The Lie that Built the Northern Territory Intervention - Canberra

By The Honourable Alastair Nicholson AO, RFD, QC

Australia is the only western nation without a bill of rights and, indeed, is one of only a few countries in the world to lack such a bill. To me this is a strange paradox in a country that has in many ways been a world leader in promoting international human rights, and has not been slow to criticise human rights breaches by other countries.

Yet every attempt to introduce a bill of rights in Australia has been a failure at federal level, largely through lack of leadership & political will.

Six days later came the federal government intervention - entirely without consultation with the Indigenous people and ignoring the substantive recommendations of the report to which it was purportedly responding.

Some of the many objectionable aspects of the legislation involved:

  •  the suspension of the Racial Discrimination Act 1975;
  •  the adoption of income protection;
  •  the removal of social security benefits where a child is considered to be in need of protection, where the parents   •  reside in specified areas of the Northern Territory, or where a child has an unsatisfactory attendance at school;
  •  preventing a court from taking into account Indigenous customary law or practices in sentencing offenders;
  •  the acquisition of aboriginal lands by means of compulsory leases of up to five years duration;
  •  restrictions on the use of alcohol and pornography on Aboriginal lands, coupled with heavy penalties for breach and   •  offensive signage at the entrances to those lands; and
  •  the abandonment of the Community Development Employment Projects Program.

It takes only a moment to appreciate the injustice of most of these measures so far as the Indigenous community in the Northern Territory is concerned.

The suspension of the Racial Discrimination Act involved a direct attack on the meagre rights and freedoms of Indigenous people and should never have been countenanced. However, it was the essential plank that enabled the intervention to proceed. Almost all of the measures associated with the intervention involved direct racial discrimination and breaches of the human rights of the Aboriginal citizens involved.

It is noteworthy that in the presence of a bill of rights most of the objectionable aspects of the legislation, and much of the legislation underpinning that social policy, would have been liable to be struck down. A bill of rights would thus have acted as a real protection against the unwarranted seizure of power that has been involved.

However by cloaking itself in the guise of child protection, the government could brand those who opposed it as being in favour of child abuse. Because it controlled both houses of parliament it could also override the protection afforded by the Racial Discrimination Act, something that it could never have done if those rights had been enshrined in the constitution.

The power to restrict payment of social security benefits because a person lives in particular areas of the Northern Territory was clearly aimed at forcing Indigenous people to live in selected town areas that the government determined, rather than where the people themselves determined.

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Sadly the present government has continued with this strategy. Such measures are intolerable in a democratic society and would never be tolerated in the broader Australian community.

Similarly, benefits may be withdrawn in the event of unsatisfactory school attendance. Again this would be unacceptable in the wider community. Further, it involves a complete lack of appreciation of Indigenous culture, which does not necessarily involve a child living with the birth parents.

Wholesale compulsory acquisition of land for unstated purposes is another measure that would not be tolerated by the Australian community as a whole.

The situation was exacerbated by the then government's (and the present government's) inability or failure to give any sufficient explanation as to why all of these measures were necessary to protect the children.

I think that as time passes it becomes clear that the intervention was an exercise in social engineering to destroy Aboriginal culture and Aboriginal attachment to their traditional lands and to force Aboriginal people into suburban agglomerations to adopt a white lifestyle.

From the point of view of the then opposition, now government, one of the most shameful aspects of this affair was its failure to oppose the legislation. In government it has not abandoned the intervention, although several of its aspects have been alleviated in a cosmetic way.

The intervention has proved to be a costly failure in the object of protecting Indigenous children. None of the recommendations of the original report that sparked the intervention have been put into effect. The plight of Aboriginal children remains serious, despite countless reports and other interventions.

The Rudd government had promised to reinstate the Racial Discrimination Act, yet the deeply flawed legislation to reinstate it will not take effect until 31 December this year. It is flawed because it attempts to preserve many of the racist and discriminatory aspects of the intervention.

The current government has shown a single-minded determination to continue with most of the objectionable aspects of the intervention, seeking to characterise them as "special measures" under the reintroduced Act.

The 2010 legislation preserving income management continues to provide for an arbitrary subjection of all affected people within particular geographical areas to income management. Although this purports to be a non-discriminatory measure, in practice it continues to discriminate against Aboriginal people, who form the bulk of the welfare recipients in the affected areas.

The remainder of the 2010 legislation covering alcohol and pornography restrictions, compulsory five year leases, licensing of community stores, extended powers to the Australian Crime Commission and the like are sought to be justified as special measures. These do not qualify as special measures as a matter of law.

