A Discriminating Government


In 1975, the Whitlam Government secured the passage through parliament of the Racial Discrimination Act (RDA). This legislation was designed to give effect to Australia’s obligations under the International Convention on the Elimination of all forms of Racial Discrimination (CERD). The RDA acts to promote equality before the law for all, regardless of race, colour, or ethnic origin, and to make discrimination against people on any of these bases unlawful. It remains a cornerstone of this country’s commitment to human rights.

It is now under threat.

As the Federal Government’s ‘national emergency intervention’ juggernaut in the Northern Territory rolls on, a cavernous gulf is emerging between the Government’s rosy rhetoric, and the views of Indigenous community members on the ground. Recently, the five Bills that provide the legislative underpinning for the new arrangements were peremptorily rammed through Parliament in a legislative low-point unmatched in recent history.

Thanks to Fiona Katauskas

There is anger on the ground here in the Centre about the emasculation of the permit system, the unilateral acquisition of Aboriginal townships, the abolition of the Community Development Employment Projects (CDEP) Program and the quarantining of Centrelink benefits to people who have not been shown to be in any way irresponsible.

There is also a deep and growing suspicion of the Government’s decision to deem any action taken under the new legislation as a ‘special measure’ for the purposes of the RDA.

The RDA allows for such special measures to be exempted from the provisions of the Act, provided they comply with Article 1 of CERD:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals shall not be deemed racial discrimination, provided that such measures do not 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 have been achieved.

This provision thus sanctions ‘positive discrimination’ or ‘affirmative action’ measures introduced to redress the consequences of long-term, systemic discrimination. Policies of this kind are clearly in accord with the spirit of the legislation.

Some years ago, the Pitjantjatjara Aboriginal community of Central Australia became increasingly concerned about the damage that alcohol misuse was inflicting on their community. At the request of the Pitjantjatjara Council, an arrangement was reached between the Federal Race Discrimination Commissioner and the local roadhouse proprietor whereby particular restrictions would be placed on the sale of alcohol to members of the Pitjantjatjara community. This ‘special measure’ was arrived at only after consultation, and was based on a request from the affected community.

However the Federal Government’s NT intervention legislation has been imposed without any such consultation, much less consent. Section 132(1) of the Northern Territory National Emergency Response Act 2007 states brazenly that ‘any acts done under the purposes of these provisions are for the purposes of the Racial Discrimination Act 1975, special measures.’ Further, sub-section (2) states that ‘any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975.’

Thus the Government, not content with deeming that actions taken under the legislation are ‘special measures,’ is also taking out further insurance by suspending the central operating provisions of the RDA. This double-whammy may well be intended to counter the fact that the RDA specifically excludes from the scope of ‘special measures’ any actions to manage Indigenous-owned property without consent of the owners. Alarm bells should ring when legislation is framed to steamroll even those parts of the RDA which explicitly place particular activities beyond the ambit of the ‘special measures’ provisions.

Not surprisingly, the Human Rights and Equal Opportunity Commission (HREOC) has taken a dim view of this strategy, telling a Senate inquiry into the intervention legislation that:

A fundamental feature of ‘special measures’ is that they are done following effective consultation with the intended beneficiaries and generally with their consent. The absence of effective consultation with Indigenous people concerning the [Northern Territory National Emergency Response] measures is therefore a matter of serious concern.

In a High Court judgment on Gerhardy v Brown (1985), Justice Brennan observed that 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.’ Brennan added that ‘the dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted upon them.’

It is enormously difficult to reconcile the Government’s unilateral intervention with this principle. The growing credibility gap between the Government’s pious rhetoric and its behaviour suggests that its commitment to human rights is a ‘non-core promise.’ Whether voters consumed with interest rate variations and changes to industrial relations legislation will regard this as a deal-breaker at the forthcoming Federal election remains to be seen.

In Australia, the claim for ‘Aboriginal rights’ is increasingly regarded as being too abstract and impractical to warrant serious consideration. The Prime Minister slowed the building momentum for genuine reconciliation during the 1990s by cooking up and serving the nation an unconvincing soufflé of ‘practical reconciliation.’ On further examination, this superficially appealing dish was found to contain little in the way of nourishment: Howard would attempt to provide Aboriginal people with the basic services which are the birthright of all Australians, but would refuse to budge on the crucial elements of acknowledgement and respect.

The HREOC submission to the Senate inquiry quoted approvingly from a 1997 Australian Government White Paper which noted that ‘Unqualified commitment to racial equality is a non-negotiable tenet of our own national cohesion and it must remain a guiding principle of our international behaviour.’

Lest there remain any doubt about the Government’s conviction, the Paper concluded that ‘racial discrimination is not only morally repugnant, it repudiates Australia’s best interests.’

Australia remains ever-ready to take a poke at the human rights records of other countries, both in our region and beyond. Our very tenuous perch on this high moral ground is underpinned somewhat by our status as a signatory to many United Nations protocols. However, our preparedness to sideline the RDA for purposes of political convenience completely undermines this.

Perhaps copies of the RDA should now be printed with a disclaimer watermark which could read ‘Window dressing only not to be taken seriously.’ This way, non-initiates to the intrigue of Australian politics will readily understand that, while the document appears to be the solemn declaration of a progressive nation’s unwillingness to tolerate intolerance, it is, in reality, just a contrivance.

For, if we as a nation subscribe to fundamental moral principles only after ensuring that such commitments allow us to achieve our desired ends, then the only virtue that we can lay claim to is rat-cunning.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.