Submission to the

Review of the Northern Territory Emergency Response

August 2008

Submitted by

Amnesty International Australia

PO Box 1708
Canberra ACT 2608

Phone: Dr Robyn Seth-Purdie (02) 6202 754

Fax: (02) 6257 7588

The global defender of human rights

Amnesty International Australia Submission

Review of the Northern Territory Response

1.

Summary

The Northern Territory Emergency Response (NTER) demonstrates the importance of ensuring
that government policy is formulated within a framework that respects human rights. The NTER
violates the right of Indigenous people in the affected NT communities to be free of
discrimination. It has been justified on the basis that the need to protect Indigenous children
from child abuse was an emergency. Those who have opposed the NTER on the grounds that it
violates the rights of community members have been accused of ignoring the rights of victims.
In considering whether the measures in the NTER lay the basis for a sustainable and better
future for residents of remote communities and town camps in the Northern Territory (NT), this
submission makes the following points:
1

Opposition to racial discrimination does not mean support for abuse of women and
children;

If the NT Intervention policy violates the Racial Discrimination Act it is racially

discriminatory;

Actions that violate the right to protection from discrimination are not necessary to protect
Indigenous women and children in NT communities;

Actions that protect the rights of Indigenous Australians are essential for improving their
well-being, living standards, health and life expectancy; and

Actions that protect the rights of Indigenous Australians are essential for improving their
well-being, living standards, health and life expectancy.

This submission provides some evidence of the NTERs unintended consequences, and
advocates the:

Immediate repeal of all legislation designed to overcoming prohibitions against racial

discrimination

Adoption of a framework for the development of policy to address violence and

disadvantage in Indigenous communities that:
o

respects Australias obligations under human rights treaties;

reflects the principles of the Declaration on the Rights of Indigenous Peoples;.

uses evidence from Australia and overseas on sustainable and effective

interventions to prevent abuse in Indigenous communities; and

operates within an integrated plan to address the dignity, empowerment and

independence of Indigenous peoples throughout Australia.

Amnesty International Australia Submission

Review of the Northern Territory Response

2.

About Amnesty International

Amnesty International is a worldwide movement of more than 2.2 million people across 150
countries working to promote the observance of all human rights enshrined in the Universal
Declaration of Human Rights and other international standards.
Amnesty International Australia has approximately 80,000 members. The organisation
undertakes research and action focused on preventing grave abuses of human rights, including
rights to physical and mental integrity, freedom of conscience and expression, and freedom from
discrimination.
3.

Will the NTER lay the basis for a sustainable and better future for residents of
remote communities and town camps in the NT?

Amnesty International Australia believes respect for all human rights provides a fundamental
basis for a sustainable and better future for residents of remote communities and town camps in
the NT. Measures which undermine any fundamental human right ultimately also undermine
these communities ability to achieve a better future.
Debate about the NTER and the problems reported in the Little Children are Sacred report has
often been categorised as a contest between those who want action to protect children and
those who with a misguided pre-occupation with protecting rights. . Amnesty International
Australia believes this characterisation is false and misleading. Human rights are indivisible and
interconnected. Race, sex and other forms of discrimination intersect in the lives of many
Aboriginal children to magnify the impact of human rights violations. The most appropriate
response is one that seeks to protect all human rights. Repairing the cumulative effects of the
history of rights violations, chronic poverty, social exclusion and discrimination requires careful
attention to rights, to capacity building and restoration of dignity and a sense of empowerment,
rather than the removal of protection against discrimination.
Amnesty International Australia urges the Review Board to consider the following:
1. Opposition to racial discrimination does not mean support for abuse of women
and children.
2. If the NTER violates the Racial Discrimination Act (RDA), it is racially
discriminatory.
3. Racially discriminatory measures are not necessary to protect Indigenous
women and children from violence and abuse in NT communities.
4. Actions that protect the rights of Indigenous Australians are essential for
improving their well-being, living standards, health and life expectancy.
5. It is a myth that rights-based policies have been tried in Australia and have
failed.
The basis for the AIAs position is set out below.

