The Suspension and Reinstatement of the RDA and Special Measures in the NTER
- Return to table of contents
- 1. Background: suspension of the Racial Discrimination Act 1975 (Cth) (RDA) under the NTER Legislation
- 2. Proposed change in the 2009 Welfare Reform Bill
- 3. The Senate Community Affairs Legislation Committee Inquiry into the 2009 Welfare Reform Bill
- 4. The 2010 Welfare Reform Act
- 5. Conclusion: outstanding issues since the 2010 Act
- 6. Postscript
- Annexure A Special measures and application of discrimination law to NTER legislation
- Annexure B Objects clauses dealing with special measures
The suite of changes brought about initially by the NTER legislation and later by the 2010 Welfare Reform Act were numerous and complex. However, this note is limited to consideration of the impact of these pieces of legislation on the suspension and re-instatement of the RDA and on the characterisation of the intervention Acts as special measures.
In brief, the Commission has persistently raised concerns about the operation of the NTER legislation, both pre and post the 2010 amendments, in its Social Justice Reports, in Parliamentary submissions, in submissions to the CERD Committee and in external consultations. Although the Commission welcomed several of the amendments in the 2010 Welfare Reform Act, it has remained concerned about the extent and practical effectiveness of the ‘reinstatement’ of the RDA and regarding the characterisation of measures as special measures, particularly in the absence of effective and meaningful consultation and monitoring and evaluation.
Key ongoing concerns regarding the reinstatement of the RDA
Although, since the coming into force of the 2010 Welfare Reform Act, the RDA now applies to decisions and actions done under or for the purposes of the NTER legislation, the amending legislation:
- Did not bring an immediate end to all intervention measures that were racially targeted;
- Excludes from the scope of the RDA, discriminatory actions already taken under the intervention and
- Fails to implement the Principles of the Declaration on the Rights of Indigenous Peoples, in particular through its failure to facilitate the exercise of the right to free, prior and informed consent.
However, the key impediment to the unequivocal and effective reinstatement of the RDA arises from the failure of the amendments to expressly state that the RDA will prevail, notwithstanding anything to the contrary in the NTER legislation; that is, a ‘notwithstanding clause’. The consequences of not including a ‘notwithstanding clause’ are significant. Without such a clause, any provision of the amended emergency response legislation that is inconsistent with the RDA is likely to still override the RDA. The inclusion of such a clause is required to create certainty that all acts authorised under the NTER legislation must be undertaken consistently with the RDA.
Key ongoing concerns regarding ‘Special Measures’
Although, since the 2010 Welfare Reform Act, the Government has repealed the sections under the NTER legislation that deemed the entire NTER legislation to be a ‘special measure’, the Commission continues to be concerned about the characterisation of the measures as a ‘special measure’ under the RDA for 5 key reasons.
- The measures intentionally discriminate on the basis of race and were formulated without the appropriate participation and acceptance of Indigenous peoples.
- They were developed without an appropriate evidence base to show that the measures were required and likely to be effective.
- Simply stating that the measures are ‘special measures’ in an objects clause, rather than substantively redesigning the measures, does not satisfy the criteria necessary for a measure to be a ‘special measure’ - but may reduce the ability of the measures to be challenged under the RDA because courts are required to interpret legislation consistently with its stated purpose.
- There are inadequate mechanisms for monitoring and evaluating the previous and redesigned measures to ensure that they are working effectively and to determine whether their objectives have been met.
- The characterisation of five-year leases as a ‘special measure’ is inconsistent with the RDA (for the reasons outlined in section 3.1(4) of this note).