Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

It has been a long time coming, but I have pleasure in moving amendment (7):

(7)    Clause 132, page 93 (lines 12 to 17), omit subclauses (1) and (2), substitute:

        (1)    Subject to subsection (3), 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 and are consistent with Part 2 of the Racial Discrimination Act 1975.

        (2)    Subject to subsection (3), the provisions of this Act, and any acts done under or for the purposes of those provisions, are not laws as described by subsection 10(3) of the Racial Discrimination Act 1975.

I am glad to see we are moving onto matters that might be a bit more substantial, although I am not suggesting the earlier ones were not important. There are a range of issues that we need to get to in this debate on these bills that are quite fundamental, and I am sure Senator Bartlett agrees with me that the question about the RDA is one of those. This amendment seeks to amend clause 132 of the Northern Territory National Emergency Response Bill 2007, and that clause provides that—and I will read the first two parts:

(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—

So it declares that everything that occurs in the act are 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.

The second measure excludes the bill before us from the operation of the Racial Discrimination Act part II, and the Racial Discrimination Act part II is the section that prevents racial discrimination, so we are passing a bill which the government says should not be subject to the Racial Discrimination Act’s prohibition on racial discrimination.

I think on the face of it people will say: ‘Hang on! We’re passing a bill that’s for the benefit of Aboriginal people but we want to ensure that we’re not caught up by the Racial Discrimination Act that prohibits us from discriminating on the basis of race.’ I do not know about anybody else but it strikes me as passing strange that we should look to pass legislation that is for the benefit of Indigenous people, to deal with the crisis in terms of violence and child abuse in some Indigenous communities but, in doing so, we seek to exempt the legislation from the pretty fundamental requirement that it not be racially discriminatory.

I have had difficulty with this aspect of the government’s legislation, and Labor has had difficulty with it because we think it sends exactly the wrong message. As we know there are mixed views in Indigenous communities about whether these bills are discriminatory. There are mixed views in Indigenous communities about whether they are for their benefit.

Labor accepts that these are special measures, provided for under the Racial Discrimination Act, that are for the benefit of Indigenous people. Part II, section 8 provides that we can pass special measures for the benefit of persons under the Racial Discrimination Act—so we have the capacity to do that. Labor is assured by the government that these measures, in totality, are special measures, and we have agreed that that is the case. In fact, HREOC, in their submissions to the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs into the bill, conceded that these measures could be characterised as special measures; however, they expressed very serious concern at the failure to consult the Indigenous people affected.

One of the aspects of special measures has been a consideration of the question of consultation and consent. It has generally been viewed that the aspect of consultation is central to the question of a special measure. Consultation clearly has not occurred formally in this case. HREOC were urging the government and the parliament to ensure that that consultation took place, arguing that it was never too late. Labor supports that view. We would have much preferred that more consultation had occurred prior to this, and the Senate committee chaired by Senator Barnett also urged that there be more consultation with Indigenous people to try and build support for the special measures.

The key issue is that Labor supports the fact that these are special measures. We believe that the totality of these measures are capable of being implemented in accordance with the terms of the Racial Discrimination Act. I know some people want to argue that case, and it will be argued here. I approach it from this point of view: people in a society have a bundle of rights. People are entitled to exercise those rights and sometimes you have to balance those rights. The rights that are pre-eminent in this debate are the rights of children, which I have always taken very seriously, rights based on the Convention on the Rights of the Child. There are the rights of children to live in safety, to live free from violence, to live free from sexual abuse and their rights to an education and to proper food and clothing. Those are very basic rights but they are fundamental rights that need to be observed.

Labor takes the view that, on balance, these measures in this bill can be seen as special measures that are for the benefit of Indigenous people. In doing so we accept that some of the other rights of people—in terms of the welfare packages et cetera—are restricted. The welfare measures will require people to have some of their payments quarantined. You can argue that that is affecting some of their rights to dispose of their income as they see fit, but it is important when dealing with the special measures in this legislation to look at the totality of the package. I think that one can argue that, in total, the measures are for the benefit of Indigenous people, and that the package attempts to deal with very fundamental rights such as the right of children to live free from violence and sexual abuse and the right of Indigenous women—and men in some cases—to live free from violence. As I said, those constitute beneficial measures.

