without the land being taken off them for five years.’ The minister himself has given the argument that I put: you do not need to take land off people to make them feel that they have got more security, that they are going to get better services or that something is finally going to be done about the grog supply or, indeed, the abuse and violence. Those are things that we all want. I am not disputing that, but you cannot go to that argument, Minister, when you are asked specific questions about the aim of the government in taking over the land. You argue that it is to put in housing. But what aim does the government have in mind over the five years? You cannot give me an answer to that question. You said that you were in this for the long term, so can you tell the Senate that this arrangement for taking away the rights of people to make decisions about the use of their land and what is put on it for five years will end in five years and will not be extended?

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

I think I can remember long enough to take the questions in the order they were put this time. We do have a strategy. At the end of five years—as I have articulated, but I will say it again because perhaps it was mixed in with some other assertions I was making—we would like those communities to be the same—

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

Can you guarantee that it will end in five years?

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

That will be your second question. I will take it in a moment. With regard to your first question about the standards—and that is what we are looking for—you are asking the question: what is our plan? At the end of five years these communities should enjoy the same level of law and order, the same level of housing and the same level of amenity that the rest of Australia enjoys. Will the land be given back at the end of that period—it will not be extended? Absolutely. It is a sunset clause. It will not have to go through the parliament. When five years expires from the day this legislation is enacted, those provisions will be lifted and the land will return to exactly the way it is today, except for the fact—and I wish this to be so and I am sure that you share my hope—that the circumstances in which those people find themselves will be drastically changed for the better.

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

I am looking for the government to give a guarantee that the five years will not be extended.

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

I am happy to give that guarantee.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I would like to follow up on an issue where you indicated to Senator Brown that there will be no big corporate interests facilitated by this bill. When I asked specifically about mining, you talked about hairdressing establishments. I specifically asked about that, and you said that this legislation will not in any way inhibit private sector development. I would like to know whether any of the privatised land that will be used for infrastructure development can in any way be accessed through partnerships or anything else by the mining industry or by any mining company.

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

I will make just a couple of points. Part 4, which contains the provisions for exploration of mining under the land rights act, is unaffected, including the veto. That is perhaps not part of your question but I think it is important. To give you a clear answer: we are not building houses for mining companies.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

That is not what I asked. I asked for a guarantee that, under this legislation, privatised land cannot be accessed by the mining industry in any way, shape or form through partnership either with the government or with anybody else.

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

You are asking me for a guarantee about future acts that I know nothing about. We are talking about this legislation. I am not guaranteeing that people are not going to grow giraffes in these communities. We can go through a whole plethora of things, but I just do not think that would be useful. If there is some aspect to the legislation that you think indicates that that might be the case, I am more than happy to discuss it with you if you can bring it to my attention. From my scrutiny of the legislation, nowhere does it indicate that we are making it easier for one particular sector or another. I have said that we will not be building any structures for mining. We have no interest in providing one way or the other for any sector, including agriculture. These provisions are specifically to further protect women and children in these communities. That is what these provisions are about.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Before I respond to that, I draw your attention to the articles in last weekend’s papers from elderly Aboriginal women. They said that this legislation will make humbug worse for them, that they will be subject to more violence because of the breaching on social security and that they will be subject to more pressure and violence for their social security income from younger or other people in the community who are subsequently breached. So I draw that to your attention. I intend to come back to that later in the discussion of that particular bill.

In relation to the mining industry, my understanding is that you are privatising land because you want to provide infrastructure in those communities, but ‘infrastructure’ is not defined. You say that at the end of five years there will be ongoing interest in that particular land from the Commonwealth, the Northern Territory or any departments thereof. I also note that you said that the provisions of the land rights act still apply and so on, but I do draw to your attention that last year the government moved to allow for the nomination of a waste dump on Indigenous land without the consent of Indigenous people. It allowed the minister to approve a nuclear waste dump on Indigenous land without the consent of Indigenous people, and it also legislated to take away procedural fairness from Indigenous people. So you can hardly be surprised that Indigenous people or the general community are extremely cynical about a move to privatise land—especially when we know that the uranium miners are out there now, in large areas of the Territory. And, by coincidence, a lot of the prescribed areas would be enormously satisfying for the industry if they were able to service them from infrastructure in those communities. That is why I am asking specifically about this: we know that the mining industry has been a driver of the campaign against land rights and undermining Indigenous land rights.

