Sarah Keenan, Critical Legal Thinking, 05 September 2012
Aboriginals burn Australian flag during protests in 2012.
Just over five years ago, on 21 June 2007, Australia’s then prime minister John Howard announced that rates of child sex abuse in the country’s Northern Territory aboriginal communities were so high that they constituted a national emergency. Drawing on the federal government’s constitutional power to override Territory legislation, and suspending Australia’s Racial Discrimination Act 1975, Howard led the federal government in rushing through the Northern Territory National Emergency Response Act 2007. Pushed through parliament in less than four weeks, there was an almost total lack of consultation with the aboriginal communities that were to be affected.
The Act and its associated amending legislation, which quickly became known as ‘the intervention’, introduced a range of racist and highly paternalistic measures to ‘prescribed areas’ of the Northern Territory, all of which were aboriginal communities. Those measures included a total ban on the possession and consumption of alcohol, compulsory income management for all welfare recipients (ration cards), compulsory installation of anti-pornography filters on all public computers as well as obligatory record-keeping of all computer users, the cutting back of the permit system for entry onto aboriginal land, the federal government takeover of local services and community stores as well as a ministerial power to suspend all elected councillors, the ban on Northern Territory courts from taking customary law into account when dealing with bail applications and sentencing, and compulsory rent-free five year leases of aboriginal land to the federal government. As an emergency piece of legislation the Act had a sunset clause of five years.
The intervention was heavily criticised by a wide range of NGOs, activist groups, and by UN Special Rapporteour on the Situation of Human Rights and Fundamental Freedoms of Indigenous People James Anaya. Despite the increased police powers of surveillance and arrest, the government failed to uncover any evidence that rates of child sex abuse in the Northern Territory were in fact very different from rates of child sex abuse in other Australian jurisdictions. Yet even with the government’s own statistics showing that there was no ‘national emergency’ concerning child sex abuse in the prescribed communities, the emergency Act remained in force until it reached its five-year sunset clause last month. The Act has essentially been replaced by the ten-year Stronger Futures in the Northern Territory Act 2012, which came into force on 16 July (the day the 2007 Act ceased) and ensures the continuation of most of the measures begun under the 2007 Act.
The compulsory leases of aboriginal land to the government met with significant aboriginal critique and resistance, and were the only intervention provisions to be challenged in Australia’s High and Federal Courts (in Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs
 FCA 1397 and Reggie Wurridjal, Joy Garlbin and the Bawinanga Aboriginal Corporation v The Commonwealth of Australia and The Arnhem Land Aboriginal Trust
 HCA 2). The government took out 64 compulsory five-year leases around the Territory in 2007. Its reasons for wanting the leases were always ambiguous, generally coming back to a need for ‘security of tenure’ while the government brought physical improvements and provided services to these areas.
Whether the government really needed such security in order to provide essential services is dubious considering that the government does not demand leases of non-aboriginal residential areas in order to provide them with running water, health clinics and other services, but at any rate – as the video below shows – standards of living, housing conditions and social services have not significantly improved in the Territory’s prescribed areas over the past five years, and has in some places become worse. Most of the government’s compulsory five-year leases expired on August 17, and although 34 of the 64 affected communities have already ‘voluntarily’ agreed to grant the government new 40-year leases, the community of Amoonguna is refusing to sign any further leases, and has written to the government asking it to remove all its workers by the end of this month or face charges of trespass. The government is yet to respond.
 Northern Territory Emergency Response Act 2007 (Cth), s12.
 Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory Emergency Response and Other Measures) Act 2007 (Cth), Schedule 4.
 Northern Territory Emergency Response Act 2007 (Cth), Part 5, Division 4; Part 7.
 As above, Part 4, Division 1.
 James Anaya, ‘Observations on the Northern Territory Emergency Response in Australia’ United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (2010).
 Barbara A. West and Frances T. Murphy, A Brief History of Australia (Infobase Publishing, New York 2010) 232; Housing Australian Government Department of Families, Community Services and Indigenous Affairs, ‘Closing the Gap: Monitoring Report July — December 2010′ Australian Government Department of Families, Housing, Community Services and Indigenous Affairs (2010). Section 6.7.