Express law No. 60

6 September 2007

The Northern Territory National Emergency Response Package

Measures to address the national emergency arising
out of child abuse and other issues in Indigenous communities
in the Northern Territory were announced by the Prime
Minister on 21 June 2007. Five Bills were introduced
into Parliament on 7 August 2007 and all were passed
by 17 August 2007. Royal Assent was given on 17 August
2007.

The three Acts which give effect to the measures are
set out below. (The remaining two Acts, which are not
dealt with here, are the Appropriation (Northern Territory
National Emergency Response) Act (No. 1) 2007-2008 and
the Appropriation (Northern Territory National Emergency
Response) Act (No. 2) 2007-2008).

Northern Territory National Emergency Response Act 2007

The Northern
Territory National Emergency Response Act 2007
(the
NTNER Act) covers measures related to alcohol, publicly
funded computers, land, community governance, bail
and sentencing, and community stores. Unless otherwise
specified, all of these measures will cease to have
effect at the end of five years after the day after
Royal Assent.

Alcohol measures

Part 2 of the NTNER Act modifies the Liquor Act (NT) to
restrict the possession, consumption, sale and transportation
of liquor, particularly on land in prescribed areas. Prescribed
areas comprise most 'Aboriginal land' within
the meaning of the Aboriginal Land Rights (Northern
Territory) Act 1976 (Cth) (the Land Rights Act) (including
roads, rivers, estuaries and other areas otherwise excluded
by that Act), community living areas granted under the
Lands Acquisition Act (NT), and any town camps in the Northern
Territory which are identified by declaration.

Pornography measures

Part 3 of the NTNER Act introduces a scheme of accountability
aimed at preventing and detecting the misuse of publicly
funded computers (as defined) located in prescribed areas
in the Northern Territory. A person in control of a publicly
funded computer is required to have a filter installed
on the computer to prevent and record access to illegal
material; undertake six monthly audits of material on,
or accessed by, the computer; and provide the results of
audits to the Australian Crime Commission.

Land measures

Acquisition of five-year leases by the Commonwealth: Part
4 of the NTNER Act provides for the Commonwealth to acquire,
by force of the legislation, five-year leases over the
land identified in Schedule 1. Generally, the underlying
tenure of the relevant landowner is unchanged. Commencement
dates of the leases vary to enable the acquisitions to
be rolled out over a period of six months. Land in other
communities can be added by regulation, but any lease ends
five years after the commencement of this part.

Conferral of powers on the Commonwealth in relation
to town camps: The Commonwealth Minister has the
powers of the Northern Territory Minister or the Administrator
under the Special Purposes Leases Act (NT) and the Crown
Lands Act (NT) to forfeit leases over, or resume, land
identified in Part 4 of Schedule 1. Further town camps
can be added by regulation. Power is also conferred on
the Commonwealth to acquire the freehold title in the
land identified in Part 4 of Schedule 1, whether or not
the powers to forfeit leases or resume the land have
been exercised. These powers may be exercised only for
a period of five years after the day after Royal Assent.

Effect of Commonwealth and Northern Territory laws: The Lands
Acquisition Act 1989 (Cth) and other Commonwealth
and Northern Territory laws have no application to the
acquisitions mentioned above. Land trusts are able to
continue to negotiate leases under section 19 of the
Land Rights Act, but the consent of the Minister is required.
The future act provisions in the Native Title Act
1993 (Cth) do not apply to the acquisitions or to
related actions, but the 'non-extinguishment principle'–that
is, that the validity of these actions is not affected
by any native title that exists and that any native title
is suppressed but not extinguished–applies.

Compensation for acquisition: Part 4 includes specific
provision for the payment of reasonable compensation if
the operation of the part, or any act done in relation
to the land affected by the part, results in an acquisition
of property otherwise than on just terms within the meaning
of the Constitution. (The NTNER Act also contains a general
provision ensuring the payment of reasonable compensation
for an acquisition of property arising out of other parts
of the Act.) Provision is also made for certain matters
to be taken into account in determining reasonable compensation.

Part 4 continues to have effect after the end of the period
of five years from the date of commencement.