A special measure as defined under the United Nations Committee on the Elimination of Racial Discrimination (CERD) has also been defined by Australian courts as containing four elements:

  •  it must confer a benefit on some or all members of a class;
  •  the membership of the class must be based on race, colour, descent, or national or ethnic origin;
  •  it must be for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy
  •  and exercise equally with others human rights and freedoms; and
  •  the circumstances must provide protection to the beneficiaries which is necessary in order that they may enjoy and
  •  exercise human rights and freedoms equally with others. Furthermore a special measure must not be continued after the objectives for which it was taken have been achieved.

The United Nations Committee on the Elimination of Racial Discrimination and the Declaration of the Rights of Indigenous people now require that consultation and consent must occur before a special measure can be introduced and it is probable that this is also a requirement of Australian law. None of the present government's measures satisfy this requirement. Therefore the legislation appears to be inconsistent with the Racial Discrimination Act.

The government claims it has consulted the Aboriginal people about these measures but this claim does not stand up to examination. The only hard evidence of the government's so called consultation makes it clear that the so-called consultation was not consultation at all.

Further, a June 2010 survey of thirty-five Aboriginal elders from twenty-four communities revealed that 97 per cent believe they have not consented to the current intervention measures in their communities. Eighty-eight per cent of them did not believe they had been genuinely consulted. Two of these elders presented a report to the UN Committee on the Elimination of Racial Discrimination at Geneva in August 2010.

That committee has since reported in highly critical terms of Australia in relation to this issue. Despite this, the government is currently engaged in policies towards traditional owners of Aboriginal land that are little short of blackmail, requiring leases of 40 years and upwards over Aboriginal land as the price of discharging what should be its own obligation to provide the inhabitants with decent housing.

This is unconscionable behaviour on the part of government; it makes me feel ashamed to be an Australian. We should no longer tolerate this conduct by our government and we must act to create a new era in which we take pride in our Indigenous people and their achievements.

What needs to be done as a matter of urgency is:

withdraw the present flawed legislation purporting to reinstate the Racial Discrimination Act and reintroduce it in an unqualified form;
bring the intervention to an end;
  •  cease forcing traditional Aboriginal owners into executing lengthy and unconscionable leases and, with their consent,
  •  cancel existing leases that were forced on them in this way;
  •  provide proper housing and education services without tying them to land tenure;
  •  return control of Aboriginal lands to Aboriginal people;
  •  restore ATSIC or an equivalent body to take Aboriginal and Torres Strait Islander people into partnership as part of
  •  this nation and give them proper representation;
  •  provide proper health and education services to all Australians regardless of race or location;
  •  end the mistreatment of Aboriginal children and reduce family violence and alcoholism and enlist the Aboriginal
  •  people to help achieve these ends;
  •  amend the constitution in a meaningful way to recognise the rights of Aboriginal and Torres Strait Islander people;
  •  introduce human rights legislation to protect the rights of all Australians, including Aboriginal and Torres Strait Islander people.

How can we achieve these results?

We must inform ourselves and others of the real situation in the Northern Territory. We must tell our elected representatives this behaviour will no longer be tolerated. Organisations like Reconciliation Australia deserve support. Groups like "Concerned Australians" and "Stop the Intervention Now" are working to bring these abuses to public attention and also deserve support.

Above all we must not sit passively and let our fellow Australians continue to be treated as they have been since white settlement in this country.

Alastair Nicholson
The Honourable Alastair Nicholson AO, RFD, QC is the Former Chief Justice of the Family Court of Australia. He is an Honorary Professorial Fellow at the Department of Criminology, University of Melbourne.



Comment Source by 'justinTNT' 15/09/2010

I think it's pretty careless to suggest that the intervention was based on a lie. The Meke Mekarle ('Little Children are Sacred') report was detailed and considered, and exposed a significant incidence of child abuse in some NT communities. Of course, this shouldn't be too surprising, given the significant incidence of child abuse in some mainstream communities. But it shouldn't be ignored, or denied.

The lie wasn't that there is abuse. One obvious lie was the implication that it's everywhere and everyone. But the big lie about the intervention was that this heavy handed imposition of wayne gibbons' policies ever had a chance of making a positive contribution. In fact, despite claiming to be responding to the issues raised in the LCAS report, the NTER laws ignored not only the 97 recommendations, but the well made and emphasized urging that 'participation is essential to success'. Instead of taking on the tough task of working with communities at a local level to develop local responses to their particular issues, the intervention saw the imposition of a blanket one-size-fits-all response.

