Special Measures
For implementing special measures:
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In the language of international human rights, a special measure is a form of affirmative action which enables particular groups to enjoy human rights. They are a form of ‘positive discrimination’ and act as a mechanism through which the substantial inequality faced by a disadvantaged groups can be rectified. ‘Special measures’ must involve the consent of the affected group of people, be temporary and limited in scope, and be to the benefit of the individuals affected, as opposed to their detriment.
The AHRC Social Justice Report 2007 noted that it was not appropriate to seek to 
justify discriminatory measures on the basis they are undertaken in furtherance of another right (i.e protection of children from sexual abuse) even if they are 'special measures'. The measures implemented under the intervention cannot be characterised as 'special measures' under international human rights law because they do not positively advance the human rights of Indigenous Australians by creating more favourable conditions or conferring benefits. Instead the Intervention measures restrict the rights of many Indigenous Australians with the explanation of protecting others (i.e children and women).
In relation to international law standards, Amnesty International reiterated concerns that the suspension of the RDA was not permitted as a ‘special measure’ and therefore violated Australia’s international human rights obligations. Amnesty did emphasise that the RDA had been reintroduced to the operation in June 2010, however they also noted that discriminatory measures continued despite this.
Measures that violate the human rights of the intended beneficiaries are more likely to operate in ways that undermine the overall well-being of these communities in both the short and long term. In relation to the operation of the Intervention, the AHRC has stated that it is clearly established in international law that the principle of non-discrimination on the basis of race cannot be overridden by other considerations. The Convention on the Rights of the Child, one of the international human rights instruments that the government argues it is upholding, is clear that measures to protect children must also be non- discriminatory. The ICCPR states that governments cannot justify restricting certain rights by claiming that they are acting in furtherance of another right.
The Parliamentary Joint Committee’s 11th Report of 2013 and 2016 Review of the Stronger Futures measures were both highly critical of the continued justification of these restrictive policies as ‘special measures’ under international human rights law. The committee noted that ‘there was little detailed analysis of the applicable criteria for a measure to qualify as a 'special measure', and of whether some or all of these measures satisfied the criteria. It noted the scepticism of Professor Anaya, UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people.
The Special Rapporteur wrote:
"As already stressed, special measures in some form are indeed required to address the disadvantages faced by indigenous peoples in Australia and to address the challenges that are particular to indigenous women and children. But it would be quite extraordinary to find consistent with the objectives of the Convention, that special measures may consist of differential treatment that limits or infringes the rights of a disadvantaged group in order to assist the group or certain of its members. Ordinarily, special measures are accomplished through preferential treatment of disadvantaged groups, as suggested by the language of the Convention, and not by the impairment of the enjoyment of their human rights."
It was further argued by the PJC in its 11thReport that the Stronger Futures measures could not apply as ‘special measures’ because they were not implemented with the consultation and consent of the affected group that the measures under the Stronger Futures legislation would affect. The committee recognised the importance of consultation in safeguarding human rights, in particular the right to self- determination (Art 1 International Covenants on Human Rights and Art 3 of UN Declaration on the Rights of Indigenous People). Measures taken without consultation or consent cannot be said to be for the ‘advancement’ of a particular group. Arguably, the government has not satisfactorily justified the Stronger Futures legislative package as special measures as defined under international human rights law. Essentially, a primary element regarding the permissibility of the limitation of a right revolves around whether such a limitation is proportionate to the objective sought to be achieved. In terms of ascertaining justification, the relevant decision maker must establish the effective safeguards that are in place to regulate the measure i.e. monitoring and review strategies.
The ‘special measures’ infringe on the right to equality and non-discrimination, the right to a private life, and the right to self-determination. Limitations on these rights may be permissible, but it must be demonstrated that there is a rational and legitimate objective to do so. The PJC’s 2016 Review of the Stronger Futures Legislation analysed the ‘special measures’ using the analytical legal framework, to determine their compatibility with human rights. The Committee considered whether there was a legitimate objective to the ‘special measures’, and whether it was rationally connected and proportionate to achieving the objectives. The Committee found that reducing alcohol-related harm in Aboriginal Communities in the Northern Territory was a legitimate objective. However, due to a lack of available data in the most recent 2015 review, the Committee had difficulty in assessing whether the ‘special measures’ had the capacity to be effective and this raised doubt as to whether the policy was proportionate.
The Review discussed the unintended consequences that the ‘special measures’ have had and how overall they have largely failed to achieve their intended objectives. This has resulted in an increased engagement in dangerous behaviour to circumvent the alcohol restrictions. Such conduct includes trafficking to restricted areas, unmanaged drinking in unsafe places, displacement of community members to locations where they can access alcohol, and substitution of alcohol with other drugs. The current process for establishing and managing Alcohol Management Plans (AMPs) was also criticised for being overly bureaucratic, and continuing to enforce a ‘top down’ approach. These impacts indicate that the current legislative processes have resulted in the Committee taking the view that the Government has not established ‘special measures’ that are likely to be effective or proportionate in their aim.
Recommendations from this finding were that an evidence-based review be undertaken to determine the effectiveness of the restrictions, that the bureaucratic processes of AMPs be streamlined, and that all blanket alcohol restrictions be reviewed and amended as necessary. No adoption of these recommendations has been announced by the Government as of December 2018.