Guidelines to understanding ‘Special measures’ in the Racial Discrimination Act 1975 (Cth) (2011)
Guidelines to understanding ‘Special measures’ in the Racial Discrimination Act 1975 (Cth)
Implementing ‘special measures’
under the Racial Discrimination Act 1975 (Cth)
2011
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1 Introduction
-
The Racial Discrimination Act 1975 (Cth) (RDA) prohibits racial
discrimination under sections 9 and 10 of the Act but allows for ‘special
measures’ to be taken to advance the human rights of certain racial or
ethnic groups or individuals under section 8 of the Act. - The Australian Human Rights Commission has prepared these guidelines to
provide assistance to those designing and implementing ‘special
measures’ to ensure that measures intended to be ‘special
measures’ meet the requirements of the RDA and are consistent with human
rights principles.[1] The guidelines
are based on international laws[2] and
policies that provide guidance on how to implement special measures and on the
Commission’s extensive experience and expertise in the administration of
the RDA and other discrimination and human rights laws.
2 The concept of equality
and the role of ‘special measures’
-
In order to understand the scope and meaning of the term ‘special
measure’ it is helpful to consider the concept of ‘equality’
that underpins the RDA. The right to equality and non-discrimination are
fundamental human rights. These rights are central to the RDA and the
International Convention on the Elimination of all forms of Racial
Discrimination (ICERD), which the RDA
implements.[3] Equality can be formal
(treating all people identically) or substantive (treating equally what are
equal and differently what are unequal). Formal equality cannot address
inequities caused by existing injustices and disadvantages. -
The concept of special measures is generally understood to apply to positive
measures taken to redress historical disadvantage and confer benefits on a
particular racial group, so that they may enjoy their rights equally with other
groups; special measures are designed to ensure the equality of outcomes for
disadvantaged groups. - Special measures, then, are essentially differential treatment between
racial groups which are identified as necessary in order to address an existing
inequality[4] or disadvantage. Special measures are an essential component to achieving
substantive equality and eliminating racial discrimination. Under international
human rights law, special measures operate in two contexts:- as a positive obligation on states to take action to ensure that minority
racial groups are guaranteed the enjoyment of all human rights and fundamental
freedoms; and - as an exception to the definition of discrimination.
- as a positive obligation on states to take action to ensure that minority
2.1 The positive obligation to take special
measures
- Article 2(2) of ICERD imposes a positive obligation on parties to
take ‘special and concrete measures to ensure the adequate development and
protection of certain racial groups or individuals belonging to them, for the
purpose of guaranteeing them the full and equal enjoyment of human rights and
fundamental freedoms’.
2.2 Special measures: an exception to the
definition of discrimination
- Article 1(4) of ICERD provides that special measures will be considered not
to constitute racial discrimination. Specifically, article 1(4)
states:Special measures taken for the sole purpose of securing
adequate advancement of certain racial or ethnic groups or individuals 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
shall not be deemed racial discrimination, provided, however, that such measures
do not, as a consequence, lead to the maintenance of separate rights for
different racial groups and that they shall not be continued after the
objectives for which they were taken to have been achieved. - Special measures are a feature of the principle of non-discrimination in
customary international law. Legal academic Warwick McKean notes:It is now generally accepted that the provision of special measures
of protection for socially, economically, or culturally deprived groups is not
discrimination, so long as these special measures are not continued after the
need for them has disappeared. Such measures must be strictly compensatory and
not permanent or else they will become discriminatory. It is important that
these measures should be optional and not against the will of the particular
groups affected, and they must be frequently reconsidered to ensure that they do
not degenerate into
discrimination.[5] - Accordingly, the concept of special measures is generally understood to
apply to positive measures taken to redress historical disadvantage and create
more favourable conditions or confer benefits on a particular racial group. The
expression ‘special measures’ is often used interchangeably with
expressions such as ‘affirmative
action’.[6] In this sense,
special measures protect things done to benefit a disadvantaged group from being
challenged as discriminatory by non-members of the group who do not receive the
benefit.
