Central Land Council (N.T.) -Fact sheets on the Australian Government Intervention in the Northern Territory

From the Central Land Council

The short and easy guide to the Commonwealth intervention

*alcohol,* five year leases, *bail, *buildings, *business management, *town camps, *welfare, *community stores, *permits, *publicly funded computers, *pornography

*BAIL

what is the measure?

The National Emergency Response Act (Cth) makes clear that a court cannot take customary law or cultural practices into account in:

1. considering bail applications
2. determining sentences

However in considering bail a court must consider whether a person resides in a remote community.

In determining sentences the court cannot use customary law or cultural practices to lessen or increase the sentence.

where does it apply?

Anywhere in the Northern Territory .

when does it start?

18 August 2007

what are the possible problems?

The courts have no discretion to consider cultural matters and Aboriginal people may be more likely to go to jail.

where can I find out more?

Northern Territory National Emergency Response Act 2007 Part 6

*BUSINESS MANAGEMENT

what is the measure?

The National Emergency Response Act (Cth) gives the Minister a broad range of new powers over Entities which perform functions or provide services in Business Management Areas.

The Minister may:

1. unilaterally alter funding agreements
2. direct how services are to be provided where the Minister is not satisfied with the current service
3. direct how assets are used by Entities or acquire assets from Entities
4. appoint observers to attend meetings of Entities including committee meetings
5. 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 observers of meetings when required.

what is an Entity?

An Entity can be:

1. a community government council
2. an incorporated association under the Associations Act (NT)
3. an Aboriginal corporation under the Corporations Act (Cth), or
4. another Entity specified by the Minister that performs functions or provides services in a Business Management Area

where are Business Management Areas?

Business Management Areas are:

1. major Aboriginal communities being 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

2. other areas in NT declared by the Minister

when does it start?

18 August 2007

what are the possible problems?

The Government says these powers are reserve powers but the powers are not restricted in any way in the Act.

The powers are very broad in scope and there are many uncertainties as to how the rules could operate. For example, the Minister appears to be able to direct bodies that do not receive government funding.

where can I find out more?

Northern Territory National Emergency Response Act 2007 Part 5

*COMMUNITY STORES

what is the measure?

The National Emergency Response Act (Cth) introduces a Community Store licencing scheme.

Under the scheme the Minister’s Department may grant a Community Store licence having regard to the quality, quantity and range of groceries available, the finance and governance arrangements, and the store’s ability to participate in welfare management.

The Department may appoint officers to assess a Community Store on these or other matters the Government thinks fit. A store must cooperate with appointed officers otherwise offences apply.

The Department may revoke a licence if it thinks a licence condition has been breached or that the store is not being operated in a satisfactory manner.

If a store fails an assessment or has its licence revoked, the Minister may declare that the store assets become the property of the Australian Government.

what is a Community Store ?

A Community Store is a business where one of the main purposes is the sale of groceries and drinks, but does not include a takeaway shop or a roadhouse.

where does it apply?

The scheme applies in “prescribed areas” being:

1. all Aboriginal land granted under Land Rights Act (Cth)
2. all community living areas granted under Lands Acquisition Act (NT)
3. town camps declared by the Minister
4. any other area in the NT declared by the Minister

and any other premises in the NT specified by the Minister.

when does it start?

18 August 2007

what are the possible problems?

The scheme does not make it compulsory to have a licence nor must a store cease to trade if a licence is revoked. However, store assets can be seized if the store fails an assessment or has its licence revoked.

The scheme does not apply to stores off Aboriginal land unless specified by the Minister.

where can I find out more?

Northern Territory National Emergency Response Act 2007 Part 7

*PUBLICLY FUNDED COMPUTERS

what is the measure?

The 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.

what is a publicly funded computer?

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.

where are Prescribed Areas?

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 declared by the Minister
4. 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.

where can I find out more?

Northern Territory National Emergency Response Act 2007 Part 3

*PORNOGRAPHY

what is the measure?

The Family and Community Services Act (Cth) bans the possession and supply of pornographic material within Prescribed Areas.

