When the Government accepted the third overarching recommendation of the NTER Review Board it committed to ensuring that Government actions affecting Aboriginal communities respect Australia's human rights obligations.
This does not mean that the NTER measures will have to stop. The Government is committed to addressing the unacceptably high level of disadvantage experienced by Aboriginal people living in remote communities throughout the Northern Territory, with particular attention to the well-being of most vulnerable groups including children.
The Australian Government is a party to a number of international treaties, including the Convention on the Elimination of all Forms of Racial Discrimination, the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination against Women. The Australian Government takes its responsibilities under these United Nations Conventions very seriously.
For example, Australia has obligations regarding the protection of women and children from violence, and the right of children to a safe and nurturing environment.
The RDA implements the Convention on the Elimination of all Forms of Racial Discrimination as domestic law in Australia.
The RDA requires that all people be treated equally before the law, regardless of their race, colour or ethnicity.
This can be achieved in two ways. First, through the Government making laws which are non-discriminatory and secondly, through what are known as “special measures”. Special measures are measures that help people of a particular race to enjoy their human rights equally with others.
The concept of “special measures” in the RDA comes from the Convention on the Elimination of all Forms of Racial Discrimination. Special measures are an important part of the RDA, this Convention and other international conventions dealing with discrimination. They enable governments to make special laws to protect the people who need it most.
Under the Convention the government has an obligation, when circumstances require, to take special measures for the purpose of guaranteeing the full and equal enjoyment of human rights and fundamental freedoms.
Special measures under the RDA have a number of key features:
- the measure must result in a benefit to some or all members of a class of people
- membership of this class must be based on race, colour, descent or national or ethnic origin
- the measure must be for the sole purpose of improving the situation of the beneficiaries so they can enjoy and exercise their human rights and fundamental freedoms equally with others
- the protection given to the beneficiaries by the measure are necessary in order to achieve this equal enjoyment of human rights and freedoms; and
- the measure must end as soon as it has achieved its aims.
Examples of measures that are special measures include the Abstudy program and the national legislative scheme for the incorporation of Indigenous corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
This discussion paper outlines the Government’s proposal for the future of a number of measures that are part of the NTER.
The Government believes that the NTER measures are beneficial and would like to hear more from people in the affected communities.
The Government will listen carefully to the views expressed during the consultations before deciding on any changes to the measures.
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Action proposed by the Government
The Government will introduce legislation into the Parliament in October 2009 to remove the provisions in the three pieces of legislation that exclude the operation of the RDA and the Northern Territory anti-discrimination laws.
The provisions that will be removed are contained in three pieces of legislation, namely the:
- Northern Territory National Emergency Response Act 2007
- Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007; and
- Social Security and Other Legislation Amendment (Welfare Payments Reform) Act 2007.
The Government proposes to bring legislation before the Parliament that will repeal the provisions that exclude the operation of the RDA and the Northern Territory anti-discrimination laws from the day the new legislation comes into operation. However, any changes to the NTER measures should occur smoothly without causing any major disruption to individuals and communities, and without undoing the gains that have been achieved so far. In redesigning the various measures the Government will look at how to ensure a smooth and effective transition to the redesigned measures.