: Indigenous Australians and the Commonwealth Intervention

Indigenous Australians and the Commonwealth Intervention

Jo-Anne Weinman

Indigenous Australians and the Commonwealth Intervention, Peter Billings (ed)Peter Billings (ed); Law in Context Special Issue 27(2); Federation Press, 2010;
160pp; $49.95 (paperback).

The Northern Territory Intervention or Emergency Response is a difficult subject to critique. Not only does it involve a number of wide-ranging legal, administrative and financial measures contained in lengthy legislation — with policy objectives that were initially unclear and that subtly shifted over time — but it has also undergone modifications during the administration of three successive federal governments. In this special issue of Law in Context, contributors with varied professional backgrounds — from high public office, a peak health research body and academia — offer interdisciplinary critical perspectives on the Intervention. There is a clear emphasis on the social security measures in many of the articles, with some attention also given to alcohol and pornography restrictions, as well as to policing, bail and sentencing provisions. However, given the controversy over these provisions and the ongoing debate about extending welfare quarantining measures to other parts of the country, this balance seems appropriate. Each article also includes a concise summary of the relevant law and policy which is helpful to readers who are not conversant with the intricacies of all measures under the Intervention. The introduction by Peter Billings is especially useful in this regard.

In ‘The Northern Territory Intervention — It’s Not Our Dream’, Tom Calma gives an impressively succinct overview of the human rights aspects relevant to elements of the Intervention. A discussion of international law and the extensive international criticism the Intervention attracted from multiple United Nations committees and special rapporteurs informs both his appraisal of the 2010 redesign and proposals for law reform that would enable the Intervention to genuinely comply with human rights standards. Like many of the authors in this issue, he questions the logic, evidence-base, monitoring and evaluation of the Intervention measures in considering whether they conform to best practice principles and international legal obligations for developing appropriate Indigenous policy.

Similarly, ‘Redesigning the Northern Territory Emergency Response — Social Welfare Reform and Non-Discrimination’, by Peter Billings and Anthony Cassimatis, is concerned with the extent to which Australia is complying with its human rights obligations. However, while Calma’s article has a clear focus on international human rights law and covers a variety of measures under the Intervention, this article confines itself to the issue of whether the reforms to the social security provisions constitute special measures and thereby an exception to the prohibition against racial discrimination. This is explored in relation to legal obligations under the Racial Discrimination Act 1975 (Cth), the International Convention on the Elimination of All Forms of Racial Discrimination 1966, and the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’). It includes a useful review of Australian and international jurisprudence in relation to special measures, positive measures, direct and indirect discrimination, free prior and informed consent, and the duty to consult in good faith. The disjuncture between the declared aims of the 2010 social security reforms and their effect is examined in a critical but balanced manner.

‘In the Best Interests of the Child? Determining the Effects of the Emergency Intervention on Child Safety and Wellbeing’, by Fiona Arney, Kate McGuinness and Gary Robinson, and ‘Governing Crime in the Intervention’ by Thalia Anthony, both provide much needed analysis of the Intervention’s progress in meeting particular policy justifications. Like many other commentators, the authors of both articles mention numerous limits to measuring and monitoring the effects of the Intervention. This includes the lack of baseline data, and the tendency of the Commonwealth government to measure outputs via a post hoc survey, or systems data analysis that may not necessarily be well-suited to measuring achievement of the policy objective, especially where important factors require differentiation at the community or household level.

Nonetheless, each article undertakes the difficult task of detailing assumptions underlying some of the Intervention’s measures, and navigating the reader through sophisticated evaluations of statistical assessments of the impacts of the Intervention. Some disquieting observations are disclosed in the process. The Intervention’s initiatives were based on an incomplete understanding of the nature of child abuse in the Northern Territory: the largest incidence of child abuse in the prescribed communities is due not to sexual abuse but to neglect (a situation arguably exacerbated by compulsory income management of parents in the child protection system). There is also no evidence that heavier policing has had any impact on arrests and prosecutions for child sexual offences. Anthony indicates that the additional policy presence has in fact resulted in increased prosecutions mainly in relation to minor driving offences rather than offences related to pornography or child sexual abuse.

The final two articles in the collection are perhaps less directly aimed at those interested specifically in the law and policy aspects of the Intervention. Marcelle Burns’ article ‘Closing the Gap between Policy and “Law” — Indigenous Homelands and a Working Future’ devotes most of its attention to the Commonwealth government’s Closing the Gap policy and the Northern Territory government’s Working Future policy in relation to homelands and outstations, and the suitability of those policies in light of certain rights articulated in UNDRIP. While it constitutes a valuable contribution in terms of contextualising the policy underpinning the Northern Territory Intervention within a neo-liberal and neo-paternalist ideology, there is little direct analysis of the impact of the Intervention on the homelands and outstations policy. It would have been helpful to have some consideration of how the Intervention affected the mobility patterns of Indigenous peoples within the prescribed communities, or of their ability to remain on homelands and outstations, particularly in light of the measures relating to compulsory income management, compulsory acquisitions of property, and the Community Development Employment Projects program.

Likewise, Jonathan Crowe’s article ‘Giving Back the Space — Freedom, Meaning and the Northern Territory Intervention’ clearly states that its objective is to look beyond the details of the law and policy governing the Intervention and its effectiveness, to the wider picture. With reference to political theorists Ghassan Hage, Charles Taylor and Giorgio Agamben, it assesses the capacity of law to construct social space in both positive and negative ways, detailing the importance of the separation of space between life and law. This article makes some recommendations for framing debates in Indigenous policy-making with a view to the kinds of communities that are desirable to help create. It is an interesting and thought-provoking article with which to conclude the collection and does encourage one to look to the forest rather than through the trees.

JO-ANNE WEINMAN is a Research Associate at the ANU National Centre for Indigenous Studies, Australian National University.

(2011) 36(4) AltLJ 289
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