On 21 June 2007 Australia became, in the words of Guy Rundle, "the first member of the Coalition of the Willing to invade itself". The Howard government’s Northern Territory Emergency Response could only be implemented by suspending the Racial Discrimination Act 1975 (RDA).
The Rudd Government initially promised to remove those provisions of the "Intervention" legislation that clashed with the RDA and to reinstate it by October 2009; this has now been pushed back to late November. Amnesty International is campaigning to have the RDA reinstated immediately and, on 29 October, the Greens introduced legislation in the Senate to that effect.
It remains unclear, however, exactly what the Government’s reinstatement of the Racial Discrimination Act will entail. There are three ways Kevin Rudd and Minister for Indigenous Affairs Jenny Macklin could elect to restore the RDA — once they finally decide to do so.
Firstly, they could remove all initiatives from the legislation that apply only to Aboriginal people.
Secondly, they could widen the scope of the legislation so that it applies to all citizens — and therefore does not discriminate on the basis of race. Last month, Crikey reported that unidentified sources had indicated the Government was considering extending income management to all welfare recipients to avoid a breach of the RDA.
And finally, they could elect to retain those aspects of the Emergency Response legislation that can be classed as "special measures" under the RDA.
Statements made by Jenny Macklin suggest that the Government is favouring this last option: "special measures". As to why there has been such a delay in restoring the RDA, speculation abounds that the legal advice that the Government sought — to determine how to retain the core of the Emergency Response without conflict with the RDA — was not as favourable as had been hoped.
So where do the conflicts between the RDA and the Emergency Response lie? The RDA was passed to satisfy Australia’s obligations under the Convention on the Elimination of all Forms of Racial Discrimination (CERD). It provides for equality under the law and stipulates that persons of a "particular race, colour or national or ethnic origin: cannot be prevented from enjoying a human right or fundamental freedom enjoyed by others".
The Act does not forbid all race-based legislation, however. In the words of Tom Calma in 2004, when he was acting race discrimination commissioner, "if there are two people stuck down two different wells, one of them is 5 metres deep and the other is 10 metres deep, throwing them both 5 metres of rope would only accord formal equality".
The RDA acknowledges that some groups may require special protection to enable them to enjoy equal human rights and fundamental freedoms. It achieves this goal by providing that "special measures" passed to secure the advancement of particular racial/ethnic groups do not constitute racial discrimination. Indeed, CERD obliges states to take special measures "when the circumstances so warrant".
The question is: what constitutes a "special measure"? The general connotation is a positive one; Abstudy is an obvious example of a race-based initiative designed to secure Indigenous advancement rather than to perpetrate racial discrimination.
But things become more difficult when considering measures that restrict rights rather than enhancing them. In Gerhardy v Brown, the High Court set down principles guiding the interpretation of special measures which included:
The purported special measure must benefit some or all members of a racial national or ethnic group;
It must be entirely based on securing advancement of the group so that they enjoy equal human rights and freedoms;
It must be necessary so the group may enjoy equal human rights and freedoms;
It must be temporary and cannot continue after its objectives are achieved; and
The wishes of the members of the group are relevant to determining whether a measure is taken to secure their advancement.
Although there have been no federal court decisions on the matter, it is clear that in some circumstances, alcohol restrictions can constitute "special measures". In response to concerns raised by the Ngaanyatjarra Pitjantjatjara Yankunytjatjara (NPY) Women’s Council and other Indigenous groups, HREOC produced the Alcohol Report in 1995. The report examined human rights, alcohol and racial discrimination, and concluded that the collective benefits flowing from alcohol restrictions could outweigh restraints on individual rights. It expressed the view that the "longstanding policy of the Pitjantjatjara affiliated councils … that alcohol should not be available to members living within communities" was "not unlawful", being based on residence rather than race.
It is possible that alcohol restrictions imposed under the Intervention will survive reinstatement of the RDA. Not every aspect of the Intervention, however, can qualify as a special measure. The National Indigenous Times noted sceptically that "large parts of the NT Intervention cannot possibly be classified as ‘special measures’, hence the government’s removal of the RDA in the first place".
Compulsory income management — which involves restricting the use of welfare payments such that 50 per cent must be spent on food, clothing and rent — has been a particularly controversial aspect of the Intervention, with Amnesty characterising it as both "discriminatory and demeaning".
The Rudd Government seems firmly wedded to compulsory income management, however; Macklin maintains that it is "helping children, making families more financially secure and improving community safety by diverting money away from alcohol and gambling". These are not considerations to be treated lightly.
Macklin has expressed her "personal view … that compulsory income management can be seen as a special measure". Others are less certain. Amnesty considers that the Government is "distorting the principle of special measures"; campaign coordinator Sarah Marland argues that while "protecting the rights of women and children to live free from violence and abuse is … a key responsibility for all levels of government", this "doesn’t mean that people in the Northern Territory have to have fewer rights, less money and less control of their own lives".
Further, the 2008 Review of the Intervention identified income management as a possible breach of the RDA. The review recommended that it be available on a voluntary basis and ought only to be compulsory on the basis of child protection, school enrolment and attendance and other relevant behavioural triggers. The blanket nature of income management may suggest that this measure goes beyond what is "necessary".
The requirement that the measure confer a benefit is also relevant. In the 1996 "Palm Island Wages" case, the Queensland Government argued that its former legislation authorising lower wages for Aboriginal people (which were in place until 1984) were special measures because they aimed to further the "development, education and training" of Aboriginal people.
It was found that these laws did not provide a benefit, that they were implemented against the wishes of the inhabitants of Palm Island, and that they denied Aboriginal workers their human rights equal pay for equal work. The decision noted that the complainants: "might well regard the administration of the Queensland laws as part and parcel of … a government policy which was intensely paternalistic, the practical effect of which was to demean them and to lower their self respect rather to ensure their enjoyment of and the exercise of their human rights".
In short, it is uncertain whether blanket compulsory income management constitutes a special measure. The Australian Human Rights Commission noted in August 2007 that "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". In Gerhardy v Brown, the Court noted that a special measure will not bring about advancement if it is conferred against the group’s will: the "dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them".
One thing, at least, is certain: compulsory income management poses serious questions about the meaning of special measures and of substantive equality, the purpose of the RDA and the role of government in regulating the lives of Australian welfare recipients.
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