We have no problem in accepting that these are special measures and we are happy to have that recognised in the bill. In moving our amendment, Labor look also to protect the observance of the Racial Discrimination Act. What we seek to do in moving this amendment is to recognise that the measures in the bill, or the totality of the bill, can be considered special measures under the Racial Discrimination Act, but we oppose the government’s attempt to exempt the bill from the Racial Discrimination Act—to, in effect, say, ‘This is a law of the land which does not have to comply with or recognise the Racial Discrimination Act 1975.’

Labor is very proud of the Racial Discrimination Act 1975. We see it as one of the most important pieces of legislation ever passed by this parliament. We think it is a fundamental bedrock of our modern democracy and that it provides for people protections from discrimination on the basis of race, gender, ethnicity and religion. This is a fundamental protection in our democracy. I have seen the technical arguments from the government as to why they think they need to exempt the Northern Territory legislation from the Racial Discrimination Act and quite frankly the arguments are not strong enough. We have to do better than this.

We had the same challenge when Labor brought in the native title legislation in 1993. We had the same question about how one could seek to make the native title legislation consistent with the Racial Discrimination Act. We had the same arguments put to us at the time that in passing the native title legislation we needed to exempt it from the Racial Discrimination Act. People were uncomfortable with that so a lot of work was done to try to work through that problem. I know my colleague from the other chamber Daryl Melham did a lot of work on this, and I am grateful for his advice because he has been interested in this subject throughout his time in the parliament. In the end, we managed to ensure that the Native Title Act actually invoked the Racial Discrimination Act and we used it as a positive part of enacting the Native Title Act. It invoked and embraced the Racial Discrimination Act.

Even though a range of the measures—particularly those in relation to the validation of title—could be seen in some ways to be acting against Indigenous interests, the totality was seen as being of benefit because, as well as validating some titles, it provided rights of native title and future acts that were beneficial to Indigenous people. So we faced the same dilemma in 1993. That was the first major debate I was engaged in in this place; I had been in the parliament for only six months and it was a very important debate for the parliament. We worked through the very problem that we are confronting now. We came out with a positive measure that allowed us to embrace the Racial Discrimination Act in the passing of the first native title legislation in Australia. What we have been asked to do today is to pass another measure which the government says is beneficial to Aboriginal people, which Labor accepts. But to also say, ‘Oh well, it is beneficial but we don’t really want to be bound by something that says you’re not allowed to be racially discriminatory,’ sends a conflicting message. I think it fundamentally undermines confidence in the legislation.

People rightly ask: ‘If you’re so confident, if you’re sure that this is beneficial for Indigenous people then why won’t you allow it to be subject to the Racial Discrimination Act? Why do you have to weasel out of meeting a fairly fundamental right for people to actually know that legislation passed in this parliament does not offend the Racial Discrimination Act?’ Quite frankly, that is the overwhelming consideration for Labor. We are supporting the bill. We are supporting the fact that these are special measures. We are committed to assisting the government in its endeavours to respond to the very serious issues in these communities—although every time Mal Brough speaks I am more inclined to vote against it, but that is a personal issue. I find his lack of good grace and his lack of any commitment to build support amongst either parliamentarians or Indigenous people abhorrent and I think his behaviour is very unfortunate. Labor are committed to supporting the bill. We recognise that these are special measures, but we see no reason why the government cannot ensure that we honour and invoke the Racial Discrimination Act rather than seek to exclude this legislation from the provisions of the act.

I know that there are all sorts of legal arguments. I have been taken through them and I do not pretend to understand all of the nuances, but I understand in broad terms the complexities involved. The bottom line is this: should the parliament really be passing an act which it says is for the benefit of Aboriginal people and at the same time seek to exclude that act from the provisions of the Racial Discrimination Act? It sends exactly the wrong message to the community. It sends exactly the wrong message to Indigenous people, who are nervous about how these measures will impact upon them. It says to them that we are not confident that this bill is not racially discriminatory. I am confident that it is not because the balance of measures are special measures for the benefit of Indigenous people. But it sends exactly the wrong message.

The bill has been drafted in haste. We have not had a chance to work through these issues. I know that during the native title debate we had a long period of time to really engage with the issues in order to find solutions, and we had extensive consultation with Indigenous people. That has not occurred on this occasion. I think we can do better than this. Labor is proposing this amendment to make that point and to try to ensure that the parliament does better. I have no confidence that the government will respond to any of this. The government have made it pretty clear that they are not interested in hearing from anybody else. But Labor firmly believe that we ought to do better in terms of ensuring this legislation is invoking and embracing the Racial Discrimination Act rather than seeking to exclude its provisions.