Amnesty International Australia Submission

Review of the Northern Territory Response

a. Opposition to racial discrimination does not mean support for abuse of women and
children.
Amnesty International Australia strongly supports action to protect human rights, particularly
those of the most vulnerable.
Amnesty International Australia is deeply concerned about the high levels of violence
experienced by Aboriginal children and women throughout Australia. The organisation strongly
supports the allocation of much-needed resources to Indigenous communities to protect women
and children and to promote community-led processes that could disrupt the cycle of violence in
dysfunctional communities, heal victims and re-integrate offenders.
Amnesty International Australia stresses that all action to protect rights must be taken within a
framework that protects all rights, including the right to freedom from discrimination. Without
such protection the NTER will fail to lay the basis for a sustainable and better future for
Indigenous communities in the Northern Territory.
In its statement celebrating the 50th Anniversary of the Universal Declaration of Human Rights,
developed as a bulwark against oppression and discrimination1, the United Nations referred to
a central tenet of the Vienna Declaration on Human Rights:
As human rights are universal and indivisible as well as interrelated and interdependent,
they should be promoted in equal manner.2
Amongst the accumulated research on the causes of Indigenous family violence and child abuse
nothing indicates that it is necessary to derogate from fundamental rights and freedoms in order
to protect women and children or to heal dysfunctional communities.
b. If the NTER policy violates the RDA it is racially discriminatory
All Australians should be able to enjoy the fundamental human rights spelt out in the articles of
the international human rights treaties that Australia has ratified. Under international law the
Commonwealth Government is the body responsible for honouring treaty obligations by
protecting these rights.3
The Universal Declaration on Human Rights, the International Covenant on Civil and Political
Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights
(ICESCR) together with the International Covenant on the Elimination of all forms of Racial
Discrimination (CERD) and the International Covenant on the Rights of the Child (CRC),
recognise rights that are violated by certain provisions of the legislation that enables the NTER,
and by the actions taken in accordance with those provisions.
The clearest violations of treaty obligations are the infringements of common Article 2 of the
ICCPR and the ICESCR which requires States Parties to:
respect and to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognised in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.

A United Nations Priority at http://www.un.org/rights/HRToday/declar.htm (29/07/08)

Op.cit.
3
Under Article 26 of the Vienna Convention on the Law of Treaties 1969, Pacta sunt servanda meaning that Every
treaty in force is binding upon the parties to it and must be performed by them in good faith.
2

Amnesty International Australia Submission

Review of the Northern Territory Response

The rights articulated in these two treaties encompass political, economic, religious and cultural
rights and freedoms.
Article 2 of the CERD is also violated. It requires each State Party, inter alia, to
engage in no act or practice of racial discrimination against persons, groups of persons
or institutions and to en sure that all public authorities and public institutions, national and
local, shall act in conformity with this obligation;4
and to:
take effective measures to review governmental, national and local policies, and to
amend, rescind or nullify any laws and regulations which have the effect of creating or
perpetuating racial discrimination wherever it exists.5
Racial discrimination in the CERD is defined as:
any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life.6
Elements of the NTER which subject Indigenous people in the affected communities to less
favourable treatment than others, without the informed consent of the communities, and without
evidence that these measures are necessary and proportionate to the objective of improving the
protection of rights in those communities are discriminatory.
Such discriminatory measures include:

blanket quarantining of welfare payments and the suspension of normal merit appeal
rights;

compulsory acquisition of leases by the Commonwealth and without any guarantee of

compensation;

changes to the permit system with removal of control from communities to the Minister;

the appointment of government business managers with wide powers over community
organisations and their assets;

The right to protection from discrimination is non-derogable under international law. It is a right
that cannot be abrogated even in a national emergency. It is a right that deserves entrenched
protection in the legal framework of every country.
The lack of entrenched protection has enabled the Commonwealth Government to pass
legislation that over-rides provisions of the Racial Discrimination Act (Cth), the law enacted to
give domestic legal status to Australias obligations under the CERD. The NTER marks the third
occasion on which the Commonwealth Government has so legislated.7 The statutory legitimation
4

International Convention on the Elimination of All Forms of Racial Discrimination at

http://www.unhchr.ch/html/menu3/b/d_icerd.htm Article 2 (1) (a) (Accessed at 24/7/08)
5
Op. cit. Article 2 (1)(c )
6
Op. cit. Article 1(1)
7
The first occasion was the Hindmarsh Island Bridge Act 1997 (passed using the race power under s. 51 (xxvi) of
the Constitution). In Kartinyeri v The Commonwealth [AILR 15; (1998) 3 AILR 180], the High Court confirmed that this
power permitted the passage of laws that were not for the benefit of people of the race concerned. The second
occasion was the Native Title Amendment Act 1998 (Cth). Section 7(1) of that Act states this Act is intended to be
read and construed subject to the provisions of the Racial Discrimination Act. However, section 7(2) provides that the
Racial Discrimination Act has no operation if the intention to override native title is unambiguous. See Submission

