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Native Title Report 2010: Chapter 3: Consultation, cooperation, and free, prior and informed consent: The elements of meaningful and effective engagement

Native Title Report 2010

Chapter
3:
Consultation, cooperation, and free, prior and informed consent: The
elements of meaningful and effective engagement

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3.1 Introduction

On 3 April 2009, the Minister for Families, Housing, Community Services and
Indigenous Affairs (Minister for Indigenous Affairs) delivered a formal
statement in support of the United Nations Declaration on the Rights of
Indigenous Peoples
(Declaration).[1] In this
statement, the Minister acknowledged that ‘[w]e need to find more ways of
hearing Indigenous
voices’.[2]

This acknowledgement was long overdue.

There is an urgent need for governments to improve their approach to engaging
with Aboriginal and Torres Strait Islander peoples. As the New South Wales
Aboriginal Land Council (NSWALC) has observed:

Government processes for engagement barely reach a threshold that could be
appropriately characterised as consultative in nature. lt is even rarer for
Government engagement processes to reach a threshold that could be described as
involving negotiation with Indigenous peoples, or involving the free, prior and
informed consent of lndigenous
peoples.[3]

Over the years, the failures of governments to engage with us effectively
have been the subject of international scrutiny. International human rights
bodies have repeatedly called upon Australia to consult with us adequately
before adopting laws and policies that affect our right to our lands,
territories and resources.

For example, the Committee on the Elimination of Racial Discrimination (CERD)
recommended in 2005 that Australia ‘make every effort to seek the informed
consent of indigenous peoples before adopting decisions relating to their rights
to land’.[4]

In 2010, CERD again encouraged Australia to ‘reset the relationship
with Aboriginal people based on genuine consultation, engagement and
partnership’, and recommended that Australia ‘enhance adequate
mechanisms for effective consultation with indigenous peoples around all
policies affecting their lives and
resources’.[5]

In this Chapter, I examine how the Australian Government could improve its
consultation processes in relation to measures that affect our rights to our
lands, territories and resources.

Specifically, I explore the practical steps that governments can take to
ensure that consultation processes are meaningful and effective. I also analyse
the relevance of consultation and consent to the design and implementation of
‘special measures’ under the Racial Discrimination Act 1975 (Cth) (RDA).

Finally, I analyse the consultation processes in relation to:

  • the Native Title Amendment Bill (No 2) 2009 (Cth)
  • the amendments to the provisions of the Northern Territory National
    Emergency Response Act 2007
    (Cth) concerning the power of the Government to
    compulsorily acquire five-year leases over certain land.

I argue
that the consultation processes concerning these measures were inadequate in
several key respects. Further, the inadequacy of the consultation processes
calls into question whether these measures can properly be regarded as special
measures under the Racial Discrimination Act 1975 (Cth).

In summary, I am pleased that the Australian Government is committed to
ensuring that the principle of ‘strong engagement with Indigenous people
... underpins all our Indigenous policies and the implementation of
programs’.[6] However, events
during the Reporting Period have demonstrated that there is much room for
improvement in the Government’s approach to engaging with Aboriginal and
Torres Strait Islander peoples.

3.2 What are the features
of a meaningful and effective consultation process?

As I discuss in Chapter 1, Aboriginal and Torres Strait Islander peoples have
the right to participate in decision-making in matters that affect our rights.
Governments are under a duty to consult ‘whenever a State decision may
affect indigenous peoples in ways not felt by others in society’, even if
our rights have not been recognised in domestic
law.[7] This duty requires governments
to consult effectively with us before adopting or implementing measures that may
affect our rights.

I am concerned that governments do not fully understand what genuine and
effective consultation looks like. Until this issue is addressed, governments
will continue to impose laws and policies upon us in order to
‘solve’ our problems.

In a recent study on the duty to consult, the Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people (Special
Rapporteur) considered that the objective of consultations ‘should be to
obtain the consent or agreement of the indigenous peoples
concerned’.[8]

He further considered that the ‘strength or importance’ of this
objective will vary ‘according to the circumstances and the indigenous
interests involved’.[9] In some
cases, a State will be required to obtain the free, prior and informed consent
of the affected Indigenous peoples before proceeding with a proposed
measure.[10] I consider this further
in section 3.3, below.

Yet, in all cases, States should engage in ‘[a] good faith effort
towards consensual
decision-making’.[11] Consultation processes should therefore be framed ‘in order to make every
effort to build consensus on the part of all
concerned’.[12]

This leads me to ask — what would a meaningful and effective
consultation process look like?

The key features of the duty to consult and the standard of free, prior and
informed consent have been set out in several international and domestic
studies.[13] For example the United
Nations Permanent Forum on Indigenous Issues (UNPFII) convened an international
workshop on ‘free, prior and informed consent’ in 2005. In Appendix
3 I have extracted a list of the ‘elements of a common understanding of
free, prior and informed consent’ that was developed at this workshop.

In this section, I build upon these studies to elaborate the key features of
a meaningful and effective consultation process. In undertaking research for
this section, I have asked Native Title Representative Bodies (NTRBs), Native
Title Service Providers (NTSPs) and Prescribed Bodies Corporate (PBCs) to
consider what to them would constitute a meaningful and effective consultation
process. I have also considered the views of NTRBs, NTSPs and other Aboriginal
and Torres Strait Islander peoples’ organisations as expressed in their
submissions to recent public inquiries and international processes.

Based on the perspectives and experiences of these organisations, and
informed by international standards, I consider that at minimum:

  • consultation processes should be products of consensus
  • consultations should be in the nature of negotiations
  • consultations need to begin early and should, where necessary, be ongoing
  • Aboriginal and Torres Strait Islander peoples must have access to financial,
    technical and other assistance
  • Aboriginal and Torres Strait Islander peoples must not be pressured into
    making a decision
  • adequate timeframes should be built into consultation processes
  • consultation processes should be coordinated across government
    departments
  • consultation processes need to reach the affected communities
  • consultation processes need to respect Aboriginal and Torres Strait Islander
    representative and decision-making structures
  • governments must provide all relevant information and do so in an accessible
    way.

I describe these features in turn below. In doing so, I am
aware that a rigid consultation ‘checklist’ would not be conducive
to relationship-building or to effective consultation. Nor would it be
consistent with the right of Indigenous peoples to self-determination. Further,
as the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) emphasises,
the Declaration ‘requires “effective” participation, not pro
forma consultations, the goal of which is to obtain the free, prior and informed
consent of indigenous
peoples’.[14]

I therefore do not advocate a ‘one-size-fits-all’ model of
consultation. However, I consider that the features set out below can be used to
guide the development of appropriate processes on a case-by-case basis.

(a) Consultation
processes should be products of consensus

The details of a specific consultation process should always take into
account the nature of the proposed measure and the scope of its impact on
Indigenous peoples.[15] Indeed, the
Special Rapporteur emphasises that a consultation procedure should itself be the
product of consensus. This can help ensure that the procedure is
effective.[16]

Similarly, the Cape York Land Council (CYLC) lists ‘an agreed structure
for the consultation process’ as one of the essential features of an
adequate and effective consultation
process.[17]

I believe that this principle should underpin any government efforts to
engage with Aboriginal and Torres Strait Islander peoples. Before commencing
consultations, governments should work with the affected peoples to determine
the appropriate nature and level of consultations, and to agree upon a
process.

(b) Consultations should
be in the nature of negotiations

Too often, government ‘consultations’ do not allow us to
genuinely participate in decision-making in matters that may affect our lands,
territories and resources.

For example, the Carpentaria Land Council Aboriginal Corporation (CLCAC) has
expressed its concern that:

The so-called consultation that occurs is often merely a cloak to conceal
that decisions have already been made by Government agencies without taking any
Aboriginal input into account. It is not unusual for Government departments to
hold meetings, relied upon as ‘consultation’, which are in effect
only information sessions with Aboriginal
people.[18]

To engage in genuine consultation, governments need to do more than provide
information about measures that they have developed on our behalf and without
our input. Further, consultations should not be limited to a discussion about
the minor details of a policy when the broad policy direction has already been
set.

As NSWALC submitted to the UNPFII, ‘[g]enuine and effective
consultation does not just involve discussion; it requires active and informed
participation in the decision making
process’.[19]

Accordingly, I consider that the requirement to consult must reflect, in a
practical sense, a requirement to negotiate.

This will require a shift in the way that governments approach consultations.
As the CYLC identifies, there needs to be ‘[f]lexibility in government
policies and procedures to ensure that internal processes allow for practical
negotiation’.[20]

Governments need to be willing and flexible enough to accommodate our
concerns, and work with us in good faith to reach agreement. Governments need to
be prepared to change their plans, or even abandon them, particularly when
consultations reveal that a measure would have a significant impact on our
rights and that the affected peoples do not agree to the measure.

At the very least, governments need to commit ‘to carefully consider
the views expressed and comments made, and to use their best endeavours to
incorporate those views into the final
product’.[21]

In this way, governments can ensure that consultation processes are more
‘in the nature of negotiations towards mutually acceptable arrangements,
prior to the decisions on proposed
measures’[22] than the
information sessions to which we have become accustomed.

(c) Consultations need to
begin early and should, where necessary, be ongoing

Aboriginal and Torres Strait Islander peoples affected by a law, policy or
development process should be able to meaningfully participate in all stages of
its design, implementation and evaluation.

This does not always occur. As the CLCAC explains:

Rather than go to native title holders and their representatives to develop
proposals upfront, the project is developed, consultants retained, contracts
entered to, and then, when the project is about to commence the native title
process commences. This has the inevitable consequence that the native title
holders are only provided with input into a proposal at a point where it is
essentially concluded. This makes any consultation a farce and makes
consultations subject to strict timeframes coupled with the pressure of cost
blow-outs ...[23]

Early consultation can prevent problems from occurring ‘down the
track’. As the Torres Strait Regional Authority (TSRA) states,
‘[e]arly undertaking of consultative processes can facilitate accurate
identification of traditional landholdings and the resolution of community
disputes, should they
arise’.[24]

Early engagement also creates the opportunity for long-term, positive
relationships to grow. This is important because our right to participate in
decision-making imposes ongoing obligations upon governments. For example, if a
proposal changes, affected peoples should again be consulted in order to obtain
their free, prior and informed consent. Additionally, one NTSP has emphasised
that ‘[o]utcomes from consultations should also provide for future/renewed
consultations where
necessary’.[25]

(d) Aboriginal and Torres
Strait Islander peoples must have access to financial, technical and other
assistance

The Declaration affirms:

Indigenous peoples have the right to have access to financial and technical
assistance from States and through international cooperation, for the enjoyment
of the rights contained in this
Declaration.[26]

Such assistance is, in many instances, essential to ensure that we are able
to enjoy our right to participate in decision-making. The UNPFII has even
suggested that the

principle of free, prior and informed consent, combined with the notion of
good faith, may therefore be construed as incorporating a duty for States to
build Indigenous capacity.[27]

The capacity of our communities to engage in consultative processes can be
hindered by our lack of resources. Even the most well-intentioned consultation
procedure will fail if we are not resourced to participate effectively. Without
adequate resources to attend meetings, take proposals back to our communities or
access appropriate expert advice, we cannot possibly be expected to consent to
or comment on any proposal in a fully informed manner.

As the CYLC highlights, governments need to provide ‘adequate resources
to ensure that those people potentially affected are given the opportunity to be
directly involved’.[28]

As I discussed in Chapter 1, problems relating to the lack of capacity of
Traditional Owners and their representatives exist throughout the native title
system. The problem is particularly acute for PBCs, who are required to consult
with, and obtain the consent of, common law native title holders before making a
‘native title
decision’.[29]

Although they are the ‘statutory interface between the proponents of
future acts and the native title holders ... [n]o resources are provided to
enable PBCs to canvas issues with native title
holders’.[30] This can create
barriers to the effective discharge of a PBC’s statutory obligations.

I therefore consider it important that governments or proponents provide
Aboriginal and Torres Strait Islander peoples with adequate resources to enable
them to participate effectively in consultation processes.

(e) Aboriginal and
Torres Strait Islander peoples must not be pressured into making a
decision

Aboriginal and Torres Strait Islander peoples should be able to participate
freely in consultation processes. Governments should not use coercion or
manipulation to gain our
consent.[31]

As the CLCAC has stated ‘[c]onsultation does not occur ... where
Aboriginal people are pressured to decide an issue a particular way under threat
of a negative impact or
sanctions’.[32] It is
therefore unacceptable for governments to adopt a ‘take it or leave
it’ approach to consultations.

In addition, Aboriginal and Torres Strait Islander peoples should not be
pressured into decisions through the imposition of limited timeframes. For
example, genuine consultation cannot occur when Aboriginal and Torres Strait
Islander peoples are told ‘if you don’t decide now, you’ll
miss out’.

(f) Adequate timeframes
should be built into the consultation process

Native title is a notoriously complex and legalistic regime. However,
Aboriginal and Torres Strait Islander peoples are frequently faced with
unreasonably short deadlines for commenting on discussion papers and draft
legislation.[33]

Aboriginal and Torres Strait Islander peoples need to be given adequate time
to consider the impact that a proposed law, policy or development may have on
their rights. Otherwise, we may not be able to respond to such proposals in a
fully informed manner.

Consultation timelines need to be ‘inclusive of Aboriginal community
internal processes and respect ... community protocols and cultural
practice’.[34] As the Yamatji
Marpla Aboriginal Corporation (YMAC) emphasised to me, NTRBs and NTSPs need to
consult with Traditional Owners before providing submissions to government
processes on their behalf.[35] Governments need to take this into account when designing consultation
processes.

Further, the Western Desert Lands Aboriginal Corporation
(Jamakurnu-Yapalinkunu) RNTBC has submitted that native title parties require
adequate time to:

  • obtain third party advice if necessary or desired
  • inform, discuss and consult with other members of the native title party
  • translate or develop information into culturally appropriate forms for
    members of the native title party so as to allow genuine discussions and
    informed consent.[36]

(g) Consultation
processes should be coordinated across government departments

Consultation processes should be coordinated in order to ease the
‘consultation burden’ that is caused by multiple discussion papers
and reform proposals.

YMAC suggests that:

Government departments and agencies need to plan their consultation processes
to ensure they are not duplicating others running concurrently and/or creating
competing deadlines.[37]

To achieve this, I believe that governments should adopt a ‘whole of
government’ approach to native title reform, pursuant to which
consultation processes are coordinated across all relevant departments and
agencies.

(h) Consultation
processes need to reach the affected communities

For a consultation process to be genuine, it needs to reach the communities
that may be affected by a measure. As the Special Rapporteur states:

[M]easures that affect particular indigenous peoples or communities ... will
require consultation procedures focused on the interests of, and engagement
with, those particularly affected
groups.[38]

Government consultation processes need to directly reach people ‘on the
ground’. Given the extreme resource constraints faced by many Aboriginal
and Torres Strait Islander peoples and their representative organisations,
governments cannot simply expect communities to come to them.

For example, it is often inadequate for a government to just hold
consultation sessions in capital cities or regional centres. Such locations may
be ‘hundreds or thousands of kilometers away from the relevant Aboriginal
community making it impossible for members of that community to
attend’.[39]

Governments need to be prepared to engage with Aboriginal and Torres Strait
Islander peoples in the location that is most convenient for, and is chosen by,
the community that may be affected by a proposed measure.

(i) Consultation
processes need to respect representative and decision-making structures

The Declaration requires consultation to be undertaken with ‘the
indigenous peoples concerned through their own representative
organisations’.[40] The UNPFII
has emphasised that free, prior and informed consent must ‘be sought from
genuinely representative organisations or institutions charged with the
responsibility of acting on their
behalf’.[41]

Governments need to ensure that consultations follow appropriate community
protocols, including representative and decision-making mechanisms. As the CLCAC
notes, consultation should take ‘traditional laws and customs ...
regarding decision making’ into
account.[42]

The best way to ensure this is for governments to engage with communities and
their representatives at the earliest stages of law and policy processes, and to
develop consultation processes in full partnership with them.

(j) Governments must
provide all relevant information and do so in an accessible way

EMRIP has observed that ‘[c]onsistent and wide dissemination of
information to indigenous peoples in culturally appropriate ways, and in a
timely manner, is often
lacking’.[43]

To ensure that we are able to exercise our rights to participate in
decision-making in a fully informed way, governments must provide us with full
and accurate information about the proposed measure and its potential
impact.[44]

This information needs to be clear, accessible and easy to understand.
Information should be provided in plain English, and, where necessary, in
language.

