Faculty of Law, University of Western Australia
Reconciling "Practical Reconsiliation" with the Racial Discrimination Act
Paper delivered at the Castan Centre 'Human Rights 2005: Year in Review' conference on 2 December 2005
Abstract: The Indigenous Affairs Arrangements announced by the Commonwealth in April 2004 are examined for consistency with the non-discrimination principle contained in the Racial Discrimination Act 1975 (Cth) (RDA). Shared responsibility agreements may require assessment as “special measures” under the RDA. The transfer of responsibility for programme delivery to mainstream Commonwealth government departments prompts consideration of whether (comparative) government underinvestment in essential services infringes the RDA. This paper will investigate one case where there is evidence of significantly lower per capita spending on Indigenous education in a remote region of the Northern Territory compared to per capita spending on education in the Territory as a whole.
In May 1997 Prime Minister John Howard addressed the Reconciliation Convention that had been convened by the Council for Aboriginal Reconciliation. Media reporting of this speech was (understandably) dominated by the Prime Minister’s explanation for why he had decided not to make an apology to the stolen generations. The speech also contains a hint that a Howard Government might focus the energies of the Commonwealth on ensuring that Indigenous people enjoyed access to decent essential services.
'Reconciliation will not work if it puts a higher value on symbolic gestures and overblown promises rather than the practical needs of Aboriginal and Torres Strait Islander people in areas like health, housing, education and employment. … Rather we should acknowledge past injustices and focus our energies on addressing the root causes of current and future disadvantage among our indigenous people.(ii)'
In April 2004 the Commonwealth announced a package of “Indigenous Affairs Arrangements” (IAA) to replace all existing arrangements. The stated priority of the IAA is to improve the socio-economic outcomes of Indigenous people. The means of achieving this objective are two-fold. First, the delivery of Commonwealth services to Indigenous people is to be undertaken by mainstream Commonwealth departments rather than a specialized department or agency. The Aboriginal and Torres Strait Islander Commission (ATSIC) has been abolished and the primary role of the Department of Indigenous Affairs is to coordinate service delivery by other Commonwealth departments. Secondly, the preferred vehicle for service delivery to Indigenous people by a Commonwealth department is a “shared responsibility agreement” (SRA) setting out both the obligations of the department and the Indigenous people receiving the services.
SRAs and “mainstreaming” are each controversial. This paper will examine a single aspect of the controversy: the possible application of the principle of non-discrimination found in the Racial Discrimination Act 1975 (Cth) (RDA) to each of those policies. For the purpose of considering the application of the RDA to the policy of mainstreaming, the case of the supply of education in the Thamarrurr region of the Northern Territory will be examined.
2. Shared Responsibility Agreements
A. Short History of “Practical Reconciliation”
Addressing the “root causes” of disadvantage
The Aboriginal and Torres Strait Islander Commission (ATSIC), which was charged with the task of supplementing the supply of mainstream government services to Indigenous people and administering an annual budget of in excess of one billion dollars, was a large and popular target of criticism by members of the Government during the first two terms of the Howard Government (1996-2001). The focus of the criticism was the failure to improve on “outcomes”.
Towards the end of 2000 and coinciding with the winding up of the Council for Aboriginal Reconciliation, Prime Minister John Howard began making a number of references to “practical reconciliation”. In the Menzies Lecture delivered in December 2000, he said:
'True reconciliation is, in our view, to be best found within practical means to improve the well-being and happiness of indigenous Australians and raising standards to levels enjoyed and expected by all of us.(iii)'
Government criticism of ATSIC gathered momentum after the 2001 Federal election. An external review of ATSIC was announced in November 2002. A new executive agency, Aboriginal and Torres Strait Islander Services (ATSIS), was created in 2003 for the sole purpose of taking over the programme administration functions of ATSIC. Finally, in April 2004, the Commonwealth announced a package of “Indigenous Affairs Arrangements” (IAA) to replace all existing arrangements. The IAA did not require legislation save in one respect. ATSIC was to be abolished. Before outlining the other elements of the IAA, it is helpful to refer to what had been happening in the Council of Australian Governments.
