EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Families, Community Services and Indigenous Affairs
Stronger Futures in the Northern Territory Act 2012
Stronger Futures in the Northern Territory (Food Security Areas) Rule 2012
Section 119 of the Stronger Futures in the Northern Territory Act 2012 (the Act) provides that the Minister for Families, Community Services and Indigenous Affairs (the Minister) may, by legislative instrument, make rules prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Act consists of the tackling alcohol abuse, land reform and food security measures. All measures have been designed as special measures, consistent with the Racial Discrimination Act 1975 (RDA). Part 4 of the Act contains the food security measure; its object being to enable special measures to be taken for the purpose of promoting food security for Aboriginal communities in the Northern Territory (NT).
Subsection 38(2) of the Act provides that the food security area is the whole area of the NT other than an area that is prescribed by the Minister under subsection 74(1) as not in the food security area. The Stronger Futures in the Northern Territory (Food Security Areas) Rule 2012 prescribes areas that are not in the food security area.
Background
Central to the food security measure of the Act is the licensing of community stores. Community stores licensing addresses long-standing concerns that some stores in Indigenous communities are poorly managed and sell low quality goods at high prices.
Under the Act, the licensing scheme only applies in the ‘food security area’, which is defined in subsection 38(2) as the whole area of the NT other than an area prescribed by the rules. This legislative instrument prescribes areas of the NT that are not in the food security area, and therefore not being subject to the licensing scheme. In these areas consumer awareness, competition and the variety of food, drink and grocery outlets present means that licensing is not necessary.
The Act does not impose any conditions that need to be satisfied before the power to make the rule may be exercised.
The rule is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
The rule commences on the day after it is registered.
Consultation
A public consultation process on proposed areas that are not in the food security area was conducted between 10 July and 15 August 2012. The areas proposed in the consultation process were the same as the ones described in the rule. The Minister wrote to the following stakeholders:
- Outback Stores
- Arnhem Land Progress Aboriginal Corporation (ALPA)
- Metcash (responsible for IGA Supermarkets)
- Woolworths Ltd
- Coles Supermarkets Australia Pty Ltd
- Local Government Association of the Northern Territory
- Chambers of Commerce NT
- National Association of Retail Grocers of Australia
- Aboriginal Medical Services Alliance Northern Territory
- Julalikari Council Aboriginal Corporation (Tennant Creek)
- National Congress of Australia’s First Peoples
- Menzies School of Health Research
- Central Land Council
- Northern Land Council
- Anindilyakwa Land Council
- Tiwi Land Council
- Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council
- National Aboriginal Community Controlled Health Organisation.
An internet website also invited submissions from anyone interested in the area proposals.
Only one submission was received as a result of the above actions. This was supportive of the proposals put out for comment.
Explanation of provisions
Rule 1 sets out the name of the rule, being the Stronger Futures in the Northern Territory (Food Security Areas) Rule 2012.
Rule 2 provides that the rule commences on the day after it is registered.
Rule 3 provides for a definition of the terms ‘ASGS 2011’ and ‘ASGC 2006’. ASGS 2011 means the document produced by the Australian Bureau of Statistics called Australian Statistical Geography Standard (ASGS): Volume 1 – Main Structure and Greater Capital City Statistical Areas, July 2011 (ABS Catalogue No. 1270.0.55.001). ASGC 2006 means the document produced by the Australian Bureau of Statistics called Statistical Geography: Volume 3 – Australian Standard Geographical Classification (ASGC) Urban Centres/Localities, Australia, 2006 (ABS Catalogue No. 2909.0).
Rule 4 prescribes which areas are not in the food security area.
Subrule 4(1) provides that the rule is made for section 74(1) of the Act.
Subrule 4(2)(a) lists the ASGC 2006 areas that are not in the food security area. They are:
700200 Alice Springs;
703600 Katherine;
705000 Nhulunbuy;
706800 Tennant Creek.
The descriptions and maps in Attachments A-D represent what the ASGC boundaries cover. They are for explanatory assistance to readers. Only the original ASGC boundaries at the time of the making of the rule should be relied upon in determining where the areas not in the food security area are. The attached maps were developed from ASGC mapping data, with main roads shown to assist in their interpretation.
Alice Springs
The Alice Springs area approximates the Municipal area of the Alice Springs Town Council. This area boundary will be referred to as the boundary.
The northern most point of the boundary commences on the Stuart Highway to the north of Ilperle Tyathe (Warlpiri Town Camp). The boundary runs on a south westerly track to the western side of the railway line, continues to a point approximately 400 metres west to the intersection of Smith Street and Lovegrove Drive and encases the suburbs of Braitling and Ciccone.
