Legal and Non-Legal Responses (HSC SSCE Legal Studies): Revision Notes
Legal and Non-Legal Responses
The Northern Territory National Emergency Response (NTNER) was introduced in 2007 following the Little Children are Sacred report, which identified child sexual abuse in Indigenous communities as a crisis requiring urgent action. The federal government's response involved both legal and non-legal measures, many of which proved controversial and faced criticism for being discriminatory and regressive.
The Little Children are Sacred report was a comprehensive inquiry into child sexual abuse in Indigenous communities that provided the catalyst for the federal government's intervention. The report's findings were used to justify unprecedented measures that would significantly alter the relationship between the government and Indigenous communities in the Northern Territory.
Legal responses
Northern Territory National Emergency Response Act 2007 (Cth)
Prime Minister John Howard declared the situation a 'national emergency' and announced a $587 million funding package. In August 2007, Parliament passed legislation implementing nine key intervention measures under the NTNER Act.
The nine key strategies
1. Enhanced police presence
Additional police officers were deployed to designated remote areas and Indigenous communities across the Northern Territory. This aimed to improve law enforcement and community safety.
2. Abolition of CDEP
The Community Development Employment Program (CDEP) was dismantled. This employment creation and income support scheme had operated in remote Indigenous communities since the late 1970s, providing work opportunities and supporting community projects.
The abolition of CDEP had severe consequences for Indigenous employment and community wellbeing. Many Indigenous workers lost their jobs without notice or severance pay, facing an immediate reduction of approximately 50% in their income as they were forced onto welfare benefits.
3. Income management (quarantining)
All welfare recipients in designated communities had a portion of their benefits quarantined through a system called income management. Parents who neglected their children faced complete quarantining of benefits under the School Education Attendance Measure (SEAM).
Quarantining is a system where the government allocates a portion of welfare income for specific approved uses such as food and clothing, preventing expenditure on items like alcohol, gambling products, or home brewing equipment.
4. Alcohol restrictions
New restrictions were imposed on alcohol consumption and possession in designated areas. The NT Liquor Act was modified to create 'alcohol protected areas' where consuming alcohol became an offence under s 8 of the amended legislation.
5. Pornography filters
All publicly funded computers were required to have pornography filters installed to protect children from harmful content.
6. Compulsory land acquisition
Townships held under Native Title Act provisions were compulsorily acquired through five-year leases (later extended to 10 years from 2012). The government justified this under s 51(xxxi) of the Constitution, which requires 'just terms' compensation for property acquisition.
The compulsory land acquisition represented a significant erosion of Indigenous land rights that had been hard-won through decades of activism and legal reform. This measure would later be challenged in the High Court case Wurridjal v Commonwealth.
7. Removal of customary law considerations
Courts were no longer permitted to consider customary law or cultural practice when making decisions about bail applications or sentencing in criminal proceedings. This reversed developments from the 1990s where such considerations had played an increasing role.
8. Suspension of the Racial Discrimination Act
The Racial Discrimination Act was suspended to allow implementation of the NTNER measures. Indigenous Affairs Minister Jenny Macklin ended this suspension in 2010.
The suspension of the Racial Discrimination Act from 2007-2010 was unprecedented and highly controversial. It effectively removed legal protections against racial discrimination specifically to implement measures that targeted Indigenous communities, raising serious questions about human rights and equality under Australian law.
9. Removal of the permit system
The permit system established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was abolished. This had previously allowed Indigenous communities to control access to their lands.
Deployment of military personnel
The Australian Defence Force (ADF) deployed approximately 600 military personnel to remote communities. Their role involved:
- Delivering trade services including engineering, construction and transport
- Establishing 18 new police stations and safe houses across five remote communities
- Providing logistical support during the wet season
- Assisting child health check teams who examined all Indigenous children under 16 years of age
The government argued this military involvement was not unusual, noting that the Army had worked in outback Indigenous communities for decades, including mapping Northern Australia between the 1920s and 1980s, and providing medical assistance since the 1950s. However, critics viewed the military deployment as an aggressive show of force that reinforced the paternalistic nature of the intervention.