For example, YMAC considers:

Those who are drafting discussion papers should be careful to structure the
document so that it can be read and accessed by audiences with a range of
literacy levels and limit the number of questions requiring a
response.[45]

Similarly, the Goldfields Land and Sea Council recognises that
‘language used in explaining legislative or administrative measures needs
to be clear, transparent and understandable and not ambiguous and overly legal
in terminology’.[46]

3.3 The relationship
between consultation, consent and special measures

In the previous section, I explain that governments are under a duty to
consult ‘whenever a State decision may affect indigenous peoples in ways
not felt by others in
society’.[47] The Special
Rapporteur further states that:

A significant, direct impact on indigenous peoples’ lives or
territories establishes a strong presumption that the proposed measure should
not go forward without indigenous peoples’ consent. In certain contexts,
that presumption may harden into a prohibition of the measure or project in the
absence of indigenous consent.[48]

The Australian Human Rights Commission considers that governments should pay
particular attention to issues of consultation and consent when developing and
implementing special measures that affect the rights of Aboriginal and Torres
Strait Islander peoples.

The concept of ‘special measures’ as it applies to Aboriginal and
Torres Strait Islander peoples must be understood consistently with the right of
Indigenous peoples to self-determination. In particular, it is inconsistent with
the right to self-determination for a government to impose a measure that limits
the rights of an Indigenous group without the consent of the
group.[49]

(a) What is a
‘special measure’?

The term ‘special measures’ is generally understood to apply to
positive measures taken to redress the disadvantage, and secure the ‘full
and equal enjoyment of human rights and fundamental freedoms’, of a
particular racial group.[50]

The International Convention on the Elimination of All Forms of Racial
Discrimination
(ICERD)[51] recognises that different treatment designed to ensure the equal enjoyment of
rights is not discriminatory. Special measures undertaken for this purpose are
essential to achieving substantive equality, advancing human dignity and
eliminating racial
discrimination.[52] The relevant
articles of the ICERD are set out in Text Box 3.1.

Text Box 3.1: Extracts from the ICERD regarding special
measures
Article 1(4)
Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms shall not
be deemed racial discrimination, provided, however, that such measures do not,
as a consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives for
which they were taken have been achieved.

Article 2(2)
States Parties shall, when the circumstances so warrant, take, in the
social, economic, cultural and other fields, special and concrete measures to
ensure the adequate development and protection of certain racial groups or
individuals belonging to them, for the purpose of guaranteeing them the full and
equal enjoyment of human rights and fundamental freedoms. These measures shall
in no case entail as a consequence the maintenance of unequal or separate rights
for different racial groups after the objectives for which they were taken have
been achieved.

The RDA also provides for the development of special measures (see Text Box
3.2).[53]

Text Box 3.2: Extracts from the RDA regarding special measures
Part II – Prohibition of Racial
Discrimination
Section 8: Exceptions
  1. This Part does not apply to, or in relation to the application of, special
    measures to which paragraph 4 of Article 1 of the Convention applies except
    measures in relation to which subsection 10(1) applies by virtue of subsection
    10(3).
...
Section 10: Rights to equality before the law
  1. If, by reason of, or of a provision of, a law of the Commonwealth or of a
    State or Territory, persons of a particular race, colour or national or ethnic
    origin do not enjoy a right that is enjoyed by persons of another race, colour
    or national or ethnic origin, or enjoy a right to a more limited extent than
    persons of another race, colour or national or ethnic origin, then,
    notwithstanding anything in that law, persons of the first-mentioned race,
    colour or national or ethnic origin shall, by force of this section, enjoy that
    right to the same extent as persons of that other race, colour or national or
    ethnic origin.
  2. A reference in subsection (1) to a right includes a reference to a right of
    a kind referred to in Article 5 of the Convention.
  3. Where a law contains a provision that:
    • (a) authorizes property owned by an Aboriginal or a Torres Strait Islander
      to be managed by another person without the consent of the Aboriginal or Torres
      Strait Islander; or
    • (b) prevents or restricts an Aboriginal or a Torres Strait Islander from
      terminating the management by another person of property owned by the Aboriginal
      or Torres Strait Islander;
not being a provision that
applies to persons generally without regard to their race, colour or national or
ethnic origin, that provision shall be deemed to be a provision in relation to
which subsection (1) applies and a reference in that subsection to a right
includes a reference to a right of a person to manage property owned by the
person.

 

To meet the requirements of a special measure, a measure must comply with all
of the following criteria:

  • the measure must confer a benefit on some or all members of a class of
    people
  • membership of this class must be based on race, colour, descent, or national
    or ethnic origin
  • the sole purpose of the measure must be to secure the adequate advancement
    of the beneficiaries so they may enjoy and exercise their human rights and
    fundamental freedoms equally with others
  • the protection given to the beneficiaries by the measure must be necessary
    for them to enjoy and exercise their human rights and fundamental freedoms
    equally with others
  • the measure must stop once its purpose has been achieved and not set up
    separate rights permanently for different racial
    groups.[54]

(b) What is the
relevance of consultation and consent to a special measure?

CERD has stated that:

States parties should ensure that special measures are designed and
implemented on the basis of prior consultation with affected communities and the
active participation of such
communities.[55]

In particular, it is necessary to pay attention to issues of consultation and
consent when assessing whether the measure is for the ‘sole purpose of
securing adequate advancement’ of the beneficiaries. To the extent that
the impact of the measures upon group members may differ, the specific wishes of
those persons who are the intended beneficiaries of the measure must be
considered closely. As the Australian Human Rights Commission has previously
submitted, ‘[t]o take any other approach contemplates a paternalism that
considers irrelevant the views of a group as to their wellbeing and decisions
materially affecting
them’.[56]

Under Australian law, it has been recognised that the wishes of the intended
beneficiaries are of great importance in establishing whether a measure is a
special measure. In Gerhardy v Brown, Brennan J stated:

‘Advancement’ is not necessarily what the person who takes the
measure regards as a benefit for the beneficiaries. The purpose of securing
advancement for a racial group is not established by showing that the branch of
government or the person who takes the measure does so for the purpose of
conferring what it or he regards as a benefit for the group if the group does
not seek or wish to have the benefit. The wishes of the beneficiaries for the
measure are of great importance (perhaps essential) in determining whether a
measure is taken for the purpose of securing their advancement.
The dignity
of the beneficiaries is impaired and they are not advanced by having an unwanted
material benefit foisted on
them.[57]

The desirability of consultation has recently been confirmed by the
Queensland Court of Appeal.[58]

The Commission is of the view that the level of consultation required, and
whether consent is necessary, for a measure to be considered a special measure
will vary depending on whether the measure involves a limitation on rights or is
entirely beneficial in nature.[59]

In the Commission’s view, a measure that seeks to provide a benefit to
a racial group or members of it, but operates by limiting certain rights of some
or all of that group, is unlikely to be a special measure if the consent of the
group has not been obtained.[60] This is consistent with the right of Indigenous peoples to
self-determination.[61]

Consent is particularly important in the context of measures that affect
property owned by Aboriginal and Torres Strait Islander peoples. The special
measures exception in the RDA does not apply to a provision in a law that:

  • authorises property owned by an Aboriginal or Torres Strait Islander person
    to be managed by another without their consent

or

  • prevents or restricts an Aboriginal or Torres Strait Islander person from
    terminating the management by another person of property owned by the Aboriginal
    person

where that provision is not one that applies to persons
generally without regard to their race, colour, or national or ethnic
origin.[62]

(c) ‘Special
measures’ during the Reporting Period

Australian law is not yet fully settled on the question of the significance
of ‘consultation’ and ‘consent’ to the development and
implementation of a special measure. However, in light of the comments of CERD
and the rights of Indigenous peoples as affirmed by the Declaration, the
Commission believes that issues of consultation and consent should be central to
an assessment of whether a measure is indeed a special measure.

During the Reporting Period, the Australian Government referred to the
concept of ‘special measures’ in the context of certain legislative
reforms that affect our rights to our lands, territories and resources. In the
following section, I explore the issues of consultation and consent in relation
to two law reform processes that occurred during the Reporting Period.

3.4 Are government
consultation processes meaningful and effective?

I am pleased that the Australian Government has been willing to consult with
us regarding laws and policies that would affect our rights to our lands,
territories and resources.

During 2009–2010, the Australian Government invited comment on a range
of proposals relating to our lands, territories and
resources.[63] The Government also
continued to hold periodic meetings with organisations involved in the native
title system.[64] For example, the
Attorney-General’s Department convenes the Native Title Consultative Forum
(NTCF), which consists of representatives from:

  • the Attorney-General’s Department
  • the Department of Families, Housing, Community Services and Indigenous
    Affairs (FaHCSIA)
  • the Federal Court of Australia
  • the National Native Title
    Tribunal
  • state, territory and local governments
  • NTRBs and NTSPs
  • pastoral, fishing, mining and petroleum industries
  • the Australian Human Rights
    Commission.[65]

The
NTCF met twice during the Reporting Period.

However, as demonstrated during the Reporting Period, there is clear scope
for the Australian Government to improve its approach to consultation and
negotiation processes regarding law and policy reforms. In this section, I
review the consultation processes concerning the following law reform
initiatives:

  • the Native Title Amendment Bill (No 2) 2009 (Cth) (Amendment Bill (No
    2))
  • the amendments to the Northern Territory National Emergency Response Act
    2007
    (NTNER Act) concerning the power to compulsorily acquire five-year
    leases over certain land.

In analysing these measures, I have been
guided by the features of a meaningful and effective consultation process
discussed in section 3.2 and the criteria for special measures set out in
section 3.3.

(a) Consultations
regarding the Native Title Amendment Bill (No 2) 2009 (Cth)

The Amendment Bill (No 2) was introduced into the Commonwealth Parliament in
October 2009. The purpose of the Bill was to insert a new future act process in
the Native Title Act in order to facilitate the construction of public housing
and infrastructure on Aboriginal land.

In Chapter 2, I analyse the procedural safeguards contained in this new
future act process, and consider how this process could detract from
agreement-making. In this section, I argue that the public consultation process
concerning the Amendment Bill (No 2) lacked many of the essential elements of a
meaningful and effective engagement process. In particular, I consider that the
Australian Government did not:

  • allow sufficient time for consultations
  • provide sufficient opportunities for Aboriginal and Torres Strait Islander
    peoples to participate in consultations
  • respond sufficiently to the concerns expressed by Aboriginal and Torres
    Strait Islander peoples.
(i) Were the timeframes for consultation on the
proposed amendments adequate?

The public were twice given the opportunity to comment on the proposed
reforms.

First, the Australian Government conducted consultations in relation to a
discussion paper released by the Attorney-General and the Minister for
Indigenous Affairs on Possible housing and infrastructure native title
amendments
(the Housing Discussion
Paper).[66]

Secondly, the Senate Legal and Constitutional Affairs Legislation Committee
(Legal and Constitutional Affairs Committee) conducted an inquiry into the
Amendment Bill (No 2).

The stages in the public consultations on the Amendment Bill (No 2) are set
out in Table 3.1, below.

Table 3.1: Public consultation timetable — Native Title Amendment
Bill (No 2) 2009 (Cth)
Date
Event
13 August 2009
The Attorney-General and the Minister for Indigenous Affairs release the
Housing Discussion Paper.[67]
24 August 2009–2 September 2009
The Attorney-General’s Department and FaHCSIA hold information
sessions on the proposed amendments in Darwin, Alice Springs, Perth, Adelaide,
Sydney, Brisbane and Cairns.
An information session planned for Broome is cancelled due to ‘lack
of interest’.[68]
4 September 2009
Submissions on the Housing Discussion Paper are due. The Australian
Government receives 27
submissions.[69]
21 October 2009
The Amendment Bill (No 2) is introduced into the House of
Representatives.
29 October 2009
The Senate refers the provisions of the Amendment Bill (No 2) to the Legal
and Constitutional Affairs Committee for inquiry and report by
2 February 2010.
24 November 2009
Submissions to the Legal and Constitutional Affairs Committee regarding the
Amendment Bill (No 2) are due. The Amendment Bill (No 2) is passed by the House
of Representatives.
26 November 2009
The Amendment Bill is (No 2) introduced into the Senate.
28 January 2010
The Legal and Constitutional Affairs Committee holds a public hearing in
Sydney.
2 February 2010
The Senate agrees to extend the Legal and Constitutional Affairs
Committee’s reporting date to 23 February 2010.
24 February 2010
The report of the Legal and Constitutional Affairs Committee’s
inquiry into the Amendment Bill (No 2) is
released.[70]

In section 3.2, above, I express the view that governments must allow
sufficient time in consultation processes to enable Aboriginal and Torres Strait
Islander peoples to develop a fully informed response to a proposed measure.
However, the timeframes for submissions in relation to the Housing Discussion
Paper (3 weeks) and the Legal and Constitutional Affairs Committee’s
inquiry (3.5 weeks) were unreasonably short.

NTRBs and NTSPs submitted that this unrealistic timeframe prevented them from
ascertaining the views of native title
holders,[71] ‘denied
Indigenous communities across Australia an opportunity to effectively
participate in the decision-making
process’[72] and meant that
‘indigenous people ... had no meaningful opportunity to negotiate with the
Commonwealth’.[73] The CLCAC
regarded this as ‘simply
unacceptable’.[74]

These limited timeframes are especially problematic in light of the resource
constraints faced by NTRBs, NTSPs and PBCS (see further discussion in Chapter
1). It is very difficult for such organisations to analyse proposed legal
reforms, inform Traditional Owners of the potential impact of the reforms, and
provide submissions to government on top of their existing workloads. In
addition to ensuring that consultation timeframes are sufficient, governments
must ensure that Aboriginal and Torres Strait Islander peoples and their
representatives are adequately resourced to participate in consultation
processes.

The short timeframes allowed for consultations gave the appearance that the
Australian Government believed that the Amendment Bill (No 2) should be enacted
as a matter of urgency. Yet, the Amendment Bill (No 2) had not been enacted by
the time the federal election was called in July
2010.[75] This leads me to question
why such demands were placed on the limited resources of native title
stakeholders to attend consultation sessions and prepare submissions in such
short timeframes.

(ii) Were there sufficient opportunities for
Aboriginal and Torres Strait Islander peoples to attend consultation sessions?

Eleven NTRBs and NTSPs attended a consultation session and / or provided a
written submission in response to the Housing Discussion
Paper.[76]

However, NTRBs and NTSPs have expressed concern that the public information
sessions did not reach the communities that were likely to be affected by the
proposed amendments.[77] The
sessions were concentrated in capital cities and regional centres, meaning that
Traditional Owners outside of these areas had limited opportunities to
participate.

For example, the CLCAC informed the Legal and Constitutional Affairs
Committee that the Government did not ‘directly consult with or offer to
consult with Aboriginal communities in the southern Gulf of Carpentaria’
and that the closest public consultation session was ‘held over 1000
kilometres away in Cairns’, only two days before submissions were
due.[78]

Further, the only public hearing conducted by the Legal and Constitutional
Affairs Committee in relation to the Amendment Bill (No 2) was held in Sydney.
Hearings were not held in the states most likely to be affected by the
amendments. The Australian Government only clarified late in the Legal and
Constitutional Affairs Committee’s inquiry process that the Amendment Bill
(No 2) would be most relevant to Western Australia and
Queensland.[79]

Senator Siewert, of the Australian Greens and a member of the Legal and
Constitutional Affairs Committee, expressed concern that this information was
not made available in the Explanatory Memorandum or the Attorney-General’s
Second Reading Speech. This meant that

this crucial fact did not inform the committee’s terms of reference nor
its hearing program (hearings were not held in Queensland or WA) ... [and] there
was no engagement with native title representative bodies, land councils or
Aboriginal organisations in WA.[80]

This reflects a concern that Aboriginal and Torres Strait Islander
peoples’ organisations identified during my research for the Native
Title Report 2010
— too often, governments do not go to communities,
but expect communities to come to them. However, communities rarely possess
sufficient resources to do so.

(iii) Did the Australian Government respond
sufficiently to the concerns of Aboriginal and Torres Strait Islander peoples?

