home | news l

Scheme 'based on flawed opinions'

By Chris Merritt, Legal affairs editor

29 November 2007 - Pressure to water down the federal intervention in the Northern Territory increased yesterday when former Family Court chief justice Alastair Nicholson said parts of the scheme were based on flawed assumptions about Aboriginal society.

Provisions imposing penalties on parents for the misbehaviour of their children wrongly assumed that all Aborigines lived in nuclear families, Mr Nicholson said.

This had little relevance in many indigenous communities and ignored the fact that the birth parents of many Aboriginal children did not have the final say on their conduct.

Mr Nicholson, who retired from the Family Court in 2004, made a sweeping critique of the intervention last night while delivering the Lionel Murphy memorial lecture in Sydney.

As well as identifying flawed assumptions about the nature of Aboriginal society, he also accused the Howard government of harbouring an assimilationist agenda and defended the use of Aboriginal customary law.

Preventing judges from taking account of customary law when passing sentence was disgraceful, he said. Such an approach did not apply to Jewish or Islamic people or others with different customs or practices, he added.

"It is utterly unjust and stupid for judges to be prevented from taking these matters into account in determining the degree of criminality of the offender," he said.

Mr Nicholson's critique comes after the incoming Rudd government indicated its willingness to change parts of the intervention. These included reintroducing the controversial permit system, which regulates non-indigenous access to communities, and modifying rather than scrapping the Community Development Employment Projects work-for-the-dole scheme.

Mr Nicholson said abolishing the permit system and the CDEP scheme were among the key measures that were "heavy and punitive and calculated to gain maximum political capital".

The intervention had restricted the rights of indigenous people in ways that would not be tolerated by the wider community.

"It is discriminatory and racist and bundles all indigenous people together as potential pornographers, child molesters and persons habitually addicted to the excessive consumption of alcohol," he said.

Although the intervention had been presented to the community as a way of saving children from abuse, Mr Nicholson said most of the measures had litle to do with the sexual abuse of children.

Property and land acquisition powers were troublesome, "particularly given the (former) government's apparent assimilation agenda".

He said withdrawing government benefits from the parents of children who failed to attend school took no account of the fact that in many indigenous communities decisions on what children did were taken by the extended family, not the birth parents.

It also ignored the child adoption practices of Torres Strait Islanders in the territory.

"There is a well-established custom of children being 'given' to siblings or other blood relatives," he said. "However, the obligation of making them attend school will fall on the biological parents under this legislation."

A spokesman for Kevin Rudd declined to comment on Mr Nicholson's lecture until the new government takes office.

Source: The Australian

Further information: NT intervention issues page - includes news index and external links

|| click to go to the top of this page