Chapter 3 197 The Northern Territory ‘Emergency Response’ intervention – A human rights analysis On 21 June 2007, the Australian Government announced a ‘national emergency response to protect Aboriginal children in the Northern Territory’ from sexual abuse and family violence.1 This has become known as the ‘NT intervention’ or the ‘Emergency Response’. The catalyst for the measures was the release of Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, titled Ampe Akelyernemane Meke Mekarle: ‘Little Children are Sacred’. In the following months the emergency announcements were developed and formalised into a package of Commonwealth legislation which was passed by the federal Parliament and received Royal Assent on the 17 August 2007. The Human Rights and Equal Opportunity Commission welcomed the Australian Government’s announcements to act to protect the rights of Indigenous women and children in the Northern Territory. In doing so, the Commission urged the government and Parliament to adopt an approach that is consistent with Australia’s international human rights obligations and particularly with the Racial Discrimination Act 1975 (Cth).2 This chapter provides an overview of the NT emergency intervention legislation and approach more generally. It considers the human rights implications of the approach adopted by the government. Many details of how the intervention will work remain to be seen, and so the analysis here is preliminary. It seeks to foreshadow significant human rights concerns that are raised by the particular approach adopted by the government, and proposes ways forward to ensure that the intervention is consistent with Australia’s human rights obligations as embodied in legislation such as the Racial Discrimination Act 1975 (Cth). 1 Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release, 21 June 2007, available online at: http://www. fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm, accessed 18 October 2007. 2 Human Rights and Equal Opportunity Commission, ‘A human rights based approach is vital to address the challenges in Indigenous communities’, Press Release, 26 June 2007, available online at: www. humanrights.gov.au/about/media/media_releases/2007/45_07.html, accessed 9 November 2007. Chapter 3 198 Part 1 provides background on the announcement of the intervention and the findings of the Little Children are Sacred report. Part 2 then provides an overview of the legislative package to implement the intervention, the scrutiny process at the time of its introduction and related issues. Part 3 then considers the human rights impact of the intervention. Part 4 considers how to ensure that any actions to protect Indigenous children and women are done in a manner consistent with the human rights of Indigenous peoples. Social Justice Report 2007 Part 1: Background – The Little Children are Sacred Report 199 and the announcement of the ‘emergency measures’ On 21 June 2007 the Australian Government announced a series of broad ranging measures to be introduced in Aboriginal communities across the Northern Territory to address what it described as the ‘national emergency confronting the welfare of Aboriginal children’ in relation to child abuse and family violence.3 The Minister described the measures to be introduced as measures aimed at ‘stabilis(ing) and protect(ing) communities in the crisis area’ with all action ‘designed to ensure the protection of Aboriginal children from harm’.4 He described the measures as ‘a first step that will provide immediate mitigation and stabilising impacts in communities’. The extent to which the proposed measures would shift the social, cultural and legal landscapes of Aboriginal communities in the Northern Territory was immediately obvious. The Government described the measures to be introduced as follows: • Introducing widespread alcohol restrictions on Northern Territory Aboriginal land; • Introducing welfare reforms to stem the flow of cash going toward substance abuse and to ensure funds meant to be for children’s welfare are used for that purpose; • Enforcing school attendance by linking income support and family assistance payments to school attendance for all people living on Aboriginal land and providing meals for children at school at parents’ cost; • Introducing compulsory health checks for all Aboriginal children to identify and treat health problems and any effects of abuse; • Acquiring townships prescribed by the Australian Government through five year leases including payment of just terms compensation; • As part of the immediate emergency response, increasing policing levels in prescribed communities, including requesting secondments from other jurisdictions to supplement NT resources, funded by the Australian Government; • Requiring intensified on ground clean up and repair of communities to make them safer and healthier by marshalling local workforces through work-for-the-dole; • Improving housing and reforming community living arrangements in prescribed communities including the introduction of market based rents and normal tenancy arrangements; • Banning the possession of X­rated pornography and introducing audits of all publicly funded computers to identify illegal material; 3 Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release, 21 June 2007. 4 Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release, 21 June 2007. Chapter 3 200 • Scrapping the permit system for common areas, road corridors and airstrips for prescribed communities on Aboriginal land; and • Improving governance by appointing managers of all government business in prescribed communities.5 The Government also noted that it expected the Northern Territory Government to undertake the following, complementary actions: • Increase its efforts and resources to ensure the servicing and protection of its citizens in the range of areas of State and Territory responsibility and support, within the scope of its resources, the national emergency response; • Develop a comprehensive strategy to tackle the ‘rivers of grog’ across the Territory; • Resume all special leases over town camps in the major urban areas where lease conditions have been breached, with the Australian Government acting in this area if the NT Government fails to do so; and • Remove customary law as a mitigating factor for sentencing and bail conditions. The initial phase of the intervention is due to last for up to five years. It will apply in most Aboriginal townships and town camps in the Northern Territory (as ‘prescribed’ by the NT intervention legislation or subsequently by legislative instrument by the Minister for Indigenous Affairs). Initially, 73 communities were identified for application of the measures.6 The Government announced that the intervention would be overseen by a Taskforce of ‘eminent Australians, including logistics and other specialists as well as child protection experts’ to be chaired by Dr Sue Gordon AM. In announcing the intervention, the Minister stated that: The immediate nature of the Australian Government’s response reflects the very first recommendation of the Little Children are Sacred report into the protection of Aboriginal children from child abuse in the Northern Territory which said: “That Aboriginal child sexual abuse in the Northern territory be designated as an issue of urgent national significance by both the Australian and Northern Territory Governments….”7 He also stated that the immediacy of the broad scale change being undertaken was justifiable from the perspective of the urgent need to ‘stabilise’ the situation in Northern Territory communities, and that: 5 Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release, 21 June 2007. 6 Department of Families, Community Services and Indigenous Affairs, Transcripts: Mal Brough discusses the Northern Territory National Emergency Response Legislative Program, 6 August 2007, available online at: http://www.facsia.gov.au/internet/minister3.nsf/content/nter_6aug07.htm, accessed 15 January 2008. 7 Brough, M., (Minister for Families, Community Services and Indigenous Affairs), National emergency response to protect children in the NT, Media Release, 21 June 2007. Note that this and other statements by the Minister do not cite the full recommendation from the Little Children are Sacred report, which is significantly different in process. Social Justice Report 2007 I could not live with myself and I know that not one member of this House would 201 want to live with themselves knowing that we sat on a report like this for eight weeks and then said for another six or eight weeks that we would wait and try and come up with some answers and then start to implement them.8 The Minister has consistently stated that: ‘All action at the national level is designed to ensure the protection of Aboriginal children from harm’.9 The Little Children are Sacred report Our appointment and terms of reference arose out of allegations of sexual abuse of Aboriginal children. Everything we have learned since convinces us that these are just symptoms of a breakdown of Aboriginal culture and society. There is, in