Background (HSC SSCE Legal Studies): Revision Notes

Background

Introduction to the Northern Territory National Emergency Response

In $2007$, the federal government launched the Northern Territory National Emergency Response (NTNER), commonly known as 'the intervention'. This comprehensive program aimed to assist Indigenous people of the Northern Territory (referred to as IPNT in this context).

The primary objective of the NTNER was to protect Indigenous children from child sexual abuse. However, the intervention fundamentally altered the relationship between the federal government and Indigenous communities, creating significant conflict across multiple areas including child protection, alcohol use, school attendance, employment and other legislative matters.

Key features and criticisms

The NTNER was enacted through the Northern Territory National Emergency Response Act 2007 (Cth). Despite the government's stated intentions to improve lives, the intervention faced widespread criticism both locally and internationally for several reasons:

• Lack of consultation: The government failed to adequately consult with Indigenous communities before implementing the measures
• Undermining self-determination: The NTNER appeared to ignore Indigenous peoples' right to self-determination
• Paternalistic approach: Many felt the intervention carried the message that Indigenous communities were incapable of solving their own problems
• Reversal of progress: The Act seemed to overturn decades of law reform aimed at achieving equality

The Northern Territory context

Geographic and demographic characteristics

The Northern Territory covers an area of $1,347,525 \text{ km}^2$, making it the third-largest state/territory by area after Western Australia and Queensland. However, it has the smallest population of any Australian state or territory.

Key demographic facts:

• Total population: approximately $243,000$ residents ($2014$ Census)
• Indigenous population: approximately $56,000$ people
• Percentage Indigenous: $28\%$ – significantly higher than other states:
  • Queensland: $3\%$
  • New South Wales: $2\%$
  • National average: $2.5\%$

Homelands and cultural connection

Homelands are small to medium-sized communities established in the late $1960$s to allow Indigenous groups to maintain connections with their traditional and sacred land. Approximately $30\%$ of Indigenous people in the Northern Territory live in around $500$ homelands.

Quality of life indicators

The Australian Institute of Health and Welfare ($2015$) data reveals significant disparities between Indigenous and non-Indigenous Australians across key indicators:

Indicator	Indigenous	Non-Indigenous
Life expectancy (years)	Males: $69$, Females: $74$	Males: $79$, Females: $83$
Life expectancy NT (years)	Males: $61$, Females: $69$	Males: $78$, Females: $82$
Infant mortality (per $1000$)	$8-9$	$4$
Unemployment rate	$21\%$	$6\%$
Year $12$ completion	$55\%$	$82\%$
Year $7$ reading standard	$65\%$	$88\%$
Juvenile detention (aged $10-17$ per $100,000$)	$403$	$14$

Brief history of federal laws regarding Aboriginal people

Colonial period: Terra nullius and violence ($1788$-$1800$s)

Since European settlement in $1788$, numerous violent conflicts occurred between Indigenous and non-Indigenous Australians. The legal foundation for colonisation rested on two key doctrines:

Terra nullius (Latin: 'land belonging to no one'):

• Early settlers believed the land was unoccupied because there was no evidence of agriculture, herding or permanent settlements
• Indigenous peoples were assumed to have no legal or political organisation
• The land was therefore claimed as Crown land (belonging to the King/government)

Doctrine of reception:

• British law became the law of the new colony
• Indigenous legal systems were not recognized
• No charges were laid when Europeans hurt or killed Indigenous people

This legal framework led to numerous violent confrontations and massacres:

• Myall Creek Massacre ($1836$): $27$ women and children killed in New South Wales
• Skull Creek Massacre ($1874$): Up to $90$ men, women and children killed in the Northern Territory
• Coniston Massacre ($1928$): $70$ Indigenous people killed

Protectionism era ($1910$s-$1950$s)

During this period, legislation governing Indigenous people in the Northern Territory included:

• Northern Territory Aboriginal Act 1910 (SA)
• Aboriginal Ordinance 1911 (Cth)
• Aboriginal Ordinance 1918 (Cth)

Protectionism refers to a government's power to control and limit the behaviour of a group of people in the name of protecting them. These laws were characterized by:

• Forced removal of Indigenous people from homelands to reserves and government settlements
• Power to remove children from families (contributing to the Stolen Generations)
• Control over marriages and employment
• Paternalistic approach: treating Indigenous people as children requiring government guardianship
• Creation of a climate of inequality, prejudice and discrimination

Towards equality: The $1967$ referendum and beyond

The $1967$ referendum marked a turning point in Indigenous rights. Prior to this, the Constitution contained discriminatory provisions:

• Section $127$: excluded Indigenous Australians from the census
• Section $51$: gave states (not the federal government) power to legislate for Indigenous people, resulting in inconsistent laws across Australia

What the referendum achieved:

• Deleted Section $127$ from the Constitution
• Amended Section $51$ to allow the federal government to legislate for Indigenous people
• Enabled federal government to override discriminatory state laws
• Made Indigenous Affairs a federal government responsibility
• Became a powerful symbol of public recognition of Indigenous rights

Land rights movement

Gove Land Rights case ($1963$-$1971$):

In $1963$, Yolngu people created a bark petition protesting the loss of $300$ hectares of land to a mining company without elders' permission. This case represents a significant moment in the land rights movement.

• The case (Milirrpum v Nabalco Ltd) was heard in the NT Supreme Court
• Justice Blackburn ruled that the Yolngu people had no native title claim
• The decision relied on the doctrine of terra nullius
• Common law prevailed over Indigenous land rights

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth):

This landmark legislation brought significant changes:

• Some Indigenous land became privately owned under a permit system
• Land is neither Crown nor public land
• Traditional owners must give written permission for others to enter the land

Purpose of permit system:

• Protect privacy of Indigenous communities
• Preserve Indigenous culture
• Safeguard the natural environment

Major legal reforms

Racial Discrimination Act 1975 (Cth):

• Established legal rights and protection for Indigenous people
• Covered key areas: education, health and employment

Mabo decision ($1992$):

The High Court case: Mabo and Others v State of Queensland represented a watershed moment in Australian legal history.

Native Title Act 1993 (Cth):

• Gave Indigenous citizens legal entitlement to access land
• Allowed continuation of traditional lifestyle and customs on their land
• By the mid-$1990$s, many believed Indigenous Australians had finally achieved racial equality

The Little Children are Sacred report

Despite decades of law reform aimed at achieving equality, in August $2007$, Prime Minister John Howard and Indigenous Affairs Minister Mal Brough announced the Northern Territory Intervention – described as the most dramatic change in Indigenous affairs in Australia's history.

Background to the report

Nannette Rogers, Crown Prosecutor of the Northern Territory for $12$ years, raised serious concerns about the welfare of young Indigenous children during her work. Rogers urged the NT Government to commission a formal inquiry into child sexual abuse in Indigenous communities.

Key findings

In June $2007$, the Little Children are Sacred report was published. The report:

• Declared child sexual abuse in Indigenous communities a serious problem requiring urgent action
• Provided the federal government with justification for the intervention
• Led directly to the announcement of the NTNER