The boundary continues south and west of the Yeperenye School Lovegrove Drive campus and turns northwest. The boundary continues to the northwest encasing the suburbs of Araluen, Larapinta and Stirling heights. The boundary follows the west side of Stirling Heights and intersects with Larapinta Drive at Albrecht Drive.
Larapinta Drive forms the south-western boundary until turning further south at Zeil Street along a line that would intersect with Bradshaw Drive at the Francis Street intersection and encases the suburb of Araluen.
The boundary runs southeast approximately 100 metres to the west of Bradshaw Drive until meeting the Stuart Highway and encases the suburb of Gillen.
The boundary continues south along the Stuart Highway until at the southern side of “The Gap” it turns northeast along the Ross Highway, then continues along Ragonesi Road to the southeast.
The boundary returns to a northerly track approximately 400 metres short of the Ragonesi Road and Stegar Road intersection and continues north to the top of the McDonald Range and east along the range for approximately one kilometre before descending north to meet Stephens Road at The Links intersection in the suburb of Desert Springs.
From Stephens Road at The Links intersection the boundary runs east and north for short distances and continues around Lewis Gilbert Park, the Golf Course, Range Crescent, The Fairway and continues to the east of the Olive Pink Flora Reserve until Sadadeen Road at the Stott Terrace intersection.
The boundary continues east along Sadadeen Road until it intersects with Kilgariff Crescent. The boundary runs northeast and encases the residential blocks of Sadadeen. The boundary crosses Undoolya Road and continues north around the suburb following Kurrajong Drive.
At the western intersection of Kurrajong and Hibiscus streets the boundary turns abruptly west then north to a point approximately 200 metres to the northeast of the end of Reus Court. The boundary then runs west until crossing the Todd River to encase the suburb of East Side. After crossing the river the boundary first runs southwest behind Saint Philips School before swinging northwest staying to the east of Charles Creek and Anmatyerre Town Camps.
The boundary meets the Stuart Highway 200 metres north of the Head Street intersection and continues north to the Basso Road intersection. The boundary loops to the east around the Palmer’s, Basso’s, and Mount Nancy Town Camps until returning back to the Stuart highway. The boundary then runs north along the Stuart Highway until meeting up with the northern most point of the exclusion region boundary to the north of Warlpiri Town Camp.
A map is at Attachment A.
Katherine
The Katherine area encompasses the township of Katherine.
The Katherine River south of the Stuart Highway shapes the western boundary.
North of the Stuart Highway, the region extends to both sides of the Katherine River and includes an area east of McKeddie Road.
Following a line drawn from a point at the end of McKeddie Road the exclusion region continues east across the Katherine River to Cameron Street. From Cameron Street, staying on the east side of Katherine River the boundary extends north to Knotts Crossing Road and east to Morris Road, this marks the northern edge of the boundary.
The eastern boundary tracks south from its northerly point near Knotts Crossing, encompassing the urban edge of the township. The boundary remains west of aline from the ends of Callistemon Drive, Casuarina Street and Cyprus Street north of the Stuart Highway to Crawford Street south of the Stuart Highway.
From the end of Crawford Street the boundary returns in a westerly trajectory toward Bicentennial Road. Staying to the east of Bicentennial Road it then tracks in a southerly path and terminates at a point on the Victoria Highway south of Zimin Drive and approximately eight hundred metres north of the rail line.
A map is at Attachment B.
Nhulunbuy
The Nhulunbuy area encompasses the township of Nhulunbuy and includes everything within the Township lease and can be roughly defined by the following boundaries:
- Beagle Circuit and East Woody Road form the western boundary of the exclusion region.
- The northern and eastern boundary is formed by the Arafura Sea.
- Cape Wirrwawuy forms the northerly boundary.
The southern boundary is shaped by Boundary Road (unsealed) and continues along the lease boundary line south of Husness Avenue (and its neighbouring streets) to the junction of Beagle Circuit and Melville Bay Road.
A map is at Attachment C.
Tennant Creek
The Tennant Creek area surrounds the living area of the Tennant Creek township.
The northern point of the boundary starts on the Stuart Highway at the Warrego Road intersection and runs south to the Airport boundary. It then follows the Airport boundary to the west for approximately two kilometres.
The boundary turns south following the Airport boundary for approximately one kilometre, and follows the end of the Airstrip continuing to the south western corner of the Airport approximately 600 metres west of the Airport terminal. From this point the boundary tracks west for approximately one kilometre then turns south, and continues across Udall Road and Standley Road for approximately two and an half kilometres.
