The Suspension and Reinstatement of the RDA and Special Measures in the NTER

The Suspension and Reinstatement of the RDA and Special Measures in the NTER



1. Background: suspension of the Racial Discrimination Act 1975 (Cth) (RDA) under the NTER Legislation

In June 2007, the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse provided its report, Little Children are Sacred, to the Chief Minister of the Northern Territory.

On 21 June 2007, in response to the Board of Inquiry's findings, the Howard Government announced the ‘national emergency response to protect Aboriginal children in the Northern Territory’ from sexual abuse and family violence. Also on 21 June 2007 the Government enacted the Northern Territory National Emergency Response (NTER) NTER legislation. The NTER legislation when originally enacted comprised a package of five Acts:

  • Northern Territory National Emergency Response Act 2007 (Cth) (NTER Act);
  • Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth) (SSWP Act);
  • Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) (FCSIA Act);
  • Appropriation (Northern Territory National Emergency Response) Act (No. 1) 2007-2008 2007 (Cth) (Appropriation Act No 1);
  • Appropriation (Northern Territory National Emergency Response) Act (No. 2) 2007-2008 2007 (Cth) (Appropriation Act No 2).

The NTER legislation applied to a wide range of ‘prescribed areas’ in which Aboriginal people are the sole or predominant inhabitants, including Aboriginal land, declared town camps and other declared areas. Some of the significant features of the NT intervention package included:

  • bans on the sale and consumption of alcohol in prescribed areas;
  • bans on the possession and supply of pornographic material in prescribed areas;
  • compulsory acquisition by the Commonwealth of 5-year leases over declared Aboriginal land, Aboriginal ‘community living areas’ and town camps;
  • denial of compensation equivalent to that to which another landholder in the NT would be entitled for compulsory acquisition;
  • the exclusion of customary law and cultural practice as a factor relevant to sentencing and bail decisions;
  • the application of income management to residents of prescribed (and other declared) areas;
  • the denial of review by the Social Security Appeals Tribunal of income management decisions; and
  • modifications to the permit system to allow greater access to Aboriginal land.

Relevantly, the NTER Act, the SSWP Act and the FCSIA Act provided that acts done under or for the purposes of those Acts were:

  • (1) excluded from the operation of Part II of the RDA (prohibition on racial discrimination), [1] and
  • (2) ‘special measures’ for the purposes of s 8 of the Racial Discrimination Act 1975 (Cth). [2]

The practical effect of the legislation was to suspend the operation of the RDA in relation to the intervention measures and to deem acts done pursuant to the NTER, SSWP and FCSIA Acts to be ‘special measures’.

Similarly, the operation of certain Northern Territory and Queensland legislation dealing with discrimination was excluded.

The terms of the particular sections as originally enacted are set out in Annexure A to this note.

1.1. Suspension of the NTER Act, the SSWP Act and the FCSIA Act from the operation of Part II of the RDA (prohibition on racial discrimination)

(a) Part II of the RDA

Part II of the RDA proscribes racial discrimination in subsections 9(1) [3] and 9(1A) [4] and provides for the right to equality before the law in s 10.[5] Section 9 is relevant to an allegation that an act or conduct of a person[6] is discriminatory. [7] Section 10 is relevant to an allegation that a law is discriminatory in its terms or its practical effect. [8] To make a successful claim under s 10 of the RDA, the complainant must be able to show that the discrimination complained of arises by reason of a statutory provision.[9]

The making of laws by the Commonwealth and State and Territory legislatures or delegated lawmakers cannot be challenged as an act under s 9.[10] Instead, the resulting law or delegated legislation can only be challenged under s 10.

To make a successful claim under s 10 of the RDA, the complainant must be able to show that by reason of a law of the Commonwealth or of a State or Territory: (1) persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race; or (2) persons of a particular race, colour or national or ethnic origin enjoy a right to a more limited extent than persons of another race. [11]

The provisions of the NTER legislation were targeted directly at Indigenous people. As a result, they were clearly open to challenge as being racially discriminatory. By suspending (excluding) the operation of Part II of the RDA, the members of the communities affected by the NTER legislation were effectively denied the protections afforded by the RDA to every other citizen to challenge legislation that they consider to be in breach of the RDA .

1.2. Deeming of acts done pursuant to the NTER Act, the SSWP Act and the FCSIA Act to ‘special measures’ for the purposes of s 8 of the Racial Discrimination Act 1975 (Cth).

