A/HRC/15/37/Add.4 B. Special measures 19. Provisions of the NTER legislation identify the operative parts of the NTER programme as “special measures” for the purposes of the Commonwealth Racial Discrimination Act of 1975. With this “special measures” designation, related provisions of the NTER legislation suspend the prohibition of discrimination of the Racial Discrimination Act and of the racial discrimination laws of the Northern Territory. 20. Notwithstanding the effect of this legislative arrangement on the domestic norms dealing with discrimination, the NTER measures must be evaluated autonomously in regard to Australia’s international obligations, particularly under the Convention to Eliminate Discrimination. In the opinion of the Special Rapporteur, the discriminatory aspects of the NTER discussed above have not been shown to qualify as “special measures” that may be deemed not to constitute racial discrimination for the purposes of the Convention. Article 1 (4) of the Convention to Eliminate Discrimination provides, “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection … shall not be deemed racial discrimination.”9 21. As already stressed, special measures in some form are indeed required to address the disadvantages faced by indigenous peoples in Australia and to address the challenges that are particular to indigenous women and children. But it would be quite extraordinary to find consistent with the objectives of the Convention, that special measures may consist of differential treatment that limits or infringes the rights of a disadvantaged group in order to assist the group or certain of its members. Ordinarily, special measures are accomplished through preferential treatment of disadvantaged groups, as suggested by the language of the Convention, and not by the impairment of the enjoyment of their human rights. 22. The Committee on the Elimination of Racial Discrimination has advised that, “Special measures should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary ... States should ensure that special measures are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities.”10 23. Being racially discriminatory on their face, the rights-impairing aspects of the NTER measures should be presumed to be illegitimate. That presumption might possibly be overcome only if there is a strong showing that the measures are proportional and necessary in regard to a valid objective, and that adequate consultations have been undertaken. As pointed out above, no such consultations preceded enactment of the NTER programme; and, apart from that, the discriminatory measures cannot be viewed in the considered opinion of the Special Rapporteur, as proportional or necessary to the stated objectives of the NTER, valid as those objectives are. 24. Indigenous people with whom the Special Rapporteur met in various communities in the Northern Territory, including numerous women expressed anguish over not just the immediate impacts of various aspects of the NTER, but also about a deepening sense of indignity and stigmatization that is brought about by the entire scheme. In addition, 9 10 GE.10-13887 Further, article 2 (2) requires States “when the circumstances so warrant” to take “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing” the full enjoyment of their human rights. Committee on the Elimination of Racial Discrimination, general recommendation No. 32: The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination (2009), paras. 16, 18. 31