influx

3 years

3 years is the magic criminal number. No voting and if you’re a blackfella 3 years is when the ACC steps in. Are there other operations? 

Legal Violence

The bit of the FCSIA (NTNER) 2007 Bill that Bob keeps railing against:

 ”Australian Crime Commission Act 2002 

1  Subsection 4(1)
Insert:

child means any person who is under 18 years of age.
2  Subsection 4(1)
Insert:
child abuse means an offence relating to the abuse or neglect of a
child (including a sexual offence) that is punishable by
imprisonment for a period of 3 years or more. 

…

4  Subsection 4(1) Insert:
Indigenous person means a person (including a child) who is:
 (a) a person of the Aboriginal race of Australia; or  

 5  Subsection 4(1) Insert:

Indigenous violence or child abuse means serious violence or
child abuse committed by or against, or involving, an Indigenous
person.
6  Subsection 4(1)
Insert:
relevant crime means:
 (a) serious and organised crime; or
 (b) Indigenous violence or child abuse.
Note: See also subsection (2) (which expands the meaning of relevant crime
in certain circumstances).

…

9  Subsection 4(1) 24 
Insert: 25 
serious violence means an offence involving violence against a
person (including a child) that is punishable by imprisonment for a
period of 3 years or more.”

So if we follow the logic here we see that the Australian Crimes Commission is vested with the power to investigate any offence involving violence (and/or abuse) and an indigenous person (anywhere in Australia), with the proviso that it is serious enough to carry a penalty of 3 years imprisonment or more.

The rather familiar striations of racial laws come into play, the ACC can investigate anything where an indigenous person is involved, as victim, as suspect etc. Need to track down a list of sentence guidelines, 3 years sounds to me like it would include pretty much any violent crime.   

Legislation Musing

Each piece of the NTNER legislation contains provisions that designate it special measures for the purposes of the Race Discrimination Act 1975 (RDA), or positive discrimination, but at the same time, separately, it excludes Part 2 (the part that bans racial discrimination) of the RDA from operating. 

In terms of the RDA this makes the designation of the legislation as “special measures” useless, as the clauses that special measures act as exceptions to are excluded. However, as is pointed out on theory of the offensive, beyond just allowing the government to run their spin, the “special measures” guise also shorts out a constitutional argument against the legislation that the race power provision only allows beneficial race laws. But this point is probably moot anyway as the main precedent the Hindmarsh Bridge stuff already ruled that section 51 of the constitution only plays a role with new legislation, and the government is always free to repeal its own laws. (But then again the NTNER Act, itself, would i think count as new legislation even if the rest doesn’t and that is the bill with the crime commission stuff, (not to mention the fact that we are still waiting on the bill digest for this one, which is supposed to contain the parliamentary library’s discussion of the RDA)).

The legislative force over and above the the designation of special measures by excluding the RDA part 2 are two fold:

1) There is a specific exemption in the RDA for the exemptions garnered by special measures. As in the following (clause 10(3)) still applies to special measures:

10  Rights to equality before the law
    (1)    If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
    …
    (3)    Where a law contains a provision that:
    (a)    authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
    (b)    prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.

Hence presumably the government is worried that the atleast some parts of the legislation contravenes what even special measures are not allowed to contravene.

2) Furthermore by suspending part 2, the government makes the legislation immune from legal challenge that these laws, in actual fact, do not constitute a benefit and so cannot be special measures. As even if this were found to be the case, the racial discrimination act has been neutralised by the legislation.

In short what we have here (sampled from the “Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007”):

4 Racial Discrimination Act
(1) Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.
(2) Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.
(3) Subsections (1) and (2) do not apply to amendments or repeals made by Division 2 or 3 of Part 1 of Schedule 2 (law enforcement) to this Act.
(4) In this section, a reference to:
(a) any acts done includes a reference to any failure to do an act; and
(b) provisions of this Act includes a reference to provisions of other Acts that are inserted, amended or repealed by the provisions of this Act.

Is, with the exception of 4(3), boilerplate for nullifying the applicability of the racial discrimination to legislation.

But given the various legal analyses of the legislation, it seems possible that whatever their “we support the legislation if not all the detail”, if the ALP’s amendments that change the language “are excluded from the operation of” to “comply with the operation of” actually got affirmed the legislation would become untenable.