The Australian Government did refine the future act process in response to
the public consultations on the Housing Discussion Paper. For example, the
Government has stated that the procedural requirements of the Amendment Bill (No
2) were developed in light of public consultation. Additional consultation
mechanisms were drafted into the Bill as a result of stakeholder feedback. Also,
the future act process was not confined to remote areas, as had been proposed in
the Housing Discussion Paper.[81]

However, in their submissions in response to the Housing Discussion Paper,
NTRBs and NTSPs questioned the need for, and desirability of, a new future act
process. They emphasised that governments should facilitate the construction of
public housing and infrastructure by entering into agreements with Aboriginal
and Torres Strait Islander
peoples.[82]

NTRBs and NTSPs further contended that the Government failed to provide
sufficient evidence to justify the new future act process. Warren Mundine, CEO
of NTSCORP, submitted that:

For us the key objection to the bill is that there is insignificant
identification of the need for the amendments. In fact, insignificant evidence
has been provided with regard to the Native Title Act processes being a source
of delay.[83]

The Legal and Constitutional Affairs Committee also received strong
objections to the Amendment Bill (No 2), including that:

  • Indigenous Land Use Agreements (ILUAs) should be the preferred mechanism for
    negotiating arrangements regarding public housing and infrastructure
  • the Amendment Bill (No 2) is racially discriminatory
  • the proposed process would result in de facto
    extinguishment.[84]

In fact, there was ‘nearly unanimous rejection of the Bill by
native title holder representative
bodies’.[85]

NTRBs and NTSPs presented the Australian Government and the Legal and
Constitutional Affairs Committee with options that would meet the
Government’s objectives and have less impact on the rights of Traditional
Owners. These options included the development of template
ILUAs[86] and amending the Amendment
Bill (No 2) such that the right to negotiate regime would apply to the new
future act process.[87]

These
recommendations were not adopted by the majority of the Legal and Constitutional
Affairs Committee or the Australian
Government.[88] However, the Legal
and Constitutional Affairs Committee and the Government responded favourably to
certain concerns that had been raised by the states. For example, the Queensland
Government expressed concern that the proposed future act process did not cover
housing for staff involved with the provision of public housing and
infrastructure.[89] The Legal and
Constitutional Affairs Committee recommended that the Amendment Bill (No 2) be
amended ‘to include the provision of staff housing as part of the new
future acts process’.[90]

In a dissenting report, Senator Siewert observed that:

[T]here appears to be a major disconnect between the evidence presented, the
concerns discussed and arguments evaluated within the [majority] report on the
one hand, and its final conclusions on the
other.[91]

It is seriously concerning that the objections of NTRBs and NTSPs, and the
alternatives that they proposed, do not appear to have been given sufficient
consideration by the Australian Government or the Legal and Constitutional
Affairs Committee.

(iv) Was there sufficient consultation to address
the elements of a ‘special measure’?

Given the fundamental importance of ensuring that the rights of Aboriginal
and Torres Strait Islander peoples are protected in the implementation of
legislative or administrative measures, it is disappointing that the Housing
Discussion Paper did not raise for consideration the implications of the
proposed amendments in terms of their potentially racially discriminatory
effect.

The Attorney-General’s Department informed the Legal and Constitutional
Affairs Committee that it considered the Amendment Bill (No 2) to be consistent
with the RDA, but admitted that it did not have legal advice to this
effect.[92]

In a supplementary submission to the Legal and Constitutional Affairs
Committee, FaHCSIA and the Attorney-General’s Department stated:

The Government sees the NTA as a special measure under the Racial
Discrimination Act 1975
. ... The new process is similar to the existing
future acts processes in the NTA with a relatively small adjustment to meet the
urgent need for housing and public infrastructure in Indigenous communities. The
adjustment of the arrangements must be considered in that context, and will be
part of that special
measure.[93]

The Legal and Constitutional Affairs Committee accepted that the Amendment
Bill (No 2) was a special
measure.[94]

It is beyond the scope of the Native Title Report 2010 to examine the
complex interaction between the Native Title Act, the RDA and special measures
(see section 3.3, above, for discussion of the elements of a special measure).
However, I note that the preamble to the Native Title Act states that the Act,

together with initiatives announced at the time of its introduction and
others agreed on by the Parliament from time to time, is intended, for the
purposes of paragraph 4 of Article 1 of the International Convention on the
Elimination of All Forms of Racial Discrimination and the Racial
Discrimination Act 1975
, to be a special measure for the advancement and
protection of Aboriginal
peoples
 and Torres
Strait Islanders
, and is intended to further advance the process of
reconciliation among all
Australians.[95]

Yet, CERD found in 1999 that the amended Native Title Act

appears to wind back the protections of indigenous title offered in the Mabo decision of the High Court of Australia and the 1993 Native Title
Act. As such, the amended Act cannot be considered to be a special measure
within the meaning of articles 1(4) and 2(2) of the Convention
...[96]

Since then, CERD has clarified the relationship between our rights to land
and special measures:

Special measures should not be confused with specific rights pertaining to
certain categories of person or community, such as, ... the rights of indigenous
peoples, including rights to lands traditionally occupied by them, ...Such
rights are permanent rights, recognized as such in human rights instruments,
...States parties should carefully observe distinctions between special measures
and permanent human rights in their law and
practice.[97]

In this context, I am concerned that the Australian Government and the Legal
and Constitutional Affairs Committee did not provide adequate analysis to
support their finding that the Amendment Bill (No 2) is a special measure.

Further, the Australian Human Rights Commission believes that provisions
which limit the rights of some, or all, of a racial group, are unlikely to be a
special measure if the consent of the group has not been
obtained.[98] As discussed above, I
believe that the consultation processes concerning the Amendment Bill (No 2)
were inadequate. In addition, NTRBs and NTSPs expressed strong opposition to the
Amendment Bill (No 2). I therefore question whether the new future act process
can properly be regarded as a special measure.

The deficiencies in the consultation process are particularly concerning in
light of the potentially far-reaching impact of these amendments upon the rights
of Traditional Owners. For example, while the future act process provides for
the application of the non-extinguishment principle, the long-term nature of the
acts that are covered by the new future act process (for example, the
construction of housing and public infrastructure) suggests that it may be a
significant time before any native title rights and interests will again have
full effect. NTRBs, NTSPs and others expressed concerns that this would amount
to ‘practical
extinguishment’.[99]

In addition, Traditional Owners may not be the beneficiaries of the public
housing or other public facilities that are built pursuant to the proposed
process, and for which purpose their rights have been suspended. For example,
Traditional Owners may not live on the land on which the housing is built.

(v) Conclusion

As I have detailed in this section, the Australian Government did not:

  • allow sufficient time for consultations
  • provide sufficient opportunities for Aboriginal and Torres Strait Islander
    peoples to participate in consultations
  • respond sufficiently to the concerns expressed by Aboriginal and Torres
    Strait Islander peoples.

I therefore do not believe that the
consultation processes regarding the Amendment Bill (No 2) were adequate.

The impact of the future act regime of the Native Title Act on the human
rights of Aboriginal and Torres Strait Islander peoples has been analysed and
criticised extensively.[100] It is
therefore concerning that, despite its stated commitment to strong engagement
and partnership, the Australian Government has seen fit to extend the future act
regime without adequate consultation and without the free, prior and informed
consent of Aboriginal and Torres Strait Islander peoples.

(b) Reforms to the
Northern Territory Emergency Response measures

The second consultation process that I will examine concerns the 2010
amendments to the Northern Territory Emergency Response (NTER) measures. These
amendments ‘redesigned’ the NTER
measures.[101] Specifically, I
will consider the amendments to the Northern Territory National Emergency
Response Act 2007
(Cth) (NTNER Act) that concern the power to compulsorily
acquire five-year leases.[102]

I first outline the background to the amendments. I then discuss the
‘redesigned’ NTER measures and assess the consultation process that
preceded the introduction of the amendments to these measures, with a particular
focus on the measures that affect rights to lands, territories and resources.
Finally, I consider whether there was sufficient consultation for the
legislative provisions regarding five-year leases to be properly considered to
be special measures.

I set out the key milestones in the history of the NTER in Table 3.2.

Table 3.2: Key milestones – Northern Territory Emergency Response
(NTER)
Date
Event
15 June 2007
The Little Children are
Sacred
[103] report is
publicly released by the Northern Territory Government.
21 June 2007
The Australian Government announces the introduction of the Northern
Territory Emergency Response measures.
7 August 2007
The following Bills are introduced into, and passed by the House of
Representatives:
  • Northern Territory National Emergency Response Bill 2007
  • Social Security and Other Legislation Amendment (Welfare Payment Reform)
    Bill 2007 (Cth)
  • Families, Community Services and Indigenous Affairs and Other Legislation
    Amendment (Northern Territory National Emergency Response and Other Measures)
    Bill 2007 (Cth)
  • Appropriation (Northern Territory National Emergency Response) Bill
    (No 1) 2007–2008 (Cth)
  • Appropriation (Northern Territory National Emergency Response) Bill
    (No 2) 2007–2008 (Cth).
9 August 2007
The Senate refers the five Bills to the Senate Standing Committee on Legal
and Constitutional Affairs. The Committee received 154
submissions.[104]
10 August 2007
The Senate Standing Committee on Legal and Constitutional Affairs conducts
its sole public hearing for this inquiry.
13 August 2007
The report of the Senate Standing Committee on Legal and Constitutional
Affairs is tabled in Parliament.
17 August 2007
All five Bills pass the Senate and receive assent. The five Acts are
referred to as the NTER.
June 2008
The Rudd Government commissions an independent review of the NTER.
October 2008
The NTER Review Board reports to the Australian
Government.[105]
23 October 2008
The Australian Government issues its initial response to the Report of the
NTER Review Board.[106]
21 May 2009
The Australian Government issues its final response to the Report of the
NTER Review Board.[107]
The Australian Government releases the Future Directions for the
Northern Territory Emergency Response: Discussion
paper
.[108]
June–August 2009
The Australian Government consults with Aboriginal communities on ways that
certain identified NTER measures could be redesigned.
23 November 2009
The Australian Government releases its Report on the Northern Territory
Emergency Response Redesign Consultations
and the independent report it
commissioned from the Cultural and Indigenous Research Centre Australia
(CIRCA).[109]
24 November 2009
The Australian Government releases its policy statement on the proposed
redesigned NTER
measures.[110]
25 November 2009
The Australian Government introduces the Social Security and Other
Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination
Act) Bill 2009 (Cth) (Welfare Reform Bill) into the House of
Representatives.[111]
26 November 2009
The Senate refers the Welfare Reform Bill to the Senate Community Affairs
Legislation Committee along with the Families, Housing, Community Services and
Indigenous Affairs and other Legislation Amendment (2009 Measures) Bill 2009
(Cth) and Senator Siewert’s private senator’s Bill (the Families,
Housing, Community Affairs and Other Legislation (Restoration of Racial
Discrimination Act) Bill 2009 (Cth)).
1 February 2010
Submissions to the Senate Community Affairs Legislation Committee’s
Inquiry are due. The Committee receives 95
submissions.[112]
4, 11, 15, 17, 22, 25, 26 February 2010
The Senate Community Affairs Legislation Committee holds public
hearings.
24 February 2010
The House of Representatives passes the Welfare Reform Bill.
10 March 2010
The Senate Community Affairs Legislation Committee reports on its
inquiry.[113]
21 June 2010
The Senate passes the Welfare Reform Bill.
29 June 2010
The Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Bill 2010 (Cth) receives
assent.
1 July 2010
The amendments to the five-year lease provisions
commence.[114]
31 December 2010
The provisions lifting the suspension of the RDA over the NTER legislation
and actions under it are scheduled to
commence.[115]
 
(i) The original NTER measures

On 21 June 2007, the Howard Government announced a number of
measures to combat child sex abuse in Aboriginal communities in the Northern
Territory. This became known as the NTER or the ‘Intervention’.

The NTER measures were implemented by a suite of Acts including the NTNER
Act.[116]

This legislation was implemented in great haste. The Howard Government made
no attempt to obtain the free, prior and informed consent of the Aboriginal
peoples affected by the legislation.

The Bills were introduced into, and passed by, the House of Representatives
on 7 August 2007. The Senate Standing Committee on Legal and
Constitutional Affairs was given only five days to conduct an inquiry into the
Bills. A public hearing was held on 10 August, and the report of the
Committee was tabled on 13 August 2007. The Bills were passed by the
Senate on 17 August 2007 and received assent that
day.[117] I will refer to these
Acts collectively as the ‘NTER legislation’.

Suspension of the RDA and deeming of special
measures

In relation to the operation of the RDA, the original NTER legislation:

  • deemed the measures contained in each Act, and any acts done under or for
    the purposes of those provisions, to be special measures for the purposes of the
    RDA
  • suspended the operation of Part II of the
    RDA[118] in relation to the
    provisions of the Acts and any acts done under or for the purposes of those
    provisions.[119]

The
Social Justice Commissioner considered the implications of the suspension of the
RDA in the Social Justice Report
2007.
[120] In essence,
the provisions stated that all of the measures introduced through the
legislation were to be characterised as ‘beneficial’ and therefore
exempt from the prohibition of racial discrimination in Part II of the RDA.

The suspension of the RDA meant that even if the NTER measures were not
special measures, the protections of the RDA did not apply. This meant
individuals had no right to bring a complaint under the RDA with respect to
provisions of the legislation or any acts done under or for the purposes of
those provisions. Nor could section 10 of the RDA be used to challenge the
validity of any laws introduced by the Northern Territory Government under the
auspices of the NTER legislation.

Significantly, the Special Rapporteur did not accept that the discriminatory
aspects of the original NTER measures had not been shown to qualify as special
measures. He observed that the Australian Government did not engage in adequate
consultation before the measures were enacted. Nor did the Special Rapporteur
consider that the measures were proportional or necessary to the stated
objectives of the NTER.[121]

Measures affecting rights to lands, territories and
resources

As part of the NTER, the Howard Government introduced measures that affected
the rights of Aboriginal people to their lands, territories and resources,
including:

  • the compulsory acquisition of leases for a term of five years over
    prescribed areas, including Aboriginal land and specified community living
    areas[122]
  • empowering the Australian Government to compulsorily acquire rights, titles
    and interests relating to town
    camps[123]
  • providing that the future acts regime under the Native Title Act does not
    apply to acts done by, under, or in accordance with certain provisions of the
    NTNER Act[124]
  • providing for the acquisition (by the Australian or Northern Territory
    Governments or their authorities) of extensive statutory rights in relation to
    areas of Aboriginal land designated as construction areas (statutory rights
    provisions).[125]

In
previous Native Title Reports and Social Justice Reports, the
Social Justice Commissioner examined the NTER and its effect on land rights and
native title. The Commissioner expressed concern about the lack of consultation
that preceded the introduction of the NTER, and highlighted the discriminatory
impact of some of the measures on Aboriginal
people.[126]

In the following sections, I will focus on the legislative provisions
regarding the compulsory acquisition of five-year leases. The Australian
Government currently holds five-year leases over 64 communities. These leases
will expire in August 2012.[127]

The compulsory acquisition of the five-year leases undercuts the Australian
Government’s message of strong engagement with Aboriginal and Torres
Strait Islander peoples. Normally, the terms of a lease are negotiated by the
parties. However, the terms and conditions of the five-year leases made pursuant
to the NTNER Act are determined by the
Government.[128]

The NTER measures apply to people and land within ‘prescribed
areas’ which ‘are specified “Aboriginal land” and other
designated areas that are populated almost entirely by indigenous
people’.[129] Accordingly,
the Special Rapporteur has also said that the NTER measures, including the
five-year leases, distinguish on the basis of
race[130] and ‘undermine
indigenous self-determination, limit control over property, inhibit cultural
integrity and restrict individual
autonomy’.[131]

(ii) The ‘redesigned’ NTER measures

In June 2008, the Rudd Government commissioned an independent review of the
NTER. This Review was conducted by the Northern Territory Emergency Review Board
(NTER Review Board), comprised of Peter Yu, Marcia Ella Duncan and Bill Gray
AM.[132]

The NTER Review Board reported to the Government in October 2008. As part of
its three ‘overarching’ recommendations, the NTER Review Board
recommended that the Australian and Northern Territory governments
‘acknowledge the requirement to reset their relationship with Aboriginal
people based on genuine consultation, engagement and
partnership’.[133] The
Australian Government accepted the three overarching
recommendations.[134]

From June to August 2009, the Australian Government consulted with Aboriginal
communities on ways that a limited number of NTER measures could be
redesigned.[135]

Following these consultations, the Australian Government introduced the
Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Bill 2009 (Cth) (Welfare Reform
Bill) into Parliament on 25 November 2009. This included changes to
the five-year lease provisions under Part 4 of the NTNER Act.

The Senate referred this Bill to the Senate Community Affairs Legislation
Committee (Community Affairs Committee) on 26 November 2009. This Committee
reported on 10 March 2010.[136] The Welfare Reform Bill received assent on 29 June 2010.

Changes to the NTER measures concerning five-year leases

The Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Act 2010
(Cth) (NTNER Amendment
Act) provides for the repeal of the provisions which suspend the operation of
the RDA with respect to the NTER legislation, and actions under it, from 31
December 2010. It also provides for the removal of those provisions that deem
the legislation and actions done under it to be special
measures.[137]

In addition, the Australian Government states that several of the NTER
measures have been redesigned so they are:

  • improved and strengthened
  • sustainable over the long-term
  • ‘more clearly special measures or non-discriminatory within the terms
    of the Racial Discrimination Act
    1975
    ’.[138]

However, the core measures of the NTER have been
retained.[139] For example, the
NTNER Amendment Act made some minor changes to the provisions of the NTNER Act
concerning the five-year leases. However, these provisions have not been
‘redesigned’ in any significant way.

Further, while the entire NTNER Act is no longer deemed to be a special
measure, the NTNER Act now provides that the object of Part 4 of the Act is to
enable special measures to be
taken.[140] Part 4 contains the
provisions relating to the acquisition of rights, titles and interests in land,
including the five-year lease provisions.

