RDA – the smoke and mirrors way  

The CLC has told a Senate inquiry today that the Government’s Bill to restore the Racial Discrimination Act does nothing to improve the most draconian measures of the NTER and continues the spirit of bad faith embedded in NTER legislation.

CLC Director David Ross said the NTER legislation would remain discriminatory despite the Government’s Bill to remove clauses which exclude the operation of the RDA.

“Reinstating the Racial Discrimination Act was an election promise to the Aboriginal people of the Northern Territory. This Bill does not keep that promise,” Mr Ross said.

“This is a smoke and mirrors approach to reinstating the RDA since the Government knows full well that the NTER legislation will prevail over it,” he said.

“There was one very simple solution that the government has deliberately avoided   – insert a simple clause to ensure the Racial Discrimination Act prevails over the NTER. That is what we are asking for.

 “The Government’s acquisition of five year leases is one of the most hated elements of the NTER and the Government continues to put them beyond the challenge of the RDA.

“Seizure of Aboriginal land was clearly discriminatory and these Bills should provide for the repeal of five year leases.

“It  has gone to extraordinary lengths to deliver a tricked up NTER that seeks to convince people it is something it’s not. It’s business as usual.

In regard to other elements of the NTER before the committee, the CLC believes that income management should be the subject of a separate Bill and be open to wide ranging public debate if it is to be enacted nationally.  

“We don’t support the proposed model which is premised on an assumption that welfare recipients don’t look after their children.

“This is extremely significant legislation which all Australians are entitled to be informed about and it should at least be a transparent process rather than being cloaked within Aboriginal affairs. It’s subterfuge,” Mr Ross said.

Discriminatory measures including  the retention of the business management area powers, controls on government funded computers on Aboriginal land, the retention of the Australian Crime Commission’s additional powers and the removal of the permit system/creation of a public right of access to Aboriginal land  continue to survive the Government Bill.

17 february 2010

The RDA – a brief

• The Howard government suspended the RDA upon introducing the Northern Territory National Emergency Response Act 2007 (NTNER). Presumably they did so because they believed that the NTNER measures were discriminatory and therefore inconsistent with the RDA.

• The Rudd government claims to be "reinstating" the RDA. However it will leave all of the NTNER measures in place, but will simply call them "Special Measures" under the RDA (except for the income management provisions).

The NTNER Provisions are not Special Measures

• There is serious doubt as to whether the NTNER provisions can be correctly called ‘special measures.’ This is because:

1. A special measure must meet certain criteria (as outlined in Gerhardy v Brown). Such criteria includes, among other matters, that it must benefit some or all members of a group based on race, it must be for the sole purpose of securing adequate advancement of the beneficiaries, and it must be necessary for the group to achieve the enjoyment of human rights.

The advice of Stuart Glacken SC, annexed to the NLC’s submission, concludes that the 5 year leases do not meet these criteria. The 5 year leases are not being amended in any significant way which would effect this conclusion.

In and of themselves, 5 years leases provide no benefits. They could also not be considered ‘necessary’ as a process for obtaining leases (which included consultation with and consent of traditional owners) was already in place under the ALRA..

2. The consent of the persons affected by the ‘special measures’ has not being obtained.

Justice Brenann of the High Court said in Gerhardy v Brown that “The wishes of the beneficiaries for the measure are of great importance (perhaps essential).”

The Aboriginal and Torres Strait Islander Social Justice Commissioner has argued that consent is crucial to determining whether the provisions can be considered special measures (Social Justice Report 2007). 

 
If the NTNER provisions are not Special Measures then the NTNER will repeal the RDA to the extent that those two acts are inconsistent

• The doctrine of implied repeal states that where two pieces of legislation are inconsistent, the later law (by implication) repeals the earlier law to the extent of any inconsistency.

• The government claims the NTNER provisions are consistent with the RDA because they are special measures. As discussed above there is serious doubt about whether this is correct.

• If the NTNER provisions are not special measures, then there appears to be a clear inconsistency between the NTNER and the RDA – especially in respect to 5 year leases.

• The NTNER is later in time than the RDA.

• Accordingly, rather than "reinstating” the RDA, the NTNER will repeal the RDA to the extent that there is any inconsistency. The provisions of the NTNER will prevail.

  
Action necessary to prevent this

·                     The government has stated that it believes all NTNER provisions are special measures or are non-discriminatory.

·                     If the government genuinely believes this then there is no reason why the NTNER should not be made subject to the RDA.

·                     This can be done, as a number of submissions have recognised, by including a clause to the effect that the RDA will prevail over the provisions in the NTNER. Such a provision is included in the Greens Bill.

·                     The CLC believes it is disingenuous, if not misleading, for the Government to describe all of the NTNER measures as non-discriminatory or special measures when the Government Bill does not allow for such measures to be challenged under the RDA.

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