3 Special Measures in the RDA
-
The RDA is the primary instrument through which Australia implements its
obligations under the ICERD. The expression ‘special measure’ is
not defined in the RDA and it takes its meaning in s. 8(1) RDA, which provides
that the RDA prohibition on racial discrimination does not apply to
‘special measures’, directly from, and by reference to, article 1(4)
of ICERD. -
Accordingly, the effect of s.8(1) in the RDA is that if a measure is a law,
program or action in an area that is covered by the RDA and can be characterised
as a special measure, it will not be racially discriminatory under the
RDA.
3.1 Criteria for ‘special
measures’
- The Australian courts have considered what can be characterised as a
‘special measure’ under section 8(1) of the RDA. -
It is clear that to meet the requirements of a special measure, a measure
must comply with the following criteria:-
the measure must confer a benefit;
-
on some or all members of a class of people whose membership is based
on race, colour, descent, or national or ethnic origin; -
the sole purpose of the measure must be to secure adequate
advancement of the beneficiaries so they may equally enjoy and exercise their
human rights and fundamental freedoms; -
the protection given to the beneficiaries by the measure must be necessary for them to enjoy and exercise their human rights equally with
others; [7] and - the measure must not have yet achieved its objectives (the measure
must stop once its purpose has been achieved and not set up separate rights
permanently for different racial
groups).[8]
-
3.2 Explaining the criteria
3.2.1 Benefit
- In understanding the benefit criterion, it is necessary to consider how a
program or action may advance some or all members of the target group so that
they can enjoy their human rights equally with others. In Gerhardy v
Brown[9], Brennan J considered how
to define advancement. His Honour stated:A special measure must
have the sole purpose of securing advancement, but what is
‘advancement’? To some extent, that is a matter of opinion formed
with reference to the circumstances in which the measure is intended to operate.
‘Advancement’ is not necessarily what the person who takes the
measure regards as a benefit for the beneficiaries. The purpose of securing
advancement for a racial group is not established by showing that the branch of
government or the person who takes the measure does so for the purpose of
conferring what it or he regards as a benefit for the group if the group does
not seek or wish to have the benefit. The wishes of the beneficiaries for the
measure are of great importance (perhaps essential) in determining whether a
measure is taken for the purpose of securing their advancement. The dignity of
the beneficiaries is impaired and they are not advanced by having an unwanted
material benefit foisted on
them.[10] - The wishes of the beneficiaries identified by Brennan J are fundamentally
tied with the right to self-determination recognised in the International
Covenant on Civil and Political Rights (the
ICCPR)[11] and the International
Convention on Economic, Social and Cultural Rights (the
ICESCR).[12] The Committee on the
Elimination of Racial Discrimination has stated:States parties
should ensure that special measures are designed and implemented on the basis of
prior consultation with affected communities and the active participation of
such communities.[13] - Furthermore, the Committee has called upon parties to ICERD
to:ensure that members of indigenous peoples have equal rights in
respect of effective participation in public life, and that no decisions
directly relating to their rights and interests are taken without their informed
consent.[14] - Moreover, the Declaration on the Rights of Indigenous Peoples has affirmed
the right of Indigenous peoples to self-determination and has endorsed the
standard of ‘free, prior and informed consent’ in dealings with
Indigenous peoples. Article 19 states:States shall consult and
cooperate in good faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free, prior and informed
consent before adopting and implementing legislative or administrative measures
that may affect them. -
With regards to construing what constitutes a benefit, then, effective and
appropriate consultation is fundamental if Australia is to meet its
International human rights obligations. However, since Gerhardy v. Brown,
the Courts have not been unanimous in the weight to be accorded to the wishes of
the beneficiaries in determining whether a measure is taken for the purpose of
securing their advancement. -
In Bropho v Western
Australia[15] Nicholson J held
that the whole of the Reserves (Reserve 43131) Act 2003 (WA) was a
special measure pursuant to s 8 of the
RDA.[16] Nicholson J noted the dicta
of Brennan J in Gerhardy v Brown that ‘the wishes of the
beneficiaries of the measure are also of great importance in satisfying the
element of advancement’. However he held that ‘that dicta was not
supported by the other justices and is not consistent with the general
principles expressed in the case.’ He went on to note that a large number
of the women living on the Reserve did not agree with the enactment of
