Restoring racial equality in the NT

Blog Post | Blog of Rachel Siewert

Thursday 29th October 2009, 11:57am

by RachelSiewert in

The Australian Greens have introduced legislation in the Senate designed to restore the Racial Discrimination Act (RDA) in the Northern Territory after the Minister for Indigenous Affairs, Jenny Macklin failed to meet her second self-imposed deadline to deliver on this promise.

It was and continues to be a disgrace that the NT Emergency Response specifically excludes the operation of the RDA. After almost two years in power and a review of the Northern Territory Emergency Response (NTER) which recommended the RDA be re-instated immediately, the Government has not acted. This delay in re-instating the basic human rights of the Indigenous people of the Northern Territory is inexcusable and must be rectified.

There is no doubt that the NTER legislation, in suspending the operation of the RDA, is contrary to Australia's international obligations and is harming our reputation overseas. Quite frankly, this is an international embarrassment.

A quick glance at the Greens' Bill shows clearly that it is a simple matter to restore the RDA. Where the Minister appears to be stuck is in trying to find a way to reconcile her desire to over-ride the fundamental human rights of Aboriginal Australians in the NT through compulsory welfare quarantining and mandatory leases with our international obligations not to discriminate on the basis of race.

Social Justice Commission Report
In his 2007 Social Justice Report, the Social Justice Commissioner, provided a human rights analysis of the Northern Territory Intervention.

The Report raises significant human rights concerns with the Intervention legislation and proposes a way forward to ensure that the Northern Territory Intervention is consistent with Australia's human rights obligations as embodied in legislation such as the Racial Discrimination Act.

The Report makes it quite clear that it is entirely unacceptable to remove the protection of the RDA for any acts performed for the purposes of the Northern Territory intervention legislation and notes that the exemption from the RDA means there can be no challenge to any exercise of discretion by officials purporting to act in accordance with the legislation.

The Report concludes that the provisions exempting the RDA should be immediately repealed and be replaced with a new clause requiring all acts authorised under the legislation to be undertaken consistently with the RDA. This new clause should be unequivocal that the provisions of the Northern Territory Intervention legislation are subject to the provisions of the RDA.

"Special measures"
Special measures are a form of positive discrimination whereby a group defined by race receives beneficial treatment. Such beneficial treatment is then not considered discriminatory under the Racial Discrimination Act. By deeming the provisions of the legislation special measures, the legislation is therefore effectively exempting the legislation from the RDA.

The notion of a "special measure" under the RDA comes with a body of law behind it defining what it means.

There are certain criteria that have to be met for a "special measure" including:

provides a benefit to some or all members of a group based on race;
has the sole purpose of securing advancement of the group so they can enjoy human rights and fundamental freedoms equally with others;
is necessary for the group to achieve that purpose; and
stops once their purpose has been achieved.

Additionally where a measure negatively impacts on Indigenous people it must be done after consultation with and the consent of the people affected to qualify as a special measures. This was clearly not done in relation to the Northern Territory Intervention. The Social Justice Commissioner Report notes that measures cannot meaningfully be said to be for the advancement of a group of people if they are taken without consultation or consent.

If a measure does not meet these criteria it is not a "special measure". To merely deem legislation a special measure is to ignore the body of Australian law giving meaning to the words and ignoring the international conventions upon which the RDA is based.

The Australian Greens agree with the conclusion of the Social Justice Report that the Intervention measures are not "special measures" according to the RDA. The Report recommends that the relevant provisions in the Intervention legislation be amended to:

clarify that the measures in the legislation are intended to qualify as special measures; and
require that in implementing the provisions of the legislation all actions must be undertaken consistently with the intended beneficial purpose of the legislation.

If particular actions undertaken as part of the Northern Territory Intervention are intended to be to the benefit of the Indigenous communities involved then they should stand or fall on their own merits as 'special measures' under the RDA.

The Greens' Bill enacts the recommendations of the Social Justice Commissioner on how best to reinstate the RDA and relevant Northern Territory anti-discrimination laws and comply with our international obligations. The Greens' Bill will therefore require that actions taken as part of the Northern Territory intervention need to be to the benefit of Aboriginal people to be compliant with the RDA.

International Obligations
On a recent visit to Australia, United Nations Special Rapporteur Professor James Anaya found that the Northern Territory Intervention, in its current form and in its delivery;

"is incompatible with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. Australia is a party to both treaties. The intervention is also incompatible with the Declaration on the Rights of Indigenous Peoples, which Australia supports".

There is no doubt that the Northern Territory Intervention legislation, in suspending the operation of the RDA, is contrary to Australia's international obligations and is harming our reputation overseas.

Government inaction
At the time the Intervention legislation was debated in the Senate in 2007 there was much debate on the RDA. The Government while in opposition, strongly defended the RDA. For example, Senator Evans said:

"Labor is very proud of the Racial Discrimination Act 1975. We see it as one of the most important pieces of legislation ever passed by this parliament. We think it is a fundamental bedrock of our modern democracy and that it provides for people protections from discrimination on the basis of race, gender, ethnicity and religion. This is a fundamental protection in our democracy. I have seen the technical arguments from the government as to why they think they need to exempt the Northern Territory legislation from the Racial Discrimination Act and quite frankly the arguments are not strong enough. We have to do better than this."

Yet after almost two years in power and a review of the Northern Territory Intervention which recommended the RDA be re-instated immediately, the Government has not acted. This delay in re-instating basic human rights of the Indigenous people of the Northern Territory is inexcusable and must be rectified.

This Bill ensures the Racial Discrimination Act and the relevant Northern Territory anti-discrimination legislation applies to Aboriginal people in the Northern Territory as it does to all other people in Australia. It will ensure Australia is complying with our obligations under international conventions. And it is the morally and ethically correct response to the continued suspension of basic human rights in the Northern Territory.