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The committee has deferred its consideration of the following legislative
instruments
Aboriginal Land Rights (Northern
Territory) Amendment (Delegation) Regulation 2013
FRLI: F2013L02122
Portfolio: Prime Minister and Cabinet
Tabled: Scheduled for House of
Representatives and Senate, 11 February 2014
Summary of committee concerns
2.1
The committee draws the Minister's attention to the committee's
consideration of special measures in its Eleventh Report of 2013 and
seeks clarification of the categorisation of this regulation, related
regulations and the enabling Act as 'special measures'. The committee has
deferred its consideration of this regulation while it considers our
predecessor committee's recommendation for a review of the human rights
compatibility of the Stronger Futures legislation.
Overview
2.2
This regulation amends the Aboriginal Land Rights (Northern Territory)
Regulations 2007 to prescribe certain requirements and time periods in relation
to an application by an Aboriginal and Torres Strait Islander corporation for a
delegation of Land Council functions or powers.
2.3
The explanatory statement accompanying the regulation clarifies that subsection
28A(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (the
Act) provides that an Aboriginal and Torres Strait Islander corporation may
apply to a Land Council for a delegation of certain Land Council functions or
powers. This provision was inserted by the Aboriginal Land Rights (Northern
Territory) Amendment Act 2006 with the objective of enabling Northern
Territory Aboriginal people to have more control over development decisions by
allowing for the devolution of decision-making to local Aboriginal communities.
To date, there have been no instances of a Land Council making a delegation to
a corporation under section 28A of the Act.
Compatibility with human rights
Statement of compatibility
2.4
The statement of compatibility accompanying the regulation states that
the regulation will create a more certain pathway for Aboriginal and Torres
Strait Islander corporations to seek a delegation of Land Council functions or
powers under section 28A of the Act, which will support greater local-level
decision-making and support earlier amendments to the Act.
2.5
The statement's overall assessment is that the regulation is compatible
with human rights because it is a special measure within the meaning of article
1(4) of the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), as it is designed to secure to Aboriginal people the
full and equal enjoyment of human rights and fundamental freedoms.
2.6
The statement argues that the principal Act 'is discriminatory in nature
as it confers rights and privileges upon Aboriginal Australians, which are
discriminatory as against non-Aboriginal Australians.'[1]
However, it maintains that 'the beneficial nature of this discrimination
enables the Act, the Regulations and the Regulation to be each classified as a
'special measure' within the meaning of paragraph 4 of article 1 of the ICERD
(and subsection 8(1) of the Racial Discrimination Act 1975.'[2]
Committee view on compatibility
2.7
In its Eleventh Report of 2013 our predecessor committee
considered the Stronger Futures in the Northern Territory Act 2012 and
related legislation. In its report the committee considered the classification
of measures as 'special measures' within the meaning of the ICERD.
2.8
The committee's consideration of the criteria to be satisfied in order
for a measure to be characterised as a 'special measure' is set out at pages 21
to 31 of that report. In particular, the committee noted that, as a matter of
international law (including under the ICERD), measures based on race or ethnicity
do not invariably amount to discrimination that can only be considered
legitimate if they can be justified as 'special measures'. The relevant question
is whether there is an objective and reasonable justification for the
differential treatment. Under international law, the recognition of the
traditional land rights of Indigenous peoples and legislative structures to give
effect to those rights are generally considered to be non-discriminatory; such
measures are not 'special measures' within the meaning of the ICERD. The
committee noted that there was a difference between international law and
Australian law in this regard, as represented by the High Court's
interpretation of the Racial Discrimination Act.[3]
2.9
The committee expressed concern 'at the tendency for explanatory memoranda
to invoke the category of "special measures" as a justification for
legislation that involves differential treatment based on race or ethnic
origin, without sufficient analysis of whether the differential treatment may
be justified as legitimate differential treatment based on reasonable and
objective criteria.'[4]
2.10
The committee wrote to the former Minister on 26 June 2013 inviting a
response to the report. A response has not yet been received.
2.11
Before concluding its consideration of this regulation, the committee
would welcome further clarification from the Minister regarding the
categorisation of this regulation and related legislation as special measures.
2.12
The committee intends to defer its detailed consideration of this
regulation, while it considers our predecessor committee's recommendation that
a review be undertaken of the human rights compatibility of the Stronger
Futures in the Northern Territory in the Northern Territory Act 2012 and
related legislation.
2.13
In the meantime, the committee intends to write to the Minister for
Indigenous Affairs to draw his attention to the committee's consideration of
special measures in its Eleventh Report of 2013 and request
clarification of the categorisation of the Aboriginal Land Rights (Northern
Territory) Amendment Act 2006 and related regulations, including this
regulation as special measures in light of the committee's comments in that
report.
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