The Racial Discrimination Act 1975 (the RDA) is the embodiment in domestic law of Australia's obligations under the United Nations Convention on the Elimination of All Forms of Racial Discrimination. Since its enactment, the RDA has been important in ensuring the protection of all Australians from racial discrimination. However, it has perhaps been more critical for Indigenous Australians than any other group in Australian society. The RDA has been used by many Indigenous Australians to protect their rights against discrimination by governments, organisations and individuals.
Since its enactment, the RDA has been integral to shifting contemporary Australian attitudes towards racism and discrimination. Most Australian would now regard it as unthinkable that a State Government could legislate to prevent land ownership by Aboriginal people or that an organisation could refuse to employ a person on the basis of their Aboriginality.
The NTER Act (and other NTER enactments) suspend the operation of the RDA in the following manner:
132 Racial Discrimination Act
(1) The provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975, special measures.
(2) The provisions of this Act, and 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.
(3) In this section, a reference to any acts done includes a reference to any failure to do an act.
The provision attempts to characterise the NTER measures as "special measures". The term "special measures" has a specific meaning under the RDA and CERD, being:
"measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure equal enjoyment or exercise of human rights and fundamental freedom, 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."
(Convention on the Elimination of all forms of Racial Discrimination (CERD) Article 1(4)).
Generally, this requires that the measures are (1) designed specifically to improve the circumstances of a certain racial group - being therefore technically discriminatory, but in a positive sense; (2) supported by the majority of those affected; and (3) a reasonable and proportionate means of achieving substantive equality. The suspension of the RDA removed and room for debate about the reasonableness or proportionality of the measures, making it reasonably apparent that the former government was not confident that the measures would meet the standard required of special measures. The lack of any consultation preceding the introduction of the NT intervention measures also significantly weakens the basis for suggesting the measures are "special measures".
The Law Council stated in a submission in response to the NTER legislation in August 2007 [link to submission] that:
"The Law Council considers the inclusion in legislation proposed to be enacted by the Australian Parliament in 2007 of a provision specifically excluding the operation of the RDA to be utterly unacceptable. Such an extraordinary development places Australia in direct and unashamed contravention of its obligations under relevant international instruments, most relevantly the United Nations Charter and the International Convention on the Elimination of All Forms of Racial Discrimination ("CERD"). In addition to its status as a treaty obligation, contained in all major human rights instruments, the prohibition of racial discrimination has attained the status of customary international law, and has been characterised as one of the "least controversial examples of the class" of jus cogens. Jus cogens or peremptory norms of international law are overriding principles of international law, distinguished by their indelibility and non-derogability. They cannot be set aside by treaty or by acquiescence. Other "least controversial" examples of jus cogens include the prohibition of the use of force, the prohibitions of genocide, slavery and apartheid, and the principle of self-determination."
The United Nations Human Rights Committee has since condemned the suspension of the RDA in its ‘Concluding Observations' of Australia's performance under the International Declaration on Civil and Political Rights and called upon the Australian Government to reinstate the RDA as soon as possible.
The Law Council has welcomed the Government's commitment to introduce legislation in the Spring 2009 Parliamentary sitting period to restore the operation of the Racial Discrimination Act 1975 in relation to the NT Intervention.