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1. alcohol
2. business management
3. community stores
4. publicly funded computers
5. pornography
6. buildings
7. permits
8. five year leases
9. income management
10. sunset clause11. legal summary
12. customary law
The amendments to the NT intervention contained in the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 keep in place laws that make it an offence to take, possess, drink or supply alcohol on all Aboriginal land, community living areas, and town camps.
These measures end on 18 August 2012. An on the spot fine of $133 may be issued. The fine for a first offence is up to a $1330; it is double that for a second offence. If the amount of pure alcohol is 1,350 ml (approximately 3 cases of beer), the offence could be trafficking which is up to a $90,440 fine or 18 months jail.
However, the new amendments also allow communities that have developed, or are developing, their own Alcohol Management Plans (AMP) to have the blanket restrictions replaced or varied. The government will decide on a case by case basis whether to approve a variation in the restrictions, and will take into account: · evidence about the level of alcohol-related harm in the community; · the views of the community; and · the community’s willingness and ability to develop and help implement an AMP.
If local alcohol restrictions do not work in a community, the Government can reinstate the Intervention restrictions in that community.
The amendments have changed the law that gives police the power to enter a private residence in a prescribed area as if it were a public place. This will only apply in a particular community if a member of the community has specifically asked for a declaration to be made and the Minister agrees.
Although each community could have a say in the form of alcohol restrictions in their community in the future, including in the development of an alcohol management plan tailored for their community, it may be some time before the Minister accepts any new plans put forth by the community.
There is also no current indication of what support, resources or funds will be provided to community to help develop an AMP. In the meantime, the current alcohol measures target places of drinking but do not target alcohol outlets including roadhouses and other takeaway outlets.
The current alcohol measures also fail to deal with concerns like the increase in unsafe drinking areas just outside of the restricted areas.
Central Australian Aboriginal Legal Aid Service 1800 636 079; Licensing, Regulation and Alcohol Strategy NT 08 8999 1800; Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010.
Last updated: 6 January 2011
The amendments to the NT intervention contained in the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 do not affect the broad range of powers given to the Minister over an entity which perform functions or provide services, and have some government funding, in Business Management Areas.
The Minister may:
unilaterally alter funding agreements
direct how services are to be provided where the Minister is not satisfied with the current service
direct how assets are used by Entities or acquire assets from Entities
appoint observers to attend meetings of Entities including committee meetings
suspend community government councils or appoint managers for associations on service related grounds. The Act also creates civil penalties where Entities fail to comply with a direction or to inform an observer of meetings where one has been appointed. [Note: Government Business Managers are not appointed under the legislation but the Minister may delegate powers to the GBMs or appoint GBMs as observers]
An Entity can be:
a community government council
an incorporated association under the Associations Act (NT)
an Aboriginal corporation under the Corporations (Aboriginal and Torres Strait Islander) Act (Cth), or
another Entity specified by the Minister that performs functions or provides services in a Business Management Area
Business Management Areas are: major Aboriginal communities including Ali Curung, Alpurrurulam, Amoonguna, Ampilatwatja, Aputula, Areyonga, Atitjere, Canteen Creek, Daguragu, Engawala, Haasts Bluff, Hermmansburg, Imangara, Imanpa, Kalkarindji, Kalkukatjara, Kintore, Lajamanu, Laramba, Mt Liebig, Mutitjulu, Nturiya, Nyirripi, Papunya, Pmara Jutunta, Santa Teresa, Tara, Titjikala, Wallace Rockhole, Willowra, Wilora, Wutunugurra, Yuelamu, Yuendumu.
When does it end? 18 August 2012- however if funding agreements are altered they will remain in place as altered for the remainder of the term of the agreement.
The Government says these powers are reserve powers but they are not restricted in the legislation. The powers are very broad in scope and lack sufficient checks and balances. For example, the Minister appears to be able to direct any body that receives any Commonwealth or NT government funding that could be used for the provision of community services how to use that money and direct how assets, including those not purchased with government funding, are to be used. We are not aware of these powers having been used at all to date.