Council of Australian Government Trials
The Council of Australian Governments (COAG) communiqués of November 2000 and April 2002 foreshadowed co-operation (2000) and a handful of trials (2002) aimed at examining a new method for the delivery of essential services to Indigenous people. (iv) Each trial would involve a ‘whole-of-governments cooperative response’ to the needs of a particular community or region. Governments were required to be flexible and to co-operate with each other and with the Indigenous communities at a trial site in order to deliver agreed outcomes. Mention is made in the November 2000 communiqué of ‘partnerships and shared responsibilities with indigenous communities’.(v) Accountability and a focus on results was to be assured by nominating a Commonwealth Department Secretary who was responsible for the carriage of each trial. The impact of each trial was to be measured by comparing key measures of Indigenous disadvantage throughout the trial period.
Seven COAG trials, including one in the Thamarrurr region of the Northern Territory, had barely commenced and none had been evaluated when the IAA arrangements were announced.
The Indigenous Affairs Arrangements
Under the IAA, the involvement of the Commonwealth in the delivery of essential services to Indigenous people has become the responsibility of mainstream Commonwealth departments. The services are to be delivered in accordance with Shared Responsibility Agreements (SRA) and Regional Partnership Agreements (RPA) to be initiated by Indigenous communities. The Commonwealth announced that SRAs would reflect the key characteristics of the agreements made for the purpose of the COAG trials. First, outcomes will be agreed upon and government departments will have the flexibility necessary to achieve those outcomes. Secondly, obligations of all parties to the agreement including government and Indigenous parties will be agreed upon. Thirdly, mechanisms will be put in place to ensure both accountability for the execution of the agreement and the evaluation of the performance of the agreement.
There is much more to the IAA than SRAs. ATSIC has been abolished. A National Indigenous Council (NIC), comprises appointed Indigenous members, meets four times a year and advises the Ministerial Taskforce on Indigenous Affairs (MTIA) on matters of Indigenous policy. The task of administering Indigenous policy and ensuring the efficient delivery of essential services falls upon a number of entities. These include the “Secretaries Group” on Indigenous Affairs, the Office of Indigenous Policy Coordination (OIPC) within the Department of Immigration and Indigenous Affairs and locally based Indigenous
Coordinating Centres (ICC's).
B. Shared Responsibility Agreements and the Racial Discrimination Act
Issues raised by the Aboriginal and Torres Strait Islander Social Justice Commissioner
The first SRA involved the Mulan community in remote Western Australia and received wide publicity. The Commonwealth paid $172,260 towards the cost of the installation of petrol bowsers in the community in exchange for a range of undertakings by the Indigenous community concerning children (showering, attending school etc.) and rubbish (using bins, paying rent so that bins would be collected etc.) One stated objective of the SRA was the reduction of trachoma in the community.(vi)
The effect of the RDA is that racial discrimination is unlawful. Racial discrimination exists when a person engages in an act involving a distinction based on race, which has the purpose or effect of impairing the recognition, on an equal footing, of a human right.(vii) An exception to the application of the RDA arises if an otherwise discriminatory act is a “special measure”.(viii) In the Social Justice Report (2004), the Aboriginal and Torres Strait Islander Social Justice Commissioner considered the possibility that an SRA would constitute unlawful discrimination. Observing that there was insufficient detail to reach conclusions about the Mulan agreement, he noted:
- An SRA will involve a distinction which is unequally enjoyed when a service is made available to an Indigenous person or an Indigenous community subject to conditions that are not imposed when the service is made available to a comparable non-Indigenous person or a comparable non-Indigenous community.
- The distinction will be based on race if the “true” or “real” reason for making the distinction, having regard to all circumstances, is the race of the other party to the transaction.(ix)
- The RDA guarantee of the enjoyment of human rights must be read in light of the Federal Court decision in Secretary, Department of Veterans' Affairs v P.(x) In this case, Drummond J held that the human right to social services included only generally available welfare payments that were related to matters fundamental to a person’s existence as a human being. It was held, obiter, that discrimination in the allocation of a war veteran's entitlement to a government-subsidised housing loan would not impair the enjoyment of a human right.
