Racial Discrimination 

Indigenous Australians and other individuals in the community expressed concerns that measures involved breaches of human rights.  In particular, they criticised the incompatibility of the Intervention with the RDA and the broad exemptions of the Intervention from the RDA. As noted by the Australian Human Rights Commission ('AHRC), a successful claim of discrimination under s 10 of the RDA can only be brought in relation to a statutory provision. By suspending the operation of s 10 of the RDA in relation to the Intervention, the government effectively denied protection to Indigenous Australian communities affected by the legislation.

S 132 of the NTNER legislation suspended the Racial Discrimination Act and deemed the aspects of the intervention that targeted indigenous Australians to be 'special measures' in accordance with S 8 of the RDA. These two acts seemed to contradict one another, as special measures exist as part of the RDA in order to implement positive discrimination for a particular race (Article 1(4) of CERD). Intervention measures directly discriminate against Indigenous Australians on the basis of race, and necessitated the suspension of the Racial Discrimination Act. This was done so that the measures would not be classed as discriminatory and  could  not be challenged. However, concerns were expressed that the various measures of the intervention negatively impacted and discriminated against Indigenous Australians and would not help to improve instances of child sexual abuse for which they were intended.

The Intervention was amended in June 2010 to reinstate the operation of the RDA in relation to Intervention measures. However, restrictions were placed on the use of the RDA to challenge Intervention measures as racially discriminatory.  In particular, the classification of the Intervention as a ‘special measure’ denies individuals or groups this possibility.

In 2013, the Parliamentary Joint Committee considered whether the Stronger Futures package of legislation was  consistent with human rights.  It noted that various aspects of the legislation, including its alcohol and income protection measures, involved a differential treatment based on race. It considered that  the government had failed to  provide justification for its argument that the measures involved were 'special measures'.  It had simply asserted that they were without reference to the prevailing interpretation of the notion of special measures in international law.

As was noted above (see employment and economic participation), 2018 has seen a sudden spike in discriminatory measures being exacted in remote communities within the Northern Territory in terms of the operation of the Community Development Program (CDP). Unemployed individuals involved in the program are subject to a decrease of $50 per day in which they fail to attend prescribed work-for-the-dole activities. 84% of CDP participants nationwide are Indigenous, whilst over a quarter of the Indigenous people engage in CDP in the Northern Territory. Regions within the Northern Territory in which there are higher proportions of Indigenous inhabitants are issued with a greater rate of penalties due to the limitation on employment opportunities resulting in non-compliance with CDP requirements.

The 2017-2018 Annual Report from the Northern territory Anti-Discrimination Commission contended that 62% of complaints regarding racial discrimination derived from Aboriginal and Torres Strait Islander people. In 2017, an Australian Indigenous Doctors’ Association survey reported that 60% of Indigenous doctors and medical students had experienced racism or bullying through their education. It was proposed in 2016 by a National health and Medical Research Council that a community-controlled education sector be established to address inherent issues of race prevalent in the school system, yet no real change has been made in this area since that recommendation.

In 2017, the Australian Government proposed amendments to section 18C of the RDA. The prospective changes would give rise to the words “insult”, “offend” and “humiliate” being replaced with “harass”. The modifications would also establish that acts would be judged through the utilisation of a standard relating to a “reasonable member of the Australian community”, as opposed to members of the affected community. However, the amendments were not adopted. In response to the proposed amendments, the Special Rapporteur on the rights of Indigenous peoples expressly contended that the changes would have imposed unreasonable restrictions in terms of the balance between protection against racial discrimination and freedom of speech. The Special Rapporteur explored the damaging nature in which the proposed changes would have on Indigenous communities in terms of the confidence entrusted in the Australian government. It also highlighted that such modifications would be inherently counterproductive towards the attainment of reconciliation.