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Guidelines to understanding ‘Special measures’ in the Racial Discrimination Act 1975 (Cth) (2011)

Guidelines to understanding ‘Special measures’ in the Racial Discrimination Act 1975 (Cth)

Implementing ‘special measures’
under the Racial Discrimination Act 1975 (Cth)

2011

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1 Introduction

  1. The Racial Discrimination Act 1975 (Cth) (RDA) prohibits racial
    discrimination under sections 9 and 10 of the Act but allows for ‘special
    measures’ to be taken to advance the human rights of certain racial or
    ethnic groups or individuals under section 8 of the Act.

  2. The Australian Human Rights Commission has prepared these guidelines to
    provide assistance to those designing and implementing ‘special
    measures’ to ensure that measures intended to be ‘special
    measures’ meet the requirements of the RDA and are consistent with human
    rights principles.[1] The guidelines
    are based on international laws[2] and
    policies that provide guidance on how to implement special measures and on the
    Commission’s extensive experience and expertise in the administration of
    the RDA and other discrimination and human rights laws.

2 The concept of equality
and the role of ‘special measures’

  1. In order to understand the scope and meaning of the term ‘special
    measure’ it is helpful to consider the concept of ‘equality’
    that underpins the RDA. The right to equality and non-discrimination are
    fundamental human rights. These rights are central to the RDA and the
    International Convention on the Elimination of all forms of Racial
    Discrimination (ICERD), which the RDA
    implements.[3] Equality can be formal
    (treating all people identically) or substantive (treating equally what are
    equal and differently what are unequal). Formal equality cannot address
    inequities caused by existing injustices and disadvantages.

  2. The concept of special measures is generally understood to apply to positive
    measures taken to redress historical disadvantage and confer benefits on a
    particular racial group, so that they may enjoy their rights equally with other
    groups; special measures are designed to ensure the equality of outcomes for
    disadvantaged groups.

  3. Special measures, then, are essentially differential treatment between
    racial groups which are identified as necessary in order to address an existing
    inequality[4] or disadvantage. Special measures are an essential component to achieving
    substantive equality and eliminating racial discrimination. Under international
    human rights law, special measures operate in two contexts:

    • as a positive obligation on states to take action to ensure that minority
      racial groups are guaranteed the enjoyment of all human rights and fundamental
      freedoms; and
    • as an exception to the definition of discrimination.

2.1 The positive obligation to take special
measures

  1. Article 2(2) of ICERD imposes a positive obligation on parties to
    take ‘special and concrete measures to ensure the adequate development and
    protection of certain racial groups or individuals belonging to them, for the
    purpose of guaranteeing them the full and equal enjoyment of human rights and
    fundamental freedoms’.

2.2 Special measures: an exception to the
definition of discrimination

  1. Article 1(4) of ICERD provides that special measures will be considered not
    to constitute racial discrimination. Specifically, article 1(4)
    states:

    Special 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 such groups or
    individuals equal enjoyment or exercise of human rights and fundamental freedoms
    shall not be deemed racial discrimination, provided, however, that such measures
    do not, as a consequence, 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 to have been achieved.

  2. Special measures are a feature of the principle of non-discrimination in
    customary international law. Legal academic Warwick McKean notes:

    It is now generally accepted that the provision of special measures
    of protection for socially, economically, or culturally deprived groups is not
    discrimination, so long as these special measures are not continued after the
    need for them has disappeared. Such measures must be strictly compensatory and
    not permanent or else they will become discriminatory. It is important that
    these measures should be optional and not against the will of the particular
    groups affected, and they must be frequently reconsidered to ensure that they do
    not degenerate into
    discrimination.[5]

  3. Accordingly, the concept of special measures is generally understood to
    apply to positive measures taken to redress historical disadvantage and create
    more favourable conditions or confer benefits on a particular racial group. The
    expression ‘special measures’ is often used interchangeably with
    expressions such as ‘affirmative
    action’.[6] In this sense,
    special measures protect things done to benefit a disadvantaged group from being
    challenged as discriminatory by non-members of the group who do not receive the
    benefit.