- Adopting the indicia of a special measure identified by Brennan J in Gerhardy v Brown,(xi) problematic issues associated with the definition of “special measure” include: whether an SRA confers a benefit on the Indigenous community when, in fact, the benefit is conditional; and whether the SRA could reasonably be considered to be necessary for the sole purpose of the equal enjoyment of human rights by an Indigenous community. Relevant to each of these questions will be evidence of the attitude of the Indigenous community to the SRA, the circumstances of the Indigenous community and the likely effect of the SRA.
The 2005 Shared Responsibility Agreements
Since the publication of the Social Justice Report (2004), the Full Court of the Federal Court has held in Vanstone v Clark(xii) that an act does not enjoy immunity from scrutiny under the RDA by reason of being ancillary to a special measure. The decisions lends support to the view that the facts of each and every SRA must be examined to determine consistency with the RDA. The Commonwealth recently announced that, as at 3 November 2005, 119 SRAs have been signed with 97 Indigenous communities.(xiii) There are insufficient details published about each agreement to reach conclusions about the consistency of each agreement with the RDA. However, examining the brief announcement accompanying each of the 19 agreements made in Western Australia in 2005(xiv), it is apparent that most SRAs cover the supply of recreational facilities and the primary obligations of the Indigenous community relate to the maintenance and use of the facilities.(xv) Assuming that the same facilities are made available to non-Indigenous organisations on similar terms, these SRAs are unlikely to be incompatible with the RDA.
However, there are a few cases where an SRA covers the supply of environmental health or education facilities where further investigation may reveal that the Indigenous community is subject to conditions that are not imposed when the service is made available to a comparable non-Indigenous community.(xvi) In this case, it may be necessary for a court to consider whether the SRA constituted a special measure. The process of the characterization of SRAs as “special measures” may require a court to balance fine policy questions. The judgments of Brennan J and Deane J in Gerhardy v Brown(xvii) suggest that a court might allow a level of deference to the political judgment of the executive branch on whether the “net” effect of an SRA is a benefit to an Indigenous community. For example, Deane J asked whether the relevant measure could reasonably be considered to be appropriate and adapted to achieving the sole purpose of securing the development and protection of the racial group.(xviii) In the context of a SRA, a court may well be interested to know the extent to which the SRA was a result of genuine negotiations between the parties.
3. “Practical Reconciliation” and “Mainstreaming” in the Thamarrurr region
A. The COAG Trial in the Thamarrurr region
The Thamarrurr Agreement
The Thamarrurr region of the Northern Territory is the site of one of seven COAG trials.(xix) In March 2003, an agreement was made between the Commonwealth Government, the Northern Territory Government and the Thamarrurr Regional Council (“the Thamarrurr Agreement”) for the purpose of conducting the COAG trial.(xx) The Thamarrurr Agreement identified priority areas (including education) and established a Tri-partite Steering Committee to administer action plans that were to be developed for each priority area. The agreement anticipated ‘benchmarks, milestones and performance information’ being appended to the Thamarrurr Agreement at a later date.(xxi)
A baseline profile of social and economic conditions in the Thamarrurr region
For the purpose of the Thamarrurr Agreement, the ANU Centre for Aboriginal Economic Policy Research (CAEPR) was commissioned to produce a baseline profile of social and economic conditions in the region. It has published two studies, referred to in this paper as the “2004 Social Indicators Report” and the “2005 Opportunity Costs Report”.(xxii)
The objective of the 2004 Social Indicators Report was to ‘portray the social and economic status of the population resident within the Thamarrurr Regional Council area at the commencement of initiatives resulting from new arrangements for regional governance.’(xxiii) The resulting portrait of the Thamarrurr region is familiar insofar as similar comments could be made of many remote regions containing a predominantly Indigenous population.(xxiv) The Indigenous population of the region, estimated to be 2034 in 2003, was expected to double within one generation.(xxv) In 2001, 90% of Indigenous income was sourced from welfare payments.(xxvi) In 2003, half of the school age population was enrolled at school and ‘only half of those enrolled actually attend(ed) classes.’(xxvii) In 2003, each habitable house was occupied by, on average, 16 persons with, on average, five persons per bedroom.(xxviii) In 2001, the median age at death for Indigenous people was 46 years.(xxix) In 2002, 10 per cent of adults aged under 30 were in custody at any one time.(xxx)
It is not necessary to give comparable figures for the Northern Territory or for Australia as a whole to appreciate the extent of the disadvantage in the Thamarrurr region. The quoted figures speak for themselves.
