Australian Human Rights Commission Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Shadow report to the CERD Committee – 8 July 2010 Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2009 (the Act) was passed on 22 June 2010. 63. 64. Ways in which the Act improves the compliance of the NTER with human rights standards include: • lifting of the suspension of the RDA for the NTER legislation • redesigning the income management measures so that they are not applied on a racially discriminatory basis. • enabling a shift from the blanket imposition of alcohol bans to restrictions that are tailored to the needs of communities. However, the Commission has noted 56 that the Act still retains some practical limitations on the reinstatement of the RDA and full compliance with international human rights obligations. These limitations include: • the absence of notwithstanding clauses in the Act. The effect of this, in conjunction with provisions relating to its retrospective application, is that any remaining discriminatory measure under the NTER cannot be challenged by the ‘reinstatement’ of the RDA because being the later legislation, the NTER legislation will prevail. As a result the Commission is concerned that the discriminatory compulsory grant of five-year leases are protected from challenge under the RDA. • The Government has indicated that it considers the existing and redesigned NTER measures to be ‘special measures’ in accordance with the RDA, but these may not be compliant with the requirements of a special measure under the RDA. In November 2009, the Commission issued Draft guidelines for ensuring income management measures are compliant with the Racial Discrimination Act (Draft Guidelines). The Draft Guidelines set out a practical approach to developing a special measure that is compliant with the RDA. Accordingly, the redesigned measures will not meet the requirements of a special measure where: - the consultations do not meet the standard of consultation and consent of the affected group - there is insufficient current and credible evidence which shows that the measure will be effective - there are alternative means of achieving the objective that are not as restrictive of affected persons’ human rights - there are inadequate mechanisms for monitoring and evaluating the measure to ensure if it is working effectively and if its objective has been met. 18