3 Special Measures in the RDA

  1. The RDA is the primary instrument through which Australia implements its
    obligations under the ICERD. The expression ‘special measure’ is
    not defined in the RDA and it takes its meaning in s. 8(1) RDA, which provides
    that the RDA prohibition on racial discrimination does not apply to
    ‘special measures’, directly from, and by reference to, article 1(4)
    of ICERD.

  2. Accordingly, the effect of s.8(1) in the RDA is that if a measure is a law,
    program or action in an area that is covered by the RDA and can be characterised
    as a special measure, it will not be racially discriminatory under the
    RDA.

3.1 Criteria for ‘special
measures’

  1. The Australian courts have considered what can be characterised as a
    ‘special measure’ under section 8(1) of the RDA.
  2. It is clear that to meet the requirements of a special measure, a measure
    must comply with the following criteria:

    1. the measure must confer a benefit;

    2. on some or all members of a class of people whose membership is based
      on race, colour, descent, or national or ethnic origin;

    3. the sole purpose of the measure must be to secure adequate
      advancement of the beneficiaries so they may equally enjoy and exercise their
      human rights and fundamental freedoms;

    4. the protection given to the beneficiaries by the measure must be necessary for them to enjoy and exercise their human rights equally with
      others;[7] and

    5. the measure must not have yet achieved its objectives (the measure
      must stop once its purpose has been achieved and not set up separate rights
      permanently for different racial
      groups).[8]

3.2 Explaining the criteria

3.2.1 Benefit
  1. In understanding the benefit criterion, it is necessary to consider how a
    program or action may advance some or all members of the target group so that
    they can enjoy their human rights equally with others. In Gerhardy v
    Brown[9]
    , Brennan J considered how
    to define advancement. His Honour stated:

    A special measure must
    have the sole purpose of securing advancement, but what is
    ‘advancement’? To some extent, that is a matter of opinion formed
    with reference to the circumstances in which the measure is intended to operate.
    ‘Advancement’ is not necessarily what the person who takes the
    measure regards as a benefit for the beneficiaries. 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
    .[10]

  2. The wishes of the beneficiaries identified by Brennan J are fundamentally
    tied with the right to self-determination recognised in the International
    Covenant on Civil and Political Rights (the
    ICCPR)[11] and the International
    Convention on Economic, Social and Cultural Rights (the
    ICESCR).[12] The Committee on the
    Elimination of Racial Discrimination has stated:

    States parties
    should ensure that special measures are designed and implemented on the basis of
    prior consultation with affected communities and the active participation of
    such communities.[13]

  3. Furthermore, the Committee has called upon parties to ICERD
    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.[14]

  4. Moreover, the Declaration on the Rights of Indigenous Peoples has affirmed
    the right of Indigenous peoples to self-determination and has endorsed the
    standard of ‘free, prior and informed consent’ in dealings with
    Indigenous peoples. Article 19 states:

    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.

  5. With regards to construing what constitutes a benefit, then, effective and
    appropriate consultation is fundamental if Australia is to meet its
    International human rights obligations. However, since Gerhardy v. Brown,
    the Courts have not been unanimous in the weight to be accorded to the wishes of
    the beneficiaries in determining whether a measure is taken for the purpose of
    securing their advancement.

  6. In Bropho v Western
    Australia
    [15] Nicholson J held
    that the whole of the Reserves (Reserve 43131) Act 2003 (WA) was a
    special measure pursuant to s 8 of the
    RDA.[16] Nicholson J noted the dicta
    of Brennan J in Gerhardy v Brown that ‘the wishes of the
    beneficiaries of the measure are also of great importance in satisfying the
    element of advancement’. However he held that ‘that dicta was not
    supported by the other justices and is not consistent with the general
    principles expressed in the case.’ He went on to note that a large number
    of the women living on the Reserve did not agree with the enactment of
    the Reserves Act and had made their objection known in an open letter to the
    Premier of Western Australia.[17] However, Nicholson J concluded that the dicta of Brennan J in Gerhardy v
    Brown
    ‘in this respect has no apparent judicial
    support’[18] and declined to
    place weight on that aspect of his reasoning. On appeal, the Full Federal Court
    found it was unnecessary to consider whether this aspect of Nicholson J’s
    reasoning was correct.[19]