Northern Territory National Emergency Response Act 2007 Part 5
Last updated: 6 January 2011
The amendments to the NT intervention contained in the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 keep in place the requirement that community stores must be licensed. However, the store licence will now reside with the store owner (e.g. the corporation) rather than the manager.
The other amendments to the bill include: extending the licensing scope to cover all shops which are a key source of food, drink and grocery items for an Indigenous community; the power for the Secretary to require a store that is an Indigenous association incorporated under the NT Associations Act to become registered under the Commonwealth Corporations (Aboriginal and Torres Strait Islander) Act 2006; and modification of the range of ‘assessable matters’ in issuing and monitoring licences.
Assessable matters now include: effective promotion of better nutritional outcomes through stock placement, store layout, nutritional displays and demonstrations; the character of the manager, employees and other persons associated with carrying on the business of the community; and whether the financial practices of the owner and manager of the community store support the sustainable operation of the store.
Amendments will also allow applications to be made to the Administrative Appeals Tribunal for the review of certain decisions made under the community stores licensing scheme, and remove the Commonwealth’s powers to acquire the assets and liabilities of a community store.
A Community Store is a business where one of the main purposes is the sale of groceries and drinks. The amendments to the bill mean that roadhouses and other places of shopping can now be licensed.
The scheme applies in Prescribed Areas. The following stores have also been declared community stores: Kurundi Station Store, Maryvale Station Store, Murray Downs Station Store, Epenarra Station Store, Neutral Junction Station Store, Ammaroo Station Store, Red Gum Store, Waite River Store, Mt Swan Station Store, Delmore Downs Store, Stirling Cattle Station Store.
The scheme does not make it compulsory to have a license nor must a store cease to trade if a license is revoked. However, stores that choose not to receive licensing risk large losses in income and profit as they will not be able to process Basics Cards.
The scheme introduces a power to require any store to be registered under ORIC. The government has introduced a coercive power that can restrict community choice and dictate the form of incorporation.
The scheme, like most other NTER measures ends on 18 August 2012. It is unclear what will occur after this time.
Northern Territory National Emergency Response Act 2007 Part 7 http://www.facs.gov.au/guides_acts/ssg/ssguide-11/ssguide-11.1/ssguide- 11.1.9/ssguide-11.1.9.20.html
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The Northern Territory National Emergency Response Act (Cth) outlines a new system for checking that Publicly Funded Computers are used appropriately.
Under the system the individual or head of the organisation must:
1. ensure each computer is installed with a filter accredited by the Telecommunications Minister
2. keep records of each individual who uses a computer
3. develop a policy on acceptable use of computers which prohibits communications that break the law, are defamatory, offensive, obscene, abusive or threatening, or harass on the basis of sex, race or disability (the Minister may determine other matters which the policy must include)
4. audit each computer on 31 May and 30 November each year in a manner determined by the Minister.
Failure to perform any of the above is an offence.
A Publicly Funded Computer is any computer:
1. owned by a individual or organisation that receives government funding
2. on loan from a individual or organisation that receives government funding, or
3. owned or leased by a individual or organisation that directly or indirectly receives government funding for employment services
that is located in a Prescribed Area.
Prescribed Areas are:
1. all Aboriginal land granted under Land Rights Act (Cth)
2. all community living areas granted under Lands Acquisition Act (NT)
3. town camps in Alice Springs and Tennant Creek
4. Aputula (Finke) and Canteen Creek
5. any other area in the NT declared by the Minister.
when do the changes start?
Checking requirements – 18 August 2007
Offences – 15 September 2007
what are the possible problems?
The scope of Publicly Funded Computers is very wide and the checking requirements are strict for government funded organisations.
where can I find out more?