Amnesty International Australia Submission

Review of the Northern Territory Response

of racially discriminatory policy, actions taken in accordance with such a policy, and the failure to
rescind discriminatory legislation, are all clearly contrary to Australias national human rights
obligations.
In its Concluding Observations on Australia in 2005 the UN Committee on the Elimination of All
Forms of Racial Discrimination recommended action that would have protected Indigenous
Australians against discriminatory provisions of the NTER:
The Committee, while noting the explanations provided by the delegation, reiterates its
concern about the absence of any entrenched guarantee against racial discrimination
that would override the law of the Commonwealth (Convention, art. 2). The Committee
recommends to the State party that it work towards the inclusion of an entrenched
guarantee against racial discrimination in its domestic law. 8
Amnesty International Australia recommends the earliest possible withdrawal of the
legislative provisions that over-ride the RDA and introduction of an entrenched guarantee
against racial discrimination into Australian domestic law.
c. Actions that violate the right to protection from discrimination are not necessary to
protect Indigenous women and children in NT communities.
The Little Children are Sacred report, written by Pat Anderson9 and Rex Wild QC, was based on
extensive interviews with community members. It made 97 recommendations, based on the
experience of the authors and the knowledge, concerns and positive suggestions from
community members. To date not one of these recommendations has been implemented by
government.
The recommendations of Anderson and Wild were directed at addressing the causes of the
problems they identified. Their view was that the sexual abuse of children was not the result of
traditional practices, but rather, reflected the prevalence of the risk factors associated with
neglect and abuse:
Family dysfunctionality, as a catch-all phrase, reflects and encompasses problems of
alcohol and drug abuse, poverty, housing shortages, unemployment and the like. All of
these issues exist in many Aboriginal communities.10
This assessment reiterates what has been understood for some time. Summarising the impact of
major historical factors on Aboriginal and non-Aboriginal populations, the Royal Commission into
Aboriginal Deaths in Custody said:

dated 6 November 2002 by Gilbert and Tobin Centre of Public Law to Senate Legal and Constitutional Affairs
Committee Inquiry into Progress Towards National Reconciliation at
www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/reconciliation/submissions/sub04.doc (
as at 21/02/08)
8
Paragraph 9, Concluding observations of the Committee on the Elimination of Racial Discrimination on Australia,
CERD/C/AUS/CO/14 14 April 2005 at
http://daccessdds.un.org/doc/UNDOC/GEN/G05/410/73/PDF/G0541073.pdf?OpenElement (at 5/08/08)
9
Former Executive Officer of the Aboriginal Medical Services Alliance Northern Territory (AMSANT), which is the
peak indigenous health organisation in the Northern Territory and Chair of the Cooperative Research Centre for
Aboriginal Health
10
Northern Territory Government (2007) Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse at www.nt.gov.au/dcm/inquirysaac/pdf/bipacsa_final_report.pdf (30/07/08) . p.
5

Amnesty International Australia Submission

Review of the Northern Territory Response

The first [factor] is the deliberate and systematic disempowerment of Aboriginal people
starting with dispossession from their land and proceeding to almost every aspect of their
life. They were made dependent upon government or non-Aboriginal pastoralists or other
employers for rations, clothing, blankets, education, living place and living conditions.
Decisions were made about them and for them and imposed upon them. It was thought
to be bad for an Aboriginal woman to be living with a non-Aboriginal man so that was
outlawed; and when Aboriginal women disguised the fact by dressing in male costume
that too was outlawed. Aboriginal people were made dependent upon non-Aboriginal
people. Gradually many of them lost their capacity for independent action, and their
communities likewise. With loss of independence goes a loss of self esteem.
Of course, I speak in general terms; in the most remote communities the society went as
before and in all areas there were and are strong people, many of them, men and
women, who kept alive the culture and pride in the Aboriginal society. Some of them
strove to organise a better deal, to .call for rights but the battle was uphill and while some
slight gains were made it was a slow and painful progress. People were still not counted
in the population, they were not entitled to and did not get social security benefits,
mothers still gathered their children about them and ran into the bush when they heard
'the welfare' was about. The damage to Aboriginal society was devastating. In some
places, it totally destroyed population. In others, dependency, despair, alcohol, total loss
of heart wrought decimation of culture. So it was on the Aboriginal side.
There is the other side of the coin, the effects of history upon the non-Aboriginal people.
Every turn in the policy of government and the practice of the non-Aboriginal community
was postulated on the inferiority of the Aboriginal people; the original expropriation of
their land was based on the idea that the land was not occupied and the people
uncivilised; the protection policy was based on the view that Aboriginal people could not
achieve a place in the non-Aboriginal society and that they must be protected against
themselves while the race died out; the assimilationist policy assumed that their culture
and way of life is without value and that we confer a favour on them by assimilating them
into our ways; even to the point of taking their children and removing them from family.
Every step of the way is based upon an assumption of superiority and every new step is
a further entrenchment of that assumption.11
Breaking the vicious cycle of discrimination and disempowerment requires a substantial shift
from rights-violating to rights-protecting policy; from capacity destroying to capacity building,
from policy based on assumption to policy based on evidence.
Child abuse is one of many forms of family violence12 that are found at much higher levels
amongst Australias Indigenous population. Child abuse needs to be considered in the context of
other violence within families because of the strong association between the occurrence of
domestic violence and child abuse.13
11