Sending in the troops may have been diametrically opposed to the clear recommendation to make NT communities participants in building their own solutions, but this makes sense when we remember that child protection was the justification, not the objective. The true motivation of government was to corral voters : 'black kids overboard'. On other grounds we may be thankful this disgusting ploy failed, but the determination of the incoming labor federal government to make aboriginal affairs a 'non-issue' for the populous states has badly harmed Territorians and NT communities.

There remain many good reasons to oppose the intervention, but surely one very important argument for abandoning the NTER laws is that they have utterly failed to address the stated objectives of improving the lives of children in NT communities.


I am well aware of Chris Graham's consistent attacks on Lateline and the ABC, which are based on misinformation and inaccuracy. It is a free country, and Mr Graham is entitled to his view, regardless of how misguided it is.
But anyone tempted to jump to conclusions based on his views should at least take the time to look at the facts.
The Lateline story was a thorough and important piece of journalism done in the right way and for the right reasons.
There were complaints, as might be expected when such difficult but important issues are highlighted.
Those complaints were investigated and were not upheld, save for one minor point about the failure to label one section of vision correctly.
All the wild allegations currently being perpetuated by Mr Graham were not substantiated. Anyone with an open mind and a commitment to justice for indigenous Australians - and in particular Indigenous women and children - are invited to read this, which sits on the ABC website -
Quite apart from this report, it is important to stress that the ABC continues to stand behind the excellent work done by the Lateline team.

Alan Sunderland
Head of Policy
ABC News

Racism & the Media: The Lies behind the NT intervention

Source: Stop the Intervention Collective Sydney Facebook article - 3rd Sept 2010

The Lateline story helped the federal government mount the case for the NT intervention. But it has been revealed, the story was built on a gigantic fraud. The scandal surrounding this story has already destroyed several careers, sparked a series of parliamentary brawls, an apology to federal parliament, not to mention police raids on homes in Canberra and Central Australia.

Tjanara Goreng Goreng, a former Howard government official turned whistleblower helped expose the government fraud leading up to the intervention – Goreng Goreng's home was one of those raided by police, but it was far from the highest price she would pay for speaking out.

It was Chris Graham's reporting that led to the raid on Goreng Goreng's home, and several others. He'll provide an insight into the ABC story, and detail a series of startling frauds perpetrated on Lateline viewers.

The spotlight on Lateline's reporting has already seen an 'anonymous youth worker' unmasked as a ministerial adviser, and a doctor caught prescribing Viagra to an alleged paedophile. Graham promises new information at the Forum.

"The scale of the fraud perpetrated by Lateline, and the determination of the ABC to whitewash this scandal and avoid any further scrutiny will leave your head spinning," said Chris Graham.

"If you think you know what media behaving badly looks like, then you need to think again.

"Lateline's reporting led directly to the greatest human rights abuse against Aboriginal people certainly of my time, and probably in the last half century.

"The Northern Territory intervention has harmed Aboriginal people; it's caused starvation; it's seen a dramatic rise in reports of self-harm incidents; it's driven children away from school; it's wasted hundreds of millions of taxpayer dollars. In short, it's been a disaster for the nation's most disadvantaged citizens, the people who could least afford it.

"The media has always played a crucial role in creating an environment where governments can get away with race politics during election campaigns. In this case, the government couldn't have done it without Lateline."

Jean Parker from STICS said: "The Aboriginal communities in Central Australia have sent a clear message to Canberra. With up to 40% swings towards a clearly anti-intervention candidate they are calling for the intervention to be abolished. The Labor government's expansion of income management has been sold as an end to discrimination, but for Aboriginal communities who have had their land and self-determination stripped away under the intervention, these amendments offer nothing."

The Australian Human Rights Commissioner Graeme Innes has called for the Racial Discrimination Act to be fully restored in relation Aboriginal communities in the NT. Shamefully the Labor government under Minister Jenny Macklin continued the discrimination inherent in intervention laws.

"The intervention is an outright return to assimilation, but many well meaning people have believed the government's claims that the policies are designed to help," continued Jean Parker.

"And ABC Lateline's dishonest reporting formed the basis of that myth," continued Chris Graham.
"I've worked in the media for more than 20 years, almost half of that in Indigenous affairs, so I already had a pretty mixed view about the conduct of many of my colleagues.

"Even so, I've always had a very positive image of ABC news and current affairs. It was one news source I felt I could really trust.
"I don't feel that way anymore."

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