Business management areas

The Commonwealth will appoint government business managers
in targeted communities. To facilitate their role in improving
governance in communities, Part 5 of the NTNER Act includes
the following provisions:

  • a power enabling the Commonwealth to terminate funding
    agreements at will
  • a power enabling the Commonwealth to vary funding
    agreements in relation to particular matters
  • a power enabling the Minister to give directions about
    assets and services in particular circumstances
  • a power enabling the Minister to appoint observers
    to community services entities
  • powers enabling the Commonwealth to intervene in the
    management of community government councils and incorporated
    associations which provide services to targeted communities.

Bail and sentencing reforms

Part 6 of the NTNER Act amends Northern Territory law
to require relevant authorities, when exercising bail or
sentencing discretion in relation to Northern Territory
offences:

  • not to take into account any form of customary law
    or cultural practice to lessen or aggravate the seriousness
    of criminal behaviour
  • to take into account the potential impact on victims
    and witnesses in remote communities of granting bail.

Part 6 continues to have effect after the end of the period
of five years from the date of commencement.

Community stores measures

Part 7 of the NTNER Act introduces a new licensing regime
for the operators of community stores in Indigenous communities.
Licences will be granted by the Secretary of the Department
of Families, Community Services and Indigenous Affairs
based primarily on the assessable matters set out in the
legislation. Where a community store licence is withheld
from a store operator, or is revoked, the Minister may
declare that certain assets and liabilities of the store
vest in the Commonwealth. This measure is linked to the
introduction of income management for welfare recipients,
because a proportion of targeted persons' income
will be directed to the community stores.

Families, Community Services and Indigenous Affairs and
Other Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007

The Families,
Community Services and Indigenous Affairs and Other
Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007
(the
FaCSIA Amendment Act) makes amendments to other legislation
to provide for pornography and law enforcement measures,
infrastructure and reforms to the permit system. Unless
otherwise specified, all of these amendments are ongoing
and continue to have effect after the end of the period
of the emergency response.

Prohibited material

Schedule 1 inserts new Part 10 into the Classification
(Publications, Films and Computer Games) Act 1995 (Cth),
banning the possession of pornographic material within
prescribed areas and prohibiting the supply of pornographic
material in prescribed areas. The new part also gives
police all necessary powers in prescribed areas to seize
and destroy material which may be prohibited under the
new Part 10. The prescribed areas referred to are the
same as the prescribed areas in the NTNER Act. Provision
is made for the payment of compensation in the event
that Part 10 results in an acquisition of property in
the constitutional sense.

New Part 10 takes effect on the 28th day after Royal Assent.
It ceases to have effect at the end of five years after
the day after Royal Assent of the NTNER Act.

Law enforcement

Schedule 2 of the FaCSIA Amendment Act amends Commonwealth
law enforcement legislation to facilitate the implementation
of the Government's emergency measures. The Australian
Crime Commission Act 2002 (Cth) is amended to allow
the Australian Crime Commission to undertake intelligence
operations and investigations into Indigenous violence
or child abuse. The Australian Federal Police Act 1979 (Cth)
is amended to make it clear that members of the Australian
Federal Police deployed to the Northern Territory Police
(NTPOL) are able to exercise the powers and duties of a
member of the NTPOL.

Infrastructure

Schedule 3 of the FaCSIA Amendment Act amends the Land
Rights Act and provides for the Commonwealth, Commonwealth
authorities, the Northern Territory and Northern Territory
authorities to retain a continuing interest in buildings
and infrastructure constructed or upgraded on Aboriginal
land where they fund the construction or major upgrade
and where the land council for the area consents to the
construction or upgrade.

The continuing interest takes the form of specified statutory
rights and the buildings and infrastructure are deemed
to be the property of the government or authority which
has the statutory rights. Where there are multiple funding
sources, the schedule sets out a mechanism to determine
who will have the statutory rights. The schedule also makes
provision for the statutory rights to come to an end in
certain circumstances.

The schedule generally requires the person who has the
statutory rights and the land council concerned to negotiate
in good faith for the grant of a lease under section 19
of the Land Rights Act.

