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Abstract
The Northern Territory of Australia National Emergency Response (“NTER” and sometimes referred to as “the Intervention”) was introduced by the Howard government in 2007. The present Commonwealth government led by Mr Rudd continues to support the response, albeit with some adjustments.
The reaction to the response has been mixed. The most prevalent criticisms centre on the partial suspension of the Racial Discrimination Act 1975 (Cth) and that the intervention has been ineffective. This article expresses the view that the former is of marginal significance while the latter is plainly wrong. The situation has been thrown into sharper focus by the release of the Productivity Commission's ‘Overcoming Indigenous Disadvantage’ report in July 2009 showing that substantiated notifications of abuse inflicted on indigenous children nationwide more than doubled. In line with the trend, Northern Territory figures show notifications of abuse inflicted on indigenous children increased by more than expected (actual 4,415, as opposed to predicted 3,950).
The article examines the situation as at November 2009 and suggests a way forward to address a problem that the Prime Minister described as “devastating” when responding to the findings in the Productivity Commission report.
Notes
1. Andrew Hemming, ‘White Man Speak with Forked Tongue’, Australasian Law Teachers Association, 2007 Refereed Conference Papers, 62nd Annual ALTA Conference, University of Western Australia, Perth, 23–26 September 2007.
2. Northern Territory Board of Inquiry Into the Protection of Aboriginal Children from Sexual Abuse, ‘Little Children are Sacred’, Northern Territory Government (2007).
3. Second Reading Speech, Northern Territory National Emergency Response Bill 2007 (Cth), (Mal Brough MP, 7 August 2007).
4. Hemming (n 1) 5.
5. Australian Broadcasting Commission, ‘Noel Pearson discusses the issues faced by Indigenous communities’, Lateline, 26 June 2007 < http://www.abc.net.au/lateline/content/2007/s1962844.htm> accessed 16 September 2007.
6. Report of the Northern Territory Emergency Response Review Board, ‘Northern Territory Emergency Response’, Commonwealth of Australia, October 2008.
7. Australian Government Media Releases, Compulsory income management to continue as key NTER measure, 23 October 2008, 1. < http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/nter_measure_23oct08.htm> accessed 6 October 2009.
8. Racial Discrimination Act 1975 (Cth).
9. Australian Government Media Releases (n 7) 1.
10. Australian Government Media Releases (n 7) 2.
11. Australian Government Media Releases (n 7) 5.
12. Future Directions for the Northern Territory Emergency Response – Discussion Paper, 21 May 2009 < http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/future_directions_discussion_paper/Pages/default.aspx> accessed 6 October 2009.
13. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 23. A statement entitled ‘NTER consultation process: June to August 2009’, giving more details was subsequently released. < http://www.fahcsia.gov.au/sa/indigenous/progserv/ntresponse/future_directions/Pages/nter_consultation_process.aspx> accessed 6 October 2009.
14. Productivity Commission, ‘Overcoming Indigenous Disadvantage: Key Indicators 2009’, 2 July 2009 < http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009> accessed 6 October 2009.
15. Gary Banks, Chairman, Productivity Commission, ‘Are We Overcoming Indigenous Disadvantage?’, presented as the third lecture in Reconciliation Australia's ‘Closing the Gap Conversations’ Series, National Library, Canberra, 7 July 2009, pp 2 and 4 < http://www.pc.gov.au/—data/assets/pdf_file/0013/90310/cs20090707.pdf> accessed 7 October 2009.
16. Australian Crime Commission v NTD8 [2009] Federal Court of Australia Full Court 86 (Unreported, Black CJ, Mansfield and Bennett JJ, 10 July 2009).
17. Crime Body Wins Access to Kids' Health Files, ABC Online News, 10 July 2009 < http://www.abc.net.au/news/stories/2009/07/10/2622325.htm> accessed 7 October 2009.
18. Health Records Ruling ‘Worsens Crisis of Trust’, ABC Online News, 11 July 2009 < http://www.abc.net.au/news/stories/2009/07/11/2623103.htm> accessed 7 October 2009.
