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

Annexure A: Special measures and application of discrimination law to NTER legislation

Northern Territory National Emergency Response Act 2007 (Cth)

132 Racial Discrimination Act

(1) The provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.
(2) The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.
(3) In this section, a reference to any acts done includes a reference to any failure to do an act.

133 Some Northern Territory laws excluded

(1) The provisions of this Act are intended to apply to the exclusion of a law of the Northern Territory that deals with discrimination so far as it would otherwise apply.
(2) Any acts done under or for the purposes of the provisions of this Act have effect despite any law of the Northern Territory that deals with discrimination.
Northern Territory laws that are not excluded
(3) However, subsections (1) and (2) do not apply to a law of the Northern Territory so far as the Minister determines, by legislative instrument, that the law is a law to which subsections (1) and (2) do not apply.
Reference to acts done includes failure to do an act
(4) In this section, a reference to any acts done includes a reference to any failure to do an act.

Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth)

4 Racial Discrimination Act

(1) Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.
(2) Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.
(3) Subsections (1) and (2) do not apply to amendments or repeals made by Division 2 or 3 of Part 1 of Schedule 2 (law enforcement) to this Act.
(4) In this section, a reference to:
- (a) any acts done includes a reference to any failure to do an act; and
- (b) provisions of this Act includes a reference to provisions of other Acts that are inserted, amended or repealed by the provisions of this Act.

5 Some Northern Territory laws excluded

(1) Subject to subsections (3) and (4), the provisions of this Act are intended to apply to the exclusion of a law of the Northern Territory that deals with discrimination so far as it would otherwise apply.
(2) Subject to subsections (3) and (4), any acts done under or for the purposes of the provisions of this Act have effect despite any law of the Northern Territory that deals with discrimination.
Northern Territory laws that are not excluded
(3) Subsections (1) and (2) do not apply to a law of the Northern Territory so far as the Minister determines, by legislative instrument, that the law is a law to which subsections (1) and (2) do not apply.
Provisions of this Act that are not excluded
(4) Subsections (1) and (2) do not apply to amendments or repeals made by Division 2 or 3 of Part 1 of Schedule 2 (law enforcement) to this Act.
Interpretation
(5) In this section, a reference to:
- (a) any acts done includes a reference to any failure to do an act; and
- (b) provisions of this Act includes a reference to provisions of other Acts that are inserted, amended or repealed by the provisions of this Act.

Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth)

4 Racial Discrimination Act—Part 3B of the Social Security (Administration) Act

(1) Subsections (2) and (3) apply to:
- (a) the provisions of Part 3B of the Social Security (Administration) Act 1999; and
- (b) any acts done under or for the purposes of:
  - (i) those provisions; or
  - (ii) the income management regime;
- (c) a person who is, or is potentially, subject to the income management regime under section 123UB of that Act (relevant Northern Territory area); or
- (d) a person in the Northern Territory who is, or is potentially, subject to the income management regime under section 123UD or 123UE of that Act (school enrolment and attendance); or
- (e) a person who is subject to the income management regime under section 123UF of that Act (Queensland Commission).
(2) To the extent that this subsection applies, the provisions referred to in paragraph (1)(a), and any acts referred to in paragraph (1)(b), are, for the purposes of the Racial Discrimination Act 1975, special measures.
(3) To the extent that this subsection applies, the provisions referred to in paragraph (1)(a), and any acts referred to in paragraph (1)(b), are excluded from the operation of Part II of the Racial Discrimination Act 1975.
(4) The following are, for the purposes of the Racial Discrimination Act 1975, special measures:
- (a) any acts done by the Queensland Commission in relation to the giving of:
  - (i) a notice referred to in paragraph 123UF(1)(b) or (2)(c) of the Social Security (Administration) Act 1999; or
  - (ii) a notice referred to in paragraph 123YM(2)(c) or 123YN(2)(c) of that Act; or
  - (iii) a direction referred to in section 123ZK of that Act;
- (b) any provisions of any laws made by, or any acts done by, Queensland in relation to the establishment or operation of the Queensland Commission.
(5) The following are excluded from the operation of Part II of the Racial Discrimination Act 1975:
- (a) any acts done by the Queensland Commission in relation to the giving of:
  - (i) a notice referred to in paragraph 123UF(1)(b) or (2)(c) of the Social Security (Administration) Act 1999; or
  - (ii) a notice referred to in paragraph 123YM(2)(c) or 123YN(2)(c) of that Act; or
  - (iii) a direction referred to in section 123ZK of that Act;
- (b) any provisions of any laws made by, or any acts done by, Queensland in relation to the establishment or operation of the Queensland Commission.
Definitions etc.
(6) In this section:

Queensland Commission has the meaning given by section 123TC of the Social Security (Administration) Act 1999.
(7) In this section, a reference to any acts done includes a reference to any failure to do an act.

