8 August 2007

Racial Discrimination Act is a vital human rights safeguard

Statement by the Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission (HREOC) has long been calling on governments to take action to curb violence, and child and alcohol abuse in Indigenous communities in the Northern Territory. However, it is vital that any action taken protects basic human rights, including the right to be protected from discrimination purely on the basis of a person’s race.

HREOC has welcomed the federal government’s recognition of the broad ranging nature of social and economic problems in many Indigenous communities. This recognition has presented an historic opportunity to deal with this national tragedy.

In the legislation announced yesterday HREOC particularly supports:

  • the commitment of significant financial resources to address disadvantage;
  • providing follow-up targeted primary health care for acute and chronic conditions;
  • investment in rehabilitation and detox programs; and
  • confirmation that native title rights will be protected from extinguishment by the temporary compulsory acquisition of Aboriginal land.

However, HREOC is concerned that the legislation seeks to sidestep the Racial Discrimination Act 1975 (Cth) (RDA).

The RDA was Australia’s first law to protect human rights and remains a proud achievement for our nation. The RDA implements Australia’s international obligations under the Convention on the elimination of all forms of racial discrimination.

Upholding the values of the RDA is vital to ensuring community respect for government action and to maintain Australia’s reputation as a nation committed to equality.

The broad legislative measures proposed will impact specifically on Indigenous people.  The legislation asserts that its provisions and acts done for the purpose of the legislation are not discriminatory as they are ‘special measures’ for the purpose of the RDA.

‘Special measures’ must be necessary and for the sole purpose of securing adequate advancement of a certain group or individuals requiring protection so as to ensure they enjoy their human rights equally with others.

HREOC is concerned that the legislation goes on to provide that it is exempt from the operation of the RDA. If the measures proposed cannot meet the test for a ‘special measure’, then rather than remove the protection of the RDA, the measures should not be enacted.

The details of the complex legislation were not exposed for considered public discussion or community consultation before introduction to Parliament, and, it seems, will quickly pass through both Houses. The many expressions of disquiet, from Indigenous communities in particular, indicate that the legislative measures have not been adequately demonstrated to them to be special measures necessary for their wellbeing. This is particularly so in relation to the leasing of Aboriginal land by the Commonwealth, and the partial removal of the permit system.

HREOC considers that it is vital to the success of the Emergency Response that the federal government engage with all the Indigenous communities that will be affected by the legislation, listen to their concerns, and ensure that the measures are necessary to deal with the matters of disadvantage being addressed.

As the government considers that the legislation must pass through Parliament quickly, much of the detail of the legislation and its proposed administration is not yet fully understood. Time might disclose aspects of the new measures that operate in ways that do not benefit Indigenous communities, and which could be improved by changes to the legislation. HREOC urges Parliament to include a requirement that the Emergency Response measures be reviewed after 12 months.

Media Contact: Louise McDermott (02) 9284 9851 or 0419 258 597