A surprise: governments have been spending significantly less on Indigenous people in the Thamarrurr region than elsewhere in the Northern Territory
One economic measure of the low social and economic status of a region is the estimated lost output from lower than average employment incomes and lower than average employment rates. On the other side of the balance sheet, the increased government expenditure on inputs typically associated with below average outcomes in employment, education, health, housing etc is also a measure of low social and economic status. The opportunity cost of the low social and economic status of an Indigenous population is the sum of the lost output and the increased government expenditure on inputs. The opportunity cost is one measure that may be used to gauge the level of government expenditure that might be undertaken to redress disadvantage. The objective of the 2005 Opportunity Costs Report was to measure the opportunity cost of the Thamarrurr region if the social and economic status of the Indigenous population of the region were to be the same as another comparable population such as the Northern Territory population as a whole.(xxxi)
The calculation of the lost output of the Thamarrurr region produced a predictable result. If employment incomes and employment rates of the region were comparable to the Northern Territory as a whole, an extra $43.77m per annum in income would be generated.(xxxii)
The calculation of the expenditure on inputs involved a revelation. The authors of the 2005 Opportunity Costs Report expected that historical Government expenditure in the Thamarrurr region on employment, education, health, housing and justice would be considerably more than what it would be if the social and economic status of the Indigenous population of the region were the same as comparable populations. The 2005 Opportunity Costs Report reveals that, contrary to what was expected, per capita Commonwealth and Territory government expenditure on education and training in the Thamarrurr region was considerably lower than per capita spending on those items in the Northern Territory as a whole (47cents in the dollar on education and 41 cents in the dollar on training). The level of per capita Commonwealth and Territory government expenditure on health and housing was slightly higher than per capita spending on those items in the Northern Territory as a whole ($1.13 to the dollar on health and $1.11 to the dollar on housing).(xxxiii) Overall, contrary to what was expected, it was revealed that there was a deficit (of $3,735,676) in the expenditure on inputs in the Thamarrurr region.(xxxiv)
In short, notwithstanding the comparative disadvantage of the Indigenous people of the Thamarrurr region, the Commonwealth and Territory governments are spending less on Indigenous people in that region than in the rest of the Northern Territory.
C The Application of the RDA to Education Outcomes in the Thamarrurr region
Why is per capita spending on education significantly less in the Thamarrurr region compared to the Northern Territory as a whole?
The authors of the 2005 Opportunity Costs Report used expenditure data supplied by the Commonwealth and Territory governments to calculate current input costs. (xxxv) Over the 3 year period from 1 July 2000 to 30 June 2003, the NTG spent $8,488 each year on the education of each school age child throughout the Territory. In the same period, the NTG spent $3998 each year on the education of each school age child in the Thamarrurr region. Put another way, for every dollar spent by the NTG on the education of each school age child throughout the Territory, the NTG spends only 47 cents on the education of each child of school age in the Thamarrurr region.
Identifying the reasons for the fact that current input costs were significantly lower than was to be expected was not the purpose of the study. However, in the case of the lower than expected spending on education, the 2005 Opportunity Costs Report noted that the funding formula for Northern Territory schools was based on a mix of enrolment numbers and attendance levels and that on each of these measures, the Thamarrurr region performed significantly below the figures recorded for the Northern Territory as a whole. (xxxvi) In 2003, only half of the school age population of the Thamarrurr region was enrolled at school. The figure for the Northern territory as a whole was 90%. Further, only half of those enrolled in the Thamarrurr region regularly attended classes. The figure for attendance in the territory as a whole was 80%. The authors of the 2005 Opportunity Costs Report argued that a preferable basis for school funding in the Thamarrurr region was the compulsory school age population.
