Racial Discrimination Act 1975 (CTH)

The NNTC has serious concerns in relation to the high-handed approach taken in the NTER measures to the provisions of the Racial Discrimination Act 1975 (Cth) (“the RDA”), and to Australia’s international obligations in relation to the prohibition of racial discrimination.
Section 132 of the Northern Territory National Emergency Response Act 2007 (“the NTER Act”) provides:
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.”
The NNTC deplores the inclusion in legislation enacted in 2007 by the Australian Parliament of a provision specifically excluding the operation of the RDA.
By suspending the operation of the RDA and, at the same time, characterising the provisions as “special measures” for the purposes of the RDA, Parliament is, in effect, having a bet each way.
The NNTC considers it unacceptable that an Act of the Australian Parliament can continue to suspend the operation of the RDA in relation to the land rights of Aboriginal peoples, thereby denying Aboriginal people access to the complaints procedures under the RDA, and the Human Rights and Equal Opportunity Act 1984 (Cth), and the Federal Court of Australia Rules. This involves not only intolerable racial discrimination, but is also contrary to Australia’s obligation, in article 2(3)(a) of the International Covenant on Civil and Political Rights (“ICCPR”) to ensure that any person whose rights or freedoms are violated shall have an effective remedy.
In any event, the claimed justification of the provisions of the NTER Act, and of acts done under or for the purposes of those provisions, as “special measures” for the purposes of the RDA is highly problematic. Article 1(4) of CERD provides that special measures are:
“measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure equal enjoyment or exercise of human rights and fundamental freedom, provided that such measures do not lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved ” (emphasis added).
International jurisprudence requires special measures to be a “reasonable and proportionate means of achieving substantial equality.” The United Nations Human Rights Committee, in its 1989 General Comment on Non-Discrimination pointed out that the “special measures” provisions in international human rights treaties are intended to permit, for a time, affirmative action or preferential treatment:
“10. The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.”
The NNTC does not accept that the protection of “special measures”, or measures of so-called affirmative action, can justify critical aspects of the NTER legislation, in particular, the compulsory acquisition of five year leases over Aboriginal land.
The NNTC considers that the non-consensual acquisition of interests in Aboriginal land has not demonstrated connection to the problems of sexual and substance abuse, and is entirely unrelated to and inconsistent with the purpose of securing the “adequate advancement” of the targeted communities. To the contrary, statutory erosion of the incidents of Aboriginal freehold title, as opposed to the freehold title of other property owners, is racially discriminatory at a fundamental level. Nowhere has it been suggested that the Federal Government should suspend the property rights of non-indigenous people in areas with a high incidence of sexual abuse and domestic violence in urban Australia. This should constitute part of the test to determine whether so-called special measures are proportionate and justifiable.
The NNTC does not challenge the utility of “special measures” in providing an avenue to secure the validity of State and Territory laws to protect women and children who are at risk. In this regard, the NNTC appreciates the efforts of the Human Rights and Equal Opportunity Commission (“HREOC”) in support of the voluntary introduction of alcohol restrictions in some indigenous communities as a special measure on the basis that social benefits are likely to result in reduced violence and abuse, and improved public safety.
However, the efforts of HREOC need to be viewed in context: that is, the context of Aboriginal communities wanting to avoid a potential problem of unlawfulness under the RDA in circumstances where they wish to negotiate with publicans, other distributors of alcohol, the Liquor Commission, local councils and the police to prohibit or restrict purchases of alcohol by their members. In determining whether such prima facie racially discriminatory restrictions can be protected as “special measures”, the wishes of the community to whom the restrictions apply are critical. In its seminal 1995 Alcohol Report, HREOC concluded that alcohol restrictions imposed upon Aboriginal groups as a result of government policies which are incompatible with the policy of the community are not special measures.
It is settled jurisprudence that the sole purpose of special measures must be securing adequate advancement of the beneficiaries in order that they may enjoy and exercise human rights and fundamental freedoms equally with others. The concept of “advancement” is not a paternalistic concept, determined by government alone. As Brennan J observed in Gerhardy v Brown (1985) 159 CLR 70:
“A special measure must have the sole purpose of securing advancement, but what is "advancement"? … The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit. The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement. The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them.”
The NNTC submits that in order for prima face discriminatory measures to be capable of being characterised as special measures, and hence not offend the prohibition on racial discrimination, there is a basic requirement to seek the free, prior and informed consent of the affected community. The concept of “informed consent” arises in numerous international texts and instruments.
On 18 August 1997, the United Nations Committee on the Elimination of All Forms of Racial Discrimination adopted a General Recommendation concerning Indigenous Peoples (General Recommendation XXIII(51)) calling upon States parties to CERD to take a series of measures, including:
“to ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent”. (emphasis added)
Article 19 of the recently adopted United Nations Declaration on the Rights of Indigenous Peoples (2007) provides that:
“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” ¹
In January 2005, the United Nations Permanent Forum on Indigenous Issues convened an International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples. The Permanent Forum had identified the principle of free, prior and informed consent as a major challenge at its first, second and third sessions. The Permanent Forum released a report following the Workshop², setting out recommendations and conclusions, including the following:
- “Free should imply no coercion, intimidation or manipulation.
- Prior should imply that consent has been sought sufficiently in advance of any authorization or commencement of activities and that respect is shown for time requirements of indigenous consultation/consensus processes.
- Informed should imply that information is provided that covers (at least) the following aspects:
  1. The nature, size, pace, reversibility and scope of any proposed project or activity;
  2. The reason(s) for or purpose(s) of the project and/or activity;
  3. The duration of the above;
  4. The locality of areas that will be affected;
  5. A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit-sharing in a context that respects the precautionary principle;
  6. Personnel likely to be involved in the execution of the proposed project (including indigenous peoples, private sector staff, research institutions, government employees and others);
  7. Procedures that the project may entail.
- Consent
  Consultation and participation are crucial components of a consent process. Consultation should be undertaken in good faith. The parties should establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect in good faith, and full and equitable participation. Consultation requires time and an effective system for communicating among interest-holders. Indigenous peoples should be able to participate through their own freely chosen representatives and customary or other institutions. The inclusion of a gender perspective and the participation of indigenous women are essential, as well as participation of children and youth, as appropriate. This process may include the option of withholding consent.
  