  7. In contrast, in Aurukun Shire Council v CEO Office of Liquor Gaming and
    Racing in the
    Department of
    Treasury
    [20], McMurdo P
    rejected the Applicant's argument that legislative provisions in question were
    not a special measure because they did not reflect the wishes of indigenous
    people in the communities although she granted that there was 'considerable
    force' in Brennan J's statement in Gerhardy that the 'wishes of the
    beneficiaries are of great importance (perhaps essential) in determining whether
    a measure is taken for the purpose of securing their advancement'. In
    particular, McMurdo P considered that this approach was consistent with
    Indigenous peoples’ ‘right to self- determination’. However,
    she found that the material before the Court suggested that there was 'a strong
    body of informed support within the appellants' communities for the impugned
    provisions and the scheme of which they form
    part'.[21]

  8. Lastly, in Morton v Queensland Police
    Service
    ,[22] the Queensland
    Court of Appeal supported consultation with intended beneficiaries, describing
    meaningful consultation as ‘highly desirable’ and important in
    ensuring that the measure is appropriately designed and effective in achieving
    its objective.[23] The Court stopped
    short, however, of making the process of consultation and consent a mandatory
    requirement for a valid special measure. In the Court’s view, there are
    legitimate reasons for not doing so, including potential difficulty in
    reconciling competing views within a group affected by the
    measure,[24] and that some
    beneficiaries, perhaps for age, infirmity or cultural reasons, may have
    difficulty in expressing an informed and genuinely free opinion on the proposed
    measure.[25]

  9. In Australia, then, while the Courts have, on balance, recognised that the
    wishes of the intended beneficiaries are of importance in establishing whether
    the measure is a special measure - describing meaningful consultation as
    ‘highly desirable’ and important in ensuring that the measure is
    appropriately designed and effective in achieving its objective - the Courts
    have stopped short of making the process of consultation and consent a mandatory
    requirement for a valid special measure, especially where there are legitimate
    reasons for not consulting. Further, where there are competing views within a
    group, it may be sufficient that there is a strong body of informed support
    within that group.
3.2.2 Class of people
  1. The benefit must apply to some or all members of a class of people whose
    membership of that class is based on race, colour, descent, or national or
    ethnic origin.
3.2.3 Sole purpose
  1. In Gerhardy v Brown, Justice Deane explains sole purpose as:

    What is necessary for characterization of legislative
    provisions as having been "taken" for a "sole purpose" is that they can be seen,
    in the factual context, to be really and not colourably or fancifully referable
    to and explicable by the sole purpose which is said to provide their character.
    They will not be properly so characterized unless their provisions are capable
    of being reasonably considered to be appropriate and adapted to achieving that
    purpose. Beyond that, the Court is not concerned to determine whether the
    provisions are the appropriate ones to achieve, or whether they will in fact
    achieve, the particular
    purpose.[26] 

  2. Special measures should have a specific and clear aim in correcting the
    situation where members of a racial or ethnic group have experienced inequality.
    Special measures should be proportional to the degree of disadvantage
    experienced by the target population. Where the disadvantage is: not widely
    entrenched, does not apply to the group as whole or does not have consequences
    that affect the broader community, then measures should be less intrusive. A
    measure must be appropriate and adapted to achieving its stated purpose. This
    point relates to the requirement of both sole purpose and necessity.

