Interminable Intervention

Father Frank Brennan
Father Frank Brennan

Frank Brennan Eureka Street February 13, 2011

Three years on since Kevin Rudd introduced to Parliament the motion of Apology to the Stolen Generations, many aspects of John Howard's Northern Territory Emergency Response (NTER), known as the Intervention, are still in place — to the consternation of many human rights advocates.

The Intervention was first instituted without any meaningful consultation with the Aboriginal people affected. Various aspects of that response were racially discriminatory.

Last year, the Australian Parliament passed amendments to that response — in part minimising the discriminatory effect of the law by extending compulsory provisions about income management of welfare payments to all Territorians and not just those living on nominated Aboriginal communities.

Most of the peak national bodies in the welfare sector have expressed principled objections to compulsory income management except for proven cases of recipients failing to discharge parental obligations. For example, Catholic Social Services argue that:

Adequate income support is an entitlement. It should not be a tool for governments or public sector managers to grant, withhold or modify in an effort to achieve 'outcomes'.

The government provided this rationale to Parliament, claiming to have conducted adequate consultation with those affected by these measures:

The Northern Territory Emergency Response Redesign consultations identified that income management had delivered discernible benefits. While there was a divergence of views, the majority of comments said that income management should continue. In the tier two meetings, people frequently said that income management should apply to all welfare recipients across Australia.

Critics of the legislation have been wary of government assurances about consultation. I have heard a variety of views in the Northern Territory. Some say their shopping trollies have never been so full, others that they must endure the shame of producing a welfare card in the supermarket checkout.

The Government explained to Parliament the other ongoing, discriminatory aspects of the Northern Territory intervention:

Apart from the income management scheme, which is designed to apply in a non-discriminatory fashion to any citizen in the Northern Territory within the specified categories, the Government has redesigned a number of the other measures dealt with by this bill so they are more sustainable and more clearly special measures under the Racial Discrimination Act.

The Government concedes that the new law still discriminates in four ways against Aborigines living on nominated communities. The new law states Parliament's view that the ongoing discrimination is justified as 'special measures' taken:

to reduce alcohol-related harm in Indigenous communities in the Northern Territory, to protect children living in Indigenous communities in the Northern Territory from being exposed to prohibited material, to improve the delivery of services in Indigenous communities in the Northern Territory and to promote economic and social development in those communities, and for the purpose of promoting food security for certain Indigenous communities in the Northern Territory.

I am prepared to concede the need for special measures in relation to alcohol and pornography, provided such restrictions are sought by local community leaders and are workable.

The other special measures are more questionable, especially given the compulsory acquisition of land that is the birthright of Aboriginal people. This is how the Government attempted to justify to Parliament the beneficial effect of government continuing compulsorily to lease 64 Aboriginal community living areas without the consent of the owners until August 2012:

This bill confirms the beneficial intent of the five-year leases to improve the delivery of services and promote economic and social development. The Government is committed to the progressive transition of the five-year leases to voluntary leases and the bill obliges the Commonwealth, at the request of land owners, to negotiate voluntary leases in good faith. The leases have already been improved by a substantial reduction in lease boundaries and the payment of rent has commenced, based on independent valuations undertaken by the Northern Territory Valuer-General.

Imagine if government had tried this approach with miners.

This is an instance of Indigenous Australians being denied the opportunity to speak for country and for themselves. If it is a good idea for government to lease land so as to provide greater services to a community, surely the community should be invited to negotiate freely the lease. If compulsion is required, you would think the government investment would be a case of good money after bad.

When this new law was passed, Jenny Macklin and Warren Snowden, the two Labor Ministers with the longest term commitment to Aboriginal policy reform, issued a joint statement saying:

The suspension of the Racial Discrimination Act (RDA) left Indigenous people feeling hurt, betrayed and less worthy than other Australians. Re-instating the RDA restores dignity and helps Indigenous Australians to take ownership of their lives and to drive change in the Northern Territory.

But not everyone thought this reform went far enough. There are still some Indigenous people and many of their supporters who feel hurt and betrayed by a Labor Government unwilling to take a principled stand, faithful to the letter and spirit of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) which was ratified by the Whitlam Government in 1975 and then legislated for Australian domestic purposes through the RDA.

Each time Parliament has debated native title (post-Mabo and post-Wik), there has been an esoteric debate about 'special measures' which affect only Aboriginal persons. Under the Convention, special measures should be temporary and taken 'for the sole purpose of securing adequate advancement' of the affected Aborigines, and they should 'not be continued after the objectives for which they were taken have been achieved'.

Back in 1985, Justice Brennan in the High Court of Australia insisted on the need for government to consult meaningfully with those persons to be affected by any 'special measure'. He said:

The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit. The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement.

Let's hope that by the fourth anniversary of the Apology, our statute books are stripped of measures which single out Aborigines for special treatment except in those instances where that treatment is voluntarily sought if not by the overwhelming majority of persons affected, then at least by community leaders speaking for their communities plagued by the abuses of pornography and excessive alcohol consumption.

Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.