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

5. Conclusion: outstanding issues since the 2010 Act

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.

5.1. Reinstatement of the RDA

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;^[32]
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.^[33]

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.

(a) Notwithstanding Clause

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^[34]

The inclusion of such a clause would mean that all acts authorised under the NTER legislation must be undertaken consistently with the RDA.

5.2. ‘Special Measures’

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.^[35]

In particular, the redesigned 2010 measures will not meet the requirements of a ‘special measure’ in International law^[36] 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.^[37]
(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,^[38] 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.

^[32]For further discussion of these issues see the concluding observations of the Committee on the Elimination of Racial Discrimination, Seventy-seventh session ( 27 August 2010) with respect to the NTER and special measures:

The Committee takes notes the State party will complete the reinstatement of the Racial Discrimination Act in December 2010, but is concerned by the continuing difficulties in using the Act to challenge and provide remedies for racially discriminatory NTER measures.

^[33] For further discussion see Amnesty International submission to the UN Committee on the Elimination of racial Discrimination 77th session (August 2010) p. 18

^[34] For further discussion see Social Justice Report 2007,p. 305.

^[35] For further discussion of these issues see the concluding observations of the Committee on the Elimination of Racial Discrimination, Seventy-seventh session ( 27 August 2010) with respect to the NTER and special measures:

16. The Committee expresses its concern that the package of legislation under the Northern Territory Emergency Response (NTER) continues to discriminate on the basis of race as well as the use of so called “special measures” by the State party. …It also urges the State party to guarantee that all special measures in Australian law, in particular those regarding the NTER, are in accordance with the Committee’s general recommendation No. 32 on Special Measures (2009).

^[36] It is important to note the continuing disjunction between domestic legal jurisprudence regarding the level of consultation and evidence that is needed to for a ‘special measure’ to be compliant with the RDA and the requirement for consent and consultation in relation to the imposition of special measures in International law which recognises that consent and consultation are imperative.

^[37] Post-implementation consultation, even if adequate, cannot be used to retrospectively justify measures as ‘special measures’ if they were not developed with the participation and consent of affected Aboriginal individuals and communities and if there is insufficient evidence to demonstrate that the measures will be for the benefit of Aboriginal peoples and secure the advancement of the realisation of other human rights. For further discussion see Australian Non-governmental Organisations’ Submission to the 77th ICERD Committee Co-ordinated by the National Human Rights Network of the National Association(2010) Paras117-120.

^[38]Senate Community Affairs Legislation Committee, Report into Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009 and Others, March 2010, 24