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

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.

Are they concerned about their ability to control trade in alcohol and pornography where Aboriginal people live alongside large numbers of non-Aborigines? We’d have to be really serious about “saving” Aboriginal children to go so far as to ban grog altogether in regions with affected Aboriginal populations. However, it’s possible to make the public areas of mainly “white” towns dry: the NT is about to bring in such controls for Alice Springs.

General bans like these, where they don’t already exist in the states, would require state legislation. However, even in the NT where he has power to impose prohibition generally, Mr Brough only proposes to ban alcohol and pornography on Aboriginal land.

The Commonwealth could address concerns about pornography use in remote communities by banning the importation - and manufacture in the ACT - of X-rated DVDs. However, this would upset other powerful constituencies - again, we’d have to value Aboriginal children more highly than these interests, and it isn’t especially clear that we do. Perhaps a simpler answer would be to fund entertainers to visit remote communities to relieve the boredom that otherwise makes porn and drinking so attractive.

If Commonwealth power exists to take the plan national, what explains the focus on the NT? There are a couple of elements of the plan which might explain it but are at best distantly related to child abuse. Both relate to Aboriginal land and reflect earlier policy choices.

The NT is the only jurisdiction in which Commonwealth Aboriginal land rights legislation operates - land rights in other states exist under state law. The Commonwealth is dissatisfied with Territory and Aboriginal landowner reluctance to embrace its earlier proposal to have the NT Government take control of public areas on settlements, under voluntary 99-year leases which Aboriginal landowners pay for out of their mining royalty money. So now it proposes to take control of those areas itself compulsorily, paying compensation for the privilege. It also plans to scrap the existing permit system for these areas and access roads and airstrips.

The theory behind these reforms is that making remote communities more open to the public will encourage both business investment in them (which is good for their residents, who lack services the rest of us take for granted) and public scrutiny of them (which is good for their victims of crime). However, the Commonwealth has not really substantiated either limb of this theory, and there are real concerns about the impact of these reforms on child protection.

It’s likely that businesses will only be attracted to set up on remote Aboriginal land if there is scope for them to service other local markets (for example, miners). Amendments to the permits system will allow these customers, as well as the service providers, to enter Aboriginal communities without a permit. Yet the Wild-Anderson report suggests that there are already reasons for concern about interaction between miners and children.

There are problems with the permits system, but it also seems unlikely that the critical gaze of outsiders, particularly strangers, will help prevent child abuse. The Wild-Anderson report says abuse is not limited to communities on Aboriginal land. Further, jurisdictions without permits systems or with more open access to Aboriginal land - for example, NSW and Queensland - have comparable child protection problems.

Monitoring or discouraging child abuse is much too significant a problem to be entrusted to the other people who presently transit through remote Australia - miners, jackeroos, pilots, grey nomads, backpackers and evangelists.

Much recent critique of the permits system has come from journalists, who resent their lack of access to remote communities. These critics rarely mention that the permits system is not a barrier to delivery of government services: the NT government has always had power to grant permits to public servants, and politicians don’t need them at all.

The problem with addressing a “national emergency” by delivering a particular version of “tough love” in only one jurisdiction or particular communities is the obvious risk that people who don’t like it will vote with their feet.

Some Aboriginal people are so mobile that they already live in multiple jurisdictions, and some drinkers already drive hundreds of kilometres, crossing state borders, for a drink. Perhaps these difficulties can be addressed by state co-operation, but the Constitution doesn’t stand in the way of the Commonwealth addressing them unilaterally if it does so with care.

Indigenous child abuse is a “national emergency”. But just why this emergency necessitates interference with Aboriginal property rights or the opening of settlements to casual visitors is not demonstrated. Nor is the NT an island: a national emergency demands a genuinely national response.