The NT Government (NTG) has been aware of these figures since the publication of the Independent Review of Indigenous Education in the Northern Territory (1999) and responded with a strategy that included the employment of an attendance officer for the Thamarrurr region.(xxxvii)
Direct and indirect racial discrimination
Mention has already been made of the elements of direct discrimination found in section 9(1) of the RDA. Whereas direct discrimination requires the identification of an act involving a distinction based on race which has the effect of impairing the equal enjoyment of a human right, indirect racial discrimination arises when the impugned act takes the form of an unreasonable term, condition or requirement which has the proscribed effect.(xxxviii)
The Education Act 1979 (NT) provides that the Minister for Education must ‘establish and maintain education services in the Territory’ (s6). The Minister and (upon the direction of the Minister) the Secretary enjoy statutory ‘power to do all things that are necessary or convenient to be done in, or in connection with, the performance of his functions under this Act’ (s 6,8). The funding of schools in the Thamarrurr region appears to be an exercise of executive power by the NTG pursuant to these provisions.
An act involving a distinction based on race
A person seeking a remedy under the RDA (the applicant) must identify the act that is said to have the proscribed effect. The disparity in education expenditure made by the NTG and the failure to monitor the consequences of the enrolment/attendance formula might each be identified as an act that has the effect of impairing the equal enjoyment of the right to education. However, it is necessary to consider the recent decision of the Federal Court in Baird v Queensland.(xxxix)
The applicants in that case were the Indigenous residents of Queensland Government reserves. The reserves were managed by Church organizations. The applicants worked on the reserves at the direction of the Church and were paid by the Church. The pay rates were well below relevant award rates for the work done. The pay rates reflected the amounts identified in Government grants to the Church as wages for Indigenous residents. The claim against the Queensland government under section 9 RDA failed. The applicants’ reliance upon the global conduct of the respondent rather than identifying a single payment as being the impugned act was found to be fatal to the claim . The conduct of the Government was found to be based on the applicant’s residence at a mission rather than based on race . Finally, Dowsett J characterized the applicants’ complaint as being about an omission to make the proper payment and held that the “act” contemplated by section 9 RDA did not include omissions .
Three observations can be made about the reasoning in Baird. First, no reference is made to section 3(2) of the RDA, which provides that ‘failing to do an act shall be deemed to be the doing of an act’. This provision answers the last mentioned point and would be significant in any claim that relies upon the omission to correct the discriminatory effect of a funding formula. Secondly, the suggested distinction between “race” and “mission residence” does not sit comfortably with observations made by Deane and Gaudron JJ in Australian Iron & Steel Pty Ltd v Banovic(xl) on the “true reason” for a distinction. Thirdly, a decision of the European Court of Justice is instructive on the approach to identifying an act when the outcome of a transaction is the unequal enjoyment of a human right and the source of the reason for the unequal enjoyment is not clear. In Enderby v Frenchay Health(xli) it was held that where one group suffers an evident disadvantage (eg women were paid less for the same work) then it is not necessary for a member of the group to identify a specific act to explain the disadvantage. Rather, the burden shifts to the applicant to show that there are objective reasons for the unequal enjoyment of human rights.
An unreasonable term, condition or requirement
The enrolment/attendance funding formula for Northern Territory schools is a ‘term, condition or requirement’. The NTG may argue that every Indigenous child is able to comply with the term and, further, that the term is not unreasonable. The former argument overlooks that fact that the question is whether, given the race of the applicant, the term is a practical impossibility. The leading RDA case on the “reasonableness” of an indirectly discriminatory term is Australian Medical Council v Wilson.(xlii) The Full Federal Court held that the onus was on an applicant to show that a term was not reasonable ‘in the sense of being not rational, logical and understandable’.(xliii) This test seems unduly burdensome when compared to the jurisprudence on comparable anti-discrimination statutes.