  3. The principle of proportionality requires a precise balancing of the impact
    of a measure with the stated intent of the measure. Is the proposed measure the
    only one, or the least restrictive one, which will achieve the stated intent of
    the measure?While it is appropriate to consider the effect of
    legislation as a whole when determining whether it is a ‘special
    measure’, it is still necessary for its parts to be ‘appropriate and
    adapted’ to this purpose.[27]

  4. In Vanstone v Clark[28] Justice Weinberg rejected the submission that once it is accepted that a
    particular provision of an act is a special measure, the different elements of
    the provision cannot be separately attacked as discriminatory. Justice Weinberg
    stated that such a proposition:

    involves a strained, if not perverse, reading of s8 of
    the RDA, and would thwart rather than promote the intention of the legislature.
    If the submission were correct, any provision of an ancillary nature that
    inflicted disadvantage upon the group protected under a ‘special
    measure’ would itself be immune from the operation of the RDA simply by
    reason of it being attached to that special
    measure.[29]

  5. Both the notion of proportionality and appropriateness can be understood in
    relation to references to discrimination in international law. Brownlie
    states:

    The principle of equality before the law allows for
    factual differences such as sex or age and is not based on a mechanical
    conception of equality. The distinction must have an objective justification;
    the means employed to establish a different treatment must be proportionate to
    the justification for differentiation; and there is a burden of proof on the
    Party seeking to set up an exception to the equality
    principle.[30]

3.2.4 Necessity
  1. To qualify as necessary, a law, program or action must be required to enable
    the target group to enjoy their human rights equally with other members of
    society. The measures should be capable of being reasonably considered to be
    appropriate and adapted to achieving the purpose of securing an objective set
    out in ICERD article 1(4). In other words, the law, program or action must
    address the actual disadvantage of the targeted group and there must be a
    demonstrable link between the measure and its stated objective.

  2. To establish a demonstrable link a proposed measure must be supported by a
    reasonable evidence base that includes recent and reliable quantitative and
    qualitative data which establishes that the proposed measure is justifiable as
    necessary to achieving the stated intent of the proposed measure and enable the
    equal enjoyment of human rights, has a clear intent, effectively addresses the
    actual disadvantage of the target group and will have the intended
    impact/outcomes.[31]

  3. Pieces of legislation or policy may include aspects that are special
    measures and all parts of a ‘special measure’ must be
    ‘appropriate and adapted’ to the relevant purpose for them to be
    necessary. That is, just because some aspect of a measure is a special measure,
    it does not mean that all aspects of that measure are immune from challenge.
3.2.5 Must stop once objectives are
achieved
  1. Though the duration of special measures may be significant in some
    circumstances, the measures must be discontinued when they have achieved their
    stated purpose. Accordingly, it is imperative that special measures are subject
    to a periodic and comprehensive assessment/evaluation both by government and key
    stakeholders to monitor progress and to determine whether or not the measure has
    achieved its purpose. Significantly, a measure which satisfies the first four
    criteria will not be a special measure if the final criterion, that the special
    measure must stop once its purpose has been achieved, is not also met.

4. Case example illustrating a special
measure

  1. In Bruch v
    Commonwealth,
    [32] a
    non-indigenous Australian student claimed that the Commonwealth had unlawfully
    discriminated against him because he could not claim ABSTUDY rental assistance
    benefits. McInnis FM held that the ABSTUDY rental assistance scheme did not
    cause the Commonwealth to contravene the RDA because it constituted a
    ‘special measure’ for the benefit of Indigenous people within the
    meaning of s 8(1) of the RDA.

  2. McInnis FM found that the five criteria identified by Brennan J In Gerhardy v. Brown were satisfied because:

    • the ABSTUDY rental assistance scheme conferred a benefit on a clearly
      defined class of natural persons made up of Aboriginal and Torres Strait
      Islander people;

    • that class was based on race;

    • the sole purpose of the ABSTUDY rental assistance scheme was to ensure the
      equal enjoyment of the human rights of that class with respect to
      education;

    • the rental assistance component of the ABSTUDY scheme was necessary to
      ensure that the class improved its rate of participation in education and, in
      particular, tertiary education; and

    • the objectives for which the ABSTUDY rental assistance scheme was introduced
      had not been achieved.

5. Conclusion

  1. These guidelines are not legally binding and do not alter the operation of
    the RDA. However, the Guidelines have been developed to provide guidance about
    the operation of special measures in the RDA.