Emergency Response Hotline 1800 333 995
Northern Territory National Emergency Response Act 2007 Part 3
The amendments to the NT intervention contained in the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 keep in place the bans on possession and supply of pornographic material within Prescribed Areas.
Pornographic material captured in the ban includes:
publications which are classified restricted category 1 or 2 or films which are classified X18+ (which generally contain real depictions of sexual activity)
publications, films or computer games which have been refused classification (which generally contain sex, cruelty, or violence that offends against acceptable standards of morality and decency).
Police have all necessary powers in Prescribed Areas to seize and destroy material which may be prohibited. However, the amendments give communities the opportunity to ask for the NTER pornography restrictions to be removed in relation to their community, but only if someone from the community requests this and the Minister agrees.
A decision to remove the NTER pornography restrictions in a particular community would be made by considering:
the well-being of people in the community;
evidence about the levels of problem sexual behaviour and pornography in the community;
the views of people in the community; and
advice from relevant law enforcement agencies.
Such a decision can be reversed if it is considered necessary taking into account the same factors. The Government has also agreed to change the signs about alcohol and pornography restrictions in consultation with Aboriginal people so the signs are more respectful.
Prescribed Areas are:
all Aboriginal land granted under Land Rights Act (Cth)
all community living areas granted under Lands Acquisition Act (NT)
town camps in Alice Springs and Tennant Creek
Aputula (Finke) and Canteen Creek
Attorney-General’s Department (responsible department): Current changes to classification law Explanatory Memorandum- Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill
Last updated: 6 January 2011
The Families, Community Services and Indigenous Affairs Amendment Act 2007 (Cth) introduced a new section into the Aboriginal Land Rights (Northern Territory) Act 1976 providing a means for the Commonwealth or Northern Territory government to obtain statutory rights in government funded buildings.
The government may obtain statutory rights to occupy, use, construct, maintain and repair any building or infrastructure in a Construction Area which is:
funded by the government or partly funded by the government
is not covered by a lease (except a 5 year lease); but only
where the Land Council consents, in writing, to the works.
If a 5 year lease is in place, any statutory rights in buildings do not apply while the 5 year lease is in place Statutory rights can only apply where new buildings or repairs are done by government funded bodies.
If statutory rights apply, the government and the land council must then negotiate in good faith for a lease over the Construction Area.
A Construction Area is an area determined by the Minister which covers:
the construction of any building or infrastructure including water, electricity, gas, sewerage and telecommunications, or
any upgrade of any building or infrastructure over $50,000.
Statutory rights can apply on any Aboriginal land granted under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) including outstations.
The ability to obtain these rights starts from 18 August 2007
When $50,000 is spent on a building by a government, ownership of the building can pass from the land trust to the government funding the upgrade. This can happen only with the consent of the Land Council- it is not clear when the land council would so consent rather than negotiate a lease from the outset.
If the Land Council did consent a land trust would not then be able to negotiate a lease with another party over a building where a government holds statutory rights.
Statutory rights would then only finish when the government decides or a whole of community lease to the government is agreed.
Aboriginal Land Rights (Northern Territory) Act 1976- Part IIB—Statutory rights over buildings or infrastructure
Last updated: 12 January 2011
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The Families, Community Services and Indigenous Affairs Amendment Act 2007 (Cth) made a key change to how permits apply in major communities.
Permits will not apply to ‘common areas’, airstrips and access roads for major communities. ‘Common areas’ are defined as areas “generally used by members of the community but do not include a building or a sacred site”. Other changes to the permit system are:
parliamentarians and government workers will no longer require permits
anyone attending a court hearing does not need a permit, and
it is a defence to stay at a house with the permission of the residents. The permit system will still apply to outstations and other Aboriginal land.