The unequal enjoyment of a human right
A necessary pre-condition for a remedy under the RDA is the unequal enjoyment of a human right by different racial groups or, similarly, a failure to supply a service that is available to the public (for a claim under s 13 RDA).(xliv) Put another way, to succeed with a claim under the RDA, the complainant must be denied (or impaired) from enjoying a human right or service when members of another racial group are not so denied (or impaired).
It is suggested that there is an applicable human right at issue in the Thamarrurr region, namely, the “right to education and training” found in Article 5(e)(v) CERD and incorporated into the RDA.(xlv) Since the decision of Brennan J in Koowarta v Bjelke-Petersen(xlvi) it has been clear that conduct which impairs the opportunity to enjoy a human right is protected by the RDA. Justice Brennan held that one purpose of the RDA was to implement CERD and observed that CERD provides both a guarantee of ‘equal protection of the law’ and a guarantee of ‘equal opportunity to obtain rights and freedoms’.(xlvii) In Koowarta itself, the complaint was of being denied an opportunity to own property.
Notwithstanding the emphasis on opportunity in Koowarta, the experience of the applicants in Aboriginal Students Support & Parents Awareness Committee Traeger Park Primary School v Minister for Education, Northern Territory of Australia(xlviii) suggests that any complaint about being denied the opportunity to enjoy the right to education must be supported by clear evidence of the effect of the impugned conduct. In that case, Commissioner Carter (of the Human Rights and Equal Opportunity Commission) considered whether the Article 5(e)(v) CERD “right to education and training” had been infringed by the closure of an Aboriginal school in Alice Springs. The “right to education and training” is unknown to the common law other than as a negative right ie except as proscribed by law, a person is free to receive or deliver education. Nevertheless, the Commissioner set about determining the ambit of the Article 5(e)(v) CERD “right to education and training” in order to determine whether the closure of the school had impaired the Indigenous children’s right to education to the extent that it was not on an equal footing with non-Indigenous children. The Commissioner held that the right had not been infringed because of the existence of alternative education arrangements having been made by the Minister.(xlix)
For the purposes of an alternative claim based on s 13 RDA it is necessary to determine whether the school education “on offer” by the NTG in the Thamarrurr region constitutes the supply of “services”. In Aboriginal Students Support & Parents Awareness Committee Traeger Park Primary School v Minister for Education, Northern Territory of Australia,(l) Commissioner Carter doubted whether, in a case concerning a government operated school in Alice Springs, the NTG was involved in the supply of “services”. By way of contrast, in the Northland Secondary College(li) case both parties assumed that a case on the closure of a government operated school in Melbourne was to be considered in light of s 29(1) EOA 1995 (Vic) on the provision of “services”.(li)i The Full Court expressly approved the assumption.(liii)
The analysis undertaken in this paper reveals that serious questions remain about the compatibility of aspects of the IAA and the RDA. The process for making an SRA and the terms of an SRA require careful scrutiny to determine whether the principle of non-discrimination has been infringed and, if so, whether the SRA may be “saved” as a special measure. Where per capita government spending on essential services for Indigenous people is less than spending on non-Indigenous people, an examination of the reasons for the lower spending may reveal an infringement of the indirect discrimination provisions of the RDA.
In identifying these questions, it does not follow that the logical “next step” is complaint proceedings under the Human Rights and Equal Opportunity Act 1986 (Cth). Litigation is a very blunt instrument in any campaign to ensure that the principle of non-discrimination is respected. The outcome of any litigation would be difficult to predict.
i Martin Flynn , Faculty of Law, University of Western Australia
ii John Howard “Opening Address to the Australian Reconciliation Convention” Melbourne, 26 May 1997 <http://www.austlii.edu.au/au/other/IndigLRes/car/1997/4/pmspoken.html>
iii John Howard “Transcript of The Prime Minister The Hon John Howard MP Menzies Lecture Series Perspectives On Aboriginal And Torres Strait Islander Issues” Canberra, 13 December 2000. < http://www.pm.gov.au/news/speeches/2000/speech587.htm>
iv COAG Communiqué, 3 November 2000, page 7; COAG Communiqué, 5 April 2002, pages 4-5.