the Reserves Act and had made their objection known in an open letter to the
Premier of Western Australia.[17] However, Nicholson J concluded that the dicta of Brennan J in Gerhardy v
Brown ‘in this respect has no apparent judicial
support’[18] and declined to
place weight on that aspect of his reasoning. On appeal, the Full Federal Court
found it was unnecessary to consider whether this aspect of Nicholson J’s
reasoning was correct.[19] -
In contrast, in Aurukun Shire Council v CEO Office of Liquor Gaming and
Racing in the Department of
Treasury[20], McMurdo P
rejected the Applicant's argument that legislative provisions in question were
not a special measure because they did not reflect the wishes of indigenous
people in the communities although she granted that there was 'considerable
force' in Brennan J's statement in Gerhardy that the 'wishes of the
beneficiaries are of great importance (perhaps essential) in determining whether
a measure is taken for the purpose of securing their advancement'. In
particular, McMurdo P considered that this approach was consistent with
Indigenous peoples’ ‘right to self- determination’. However,
she found that the material before the Court suggested that there was 'a strong
body of informed support within the appellants' communities for the impugned
provisions and the scheme of which they form
part'.[21] -
Lastly, in Morton v Queensland Police
Service,[22] the Queensland
Court of Appeal supported consultation with intended beneficiaries, describing
meaningful consultation as ‘highly desirable’ and important in
ensuring that the measure is appropriately designed and effective in achieving
its objective.[23] The Court stopped
short, however, of making the process of consultation and consent a mandatory
requirement for a valid special measure. In the Court’s view, there are
legitimate reasons for not doing so, including potential difficulty in
reconciling competing views within a group affected by the
measure,[24] and that some
beneficiaries, perhaps for age, infirmity or cultural reasons, may have
difficulty in expressing an informed and genuinely free opinion on the proposed
measure.[25] - In Australia, then, while the Courts have, on balance, recognised that the
wishes of the intended beneficiaries are of importance in establishing whether
the measure is a special measure - describing meaningful consultation as
‘highly desirable’ and important in ensuring that the measure is
appropriately designed and effective in achieving its objective - the Courts
have stopped short of making the process of consultation and consent a mandatory
requirement for a valid special measure, especially where there are legitimate
reasons for not consulting. Further, where there are competing views within a
group, it may be sufficient that there is a strong body of informed support
within that group.
3.2.2 Class of people
- The benefit must apply to some or all members of a class of people whose
membership of that class is based on race, colour, descent, or national or
ethnic origin.
3.2.3 Sole purpose
- In Gerhardy v Brown, Justice Deane explains sole purpose as:
What is necessary for characterization of legislative
provisions as having been "taken" for a "sole purpose" is that they can be seen,
in the factual context, to be really and not colourably or fancifully referable
to and explicable by the sole purpose which is said to provide their character.
They will not be properly so characterized unless their provisions are capable
of being reasonably considered to be appropriate and adapted to achieving that
purpose. Beyond that, the Court is not concerned to determine whether the
provisions are the appropriate ones to achieve, or whether they will in fact
achieve, the particular
purpose.[26] -
Special measures should have a specific and clear aim in correcting the
situation where members of a racial or ethnic group have experienced inequality.
Special measures should be proportional to the degree of disadvantage
experienced by the target population. Where the disadvantage is: not widely
entrenched, does not apply to the group as whole or does not have consequences
that affect the broader community, then measures should be less intrusive. A
measure must be appropriate and adapted to achieving its stated purpose. This
point relates to the requirement of both sole purpose and necessity. -
The principle of proportionality requires a precise balancing of the impact
of a measure with the stated intent of the measure. Is the proposed measure the
only one, or the least restrictive one, which will achieve the stated intent of
the measure? While it is appropriate to consider the effect of
legislation as a whole when determining whether it is a ‘special
measure’, it is still necessary for its parts to be ‘appropriate and
adapted’ to this purpose.[27] - In Vanstone v Clark[28] Justice Weinberg rejected the submission that once it is accepted that a
particular provision of an act is a special measure, the different elements of
the provision cannot be separately attacked as discriminatory. Justice Weinberg
stated that such a proposition:involves a strained, if not perverse, reading of s8 of
the RDA, and would thwart rather than promote the intention of the legislature.