The boundary meets the northern boundary of the sewerage treatment works. The boundary runs around the southeast of the treatment works to the southernmost point of the treatment works boundary.
The boundary runs east-southeast from the treatment works to cross the Stuart Highway. After crossing the highway, the boundary runs for approximately two kilometres northeast and then turns north for a further two kilometres until it meets Peko Road.
The boundary turns east on Peko Road for 100 metres and then north for approximately two kilometres to Kaczinsky Road. It the turns west at Kaczinsky Road, goes around the racetrack and back to Kaczinsky road before joining with the northern point of the boundary on the Stuart Highway.
A map is at Attachment D.
Subrule 4(2)(b) lists the ASGS 2011 areas that are not in the food security area. The following areas, which are not in the food security area, are:
70101 Darwin City;
70102 Darwin Suburbs;
70104 Palmerston;
71031 Howard Springs;
71032 Humpty Doo;
71034 Virginia.
The descriptions and map in Attachment E represent what the ASGS boundaries cover. They are for explanatory assistance to readers. Only the original ASGS boundaries at the time of the making of the rule should be relied upon in determining where the areas not in the food security area are. The attached map was developed from ASGC mapping data, with main roads shown to assist in its interpretation.
This area is referred to as the ‘Northern region’ and encompasses the cities of Darwin and Palmerston and includes neighbouring parts of the Litchfield Shire.
The area is roughly defined by the following boundaries and land marks:
The western boundary is defined by the Elizabeth River from its southern point near the intersection of Jenkins Road and Bees Creek Road to the northern shore line (city side) of East Arm in Darwin harbour.
The southern boundary is marked by a line that extends from the intersection of Jenkins Road and Bees Creek Road and follows a straight line due east to the end of Goode Road.
From a point at the eastern end of Goode Road the boundary tracks north and northwest encompassing McMinns Lagoon, Howard Springs and Knuckey Lagoon.
The eastern extremities of this region are marked by everything west of the Black Jungle Conservation Reserve and south of Benhams Lagoon. At this point the boundary follows Girraween Road west for a short distance. The boundary continues north from the intersection of Girraween Road and Carruth Road, it crosses Gunn Point Road and follows the border of the Howard Springs Hunting Reserve along its east, north and western boundaries.
From a point on the western side of Howard Springs Hunting Reserve the boundary continues in a westward direction to the Micket Creek Shooting Complex, Holmes Jungle Nature Park and almost to Karama. The boundary follows a northerly track running parallel with, and around five kilometres to the east of, Lee Point Road and encompasses all of the Darwin northern suburbs to the west and south including Leanyer, Wanguri, Muirhead, Lions and Tiwi.
Casuarina Coastal Reserve shapes the northwest boundary to Rapid Creek and includes the suburb of Brinkin. To the west of Rapid Creek the boundary is defined by the Beagle Gulf shore line, following Casuarina Drive, East Point, Fannie Bay, Myilly Point, Larrakeyah, the City, the wharf precinct and Frances Bay.
A map is at Attachment E.
Attachment A – Alice Springs area
Attachment B – Katherine area
Attachment C – Nhulunbuy area
Attachment D – Tennant creek area
Attachment E – Northern region
Statement of Compatibility
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This rule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The objective of the food security measure in the Act is to enable special measures to be taken for the purpose of promoting food security for Aboriginal communities in the NT, and in particular, to enhance the contribution made by the community stores in the NT to achieving food security. Food security means a reasonable ongoing level of access to a range of food, drink and grocery items that is reasonably priced, safe and of sufficient quantity and quality to meet nutritional needs. The policy objective of the food security measure is to improve the quality and availability of fresh and healthy food in Aboriginal communities.
The Act recognises that community stores can differ greatly and that the regulation of the store should be tailored to each store’s individual circumstances. Community stores licensing will only apply to stores that are an important source of food, drink or grocery items for an Aboriginal community.