The permit changes for communities apply to Ali Curung, Amoonguna, Ampilatwatja, Areyonga, Daguragu, Haasts Bluff, Hermmansburg, Kalkukatjara, Kintore, Lajamanu, Mt Liebig, Mutitjulu, Nturiya, Nyirripi, Papunya, Pmara Jutunta, Santa Teresa, Wallace Rockhole, Willowra, Yuelamu, Yuendumu.
There is no end date to these changes which have become part of the Aboriginal Land Rights (Northern Territory) Act 1976. However, the current power the Minister has to specify that a person or group has the right to be on Aboriginal land ceases to have effect on 18 August 2012.
Definition of ‘common areas’ is not clear and will make it difficult to administer the system. As a result, permits will not be able to be used effectively as a policing tool in communities.
FaHCSIA Information Sheet on Permits
Last updated: 6 January 2011
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The amendments to the NT intervention contained in the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 do not affect the existence of 5 year leases granted to the Australian government over major Aboriginal communities.
The amendments:
· Introduce a statement that the objective of the leases is to allow special measures to be taken to improve service delivery to Aboriginal communities in the NT and to promote economic and social development in those communities.
State that land under 5 year leases can only be used for a purpose the Commonwealth considers is consistent with the above objectives (though it is not clear how this will limit their powers or ensure consultation).
Require the Minister to make guidelines governing land use approval processes.
State the intended transition to voluntary leases.
No negotiation or lease document was required at any stage. No rights are noted in favour of residents or traditional landowners. The leases give the Australian government rights to exclusive possession, to repair, demolish or replace any existing buildings and infrastructure, and to terminate the lease at any time.
The Government has now agreed to pay compensation for leases to traditional landowners.
Ali Curung, Alpurrurulam, Amoonguna, Ampilatwatja, Areyonga, Atitjere, Canteen Creek, Daguragu, Engawala, Haasts Bluff, Hermannsburg, Imangara, Imanpa Kaltukatjara, Kintore, Lajamanu, Laramba, Mt Liebig, Nturiya,Nyirripi, Papunya, Pmara Jutunta, Santa Teresa, Tara, Titjikala, Wallace Rockhole, Wutunugurra, , Willowra, Wilora, Yuelamu, Yuendumu.
18 August 2012- Though they started at different times all leases end on this date. We are not sure what will happen at the end of the lease period at this stage but Minister Macklin has said they will not extend compulsory leases beyond the 5 years. If voluntary leases have been entered into they will continue for the period agreed to (e.g 40 years).
The leases do not guarantee Aboriginal people right of residence – it is not clear whether the government could evict Aboriginal people from their own communities. However, the High Court has found that traditional rights to use and occupation of Aboriginal land are preserved and cannot be terminated by these leases. Other interests in lease areas may be terminated by the government at any time.
Explanatory Memorandum- Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill Office of Township Leasing: Five-Year Leases on Aboriginal Land
Last updated: 6 January 2011
The amendments to the NT intervention contained in the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 retain a modified system of income management for recipients of welfare payments for certain people in areas declared by the Minister.
On 1 July 2010 the Government introduced the new Income Management regime. Since October 4, 2010 the whole of the NT is a ‘Declared Income Management Area.’ Such an area can be declared anywhere in Australia.
Under the new scheme, people will have part of their welfare payments income managed if they fall into one of five categories:
Disengaged youth: people aged 15 to 24 receiving certain welfare payments for more than three of the last six months; this includes Youth Allowance recipients
Long-term welfare recipients: people aged 25 and above (and younger than Pension age) on welfare payments such as Newstart Allowance and Parenting Payment for more than one year in the last two years;
People referred for income management by child protection authorities: determined at the discretion of a State or Territory child protection worker;
People referred for income management by Centrelink due to vulnerability to financial hardship, domestic violence or economic abuse; and
People who request income management: people can volunteer for income management if they do not fall into one of the other categories, and will receive a financial bonus of $250 for every six months their income is managed.
