When asked on the 7.30 Report on 26 May about whether the compulsory acquisition of Aboriginal land leases would be consistent with the Racial Discrimination Act, Minister Jenny Macklin was adamant that they would. When pressed by Kerry O’Brien as to how she could be sure, Macklin replied: “Well in my personal view, these are beneficial measures.”

Sometimes legal tests are vague. Justice Potter Stewart once famously said he couldn’t define hard core pornography but “I know it when I see it.” But when it comes to what does and doesn’t constitute a special measure, the standards are a bit clearer than identification by a hopeful Minister.

The principle of non-discrimination is a foundational principle of international human rights law, entrenched in numerous international instruments, including the United Nations Convention on the Elimination of All Forms of Racial Discrimination to which Australia is a signatory.

It is not an “all or nothing” principle. Initiatives targeting certain racial or ethnic groups facing persistent disadvantage are permitted, and in fact may be required under the Convention, to ensure that they may equally exercise human rights and fundamental freedoms. Such initiatives, called “special measures” are positive measures, giving additional rights — described as preferential or favourable treatment or “affirmative action” — designed to achieve equality of outcome rather than equality at law. The usual criticism of special measures is that they provide reverse discrimination, giving preference to minority groups over the mainstream population.

Special measures can be negative and remove rights — for example community initiated alcohol bans — but negative initiatives can only ever be special measures with the informed consent of the group concerned. In any event, under the Convention, State parties are obliged to get the informed consent of Indigenous peoples in making decisions that affect them.

Special measures must be necessary, taken for the sole purpose of the “advancement” of the targeted group and are temporarily in place until the disparity is overcome. Being temporary and necessary, they must undergo periodic assessment and management against specific objectives and criteria. They necessarily must involve the affected group in their formulation and have to be distinguished from “permanent” rights protected under the Convention, so for example, land rights, including native title, and cultural rights couldn’t be special measures. They are rights inherent to Indigenous people.

The Convention is incorporated into Australian domestic law through the Racial Discrimination Act and so differential treatment based on race can be lawful in Australia. This provides the basis for the Minister’s repeated assertion that the measures of the Intervention are special measures because they are in her view, beneficial, coupled with the Government’s claim to the United Nations that it was in consultation with Aboriginal people in the Northern Territory as to how the Intervention is to proceed.

Justice Brennan’s caution from the primary case in Australian law on special measures (Gerhardy v Brown) is especially pertinent, where he observes that “advancement” “is not necessarily what the person who takes the measure regards as a benefit for the beneficiaries” and is “not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit”.

So human rights frameworks like the one established around the principle on non-discrimination provide for ways to address disadvantage and non-discrimination, even in situations when other human rights might need to be infringed. These are important benchmarks that assist to ensure that any good intentions about what might be best for a group of disadvantaged people does not end up discriminating against them or negatively affecting them more.

It is clear that Indigenous poverty, discrimination and socio-economic disadvantage are examples of persistent, systemic disparity that provide proper justification for the adoption of special measures. However, putting aside the fact that the Racial Discrimination Act has been suspended so that the Minister can act with impunity, any argument that the compulsory acquisition of the Alice Springs Aboriginal town camps is a special measure is unsupportable.

The benefit said to be conferred, is the “substantial improvement in the quality of housing and essential services”, which is on its face, a legitimate aim. But the forcible acquisition of the town camps is not proportionate to its attainment. Instead, it requires that people forfeit their property rights to improve conditions caused by decades of neglect and under-funding by the Northern Territory Government.

The Tangentyere Council had agreed to the 40 year lease insisted upon by the Government but refused to accept the Government’s condition that tenancy management be handed over to the Northern Territory Housing Authority, which has a poor reputation with Aboriginal people. Instead, the Council proposed tenancy management through the Central Australian Affordable Housing Company, ironically established with the Government’s assistance.

The net result is loss of perpetual leases because of the failure to agree over tenancy management, which cannot be assessed as proportionate to any legitimate aim. No other Australian is asked to surrender land rights to secure basic services. No other Australian is being bullied into a compromise with government rather than a negotiated outcome.

Further, the Minister’s statement that the current leases were not granted under the Northern Territory land rights legislation and are not based on traditional ownership, while legally correct, seeks to undermine Aboriginal authority over the land and trivialise their claim to tenure. It denies the historic reality of the long battle by traditional owners and Aboriginal residents to secure tenure over their land.

The history of town camps as ration distribution stations and labour camps; as homes to families who moved there following their light skinned children removed to homes in Alice Springs; as homes to those dispossessed from their traditional lands by the pastoral industry; as homes to people prohibited entry into Alice Springs and who resisted being physically rounded up and taken away; and most recently as homes to those moving from homelands because of the Intervention is a history of Aboriginal asserting their rights, which is about to be removed in totality with the issue of a notice.

It would be surprising if legal advice given to Minister Macklin supported her assertion regarding the compulsory acquisition of the Alice Springs town camps. It is more likely that she is ignoring that advice in the same way that she has overlooked the recommendations of the Northern Territory Emergency Response review.

Special measure or not, Macklin has the legal ability to compulsorily acquire the land in question. Those legal mechanisms were put in place as part of the Northern Territory Emergency Response legislation when it first passed. Minister Macklin is protected from breaching the protections given to Aboriginal people under the Racial Discrimination Act since it remains suspended. She should just be honest that she is breaching human rights benchmarks in the process, rather than respecting them.

We all agree that the conditions are unacceptable and must be fixed. Minister Macklin should negotiate with the Tangentyere Council and the residents of the Town Camps in good faith. If there is another agenda, she should be honest about that as well.

Alison Vivian is a Senior Researcher and Larissa Behrendt is Director of Research and Professor of Law at the Jumbunna Indigenous House of Learning, University of Technology, Sydney.

Peter Fray

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