v COAG Communiqué, 3 November 2000, page 7
vi The details of the agreement appear in :Tom Calma (Aboriginal and Torres Strait Islander Social Justice Commissioner), Social Justice Report 2004 (2005), 118.
vii RDA, s 9(1)
viii RDA, s 8.
ix Adopting the approach in Purvis v New South Wales (Department of Education and Training)  HCA 62,  (Gleeson CJ),  (McHugh and Kirby JJ);  (Gummow, Hayne and Heydon JJ).
x  85 FCA
xi (1985) 159 CLR 70, 133. In the same case, Deane J asked only whether the measure could reasonably be considered to be appropriate and adapted to achieving the sole purpose of securing the development and protection of racial groups in need of protection to the extent necessary to ensure the equal enjoyment of human rights and fundamental freedoms by those groups.
xii  FCAFC 189, -.
xiii Australian Government, Indigenous Portal “Shared Responsibility Agreements and Regional Partnership Agreements” http://www.indigenous.gov.au/sra/kit/what_are.pdf November, 2005.
xiv Australian Government, Indigenous Portal “Shared Responsibility Agreements - WA” http://www.indigenous.gov.au/sra/wa/ November, 2005
xv For example, the SRA for Balgo: Australian Government, Indigenous Portal “Shared Responsibility Agreements - WA” http://www.indigenous.gov.au/sra/wa/ November, 2005.
xvi For example, the SRA for Coonana (clean water); Youngaleena (classroom); Bayulu (day care facilities); Yungngora (toilets): Australian Government, Indigenous Portal “Shared Responsibility Agreements - WA” http://www.indigenous.gov.au/sra/wa/ November, 2005
xvii (1985) 159 CLR 70
xviii (1985) 159 CLR 70, 148-9.
xix The other COAG trial sites are: Cape York in Queensland; Anangu Pitjantjatjara Lands in South Australia; Shepparton in Victoria; East Kimberley in Western Australia; Murdi Paaki in New South Wales; the northern region of Tasmania; and the ACT. see <http://www.indigenous.gov.au/coag/about.html>.
xx Shared Responsibility Agreement Between the Commonwealth of Australia through the Department of Family and Community Services, the Northern Territory Government, Through the Department of Chief Minister, Indigenous Policy Unit and the Thamarrurr Regional Council, 21 March 2003 <http://www.icc.gov.au/coag/trial_sites/nt.html>.
xxi Thamarrur Agreement (2003), Clause 5.
xxii J Taylor, Social Indicators for Aboriginal Governance: Insights from the Thamarrurr Region (2004) (the “2004 Social Indicators Report”); and J Taylor and O Stanley, The Opportunity Costs of the Status Quo in the Thamarrurr Region (2005) (the “2005 Opportunity Costs Report”). There are two versions of the 2005 Opportunity Costs Report. The first version was published on the web in February 2005. Inconsequential amendments were made to the first version and the second version was released as a CAEPR Working Paper (No 28/2005) in July 2005. The references in this paper are to the second version.
xxiii 2004 Social Indicators Report, 97
xxiv Compare the following: Productivity Commission, “Overcoming Indigenous Disadvantage: Key indicators 2005” (12 July 2005) <http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2005/index.html>; Productivity Commission, “Overcoming Indigenous Disadvantage: Key Indicators 2003” (13 November 2003) <http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2003/index.html>.
xxv The total Indigenous and non-Indigenous population in 2003 was estimated to be 2147 and the estimated growth is 88% within 20 years: 2004 Social Indicators Report, 33ff.
xxvi The figure is 90% including CDEP payments and 82% excluding CDEP payments: 2004 Social Indicators Report , 56ff.
xxvii 2004 Social Indicators Report, 100
xxviii 2004 Social Indicators Report, 71
xxix 2004 Social Indicators Report, 77
xxx 2004 Social Indicators Report, 102
xxxi In fact, three options for “comparable”populations were included: (1) Northern Territory as a whole; (2)Northern Territory Indigenous Population; and (3) a similarly sized remote region with a predominantly non-Indigenous population (eg. Longreach).