(a) Meaning of ‘special measures’

Section 8(1) RDA has the effect that ‘special measures’ are one of the few exceptions to the prohibition on discrimination in the RDA 1975 (Cth). [12] The concept of ‘special measures’ is generally understood to apply to positive measures taken to advance the human rights of certain racial or ethnic groups or individuals by redressing historical disadvantage and creating more favourable conditions or conferring benefits on a particular racial group. Measures characterised as ‘special measures’ are protected from challenge by those outside the racial or ethnic group who cannot access the measure or do not benefit from them. [13]

Accordingly, the expression ‘special measures’ has often been used interchangeably with expressions such as ‘affirmative action’ and the concept has been understood to protect positive Criteria for ‘special measures’

(b) Criteria of a special measure

To meet the requirements of a ‘special measure’, a measure must comply with all of the following criteria:

  • the measure must confer a benefit on some or all members of a class of people;
  • membership of this class must be based on race, colour, descent, or national or ethnic origin
  • 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;
  • the protection given to the beneficiaries by the measure must be necessary for them to enjoy and exercise their human rights equally with others; and
  • the measure must not have already achieved its objectives. [14]
(c) Characterisation of the NTER measures as ‘special measures’

By deeming the NTER measures to be ‘special measures’, they were effectively deemed to be non-discriminatory and beyond the reach of the RDA. Characterising the measures as ‘special measures’ is contentious because rather than being an obviously positive measure taken to redress historical disadvantage and create more favourable conditions or confer benefits on a particular racial group (for example, like Abstudy) the NTER measures purport to have a protective purpose for some Indigenous people, or some members of Indigenous communities, but operate by restricting the rights of some or all of the members of those groups or communities.

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[1] s132(2) NTER Act, s4 (2) FCSIA, s4(3), 6(3) SSWP Act.
[2] NTER Act s 132(1), FCSIA Act s 4(1), SSWP Act ss 4(1), (2) and (4) and 6(2).
[3] Section 9(1) prohibits what is generally known as ‘direct’ race discrimination:
  • (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
Section 9 makes unlawful a wide range of acts (‘any act’ involving a relevant distinction etc which has a relevant purpose or effect) in a wide range of situations (‘the political, economic, social, cultural or any other field of public life’).
[4] Section 9(1A), prohibits ‘indirect’ race discrimination:
(1A) Where:              
  • (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
  • (b) the other person does not or cannot comply with the term, condition or requirement; and
  • (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
[5] Section 10 of the RDA provides for a general right to equality before the law:
  • (1)       If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
  • (2)        A reference in subsection (1) to a right includes a reference to a right of a kind referred to in article 5 of the Convention.
  • (3)        Where a law contains a provision that:
  • (a)        authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or
  • (b)        prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;
    not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.
[6] ‘Person’ includes ‘a body politic or corporate as well as an individual’: Acts Interpretation Act 1901 (Cth) s 22(1)(a).
[7] This includes action taken by a person to implement a Commonwealth, State or Territory law where that person has discretion about whether to implement the law in a discriminatory or non-discriminatory manner. However, s 10 would appear to apply to a discriminatory action taken by a person which is required by a Commonwealth, State or Territory law. See Gerhardy v Brown (1985) 159 CLR 70, 92 (Mason J), 81 (Gibbs CJ); Aboriginal Legal Rights Movement v South Australia (1995) 64 SASR 558, [12] (Doyle CJ); Western Australia v Ward (2002) 213 CLR 1, 97-98 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The Commission was granted leave to intervene in Western Australia v Ward (2002) 213 CLR 1 and its submissions are available at http://www.humanrights.gov.au/legal/submissions_court/guidelines/submiss....
[8] See Gerhardy v Brown (1985) 159 CLR 70, 81 (Gibbs CJ), 92-93 (Mason J) and 119 (Brennan J); Mabo v Queensland (1988) 166 CLR 186, 198 (Mason CJ), 204 (Wilson J), 216 (Brennan, Toohey and Gaudron JJ) and 242 (Dawson J); Western Australia v Ward (2002) 213 CLR 1, 98 [103] and 107 [126] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Bropho v Western Australia [2008] FCAFC 100, [73].
[9] Sahak v Minister for Immigration & Multicultural Affairs (2002) 123 FCR 514, 523 [35] (Goldberg and Hely JJ); Bropho v Western Australia [2008] FCAFC 100, [64[, [73].
[10] Gerhardy v Brown (1985) 159 CLR, 81 (Gibbs CJ), 92-93 (Mason J), 120 (Brennan J); Mabo v Queensland (1988) 166 CLR 186, 197 (Mason CJ), 203 (Wilson J) and 216 (Brennan, Toohey and Gaudron JJ); Western Australia v Ward (2002) 213 CLR 1, 97-98 [102] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Bropho v Western Australia [2008] FCAFC 100, [70].
[11] Sahak v Minister for Immigration & Multicultural Affairs (2002) 123 FCR 514, 523 [35] (Goldberg and Hely JJ).
[12] Section 8(1) provides:
  • (1) This Part does not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies except measures in relation to which sub-section 10(1) applies by virtue of sub-section 10(3).
[13] Committee on the Elimination of Racial Discrimination, General Recommendation 32, [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.
[14] Gerhardy v Brown (1985) 159 CLR 70 ,133 (Brennan J).