Stronger Futures would not beat a legal challenge: judge

BY AMY MCQUIREMARCH 20, 2012

 Originally published in Tracker Magazine.

Former Chief Justice of the Family Court Alastair Nicholson says the Stronger Futures legislation does not comply with the Racial Discrimination Act. (AAP IMAGE/MARK GRAHAM)

NATIONAL: A former family court justice has labelled the Stronger Futures consultations a “charade” that would not stand up to a High Court challenge, writes AMY MCQUIRE*.

When the Howard government launched the original Northern Territory intervention, the immediate charge was that it had ridden roughshod over the rights of Aboriginal people, all without proper consultation.

This month, as Parliament debates laws that will continue many of the planks of the intervention, the Gillard government faces the same charges.

The controversial Stronger Futures legislation has gone through the lower house and is currently before the Senate.

Debates in the House of Representatives began on the same day of the ALP leadership spill, and continued largely unnoticed by mainstream media.

There are now concerns it could be passed before the Senate committee probing the three bills in the Stronger Futures package hands down its final report (due by the middle of the month).

Stronger Futures is intended to fill the gap when the Northern Territory Emergency Response (NTER) expires in August this year.

The controversial legislation has largely continued the aspects of the Northern Territory intervention, which was launched by the Howard government in 2007 following a media panic over reports of child sexual abuse in Northern Territory Aboriginal communities.

Like the intervention before it, it has attracted bipartisan support from both major parties and is expected to pass Parliament.

If it does, the legislation will have a sunset clause of 10 years, meaning that Northern Territory Aboriginal communities would be looking at a 15-year intervention.

The Gillard government has claimed that it has done it right this time – that it has consulted with Aboriginal communities through a six-week period of meetings held in the Northern Territory last year.

But there are concerns this doesn’t constitute ‘free, prior and informed consent’, which the federal government needs to obtain in order to make Stronger Futures comply with the Racial Discrimination Act (suspended by the Howard government under the original intervention and later ‘reinstated’ by Labor).

Last month, the Senate inquiry held hearings in the Territory.

Opposition Indigenous affairs spokesman Nigel Scullion told media that it was clear from the hearings that the federal government had not properly consulted with Aboriginal people affected, and that many still didn’t understand the consequences of the legislation. It’s been a concern raised in several quarters.

Former Chief Justice of the Family Court Alastair Nicholson is part of the group Concerned Australians, which has published a transcript of 10 consultations held by the Gillard government.

He believes that based on the transcripts, a court would not agree that it amounted to free, prior and informed consent.

“I believe that if a court sees (the transcripts) it will see it’s a sham. While I don’t believe in litigation as a first step to persuade government to act lawfully, I am reminded that at some point, the government has to be attacked in the courts when it persists in legislation which is unlawful,” Mr Nicholson told a forum at Parliament House last month.

“There is a very strong argument this legislation is unlawful and if it’s passed it won’t stand up to a legal challenge.”

Mr Nicholson says that the legislation “is almost impossible to justify… under the provisions of the Racial Discrimination Act (RDA)”.

“…In my experience, the courts of this country – particularly the High Court – are not stupid.

“If governments tried to argue that the legislation was not racially discriminatory on the basis that it purports to apply to the whole of the country, but almost every aspect of it still applies only to Aboriginal people, then that legislation could be struck down.”

Labor claims it has made one of the most controversial aspects of the intervention – compulsory income management – non-discriminatory by expanding it to five other disadvantaged communities around the country.

It also claims its policy to extend a trial (School Enrolment Attendance Measure or SEAM) linking school attendance to welfare payments complies with the RDA because it is in other parts of the country.

Mr Nicholson also says the government’s use of the term “special measures” to describe the other provisions of the Stronger Futures legislation – alcohol and porn bans, land reforms, food security and removing customary law from sentencing and bail decisions – would also not stand up in court.

“The government presumably tries to argue that these are special measures under the RDA and to justify that they’ve been engaged in this charade of consultations throughout the NT in order to get approval from Aboriginal people.

“… It seems to me what (the government) seems to regard as its obligation is to consult in a way determined by (the government), not by Aboriginal people.”

Greens Senator Rachel Siewert says it is clear the consultations failed.

“Make no mistake, Stronger Futures is just an extension of the intervention,” Senator Siewert told a Stronger Futures protest outside Parliament House last month.

“This legislation is flawed legislation. I was in the NT for the senate hearings… all those people said the consultation process around Stronger Futures was a failed, flawed process.

“This report does not reflect the wishes of the community. That was really, really clear. The community opposes and continues to oppose the intervention. They clearly see Stronger Futures for what it is – paternalistic, top-down legislation that is not meeting the needs of the community.”

The lack of consultation was also raised in the hearings in Canberra last week, with both the National Congress of Australia’s First Peoples and the Human Rights Commission stating it was inadequate.

Jumbunna Indigenous House of Learning adjunct professor Eva Cox said the government had carried out the consultations in an “unethical way” by using consultations data to back up pre-determined outcomes on Stronger Futures.

Meanwhile, the inquiry into Stronger Futures has attracted more than 400 submissions, the vast majority of them against the legislation.

Several submissions also raise concerns about the inadequate time allotted for submissions to be made to the inquiry.

The opening of the process began over the Christmas period, which raised concerns about the ability of stakeholders to make submissions.

It was a concern raised by Australia’s only federal Aboriginal MP, Liberal Ken Wyatt, in debates in the lower house last month.

Mr Wyatt said he supported Stronger Futures, but said it was a “pity” it was being debated before the Senate committee had handed down its report.

He also urged Indigenous affairs minister Jenny Macklin to consider the recommendations of the Senate inquiry.

“I have seen in the media reports that there is some anger about the lack of consultation. There is an expression that is often used in Aboriginal communities of ‘seagulls’ who fly in and fly out but who never leave a solution.

“They talk and then disappear. I would hope that we do not contribute to that concept in the implementation of the programs that support this bill.”

Mr Wyatt’s office did not respond to questions from Tracker about his support for Stronger Futures.

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