The point I make is this: this legislation privatises land for the purposes of infrastructure. You have not defined ‘infrastructure’. You have said it is not designed to stop private enterprise. What is to prevent a mining company from entering into a partnership with the Commonwealth or with a community to access some of this funding to build infrastructure to support mining exploration or some other mining development, including a nuclear waste dump?

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

We have suddenly discovered that the hidden wealth of Australia’s mineral resources is in fact hiding under each and every one of the 63 prescribed communities! Give me a break. This is a serious matter, and you are suddenly putting to this place that this is some kind of a Trojan Horse so that we can mine the area of the townships.

Perhaps I should describe the nature of the prescribed communities. We are talking about the area literally around where the houses are at the moment. We have a community and basically the boundary fence of the community is there, and that is where we are talking about. Having a radioactive waste facility, a mine or mining infrastructure there is not the intention. As I have said, it seems so silly to stand in this place and work through and guarantee all the things that we are not doing. We could spend forever here. Your particular bent is ensuring that there is no assistance given to mining. This legislation is specifically to provide infrastructure to help out Indigenous Australians. The land is not being privatised. The things that government is able to do with the land are spelt out in the legislation. Whilst I am more than happy, in the spirit of trying to get through this, to continue to do this, I would say that all of the amendments you are discussing are already behind us. They have already been voted on. There are no amendments that we are currently considering, or are likely to consider, that cover this area.

In light of some of the previous discussions we have had in this place, I have continued to debate this issue and provide information where I can, even though there is no reason for me to do so, because it has already been debated. If I am showing some frustration I apologise; it is not normally my way, Senator Milne. You can continue to ask questions about what we are not going to do. I would prefer if we could just focus on the bits of the legislation that concern you about what we have allowed. We have been quite prescriptive in the legislation about what the government are able to do in these communities, and it reflects our clear intention to make these communities better places to be.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

There is a deliberate misrepresentation there. What I was talking about was infrastructure to support those developments, not digging up and mining the communities within the boundaries of those communities. That is clearly not what I was talking about. I was talking about developing a node or point, if you like, in infrastructure. That is the point I was making, so please do not misrepresent that as suggesting anything to the contrary.

In relation to having dealt with this previously, the government did not provide an opportunity through a Senate committee process for a proper length of time to allow people to come before it and to tease out what it actually meant. My colleagues and I have tried to establish, throughout this debate, what is meant by it. I have heard what the minister had to say, and it will be noted. In terms of privatising the land, I would argue that that is precisely what will happen, because there is communal ownership now and it will go into lease arrangements—and, at the end of five years, I will be very surprised if that privatisation process is ever reversed.

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

I table the Hon. Mal Brough’s response to the Scrutiny of Bills Committee’s Alert Digest No. 9, as I said I would yesterday.

Question put:

That parts 3 to 6 stand as printed.

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

The Democrats oppose part 7 in the following terms:

(8)    Part 7, Division 4, page 82 (line 2) to page 85 (line 6), TO BE OPPOSED.

This amendment is to oppose part 7, division 4 of the legislation, which refers to the acquisition by the Commonwealth of the assets and liabilities of a community store. Part 7 more widely deals with the licensing of community stores.

I continually seek to point to and highlight common ground and to attempt to find constructive and cooperative ways forward and I would note that, in the sections related to community stores, the general stated aim of action is one that is, broadly speaking, welcome. The feedback I have received from a wide range of people, including Aboriginal people and groups, is that some concerted action to improve the situation of community stores is welcome. I put that on the record. I am not sure why I keep making the effort of positively acknowledging what the government is doing, because it certainly does not acknowledge our approach. Indeed, even yesterday Minister Brough once again completely misrepresented the Democrats and made grossly false statements about the Democrats’ ‘inaction’ in this area—but I will deal with that at another time.