The BasicsCards system
Following CDEP abolition, the government introduced BasicsCards for income management. These cards contained credit that could only be spent on approved items such as food and clothing. Recipients could not purchase:
- Alcohol or home brewing equipment
- Gambling products
- Various other goods and services available to non-Indigenous Australians
Practical Problems with BasicsCards
The BasicsCards system created significant practical problems that undermined its effectiveness and caused considerable distress to recipients:
- Recipients often could not check their card balance easily, leading them to select cheaper, less nutritious food to avoid the embarrassment of insufficient funds at checkout
- Fresh foods including meat, vegetables and fruit could only be purchased in very small quantities due to their higher cost
- In remote areas like Camel Camp (250 km north-east of Alice Springs), the cards proved almost useless due to lack of stores accepting them and absence of fresh food supplies
When CDEP was abolished, many employees lost their jobs without notice or severance pay. They were forced from full-time salaries to welfare benefits worth approximately 50% of their previous income. The federal government saved an estimated $232 million through abolishing CDEP.
Impact on customary law in sentencing
The removal of customary law considerations reversed important legal developments. In R v Fernando (1992) 76 A Crim R 58, Justice Wood (NSW) had established that courts should consider the socio-economic circumstances of Indigenous offenders when sentencing. He recognized that:
- Alcohol abuse often reflects the environment in which the offender grew up
- This can be taken into account as a mitigating factor
- Problems of alcohol abuse and violence are linked in some Indigenous communities
- More subtle remedies than imprisonment may be needed
Similar approaches were adopted in Northern Territory cases including R v Benny Lee (1974) NTSC 221 and Robertson v Flood [1992] 111 FLR 177, which recognized that imprisonment was often ineffective as a deterrent given the cultural breakdown and hopelessness in affected communities. The NTNER's removal of these considerations represented a significant step backward in the development of culturally sensitive sentencing practices.
Constitutional challenge: Wurridjal v Commonwealth
The NTNER faced a significant legal challenge in Wurridjal v Commonwealth of Australia [2009] HCA 2. Mr Reggie Wurridjal, a senior member of the Dhukurrdji clan, challenged the compulsory acquisition of his people's land (10 km² in area) in October 2007.
Case Analysis: Wurridjal v Commonwealth [2009] HCA 2
Parties:
- Plaintiff: Mr Reggie Wurridjal (senior member of the Dhukurrdji clan)
- Defendant: Commonwealth of Australia
Issue: Was the compulsory acquisition of Indigenous land consistent with the 'just terms' requirement in s 51(xxxi) of the Constitution?
Arguments:
- Mr Wurridjal claimed the land seizure violated the 'just terms' requirement in s 51(xxxi)
- The government defended the acquisition under s 122 of the Constitution (territories power)
Ratio Decidendi: Section 122 of the Constitution gives Parliament the power to make laws for the governing of any territory, allowing the Commonwealth to override the 'just terms' requirement that would apply in the states.
Outcome: The High Court ruled in favor of the Commonwealth, rejecting Mr Wurridjal's challenge.
International law implications
The NTNER attracted significant international criticism for breaching human rights obligations.
UN findings
In 2009, James Anaya, the UN Special Rapporteur on Indigenous Rights, visited Australia and found the country was failing to comply with:
UN Convention Violations
1. UN Convention on the Elimination of all Forms of Racial Discrimination (UNCERD)
Australia had fulfilled its UNCERD commitments in 1975 by enacting the Racial Discrimination Act. However, the NTNER suspended this Act in 2007 to implement its nine strategies, contravening the convention.
2. Native Title Act obligations
The compulsory land acquisitions impacted on the Native Title Act and Indigenous land rights.
3. International Covenant on Economic, Social and Cultural Rights (ICESCR)
Articles 1 and 2 of the ICESCR were contravened because the NTNER failed to recognize culture as a central pillar of Indigenous Australian identity.
Stronger Futures in the Northern Territory Act 2012 (Cth)
When the NTNER expired in 2012, it was replaced by the Stronger Futures in the Northern Territory Act 2012 (Cth). This legislation:
- Extended many intervention measures for a further 10 years
- Provided a $3.4 billion funding package
- Increased penalties for alcohol offences (up to six months' imprisonment for possession of a single can of beer, and three times that for a six-pack)
- Maintained the prohibition on considering customary law or cultural practice in court decisions
- Introduced the School Education Attendance Measure (SEAM)
The Stronger Futures Act significantly increased penalties for alcohol-related offences, with sentences of up to six months' imprisonment for possession of a single can of beer, and three times that for a six-pack. These penalties were disproportionately harsh and represented a continuation of punitive measures against Indigenous communities.