I provide a summary of these changes in Text Box 3.3.

Text Box 3.3: Amendments to the five-year lease provisions of the NTNER
Act
First, the NTNER Amendment Act inserted a new object clause into Part 4 of
the NTNER Act, which concerns the acquisition of rights, titles and interests in
land (including the five-year lease provisions).

Section 30A of the NTNER Act now provides that the object of Part 4 of the
NTNER Act is to enable special measures to be taken to:
  • improve the delivery of services in Indigenous communities in the Northern
    Territory
  • promote economic and social development in those
    communities.[141]
Secondly, section 35(2A) of the NTNER Act now provides that the
Commonwealth is only entitled to use, and to permit the use of, land covered by
a five-year lease for any use that the Commonwealth considers is consistent with
the fulfilment of the object of the Part. This ‘does not entitle the
Commonwealth to engage in, or to permit, exploration or mining in respect of
land covered by a lease granted under
section 31’.[142]

Thirdly, the new section 35A of the NTNER Act will require the Minister to
make, by legislative instrument, guidelines that specify the matters the
Commonwealth must have regard to when subleasing, licensing, parting with
possession of, or otherwise dealing with its interest in the five-year
lease.[143]

Fourthly, the NTNER Act now specifies that regard must be had to the body
of traditions, observances, customs and beliefs of Indigenous persons when
administering five-year
leases.[144]

Finally, the relevant owner of land subject to a five-year lease may
request the Commonwealth to enter into good faith negotiations on the terms and
conditions of another lease covering all or part of the land. If requested to do
so by the owner, the Commonwealth must enter into such good faith
negotiations.[145]

 

The Australian Government has said that it will retain the existing five-year
leases until they expire in August 2012. However, it has also committed to
progressively transition to voluntary leases during this
period.[146] While this intention
is positive, the Government must commit to this process by devoting the time and
resources necessary to planning and coordinating the roll-out of voluntary
leases, including making lease
applications.[147]

In a further welcome development, the Australian Government announced on 25
May 2010 that it had started to pay rent to Aboriginal land owners in 45 of the
64 communities subject to five-year leases. The rent will be backdated to the
commencement of the leases in 2007. Rent payments for the leases concerning two
communities in the Tiwi Islands, Milikapiti and Pirlangimpi, began in September
2009.[148]

While these are positive developments, I remain concerned that there is no
legislative guarantee against the compulsory acquisition of further leases.

I am also concerned that, at the time of writing, no announcement has been
made concerning compensation payments for the compulsory acquisition of these
leases. In Wurridjal v
Commonwealth
[149] the High
Court found that the Australian Government is required to pay just terms
compensation for the five-year
leases.[150]

The Australian Government has acknowledged that ‘[t]he payment of rent
does not preclude continuing discussions with the land owners in relation to the
provision of reasonable compensation provided for under the
legislation’.[151] I
encourage the Government to progress discussions with Aboriginal land owners
with a view to reaching agreement on appropriate
compensation.[152]

(iii) Assessing the Australian Government’s
consultation process

The Australian Government’s consultations about the proposed redesigned
measures were based on a discussion paper titled Future Directions for the Northern Territory Emergency Response (Future Directions
Discussion Paper).[153] The
consultations covered the 73 NTER
communities[154] plus a number of
town camps.

The Australian Government estimates the consultation processes reached a
total of 3000–4000
people.[155] The Government
employed a four-tiered approach to the consultations:

  • Tier 1 was an ongoing process in which individuals, families and small
    groups in communities were able to provide their views to government business
    managers. There were 444 of these meetings.
  • Tier 2 involved whole-of-community meetings led by Indigenous Coordination
    Centre Managers and Government Business Managers. There were 109 of these
    meetings.
  • Tier 3 involved regional workshops of two to three days. These meetings
    involved a more detailed examination of issues. Six of these meetings were held
    and 176 people attended.
  • Finally, Tier 4 involved five workshops with major Indigenous stakeholder
    organisations, which 101 people
    attended.[156]

This
process presented a real opportunity for meaningful engagement. With the
financial and organisational support of the Australian Government, such
wide-scale endeavours have the potential to create a constructive dialogue
between the Government and Aboriginal communities. This potential was not
realised.

The consultation processes regarding the redesigned NTER measures have been
analysed extensively.[157] A
number of parties have argued that the consultation process was
limited.[158] I am also aware of
concerns that some areas, such as ‘the bush’, had minimal
consultation.[159] I acknowledge
that the Australian Government has responded to a number of these criticisms in
Senate Committee
hearings.[160]

It is beyond the scope of this Chapter to detail all facets of this
consultation process. However, in this section, I survey some of the features of
the consultation process and question whether Aboriginal peoples were able to
participate effectively in the decision-making processes regarding the
redesigned measures. Specifically, I consider:

  • the Australian Government’s overall approach to the consultation
    process
  • whether the Australian Government was open to addressing the concerns of
    Aboriginal people regarding the measures affecting their rights to their lands,
    territories and resources
  • the accessibility of information presented during the
    consultations.
Were there any steps in the right
direction?

Certainly, the consultation process displayed some positive features.

First, the scale of consultation that the Australian Government embarked upon
should be applauded. Reaching such a large number of people across large areas
of remote territory is not easy.

Secondly, the Government contracted the Cultural and Indigenous Research
Centre of Australia (CIRCA) to review the engagement and communication strategy
for the redesign consultations. CIRCA released its final Report on the NTER
Redesign Engagement Strategy and Implementation
(CIRCA Report) in September
2009.[161]

The Australian Government has reported that it adjusted the consultation
process in response to early feedback from
CIRCA.[162] However, Alison Vivian
has noted that CIRCA was contracted to assess whether the ‘consultations
were undertaken in accordance with the engagement and communication strategy,
rather than in accordance with best practice indicia for consultation with
Indigenous
communities’.[163] Further,
the Government did not respond to some of the serious concerns raised by CIRCA
‘in relation to the openness and fairness of the meetings and workshops,
and the content covered during those
meetings’.[164]

I am pleased that the Government was prepared to review its processes, and
was open to adjusting these processes where necessary. However, there were
several ways that this process could have been improved to ensure that it was
consistent with best practice standards for consultation and engagement,
including those considered in section 3.2, above, and in Appendix 4.

How did the Australian Government approach the
consultations?

As I discuss in section 3.2, above, the objective of a consultation process
should always be ‘to obtain the consent or agreement of the indigenous
peoples concerned’.[165] Further, consultation procedures should themselves be the product of
consensus.

There has been criticism that this consultation process was not the product
of consensus, and that it ‘was going to be problematic given the absence
of Indigenous involvement in its design and
implementation’.[166] As I
discuss at section 3.2, the involvement of affected Aboriginal and Torres Strait
Islander peoples in the design and implementation of consultation processes is
essential.

It is concerning that the Australian Government did not appear to approach
the consultations on the redesigned NTER measures with the objective of
obtaining the free, prior and informed consent of the peoples affected by the
measures. As stated in the Future Directions Discussion Paper, the Government
believed that the current measures should continue but it wanted to ‘hear
community views about continuing the NTER measures and how they could be changed
to deliver greater
benefits’.[167] This is
worrying given the ‘current measures’ the Government proposed to
continue were implemented without consultation.

When asked by the Community Affairs Committee whether the Australian
Government’s purpose in undertaking the consultations was to obtain the
free, prior and informed consent of the peoples affected by these measures, a
representative of FaHCSIA responded:

The answer is no. The reason for that is because the purpose of the
consultations is set out in the discussion paper and the other documents. Those
purposes related to resetting the relationship continuing the Northern Territory
Emergency Response and reinstating the Racial Discrimination Act, ... That was
the purpose that the consultations were entered into for
...[168]

If this was the Government’s starting point, I question how much scope
there was within the consultation process for Aboriginal people to genuinely
influence the Government’s decision-making processes.

Was the Australian Government open to responding to
the concerns of Aboriginal people affected by the measures?

In several respects, it appeared as if the Australian Government had a
predetermined outcome in mind in entering into the consultations and that it was
not truly open to responding to the concerns of Aboriginal people. A
number of stakeholders raised this concern during the Community Affairs
Committee’s hearings.[169] Overall, the Government proposed that ‘the individual measures should
continue to operate in much the same way as they have been
operating’.[170]

The Government’s engagement and communication strategy had two
overarching objectives:

The first is to reset the relationship between the Government and the
Indigenous people in the NT. It will do this by:

  • Reiterating the original purpose of the NTER;
  • Reiterating the major achievements to date;
  • Reiterating this Government’s commitments including what it has
    delivered to date;
  • Explaining the Government’s current position on the NTER, in
    particular its position on each of the specific measures;
  • Explaining why the Government is conducting these consultations; and
  • Explaining the longer term agenda.

The second objective is to
collect and record feedback from stakeholders on the benefits of the various
NTER measures, and how they could be made to work
better.[171]

This framework appears to limit the type of feedback the Government would
consider as part of its process to ‘redesign’ the NTER. Noticeably
absent from this framework is the objective of involving Aboriginal peoples in
the decision-making process as to whether the NTER measures should be
redesigned, removed or retained.

Some issues were not even open for discussion as part of the consultation
process. For instance, the Future Directions Discussion Paper did not invite
people to comment on the powers to compulsorily acquire Aboriginal town camps
and to obtain statutory rights over Aboriginal land. These provisions have not
been ‘redesigned’.

While the statutory provisions regarding the five-year leases were reviewed
as part of the consultation process, the Government did not appear to be open to
considering any significant redesign or the removal of these provisions.

In the Future Directions Discussion Paper, the Government proposed only minor
changes to the legislative provisions relating to the five-year leases. The
question of whether the provisions should continue was not part of the
‘Questions for discussion during consultation’ set out in the Future
Directions Discussion Paper.[172] In the Native Title Report 2009, the previous Social Justice Commissioner
expressed concern that community residents were only being asked for comment on
the proposed amendments, as the Australian Government had already formed the
view that the five-year leases had operated for the benefit of Aboriginal
residents and proposed to continue
them.[173]

As a representative of the Central Land Council (CLC) submitted to the
Community Affairs Committee,

it is misleading to simply put to a community, ‘What are your views
about the five-year leases, because they have been of benefit and if we did not
have the five-year leases, we would not be able to carry out all these things in
your communities’. It was not presented as though the five-year leases
were not in fact leases but compulsory acquisitions of Aboriginal land ... How
you present information is critical to the feedback that you receive. This is
where we have concerns about the consultation process. It was designed to
emphasise the benefits of the measures. There is no evidence that we can see
that shows that there was a balanced approach to try and give people the full
suite of information you may need to make, for example, a decision around
something like five-year leases or land tenure
arrangements.[174]

The Government has stated that the Future Directions Discussion Paper was
only a starting point for discussions, and that ‘the consultations were
conducted in the spirit of genuine consultation and
engagement’.[175]

This does not appear to have been the case with respect to the five-year
lease provisions. As the Government reports, the changes to the five-year lease
provisions were ‘in line with those proposed in the [Future Directions]
Discussion Paper’.[176] It
is therefore questionable whether the Government created a space for Aboriginal
peoples to be genuinely involved in the decision-making processes as to whether
the provisions regarding the five-year leases should be
‘redesigned’, retained or removed altogether.

Were the consultations conducted, and was the
information provided, in an accessible way?

The NTER legislation, and its relationship to the RDA, is complex and
difficult to understand. A representative of FaHCSIA informed the Community
Affairs Committee that considerable effort was taken to draft the Future
Directions Discussion Paper in plain English to ensure that measures were
clearly explained. Government Business Managers and Indigenous Engagement
Officers were also available to explain the
consultations.[177]

Yet, I am concerned that some people affected by the NTER measures were not
always able to participate in the consultations in a fully informed manner. For
example, CIRCA found that the Future Directions Discussion Paper:

  • was not accessible for those with limited English language skills
  • did not have any visual imagery to assist understanding or engage the
    audience
  • used formal ‘government’ language.

Also,
insufficient time was provided for people to read the Future Directions
Discussion Paper in the Tier 3 meeting that CIRCA observed. [178]

In addition, the Australian Government has recognised that, during the
consultations:

There were frequent comments that people did not understand the leasing
arrangements and there was some confusion between five-year leases, township
leasing and voluntary
leasing.[179]

This confusion may be attributed, in part, to the complexity of the measures
and how difficult it is to explain them in the timeframe allowed for
consultations. For example, the CIRCA Report found that

it was difficult in the Tier 2 meetings to have an open discussion as the
level of understanding and knowledge of the measure varied, and there was not
time to fully explain the measure. This was true for five-year leases
...[180]

The lack of appropriate interpreting services was a further barrier to
effective communication. The Will they be heard? report on the NTER
consultations found that ‘a number of the consultations were seemingly
conducted with a presumption of English proficiency’ and without
interpreters.[181] This is
especially problematic given the complexity of some of the measures under
review. It is also important that affected communities have sufficient time to
digest the information before providing feedback.

FaHCSIA noted that it had engaged interpreters on a ‘wide-ranging
basis’[182] and worked
closely with the Northern Territory Aboriginal Interpreter Service to ensure
interpreters were available as much as possible. However, FaHCSIA observed that
interpreters were sometimes not available to attend consultation meetings, and
that Australian governments acknowledge that more has to be done to build the
capacity of interpreting
services.[183]

The Community Affairs Committee recognised these concerns. It recommended
that the Australian Government maintain its commitment to increase the capacity
of Indigenous interpretative services in the Northern Territory and in
Aboriginal and Torres Strait Islander communities across
Australia.[184]

As I discussed in section 3.2, above, governments need to provide full and
accessible information about a measure to ensure that Aboriginal and Torres
Strait Islander peoples can participate in decision-making in an informed way.
It is impossible for anyone to give their free, prior and informed consent to a
measure if they do not fully understand the issue and the possible impact of the
measure.

Was there sufficient consultation to address the elements of a special
measure?

The Australian Government has claimed that it has ‘delivered on its
commitment’ to reinstate the
RDA.[185] Yet, the statutory
provisions regarding the five-year leases remain inconsistent with the
RDA.[186]

As explained above, the NTNER Act now provides that the object of the
statutory provisions regarding the five-year leases is to enable special
measures to be undertaken. However, the absence of consent and the limitations
of the Government’s consultation process brings into question the
characterisation of the five-year lease provisions as special measures.

As stated above, the Special Rapporteur noted that the original NTER measures
were not preceded by adequate consultations. He did not accept that the
discriminatory aspects of the original NTER measures qualified as special
measures. The Special Rapporteur further noted that, with respect to the
redesigned measures, there are

significant criticisms against the very consultative process that the
Government contends meets the standard of free, prior and informed consent.
Thus, open to question is the extent to which the Government’s proposed
NTER reforms can indeed be said to count on broad support among the affected
indigenous people.[187]

The Special Rapporteur noted that the Australian Government’s own
report of the results of the consultations showed ‘that there is an
absence of broad or even substantial acceptance by indigenous communities of the
rights-impairing aspects of the NTER
measures’.[188]

Indeed, the Government has reported mixed views on the five-year lease
provisions. Some participants ‘expressed frustration and confusion over
lease arrangements’.[189] In
this context, I agree with the Law Council of Australia’s that it is

very difficult to comprehend how [the five-year lease provisions] can
conceivably be characterised as special measures in circumstances where a
majority of those consulted simply did not understand or did not see any benefit
in them.[190]

Some
organisations have gone further to suggest that five-year leases are directly
against the wishes of Aboriginal
residents.[191] For instance, the
CLC conducted a survey of six communities in 2008 to document the experiences
and opinions of Aboriginal people in Central Australia in relation to the NTER.
The CLC found:

The overwhelming majority of respondents (85 percent) were opposed to 5 year
leases. Reasons for opposition to 5 year leases included: the leases gave
government more control over communities...the leases overrode the rights of
traditional landowners, the leases were put in place without any consultation
and the boundaries of the leases were
inappropriate...[192]

In addition, the Australian Human Rights Commission believes that the
five-year lease provisions cannot constitute special measures under the
RDA.[193] As explained above at
section 3.3, laws that:

  • authorise property owned by an Aboriginal or Torres Strait Islander to be
    managed by another without their consent

or

  • prevent or restrict an Aboriginal or Torres Strait Islander from terminating
    the management by another person of property owned by the Aboriginal or Torres
    Strait Islander

are specifically excluded from the special measures
exemption in the RDA.[194]

However, the Community Affairs Committee found that the redesigned measures
are special measures. The redesigned income management measures were the
exception to this finding, as the Committee accepted that these measures were
non-discriminatory.[195]

I remain of the view that, to be consistent with the RDA, measures relating
to the management of land must be taken with the consent of the landowners.
Therefore the redesigned provisions regarding the five-year leases remain
inconsistent with the RDA in this
respect.[196]

(iv) Conclusion

During the consultations on the redesigned NTER measures, Laynhapuy Homeland
Mala Leaders at Yirrkala told the Australian Government that:

Our responses to your questions in this consultation must not be used by the
Australian Government to argue for the continuation of the NTER, Intervention or
justify what has been done to
date.[197]

Similar concerns were expressed to CERD in its August 2010 examination of
Australia (see Text Box 3.4).