The section dealing with the licensing of community stores recognises that there would be potential benefit in improving the situation of community stores. As with every example and comment with regard to this area of activity in the Northern Territory and with indigenous communities more broadly, it is not a situation of universal disaster across the board: there are positive examples of stores as well as extremely negative examples. There are different types of circumstances, different situations, different contexts, in all of the different communities; it is not an across-the-board disaster area. I hope that is acknowledged by the Commonwealth in the implementation of all of these things. I hope they do not take a scorched-earth approach and try to reinvent the wheel in areas where the wheel is actually doing okay. Nonetheless, there is undoubted merit in improving the situation of community stores.

I will not pass comment on all the other measures that are being taken, whether it be in this intervention or in a lot of other areas to do with Indigenous people, or on all the different ideas that people have. However, in the feedback I have had from people in the Northern Territory, more than one person has said to me, ‘If you could just make sure that all of the kids get a couple of good-quality meals each day—which could be done pretty cheaply—then you would be making an enormous difference to the health of those kids.’ I know that is a wider issue than sexual assault, but we were talking about the wider issue of the health of children, which is an overarching issue. If you get good-quality food for those kids each day, the health benefits, the social benefits, the wider community benefits, would be enormous and that could be done without massive expense. It would obviously be at some expense—getting food to these areas is not cheap—but, on a national scale, the cost of doing it should not be that large, and it certainly should not be beyond the wit of Australia. I am not sure that delivering it through the government is necessarily the best way of doing it. Utilising private means and community based means and leveraging off private enterprise may well be better ways of doing it, rather than through a government command economy way. That is a broader comment.

The Democrats amendment goes to part 7, division 4 of the legislation, on page 82:  ‘Acquisition by the Commonwealth of assets and liabilities of a community store’. The Democrats’ reasoning behind this is that we think there are other alternatives. We understand the intent; it is the same intent with everything else: the Commonwealth identifies a problem and it thinks the best solution is for it to take over.  We do not believe the compulsory acquisition power is necessary for dealing with stores’ management issues. We think they can be dealt with without giving the power to seize assets. In many communities, the community store is the only viable business, and to have that only viable business able to be acquired by the Commonwealth is a huge step. People should not be dismissive of what that is about. While we are not touching on some of the other aspects to do with the licensing of community stores—the varying of licences, the revoking of licences—the acquisition of assets and liabilities is a step further than is needed. There are already quite substantial powers in other areas.

That is the rationale behind the Democrats amendment. I have an alternative amendment if this one should fail—which, frankly, is pretty likely. Mind you, my alternative amendment is probably pretty likely to fail as well. But it is possible there might be a sudden outbreak of willingness to engage and listen on the part of the government. We will see what happens.

There are several questions I would ask with regard to division 4, ‘Acquisition by the Commonwealth of assets and liabilities of a community store’. Firstly, for the record: what are the appeal mechanisms if the Commonwealth moves to acquire; is appeal through the courts the only avenue, and, if that is the case, what is the scope of that appeal—is it in any way a merits review or is it a court being able to assess the lawfulness or otherwise of the action? Secondly, what is the mechanism for compensation if there is an acquisition by the Commonwealth?

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

The assertion that there is only one store, that the Commonwealth would be taking over that store and that this is some sort of draconian power does not really reflect the intention as stated in the legislation. Clearly there are a whole range of provisions available before that particular power would be used. But we can say that it is about ensuring that stores operate in the normal way that we would expect stores to work, as I was saying to other senators today. When you go into a store the food is actually marked with a price tag. You would assume the quality of the goods in the store is up to scratch; you would assume that the store is not filthy; you would assume that the store does not have rats running across all the products at night; you would assume that you would have some sort of notice of opening hours, that you would know what they were and that the storekeeper would not just open whenever they felt like it; and you would assume that they would actually have fresh fruit and vegetables.

