Entrenching Racial Discrimination? The Proposed Constitutionalisation of Not So ‘Special Measures’

Jess Natoli, one of the CRU’s student interns, has been researching the application of ‘special measures’ in the context of the proposals of the Expert Panel on the Constitutional Recognition of Indigenous Australians. Here is her blog discussing the issues:
The Expert Panel has recommended inserting an anti-racial discrimination provision into the federal constitution. The goal is to ensure more robust protection against discrimination for Indigenous people and members of all cultural backgrounds. While most Australians would agree with this sentiment, entrenching such a provision in the Constitution is not without its risks.
The main challenge is to come up with a provision that guards against discrimination while ensuring that laws implementing affirmative action are not struck down for invalidity. The Panel has attempted to accommodate these considerations in proposed constitutional provision 116A, which consists of a broad prohibition on racial discrimination, followed by an exemption permitting special measures for the purpose of overcoming disadvantage. ‘Special measures’ exemptions already exist in Commonwealth and State anti-discrimination statutes, and the way they have been interpreted and used in practice should give us pause for thought.
In Australia there is currently no requirement that the government consult the intended beneficiaries of a ‘special measure’ before it is implemented. This means that the political branches of government can assert that a law or action has the purpose of overcoming disadvantage, and the judiciary can determine this is so, without taking the wishes of those affected by the measure into account. In Gerhardy v Brown, the leading Australian authority on the construction of ‘special measures,’ Brennan J expressed the opinion that the consent of the affected group is ‘perhaps essential’ to a determination that a law or action is a ‘special measure.’ However, as the issue of consultation was not addressed by the other Justices, Brennan J’s opinion does not have the force of law. Although it has been considered persuasive in subsequent cases, it has not been applied across the board.
There is also no requirement that a ‘special measure’ be proportionate to the end sought to be achieved. While Justices Mason and Deane in Gerhardy advocated a ‘reasonably appropriate and adapted’ test and Gibbs CJ found it a relevant consideration that the impugned provision was not more stringent than was necessary, the other justices neither endorsed nor rejected the use of a proportionality test. In some subsequent judgments of lower courts the use of a proportionality test has been criticised as involving a usurpation of legislative and executive power, and a subjective test has been applied. In other words, it has been considered sufficient that the political branches of government subjectively believed that a given law had the purpose of overcoming disadvantage.
The interpretation of ‘special measures’ under Australian law is at odds with the construction recommended by the Committee on the Elimination of Racial Discrimination, that ‘special measures’ must be proportionate to the achievement of a legitimate end and are only to be implemented after consultation. This seems somewhat incongruous considering the Racial Discrimination Act (Cth) expressly defines ‘special measures’ by reference to Article 1(4) of the International Convention on all the Elimination of All Forms of Racial Discrimination. The Human Rights Commission has also contributed to this debate, arguing that consultation should be an essential pre-condition to the existence of a ‘special measure’ and that proportionality is a relevant factor in determining whether a purported special measure has the purpose of overcoming disadvantage.
While the exemption for ‘special measures’ has been used to grant Indigenous groups land rights and to implement affirmative action such as Abstudy payments, it has also been used as the legal basis for policies involving the significant curtailment of rights. By far the most notorious ‘special measure’ is the legislative package commonly known as the Northern Territory Intervention, introduced in response to a report exposing the devastating levels of child sexual abuse in the Northern Territory. Among other things, the Intervention facilitated the compulsory acquisition of five-year leases over Aboriginal land by the Commonwealth, the quarantining of 50 percent of welfare payments for food and other essentials, and the stripping of the right to appeal to tribunals against the quarantining measures. These laws were introduced without any prior consultation with the Indigenous communities concerned. The UN Special Rapporteur on the Rights of Indigenous Peoples has stated that the Intervention is racially discriminatory, and that the curtailment of rights is disproportionate to the legitimate end of protecting women and children from violence and promoting well-being in Indigenous communities. Further, the Special Rapporteur found that the Intervention has stigmatised and disempowered Indigenous people and reinforced the perception they are responsible for their own situation of disadvantage.
It is by no means certain that the High Court would interpret proposed constitutional provision 116A(2) in the same way as the existing ‘special measures’ exemptions, particularly as the language used is not identical to section 8 of the Racial Discrimination Act (Cth) which was the subject of the decision in Gerhardy v Brown. However, given the protective purpose of the proposed amendment, it is essential that the wording of any constitutional ‘special measures’ provision is not open to being hijacked to legitimise racially discriminatory laws that further disempower Aboriginal people. Academic Sean Brennan has proposed a formulation that incorporates a test of reasonableness, proportionality and necessity. This would ensure that the protection provided is genuinely more robust than that currently on offer under the anti-racial discrimination legislation.
Jess Natoli, CRU Intern, 16 May 2012

Author Anne TwomeyPosted on May 16, 2012