Subsection 38(2) of the Act provides that the food security area, where licensing may apply, is the whole area of the NT. Subsection 74(1) provides that the Minister may prescribe in rules that an area in the NT is not in the food security area. Community stores in the food security area may be required to be licensed. Stores outside the food security area cannot be required to be licenced. This rule prescribes that certain major centres are not in the food security area and accordingly cannot be required to hold a licence. These major centres are excluded from the food security area because consumer awareness, competition and the variety of food, drink and grocery outlets in these areas mean that licencing is not necessary in order to promote food security for Aboriginal communities
Human rights implications
The food security measure in the Act advances and engages the following rights:
a right for the State not to engage in any act or practice of ‘racial discrimination’ against persons, groups of persons or institutions (article 2(1)(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD));
a right to equal protection and equality before the law, where the law shall prohibit any discrimination and guarantee all persons equal and effective protection against discrimination (article 26 of the International Convention on Civil and Political Rights (ICCPR));
the right to adequate food and continuous improvement of living conditions (recognised in article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR));
the right to enjoyment by everyone of the highest attainable standards of health (recognised in article 12 of the ICESCR);
the rights of children, in particular, to high standards of health (recognised in article 24 of the Convention on the Rights of the Child (CROC)); and
the rights of children to standards of living adequate for the child’s physical, mental, spiritual, moral and social development (recognised in article 27 of the CROC).
A right for the State not to engage in act or practice of ‘racial discrimination’ under the CERD and a right to equal protection and equality before the law under the ICCPR
The policy intention is that the food security measure is a ‘special measure’ within the meaning of article 1(4) of the CERD (and s 8(1) of the RDA).
CERD provides that special measures are deemed not to be discrimination. Special measures are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms’.[1]
Special measures are deemed not to be discrimination under the CERD. The food security measure is designed as a special measure under article 1(4) of the CERD. According to article 1(4), the elements of a special measure are that it is:
- taken for the sole purpose of securing adequate advancement
- of a certain racial or ethnic group
- requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms
- not be continued after the objectives have been achieved.
This measure is necessary to ensure that Aboriginal people outside of major centres in the NT do not suffer significant disadvantage due to the lack of a competitive market for food, drink and grocery items. Often there is only one store that is accessible to a community.
The food security measure’s sole purpose is to address the lack of fresh and affordable food in Aboriginal communities in the NT and to secure the ongoing operation of stores serving those communities (see element 1 of article 1(4) of the CERD above). The food security measure will only apply to stores that are an important source of food, drink or grocery items for an Aboriginal community, and will not apply in areas prescribed not to be in the food security area of the NT (see element 2 of article 1(4) of the CERD above). The Government believes that many Aboriginal people in the NT are significantly disadvantaged in their enjoyment of basic human rights and fundamental freedoms by lack of fresh and affordable food (see element 3 of article 1(4) of the CERD above). The measure will not be continued after its objective has been achieved (see element 4 of article 1(4) of the CERD above). A review of the special measures in the Act (including the food security measure) is provided for after 3 years of operation. To ensure that the measures do not continue beyond their need, the Act will automatically sunset after 10 years of operation.
The right to adequate food and continuous improvement of living conditions under the ICESCR
One of the objectives of the food security measure is to promote food security for Aboriginal communities, where food security means a reasonable ongoing level of access to a range of food, drink and grocery items that is reasonably priced, safe and of sufficient quantity and quality to meet nutritional and related household needs (see subsections 31(1) and (2) of the Act). By seeking to address food security issues, the measure will improve access to healthy food and reduce general health problems in Aboriginal communities, advancing the right conferred by article 11 of the ICESCR.
The right to enjoyment by everyone of the highest attainable standards of health under the ICESCR and the rights of children, in particular, to high standards of health and standards of living adequate for the child’s physical, mental, spiritual, moral and social development under the CROC
These rights are clearly related to the right to adequate food discussed above. Regular and affordable access to nutritious and safe food in sufficient quantities will help to advance the standards of health and standards of living for men, women and children in these communities. The licensing of community stores will assist in maintaining and advancing access to food.
Concluding remarks
These rights are advanced by the overall objective of the food security measure. These rights are therefore engaged by this rule, which is being made under that measure.
However, the effect of this rule is to exclude areas in the NT from regulation under the food security measure. The areas excluded are major centres of the NT where consumer awareness, competition and the variety of food, drink and grocery outlets means that licensing is not necessary for the food security objective to be met. They are areas in which the Government believes that there would be no additional benefit from the licensing of community stores.
Therefore, while the rights identified are engaged by this rule because it is being made under the food security measure, the effect of the rule is that regulation will not apply. The rule does not adversely impact the food security-related human rights of Aboriginal communities in the NT. This is because retail market conditions protect those rights in major centres and the provisions of the Act will apply where those market conditions do not exist.
Conclusion
This rule is compatible with human rights.
[1] (Committee on the Elimination of Racial Discrimination, General Recommendation No. 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination (August 2009), at para [11].