The HREOC Review (HREOC 1997) was conducted by the RDC at the request of Aboriginal and Torres Strait Islander communities and organisations who expressed concern about the treatment of CDEP participants. The main brief of this report was to assess whether any aspect of the treatment of CDEP participants is racially discriminatory under Federal human rights law. The human rights principles most relevant to the CDEP scheme are those of equality, non-discrimination and special measures. The principles of equality before the law and non-discrimination are expressed in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), to which Australia is a party, as follows:
States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law (ICERD 1965: Art. 5).
The essential feature of the principle of equality is the understanding that the ‘promotion of equality does not necessitate the rejection of difference’ (Acting Aboriginal and Torres Strait Islander Social Justice Commissioner 1998: 31). In his now classic statement, Judge Tanaka of the International Court of Justice explained this concept as follows:
The principle of equality before the law does not mean the absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal . . . To treat unequal matters differently according to their inequality is not only permitted but required (Tanaka 1966: 303–4, 305).
There are two approaches to equality contrasted in this passage. The first is often referred to as the substantive equality model, or the provision of equality in fact. This approach takes into account ‘individual, concrete circumstances’, including racially-specific aspects of discrimination such as socio-economic disadvantage, historical subordination, and a failure to recognise cultural difference (Acting Aboriginal and Torres Strait Islander Social Justice Commissioner 1998: 31–2). Such an approach acknowledges, for example, that Indigenous people are disadvantaged in Australian society and permits the differential treatment of Indigenous people in order to redress this disadvantage and to achieve their equality in society.
The alternative approach—often referred to as formal equality—relies on the notion that all people should be treated identically regardless of their differing circumstances. It presumes that a ‘level playing field’ exists for all social participants, and that everyone is on an equal footing to start with. As Dr Michael Wooldridge, the Minister for Health and Aged Care, has stated in relation to the delivery of health services to Indigenous Australians: ‘This is, of course, a false view of justice that offers those who are disadvantaged nothing. Justice does not mean treating everyone the same’ (1998: 2–3). This understanding of equality in terms of ‘treating everyone the same’ stands in contrast to the principle of equality as it has developed under international law. In adopting a substantive equality approach, international law indicates that there are two types of differential treatment that are ‘legitimate’ and therefore not discriminatory. These are firstly, actions that constitute ‘special measures’ and secondly, those which recognise and protect the distinct cultural characteristics of minority groups.
The rationale for allowing ‘special measures’ is that historical patterns of racism entrench disadvantage, and that more than the prohibition of racial discrimination is required to overcome the resulting racial inequality. Special measures are deliberately designed to offer targeted assistance to those who have been historically disadvantaged by discrimination. Where there has been ongoing and systematic discrimination against a particular group, whether it be on the basis of race, sex, or religion, for example, there needs to be a period whereby such a group is given a chance to catch up. Otherwise mere formal equality of treatment will result in further entrenchment of the discrimination that such a group has inherited.
The HREOC Review (1997) found that the CDEP scheme did not appear to raise any significant issue of racial discrimination. While the CDEP scheme is race-based and applies only to Aboriginal and Torres Strait Islander peoples, it is designed to deal with the disadvantage experienced by Indigenous communities in their access to social security and mainstream labour market programs and opportunities. Moreover, it seeks to do so in ways that enhance the economic, social and cultural rights of Indigenous peoples. The CDEP scheme is also not racially discriminatory in so far as it does not disadvantage non-Indigenous people. A further finding of the report was that the CDEP scheme is adapted to the concrete circumstances of Indigenous communities, particularly, for example, in overcoming difficulties faced by those in remote locations. Whether the scheme constitutes a ‘special measure’ is a more complex issue that is discussed below.
The report had some specific concerns, however, with the administration of the scheme. Many of these related to the lack of consistency shown by Commonwealth agencies in the treatment of income derived from the CDEP scheme. Serious inequities were caused by the definition of CDEP as a Commonwealth-funded program under the 1991 provisions of the Social Security Act which barred CDEP participants from becoming DSS customers and receiving the same services and allowances as others. The CDEP scheme was also inconsistent in its treatment of pensioners.
Following the findings of the HREOC Review and also those of ATSIC’s independent review of the CDEP scheme, changes were introduced to address these inequities in the Further 1998 Budget Legislation Amendment (Social Security) Bill 1999. This came into effect in March 2000.