School Education Attendance Measure (SEAM)
Under the Social Security Legislation Amendment Act 2012 (Cth), SEAM applied to both Indigenous and non-Indigenous families in designated locations. The measure required:
- Parents and caregivers to maintain minimum school attendance standards for their children
- Welfare payments could be withheld if attendance standards were not met
- Payments would only be restored when parents demonstrated adequate attendance rates
Consultation process
The government reported conducting over 450 meetings with 100 communities in mid-2011 before passing the Stronger Futures legislation. However, Indigenous leaders disputed whether genuine consultation occurred or whether communities actually approved the measures.
Despite fierce resistance and a 43,000-signature petition, the Stronger Futures legislation passed by June 2013, extending the intervention for another decade. The disconnect between community opposition and the government's claims of consultation highlighted ongoing concerns about Indigenous self-determination and meaningful engagement in policy-making processes.
Non-legal responses
Public discussion and criticism
Indigenous communities and leaders responded with strong opposition to the NTNER, arguing it constituted racial discrimination and represented a return to protectionist and paternalistic policies.
Prominent Indigenous voices
Barbara Shaw stated:
"People are living in third world conditions here and yet the government made the delivery of basic services and rights conditional on the rolling back of land rights. No other group in Australian society would be treated in this way."
Professor Larissa Behrendt observed:
"Aboriginal people whose communities were subject to the intervention were not consulted; their expertise, trust and partnership were unimportant to the federal government. And it was not lost on many that the rhetoric being used from Canberra was the same that earlier governments had used to justify the removal of Aboriginal children from their families."
Professor Behrendt's comparison to the rhetoric used to justify the Stolen Generations was particularly powerful, drawing parallels between the paternalistic justifications of past policies and the NTNER. Her observation highlighted concerns that the intervention represented a return to discredited approaches that had caused intergenerational trauma.
Organizational responses
North Australian Aboriginal Justice Agency (2009):
- Found people felt their self-worth had deteriorated
- Reported income management was both insulting and humiliating
Law Council of Australia:
- Argued affected communities would have been highly unlikely to reject medical and infrastructure services if their free and informed consent had been sought
Political context
Some commentators suggested Prime Minister Howard, facing an election in 2007, may have been motivated by electoral considerations rather than genuine child protection concerns. The intervention occurred during an election campaign, raising questions about political opportunism.
Demonstrations and activism
Stop the Intervention Collective Sydney formed as an activist group opposing the NTNER. The organization:
- Organizes monthly rallies and meetings in Sydney
- Meets twice per month
- Invites guest speakers to address the intervention's impacts
- Aims to reverse the legislation associated with the NTNER
Other forms of resistance included:
- Ceremonial protests (such as men in traditional paint dancing at Senate Committee hearings in Maningrida)
- Written submissions to government inquiries
- Media campaigns highlighting the intervention's failures
- Grassroots organizing in affected communities
Community Voices Against the Intervention
Dr Djiniyini Gondarra, a Yolngu leader from Galiwinku, Elcho Island, told a Senate Committee:
"This legislation is going to kill us. We are losing 9 or 10 people every week. People can't live. They have lost their will and all hope."
Helen Williams, representing homelands surrounding Maningrida, challenged government claims about consultation, stating the meetings had not given approval to the intervention measures.
These testimonies reveal the profound psychological and social harm experienced by Indigenous communities under the intervention, contradicting government claims of success and community support.
Key Points to Remember:
- The NTNER Act 2007 implemented nine key strategies including military deployment, CDEP abolition, income quarantining, alcohol restrictions, and compulsory land acquisition
- Quarantining (income management) restricted how welfare recipients could spend their benefits through BasicsCards
- The Racial Discrimination Act was suspended from 2007-2010 to implement NTNER measures
- Wurridjal v Commonwealth [2009] HCA 2 unsuccessfully challenged land acquisitions under s 51(xxxi) of the Constitution, with the High Court ruling that s 122 (territories power) allowed the Commonwealth to override 'just terms' requirements
- The Stronger Futures Act 2012 extended the intervention for 10 years with harsher penalties and introduced SEAM
- The NTNER breached UN human rights conventions including UNCERD and ICESCR
- Indigenous leaders and communities strongly opposed the intervention as discriminatory and paternalistic