The High Court considered the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’) and the UN Declaration on the Rights of Indigenous Peoples and the requirement under those instruments that informed consent be central to all decisions that affect Aboriginal and Torres Strait Islander communities and in particular the development of ‘special measures’. Unfortunately, the High Court’s decision constitutes a very strict, literal interpretation of the text of sections 8 and 10 of the RDA and articles 1(4) and 2(2) of CERD. While the judgment contains references to various international sources, such as general comments of UN treaty bodies, the Court did not find that these materials were authoritative or persuasive sources in support of an interpretation of the RDA consistent with established jurisprudence on the meaning and content of special measures under international law.
Interestingly, one week after the High Court’s decision the Parliamentary Joint Committee on Human Rights released its report on the Stronger Futures legislation, which also included an assessment of the High Court’s decision in Maloney v The Queen  HCA 28 (19 June 2013). The Committee observed that the High Court decision adopts ‘a number of conclusions which are arguably not in conformity with the current state of international law and practice relating to special measures’ and recommends that section 10 of the RDA be reviewed in light of the decision in Maloney.
BEN SCHOKMAN, Human Rights Law Centre, Melbourne.