Pornographic material captured in the ban includes:

1. publications which are classified restricted category 1 or 2 or films which are classified X18+ (which generally contain real depictions of sexual activity)

2. 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) .

The Act also gives police all necessary powers in Prescribed Areas to seize and destroy material which may be prohibited.

These measures go further than existing restrictions under Classification of Publications, Films and Computer Games Act 2005 (NT).

where are Prescribed Areas?

Prescribed Areas are:

1. all Aboriginal land under Land Rights Act (Cth)
2. all community living areas granted under Lands Acquisition Act (NT)
3. town camps declared by the Minister
4. other area in the NT declared by the Minister.

when does it start?

15 September 2007

where can I find out more?

Office of Film and Literature Classification

Family and Community Services Act 2007 Schedule 1

*STATUTORY RIGHTS IN BUILDINGS

what is the measure?

The Family and Community Services Act (Cth) provides for statutory rights in Works Areas which have government funded buildings. The stated purpose is to protect the investment of any government.

The government will have statutory rights to occupy, use, construct, maintain and repair any building or infrastructure in a Construction Area which is:

1. ded by the government or partly funded by the government where the Minister determines statutory rights apply
2. not covered by a lease (including the 5 year leases), and
3. been consented to by the land council.

If statutory rights apply, the government and the land council must negotiate in good faith for a lease over the Construction Area. If a lease is in place, the statutory rights no longer apply.

what is a Construction Area?

A Construction Area is an area determined by the Minister which covers:

1. the construction of any building or infrastructure including water, electricity, gas, sewerage and telecommunications, or

2. any upgrade of any building or infrastructure over $50,000.

where does it apply?

Statutory rights can apply on any Aboriginal land granted under Aboriginal Land Rights ( Northern Territory ) Act 1976 (Cth) including outstations.

when does it start?

18 August 2007

what are the possible problems?

When $50,000 is spent on a building by a government, ownership of the building will pass from the land trust to the government funding the upgrade.

The land trust cannot negotiate a lease with another party over any building where a government still holds statutory rights.

where can I find out more?

Family and Community Services Act 2007 Schedule 3

*PERMITS

what is the measure?

The Family and Community Services Act (Cth) makes a key change to how permits apply in major communities. Permits will not apply to ‘common areas’, airstrips and access roads for 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:

1. parliamentarians and government workers will no longer require permits
2. anyone attending a court hearing does not need a permit, and
3. 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.

which communities are affected?

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.

when do the changes start?

No permits for parliamentarians and government workers – 18 August 2007

Other changes – a date to be decided by the Government.

what are the possible problems?

Permits will be able to be used effectively as a policing tool in communities.

Definition of ‘common areas’ is not clear and could easily lead to disputes.

Which access roads will be permit free has not been determined by the Minister.

where can I find out more?

Family and Community Services Act 2007 Schedule 4

*ALCOHOL

what are the Australian Government measures?

The National Emergency Response Act (Cth) makes it an offence to take, possess, drink or supply alcohol on all Aboriginal land and community living areas. The Minister may also declare further areas in the NT.

The Act also makes it an offence for any alcohol outlet not to record the name, address and place of consumption for purchases over 1,350ml of alcohol (3 cases of beer).

These measures started on 18 August 2007 but the new offences do not start until 15 September 2007.

what are the NT Government measures?

Amendments to the Liquor Act (NT) provide new powers which allow:

1. the Minister to determine additional licence conditions including opening hours, type and amount of alcohol that may be sold, requirements for proof of identity and keeping records of sales

2. an inspector to search a premises, or search or retain a vehicle where an alcohol offence is reasonably suspected
3. the Minister to declare a special restricted area making it an offence to take, possess, drink or supply alcohol in that area

Under these new powers the NT Government has indicated it will implement alcohol restrictions in town camps.

The changes start when gazetted by the NT Government.

Under the existing provisions of the Liquor Act Alice Springs was declared a dry area commencing on 1 August 2007.

what are the possible problems?

At present the alcohol bans target places of drinking and do not target alcohol outlets including roadhouses.

where can I find out more?