Paragraphs 1.4.6 - 1.4.9, National Report of the Royal Commission into Aboriginal Deaths in Custody Volume 1,
1.4 The Importance of History at www.austlii.edu.au/au/special/rsjproject/rsjlibrary/rciadic/national/vol1/13.html
(7/08/08)
12
This term is preferred by Indigenous people as well as by researchers and officials to refer to involved in the design
of measures to address domestic violence and child abuse ( Memmott, P, Chambers, C , Go-Sam C & Thomson L
(2006) Good Practice in Indigenous Family Violence Prevention - Designing and Evaluating Successful Programs
Issues paper 11, Domestic Violence Clearing House, UNSW, p8 at
www.austdvclearinghouse.unsw.edu.au/documents/Issuespaper_11.pdf (14/08/08)
13
See for example research cited in James, M (2000) Child Abuse and Neglect: Part 1Redefining the Issues
Australian Institute of Criminology p 2 at www.aic.gov.au/publications/tandi/ti146.pdf (14/08/08)

Amnesty International Australia Submission

Review of the Northern Territory Response

In Indigenous communities, family violence is understood to be violence perpetrated by and

against a range of family members, including grandparents, parents and adult children, aunts
and uncles and siblings. However, use of this broad term must not obscure the fact that it is
predominantly Indigenous women and children who bear the brunt of family violence.14
Recent years have seen a significant shift in recent years in understanding of child abuse. This
has been described as,
a shift from explanations based on individual pathology to more complex developmental
and ecological approaches where child abuse and neglect became recognised as a
symptom of significant childrearing problems, often occurring in families with other
significant problems.15
Longitudinal research reveals the factors associated with increased risk of child abuse across
the general community. Tominson suggests these factors can be identified on four related
levels:
At an individual level, they can include a history of child abuse (parent), substance abuse
(parent),and the psychological or physical illness of either the parent or the child and
teenage pregnancy. On a family level, marital conflict, domestic violence, poverty, stress,
and isolation are risk factors. While at the community level, inadequate health care,
unsafe neighbourhoods, inadequate community services, poverty, and isolation have
been identified. And on the societal level, economic/social inequality, cultural acceptance
of violence/gender inequality, and the view of children as possessions are all risk factors
(Tomison 1997a).16
However, Tomison suggests that identified protective factors can be used to counteract the
influence of risk factors and reduce the probability of family violence:
At an individual level, they can include a positive relationship between the child and
parent (or caregiver), good interpersonal skills (parent and child), a positive temperament
and personality (parent or child), and good health (parent or child). On a family level,
protective factors can include marital harmony/supportive partner, adequate income,
supportive extended family, social support networks outside the family, and access to
child care/respite care. At the community level, access to information, advice, and
support from a wide range of health, education and community services, child care/
respite care, accessible public transport, and social/community activity/involvement are
all protective factors. At a societal level, income support/supplements and a culture which
values and respects children is important (Tomison 1997a).17
Indigenous children are likely to be raised in circumstances where risk factors are common and
protective factors, particularly those related to the availability of professional support services
and community infra-structure, are not. The history of past discrimination leaves a palpable
legacy not only in poor community infra-structure, but also in the cycle of violence and abuse.
Violence in Indigenous communities must then be understood in its historical and sociostructural context, for to construct [violence] as an Aboriginal problem, or to simply incriminate

14

The Cape York Justice Study (Queensland Department of Premier and Cabinet 2001, p.18 cited in Memmott et al.
op. cit. p.7.
15
See James op. cit. p 4,
16
Cited in James op.cit. p4
17
Ibid.

Amnesty International Australia Submission

Review of the Northern Territory Response

alcohol, denies a history of overt violence to Aborigines and the contemporary covert violence of
cultural exclusion and institutional control18
After reviewing Australian research on the causes of Indigenous family violence Memmott et al
concluded:
the thinking behind the term family violence reinforces the need to find solutions in the
context of the particular communities or social networks in which the violence is
occurring, and suggest that any useful theoretical framework must embrace the
multifaceted aspects of the issue.19
They also reviewed Australian and overseas research on interventions to address Indigenous
family violence identified the following elements of best practice:

Cultural grounding;

Community grounding;

Engagement of men;

Addressing of colonial experiences and impacts;

Use of partnerships and networks;

Incorporation of information dissemination;

Training and skills acquisition;

Flexibility of project design;

Security of long-term funding;

Employment of strategies for integrated outcomes;

Recruitment of capable staff able to deal with the difficulty of the task; and

Organisational performance and accountability issues addressed.20

What the research does not show is that breaching fundamental human rights is either
necessary or sufficient for protecting women and children.
d. Actions that protect the rights of Indigenous Australians are essential for improving their
well-being, living standards, health and life expectancy.
The recommendations of Little Children Are Sacred are designed to promote an integrated,
consultative approach by all levels of government, and to reduce community risk factors for child
abuse. The authors have emphasised the importance of consultation with communities and
working with them to develop solutions that build on their knowledge and strengths. Such an
approach respects and empowers communities.
Little Children Are Sacred also places a strong emphasis on education, commencing with very
young children. Wild and Anderson recommended that from the age of three all children should
have access to pre-school education.21 This would be of great benefit to children from
disadvantaged backgrounds, and Indigenous children would benefit even more if given access
18

Queensland Department of Aboriginal and Torres Strait Islander Policy and Development 2000, p.60 cited in
Memmott et al, op. cit. p8.
19
Ibid.
20
After Memmott et al. op. cit. p 30
21
Little Children Are Sacred, Recommendation 50(2).