Access to Aboriginal land

Schedule 4 of the FaCSIA Amendment Act amends the Land
Rights Act and makes changes to the provisions governing
access to Aboriginal land to increase interaction with
the wider community and promote economic activity. New
sections 70A to 70H are added to the Land Rights Act to
remove the requirement for people to obtain permits to
enter and remain on certain areas of Aboriginal land, including
common areas of certain communities, road corridors to
those communities, and airstrips and boat landings servicing
those communities. Provision is included to enable government
officials and others to enter or remain on Aboriginal land,
and for temporary restrictions to be put on access to these
areas, in certain circumstances. It also allows the Minister
to authorise a person to enter or remain on Aboriginal
land during the period of the emergency response.

Provision is made for the payment of reasonable compensation
if the operation of the schedule or actions taken under
or in accordance with new provisions of the Land Rights
Act results in an acquisition of property otherwise than
on just terms.

Miscellaneous

Schedule 5 of the FaCSIA Amendment Act also makes several
minor amendments to the Land Rights Act and amends the
NTNER Act (at the time when the access changes come into
effect) to provide that the Commonwealth's exclusive
possession and right to quiet enjoyment of land under five-year
leases is subject to the access rights provided by new
sections 70C to 70G of the Land Rights Act.

Social Security and Other Legislation Amendment (Welfare
Payment Reform) Act 2007

The Social
Security and Other Legislation Amendment (Welfare Payment
Reform) Act 2007
(Cth) inserts new Part 3B
into the Social Security (Administration) Act 1999 (Cth)
to establish a national income management regime that
may apply to a person in receipt of certain welfare
payments if:

  • the person lives in a declared relevant Northern Territory
    area
  • a child protection officer of a State or Territory
    requires the person to be subject to the income management
    regime
  • the person, or the person's partner, has a child
    who does not meet school enrolment requirements
  • the person, or the person's partner, has a child
    who has unsatisfactory school attendance or
  • the Queensland Commission (the body or agency established
    by Queensland law specified in a legislative instrument
    by the Minister) requires the person to be subject to
    the income management regime.

The part of the affected person's payment that is
subject to income management will generally be used to
pay the priority needs of that person, their partner and
their children. In addition, baby bonus will be paid in
13 fortnightly instalments to claimants who are subject
to the income management regime.

In the case of the Northern Territory emergency response,
the income management regime will apply in respect of all
people in the declared communities in the Northern Territory
who are in receipt of certain welfare payments for a period
of five years from commencement of the provisions. But
income management extends beyond the emergency response
in the Northern Territory and the provisions can apply
generally where children are at risk or do not meet school
requirements. In addition, the provisions facilitate the
trial of income management in Queensland in certain communities
on Cape York until 1 January 2012.

Northern Territory CDEP transitional payment

From September 2007, the Community Development Employment
Projects (CDEP) program in the Northern Territory will
progressively be replaced with other employment services.
The Act includes provision for a transition payment to
CDEP participants who move onto income support in the Northern
Territory.

Racial Discrimination Act 1975

The provisions of the NTNER Act and the FACSIA Amendment
Act and any acts done under or for the purposes of those
provisions:

  • are deemed to be special measures for the purposes
    of the Racial Discrimination Act 1975
  • are excluded from the operation of Part II of that
    Act.

Similarly, new Part 3B of the Social Security (Administration)
Act, and all actions and omissions in any way related to
it or the income management regime, are deemed to be special
measures and are excluded from the operation of Part II
of the Racial Discrimination Act in relation to specified
persons, as are certain acts of the Queensland Commission
and any provisions of Queensland laws or any acts done
by Queensland in relation to the establishment or operation
of the Queensland Commission.

For further information please contact:

Ros Kenway
Senior General Counsel
T 02 6253 7078 F 02 6253 7304
ros.kenway@ags.gov.au

Peter Jeffery
Senior General Counsel
T 02 6253 7091 F 02 6253 7304
peter.jeffery@ags.gov.au

Kym Lockley
Senior Executive Lawyer
T 02 6253 7461 F 02 6253 7316
kym.lockley@ags.gov.au

Helga Johnsen
AGS Counsel to Land Branch, FaCSIA
T 02 6121 4231 F 02 6121 4150
helga.johnsen@ags.gov.au

Important: The material in Express law is
provided to clients as an early, interim view for general
information only, and further analysis on the matter
may be prepared by AGS. The material should not be
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Please contact AGS before any action or decision is
taken on the basis of any of the material in this message.