Text Box 3.4: Graeme Innes, Race Discrimination Commissioner, appears
before the Committee on the Elimination of Racial
Discrimination
[198]
I now turn to Rosie and Djiniyini, two Aboriginal elders who have traveled
from Central Australia to deliver an urgent message about the survival of their
Aboriginal brothers and sisters, and sons and daughters, living under the
Northern Territory Emergency Response. You have both told me you decided to
participate because you hoped it could ease your own, and your communities,
despair. You both told me you have felt a need to step back from developments
with the Northern Territory Intervention, to see and I quote “what is left
of us mob”.

Rosie and Djiniyini, you are descendants of ancient peoples, the
world’s oldest continuing culture, and you do not need me, or the
Australian Government, to speak for you.  But may I repeat your messages:

You did not consent to the Northern Territory Intervention. 

You said that the Intervention is not a special measure.
You said that it is not a positive or concrete measure to strengthen your
communities, culture or customary practice. It has had the opposite
effect. It has removed people from their lands, and their own distinct
practices and world values. And you said that without land and community at your
spiritual centre, every Aboriginal person in Australia will be lost.

 

I am concerned that voices such as these were not heeded during the
consultation process. As I have discussed in this section:

  • the people affected by the NTER measures were not always able to participate
    in the consultations in a fully informed manner
  • the Australian Government did not appear to approach the consultations with
    the objective of obtaining free, prior and informed consent
  • the consultations did not appear to create a space for Aboriginal peoples to
    be genuinely involved in the decision-making processes as to whether the
    five-year leases should be retained, removed or redesigned.

As
such, the consultation process did not reflect the principles for meaningful and
effective consultation, such as those set out in section 3.2 and Appendix 4.

I fully support the Special Rapportuer’s call for the Australian
Government to

fully purge the NTER of its racially discriminatory character and conform it
to relevant international standards, through a process genuinely driven by the
voices of the affected indigenous
people.[199]

(c) What can we learn
from these consultation processes?

Undoubtedly, the Australian Government has taken some important steps towards
improving its relationship with Aboriginal and Torres Strait Islander peoples.
However, the consultation processes profiled in this Chapter illustrate that the
Government can further improve the way it engages with us in several important
respects.

(i) There is a need for a new consultation and
engagement framework

In this Chapter, I have highlighted the need for the Australian Government to
make additional efforts to ensure that its consultation processes are meaningful
and effective.

For example, the Australian Government needs to ensure that Aboriginal and
Torres Strait Islander peoples have access to adequate information about the
nature and potential impact of a proposed measure. This information needs to be
accessible and easy for the communities affected by the measure to understand.
This may require further funding and support for translation and interpretation
services.

The Government must also structure consultation processes such that we are
afforded adequate time and resources to engage in our own decision-making
processes. Further, the Government needs to choose the location of consultation
sessions carefully in order to ensure that those most affected by a proposed
measure are able to participate and have their views considered.

Most importantly, the Government needs to work with us from the outset to
design appropriate consultation processes. The Government needs to work in
partnership with us to build consultation processes from the ground up if it is
serious about rebuilding relationships with us.

I believe that there is a clear need for a framework to guide governments in
the development of consultation processes regarding reforms to law, policies,
programs and development processes that may affect our rights.

I recommend that the Australian Government work with Aboriginal and Torres
Strait Islander peoples and our representatives to develop a new, comprehensive
consultation and engagement framework.

While specific consultation processes should always be the product of
consensus, such a framework could guide the development of appropriate processes
on a case-by-case basis. The framework should apply across federal ministries,
departments and agencies, with consideration given as to how best to promote the
framework at a state and territory level and among parliamentary committees.

I believe that the elements of effective and meaningful consultation
identified in this Chapter provide a useful starting point for discussions.
Further, this framework should explicitly acknowledge the minimum standards
affirmed in the Declaration. In this way, the framework would be a powerful way
of implementing the Declaration.

(ii) There needs to be a cultural change within
governments

Creating a meaningful and effective consultation process is not just about
ensuring adequate timeframes and providing sufficient resources. Governments
need to fundamentally change the way they approach consultations.

We cannot build relationships based on partnership and mutual respect if
consultations are simply an exchange of information concerning a fixed,
predetermined policy position. Governments need to be truly prepared to listen
to us and accommodate our concerns. They cannot approach consultations with a
set legislative or policy outcome in mind.

In order to find long-term solutions to the problems facing our communities,
we need to be effective participants in decision-making processes that affect
our rights to our lands, territories and resources. I do not believe that this
was the case in the two consultations processes that I have profiled in this
Chapter.

In short, governments need to change the way they do business. They need to
build their own cultural competencies, and their ability to work with us. This
highlights the need for greater education and training within governments about
our human rights.

As discussed in Chapter 1, as Social Justice Commissioner I will seek to
build an understanding of, and respect for, our rights to our lands, territories
and resources throughout Australia. I believe that the process of developing a
new consultation and engagement framework could itself facilitate the emergence
of a deeper understanding of our rights within governments. Our human rights
need to be a primary consideration in any consultation process.

I am concerned that the Australian Government appears to have continued a
disturbing trend of characterising as a ‘special measure’ certain
legislation that in fact limits our human
rights.[200] As the Special
Rapporteur has stated:

[I]t would be quite extraordinary to find consistent with the objectives of
the Convention, that special measures may consist of differential treatment that
limits or infringes the rights of a disadvantaged group in order to assist the
group or certain of its members. Ordinarily, special measures are accomplished
through preferential treatment of disadvantaged groups, as suggested by the
language of the Convention, and not by the impairment of the enjoyment of their
human rights.[201]

I am concerned that the Australian Government appears to have asserted that
the reforms reviewed in this Chapter are special measures without sufficiently
considering the basis for this claim. Of utmost concern is the fact that the
Government does not appear to have given due consideration to the issues of
consultation and consent in its assessment of whether these reforms are special
measures.

The Australian Government should ensure that any consultation document
regarding a proposed legislative or policy measure that may affect our rights
contains a statement that details whether the proposed measure is compatible
with international human rights standards. This analysis should:

  • explain whether, in the Government’s opinion, the proposed measure
    would be consistent with international human rights standards and, if so, how it
    would be consistent
  • pay specific attention to any potentially racially discriminatory elements
    of the proposed measure
  • where appropriate, explain the basis upon which the Government asserts that
    the proposed measure would be a special measure
  • be made publicly available at the earliest stages of consultation processes.

Such a statement could promote an open dialogue about the impact of
the proposed measure on our rights, and encourage the Australian Government to
explicitly consider our human rights at the earliest stages of law and
policy-making. It can also equip us with the information that we need to engage
in consultations, and to test the Government’s assertions, in a fully
informed way.

3.5 Conclusion

In this Chapter, I have illustrated several ingredients of a meaningful and
effective consultation process. I have also considered whether the Australian
Government has paid adequate attention to issues of consultation and consent in
relation to two law reform initiatives that were pursued during the Reporting
Period. I consider that there is a clear need for the Australian Government to
change the way that it engages with us in relation to matters that would affect
our rights to our lands, territories and resources.

Meaningful consultation can forge new relationships between Aboriginal and
Torres Strait Islander peoples and governments. It can also lead to the
development of lasting and effective policy solutions. Yet, as observed by the
CLCAC, ‘[i]t is unfortunate that consultation of this nature is so
rare’.[202]

I believe that the nature and quality of the Australian Government’s
consultation processes can indicate the strength of its commitment to
‘reset’ its relationship with us. If it is serious about developing
relationships based on partnership and mutual respect, the Government must
engage with us in a meaningful way before adopting or implementing matters that
would affect our rights to our lands, territories and resources. By working with
us and respecting our rights, rather than imposing laws and policies upon us,
governments can go a considerable way towards building stronger relationships
with us.

There is some cause for optimism. For example, the Chairperson of the South
West Aboriginal Land and Sea Council (SWALSC), Graeme Miniter, has commented:

SWALSC seemed to be drawn into more and more discussions and consulted in
ever increasing ways ... We should never be complacent, but there are signs that
the work done to try to faithfully represent Noongars on major issues is
beginning to influence the way governments and industry engage with Noongars. We
are always aiming for strong and respectful two way relationships. This is not
always possible but seems to be more common than it
was.[203]

I am particularly pleased that the National Congress of Australia’s
First Peoples was established during the Reporting
Period.[204] I believe that this
organisation will play a crucial role in building and strengthening
relationships, and in supporting effective engagement, between governments and
Aboriginal and Torres Strait Islander peoples.

As I stated in Chapter 1, one of my priorities as Social Justice Commissioner
is to promote effective engagement between governments and Aboriginal and Torres
Strait Islander peoples. To this end I will continue to monitor the adequacy of
government consultation processes during my term.

Recommendations

3.1 That any consultation document regarding a proposed legislative or
policy measure that may affect the rights of Aboriginal and Torres Strait
Islander peoples contain a statement that details whether the proposed measure
is consistent with international human rights standards. This statement
should:

  • explain whether, in the Australian Government’s opinion, the proposed
    measure would be consistent with international human rights standards and, if
    so, how it would be consistent
  • pay specific attention to any potentially racially discriminatory elements
    of the proposed measure
  • where appropriate, explain the basis upon which the Australian Government
    asserts that the proposed measure would be a special measure
  • be made publicly available at the earliest stages of consultation processes.

3.2 That the Australian Government undertake all necessary
consultation and consent processes required for the development and
implementation of a special measure.

3.3 That the Australian Government work with Aboriginal and Torres Strait
Islander peoples to develop a consultation and engagement framework that is
consistent with the minimum standards affirmed in the United Nations
Declaration on the Rights of Indigenous Peoples
. Further, that the
Australian Government commit to using this framework to guide the development of
consultation processes on a case-by-case basis, in partnership with the
Aboriginal and Torres Strait Islander peoples that may be affected by a proposed
legislative or policy measure.

3.4 That Part 4 of the NTNER Act be amended to remove the capacity to
compulsorily acquire any further five-year leases. Further, in respect of the
existing five-year lease arrangements, that the Australian Government implement
its commitment to transition to voluntary leases with the free, prior and
informed consent of the Indigenous peoples affected; and that it ensure that
existing leases are subject to the Racial Discrimination Act 1975 (Cth).


[1] United Nations Declaration
on the Rights of Indigenous Peoples
, GA Resolution 61/295 (Annex), UN Doc
A/RES/61/295 (2007). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
29 September 2009).
[2] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, Statement on the United Nations Declaration on the Rights
of Indigenous Peoples
(Speech delivered at Parliament House, Canberra,
3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/statements/Pages/un_declaration_03apr09.aspx (viewed 29 September 2010).
[3] D Lee, Intervention on behalf
of the New South Wales Aboriginal Land Council to the Expert Mechanism on the
Rights of Indigenous Peoples, 3rd session, agenda item 3
(12 July 2010). At http://www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH0100/5b640305.dir/EM10david012.pdf (viewed 29 September 2010).
[4] Committee on the Elimination
of Racial Discrimination, Concluding observations of the Committee on the
Elimination of Racial Discrimination: Australia
, UN Doc CERD/C/AUS/CO/14
(2005), para 16. At http://www2.ohchr.org/english/bodies/cerd/cerds66.htm (viewed 29 September 2010).
[5] Committee on the Elimination of Racial Discrimination, Concluding
observations of the Committee on the Elimination of Racial Discrimination:
Australia
, UN Doc CERD/C/AUS/CO/15-17 (2010), paras 16, 18.
[6] The Hon J Macklin MP, Minister
for Families, Housing, Community Services and Indigenous Affairs, Budget
2010–11: Closing the Gap Between Indigenous and Non-Indigenous Australians
(Statement, 11 May 2010). At http://www.fahcsia.gov.au/about/publicationsarticles/corp/BudgetPAES/budget10_11/Documents/indig_statement.htm (viewed
29 September 2010).
[7] J
Anaya, Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, James Anaya
, Report to the Human
Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), paras 43–44.
At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed
29 September 2010).
[8] J
Anaya, Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, James Anaya
, Report to the Human
Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 65. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 29 September 2010).
[9] J Anaya, Report of the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya
, Report to the Human Rights Council, 12th
session, UN Doc A/HRC/12/34 (2009), para 47. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 29 September 2010).
[10] J Anaya, Report of the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya
, Report to the Human Rights Council, 12th
session, UN Doc A/HRC/12/34 (2009), para 47. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 29 September 2010). For example, free, prior and informed
consent must be obtained when the measure involves relocating indigenous peoples
from their lands or territories; or the storage or disposal of hazardous
materials in the lands or territories of indigenous peoples: United Nations
Declaration on the Rights of Indigenous Peoples
, GA Resolution 61/295
(Annex), UN Doc A/RES/61/295 (2007), arts 10, 29(2). At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed 29 September 2010).
[11] J Anaya, Report of the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya
, Report to the Human Rights Council, 12th
session, UN Doc A/HRC/12/34 (2009), para 50. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed
21 September 2010).
[12] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya
, Report to the
Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 48. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 29 September 2010).
[13] For recent studies, see,
for example, United Nations Permanent Forum on Indigenous Issues, Report of
the International Workshop on Methodologies regarding Free, Prior and Informed
Consent and Indigenous Peoples (New York, 17–19 January 2005)
, UN Doc
E/C.19/2005/3 (2005), para 46. At http://www.un.org/esa/socdev/unpfii/en/workshopFPIC.html (viewed 29 September 2010); J Anaya, Report of the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, James Anaya
, Report to the Human Rights Council, 12th
session, UN Doc A/HRC/12/34 (2009). At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 29 September 2010); Expert Mechanism on the Rights of
Indigenous Peoples, Progress report on the study on indigenous peoples and
the right to participate in decision-making
, Report to the Human Rights
Council, 15th session, UN Doc A/HRC/15/35 (2010). At http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.35_en.pdf (viewed 29 September 2010). See also T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2009,
Australian Human Rights Commission (2009), Appendix 3. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 29 September 2010).
[14] Expert Mechanism on the
Rights of Indigenous Peoples, Progress report on the study on indigenous
peoples and the right to participate in decision-making
, Report to the Human
Rights Council, 15th session, UN Doc A/HRC/15/35 (2010), para 89. At http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.35_en.pdf (viewed
29 September 2010).
[15] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya
, Report to the
Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 45. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed
29 September 2010).
[16] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya
, Report to the
Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), paras 51,
68. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed
29 September 2010).
[17] Cape York Land Council, ‘Information requested for the Native Title
Report 2010

(10 October 2010).
[18] Carpentaria Land Council Aboriginal Corporation, Submission in relation to
proposed housing and infrastructure amendments to the
Native Title Act
1993 (Cth) (4 September 2009), para 7.9. At http://www.clrc.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf/$file/Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf (viewed
30 September 2010)
[19] New South Wales Aboriginal Land Council, The Northern Territory Intervention:
Compliance with the UN Declaration on the Rights of Indigenous Peoples:
Submission to the United Nations Permanent Forum on Indigenous Issues
, Ninth Session, 19–30 April 2010 (2010), p 17. This report was
prepared by Ben Schokman for the New South Wales Aboriginal Land
Council.
[20] Cape York Land
Council, ‘Information requested for the Native Title Report
2010

(10 October 2010).
[21] Cape York Land Council, ‘Information requested for the Native Title
Report 2010

(10 October 2010).
[22] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya
, Report to the
Human Rights Council, 12th session, UN Doc A/HRC/12/34
(15 July 2009), para 46. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed
29 September 2010).
[23] Carpentaria Land Council Aboriginal Corporation, Submission in relation to
proposed housing and infrastructure amendments to the
Native Title Act
1993 (Cth) (4 September 2009), para 4.9. At http://www.clrc.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf/$file/Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf (viewed
29 September 2010).
[24] J T Kris, Chairperson, Torres Strait Regional Authority, Correspondence to M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner,
10 August 2010.
[25] P Agius, CEO, South Australian Native Title Services, Correspondence to J
Hartley, Senior Policy Officer, Social Justice Unit, Australian Human Rights
Commission,
1 October 2010.
[26] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 39. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
30 September 2010).
[27] United Nations Permanent Forum on Indigenous Issues, A draft guide on the
relevant principles contained in the United Nations Declaration on the Rights of
Indigenous Peoples, International Labour Organisation Convention No 169 and
International Labour Organisation Convention No 107 that relate to Indigenous
land tenure and management arrangements
, UN Doc E/C.19/2009/CRP.7 (undated),
p 21. At http://www.un.org/esa/socdev/unpfii/documents/E_C19_2009_CRP_7.doc (viewed 30
September 2010).
[28] Cape
York Land Council, ‘Information requested for the Native Title Report
2010