Amnesty International Australia Submission

Review of the Northern Territory Response

to special measures, such as a meals program, with contributions to costs from parents and food
preparation by volunteers.22
Anderson and Wild also recommend significant gaps in education be filled by programs to assist
children at transition points, such as entry to school. Programs which ensure all children have
access to sex education and programs about personal safety and the provision of community
programs on the definitions and effects of child abuse and family violence, and parenting
education and skills training are also recommended. Many of their recommendations re-iterated
findings of earlier, unimplemented reports.23 The authors noted that:
Three common themes emerged during the Inquirys community visits in respect to
education: poor attendance at school, teaching was in an inappropriate language and
there was inconsistent or non-existent delivery of sex education.24
HREOCs 2007 Social Justice Report provides a 10 point plan to redress issues of discrimination
in the NTER and put it back on track to address issues related to violence and abuse in
Indigenous communities. This plan respects rights and is based on promising approaches
developed within Indigenous communities.
For Australian Indigenous populations, the dismantling of Indigenous culture, the disruption of
families caused by the Stolen Generations policy, and the prevalence of individuals who are
themselves untreated victims of violence and abuse, constitute potent risk factors for human
development and well-being. As Fiona Stanley, an internationally recognised Australian
paediatric epidemiologist noted in her response to the NTER:
unless we start to address the complex causes, and not just the appalling manifestations
of that disadvantage and dysfunction, many children will continue to be at risk. This must
be done in a way that includes Aborigines. Measures that exclude the views and
involvement of Aborigines will serve only to further diminish their capacity, exacerbate
marginalisation and add to the damage in these vulnerable communities.
Virtually all populations with a history of social exclusion and marginalisation similar to
the Aborigines of Australia have the same types of problems. However the evidence
suggests aboriginal populations such as Maori, Canadian and American fare far better.
So what have they done differently?
For a start they have specialised, well-funded health services; effective partnerships and
involvement of indigenous people; and many more indigenous professionals who are
powerful advocates for their people. They also have dedicated programs for Aboriginal
housing, water, electricity, transport and public health and better basic living standards
for hygiene and nutrition. Treaty negotiations and land rights are linked to outcomes that
ensure local resources, employment and community economic opportunities. And
importantly, there is a recognition of history and past dispossession through processes
that provide restorative justice.25
Amnesty International Australia strongly supports the Governments commitment to reducing
health inequalities between Indigenous and other Australians. Sir Richard Marmot chairs the
World Health Organisations Commission on the Social Determinants of Health. He notes that
the unequal distribution of resources, including power and prestige, has a marked effect on the
22

Op. cit, Recommendation 52(2).

Learning Lessons and Indigenous Languages and Culture in Northern Territory Schools 2004-05
24
Little Children Are Sacred p. 147
25
Fiona Stanley, Indigenous Health: Saving children's lives is a matter of long-term will Sydney Morning Herald
Online Posted:07-08-2007.
http://www.smh.com.au/news/opinion/saving-childrens-lives-a-matter-of-longtermwill/2007/07/30/1185647826425.html
23

10

Amnesty International Australia Submission

Review of the Northern Territory Response

ability of people to lead lives they have reason to value. This in turn has a powerful effect on
health and its distribution in society.26 The Commission is concerned to identify and find
remedies for inequities in health:
Where inequalities in health are avoidable, yet are not avoided, they are inequitable.27
Marmot says that access to improved standards of medical care is important for reducing health
inequities, but it is only part of the solution:
To make a fundamental improvement in health equity, technical and medical solutions
such as disease control and medical care are, without doubt, necessary. But they are
insufficient. There will need to be empowerment of individuals, communities, and whole
countries.
We see empowerment operating along three interconnected dimensions: material,
psychosocial, and political. People need the basic material requisites for a decent life,
they need to have control over their lives, and they need political voice and participation
in decision making processes. Although individuals are at the heart of empowerment,
achieving a fairer distribution of power requires collective social actionthe
empowerment of nations, institutions, and communities.28
Marmot goes on to note the importance of addressing gender discrimination in many
disadvantaged societies.29
There is evidence that Indigenous Australians can experience substantial benefits from living on
country in communities where traditional culture is strong. For example, a 10 year study of
people living in the Utopia outstations showed better health and well-being in comparison with
Indigenous people living elsewhere in the NT.
Contributors to lower than expected morbidity and mortality are likely to include the
nature of primary health care services, which provide regular outreach to outstation
communities, as well as the decentralised mode of outstation living (with its attendant
benefits for physical activity, diet and limited access to alcohol), and social factors,
including connectedness to culture, family and land, and opportunities for selfdetermination.30
A recent Australian publication uses a human development model to show how the challenge of
improving population health and well-being amongst Indigenous Australians can be met.
Human capability is a concept that describes the capability of populations to improve
their health, wealth, knowledge and cultural security, along with an expansion of the
choices available to them to facilitate these improvements. The expansion of human
capability is about human development, in which humans are viewed as ends in
themselves rather than merely as means to other ends (Sen, 2003). Human development
models seek to expand human capabilities and the choices that human beings have with
26

