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Doesn’t a ‘national emergency’ require a national response?

By Jennifer Clarke - posted Wednesday, 4 July 2007

One puzzling thing about the Commonwealth plan to “save” Aboriginal children is that it only applies to the Northern Territory. This is said to be for constitutional reasons, but it’s not easy to identify what those reasons are.

The Commonwealth can do remote communities a huge service by sending them the police and other personnel that they so desperately need. But such communities do not only exist in the NT. There are twice as many Aboriginal people in Queensland and New South Wales as there are in the NT, and just as many in WA. In many parts of these states, people live in similar circumstances to the residents of remote NT communities. Aboriginal problem drinkers and child abusers live all over the country (as do Aboriginal upstanding citizens and teetotallers).

Canberra can have federal police sworn in to serve with state forces as well as territory ones. The NT is not the only jurisdiction in which they could enforce existing laws declaring whole communities “dry”, petrol sniffing illegal and town streets off-limits for drinking: some or all of these laws exist in Western Australia, South Australia, New South Wales and Queensland.


If state laws are inadequate, the Commonwealth has ample power under section 51(xxvi) Constitution to regulate supply of alcohol and pornography to Aboriginal people where this would address the crime crisis in particular communities. This power, conferred by the 1967 referendum, would also allow protection of Aboriginal people from “white” pedophiles or grog traders. If necessary, it would enable a takeover of “community” management in the states, just as Parliament used it in the Whitlam and Fraser years to override the Bjelke-Petersen government’s discriminatory Queensland reserve system.

In constitutional law terms, this “races” power is very similar to the corporations power, which the Commonwealth used to enact WorkChoices. Thus the prospect of state resistance can’t be what is holding Messrs Howard and Brough back. Federal power to regulate trade (in this case, in grog and porn) across state borders is not a concern under s92 Constitution as this provision is directed at protectionist state laws.

Doctors (other than army medics) can’t be conscripted to conduct medical checks in the states, and it’s possible that this constitutional limitation (in section 51(xxxiiA Constitution) extends to the territories as well. However, the most ill-considered element of the NT plan - compulsory checks of children for sexual assault - is now being down-played.

If Commonwealth constitutional power is involved, the Commonwealth can justify legislating to use the army to implement a plan like this in the states as well as the territories. Or it could second military personnel to the states, as it does during natural disasters.

Concerns about racial discrimination need not hold the Commonwealth back: the Constitution may not preclude discriminatory laws. If the laws are framed sensitively, imposing alcohol and other prohibitions on some Aboriginal communities could be defended as in their interests and therefore non-discriminatory - unlike the 1998 amendments to the Native Title Act, which overrode native title in the interests of other land users.

While the native title amendments have been severely criticised by the UN Committee on the Elimination of Racial Discrimination, they have not been challenged in the High Court. This is because of a risk that, despite the inclusive sentiment of the 1967 referendum, the judges will interpret the power it conferred as authorising any laws which single out Indigenous people, even discriminatory ones. As the Commonwealth Racial Discrimination Act 1975 is overtaken by later federal laws, even a discriminatory national Aboriginal child “rescue” legislative package would not infringe it - or state non-discrimination Acts, which are overridden by federal laws.


So why don’t Mr Howard and Mr Brough go national with their response to the “national emergency”?

Perhaps they are concerned to start small? Fair enough, but they haven’t really said so. Perhaps they can’t afford, or don’t want, to pay for improving conditions in remote communities in the states? This would be consistent with the Commonwealth’s historical approach to Indigenous affairs, but Minister Brough has said with some conviction that he wants to deal with the problem no matter what the cost.

Perhaps they think that the states are dealing better with Aboriginal child sexual abuse than the NT? It might be possible to say this about WA, but they can’t possibly think it about NSW.

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About the Author

Jennifer Clarke is a Canberra lawyer

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