As with the old system, a portion of welfare payment will be set aside in a special account managed by Centrelink. For most people under income management, the amount managed will be 50% (half). For people referred for income management by child protection authorities, the amount managed will be 70%. 100% (or all) of advances, lump sums and baby bonus money will be income managed.
Managed money in the Centrelink account can only be spent on ‘priority needs’ including food, clothing, health, household items, education, rent, funerals and motor car costs. Money cannot be spent on alcohol, tobacco or gambling.
The new scheme allows people to seek exemption from income management:
Disengaged Youth and Long-Term welfare recipients may apply to be exempted if they have no dependant children and are a full time student, a new apprentice or have worked at least 15 hours a week for at least six months in the last year for wages at or above minimum wage.
People receiving the CDEP Scheme Participant Supplement may apply to be exempted from income management, as may those over 16 who are not the principle carer of a child under 6 who are receiving a special benefit.
Aged, Disability Support and Carer’s pension recipients may choose to come off income management unless deemed to be a ‘vulnerable welfare recipient.’ Emergency Response Fact Sheets
Welfare recipients with children may be exempted if: 1. your children attend school consistently; or 2. you have shown ‘responsible parenting‘ by having your children immunised, by visiting the doctor or enrolling them in child care services or play groups
You will need to collect all the evidence and information to prove your case to Centrelink. If you are referred for Income Management by child protection authorities or Centrelink, you will not be eligible for exemption.
For any other decisions regarding income management that you are not happy with, you have the right to ask for a review by Centrelink, or appeal to the Social Security Appeals Tribunal or the Commonwealth Ombudsman.
The new scheme provides money management and financial counseling support services for people who are income managed in areas such as crisis support, financial counseling, advocacy and budgeting.
The new scheme also provides the possibility for a Matched Savings Payment. People subject to compulsory income management who complete an approved money management course and demonstrate a personal savings pattern may be eligible to claim a Matched Savings Payment. This payment will be up to $500 and people may only claim the payment once.
As with the old scheme, the new rules continue to restrict people’s right to decide how they spend their social security payments. The wide definition of ‘vulnerable welfare recipient’ leaves a lot of discretion in the hands of Centrelink employees.
The need for a detailed interview and to collect all the evidence yourself where you have to prove your ability to budget on social security payments would discourage many people from applying for exemptions.
New Income Management for the Northern Territory Info Sheet Explanatory Memorandum- Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 Centrelink Income Management Line 13 25 94
Last updated: 6 January 2011
The Northern Territory National Emergency Response Act 2007 (Cth) contains a ‘sunset clause’ which means that many of the Intervention easures will stop on 18 August 2012.
This includes the alcohol management restrictions, the laws about publicly funded computers, the community store licensing system and the laws about business management areas. Pornography restrictions which are part of the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) will also come to an end at this time.
5 year leases will come to an end at the same time. The laws giving the federal government powers over town camps will remain in place.
The laws relating to bail and sentencing continue to be in place beyond this time.
It is difficult to say what this means. The Commonwealth Government might pass laws to keep some of these measures going or to introduce similar laws in their place.
NT Emergency Reponse Act- Part 1- Section 6
The Northern Territory National Emergency Response Act (Cth) makes clear that a court cannot take customary law or cultural practices into account in:
considering bail applications
determining sentences
In considering bail a court must consider whether a person resides in a remote community where the alleged victim or other witnesses live. In determining sentences the court cannot use customary law or cultural practices to lessen or increase the sentence. [Note: alternative sentencing which considers customary law, such as ‘circle sentencing’, is still possible but just not within a court]
Everywhere in the Northern Territory.
Unlike other measures that form part of the Intervention there is no time limit on this law, it will continue to apply.
Because courts have no discretion to consider cultural matters in relation to sentencing, Aboriginal people may be more likely to go to jail and to receive harsher sentences.
Aboriginal people are also more likely to be refused bail, especially where they live in a remote community.
Northern Territory National Emergency Response Act 2007 Part 6
Last updated: 6 January 2011