See Achieving health equity: from root causes to fair outcomes. Michael Marmot, on behalf of the Commission on
Social Determinants of Health, The Lancet - Vol. 370, Issue 9593, 29 September 2007, pp 1153-1163, quotation from
p. 1154. The author referenced Sen A. Development as freedom Oxford: Oxford University Press, 1999 in the
discussion of resources and peoples freedom to live a life they regard as valuable.
27
Marmot op.cit. p. 1154.
28
Op. cit. p. 1155.
29
Ibid.
30
Kevin G Rowley, Kerin ODea, Ian Anderson, Robyn McDermott, Karmananda Saraswati, Ricky Tilmouth, Iris
Roberts, Joseph Fitz, Zaimin Wang, Alicia Jenkins, James D Best, Zhiqiang Wang and Alex Brown, Lower than
expected morbidity and mortality for an Australian Aboriginal population: 10-year follow-up in a decentralised
community, MJA 2008; 188 (5): 283-287 at
www.mja.com.au/public/issues/188_05_030308/row10886_fm.html?source=cmailer (11/08/08)

11

Amnesty International Australia Submission

Review of the Northern Territory Response

particular respect to their social, cultural, economic and civic participation. As Streeton
(2003) notes, the contributing tributaries to human development can be grouped under
five headings: (1) economic growth, (3) human resource development (3) human rights
and participation, (4) peace and security and (5) sustainability (p 79).31
e. It is a myth that rights-based policies have been tried in Australia and have failed.
Critics of policies designed to promote Indigenous control over their own lives say that rightsbased policies have been tried and failed; that the resources that have been spent were wasted;
that the gap in health and welfare would be bridged if Indigenous people were fully integrated
into the mainstream economy.
The evidence does not support claims Indigenous Australians as a group have enjoyed either
self-determination or stratospheric rights. As Fiona Stanley observed (above), Australian
Indigenous peoples fare worse than their counterparts in New Zealand, Canada and the United
States. Neither the shocking prevalence of violence and abuse in Indigenous communities nor
the shameful gap in health and life expectancy between Indigenous and non-Indigenous
Australians, have arisen because Indigenous Australians have been treated with respect and
dignity and empowered to take control over their own lives.
The Prime Minister has recognised the importance of respecting the rights of Indigenous people
to avoid a repetition of past injustice in his Apology to the Stolen Generations. He spoke of:
A future where this Parliament resolves that the injustices of the past must never, never
happen again. A future where we harness the determination of all Australians,
Indigenous and non-Indigenous, to close the gap that lies between us in life expectancy,
educational achievement and economic opportunity. A future where we embrace the
possibility of new solutions to enduring problems where old approaches have failed. A
future based on mutual respect, mutual resolve and mutual responsibility. A future where
all Australians, whatever their origins, are truly equal partners.32
Both the spirit and the letter of the Prime Ministers apology above reflect the ALPs Guiding
Principles for a Labor Governments relationship with Indigenous Australians. These include the
following:
Labor respects the right of Indigenous Australians to meaningful self determination
arising from their First Nations status.
Labor will endorse the UN Declaration on the Rights of Indigenous Peoples and will be
guided by its benchmarks and standards.
Labor will harness Indigenous decision-making power in relation to the formulation and
delivery of policies and programs.
Labor will take an evidence-based approach to improve the social, cultural and economic
well-being of Indigenous Australians.33

31

Zubrick S, Silburn S, Lawrence D, Shepherd C, Mitrou F, DeMaio J, Dalby R., Griffin J, Pearson G, & Hayward
C.(in press) Population capability and human development models: Policy changes to improve the lives of Australian
Aboriginal children and families p.1. In G. Robinson U, Eickelkamp J Goodnow & I. Katz (Eds.),Contexts of child
development: Culture, policy and intervention. Darwin and Sydney: Charles Darwin University Press
32
Federal Parliaments apology to the Stolen Generations delivered by the Prime Minister 13 February 2008, at
www.alp.org.au/download/now/apology_to_the_stolen_generations.pdf (accessed 24/07/08)
33
Op. cit. p.212

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Amnesty International Australia Submission

Review of the Northern Territory Response

Amnesty International Australia recommends the Government to progress its relationship

with Indigenous Australians and implement its Guiding Principles for the relationship.
4.