Licensing Commission

(08) 8935 7777

http://www.nt.gov.au/justice/commission//

Northern Territory National Emergency Response Act 2007 Part 2 (Cth)

Liquor Legislation Amendment Act 2007 (NT)

*5 YEAR LEASES

what is the measure?

The National Emergency Response Act 2007 (Cth) grants 5 year leases to the Australian Government over major Aboriginal communities. No negotiation or lease document is required.

All existing leases and other interests in communities are protected.

The leases give the Australian Government rights to exclusive possession, to repair or demolish any existing buildings and infrastructure, and to terminate the lease at any time.

No rights are noted in favour of residents or traditional landowners.

The Government may pay rent to traditional landowners but it is not required. Compensation may be payable, but it is not guaranteed.

which communities have leases?

The leases apply to:
Group 1 communities: Ali Curung, Alpurrurulam, Amoonguna, Ampilatwatja, Areyonga, Atitjere, Daguragu, Hermmansburg, Kalkukatjara, Kintore, Nyirripi, Papunya, Pmara Jutunta, Santa Teresa, Titjikala, Wallace Rockhole, Wutunugurra, Yuendumu

Group 2 communities: Canteen Creek, Engawala, Haasts Bluff, Imangara, Imanpa, Lajamanu, Laramba, Mt Liebig, Nturiya, Tara , Willowra, Wilora, Yuelamu

Any of the following land decided by the Government: other Aboriginal land, other community living areas, land at Finke held by Aputula Social Club or Aputula Housing Association, land at Kalkarindji held by Daguragu Community Government Council.

when do the leases start?

Group 1 communities – 18 August 2007
Group 2 – on a date to be decided by the Government
[note: no reason is given for splitting the communities into two groups]

what are the possible problems?

The leases do not guarantee Aboriginal people right of residence in communities – it is not clear what rights Aboriginal people have and whether the Government could evict Aboriginal people from their own communities.

where can I find out more?

Northern Territory National Emergency Response Act 2007 Part 4

*WELFARE

what is the measure?

The Social Security Act (Cth) introduces a system of income management for welfare payments including income support, pensions and baby bonus.

Under the system a portion of welfare payments can be set aside and managed by Centrelink in certain situations as follows:

what is a declared NT area?

A declared NT area can be:
1. Aboriginal land under Land Rights Act (Cth)
2. community living areas granted under Lands Acquisition Act (NT)
3. town camps declared by the Minister
4. Aputula or Kalkarindji
5. any other area in the NT declared by the Minister

when do the new powers start?

18 August 2007. The Australian Government has indicated it will roll out changes community by community.

what are the possible problems?

The trigger for a declared NT area covers everyone without any way out for responsible people.
The triggers for lack of school attendance and child neglect are not well defined.

There are no rights of appeal for people in a declared NT area

where can I find out more?

Social Security Act 2007 Schedule 1

*TOWN CAMPS

what is the measure?

The National Emergency Response Act 2007 (Cth) gives the Commonwealth Minister new powers over town camps in the NT.

Under the Act the Commonwealth Minister now has the same powers as NT Minister to administer, forfeit for breach or resume town camp leases under the Special Purposes Leases Act (NT) and the Crown Land Act (NT). The notice provisions for forfeiture or resumption have been reduced from 6 months to 2 months.

The Commonwealth Minister has an additional power to compulsorily acquire town camp leases without any notice or process and vest a freehold title in itself.

If leases are acquired, compensation may be payable but it is not guaranteed.

which town camps are affected?

The powers apply to town camps in Alice Springs, Darwin , Katherine, and Tennant Creek.

when do the new powers start?

18 August 2007

what are the possible problems?

The new compulsory acquisition power does not follow the normal rules including giving notice to the leaseholders.

If the Commonwealth Minister forfeits or resumes a lease, it is not clear what the Minister can then do – the Minister has no power to grant new interests in that land.

The Act includes a power to modify the Special Purposes Leases Act (NT) by regulation – this means the Minister can make new laws about town camps without taking them through the Parliament.

where can I find out more?

Northern Territory National Emergency Response Act 2007 Part 4

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