5 Some Queensland and Northern Territory laws excluded—Part 3B of the Social Security (Administration) Act

(1) Subsections (2) and (3) apply to:
- (a) the provisions of Part 3B of the Social Security (Administration) Act 1999; and
- (b) any acts done under or for the purposes of:
  - (i) those provisions; or
  - (ii) the income management regime;
- (c) a person who is, or is potentially, subject to the income management regime under section 123UB of that Act (relevant Northern Territory area); or
- (d) a person in the Northern Territory who is, or is potentially, subject to the income management regime under section 123UD or 123UE of that Act (school enrolment and attendance); or
- (e) a person who is subject to the income management regime under section 123UF of that Act (Queensland Commission).
(2) To the extent that this subsection applies, the provisions referred to in paragraph (1)(a) are intended to apply to the exclusion of a law of Queensland or the Northern Territory that deals with discrimination so far as it would otherwise apply.
(3) To the extent that this subsection applies, any acts referred to in paragraph (1)(b) have effect despite any law of Queensland or the Northern Territory that deals with discrimination.

Queensland and Northern Territory laws that are not excluded

(4) However, subsections (2) and (3) do not apply to a law of Queensland or the Northern Territory so far as the Minister determines, by legislative instrument, that the law is a law to which subsections (2) and (3) do not apply.

Reference to acts done includes failure to do an act

(5) In this section, a reference to any acts done includes a reference to any failure to do an act.

6 Racial Discrimination Act—determining terms of relevant activity agreement for approved programs of work for income support

(1) Subsections (2) and (3) apply in relation to the implementation of guidelines, or the doing of any other acts, for the purpose of determining the terms of a relevant activity agreement in relation to an approved program of work for income support payment, if the implementation or acts are done in the period:
1. (a) beginning on 9 July 2007; and
2. (b) ending 5 years after the commencement of section 1 of the Northern Territory National Emergency Response Act 2007.
(2) Any such implementation, or other acts, are, for the purposes of the Racial Discrimination Act 1975, special measures.
(3) Any such implementation, or other acts, are excluded from the operation of Part II of the Racial Discrimination Act 1975.

Definitions etc.

(4) In this section:
approved program of work for income support payment has the same meaning as in the Social Security Act 1991.

relevant activity agreement means:
- (a) a Parenting Payment Activity Agreement (within the meaning of the Social Security Act 1991); or
- (b) a Youth Allowance Activity Agreement (within the meaning of that Act); or
- (c) a Newstart Activity Agreement (within the meaning of that Act); or
- (d) a Special Benefit Activity Agreement (within the meaning of that Act);
(5) In this section, a reference to any acts done includes a reference to any failure to do an act.

7 Some Northern Territory laws excluded—determining terms of relevant activity agreement for approved programs of work for income support

(1) Subsection (2) applies in relation to the implementation of guidelines, or the doing of any other acts, for the purpose of determining the terms of a relevant activity agreement in relation to an approved program of work for income support payment, if the implementation or acts are done in the period:
- (a) beginning on 9 July 2007; and
- (b) ending 5 years after the commencement of section 1 of the Northern Territory National Emergency Response Act 2007.
(2) Any such implementation, or other acts, have effect despite any law of the Northern Territory that deals with discrimination.

Northern Territory laws that are not excluded

(3) However, subsection (2) does not apply to a law of the Northern Territory so far as the Minister determines, by legislative instrument, that the law is a law to which subsection (2) does not apply.

Definitions

(4) In this section:
approved program of work for income support payment has the same meaning as in the Social Security Act 1991.

relevant activity agreement means:
- (a) a Parenting Payment Activity Agreement (within the meaning of the Social Security Act 1991); or
- (b) a Youth Allowance Activity Agreement (within the meaning of that Act); or
- (c) a Newstart Activity Agreement (within the meaning of that Act); or
- (d) a Special Benefit Activity Agreement (within the meaning of that Act);
that is in force between the Secretary and a person who is ordinarily resident in a relevant Northern Territory area within the meaning of Part 3B of the Social Security (Administration) Act 1999.

Reference to acts done includes failure to do an act
(5) In this section, a reference to any acts done includes a reference to any failure to do an act.