Mr Al-Kateb’s human rights. Justice McHugh recognised that the situation was ‘tragic’ but said: It is not for courts … to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution.58 Australia’s Constitution permits discrimination on the basis of race While the Racial Discrimination Act 1975 (Cth) provides some protection against racial discrimination, the Australian Constitution does not include protection for the right to racial equality. This means the Federal Parliament can override the legislative protection offered by the Racial Discrimination Act and adopt laws that discriminate on the basis of race. The Federal Parliament did this in 2007, when it suspended the operation of the Racial Discrimination Act in order to pass the Northern Territory Emergency Response (NTER) legislation. The NTER legislation introduced measures to address child sexual abuse and family violence in 73 prescribed First Nations communities in the Northern Territory. The NTER legislation measures that discriminated or allowed discrimination on the basis of race included: • suspending the application of the Racial Discrimination Act • controlling how a person spends their money through income management measures, a significant interference with the right to privacy • applying parts of the social security legislation retrospectively • excluding some aspects of social security administrative decisions from review • acquiring property on a different basis from other property holders in the Northern Territory. According to Justice McHugh, the case illustrated that a judge ‘may be called upon to reach legal conclusions that are applied with “tragic” consequences’.59 This observation could also be made about other cases – in the same year as the Al-Kateb case, the High Court also upheld the legality of the long-term detention of children and confirmed that immigration detention remains lawful even if the conditions are harsh or inhumane.60 The UN Human Rights Committee criticised the NTER as being inconsistent with Australia’s obligations under the ICCPR, and expressed particular concern about the suspension of the Racial Discrimination Act and the lack of consultation with First Nations peoples in designing the NTER measures.61 The implementation of NTER was rushed through Parliament. At the time, journalist Alan Ramsey described the passage of the relevant: In the House, which met at 12.30pm, Malcolm Thomas Brough, 45, cabinet minister, introduced a package of five bills totalling some 700 pages, including explanatory memoranda. He began speaking at 12.30. He sat down at 1.51pm after reading five speeches end on end, like sausages. It had taken him 10 minutes short of two hours just to introduce his five bills. At 9.34 that night it was all over. That is, the people’s house passed Brough’s five bills of 600 pages of legislative detail just nine hours after the Prime Minister’s delegate introduced them. Debate had lasted four hours and 16 minutes. Fourteen politicians had spoken, including Brough a second time. Thus in a legislature of 150 MPs, only 13 were allowed only twice as long, collectively, to debate the bills as it had taken the minister to read his five speeches introducing them.62 FREE AND EQUAL A Human Rights Act for Australia 2022 51