Comments on selected Review Committee questions

What is working? What isnt working? Have there been unintended consequences?
The Review Committee has been asked to assess the impact of the measures comprising the
NTER against the aims of the NTER. These aims are improving the safety and wellbeing of
children and laying the basis for a sustainable and better future for residents of remote
communities in the Northern Territory.34
On the Review website the Australian Government is described as committed to an evidencebased approach to closing the gap between Indigenous and non-Indigenous Australians.
Evaluation of performance requires a comparison of pre-and post-implementation measures of
desired outcomes. Indicators and measurement methodology must be established in advance in
order to avoid the temptation of shifting goal posts to align with actual rather than intended
outcomes.
The NTER involves a large number of measures. They have been implemented without prior
specification of desired outcomes and suitable indicator and without baseline measurements.
This places a severe limit on possible assessment of progress made by the measures of the
NTER.. It is possible to provide only statistics on administrative output health checks, business
managers in place, implementation of welfare quarantining, and anecdotal evidence about the
impact of the measures.
From its own consultations with groups and individuals in affected communities, Amnesty
International Australia can report what seems to be widespread support for the provision of
additional policing and health services. There is simultaneously some concern that these
services may have been at the expense of some pre-existing services which had developed the
requisite relationships of trust and understanding with communities over a long time and
suddenly found themselves obsolete.
Similarly, there is some support for the alcohol bans, but predominant professional opinion is
that such bans work best when imposed by communities and accompanied by services for
alcohol addiction.
A major study of Indigenous violence recommended that an appropriate evaluation framework
would include the following indicators:

changes in incidence and prevalence rates relating to injury, suicide and violence related
hospital separations and other basic law and order indicators

improved community expectations about preventive outcomes

evidence of uptake of educational activities

an increased rate of well coordinated interagency activities

increased compliance with evidence-based preventive interventions and services

34

Australian Government, Northern Territory Emergency Response: One Year On, at p.31
http://www.facs.gov.au/nter/docs/reports/nter_review.pdf

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Amnesty International Australia Submission

Review of the Northern Territory Response

leadership and program innovation the sharing of the results of evaluations with
communities and all Government contributors to maximise learning

commitment to effective accountability35

CASE STUDY 1

Unintended consequences of welfare quarantining

The Human Rights and Equal Opportunity Commissions Social Justice Report 2007 States
that the measures are applied to individuals that are not responsible for the care of
children, do not gamble, and do not abuse alcohol or other substances. The criteria is
therefore solely on the basis of the race of the welfare recipient. HREOC Social Justice
Report 2007
This view from HREOC is supported by reports from Aboriginal organisations that the blanket
quarantining of Aboriginal welfare payments has caused hardship to the most vulnerable
members of the community:

35

The Central Land Council (CLC) report From the Grassroots notes that most Aboriginal
people from remote communities were supportive of steps being taken to address child
abuse and for this reason participated in consultations that led to the Little Children are
Sacred report

The CLC report stated that While many Aboriginal people are supportive of a dialogue
around welfare reform, this dialogue has not taken place and a substantial number of
people remain concerned that the reforms apply without reference to peoples
actual behaviour.

Reports from Indigenous organisations indicate that blanket welfare quarantining

applied without consultation has impacted communities in ways which may not have
been intended.

Not all stores are set up to use the Centrelink store cards and in some instances
people have to drive long distances to make purchases with their quarantined money.
This often means hiring taxis for trips of 150 km or longer, using precious nonquarantined income to do so

In some cases the elderly, the sick and the infirm can no longer get ready access to
goods and services, and people with disabilities can no longer shop at local stores
where things are familiar and easily accessible

Blanket quarantining pays little or no attention to those who wish to use their money
collectively or those who already manage their money responsibly. A combined report
by the Central Australian Aboriginal Legal Aid Service and the North Australian
Aboriginal Justice Alliance says the hasty implementation offered little in the way of
assistance to people with existing debts for household goods.

One respondent to a Darwin Aboriginal Rights Coalition survey said of the store card
system: I prefer my money in my account. We have needs, paying for a generator, use
of a vehicle, fuel etc. And you cant pay for that on a store card. Another said: I used
to save $50 a fortnight and I cant now. It makes it difficult to pay larger bills. This picks
up people who are doing the right thing. It should be case by case, like problem
drinkers or gamblers. Then it might be okay for the people that need it, an Aboriginal
elder told the CLC.