(10 October 2010).
[29] Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), reg 8(2). As
defined in reg 8(1), a ‘native title decision’ means a decision
to:

• surrender native title rights and interests in relation to land or
waters or

• do, or agree to do, any other act that would affect the native title
rights or interests of the common law
holders.
[30] Carpentaria Land
Council Aboriginal Corporation, Submission in relation to proposed housing
and infrastructure amendments to the
Native Title Act 1993 (Cth) (4 September 2009), para 7.10. At http://www.clrc.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf/$file/Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf (viewed
30 September 2010).
[31] United Nations Permanent Forum on Indigenous Issues, Report of the
International Workshop on Methodologies regarding Free, Prior and Informed
Consent and Indigenous Peoples

(New York, 17–19 January
2005)
, UN Doc E/C.19/2005/3 (2005), para 46. At http://www.un.org/esa/socdev/unpfii/en/workshopFPIC.html (viewed 30
September 2010).
[32] Carpentaria Land Council Aboriginal Corporation, Submission in relation to
proposed housing and infrastructure amendments to the
Native Title Act
1993 (Cth) (4 September 2009), para 7.11. At http://www.clrc.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf/$file/Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf (viewed
30 September 2010).
[33] See, for example, the consultation processes concerning the Native Title
Amendment Bill (No 2) 2009 (Cth). I examine these processes in section 3.4,
below.
[34] P Agius, CEO, South
Australian Native Title Services, Correspondence to J Hartley, Senior Policy
Officer, Social Justice Unit, Australian Human Rights Commission,
1 October 2010.
[35] S
Hawkins, CEO, Yamatji Marpla Aboriginal Corporation, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, 9 August
2010.
[36] T Wright, Acting CEO,
Western Desert Lands Aboriginal Corporation (Jamakurnu-Yapalinkunu) RNTBC,
Correspondence to C Edwards, Manager — Land Reform Branch, Department of
Families, Housing, Community Services and Indigenous Affairs, 4 September 2009.
At http://www.ag.gov.au/www/agd/agd.nsf/page/indigenouslawandnativetitle_nativetitle_nativetitlereform#submissions1 (viewed 30
September 2010).
[37] S
Hawkins, CEO, Yamatji Marpla Aboriginal Corporation, Correspondence to M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner,
9 August 2010.
[38] J
Anaya, Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, James Anaya
, Report to the Human
Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 45. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed 30 September 2010).
[39] Carpentaria Land Council Aboriginal Corporation, Submission in relation to
proposed housing and infrastructure amendments to the
Native Title Act
1993 (Cth) (4 September 2009), para 7.11. At http://www.clrc.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf/$file/Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf (viewed
30 September 2010).
[40] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 19. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
30 September 2010).
[41] United Nations Permanent Forum on Indigenous Issues, A draft guide on the
relevant principles contained in the United Nations Declaration on the Rights of
Indigenous Peoples, International Labour Organisation Convention No 169 and
International Labour Organisation Convention No 107 that relate to Indigenous
land tenure and management arrangements
, UN Doc E/C.19/2009/CRP.7 (undated),
p 21. At http://www.un.org/esa/socdev/unpfii/documents/E_C19_2009_CRP_7.doc (viewed 30
September 2010).
[42] Carpentaria Land Council Aboriginal Corporation, Submission to the Senate
Legal and Constitutional Affairs Legislation Committee Inquiry into the Native
Title Amendment Bill (No 2) 2009 (Cth)
(10 November 2009), para
38. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=2e81ce84-44ba-4c7f-88b4-6307d2ac55d2 (viewed 30 September 2010).
[43] Expert Mechanism on the
Rights of Indigenous Peoples, Progress report on the study on indigenous
peoples and the right to participate in decision-making
, Report to the Human
Rights Council, 15th session, UN Doc A/HRC/15/35 (2010), para 99. At http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.35_en.pdf (viewed
30 September 2010).
[44] See Appendix 3: ‘Elements of a common understanding of free, prior and
informed consent’ for examples of the information that should be provided
to Aboriginal and Torres Strait Islander
peoples.
[45] S Hawkins, CEO,
Yamatji Marpla Aboriginal Corporation, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner,
9 August 2010.
[46] Goldfields Land and Sea Council, ‘Information requested for the Native
Title Report 2010

(30 September 2010).
[47] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya
, Report to the
Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 43. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed
21 September 2010).
[48] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya
, Report to the
Human Rights Council, 12th session, UN Doc A/HRC/12/34 (2009), para 47. At http://www2.ohchr.org/english/bodies/hrcouncil/12session/reports.htm (viewed
21 September 2010).
[49] Australian Human Rights Commission, Draft guidelines for ensuring income
management measures are compliant with the
Racial Discrimination Act (2009), para 91. At http://www.humanrights.gov.au/racial_discrimination/publications/RDA_income_management2009_draft.html (viewed 19 November 2010).
[50] Committee on the Elimination of Racial Discrimination, General Recommendation
No 32 (2009): The meaning and scope of special measures in the International
Convention on the Elimination of Racial Discrimination
, UN Doc
A/64/18 (Annex VIII) (2009), paras 11–12. At http://www2.ohchr.org/english/bodies/cerd/comments.htm (viewed 19 November 2010).
[51] International Convention
on the Elimination of All Forms of Racial Discrimination
, 1965, arts 1(4),
2(2). At http://www2.ohchr.org/english/law/cerd.htm (viewed
21 September 2010).
[52] See, for example, Committee on the Elimination of Racial Discrimination, General Recommendation No 32 (2009): The meaning and scope of special
measures in the International Convention on the Elimination of Racial
Discrimination
, UN Doc A/64/18 (Annex VIII) (2009), para 20. At http://www2.ohchr.org/english/bodies/cerd/comments.htm (viewed
28 July 2010).
[53] For
further information on the operation of the RDA, see Australian Human Rights
Commission, Federal Discrimination Law (2010), ch 3. At http://www.humanrights.gov.au/legal/FDL/index.html (viewed
21 September 2010).
[54] See International Convention on the Elimination of All Forms of Racial
Discrimination
, 1965, art 1(4). At http://www2.ohchr.org/english/law/cerd.htm (viewed 3 August 2010). For discussion of the indicia of a special
measure, see Gerhardy v Brown (1985) 159 CLR 70, 130–140 (Brennan
J).
[55] Committee on the
Elimination of Racial Discrimination, General Recommendation No. 32 (2009):
The meaning and scope of special measures in the International Convention on the
Elimination of Racial Discrimination
, UN Doc A/64/18 (Annex VIII)
(2009), para 18. At http://www2.ohchr.org/english/bodies/cerd/comments.htm (viewed
28 July 2010).
[56] Human Rights and Equal Opportunity Commission, ‘Submissions of the Human
Rights and Equal Opportunity Commission on Grounds of Appeal’, Submission
in Bella Bropho v Western Australia, WAD90 of 2007, 3 September 2007, para 37. At http://www.humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html (viewed 22 September 2010).
[57] Gerhardy v Brown (1985) 159 CLR 70, 135 (Brennan J) (emphasis added). This view was rejected
by Nicholson J in Bropho v Western Australia [2007] FCA 519 (13 April
2007), para 569.
[58] Morton v
Queensland Police Service
(2010) 240 FLR 269, 279–280 (McMurdo P), 298
(Chesterman JA) (Morton). See also Aurukun Shire Council v CEO Office
of Liquor Gaming and Racing in the Department of Treasury
(2010) 237 FLR
369, 402–403 (McMurdo P), 431–432, 441 (Keane JA), 451–452
(Philippides J) (Aurukun). President McMurdo considered that the
desirability of consultation is supported by article 1 of the International
Covenant on Civil and Political Rights
and articles 3 and 4 of the United
Nations Declaration on the Rights of Indigenous Peoples
(which affirm the
right of Indigenous peoples to self-determination): Morton, above,
279–280. The High Court refused special leave to appeal the Aurukun decision on 12 November 2010: Transcript of proceedings, Aurukun
Shire Council v CEO, Liquor Gaming & Racing in Dept of Treasury; Kowanyama
Aboriginal Shire Council v CEO of Liquor, Gaming & Racing
[2010]
HCATrans 293 (12 November 2010). At http://www.austlii.edu.au/au/other/HCATrans/2010/293.html (viewed 1 December 2010).
[59] Australian Human Rights
Commission, Draft guidelines for ensuring income management measures are
compliant with the
Racial Discrimination Act (2009), para 84. At http://www.humanrights.gov.au/racial_discrimination/publications/RDA_income_management2009_draft.html (viewed
19 November 2010).
[60] Australian Human Rights Commission, Draft guidelines for ensuring income
management measures are compliant with the
Racial Discrimination Act (2009), para 89. At http://www.humanrights.gov.au/racial_discrimination/publications/RDA_income_management2009_draft.html (viewed
19 November 2010).
[61] United Nations Declaration on the Rights of Indigenous Peoples, GA
Resolution 61/295 (Annex), UN Doc A/RES/61/295 (2007), art 3. At http://www.un.org/esa/socdev/unpfii/en/drip.html (viewed
21 September 2010). 
[62] Racial Discrimination Act 1975 (Cth), ss 8(1),
10(3).
[63] See, for example,
Attorney-General’s Department, Native title reform, http://www.ag.gov.au/www/agd/agd.nsf/page/indigenouslawandnativetitle_nativetitle_nativetitlereform (viewed 5 October 2010); Department of Families, Housing, Community
Services and Indigenous Affairs, Prescribed Bodies Corporate, http://www.fahcsia.gov.au/sa/indigenous/progserv/land/Pages/prescribed_bodies_corporate.aspx (viewed 5
October 2010).
[64] P
Arnaudo, A/g First Assistant Secretary, Social Inclusion Division,
Attorney-General’s Department, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner,
12 August 2010.
[65] For further information on the NTCF, see Attorney-General’s Department, Native title system coordination and consultation, http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlesystemcoordinationandconsultation (viewed 5
October 2010).
[66] Attorney-General’s Department and the Department of Families, Housing,
Community Services and Indigenous Affairs, Discussion Paper: Possible housing
and infrastructure native title amendments
(2009). At http://www.ag.gov.au/www/agd/agd.nsf/page/indigenouslawandnativetitle_nativetitle_nativetitlereform#2009Bill (viewed 5
October 2010).
[67] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Discussion Paper: Possible housing
and infrastructure native title amendments
(2009). At http://www.ag.gov.au/www/agd/agd.nsf/page/indigenouslawandnativetitle_nativetitle_nativetitlereform#2009Bill (viewed 5
October 2010).
[68] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee Inquiry into the Native Title
Amendment Bill (No 2) 2009 (Cth)
(undated), p 5. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=bbf314d8-661a-4ee1-840b-8a68b00a0ce9 (viewed 5 October 2010). However, the Attorney-General’s Department
informs me that a teleconference was held with the Kimberley Land Council on 7
September 2009 to discuss the proposal: P Arnaudo, A/g First Assistant
Secretary, Social Inclusion Division, Attorney-General’s Department,
Correspondence to M Gooda, Aboriginal and Torres Strait Islander Social Justice
Commissioner,
12 August 2010.
[69] P
Arnaudo, A/g First Assistant Secretary, Social Inclusion Division,
Attorney-General’s Department, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner,
12 August 2010.
[70] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of
Australia, Report on the Native Title Amendment Bill (No 2) 2009 [Provisions] (2010). At http://www.aph.gov.au/Senate/committee/legcon_ctte/nativetitle_two/report/report.pdf (viewed 5
October 2010).
[71] Torres
Strait Regional Authority, Submission to the Senate Legal and Constitutional
Affairs Legislation Committee Inquiry into the Native Title Amendment Bill (No
2) 2009 (Cth)
(21 December 2009), np. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=10e5d762-ea65-470f-9e9b-7adaeb4b4ce2 (viewed 5
October 2010).
[72] NTSCORP, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee Inquiry into the Native Title Amendment Bill (No 2) 2009
(Cth)
(27 November 2009), para 18. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=e8cbcf54-d770-497a-b3fc-9b86884627be (viewed 5
October 2010).
[73] Cape
York Land Council, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee Inquiry into the Native Title Amendment Bill (No 2) 2009
(Cth)
(10 November 2009), p 6. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=d2fb685c-44c1-4ff8-a14b-9336289cd0d6 (viewed 5 October 2010).
[74] Carpentaria Land Council
Aboriginal Corporation, Submission to the Senate Legal and Constitutional
Affairs Legislation Committee Inquiry into the Native Title Amendment Bill (No
2) 2009 (Cth)
(10 November 2009), para 14. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=2e81ce84-44ba-4c7f-88b4-6307d2ac55d2 (viewed 5 October 2010).
[75] The Native Title Amendment
Bill (No 2) 2009 (Cth) lapsed on 28 September 2010. The Native Title
Amendment Bill (No 1) 2010 (Cth), which is almost identical to the original
Bill, received assent on 15 December 2010 as the Native Title
Report 2010
was in the final stages of preparation. Throughout the Native
Title Report 2010
, I refer to the original Bill as it was introduced during
the Reporting Period.
[76] P
Arnaudo, A/g First Assistant Secretary, Social Inclusion Division,
Attorney-General’s Department, Correspondence to M Gooda, Aboriginal and
Torres Strait Islander Social Justice Commissioner,
12 August 2010.
[77] Carpentaria Land Council Aboriginal Corporation, Submission to the Senate
Legal and Constitutional Affairs Legislation Committee Inquiry into the Native
Title Amendment Bill (No 2) 2009 (Cth)
(10 November 2009), para
10. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=2e81ce84-44ba-4c7f-88b4-6307d2ac55d2 (viewed 5 October 2010).
[78] See Carpentaria Land
Council Aboriginal Corporation, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee Inquiry into the Native Title
Amendment Bill (No 2) 2009 (Cth)
(10 November 2009), para 10. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=2e81ce84-44ba-4c7f-88b4-6307d2ac55d2 (viewed 5
October 2010).
[79] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Supplementary submission to the
Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(3 February 2010), p
2. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed 5 October 2010). The Law Council of Australia had highlighted
the limited scope of the Amendment Bill (No 2) during the Committee’s
public hearing: Commonwealth, Official Committee Hansard: Reference: Native
Title Amendment Bill (No 2) 2009,
Senate Legal and Constitutional
Affairs Legislation Committee (28 January 2010), p 29 (R Webb QC, Law
Council of Australia). At http://www.aph.gov.au/hansard/senate/commttee/S12690.pdf (viewed 5
October 2010).
[80] Senate
Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Amendment Bill (No 2) 2009 [Provisions] (2010), p 39
(Dissenting Report of the Australian Greens). At http://www.aph.gov.au/senate/committee/legcon_ctte/nativetitle_two/report/d02.pdf (viewed
5 October 2010).
[81] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee Inquiry into the Native Title
Amendment Bill (No 2) 2009 (Cth)
(undated), p 6. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=bbf314d8-661a-4ee1-840b-8a68b00a0ce9 (viewed 5 October 2010); P Arnaudo, A/g First Assistant Secretary,
Social Inclusion Division, Attorney-General’s Department, Correspondence
to M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner,
12 August 2010.
[82] See, for example, National Native Title Council, Submission: Possible Housing
and Infrastructure Native Title Amendments
(4 September 2009). At www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~National+Native+Title+Council+-+Possible+housing+and+infrastructure+amendments+NNTC+submission.PDF/$file/National+Native+Title+Council+-+Possible+housing+and+infrastructure+amendments+NNTC+submission.PDF (viewed 5 October 2010).
[83] Commonwealth, Official
Committee Hansard: Reference: Native Title Amendment Bill (No 2) 2009,
Senate Legal and Constitutional Affairs Legislation Committee
(28 January 2010), p 2 (W Mundine, NTSCORP). At http://www.aph.gov.au/hansard/senate/commttee/S12690.pdf (viewed 5
October 2010).
[84] For a
summary of the concerns expressed in relation to the Amendment Bill (No 2), see
Department of Parliamentary Services, Parliament of Australia, ‘Native
Title Amendment Bill (No 2) 2009’, Bills Digest, no 118 (24 February 2010), pp 8–14. At http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/4JZV6/upload_binary/4jzv62.pdf;fileType=application%2Fpdf#search=%22r4230%22 (viewed 5
October 2010).
[85] See
Department of Parliamentary Services, Parliament of Australia, ‘Native
Title Amendment Bill (No 2) 2009’, Bills Digest, no 118 (24 February 2010), p 19. At http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/4JZV6/upload_binary/4jzv62.pdf;fileType=application%2Fpdf#search=%22r4230%22 (viewed 5
October 2010).
[86] See, for
example, Queensland South Native Title Services, Submission on the Possible
Housing and Infrastructure Native Title Amendments Discussion Paper
(September 2009), pp 7–8. At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(8AB0BDE05570AAD0EF9C283AA8F533E3)~Queensland+South+native+Title+Services+-+Submission.pdf/$file/Queensland+South+native+Title+Services+-+Submission.pdf (viewed 5 October 2010).
[87] See, for example, B Wyatt,
Chairperson, National Native Title Council, Correspondence to the Committee
Secretary, Senate Legal and Constitutional Affairs Legislation Committee,
12 February 2010. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=8397a353-dc5a-48ae-9ce7-ba8c983adef4 (viewed 5
October 2010).
[88] But see
recommendation 1 of the Liberal Senators, and the recommendations of Senator
Siewert (Australian Greens): Senate Legal and Constitutional Affairs Legislation
Committee, Parliament of Australia, Native Title Amendment Bill (No 2) 2009
[Provisions]
(2010), pp 35 (Liberal Senators), 44–45 (Senator
Siewert). At http://www.aph.gov.au/senate/committee/legcon_ctte/nativetitle_two/report/index.htm (viewed
5 October 2010).
[89] S
Robertson MP and D Boyle MP, Correspondence to P Hallahan, Committee Secretary,
Senate Legal and Constitutional Affairs Legislation Committee, undated. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=1a692ae9-def5-4dd2-9cfe-e70ba24fc63a (viewed 5 October 2010).
[90] Senate Legal and
Constitutional Affairs Legislation Committee, Parliament of Australia, Native
Title Amendment Bill (No 2) 2009 [Provisions]
(2010), p 33 (recommendation
1). At http://www.aph.gov.au/senate/committee/legcon_ctte/nativetitle_two/report/index.htm (viewed 5 October 2010). The Native Title Amendment Act (No 1) 2010 (Cth) covers staff housing.
[91] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of
Australia, Native Title Amendment Bill (No 2) 2009 [Provisions] (2010), p
38. At http://www.aph.gov.au/senate/committee/legcon_ctte/nativetitle_two/report/index.htm (viewed
5 October 2010).
[92] Commonwealth, Official Committee Hansard: Reference: Native Title Amendment
Bill (No 2) 2009,
Senate Legal and Constitutional Affairs Legislation
Committee (28 January 2010), p 44 (T Harvey, Attorney-General’s
Department). At http://www.aph.gov.au/hansard/senate/commttee/S12690.pdf (viewed
5 October 2010).
[93] Attorney-General’s Department and Department of Families, Housing,
Community Services and Indigenous Affairs, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee Inquiry into the Native Title
Amendment Bill (No 2) 2009 (Cth)
(3 February 2010), pp 4–5.
At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=6aa97735-3cf8-4ff5-9685-47aee40dd631 (viewed 5 October 2010). See also Commonwealth, Official Committee
Hansard: Reference: Native Title Amendment Bill (No 2) 2009,
Senate Legal
and Constitutional Affairs Legislation Committee (28 January 2010), p
43 (T Harvey, Attorney-General’s Department; A Cattermole, Department of
Families, Housing, Community Services and Indigenous Affairs). At http://www.aph.gov.au/hansard/senate/commttee/S12690.pdf (viewed 5
October 2010).
[94] Senate
Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Native Title Amendment Bill (No 2) 2009 [Provisions] (2010), p 33. At http://www.aph.gov.au/senate/committee/legcon_ctte/nativetitle_two/report/index.htm (viewed 5
October 2010).
[95] Native Title Act 1993 (Cth), preamble.
[96] Committee on the
Elimination of Racial Discrimination, Decision 2(54) on Australia, UN Doc
A/54/18 (1999) 6, p 7 (para 8). For further information on special measures and
the amended Native Title Act, see Z Antonios, Acting Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 1998,
Human Rights and Equal Opportunity Commission (1999), pp 69–72. At http://www.humanrights.gov.au/pdf/social_justice/native_title_report_98.pdf (viewed 7
October 2010).
[97] Committee on the Elimination of Racial Discrimination, General Recommendation
No 32 (2009): The meaning and scope of special measures in the International
Convention on the Elimination of Racial Discrimination
, UN Doc
A/64/18 (Annex VIII) (2009), para 15. At http://www2.ohchr.org/english/bodies/cerd/comments.htm (viewed 19
October 2010).
[98] Australian Human Rights Commission, Draft guidelines for ensuring income
management measures are compliant with the
Racial Discrimination Act (2009), para 89. At http://www.humanrights.gov.au/racial_discrimination/publications/RDA_income_management2009_draft.html (viewed
5 October 2010).
[99] See, for example, B Wyatt, Chairperson, National Native Title Council,
Correspondence to the Committee Secretary, Senate Legal and Constitutional
Affairs Legislation Committee, 12 February 2010. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=8397a353-dc5a-48ae-9ce7-ba8c983adef4 (viewed 5 October 2010); Law Council of Australia, Submission to the
Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the
Native Title Amendment Bill (No 2) 2009 (Cth)
(23 December 2009),
p 7. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=50b8cf7e-3d2b-483a-8c5c-652e856d5c13 (viewed 5 October 2010).
[100] See, for example, W
Jonas, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2000, Human Rights and Equal Opportunity Commission
(2001), ch 5. At http://www.humanrights.gov.au/pdf/social_justice/nt-report2000.pdf (viewed 5 October 2010); W Jonas, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 2001, Human Rights and
Equal Opportunity Commission (2002), ch 1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport01/chap1.html (viewed 5
October 2010).
[101] Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare
Reform and Reinstatement of Racial Discrimination Act) Bill 2009 (Cth). At http://www.comlaw.gov.au/comlaw/legislation/bills1.nsf/framelodgmentattachments/40DF878226ED1626CA25767A0005AFF3 (viewed
21 September 2010).
[102] Northern Territory National Emergency Response Act 2007 (Cth), s
31. For discussion of the other NTER measures, see Australian Human Rights
Commission, Submission to the Senate Community Affairs Committee Inquiry into
the Welfare Reform and Reinstatement of Racial Discrimination Act Bill 2009 and
other Bills
(10 February 2010). At http://www.humanrights.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed 22 September 2010); T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2007, Human
Rights and Equal Opportunity Commission (2008), ch 3. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/download.html (viewed 22 September 2010).
[103] National Board of
Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe
Akelyernemane Meke Mekarle “Little Children are Sacred”
(2007).
At http://www.inquirysaac.nt.gov.au/pdf/bipacsa_final_report.pdf (viewed 19 October 2010).
[104] Parliament of Australia, Submissions and Additional Information received by
the Committee