[1] The guidelines have been
prepared in the exercise of the Commission’s function under s 20(d) of the
RDA, which provides for the Commission to prepare, and to publish in such manner
as the Commission considers appropriate, guidelines for the avoidance of
infringements of the operative provisions of the
RDA.
[2] See, for example,
(International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) (Art 1(4)), which provides:

Special 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 such groups or individuals equal enjoyment
or exercise of human rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a consequence,
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 to
have been achieved.
Also, article 21 of The Declaration on the Rights of
Indigenous Peoples provides that:

1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including, inter alia, in
the areas of education, employment, vocational training and retraining, housing,
sanitation, health and social security.

2. States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and social
conditions
. Particular attention shall be paid to the rights and special
needs of indigenous elders, women, youth, children and persons with disabilities
(emphasis added).

[3] Australia is
a party to ICERD which Australia ratified on 30 September
1975.
[4] That is, equality may
require treating ‘equally what are equal and unequally what are
unequal’ .See South West Africa Case (Second Phase) [1966] ICJR,
305-6 (Judge Tanaka); see also Committee on the Elimination of Racial
Discrimination, General Recommendation 32 (2009): The meaning and scope of
special measures in the International Convention on the Elimination of Racial
Discrimination
, [8]. UN Doc A/64/18 (Annex VIII). At http://www2.ohchr.org/english/bodies/cerd/comments.htm (viewed 11 October 2011).
[5] Warwick McKean, Equality and Discrimination under International Law (1983) 288, cited by Brennan J in Gerhardy v Brown (1985) 159 CLR 70,
130.
[6]Committee on the
Elimination of Racial Discrimination, General Recommendation 32, above
4, [12]; see also Theodor
Meron, ‘The Meaning and Reach of the International Convention on the
Elimination of All Forms of Racial Discrimination’ (1985) 79 Am J.
Int’l Law
283 at 305; Natan Lerner, The UN Convention on the
Elimination of All Forms of Racial Discrimination
(1980),
32.
[7]Gerhardy v Brown (1985) 159 CLR 70,133 (Brennan J).
[8]Gerhardy v Brown (1985) 159 CLR 70, 139-140 (Brennan
J).
[9](1985) 159 CLR 70
[10](1985)159 CLR 70, 135 (
Brennan J).
[11] ICCPR, 1976. At: http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 July 2011).
[12] ICESCR, 1976. At: http://www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed 22 July 2011).
[13] Committee on the Elimination of Racial Discrimination, General Recommendation
32
, above n 4, [18];
[14]General Recommendation
No. 23: Indigenous Peoples : 18/08/1997,
[4(d]. At http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c?Opendocument (viewed 11 October
2011).
[15] [2007] FCA
519.
[16] [2007] FCA 519,
[579]-[580].
[17] [2007] FCA 519,
[570].
[18] [2007] FCA 519,
[570].
[19]Bropho v State of
Western Australia
[2008] FCAFC 100. Note that the submissions of the
Commission as intervener argued that Nicholson J’s reasoning was in error
on this issue: see <http://www.humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html>
[20] [2010] QCA 37.
[21] Keane JA
observed that the views expressed by Brennan J in Gerhardy as to the
possibility crucial importance of the wishes of the beneficiaries of a measure
to its characterisation as a special measure commands great respect but
nevertheless, as was noted in Bropho, that view has 'no apparent judicial
support'.
[22] [2010] QCA 160,
[31] (McMurdo P),
[23] [2010] QCA
160, [31] (McMurdo P), [114] (Chesterman J, with Holmes J
agreeing).
[24] [2010] QCA 160,
[31] (McMurdo P), [114] (Chesterman J, with Holmes J
agreeing).
[25] [2010] QCA 160,
[31] (McMurdo P).
[26]Gerhardy v Brown (1985) 159 CLR 70, per Deane,
p149.
[27] Gerhardy v Brown
(1985) 159 CLR 70, 105 (Mason J), 149 (Deane
J)).
[28] [2005] FCAFC
189

[29] Weinberg J., at
208-209.
[30] Ian Brownlie, Principles of Public International Law (6th ed, 2003), 547,
footnotes omitted.
[31] To this
end, Community views on the likely success of the measure should be taken into
account formally as part of the evidence
base.
[32] [2002]FMCA 29