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Polly Peck
5 May, 2010  
Promises ... promises

Kevin Rudd promised to restore the Racial Discrimination Act in the NT … There’s well placed thinking that the proposed legislation to reform the Howard government’s NT Emergency Response will do nothing of the sort … Slippery drafting … Another slight of hand from Kev? ... Samantha Bowers reports

imageLabor’s Welfare Reform Bill, which purports to make good on the Prime Minister’s promise to reinstate the Racial Discrimination Act (RDA) in the Northern Territory, is worthy of closer attention.

The Howard regime suspended the RDA in 2007 to allow its NT intervention to operate, free of pesky racial discrimination claims.

The intervention was implemented by the Northern Territory National Emergency Response Act 2007 (NTNER Act).

It was directed solely at indigenous people and ostensibly aimed to protect children and make communities safer in the wake of the Little Children are Sacred report (though there’s doubt it it has done either).

Given that the RDA allows positive discrimination in the form of “special measures”, you might be forgiven for thinking (as Labor, the Greens and the Democrats did) that that was enough.

Indeed, Howard’s legislation was passed deeming everything in the intervention to be a “special measure” under the Racial Discrimination Act. However, he gave the RDA protections the flick for good measure – just in case it turned out they weren’t “special” after all.

Much of the current chatter about the Rudd government’s new Bill is to do with the extension of compulsory income management to the rest of the Northern Territory and the prospect of a national rollout to come.

imageFormer Family Court CJ Alastair Nicholson (pic) said this was, “little more than a ruse to overcome the provisions of the RDA”.

He suggested that it would be mostly Aboriginal people who would be caught in the income management net, no matter how widely it was cast.

But if the concerns of parties including Amnesty International Australia, the Law Society of New South Wales, the Australian Human Rights Commission and the Central Land Council are justified, Rudd’s “ruse” runs deeper than that.

The big question is, will the Welfare Reform and Reinstatement of Racial Discrimination Act Bill actually reinstate the RDA?

It all boils down to a subtle point of legislative drafting.

The principles of statutory interpretation say where two Acts are inconsistent, the later Act repeals the earlier one to the extent of the inconsistency.

The RDA is the earlier Act here. The NTNER Act came later, ushering in a raft of intervention measures which groups like the Central Land Council say are “clearly” inconsistent with the RDA’s prohibition on racial discrimination.

They say the inconsistency arises because the NTNER measures are racially discriminatory and are not actually “special measures” under the RDA. In the case of the measure allowing the government to compulsorily acquire 5 year leases of Aboriginal land, they say it can’t be a “special measure”, because there’s a clause in the RDA that specifically prevents measures “managing” Aboriginal land from being classed as such.

If a court were to agree, the inconsistent NTNER provisions would permanently override the RDA – effectively removing the RDA’s protection from the measures that need it most.

Rudd’s commitment to reinstating the RDA would be nothing but an empty promise (and a late empty promise at that) because his Bill doesn’t repeal the NTNER provisions and doesn’t stop this override from happening.

Indeed, there are claims the Bill doesn’t make any substantial changes to the Howard intervention at all; giving rise to doubts that measures will be any less discriminatory or any more “special” if the Bill is passed, than they were before.

imageThe Central Land Council said the government was avoiding its commitment to reinstate the RDA:

“Instead of reintroducing the RDA, the government is relying on tricky legal drafting and positioning themselves so they can on the one hand claim to have ‘reinstated’ the RDA, while on the other quietly white-ant the legislation of any practical effect.”

If this is true it would throw the comments of the government leader in the senate Chris Evans (pic) during the 2007 parliamentary debate into stark relief. He said then that suspension of the RDA …

“does send the wrong message that the parliament is legislating for Indigenous people but cannot do it in a way that preserves the observance of the Act, which says that you cannot discriminate against people. It is pretty fundamental.”

The rub is that parties concerned about the issue generally agree there’s a really simple way to make the whole dilemma disappear and ensure the RDA is fully reinstated as promised.

All the Welfare Reform Bill needs is a “notwithstanding” clause expressly providing that the RDA prevails over the NTNER Act.

Race Discrimination Commissioner Graeme Innes, of the Australian Human Rights Commission, said he couldn’t see any downside in the government including a “notwithstanding” clause.

Be that as it may, the government doesn’t seem too keen on the idea.

imageThe Central Land Council and other parties wrote to Indigenous Affairs Minister Jenny Macklin (pic) last month, urging her to amend the Bill to include a “notwithstanding” clause and warning that they’d be unable to support it if she didn’t. Their letter said:

“If these measures are genuinely special measures, or non-discriminatory, then there should be no reason why the NTER should not be made subject to the RDA.”

Macklin responded:

“Your letter misunderstands the effect of the Bill and the need for a notwithstanding clause.

The Commonwealth government totally rejects the assertions that the Bill fails to fully reinstate the RDA in relation to the Northern Territory Emergency Response (NTER) and that a notwithstanding clause is necessary to ensure the RDA applies, from 31 December 2010, to all of the NTER measures previously excluded from the operation of the RDA.

The Bill fully reinstates the RDA because it completely repeals all of the provisions of the NTER legislation that exclude the operation of the RDA and also completely repeals all of the provisions that state that the measures contained in the NTER legislation are deemed to be ‘special measures’.”

However, the Central Land Council suspects the government is being disingenuous; deliberately ignoring their concerns. Director David Ross has described the Bill as …

“a smoke and mirrors approach to reinstating the RDA since the government knows full well that the NTER legislation will prevail over it.”

A spokesperson for the Central Land Council said:

“The CLC certainly feels that the issue of implied repeal has been ignored and dodged.

The government has failed indigenous people and failed to deliver on an important election commitment.”

imageRace Discrimination Commissioner Graeme Innes (pic) doesn’t agree that the government has failed to meaningfully consider the implied repeal issue, but said:

“We have a different view to the government. It’s an issue of concern to us that the government says it’s not an issue.”

A spokeswoman for Minister Macklin refused to comment on whether the government had actually received any legal advice directed specifically to the question of whether, in the absence of a “notwithstanding” clause in the Bill, the NTNER legislation, being later in time, could have the effect of impliedly repealing the RDA.

When asked whether the Bill would go back before the Senate without a notwithstanding clause, she said:

“The majority report of the Senate [Community Affairs] committee did not recommend amendments.”

It has been reported that the opposition will support the welfare management Bill now that income management is set to go national.

The bill was scheduled for debate at the last sitting in March, but there wasn’t time to consider it.

Senate parliamentary liaison officer John Paraskevopoulos said the government was aiming to reschedule it for debate early in the Winter sitting, which kicks off on May 11.