as at 28 August 2007, http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2004-07/nt_emergency/submissions/sublist.htm (viewed 19 October 2010).
[105] Northern Territory Emergency Response Review Board, Report of the NTER Review
Board
(2008). At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 19
October 2010).
[106] Minister for Families, Housing, Community Services and Indigenous Affairs,
‘Compulsory income management to continue as key NTER measure’
(Media Release, 23 October 2008). At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2008/Pages/nter_measure_23oct08.aspx (viewed 2 December 2010). The Government accepted the three overarching
recommendations of the Review
Report.
[107] Australian
Government and Northern Territory Government, Response to the Report of the
NTER Review Board
(undated). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/response_to_reportNTER/Documents/Aust_response_1882953_1.pdf (viewed 19 October 2010).
[108] Australian Government, Future Directions for the Northern Territory Emergency Response: Discussion
paper
, Department of Families, Housing, Community Services and Indigenous
Affairs (2009). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/future_directions_discussion_paper/Pages/default.aspx (viewed 19
October 2010).
[109] Australian Government, Report on the Northern Territory Emergency Response
Redesign Consultations,
Department of Families, Housing, Community Services
and Indigenous Affairs (2009). At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_consultations/default.htm (viewed 19 October 2010); Cultural & Indigenous Research Centre
Australia, Report on the NTER Redesign Engagement Strategy and
Implementation: Final Report
(2009). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_engagement_strategy/final_report_09_engage_strat.PDF (viewed
19 October 2010).
[110] Australian Government, Policy Statement: Landmark Reform to the Welfare
System, Reinstatement of the Racial Discrimination Act and Strengthening of the
Northern Territory Emergency Response
, Department of Families,
Housing, Community Services and Indigenous Affairs (2009), p 10. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Pages/default.aspx (viewed 19
October 2010).
[111] The
Government also introduced the Families, Housing, Community Services and
Indigenous Affairs and Other Legislation Amendment (2009 Measures) Bill 2009
(Cth).
[112] Parliament of
Australia, Submissions received by the Committee, http://www.aph.gov.au/senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/submissions/sublist.htm (viewed 19 October 2010).
[113] Senate Community Affairs Legislation Committee, Parliament of Australia, Report on the Social Security and Other Legislation Amendment (Welfare Reform
and Reinstatement of Racial Discrimination Act) Bill 2009 [Provisions] and
Families, Housing, Community Services and Indigenous Affairs and Other
Legislation Amendment (2009 Measures) Bill 2009 [Provisions] and Families,
Housing, Community Services and Indigenous Affairs and Other Legislation
Amendment (Restoration of Racial Discrimination Act) Bill 2009
(2010). At http://www.aph.gov.au/Senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/report/index.htm (viewed 19
October 2010).
[114] Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Act 2010
(Cth), s
5.
[115] Social Security and
Other Legislation Amendment (Welfare Reform and Reinstatement of Racial
Discrimination Act) Act 2010
(Cth), s 1. For a discussion of the
applicability of the RDA to new income management measures see Australian Human
Rights Commission, Submission to the Senate Community Affairs Committee
Inquiry into the Welfare Reform and Reinstatement of Racial Discrimination Act
Bill 2009 and other Bills
(10 February 2010), paras 50–53.
At http://www.humanrights.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed 22
November 2010).
[116] The
other Bills were: Social Security and Other Legislation Amendment (Welfare
Payment Reform) Bill 2007 (Cth); Families, Community Services and Indigenous
Affairs and Other Legislation Amendment (Northern Territory National Emergency
Response and Other Measures) Bill 2007 (Cth); Appropriation (Northern
Territory National Emergency Response) Bill (No. 1) 2007–2008 (Cth); Appropriation (Northern Territory National Emergency Response) Bill
(No. 2) 2007–2008 (Cth).
[117] For a
more detailed timeline, see T Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Social Justice Report 2007, Human Rights and
Equal Opportunity Commission (2008), pp 209–211. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/download.html (viewed
22 September 2010).
[118] Part II of the RDA makes it unlawful to discriminate against a person on the
basis of their race.
[119] Families, Community Services and Indigenous
Affairs and Other Legislation Amendment (Northern Territory National Emergency
Response and Other Measures) Act 2007
(Cth), s 4; Northern Territory National Emergency Response
Act 2007
(Cth), s 132; Social Security and
Other Legislation Amendment (Welfare Payment Reform) Act 2007
(Cth), ss 4,
6. The original NTER legislation also exempted the operation of the Northern
Territory’s anti-discrimination laws: Families, Community Services and
Indigenous Affairs and Other Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007
(Cth), s 5; Northern
Territory National Emergency Response Act 2007
(Cth), s 133; Social
Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007
(Cth), ss 5, 7. But see Northern Territory National Emergency Response
Act 2007
(Cth), Notes, Table A: ‘Application, saving or transitional
provisions’ (Families, Community Services and Indigenous Affairs and
Other Legislation Amendment (Northern Territory National Emergency Response and
Other Measures) Act 2007
(Cth), s
4(3)).
[120] T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007
, Human Rights and Equal Opportunity Commission (2008),
ch 3. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed
22 September 2010).
[121] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia,
Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), Appendix B, paras 20–23. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
8 September 2010).
[122] Northern Territory National Emergency Response Act 2007 (Cth), ss 31(1),
(2). For further information, see T Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 2007, Human Rights and
Equal Opportunity Commission (2008), pp 188–196. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 22 September 2010); T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2009,
Australian Human Rights Commission (2009), pp 151–155. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 22 September 2010); Australian Human Rights Commission, Submission to the Senate Community Affairs Committee Inquiry into the Welfare
Reform and Reinstatement of Racial Discrimination Act Bill 2009 and other Bills
(10 February 2010), paras 137–150. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed
22 September 2010).
[123] Northern Territory National Emergency Response Act 2007 (Cth), pt 4, div
2. For further information see T Calma, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Native Title Report 2007, Human Rights and
Equal Opportunity Commission (2008), pp 196–199. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 22 September 2010).
[124] Northern Territory
National Emergency Response Act 2007
(Cth), s 51. For further information
see T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Human Rights and Equal Opportunity Commission
(2008), pp 200–201. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 22 September 2010).
[125] Aboriginal Land
Rights (Northern Territory) Act 1976
(Cth), pt IIB. For further information
see T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Human Rights and Equal Opportunity Commission
(2008), pp 202–206. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 22 September 2010).
[126] T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report
2007
, Human Rights and Equal Opportunity Commission (2008), pp
187–207. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 22 September 2010); T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2009,
Australian Human Rights Commission (2009), pp 151–158. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 22 September 2010); T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2007, Human
Rights and Equal Opportunity Commission (2008), ch 3. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed
22 September 2010).
[127] Australian Government, Policy Statement: Landmark Reform to the Welfare
System, Reinstatement of the Racial Discrimination Act and Strengthening of the
Northern Territory Emergency Response
, Department of Families,
Housing, Community Services and Indigenous Affairs (2009), p 10. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Pages/default.aspx (viewed 19
October 2010).
[128] Northern Territory National Emergency Response Act 2007 (Cth), ss 35, 36.
Also see T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2009, Australian Human Rights
Commission (2009), p 151. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
22 September 2010).
[129] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia,
Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), Appendix B, para 15. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed 19 October 2010).
[130] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia,
Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), Appendix B, para 15. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed 19 October 2010).
[131] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia,
Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), Appendix B, para 13. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed 19
October 2010).
[132] Australian Government and Northern Territory Government, Response to the
Report of the NTER Review Board
(undated), p 1. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/response_to_reportNTER/Documents/Aust_response_1882953_1.pdf (viewed
19 October 2010).
[133] Northern Territory Emergency Response Review Board, Report of the NTER Review
Board
(2008), p 12. At http://www.nterreview.gov.au/docs/report_nter_review.PDF (viewed 22 September 2010). The NTER Review Board also made the
following overarching recommendations:

• that the Australian and Northern Territory Governments recognise as a
matter of urgent national significance the continuing need to address the
unacceptably high level of disadvantage and social dislocation being experienced
by Aboriginal Australians living in remote communities throughout the Northern
Territory

