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 Commission’s view is that the RDA has not been fully or unconditionally reinstated under the NTER legislation, and that issues remain with the characterisation of the intervention strategies as ‘special measures’ for the reasons outlined below.
Legislative amendments have formally lifted the suspension of the RDA in relation to the NTER legislation. This means that, theoretically, s 9 of the RDA will apply to decisions and actions done under or for the purposes of the NTER legislation and section 10 of the RDA will also apply in relation to the NTER legislation itself.
Notwithstanding that the operation of the RDA is no longer legislatively suspended the amending legislation:
- does not bring an immediate end to all intervention measures that were racially targeted; 
- excludes discriminatory actions already taken under the intervention from the scope of the RDA (eg compulsory welfare quarantining based on race); 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 would prevail notwithstanding anything contrary in the NTER legislation. Accordingly, if there is a conflict between the (later) NTER legislation and the (earlier) RDA, and the provisions of the NTER legislation is unlikely to be read so as to be consistent with the RDA; the NTER legislation, being the later legislation, will prevail. A ‘notwithstanding clause’ is required to unequivocally reinstate the operation of the RDA.
An effective ‘notwithstanding clause’ would need to be in a form such as:
Without limiting the general operation of the Racial Discrimination Act 1975 in relation to the NTER measures, the provisions of the Racial Discrimination Act 1975 are intended to prevail over the NTER Act. The provisions of this Act do not authorise conduct that is inconsistent with the provisions of the Racial Discrimination Act 1975
The inclusion of such a clause would mean that all acts authorised under the NTER legislation must be undertaken consistently with the RDA.
Although the Government has repealed the sections under the NTER legislation that deemed the entire NTER legislation to be a ‘special measure’ under the RDA, simply altering the objects clause, rather than substantively redesigning the measures, does not satisfy the criteria necessary for the measure to be a ‘special measure.’
The Commission maintains that it is preferable that measures that may limit the rights of people of a particular racial group are designed so as to be non-discriminatory under the RDA, rather than justified as special measures. The Commission has serious concerns about the inappropriate classification of State actions as ‘special measures’, particularly where they intentionally discriminate on the basis of race and are formulated without the participation and the acceptance of Indigenous peoples. 
In particular, the redesigned 2010 measures will not meet the requirements of a ‘special measure’ in International law for the reasons outlined below.
- (1) The consultations (in particular in relation to alcohol restrictions) have not been developed with adequate community consultation and do not meet the requirements of consent of the affected group to constitute a special measure; the failure to require consent for measures that are intended to be ‘special measures’ for the purposes of the RDA is inconsistent with Australia’s human rights obligations.
- (2) There is insufficient current and credible evidence which shows that the measures are required and are effective.
- (3) There are inadequate mechanisms for monitoring and evaluating the previous and redesigned measures to ensure that they are working effectively and to if their objectives has been met.
- (4) The characterisation of five-year leases as a ‘special measure’ is inconsistent with the RDA (for the reasons outlined in section 4.1(4) of this note).
- (5) Although the amended measures can be challenged under the RDA, Australian courts are required to interpret legislation consistently with its purpose. The ‘special measures’ objects clauses support an interpretation that the laws are ‘special measures’, and render a successful challenge difficult under the RDA.