Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

The Democrats oppose clause 132 in the following terms:

Clause 132, page 93 (lines 11 to 19), TO BE OPPOSED.

The Democrats are opposing clause 132 on the same principle we have just been discussing but our proposal is a much cleaner and clearer way of addressing it. Clause 132 states that the provisions of this legislation are, for the purposes of the Racial Discrimination Act, special measures and that the provisions of the legislation and any acts done under or for the purposes of those provisions are excluded from the operation of part II of the RDA. There are fundamental legal issues here. I will not go into all the legal arguments, but to say that something is a special measure under the Racial Discrimination Act just because you say so is not a sufficient test. You can assert all sorts of things—you can put something in a law saying, ‘The sky is red,’ but that does not make it red. Saying something is a special measure under the Racial Discrimination Act does not necessarily make it so either.

The key point here for the Democrats—I have made this point before; I will elaborate on it a little more—is that the provisions of the Racial Discrimination Act are there because of a recognition that legal processes and policy implementation that are discriminatory in a negative sense on a racial basis almost inevitably mean injustice. How the government can credibly assume or assert that these measures they are putting forward will work to the benefit of people even though they may be negatively discriminatory on a racial basis is beyond me. The government are quite confident that these are all special measures under the act and, therefore, they are all fine. Good; in that case they should not have a problem. But they should not be able to get away with just saying, ‘It is because we say it is.’ If other people have a view that it is not, then I think they should have a right to be able to ascertain and determine that. Frankly, it is hard when you look at some of the measures in this particular bill, which is a very large one, to do anything other than suspect that the practical implementation, as opposed to the stated intent, will mean a racially discriminatory outcome.

It is worth looking at the history of why the Racial Discrimination Act came about. It did not just come about because people back in the 1970s thought it would be a nice thing to do, that it would look really good and make us look good globally, that it would be a fine upstanding principle. The fact that there is the Racial Discrimination Act at federal level has been absolutely pivotal in preventing flagrant and deliberately racially discriminatory acts against Aboriginal people, certainly in my own state of Queensland by the Queensland government. We had Aboriginal people in reserves and missions all around Queensland being paid less than the award wages for years—consciously and knowingly—by the Queensland government. They had specific advice recited to them at cabinet level, we now know, telling them that these underpayments were in breach of the Racial Discrimination Act, and they still kept doing it. It is only because of the Racial Discrimination Act that those things stopped. And it is only today, in some cases 20 years later, that people are finally starting to get the money they are owed, that they were entitled to but did not get paid because of the racially discriminatory policy of the Queensland government of the time. So the act produced a practical outcome of ensuring equality.

I heard the following from one of the speakers in the second reading debate, and I found the lack of awareness of history extraordinary. They were talking about how well, back in the old days, the pastoralists employed Aboriginal people on their pastoral properties. They did not pay them their full wages—they underpaid them a bit—and they kept some of their money, but they used that to buy food for them, so they were doing them a favour and it worked out well and it was only when they started getting paid equal rates of pay that everything went wrong, and wasn’t that terrible. I am not saying there were not consequences of that, in terms of people being consciously thrown off stations by the pastoralists, but quite why that is seen as an appropriate thing to have done, I do not know. But, in the context of speaking in favour of this legislation, we have had speakers in this chamber saying it was actually a good thing that Aboriginal people used to have their money taken away from them, kept by pastoral station owners and used to buy food for them. There was underpayment of wages.

The simple historical fact is that some of those pastoral people kept some of that money for themselves. That is what is known as the ‘stolen wages’. We have had a Senate committee inquiry into that. It was not just pastoralists; it was state government agencies as well. The state government kept the money. I am going partly into the quarantining issue, which is in a different bill, so I will save my comments mostly for there in terms of this example. The state government took the money that Aboriginal people in Queensland were legally entitled to. It was not just welfare money; it was earnings. But they also did it for their family payments. They took the money, saying, ‘We’ll keep this because we know what’s best for you.’ Then they just kept it. They used it for other things. Or they used it to buy them a building and say: ‘This building’s what’s best for you. We know what’s best for you. We’ll buy this building out of your money.’ It was flagrantly racially discriminatory. In some cases I have no doubt there was a genuine intent—’We know what’s best for you in terms of your money, in terms of what to do with your land. We have the intent to do this thing for your benefit.’ That is not good enough. That is why you have an act like the Racial Discrimination Act—because people did precisely these things before. And, in many cases, they did that with good intent. The outcome was gross injustice.

Let me hasten to add that I am not alleging in any way that the measures contained in some of the other bills we have not got to yet will mean that Aboriginal people will have their money taken away by the government and used for other things. They will still be able to use it; it will still in a legal sense be their money. So I do not want to overdo the parallel but I do want to point to the historical reasons for the Racial Discrimination Act. And there are plenty of other examples in Queensland alone, let alone elsewhere, of policies that were clearly discriminatory that were nonetheless put in place, at least in some cases, and where some people, with absolutely the best intent in the world, were saying, ‘This is what’s needed for people.’ That is why this suggestion that this is some great, huge leap forward, some big, visionary never-before-tried approach, is in many ways quite misleading, because there is a lot about this piece of legislation before us, and some of the other measures we have not got to yet, that is actually quite a big leap backwards. I like a bit of retro stuff too, occasionally, and I do not mind leaping backwards if I think it is actually going to work. But the key issue for me and the Democrats is whether this is going to work. I think anything that gives an exemption from the Racial Discrimination Act is actually going to increase the chances of it not working. I make that assessment because of history, because of evidence, not because of a feel-good thing.

I will also briefly note and touch on Senator Evans’s comments about the comparison with the native title legislation. There is obviously a deliberate propaganda campaign from some in the government—although I have not heard Senator Scullion drop to this level yet, which is appreciated, but it has come from others; we heard it from Senator Minchin and Senator Abetz today—that in going through the issues in this legislation we are filibustering, we are deliberately holding up the law. We certainly are not doing that. From the Democrats’ point of view we are not doing that. But I would make the point again that, if you do not have a proper committee inquiry process, this is the only opportunity to explore these points.

I would also say to you, Senator Evans, on the example of the native title legislation, that that did have quite a comprehensive Senate committee inquiry first. We still had a very drawn out—much more drawn out than this debate—committee stage of the process. There were a lot of negotiations over a number of weeks. We did have a sitting on a Saturday then as well. I note the minister saying today that we might be sitting on Saturday. So be it, if we are. I think we need to do what is necessary to explore and get sufficient detail on the record about this legislation, even it is not going to be improved.