If the submission were correct, any provision of an ancillary nature that
inflicted disadvantage upon the group protected under a ‘special
measure’ would itself be immune from the operation of the RDA simply by
reason of it being attached to that special
measure.[29] - Both the notion of proportionality and appropriateness can be understood in
relation to references to discrimination in international law. Brownlie
states:The principle of equality before the law allows for
factual differences such as sex or age and is not based on a mechanical
conception of equality. The distinction must have an objective justification;
the means employed to establish a different treatment must be proportionate to
the justification for differentiation; and there is a burden of proof on the
Party seeking to set up an exception to the equality
principle.[30]
3.2.4 Necessity
-
To qualify as necessary, a law, program or action must be required to enable
the target group to enjoy their human rights equally with other members of
society. The measures should be capable of being reasonably considered to be
appropriate and adapted to achieving the purpose of securing an objective set
out in ICERD article 1(4). In other words, the law, program or action must
address the actual disadvantage of the targeted group and there must be a
demonstrable link between the measure and its stated objective. -
To establish a demonstrable link a proposed measure must be supported by a
reasonable evidence base that includes recent and reliable quantitative and
qualitative data which establishes that the proposed measure is justifiable as
necessary to achieving the stated intent of the proposed measure and enable the
equal enjoyment of human rights, has a clear intent, effectively addresses the
actual disadvantage of the target group and will have the intended
impact/outcomes.[31] - Pieces of legislation or policy may include aspects that are special
measures and all parts of a ‘special measure’ must be
‘appropriate and adapted’ to the relevant purpose for them to be
necessary. That is, just because some aspect of a measure is a special measure,
it does not mean that all aspects of that measure are immune from challenge.
3.2.5 Must stop once objectives are
achieved
- Though the duration of special measures may be significant in some
circumstances, the measures must be discontinued when they have achieved their
stated purpose. Accordingly, it is imperative that special measures are subject
to a periodic and comprehensive assessment/evaluation both by government and key
stakeholders to monitor progress and to determine whether or not the measure has
achieved its purpose. Significantly, a measure which satisfies the first four
criteria will not be a special measure if the final criterion, that the special
measure must stop once its purpose has been achieved, is not also met.
4. Case example illustrating a special
measure
-
In Bruch v
Commonwealth,[32] a
non-indigenous Australian student claimed that the Commonwealth had unlawfully
discriminated against him because he could not claim ABSTUDY rental assistance
benefits. McInnis FM held that the ABSTUDY rental assistance scheme did not
cause the Commonwealth to contravene the RDA because it constituted a
‘special measure’ for the benefit of Indigenous people within the
meaning of s 8(1) of the RDA. -
McInnis FM found that the five criteria identified by Brennan J In Gerhardy v. Brown were satisfied because:
-
the ABSTUDY rental assistance scheme conferred a benefit on a clearly
defined class of natural persons made up of Aboriginal and Torres Strait
Islander people; -
that class was based on race;
-
the sole purpose of the ABSTUDY rental assistance scheme was to ensure the
equal enjoyment of the human rights of that class with respect to
education; -
the rental assistance component of the ABSTUDY scheme was necessary to
ensure that the class improved its rate of participation in education and, in
particular, tertiary education; and - the objectives for which the ABSTUDY rental assistance scheme was introduced
had not been achieved.
-
5. Conclusion
- These guidelines are not legally binding and do not alter the operation of
the RDA. However, the Guidelines have been developed to provide guidance about
the operation of special measures in the RDA.
[1] The guidelines have been
prepared in the exercise of the Commission’s function under s 20(d) of the
RDA, which provides for the Commission to prepare, and to publish in such manner
as the Commission considers appropriate, guidelines for the avoidance of
infringements of the operative provisions of the
RDA.
