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Special Measures

Special measures are positive actions to assist or protect disadvantaged racial groups. Some groups do not enjoy human rights equally with others and special measures allow them to be assisted. Special measures are permitted by section 8 of the Racial Discrimination Act 1975 and by articles 1(4) and 2(2) of the International Convention on the Elimination of All Forms of Racial Discrimination. They are an exception to the general rule that all racial groups must be treated the same.

The characteristics of special measures

Special measures have some essential characteristics. They must:

1) provide a benefit to some or all members of a group who share a common race, colour, descent, national origin or ethnic origin,

2) have the sole purpose of securing the advancement of the group so they can enjoy human rights and fundamental freedoms equally with others,

3) be necessary for the group to achieve that purpose, and

4) stop once their purpose have been achieved and not set up separate rights permanently for different racial groups.

1. What is a benefit?

Special measures must improve the circumstances of the disadvantaged racial or ethnic group. Examples of a benefit might include:

  • English language programs for particular racial groups
  • special medical services for racial groups suffering poor health
  • rental assistance so that students from disadvantaged racial groups can afford to study
  • employment programs aiming to get people from disadvantaged racial groups into jobs.

    Example:

    Indigenous tertiary students get rental assistance as part of the Aboriginal Study Grant Scheme (ABSTUDY). A non-Indigenous student complained of discrimination. The magistrate found that the rental assistance was a special measure. The purpose of giving rent assistance is to increase participation rates of Indigenous Australians in education to a level equivalent to the non-Indigenous community (Bruch v Commonwealth [2002] FMCA 29).

Laws which do not provide a benefit and which are contrary to the wishes of the affected group cannot be special measures.

Example:

In the 1996 ‘Palm Island Wages’ case, the Queensland Government argued its laws authorising lower wages for Aboriginal people were lawful. The Government claimed the lower wages were special measures because they aimed to further the ‘development, education and training’ of Aboriginal people. HREOC Hearing Commissioner Carter found that the payment of lower wages was not a benefit and was done against the wishes of the people of Palm Island. The payment of lower wages denied the Aboriginal workers their human rights to just and favourable conditions of work and equal pay for equal work. Therefore the Queensland laws were racially discriminatory and could not be defended as a special measure (Bligh and others v State of Queensland [1996] HREOCA 28).

2. What is the sole purpose test?

A special measure must be for the sole purpose of advancing the group concerned. It can, however, achieve this purpose in a variety of ways. For example, a job vacancy restricted to Indigenous applicants can be intended to improve liaison with Indigenous clients and Indigenous employment rates.

Both goals aim to benefit and advance the human rights of Indigenous people and, therefore, meet the sole purpose test.

Example:

A non-Aboriginal person complained that a job vacancy advertised as being available only for Aboriginal people was racially discriminatory. The employer argued that Aboriginality was important because:

a) the job was intended to increase Aboriginal employment in State government positions; and

b) a high proportion of clients were Aboriginal and an Aboriginal employee made it easier for these clients to participate in service delivery by the agency.

The specification that the job was for an Aboriginal person was found to be a special measure (Lethbridge v Homeswest [1997] HREOCA 3).

3. When are special measures necessary?

Special measures can only be taken when they are needed so that a disadvantaged racial group can enjoy their human rights equally with others.

Equality does not always mean treating people the same. There are two types of equality: ‘formal’ equality and ‘substantive’ equality. Formal equality is treating everyone the same. Substantive equality allows different groups to be treated differently so that they can, in the end, enjoy their human rights equally. Special measures are designed to achieve substantive equality.

Differences in language, religious obligations or average health status might be relevant.

‘In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently’ (Justice Blackmun in University of California Regents v Bakke 438 US 265 (1978)).

Indigenous people in Australia as well as some migrant and refugee groups experience greater average social and economic disadvantage. Because of this disadvantage they may need special assistance to enjoy certain human rights equally with other Australians.

4. How long can special measures continue?

Special measures cannot continue once their objectives have been reached. Sometimes this can take a long time. For example, Indigenous medical services will no longer qualify as a special measure once Indigenous people enjoy health standards equivalent to other Australians. At the same time, special measures cannot permanently set-up separate rights for a particular racial group. So the measure must be temporary, even though it may take a very long time to achieve its objectives.

Example:

The High Court found South Australia’s 1981 Pitjantjatjara Land Rights Act was a special measure even though it had an “obvious air of permanency”. The law had the sole purpose of securing the advancement of the Pitjantjatjara Aboriginal people and was necessary because of the importance of land to Indigenous culture. The objectives of the law had not been reached and so it qualified as a special measure (Gerhardy v Brown (1985) 159 CLR 70). W Sadurski’s article ‘Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case that Wasn’t’ Sydney Law Review, Vol.1, March 1986, pages 5-43, discusses this case).

Obligations and responsibilities

Who can take special measures?

Special measures can be taken by private organisations and governments.

Who has to prove that an act is a special measure?

The organisation or government accused of racial discrimination must prove that the action was a special measure.

Are governments obliged to provide special measures?

The ‘Race Convention’ imposes an obligation on governments to introduce special measures when necessary (article 2(2), International Convention on the Elimination of All Forms of Racial Discrimination). In Australia, the state and federal governments decide whether a special measure is necessary. Australian courts can test the reasonableness of this decision but cannot force a government to take special measures.


Produced by the Race Discrimination Unit, Australian Human Rights Commission, June 2003.

Disclaimer: This document provides general information only on the subject matter covered. The Commission does not assume a duty of care with respect to this information. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice. The information contained in this document may be amended from time to time.

 

Last updated 16 June 2003.