Queensland Department of Premier and Cabinet 2001, p.34, Cited in Memmott et al pp 6-7

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Amnesty International Australia Submission

Review of the Northern Territory Response

Travel to town to access businesses set up to handle the Centrelink system may involve
using unlicenced or barely roadworthy vehicles, with more people charged with traffic
offences which in the NT can lead to jail terms. This is particularly alarming when, even
before the intervention, 21 per cent of Aboriginal prisoners were in jail for driving

CASE STUDY 2

Discrimination Against Indigenous Women and Girls

Additionally, rather than protecting the rights of women and children in the NT, racially
discriminatory measures can actually further exacerbate the sex discrimination experienced by
Indigenous women and girls, as these two forms of discrimination intersect to magnify the
experience of discrimination.
For example, it has been reported (The Age,7 June 2008) that in a case currently before the
Federal Court the Australian Crime Commission (ACC) is demanding sensitive information about
children aged under 16 years who had sought advice about contraception but who it believes
had not been sexually abused. Without the right to confidential health advice young women will
not have the confidence in the health system to seek medical assistance for sexual and
reproductive health, and the consequences of that can be dire. This is part of an investigation
which applies only to Indigenous communities, and it is unlikely that such a request would be
contemplated for non-Indigenous communities.
The United Nations specifically calls on states to ensure that diverse strategies that take into
account the intersection of gender with other factors are developed in order to eradicate all
forms of violence against women. This means developing programs and institutional support for
addressing the needs of marginalised groups, as assessed by existing and/or specially
commissioned research.
5.

The way forward recommendations

It is clear that elements of the NTER are discriminatory. It is clear that discrimination is not
essential to the protection of Indigenous women and children. The future well-being and
sustainable human development of Indigenous Australians, wherever they are living, depends
on the adoption of policies that respect rights and draw on best the evidence from research. In
New Zealand, Canada and the United States, Indigenous populations fare better than they do in
Australia. We should draw on the lessons from those programs that have succeeded in bringing
the most damaged communities back from the brink. Successful programs have acknowledged
the wrongs of the past, used healing processes that drawn on traditional cultural values, used a
combination of mainstream and traditional justice to ensure that offenders can be safely reintegrated into the community. We should draw on techniques that empower local communities,
ensuring gender equity, and build local capacity, as the gaps in services and infra-structure are
filled.
The federally funded Partnerships against Domestic Violence (PADV) project: Indigenous Family
Violence: Phase 1 Meta Evaluation Report draws on best practice to address family violence. Its
priorities for future actions were:

Adopt holistic, sustainable and integrated approaches across governments,

service sectors and communities to addressing family violence and related social
problems in Indigenous communities

Develop a shared vision and agreed priorities for action within the government
and community sectors;

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Amnesty International Australia Submission

Review of the Northern Territory Response

Involve Indigenous communities in all aspects of policy, planning and service

delivery;

Ground any action in evidence and focusing on the achievement of outcomes;

Programme funding should include training budgets (and travel budgets in rural
areas) and be timed in years rather than months, to allow for community
development and capacity building, and difficulties in recruiting skilled workers;

Funding programmes and funded projects should build in appropriate systems for
monitoring outcomes;

Ensure effective accountability and transparency in decision making;

Identify the barriers to Indigenous clients accessing domestic violence and

mainstream agencies, identify and implement solutions including providing
cultural training to mainstream agencies in working with Indigenous clients;

Expand information, support, advocacy and resources to inform the choices of

Indigenous women, particularly in relation to their interaction with the civil and
criminal justice system; and

Identify strategies to increase the effectiveness of responses, especially justice

responses, for Indigenous women.

We urge that measures specifically addressing the needs of Indigenous communities be

integrated with the National Plan to Reduce Violence against Women and their Children, which
is currently being developed by the National Council to Reduce Violence against Women and
their Children with the support of the Office for Women. There should be a consistency between
the approach taken as part of the Northern Territory response and the national approach within
this plan.
While such a national plan of action should be based on the human rights principle of nondiscrimination, it must take that formal protection further by ensuring that women in positions of
disadvantage have equal access to services and justice. It is recommended that the National
Plan to Reduce Violence against Women and their Children include immediate provisions for a
national-level body empowered to undertake research, build capacity and drive policy on efforts
to end violence against Indigenous women. This body should represent and recognise the
diversity of Indigenous womens experience and knowledge, and its work plan should be driven
by the priorities and methodologies that they identify as appropriate.
Amnesty International Australia recommends that the Government:

Repeal immediately all legislation designed to overcoming prohibitions against racial

discrimination

Adoption of a framework for the development of policy to address violence and

disadvantage in Indigenous communities that:
o

respects Australias obligations under human rights treaties;

reflects the principles of the Declaration on the Rights of Indigenous Peoples;.

uses evidence from Australia and overseas on sustainable and effective

interventions to prevent abuse in Indigenous communities; and

operates within an integrated plan to address the dignity, empowerment and

independence of Indigenous peoples throughout Australia.

16