[2] See, for example,
(International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) (Art 1(4)), which provides:
Special measures taken for the sole purpose of securing adequate advancement
of certain racial or ethnic groups or individuals 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 shall not be deemed racial
discrimination, provided, however, that such measures do not, as a consequence,
lead to the maintenance of separate rights for different racial groups and that
they shall not be continued after the objectives for which they were taken to
have been achieved.
Also, article 21 of The Declaration on the Rights of
Indigenous Peoples provides that:1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including, inter alia, in
the areas of education, employment, vocational training and retraining, housing,
sanitation, health and social security.2. States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and social
conditions. Particular attention shall be paid to the rights and special
needs of indigenous elders, women, youth, children and persons with disabilities
(emphasis added).
[3] Australia is
a party to ICERD which Australia ratified on 30 September
1975.
[4] That is, equality may
require treating ‘equally what are equal and unequally what are
unequal’ .See South West Africa Case (Second Phase) [1966] ICJR,
305-6 (Judge Tanaka); see also Committee on the Elimination of Racial
Discrimination, General Recommendation 32 (2009): The meaning and scope of
special measures in the International Convention on the Elimination of Racial
Discrimination, [8]. UN Doc A/64/18 (Annex VIII). At http://www2.ohchr.org/english/bodies/cerd/comments.htm (viewed 11 October 2011).
[5] Warwick McKean, Equality and Discrimination under International Law (1983) 288, cited by Brennan J in Gerhardy v Brown (1985) 159 CLR 70,
130.
[6]Committee on the
Elimination of Racial Discrimination, General Recommendation 32, above
n 4, [12]; see also Theodor
Meron, ‘The Meaning and Reach of the International Convention on the
Elimination of All Forms of Racial Discrimination’ (1985) 79 Am J.
Int’l Law 283 at 305; Natan Lerner, The UN Convention on the
Elimination of All Forms of Racial Discrimination (1980),
32.
[7] Gerhardy v Brown (1985) 159 CLR 70,133 (Brennan J).
[8] Gerhardy v Brown (1985) 159 CLR 70, 139-140 (Brennan
J).
[9](1985) 159 CLR 70
[10](1985)159 CLR 70, 135 (
Brennan J).
[11] ICCPR, 1976. At: http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 July 2011).
[12] ICESCR, 1976. At: http://www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed 22 July 2011).
[13] Committee on the Elimination of Racial Discrimination, General Recommendation
32, above n 4, [18];
[14] General Recommendation
No. 23: Indigenous Peoples : 18/08/1997, [4(d]. At http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c?Opendocument (viewed 11 October
2011).
[15] [2007] FCA
519.
[16] [2007] FCA 519,
[579]-[580].
[17] [2007] FCA 519,
[570].
[18] [2007] FCA 519,
[570].
[19] Bropho v State of
Western Australia [2008] FCAFC 100. Note that the submissions of the
Commission as intervener argued that Nicholson J’s reasoning was in error
on this issue: see <http://www.humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html>
[20] [2010] QCA 37.
[21] Keane JA
observed that the views expressed by Brennan J in Gerhardy as to the
possibility crucial importance of the wishes of the beneficiaries of a measure
to its characterisation as a special measure commands great respect but
nevertheless, as was noted in Bropho, that view has 'no apparent judicial
support'.
[22] [2010] QCA 160,
[31] (McMurdo P),
[23] [2010] QCA
160, [31] (McMurdo P), [114] (Chesterman J, with Holmes J
agreeing).
[24] [2010] QCA 160,
[31] (McMurdo P), [114] (Chesterman J, with Holmes J
agreeing).
[25] [2010] QCA 160,
[31] (McMurdo P).
[26] Gerhardy v Brown (1985) 159 CLR 70, per Deane,
p149.
[27] Gerhardy v Brown
(1985) 159 CLR 70, 105 (Mason J), 149 (Deane
J)).
[28] [2005] FCAFC
189
[29] Weinberg J., at
208-209.
[30] Ian Brownlie, Principles of Public International Law (6th ed, 2003), 547,
footnotes omitted.
[31] To this
end, Community views on the likely success of the measure should be taken into
account formally as part of the evidence
base.
[32] [2002]FMCA 29