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Wednesday, 24 February 2010
Page: 1696


Mr DREYFUS (1:03 PM) —I rise in support of the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009. I add my voice to those of other speakers in this debate who have pointed out the immense importance of this legislation receiving bipartisan support. The reason it is important that it receives bipartisan support is to try to avoid something that has been endemic in government administration of matters concerning the Aboriginal community in Australia for very many decades—that is, the stop-start approach that has been taken by successive Australian governments, sometimes within the term of particular governments—as was the case for the former government, which stopped and started in a number of respects in relation to Aboriginal affairs in our country—but particularly between governments.

The reason it is important that a stop-start approach is to be avoided is that continuity in administration is vital—something that shows to the Aboriginal and Torres Strait Islander community of our country that there is some consistency, something upon which Aboriginal people and Torres Strait Islander people can plan their lives, so they can rely on the government programs, rely on the continuity of government programs and rely on a continuity of government approach. That can only be achieved if there is some consistency and, in turn, that is why the government is looking for support from the opposition for this legislation.

I would suggest that the government is entitled to look for support on a bipartisan basis for this legislation because one of the primary steps that is being taken by this bill is continuing a regime of income management in the Northern Territory, which of course was the focus of the extraordinary so-called intervention launched by the former government in June of 2007. Because it continues income management, it warrants the support of those opposite. Of course it is the case that the income management is to be now implemented on a modified basis but, nevertheless, one of the core measures that form part of the former government’s policy in June of 2007 and following is to be maintained. I will come back later to the ways in which the income management regime as it was adopted by the former government is to be modified if this legislation is passed, but the core of this bill demonstrates that the income management regime is to be continued.

One can point to statements made by the present Leader of the Opposition, the member for Warringah, before he became Leader of the Opposition, as to the importance of the extra steps that have been taken on behalf of the Aboriginal community of the Northern Territory becoming sustainable over the longer term. I am paraphrasing there, but that is in essence what the Leader of the Opposition has called for. The reforms that are contained in this legislation do just that. They make sustainable over the longer term important elements of the policy introduced by the former government—in this case, the important element of income management. It is of course the case that the government’s proposal here is to extend income management to a national basis so as to ensure that its benefits can be extended to other vulnerable Australians, but that does not in any sense take away from the need for continuity of the policies that were introduced in June 2007 by the former government, and that is what this bill is endeavouring to do.

I want to concentrate in particular on the way in which this bill reinstates the Racial Discrimination Act, because one of the most criticised aspects of the legislation introduced by the former government in 2007 was the way in which it excluded the operation of the Racial Discrimination Act 1975. The criticism was expressed by very, very many groups, by very many individuals and by many representative bodies across Australia, and it was well-founded criticism. It was criticism that was accepted by the Australian Labor Party in opposition. We gave a commitment at the last election that we would reinstate the Racial Discrimination Act in all respects in its effect on legislation operating in the Northern Territory, and that is what this bill does. I am very pleased that legislation has been introduced to ensure that the Racial Discrimination Act of the Commonwealth is to now apply. I would suggest that it is utterly unacceptable that in 2007, 2008, 2009, let alone 2010, our country should legislate to exclude the operation of a very important piece of Commonwealth legislation, namely the Racial Discrimination Act.

The statements made in 2007 were so widespread that it is difficult to know which would be the most apt to quote from, but I will perhaps start with a submission made to the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the former government’s legislation. The submission was made by the Law Council of Australia, a body that I am proud to have been a director of for some five years. Back in 2007, it said to the Senate standing committee:

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”).

The Law Council then went on to explain why it was that it was unacceptable that the legislation being introduced for the Northern Territory should be exempted from the Racial Discrimination Act. What has occurred since, of course, is that the government, having come to office with a commitment to reinstate the operation of the Racial Discrimination Act, has conducted a lengthy inquiry. The Northern Territory Emergency Response Review Board, which reported in October 2008 with its self-titled report, Report of the NTER Review Board, drew attention to the very great concern that had been expressed in the some 60 or 70 communities that it visited about the exemption of the legislation applying to the Northern Territory from the Racial Discrimination Act. That concern was followed by a great deal of criticism from UN bodies and the UN special rapporteur in 2009.

It is worth quoting, because it brings down to a personal level the criticisms that had been expressed to the NTER Review Board when it was conducting its very lengthy consultation through 2008. The review board said the following:

Criticisms of the Intervention have tended to focus on the explicit exclusion of the Racial Discrimination Act 1975 (RDA) and the Northern Territory Anti-Discrimination Act—

in the Howard government legislation. They went on to say—

The two key measures identified as having possibly breached the RDA were income management and the compulsory acquisition of land under five-year leases.

…            …            …

Not surprisingly, there was a convergence among official commentaries and submissions to the Board around the fundamental principle of international human rights law that different classes of rights cannot be traded off against each other. This principle is captured in article 5 of the Vienna Declaration on Human Rights (1993).

It is important to note that criticisms over the exclusion of the RDA do not simply reflect an ‘academic’ debate. Throughout the Board’s community visits and consultations with various organisations and representatives, it was made abundantly clear that people in Aboriginal communities felt humiliated and shamed by the imposition of measures that marked them out as less worthy of the legislative protections afforded other Australians.

