Jayne Weepers' (Senior Policy Officer, CLC) response to a staff member in the Minister's office, regarding the reinstatement of the RDA - 10 March 2010.

I have been meaning to respond to your emails seeking our support for the reinstatement of the RDA to the NT Emergency Response for some time, if only to provide a counter-balance to the carefully selected information you choose to distribute.

Leaving aside the complexities of income management for the moment, there is one fundamental problem with the Government Bill - it does not meet the Government's commitment to reinstate the RDA. The Bill fails to provide for a full reinstatement of the RDA, and at best, achieves only a partial reinstatement of the RDA. The Australian Human Rights Commission submission to the current senate inquiry states that the proposed changes "do not fully address all existing breaches of human rights and will not ensure full consistency with the RDA" (paragraph 8). The AHRC repeatedly argue that a "notwithstanding" clause is required to "give full effect to the governments intention to reinstate the RDA" (Paragraph 46). They state "The consequences of not including a notwithstanding clause are significant. Without such a clause, any provision of the amended emergency response legislation that is inconsistent with the RDA will still override the RDA." (Paragraph 39)

Failure to explicitly provide that the RDA prevails over the NTER legislation means that, as later legislation, the NTER will prevail where there is any inconsistency between the two pieces of legislation. The compulsorily acquired five year leases are a clear example of the problem. Not only does the Australian Government intend on maintaining the current five year leases without providing a strong justification for their retention, the current Bill effectively puts their continuation beyond the reach of a challenge under the RDA. The Minister has stated that she believes the NTER measures, including the five year leases, to be ‘special measures' for the purposes of the RDA. However, the AHRC expressly state that the five year leases are not and are incapable of being a special measure, "The Commission notes, however, that the RDA explicitly excludes from the ‘special measures' exemption laws that authorise management of property without the consent of Aboriginal and Torres Strait Islander people or prevent them from terminating management by another of land owned by them (see ss 8(1), 10(3), RDA)" (Paragraph 145). The AHRC also confirm the CLC view that the "existing five-year leases will not be able to be successfully challenged under the RDA even if the suspension of the RDA is lifted by the Government Welfare Reform Bill." (Paragraph 45).

It is disingenuous, if not misleading, for the Australian Government to be describing all of the NTER measures as non-discriminatory or special measures when the Government Bill does not allow for all such measures to be challenged under the RDA. The CLC has called on the Minister to amend the Government Bill to include a clause expressly providing that the RDA will prevail over the provisions of the Northern Territory National Emergency Response Act 2007 and the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (NTNER and other measures) Act 2007. This has been recommended in numerous submissions to the current senate inquiry into this legislation, including by the Australian Human Rights Commission, the Law Council of Australia and numerous Aboriginal organisations in the NT.

Full reinstatement of the RDA is only the first step along the road of rebuilding the relationship with Aboriginal people in the NT and developing initiatives that are actually capable of achieving long-term and meaningful change on the ground. Without amendment this Bill does not make it to first base.

Jayne Weepers
Senior Policy Officer
Central Land Council

Reproduced with the kind permission of Jayne Weepers.