xxxii $11550 average income and 16.1% employment rate in the Thamarrurr region compared to: $38108 and 67.3% in the NT, $17731 and 33.2% for the NT Indigenous population and $38108 and 63% for Longreach. Where the comparison was with the Northern Territory Indigenous Population and Longreach, the figures were $7.39m and $23.70m respectively.
xxxiii 2005 Opportunity Costs Report, 58
xxxiv 2005 Opportunity Costs Report, 57
xxxv 2005 Opportunity Costs Report, 41-44.
xxxvi 2005 Opportunity Costs Report, 43
xxxvii 2005 Opportunity Costs Report, 42.
xxxviii RDA, s 9(1A)
xxxix  FCA 495
xl (1989) 168 CLR 165 at 176-177 per Deane and Gaudron JJ on gender discrimination on the basis of male only toilets being available. See also at 184 per Dawson J, 208 per McHugh J; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J, 400 per McHugh J. See also Purvis v New South Wales (Department of Education and Training)  HCA 62.
xli Enderby v Frenchay Health Authority  1 All ER 495. Art 119 EEC Treaty states “each member state shall during the first stage and subsequently maintain the application of the principle that men and women should receive equal pay for equal work” Article 1 of EEC Directive 75/117 of 10 Feb 1975 provided that “the principle of equal pay means, for the same work or for work to which equal value is attributed, the elimination of all discrimination on grounds of sex”
xlii (1996) FCR 46
xliii (1996) FCR 46, 62.
xliv Compare the italicized text in each of the following edited extracts from the RDA, noting the terms used in s 13 RDA (not “human right” but “services” and not “impair” but “fail on demand to supply”):
s 9(1) RDA: “any act involving a distinction based on race which has the effect of impairing the enjoyment, on an equal footing, of any human right ”.
s 9(1A) “a requirement (that the complainant) to comply with a term, condition or requirement which is not reasonable and which the complainant cannot comply and which has the effect of impairing the enjoyment, on an equal footing, of any human right”.
s 10(1) “if by reason of a law of the Territory, Aboriginal persons enjoy a human right to a more limited extent than persons of another race, then, Aboriginal persons shall, by force of this section, enjoy that right to the same extent as persons of that other race.
s 13 “unlawful for a person who supplies services to the public to refuse or fail on demand to supply those services to another person by reason of the race of that other person.”
xlv RDA, s 9(2), 10(2).
xlvi (1982) 153 CLR 168.
xlvii Ibid. 266.
xlviii  HREOCA 4 (26 February 1992)
xlix Christine Walton, 'Traeger Park School : a case for human rights?' (1992) 2(57) Aboriginal Law Bulletin 12.
l  HREOCA 4 (26 February 1992)
li The Northland Secondary College litigation is voluminous, see (adopting the notations in Sinnappan and Foley v State Of Victoria  AILR 55; (1996) 1 AILR 245): Sievers v. State of Victoria (1993) EOC 92-482 (EOB's first interim order decision); Sinnappan v. State of Victoria (1993) EOC 92-498 (EOB's second interim order decision); Sinnappan v. State of Victoria  1 VR 547; (1993) EOC 92-499 (Ashley J's decision on the complainants' appeal against the Board's second interim order decision); Sinnappan v. State of Victoria (1994) EOC 92-567 (EOB's first decision on the merits); State of Victoria v. Sinnappan (1994) EOC 92-568 (Beach J's decision); Sinnappan v. State of Victoria  1 VR 421; (1994) EOC 92-611 (Full Court's first decision); Sinnappan v. State of Victoria (1994) EOC 92-658 (EOB's second decision on the merits); Sinnappan v. State of Victoria (1994) EOC 92-659 (EOB's reasons for formal orders); Sinnappan v. State of Victoria  2 VR 242; (1995) EOC 92-663 (Full Court's second decision).
lii Note however that “services’ is defined to include “services provided by a government department” in the Victorian statute.
liii Sinnappan v. State of Victoria  1 VR 421; 427 (Brooking, J. D Phillips and Hansen JJ).