  Consent to any agreement should be interpreted as indigenous peoples have reasonably understood it.”
The NNTC considers that critical aspects of the NTER measures can not be characterised as special measures, and hence offend the prohibition of racial discrimination in the RDA and CERD. This is because:
- the wishes of the putative beneficiaries of the measures (that is, Aboriginal communities and representative organizations in the Northern Territory) were not sought to be ascertained; and
- various of the measures do not represent a reasonable and proportionate means of addressing child abuse and violence occurring in some Aboriginal communities in the Northern Territory, but instead contravene the rights of indigenous people in the Northern Territory to culture, history, language, customs and way of life, including the right to own and control their lands and resources, and are contrary to the equal enjoyment or exercise of human rights and fundamental freedoms.
The NNTC notes that on 21 February 2008, in her second reading speech in relation to the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Emergency Response Consolidation) Bill 2008 (“Emergency Response Consolidation Bill”), the Minister for Housing and Minister for the Status of Women, Tanya Plibersek commented that the package of legislation for the Northern Territory emergency response “also contains provisions which deem the measures to be special measures and exclude them from the operation of part II of the Racial Discrimination Act 1975”. According to Ms Plibersek, “the government did not support the racial discrimination provisions whilst in opposition”.
However, it is to be recalled that on 6 August 2007, 47 days after the announcement of the “emergency response”, and less than 24 hours after first providing to the Opposition parties and relevant stakeholders, including peak indigenous bodies, drafts of the proposed legislation, the former Government of John Howard introduced the Bills in the House of Representatives. The Bills were passed in the House – with the support of the then Opposition - in a single afternoon. On 6 August 2007, the now Prime Minister, then Leader of the Opposition in the House of Representatives, contended that he had received advice that the emergency response legislation was consistent with the RDA. However, if such advice was correct, then to suspend the operation of the RDA would have been unnecessary.
The NNTC acknowledges, as Ms Plibersek commented in her Second Reading Speech, that the Emergency Response Consolidation Bill contains no new provisions which exclude the operation of the RDA. In summary, the Bill:
- repeals changes to the permit system contained in the ALRA made by the Families, Communities Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth), and clarifies the power of the Minister to authorise people to enter communities covered by the emergency response;
- requires pay television licensees not to provide television channels that contain a large amount of R 18+ programming into certain prescribed areas;
- permits prohibited pornographic material to be transported through a prescribed area to a place outside the prescribed area; and
- ensures that if a roadhouse effectively takes the place of a community store in a remote area, it can be treated as a community store in having to meet new licensing standards.
According to Ms Plibersek, the new R18+ measures have been designed as special measures. According to the Second Reading Speech, the proposed new subsection 127A(2) of the NTER Act sets out the object of the new Part 7A “R 18+ programs”. According to the Second Reading Speech, the “object is to protect communities from violence and sexual abuse and should be read as a ‘special measure’ for the purposes of the Racial Discrimination Act 1975”. Proposed new s 127C provides as follows in relation to community consultation before the Minister, by legislative instrument, determines that a specified prescribed area is a “declared prescribed area” under proposed s 127B:
“127C Community consultation
1. Before making a determination under subsection 127B(1) in relation to a prescribed area, the Minister must ensure that:
  1. information setting out:
    1. the proposal to make the determination; and
    2. an explanation, in summary form, of the consequences of the making of the determination;
    3. has been made available in the prescribed area; and
  2. opportunities have been made available to people in the prescribed area to discuss:
    1. the proposal to make the determination; and
    2. the consequences of the making of the determination;
    3. with employees or officers of the Commonwealth; and
  3. opportunities have been made available to people in the prescribed area to discuss their circumstances, concerns and views with employees or officers of the Commonwealth.
2. A contravention of subsection (1) does not affect the validity of a determination under subsection 127B(1).”
The NNTC recognises that the consultation process under s 127C(1) is directed towards canvassing the views of concerned communities. However, s 127C(2) makes plain that the consultation process is not mandatory, and that any failure to consult will not affect the validity of a determination by the Minister under s 127B(1). Moreover, proposed s 127D does not positively identify the wishes of the people living in the prescribed area – both in support of as well as in opposition to a determination – as one of the enumerated criteria for making a determination.
The NNTC considers that without an enforceable statutory right to be consulted, and any reviewable obligation on the part of the Minister to have regard to the wishes of the people - the consultation process under the Emergency Response Consolidation Bill is likely to be insufficient to engage the special measures exception in s 8(1) of the RDA, and article 1(4) of CERD. The NNTC accepts that the wellbeing of women and children who have been victims of violence or sexual abuse is also a paramount consideration. However, every effort to obtain the free, prior and informed consent of the community, and proper consideration of the community’s wishes, do not preclude a determination which also has regard to other criteria, such as those enumerated in proposed s 127D.

1. The concept of "free, prior and informed consent" appears in five other articles of the Declaration on the Rights of Indigenous Peoples.

2. See http://daccessdds.un.org/doc/UNDOC/GEN/N05/243/26/PDF/N0524326.pdf?OpenElement.

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