We have some fantastic stores in these communities—for instance, the Arnhem Land Progress Association is one, also Galiwinku and Palumpa, and I have been to plenty of others. These are outstanding stores that provide all of these things. But, unfortunately and tragically, in some communities that is not always the case. So it is our intention to ensure that, as part of this intervention, normal access to fresh fruit and vegetables is available to people in these communities. As I have said, it is a complex and sophisticated circumstance that we are dealing with and it needs a complex and sophisticated solution. The solution provided is ensuring that every store will have access to the same level of amenities that we who live outside of those communities take for granted.

When we have gone through the process of giving the community stores the opportunity to improve through a conditional licence and assisting them in that way, they will be approached and afforded the opportunity to take on a new operator if the operator is the problem. Where it is feasible, and other avenues to license the existing store have been pursued, the government then may consider facilitating the establishment of a new store. In areas where there is only one store and we have tried every single thing—and we will try all of those things—yet the store still does not provide reasonable service and food to these communities, the government reserves the right to move to acquire it. In some of these communities fresh vegetables and fruit are foreign to them. That should not be the case. So we will go all the way, right up to where we have strived to do everything, but I can tell you that this government is not going to accept: ‘Oh, well, we did our best. We’ll do everything else but you simply won’t be able to feed yourself properly.’ Roger Corbett, who is on the task force, used to be the CEO of Woolworths, ‘the fresh food people’. We are seeking his advice to ensure that the standards we are asking for the stores reflect the standards required in the wider community.

So I say again: this will be a power of last resort. We think the communities deserve the knowledge that, when this legislation has passed, we will work responsibly with the community stores to ensure they are providing those standards, and many of them are. The good stores will remain and will be encouraged. In fact, they may be the sorts of operators we would like to see in the other communities. But at the end of the day we have a compact with Indigenous Australia. We have said that we will stop at nothing to provide the same level of amenity. That does not mean saying, ‘If we can’t get the cooperation then, at a certain point after we’ve tried everything, we’ll simply give up.’ That is not what we are doing in this case. The suite of processes identified in the legislation ensures that this power is definitely a power of last resort. It is important to retain this power to acquire assets of stores, as has been written into the legislation, as a last resort.

Specifically, with regard to your question about appeal, like much of this legislation the right of appeal is through the courts. The assessment process is exactly the same as for the acquisition of any property. It will depend entirely on the circumstances, which in some circumstances may well be a lease, but in other circumstances no lease may be involved. So the assessment of property would be on those terms.

There is no mischief, no hidden agenda from the government. We are simply saying that dietary factors have an absolutely close tie to health. I know the senator is not disputing that. But it is a very important point to make that the health and wellbeing of these communities is a fundamental part of this—all aspects are connected: health, education and housing. That is why, for each one of these endeavours, we have ensured that all of those anticipated blockages to our providing the same level of amenity are removed, whether those blockages are housing, infrastructure, school attendance or inappropriate use of welfare payments or whether it be, as it is in this case, the very simple thing that people take for granted—that is, the provision of food for your health.

Whilst you have not asserted it on this occasion, Senator Bartlett, it has been put to me that we need to demonstrate a close tie between any aspect of this legislation and the prevention of violence and sexual abuse in Aboriginal communities. While I am probably not able to make that assertion directly in this case, one would think the general wellbeing of the community was a fundamental plank in resolving the circumstances that these First Australians find themselves in.

Again, it is important to retain the power to acquire assets. I assure you that this will be a power of last resort. As we indicated in the legislation, this would be considered only when the community store is the only store available to the community but it has not been possible to issue a licence, and the store needs to be licensed to participate in some sort of income management process. We would then go through the full suite of processes in consideration of the store, as I indicated to you earlier. The stores will be given every opportunity to come up to a simple standard that every other Australian takes for granted. I think Indigenous Australians, particularly young Indigenous Australians who are growing up in these communities, deserve nothing less.

Progress reported.