19. The Queen v QB [2009] The Supreme Court of the Northern Territory SCC 20910324 (Unreported, Martin CJ), 28 July 2009.
20. The Queen v QB (n 19) 4.
21. Report of the Northern Territory Emergency Response Review Board (n 6).
22. Australian Government Media Releases (n 7), Australian Government Initial Response to the NTER Review, 2.
23. Report of the Northern Territory Emergency Response Review Board (n 6) Summary of Recommendations, 12.
24. Australian Government Media Releases (n 7) 2–3.
25. Australian Government Media Releases (n 7) 3.
26. Australian Government Media Releases (n 7) 3.
27. Australian Government Media Releases (n 7) 3.
28. Australian Government Media Releases (n 7) 3.
29. H. McRae, G. Nettheim, T Anthony, L Beacroft, S Brennan, M Davis and T Janke, Indigenous Legal Issues, Commentary and Materials, (4th edn, Thomson Reuters, Sydney 2009), 61.
30. McRae et al (n 29) 62.
31. Report of the Northern Territory Emergency Response Review Board (n 6) 7–8.
32. Report of the Northern Territory Emergency Response Review Board (n 6), 8.
33. Australian Government Media Releases (n 7) 2.
34. Australian Government Media Releases (n 7) 2.
35. Report of the Northern Territory Emergency Response Review Board (n 6) 24.
36. Unless a person has a liquor permit or is drinking in licensed premises.
37. Part 2 of the Act modified provisions of the Liquor Act 1978 (NT), Liquor Regulations 1981 (NT) and the Police Administration Act 1978 (NT) and imposed new requirements on the Northern Territory Licensing Commission. The ban began on 5 August 2007. The previous government also amended the alcohol measures in the Northern Territory National Emergency Response Act 2007 (Cth), in the Northern Territory National Emergency Response Amendment (Alcohol) Act 2007 (Cth), which changed the application of alcohol prohibitions and defences and the record-keeping requirements for takeaway sales in the Northern Territory National Emergency Response Act 2007 (Cth).
38. Report of the Northern Territory Emergency Response Review Board (n 6) 24, Northern Territory Government Submission, 10.
39. Report of the Northern Territory Emergency Response Review Board (n 6) 24.
40. Report of the Northern Territory Emergency Response Review Board (n 6) 24.
41. Report of the Northern Territory Emergency Response Review Board (n 6) 25, Northern Territory Government Submission, 10.
42. Report of the Northern Territory Emergency Response Review Board (n 6) 28. Operation THEMIS is the name given by Northern Territory Police to the roll out of policing initiatives following federal intervention and is named after the Greek goddess described as of good counsel and the embodiment of divine order, law and custom.
43. Report of the Northern Territory Emergency Response Review Board (n 6) 33.
44. J Pocock, State of Denial: The Neglect and Abuse of Indigenous Children in the Northern Territory (Secretariat, National Aboriginal and Islander Child Care, Melbourne, 2003).
45. Report of the Northern Territory Emergency Response Review Board (n 6) 34.
46. Report of the Northern Territory Emergency Response Review Board (n 6) 34.
47. Report of the Northern Territory Emergency Response Review Board (n 6) 34.
48. Report of the Northern Territory Emergency Response Review Board (n 6) 35.
49. Australian Government Media Releases (n 7) 4.
50. Australian Government Media Releases (n 7) 4.
51. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12).
52. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12).
53. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 1.
54. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 3.
55. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 7.
56. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 7.
57. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 22.
58. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 22.
59. Australian Crime Commission v NTD8 [2009] Federal Court of Australia Full Court 86 (Unreported, Black CJ, Mansfield and Bennett JJ, 10 July 2009).
60. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 3.
61. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 4.
62. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 4.
63. Future Directions for the Northern Territory Emergency Response – Discussion Paper (n 12) 4.
64. Productivity Commission (n 14).
65. Productivity Commission (n 14) iii.
66. Productivity Commission (n 14) 7.
67. Productivity Commission (n 14) 23.
68. Productivity Commission (n 14) 23.
69. Productivity Commission (n 14) 23.
70. Pocock (n 44).
71. Productivity Commission (n 14) 24.
72. Productivity Commission (n 14) 24.
73. Overcoming Indigenous Disadvantage 2009 Report, Doorstop Darwin, 2 July 2009, 3–4 < http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/overcoming_indigenous__disadvantage_02jul09.htm> accessed 21 October 2009.
