The Suspension and Reinstatement of the RDA and Special Measures in the NTER

The Suspension and Reinstatement of the RDA and Special Measures in the NTER

• Return to table of contents
• Summary
• 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

3. The Senate Community Affairs Legislation Committee Inquiry into the 2009 Welfare Reform Bill

On 26 November 2009 the Senate, on the recommendation of the Selection of Bills Committee (Report No. 18 of 2009), referred the provisions of the 2009 Welfare Reform Bill ^[16] to the Community Affairs Legislation Committee (the Committee) for inquiry and report by 9 March 2010.

3.1. Commissions submissions to the Senate Community Affairs Committee Inquiry into the 2009 Welfare Reform Bill

In its submission to the Committee the Commission, amongst other things, ^[17] welcomed the lifting of the suspension of the RDA for the NTER legislation
However, the Commission noted that the proposed changes to the NTER legislation would not ensure full consistency with the RDA. Relevantly, the Commission expressed particular concern regarding the following:

• (1) Practical limitations on the reinstatement of the RDA that emerge due to the absence of a notwithstanding clause in the Bills.
• (2) Delays in the reinstatement of the RDA and state/ territory anti-discrimination legislation until 31 December 2010.
• (3) The failure to require consent for measures that are intended to be ‘special measures’ for the purposes of the RDA and Australia’s human rights obligations.
• (4) The characterisation of five-year leases as a ‘special measure’ which appears to be inconsistent with the RDA. The RDA excludes from the ‘special measures’ exemption laws that authorise management of property without the consent of Aboriginal and Torres Strait Islander people or prevent them from terminating management by another of land owned by them. To be consistent with the RDA, measures relating to the management of land must be undertaken with the consent of the landowners.
• (5) The limited monitoring and evaluation measures in place to ensure that reliable evidence is available as to the effectiveness of existing and redesigned NTER measures. ^[18]

(a) The re-instatement of the RDA

The Commission submitted to the Senate Community Affairs Committee Inquiry into the 2009 Welfare Reform Bill that:

• a ‘notwithstanding clause ‘ought to be inserted in order to specify that the provisions of the RDA are intended to prevail over the NTER legislation and that the NTER legislation does not authorise conduct that is inconsistent with the provisions of the RDA
• the Government should lift the suspension of the RDA for all NTER measures no later than 1 July 2010.^[19]

(b) Special measures provisions

The Commission submitted to the Senate Community Affairs Committee Inquiry into the 2009 Welfare Reform Bill that the redesigned measures will not meet these requirements of a ‘special measure’ where:^[20]

• The government’s redesign consultations do not meet the necessary standard of consultation and consent of the affected group.
• There is insufficient current and credible evidence which shows that the measure will be effective.
• There are alternative means of achieving the objective that are not as restrictive of affected persons’ human rights.
• There are inadequate mechanisms for monitoring and evaluating the measure to ensure if it is working effectively and if its objective has been met.

The Commission considered in detail whether individual measures met the requirements of a ‘special measure’ under the RDA and submitted:

• The alcohol restrictions measure in the NTER have not been developed with adequate community consultation and do not meet the requirements of consent for a ‘special measure’. ^[21]
• Five-year leases are not a ‘special measure’ because, to be consistent with the RDA, measures relating to the management of land must be taken with the consent of the landowners.^[22]
• The terms and conditions of the community stores licencing measure are reasonable, able to be complied with and do not have a negative impact upon the equal enjoyment of rights in public life by people of a particular race - and therefore are not racially discriminatory.^[23]
• The business management area powers are disproportionate and unnecessary.^[24]

Relevantly, Recommendation 6 in the Commission’s submission to the Senate Inquiry was in the following form:
That the Parliament amend the [following] provisions of the NT intervention legislation^[25] to clarify the status of the measures as ‘special measures’ under the RDA:
In particular, Parliament should:

• remove those provisions which deem the measures to constitute a special measure;
• replace these provisions with language which clarifies that the measures are intended to constitute special measures; and
• insert new provisions that require that in the performance of any actions undertaken to implement the measures contained in the legislation, the intended beneficial purpose of the legislation must be a primary consideration. ^[26]

3.2. Recommendations of the Committee Inquiry

The Committee reported in March 2010 and recommended that the Bill be passed unamended.^[27] In relation to special measures, the Committee concluded as follows:

The committee is of the opinion that the government’s redesigned measures, other than income management, which is non-discriminatory, are special measures.^[28]