Guest Blogs

Candice Van Doosselaere

16 August 2012

If carefully designed, special measures can be an important tool in fighting inequality. In the Northern Territory Emergency Response (NTER) Act, the Australian government introduced special measures to address the systemic disadvantages of Aboriginal communities in the Northern Territory. Nevertheless, the NTER has received severe criticism and it appears that the special measures introduced do not meet international human rights standards. The consolidation of federal discrimination legislation is the opportunity to introduce the notion of special measures as defined by international human rights law within the context of Australia’s positive duty to promote substantive equality.

Defining Special Measures

Special measures, also known as ‘affirmative action’, involve temporarily providing favourable or preferential treatment in order to ensure that particular groups are able to participate in society on an equal basis with others. Special measures recognise that certain groups face historic and systemic disadvantage and that differential treatment may be required in order to ensure substantive equality.

It is imperative that special measures comply with international human rights standards so that they may be a means to achieve equality rather than contributing to further discrimination. The Committee on the Elimination of Discrimination (CERD) in its General Recommendation No 32 sets out the meaning and scope of special measures. In order to be defined as such, a special measure must:

• address an inequality;
• be taken for the sole purpose of securing the advancement of those affected by the inequality;
• be necessary to achieving this advancement;
• be taken in consultation with the affected communities;
• be fair, legitimate and proportionate to address the demonstrated need; and
• be temporary and discontinued once the objectives for equality are achieved.

Examples of Special Measures

Women have been able to vote in most first world countries since the end of WWII. Nevertheless, women remain severely underrepresented in politics in a majority of those countries to this day. Many States have therefore introduced quotas in order to increase female representation, prescribing for instance that political parties must have a certain ratio of women on the ballot at each election.

A personal anecdote from my childhood directly relates to this subject. I grew up in a white suburb of Atlanta, Georgia, one of the blackest cities in the US. I could have gone my whole childhood without fully realising this fact if it hadn’t been for affirmative action. In order to get inner-city kids (almost exclusively black and poor) better educations, a special measure was enacted to bring these children to public schools in the suburbs, which typically have better teachers and test scores, and less violence and other problems. I went school every day with underprivileged children thanks to this program, and as a result found notions of racism and discrimination very hard to comprehend when I was later confronted with them. This project not only broke the imbedded pattern of discrimination for my fellow classmates and myself, it was also successful on an academic level, giving the opportunity to some of my most disadvantaged classmates to go on to university and successful careers.

Special Measures and the Northern Territory Intervention

Special measures are perfectly suited to the Australian context where, in the words of the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people in his country report on Australia in 2010:

"Having suffered a history of oppression and racial discrimination, including acts of genocide, such as the removal of indigenous children from their homes, as well as the dispossession of their lands, Aboriginal and Torres Strait Islander peoples today endure severe disadvantage compared with non-indigenous Australians."

In 2007, the Federal Government introduced the NTER, an intervention that was claimed to consist of special measures aimed at protecting children from sexual abuse and addressing the socio-economic disadvantages of Aboriginal communities.

However, there has been much controversy over whether the NTER measures constitute ‘special measures’ under international law. Firstly when the Federal Government introduced the NTER, it suspended the operation of the Racial Discrimination Act. Furthermore, these measures were taken without necessary consultation of affected populations. It is also questionable whether certain NTER measures are proportionate to the addressed need and even if they support the advancement of the target groups.

These questions have more specifically been brought up for income quarantining, the scope of which is defined in very broad terms and which restricts the affected population’s freedom to dispose of their income, as well as for the measures restricting Aboriginal rights over their land and over their community councils and organisations.

The NTER has drawn significant criticism from CERD, the UN Special Rapporteur on the Rights of Indigenous Peoples, and the UN Human Rights Council. The Australian Government has nevertheless continued to support the NTER.

Most recently the Commonwealth Government has put forth a new “Stronger Futures Policy”, which according to the government addresses the discrepancy between non-indigenous and indigenous Australians and helps existing efforts in “Closing the Gap”. In fact, this legislation follows the path of the NTER Act and includes several of the discriminatory measures which have been criticised for disempowering Aboriginal people through control by the Government over these people and their land.

Special Measures in the Federal Consolidation Act

The Consolidation Project presents an opportunity to reform the special measures provisions currently contained within federal anti-discrimination laws.

Ideally, a new Consolidated Act would include a single special measures provision, defined according to international human rights standards, and framed within the positive obligation to promote substantive equality for people who experience disadvantage because of an attribute protected by the act.

The collaboration and consent of target groups in the formulation and implementation of such policies are not only required by international law but are essential to their success. At a minimum, consultation should be undertaken when special measures impose restrictions, as opposed to additional opportunities, for the beneficiary group.

Candice Van Doosselaere is an expert in International Human Rights Law with a Master’s in Law and a Master’s in Human Rights and Democratisation. She worked in human rights in China at the Delegation of the European Union in Beijing in 2011 and volunteers at the Human Rights Law Centre.

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There are a number of federal anti-discrimination laws in Australia and the Australian Government has committed to consolidating these laws into a single Act – a process which many hope will also address gaps in the law and strengthen existing protections. This website is to encourage and facilitate discussions about the consolidation process and help inform and engage the community and organisations with an interest in equality and anti-discrimination laws.

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