These concerns were most palpable in the context of comments and submissions relating to the compulsory acquisition of land—

and so on. The review board left no doubt about the importance of reinstating the operation of the Racial Discrimination Act and made a direct recommendation to this effect: that government action affecting Aboriginal communities must respect Australia’s human rights obligations and conform to the Racial Discrimination Act 1975.

Throughout the course of the consultation that was conducted through 2009 very similar sentiments were expressed in community after community, that there was a sense of shame and humiliation and resistance to the notion that it was necessary to provide an exclusion of the operation of the Racial Discrimination Act. It ought to be no surprise that, on the government’s announcement at the end of November last year that the Racial Discrimination Act was to be reinstated, that was very directly and widely welcomed by a range of representative bodies, individuals and groups across Australia.

I had meant to also record the very severe criticism that was made of the exemption from the Racial Discrimination Act by Mr James Anaya, the special rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, who raised concerns when he visited Australia in the second part of last year. He issued a statement in which he expressed concern about the exemption. This was a general report he was making about Australia. He said:

Of particular concern is the Northern Territory Emergency Response, which by the Government’s own account is an extraordinary measure, especially in its income management regime, imposition of compulsory leases, and community-wide bans on alcohol consumption and pornography. These measures overtly discriminate against aboriginal peoples, infringe their right of self-determination and stigmatise already stigmatised communities.

…            …            …

As currently configured and carried out, the Emergency Response is incompatible with Australia’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, treaties to which Australia is a party, as well as incompatible with the Declaration on the Rights of Indigenous Peoples …

The special rapporteur urged the government to act swiftly to reinstate the protections of the Racial Discrimination Act in regard to the Indigenous peoples of the Northern Territory.

A range of other UN bodies, including the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Racial Discrimination, all drew attention to and directly criticised the exception of the former government’s legislation from the provisions of the Racial Discrimination Act. It therefore was to be expected that, when the government announced at the end of November last year that the Racial Discrimination Act was to be reinstated, that announcement would be welcomed by, amongst others, the Law Institute of Victoria. I should mention that the Senate Standing Committee on Community Affairs is presently conducting an inquiry into this bill and has received a very large number of submissions which it is presently considering and conducting hearings about. I have looked at a number of those submissions and I note, for example, the Law Institute of Victoria welcoming the action of the government to reinstate the Racial Discrimination Act, the statement by the Law Council of Australia welcoming the government’s decision to reinstate the Racial Discrimination Act, and indeed the submission made to that Senate committee by the Australian Human Rights Commission, which welcomes the government’s decision to reinstate the provisions of the Racial Discrimination Act.

I should note that, while those bodies have welcomed the reinstatement of the Racial Discrimination Act, they express continuing concerns about some of the legislative techniques that have been adopted. But the importance of this bill is the reinstatement of the Racial Discrimination Act to restore Australia to the position that it should occupy. We should never, ever again—and I trust that it will not occur again—put this country in a position where it is seen by the international community to be saying that there is some situation in Australia in respect of which international human rights norms, the human rights protections that are contained in the Racial Discrimination Act, are not to apply.

There is a great deal of care that has been taken by the government in devising the provisions not merely to reinstate the Racial Discrimination Act but to continue with the measures which will be regarded as special measures, such as the income management regime. In that regard it is worth noting the very detailed comments that the Australian Human Rights Commission has made, in its public submission to the Senate standing committee which is presently conducting an inquiry into this bill, about the proposals that have been put forward by the Greens in relation to reinstatement of the Racial Discrimination Act. The Greens have put forward a bill which deals with similar subject matter to the bill that is now before the House. They have adopted a different approach, which is to provide both for the reinstatement of the Racial Discrimination Act and also to include what is known as a notwithstanding clause, which is something that the Human Rights Commission and others had called for. The Greens bill allows for reinstatement of the Racial Discrimination Act immediately on proclamation of the bill. The adoption of that framework has led the Australian Human Rights Commission to comment that they are very concerned that adopting an approach which says that all acts done under legislation governing an aspect of the administration of Aboriginal affairs are to constitute special measures will lead to great difficulty.

The Social Justice Commissioner has already observed in his report of 2007 that it is not possible for the entire legislation to be a special measure. In its submission to the Senate committee the Australian Human Right Commission noted:

This is because a number of the measures in the legislation are not a proportionate response to the problems they seek to address and were introduced without community consent. While the Commission supports the change in legislative language away from special measures being ‘deemed’, the Commission does not accept the characterisation of the legislation as a whole as a special measure.

The Human Rights Commission has a further criticism of the Greens’ approach to this area. It comments:

… the Greens’ Bill does not include a redesign of the individual NTER measures to be compliant with the RDA. While it leaves individual measures open to legal challenge under the RDA, the Commission suggests that Parliament should seek to make the NTER compliant with the RDA, rather than leave it to individuals to challenge aspects that may be discriminatory.

(Time expired)

Debate interrupted.