74. Overcoming Indigenous Disadvantage 2009 Report (n 73), 4.
75. Australian Crime Commission Act 2002 (Cth).
76. Administrative Decisions (Judicial Review) Act 1977 (Cth).
77. Australian Crime Commission v NTD8 [2009] FCAFC Court 86 (Black CJ, Mansfield and Bennett JJ, 10 July 2009) [43].
78. Australian Crime Commission v NTD8 (n 77) [48].
79. Australian Crime Commission v NTD8 (n 77) [49].
80. Australian Crime Commission v NTD8 (n 77) [73].
81. Australian Crime Commission v NTD8 (n 77) [73].
82. Australian Crime Commission v NTD8 (n 77) [73].
83. Australian Crime Commission v NTD8 (n 77) [73].
84. Australian Crime Commission v NTD8 (n 77) [74].
85. Australian Crime Commission v NTD8 (n 77) [75].
86. Australian Crime Commission v NTD8 (n 77) [72].
87. Crime Body Wins Access to Kids' Health Files (n 17).
88. Health Records Ruling ‘Worsens Crisis of Trust’ (n 18).
89. Simon Kearney, ‘Abuse Thrives in Fearful Silence’, The Australian, 8 December 2007 < http://www.theaustralian.news.com.au/story/0,25197,22887541-5013172,00.html> accessed 23 October 2009.
90. Kearney (n 89).
91. Kearney (n 89).
92. The Queen v QB (n 19).
93. ‘Multiple Child Abuse Arrests in NT’, ABC News, 20 November 2009 < http://au.news.yahoo.com/a/-/local/6496846/multiple-child-abuse-arrests-in-nt-community/> accessed 21 November 2009.
94. ‘Multiple Child Abuse Arrests in NT’ (n 93).
95. ‘Multiple Child Abuse Arrests in NT’ (n 93).
96. ‘Multiple Child Abuse Arrests in NT’ (n 93) 2.
97. ‘Multiple Child Abuse Arrests in NT’ (n 93) 3.
98. ‘Multiple Child Abuse Arrests in NT’ (n 93) 3.
99. ‘Multiple Child Abuse Arrests in NT’ (n 93) 4.
100. ‘Multiple Child Abuse Arrests in NT’ (n 93) 4.
101. ‘Multiple Child Abuse Arrests in NT’ (n 93) 4.
102. ‘Multiple Child Abuse Arrests in NT’ (n 93) 5.
103. ‘Multiple Child Abuse Arrests in NT’ (n 93) 5.
104. ‘Multiple Child Abuse Arrests in NT’ (n 93) 6.
105. ‘Multiple Child Abuse Arrests in NT’ (n 93) 6.
106. Hemming (n 1).
107. Hemming (n 1) 18.
108. Natasha Robinson, ‘Child abuse staff in short supply in Aboriginal outposts’, The Australian, 4 July 2009 < http://www.theaustralian.news.com.au/story/0,25197,25730678-5013404,00.html> accessed 25 October 2009.
109. Robinson (n 108).
110. Overview, Child Protection, Department of Health and Families, Northern Territory Government < http://www.health.nt.gov.au/Children_Youth_and_Families/Child_Protection/index.aspx> accessed 25 October 2009.
111. Overview, Child Protection System Reform, Department of Health and Families, Northern Territory Government < http://www.health.nt.gov.au/Children_Youth_and_Families/Child_Protection/Child_Protection_System_Reform/index.aspx> accessed 25 October 2009.
112. Reporting Harm and Sexual Offences Involving Children, Fact Sheet, Department of Health and Families, Northern Territory Government, 2 September 2009, 2 < http://www.health.nt.gov.au/library/scripts/objectifyMedia.aspx?file=pdf/41/57.pdf&siteID=1&str_title=REPORTING HARM AND SEXUAL OFFENCES INVOLVING CHILDREN.pdf> viewed 26 October 2009.