• that government actions affecting Aboriginal communities respect
Australia’s human rights obligations and conform with the Racial
Discrimination Act 1975
(Cth).
[134] Australian
Government and Northern Territory Government, Response to the Report of the
NTER Review Board
(undated), p 1. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/response_to_reportNTER/Documents/Aust_response_1882953_1.pdf (viewed
19 October 2010).
[135] Commonwealth, Official Committee Hansard: Reference: Social Security and
Other Legislation Amendment (Welfare Reform and Reinstatement of Racial
Discrimination Act) Bill 2009,
Senate Community Affairs Legislation
Committee (4 February 2010), p 3 (C Halbert, Department of Families,
Housing, Community Services and Indigenous Affairs). At http://www.aph.gov.au/Senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/hearings/index.htm (viewed
22 September 2010).
[136] The transcripts of the Senate Community Affairs Legislation Committee’s
public hearings can be found at http://www.aph.gov.au/Senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/hearings/index.htm (viewed 22 September 2010).
[137] Social Security and
Other Legislation Amendment (Welfare Reform and Reinstatement of Racial
Discrimination Act) Act 2010
(Cth), sch 1, items 1–3. This also
repeals the sections exempting the operation of the Northern Territory’s
anti-discrimination laws.
[138] Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare
Reform and Reinstatement of Racial Discrimination Act) Bill 2009 (Cth), outline.
At http://www.comlaw.gov.au/comlaw/legislation/bills1.nsf/framelodgmentattachments/40DF878226ED1626CA25767A0005AFF3 (viewed
21 September 2010).
[139] Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare
Reform and Reinstatement of Racial Discrimination Act) Bill 2009 (Cth), outline.
At http://www.comlaw.gov.au/comlaw/legislation/bills1.nsf/framelodgmentattachments/40DF878226ED1626CA25767A0005AFF3 (viewed
21 September 2010).
[140] Northern Territory National Emergency Response Act 2007 (Cth), s
30A.
[141] Northern
Territory National Emergency Response Act 2007
(Cth), s
30A.
[142] Northern
Territory National Emergency Response Act 2007
(Cth), s 35(2B). However,
this does not limit Part IV of the Aboriginal Land Rights (Northern
Territory) Act 1976
, which concerns mining on Aboriginal land: Northern Territory National Emergency Response Act 2007 (Cth), s
35(2D).
[143] At the time of
writing, section 35A had yet to commence. Section 35A will commence on a date
fixed by Proclamation. However, if it has not commenced within 6 months of the
date the NTNER Amendment Act received Royal Assent (29 June 2010), it commences
on the day after this period: Social Security and Other Legislation Amendment
(Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010
(Cth), s 2.
[144] Northern Territory National Emergency Response Act 2007 (Cth), s
36A.
[145] Northern
Territory National Emergency Response Act 2007
(Cth), s
37A.
[146] Commonwealth, Parliamentary Debates, House of Representatives, 25 November 2009, p
12787 (The Hon J Macklin MP, Minister for Families, Housing, Community Services
and Indigenous Affairs). At http://www.aph.gov.au/hansard/reps/dailys/dr251109.pdf (viewed 22 September 2010); Australian Government, Policy
Statement: Landmark Reform to the Welfare System, Reinstatement of the Racial
Discrimination Act and Strengthening of the Northern Territory Emergency
Response
, Department of Families, Housing, Community Services and Indigenous
Affairs (2009), pp 10–11. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Pages/default.aspx (viewed 15 October 2010).
[147] The Central Land Council
reports that in the last financial year the Commonwealth requested s 19A leases
over three communities in its region, however each of those applications were
rejected. It states the Commonwealth has not provided revised applications:
Central Land Council, CLC Annual Report 2009–2010 (2010), pp
76–77. At http://www.clc.org.au/Media/annualrepts/CLC_annual_report_2009_2010.pdf (viewed
2 December 2010).
[148] The Hon J Macklin MP, Minister for Families, Housing, Community Services and
Indigenous Affairs, and The Hon W Snowdon MP, Minister for Indigenous Health,
Rural and Regional Health and Regional Services Delivery, ‘Rent payments
for NTER five-year leases’ (Media Release, 25 May 2010). At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2010/Pages/rent_nter_25may10.aspx (viewed 22 September 2010). The amount of rent was determined by the
Northern Territory Valuer-General. The Government also stated that it was
‘standing by’ to make payments to the remaining 16 Aboriginal
corporations which hold title to community living areas, and that the lease over
Northern Territory Crown land at Canteen Creek did not involve a rent payment.
[149] (2009) 237 CLR
309.
[150] For discussion of
this decision, see T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2009, Australian Human Rights
Commission (2009), pp 26–31, 153. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
22 September 2010).
[151] Department of Families, Housing, Community Services and Indigenous Affairs, Five-year leases on Aboriginal townships, http://www.fahcsia.gov.au/sa/indigenous/progserv/ntresponse/about_response/housing_land_reform/Pages/five_year_leases_aboriginal_townships.aspx (viewed 22 September 2010).
[152] I note that the previous
Social Justice Commissioner did not accept that a reasonable amount of rent
based on the unimproved value of the land represents just terms compensation for
the compulsory acquisition of Aboriginal land under five-year leases: T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2009
, Australian Human Rights Commission (2009), p 154. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed
22 September 2010).
[153] Australian Government, Future Directions for the Northern Territory Emergency
Response: Discussion paper
, Department of Families, Housing, Community
Services and Indigenous Affairs (2009). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/future_directions_discussion_paper/Pages/default.aspx (viewed
19 October 2010).
[154] Section 4 of the NTNER Act allows the Government to prescribe areas in which the
NTER measures will apply. There are 73 such targeted communities, see Australian
Government, Policy Statement: Landmark Reform to the Welfare System,
Reinstatement of the Racial Discrimination Act and Strengthening of the Northern
Territory Emergency Response
, Department of Families, Housing,
Community Services and Indigenous Affairs (2009), p 3. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Pages/default.aspx (viewed 19
October 2010).
[155] Commonwealth, Official Committee Hansard: Reference: Social Security and
Other Legislation Amendment (Welfare Reform and Reinstatement of Racial
Discrimination Act) Bill 2009,
Senate Community Affairs Legislation
Committee (4 February 2010), p 28 (Bruce Smith, Department of
Families, Housing, Community Services and Indigenous Affairs).
[156] For details of the
engagement process, see Australian Government, Report on the Northern
Territory Emergency Response Redesign Consultations
, Department of Families,
Housing, Community Services and Indigenous Affairs (2009), pp
16–19. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_consultations/default.htm (viewed 22 September 2010).
[157] See, for example,
Cultural & Indigenous Research Centre Australia, Report on the NTER
Redesign Engagement Strategy and Implementation: Final Report
(2009). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_engagement_strategy/final_report_09_engage_strat.PDF (viewed 22 September 2010); Australian Government, Report on the
Northern Territory Emergency Response Redesign Consultations
, Department of
Families, Housing, Community Services and Indigenous Affairs (2009). At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_consultations/default.htm (viewed 22 September 2010); A Nicholson, L Behrendt, A Vivian, N
Watson & M Harris, Will they be heard? —a response to the NTER
Consultations June to August 2009
(2009). At http://intranet.law.unimelb.edu.au/staff/events/files/Willtheybeheard%20Report.pdf (viewed
22 September 2010).
[158] For a summary of the criticisms of the consultation process, see Senate
Community Affairs Legislation Committee, Parliament of Australia, Report on
the Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Bill 2009 [Provisions] and Families,
Housing, Community Services and Indigenous Affairs and Other Legislation
Amendment (2009 Measures) Bill 2009 [Provisions] and Families, Housing,
Community Services and Indigenous Affairs and Other Legislation Amendment
(Restoration of Racial Discrimination Act) Bill 2009
(2010), pp 28–34.
At http://www.aph.gov.au/Senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/report/index.htm (viewed 22 September 2010).
[159] Commonwealth, Official Committee Hansard: Reference: Social Security and Other Legislation
Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill
2009,
Senate Community Affairs Legislation Committee
(15 February 2010), pp 27–28 (V Patullo, North Australian
Aboriginal Justice
Agency).
[160] Commonwealth, Official Committee Hansard: Reference: Social Security and Other Legislation
Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill
2009,
Senate Community Affairs Legislation Committee
(26 February 2010), pp 51–54 (B Smith, Department of Families,
Housing, Community Services and Indigenous
Affairs).
[161] Cultural &
Indigenous Research Centre Australia, Report on the NTER Redesign Engagement
Strategy and Implementation: Final Report
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[162] Australian
Government, Report on the Northern Territory Emergency Response Redesign
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, Department of Families, Housing, Community Services and
Indigenous Affairs (2009), p 18. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_consultations/default.htm (viewed
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[163] A Vivian, ‘The NTER Redesign Consultation Process: Not Very Special’
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& Indigenous Research Centre Australia, Report on the NTER Redesign
Engagement Strategy and Implementation: Final Report
(2009), p 5. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_engagement_strategy/final_report_09_engage_strat.PDF (viewed 19
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[164] A
Vivian, ‘The NTER Redesign Consultation Process: Not Very Special’
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56.
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[166] A Vivian, ‘The
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58.
[167] Australian
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[168] Commonwealth, Official Committee Hansard: Reference: Social Security and
Other Legislation Amendment (Welfare Reform and Reinstatement of Racial
Discrimination Act) Bill 2009,
Senate Community Affairs Legislation
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Housing, Community Services and Indigenous
Affairs).
[169] See, for
example, Commonwealth, Official Committee Hansard: Reference: Social Security
and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial
Discrimination Act) Bill 2009,
Senate Community Affairs Legislation
Committee (26 February 2010), pp 38–39 (A Vivian, Jumbunna
Indigenous House of Learning (Research Unit), University of Technology, Sydney),
41 (J Altman); (15 February 2010), p 32 (A Pengilley, North Australian
Aboriginal Justice
Agency).
[170] Australian
Government, Future Directions for the Northern Territory Emergency Response:
Discussion paper
, Department of Families, Housing, Community Services and
Indigenous Affairs (2009), p 9. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/future_directions_discussion_paper/Pages/default.aspx (viewed
22 September 2010).
[171] Australian Government, quoted in Cultural & Indigenous Research Centre
Australia, Report on the NTER Redesign Engagement Strategy and
Implementation: Final Report
(2009), p 7. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_engagement_strategy/sec2.htm (viewed 25 November
2010).
[172] See Australian
Government, Future Directions for the Northern Territory Emergency Response:
Discussion paper
, Department of Families, Housing, Community Services and
Indigenous Affairs (2009), p 18. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/future_directions_discussion_paper/Pages/default.aspx (viewed
22 September 2010).
[173] T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009), pp 154–155. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 22 September 2010).
[174] Commonwealth, Official Committee Hansard: Reference: Social Security and Other Legislation
Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill
2009,
Senate Community Affairs Legislation Committee
(17 February 2010), p 10 (J Weepers, Central Land
Council).
[175] Australian
Government, Policy Statement: Landmark Reform to the Welfare System,
Reinstatement of the Racial Discrimination Act and Strengthening of the Northern
Territory Emergency Response
, Department of Families, Housing, Community
Services and Indigenous Affairs (2009), p 3. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Pages/default.aspx (viewed
22 September 2010).
[176] Australian Government, Policy Statement: Landmark Reform to the Welfare
System, Reinstatement of the Racial Discrimination Act and Strengthening of the
Northern Territory Emergency Response
, Department of Families,
Housing, Community Services and Indigenous Affairs (2009), p 10. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/policy_statement_nter/Pages/default.aspx (viewed
22 September 2010).
[177] Commonwealth, Official Committee Hansard: Reference: Social Security and
Other Legislation Amendment (Welfare Reform and Reinstatement of Racial
Discrimination Act) Bill 2009,
Senate Community Affairs Legislation
Committee (26 February 2010), p 53 (R Heferen, Department of Families,
Housing, Community Services and Indigenous
Affairs).
[178] Cultural &
Indigenous Research Centre Australia, Report on the NTER Redesign Engagement
Strategy and Implementation: Final Report
(2009), p 18. At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_engagement_strategy/final_report_09_engage_strat.PDF (viewed 19
October 2010).
[179]Australian
Government, Report on the Northern Territory Emergency Response Redesign
Consultations
, Department of Families, Housing, Community Services and
Indigenous Affairs (2009), p 11. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_consultations/default.htm (viewed
3 August 2010).
[180] Cultural & Indigenous Research Centre Australia, Report on the NTER
Redesign Engagement Strategy and Implementation: Final Report
(2009), p 13.
At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_engagement_strategy/final_report_09_engage_strat.PDF (viewed 3 August 2010).
[181] A Nicholson, L
Behrendt, A Vivian, N Watson & M Harris, Will they be heard? — a
response to the NTER Consultations June to August 2009
(2009), p 11. At http://intranet.law.unimelb.edu.au/staff/events/files/Willtheybeheard%20Report.pdf (viewed 3 August 2010).
[182] Commonwealth, Official Committee Hansard: Reference: Social Security and Other Legislation
Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill
2009,
Senate Community Affairs Legislation Committee
(4 February 2010), p 12 (B Smith, Department of Families, Housing,
Community Services and Indigenous
Affairs).
[183] Commonwealth, Official Committee Hansard: Reference: Social Security and Other Legislation
Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill
2009,
Senate Community Affairs Legislation Committee
(26 February 2010), p 53 (R Heferen, Department of Families, Housing,
Community Services and Indigenous
Affairs).
[184] Senate
Community Affairs Legislation Committee, Parliament of Australia, Report on
the Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Bill 2009 [Provisions]; Families,
Housing, Community Services and Indigenous Affairs and Other Legislation
Amendment (2009 Measures) Bill 2009 [Provisions]; Families, Housing, Community
Services and Indigenous Affairs and Other Legislation Amendment (Restoration of
Racial Discrimination Act) Bill 2009
(2010), p xi (recommendation 1). At http://www.aph.gov.au/Senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/report/index.htm (viewed 22 September 2010).
[185] The Hon J Macklin MP,
Minister for Families, Housing, Community Services and Indigenous Affairs,
‘Racial Discrimination Act to be restored in the Northern Territory’
(Media Release, 22 June 2010). At http://www.jennymacklin.fahcsia.gov.au/mediareleases/2010/Pages/jm_m_rda_22june2010.aspx (viewed
22 September 2010).
[186] See Australian Human Rights Commission, Submission to the Senate Community
Affairs Committee Inquiry into the Welfare Reform and Reinstatement of Racial
Discrimination Act Bill 2009 and other Bills
(10 February 2010),
paras 31–49. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed
22 September 2010).
[187] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia,
Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), Appendix B, para 65. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
8 September 2010).
[188] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia,
Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), Appendix B, para 34. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
8 September 2010).
[189] Australian Government, Report on the Northern Territory Emergency Response
Redesign Consultations
, Department of Families, Housing, Community Services
and Indigenous Affairs (2009), p 46. At http://www.facsia.gov.au/sa/indigenous/pubs/nter_reports/Documents/redesign_consultations/default.htm (viewed
22 September 2010).
[190] Commonwealth, Official Committee Hansard: Reference: Social Security and
Other Legislation Amendment (Welfare Reform and Reinstatement of Racial
Discrimination Act) Bill 2009,
Senate Community Affairs Legislation
Committee (25 February 2010), p 12 (S Pritchard, Law Council of
Australia).
[191] ANTaR,
‘Concerns remain about the Northern Territory Emergency Response’
(Media Release, 25 November 2009). At http://www.antar.org.au/media/concerns_remain_about_the_NTER (viewed 2 August 2010). See also Official Committee Hansard:
Reference: Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Bill 2009,
Senate Community
Affairs Legislation Committee (17 February 2010), p 5 (D Avery,
Central Land Council).
[192] Central Land Council, Northern Territory Emergency Response: Perspectives
from Six Communities
(2008), p 6. At http://www.clc.org.au/Media/issues/intervention/CLC_REPORTweb.pdf (viewed 18 October 2010).
[193] Australian Human Rights
Commission, Submission to the Senate Community Affairs Committee Inquiry into
the Welfare Reform and Reinstatement of Racial Discrimination Act Bill 2009 and
other Bills
(10 February 2010). At http://www.humanrights.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed 18 October 2010).
[194] Racial Discrimination
Act 1975
(Cth), ss 8(1),
10(3).
[195] Senate Community
Affairs Legislation Committee, Parliament of Australia, Report on the Social
Security and Other Legislation Amendment (Welfare Reform and Reinstatement of
Racial Discrimination Act) Bill 2009 [Provisions]; Families and Families,
Housing, Community Services and Indigenous Affairs and Other Legislation
Amendment (2009 Measures) Bill 2009 [Provisions]; Families, Housing, Community
Services and Indigenous Affairs and Other Legislation Amendment (Restoration of
Racial Discrimination Act) Bill 2009
(2010), p 24. At http://www.aph.gov.au/Senate/committee/clac_ctte/soc_sec_welfare_reform_racial_discrim_09/report/report.pdf (viewed
22 September 2010).
[196] See Australian Human Rights Commission, Submission to the Senate Community
Affairs Committee Inquiry into the Welfare Reform and Reinstatement of Racial
Discrimination Act Bill 2009 and other Bills
(10 February 2010),
para 146. At http://www.humanrights.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed 2 August
2010).
[197] concerned
Australians, This Is What We Said: Australian Aboriginal people give their
views on the Northern Territory Intervention
(2010), p 54.
[198] G Innes, Commissioner
appears before CERD Committee at the UN
(Speech delivered at the 77th
session of the Committee on the Elimination of Racial Discrimination, Geneva, 11
August 2010). At http://www.humanrights.gov.au/about/media/speeches/race/2010/20100811_CERD.html (viewed
18 October 2010).
[199] J Anaya, Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, James Anaya: Addendum: Situation
of indigenous peoples in Australia,
Report to the Human Rights Council, 15th
session, UN Doc A/HRC/15/37/Add.4 (2010), Appendix B, para 66. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed
8 September 2010).
[200] For further discussion, see J Hunyor, ‘Is it time to re-think special
measures under the Racial Discrimination Act? The case of the Northern Territory
Intervention’ (2009) 14(2) Australian Journal of Human Rights 39, p
63.
[201] J Anaya, Report of
the Special Rapporteur on the situation of human rights and fundamental freedoms
of indigenous people, James Anaya: Addendum: Situation of indigenous peoples in
Australia,
Report to the Human Rights Council, 15th session, UN Doc
A/HRC/15/37/Add.4 (2010), Appendix B, para 21. At http://www2.ohchr.org/english/bodies/hrcouncil/15session/reports.htm (viewed 19
October 2010).
[202] Carpentaria Land Council Aboriginal Corporation, Submission in relation to
proposed housing and infrastructure amendments to the
Native Title Act
1993 (Cth) (4 September 2009), para 7.12. At http://www.clrc.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf/$file/Carpentaria+Land+Council+Aboriginal+Corporation+Submission.pdf (viewed 30 September 2010).
[203] G Miniter,
‘Chairperson’s Report’ in South West Aboriginal Land and Sea
Council, Annual Report 2009 (2009), p 5. At http://www.noongar.org.au/images/pdf/annual-reports/Annualreport_2009.pdf (viewed 30 September
2010).
[204] National Congress
of Australia's First Peoples, `New Congress to Represent Aboriginal and Torres
Strait Islanders' (Media Release, 2 May 2010). At
http://www.humanrights.gov.au/about/media/media_releases/2010/41_10.html (viewed
11 January 2010).