113. Report of the Northern Territory Emergency Response Review Board (n 6) 34.
114. Report of the Northern Territory Emergency Response Review Board (n 6) 35.
115. Report of the Northern Territory Emergency Response Review Board (n 6) 35.
116. Report of the Northern Territory Emergency Response Review Board (n 6) 35.
117. David Weber, ‘Coroner Calls for Aboriginal Community to be Shut Down’, ABC Online, 21 July 2008 < http://www.abc.net.au/pm/content/2008/s2310149.htm> accessed 26 October 2009.
118. Peter Michael, Call to Close Communities, The Brisbane Courier–Mail, 4 January 2008 < http://www.news.com.au/couriermail/story/0,23739,23007103-3102,00.html> accessed 26 October 2009.
119. Lindy Kerin, ‘Brough Speaks Out Against Indigenous “Paedophile Rings”’, ABC Online, 17 May 2006 < http://www.abc.net.au/am/content/2006/s1640379.htm> accessed 26 October 2009.
120. Report of the Northern Territory Emergency Response Review Board (n 6) Appendix 9, 95.
121. Report of the Northern Territory Emergency Response Review Board (n 6) Appendix 997.
122. Hemming (n 1) 5.
123. Tara Raven and Larine Statham, ‘Bashed Baby Dies in Darwin’, AAP, October 27 2009 < http://au.news.yahoo.com/a/-/full-coverage/6394195/bashed-baby-dies-in-darwin/> accessed 30 October 2009.
124. Child Abuse Inquiry ‘As Public As Possible’, ABC News, 31 October 2009 < http://www.abc.net.au/news/stories/2009/10/31/2729526.htm> accessed 31 October 2009.
125. Child Abuse Inquiry ‘As Public As Possible’. (n 124).
126. Cathy Harper, ‘Whistleblowers Must Get Immunity in Inquiry’, ABC News, 12 November 2009 < http://www.abc.net.au/news/stories/2009/11/12/2740574.htm> accessed 12 November 2009.
127. Alyssa Betts, ‘NT Govt Drowning in Child Abuse Complaints’, Northern Territory News, 6 November 2009, 4 < http://www.ntnews.com.au/article/2009/11/06/98761_ntnews.html> accessed 6 November 2009.
128. Betts (n 127).
129. Katrina Bolton, ‘Child Protection Boss Leaves Her Post’, ABC News, 6 November 2009 < http://www.abc.net.au/news/stories/2009/11/06/2735127.htm> accessed 6 November 2009.
130. Office of the Children's Commissioner Northern Territory, Annual Report 2008–2009, Northern Territory Government, Darwin 2009 < http://www.childrenscommissioner.nt.gov.au/publications/Annual%20Report%2008-09.pdf> accessed 21 November 2009.
131. Office of the Children's Commissioner Northern Territory (n 130) 28.
132. Jane Bardon, ‘Failures Found in Child Protection System’, ABC News, 11 November 2009 < http://www.abc.net.au/news/stories/2009/11/11/2739580.htm> accessed 11 November 2009.
133. Bardon (n 132).
134. Office of the Children's Commissioner Northern Territory (n 130) 91.
135. Office of the Children's Commissioner Northern Territory (n 130) 91.
136. ‘Closing the Gap of Indigenous Disadvantage: A Generational Plan of Action’, Chief Minister, Northern Territory Government, 2007, Appendix 1, 12.
137. Minister for Child Protection, ‘Child Protection Inquiry Announced’, Northern Territory Government Media Release, 11 November 2009 < http://newsroom.nt.gov.au/index.cfm?fuseaction=viewRelease&id= 6255&d=5> accessed 21 November 2009.
138. Minister for Child Protection (n 137).
139. Office of the Children's Commissioner Northern Territory (n 130) 93.
140. Office of the Children's Commissioner Northern Territory (n 130) 93.
141. Hemming (n 1) 5.
142. Hemming (n 1) 18.