Dissenting report by Senator Rachel Siewert, Australian Greens
The whole approach being pursued by the Rudd Government to
the need to reform the problems of the Northern Territory Emergency Response
(NTER) as reflected in the Government's bills is fundamentally flawed. The
government is attempting to simultaneously pursue contradictory and
incompatible policy objectives. It made a firm commitment in opposition to
restore the application of the Racial Discrimination Act to the NTER
legislation and went to the election advocating the progressive social policy
of social inclusion. However, since coming to government it has become
enamoured with a punitive model of conditional welfare targeting disadvantaged
Indigenous communities (despite the enormous cost and a lack of evidence for
its efficacy) which is incompatible with social inclusion and basic human
rights. While these kinds of deep philosophical and moral contradictions can be
glossed over in the short term with creative public messaging, the victory of
spin over substance is always short-lived.
What is particularly concerning is the manner in which the
government is proposing to resolve this contradiction by pursuing what is
arguably the biggest change to Australia's welfare system since the Second
World War – the introduction of a national scheme of indiscriminate mandatory
income quarantining. It is particularly concerning that the Rudd Government has
not sought and does not have a public mandate for such major reforms. This is
very different from the social policy platform they took to the last election –
in fact it seems to be at direct odds with their campaign about the rights of
working families – and there has been no real effort made to inform the
Australian public about these intentions. These bills were introduced in the
last sitting of the year during a major public debate concerning climate change
without even a press conference or a media release to announce them.
The best thing for the government to do at this point would
be to drop this approach, continue on with reforming the negative aspects of
the NTER and shift to a more consultative community development approach to
addressing the underlying causes of disadvantage and social exclusion in
Aboriginal communities.
The starkest outcome of this inquiry by the Community
Affairs Legislative Committee was the lack of any substantive evidence to
support the government's assertions of the efficacy of its approach after two
and a half years of the intervention, and the overwhelming concern expressed by
experts and community organisations with the approach being taken. This lack of
hard evidence is a serious indictment of the government of a Prime Minister who
continues to expresses his commitment to 'evidence-based policy'. In relation
to the efficacy of income management, the analysis provided by AIHW[1]
of data collected by FaHCSIA highlighted serious deficiencies in the evidence,
including: the lack of any comparison group or baseline data, the over-reliance
on anecdotal evidence, perceptions and opinions; the absence of hard empirical
evidence to back up any of these claims; the relatively small number of
clients interviewed and the lack of random selection of interviewees; the
limited amount of quantitative data collected for evaluation purposes, and the
difficulty in isolating the effects of income management to other effects from
increased investment in affected communities. They characterised all of the
data collected as falling towards the bottom of an evidence hierarchy and were
highly critical of its reliability and validity. It is very clear that this
evidence does not provide a basis for continuing or extending income
management, and the failure to collect meaningful empirical data undermines any
claim that these were 'trial' measures.
Inadequacies of the majority report
The Community Affairs committee has in recent years
undertaken a number of inquiries relating to the circumstances and well-being
of Aboriginal communities. In these instances I have been impressed by the
candour and rigour with which it has approached these complex and sensitive
issues and by the manner in which the Committee has worked to uncover the
underlying issues and deliver comments and recommendations in which the best
interests of those affected communities were paramount. It is in this context
that I wish to express my disappointment with this current inquiry and report. There
has not been enough time to consider these very important issues, and the large
amount of evidence outlining major concerns with the proposals has been largely
dismissed. The approach pursued appears to be one where the legislation will
be supported come what may, despite all the evidence to the contrary.
The report seeks to make the case for government policies
and commitments for which there is neither compelling evidence nor a convincing
argument. On a large number of points the report has not even made a convincing
attempt to argue the case for the government's policy position, but has simply
relied on departmental assertions that well argued criticisms and opposing
evidence are not true, and that the department believes or the Minister has
stated something to the contrary. The most striking example of this relates to
the debate concerning whether the proposed income management measures are
discriminatory – where in the face of detailed and compelling argument from
constitutional and human rights law experts the report falls back on assertion
that the government intends these measures to be non-discriminatory and so
therefore they are non-discriminatory. The Government did not seek to argue its
case and has refused to release their legal advice.
I do not support the recommendation that this legislation
should proceed, and I do not consider that the evidence presented to the
committee supports this conclusion.
The current approach does not restore the RDA
The two bills proposed by the government do not fully
restore the application of the Racial Discrimination Act[2]
to the measures taken under the Northern Territory Emergency Response. The
evidence presented to the committee by constitutional and human rights law
experts (including LCA, HRLRC, NACLC, AHRC, Jumbunna, CAALAS, Professor Peter
Bailey, Mr Ernst Willheim, Ms Jo-Anne Weinman, Dr Anthony Cassimatis and Dr
Peter Billing[3])
was overwhelming in this regard.
The government bills in their current form continue to
breach a number of Australia's international human rights obligations[4]
and continue to be condemned by international human rights bodies[5].
The recent report by the UN Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous peoples, Professor James
Anaya was highly critical of the ongoing approach taken by the Rudd government
in the NTER, and it is clear that the proposed legislative changes do not
address the recommendations he has put forward and the substantive issues of
concern he has raised. I fully expect that if the legislation proceeds in its
current form it will be criticised and condemned internationally as
incompatible with Australia's international human rights commitments.
The Government bills take three different approaches to the
non-compliance of current NTER measures with the Racial Discrimination Act. In
the case of the proposed changes to income management, the government has (unsuccessfully)
sought to change the measures so it can claim that they do not directly
discriminate on the basis of race. In relation to alcohol restrictions,
prohibited material (pornography and violence) and five year leases the
government has introduced minor amendments to allow it to continue to assert
these are 'special measures'. In the case of suspension of consideration of
'customary law' in sentencing, the government has conveniently ignored the
ongoing suspension of the Racial Discrimination Act and continues to deny
Aboriginal people in the Northern Territory the right to have all relevant
matters considered in a court of law. In all three instances the evidence to
the committee makes a compelling case that the Racial Discrimination Act is not
being fully restored and that Aboriginal Australians in the Northern Territory
will not be able to exercise their right to be free from discrimination in the
same manner they could prior to the introduction of the NTER laws.
Permissible limitations on human rights
Under international human rights law it is very clear that
any limitations placed onto human rights must be reasonable and demonstrably
justified. They need to be for a legitimate and pressing purpose, they must be
clearly necessary to achieve that purpose and the limitation of human rights
needs to be proportionate to the benefit conferred and limited for only as long
as is necessary.[6]
It is clear that the onus is on states to demonstrate the necessity of such
human rights limitations and to establish them as both reasonable and
demonstrably justified. I agree with the majority of witnesses to the inquiry
who clearly stated that they did not believe that the government had made a
compelling case for these reforms.
Failure to qualify as 'special measures'
When the previous Howard Government introduced a number of
measures under the NTER that clearly contravened the Racial Discrimination Act
they got around this issue in two ways – by deeming these measures to be
"special measures" within the legislation and by suspending the
application of the RDA to the NTER. These measures have been assessed by UN
human rights bodies[7]
as discriminatory and "incapable of being characterised as special
measures."[8]
In seeking to partially restore the application of the RDA
to those NTER measures (concerning alcohol and prohibited material, compulsory
five year leases and the special powers given to the Australian Crime and
Corruption Commission to compel evidence), the government continues to assert
its belief that these measures constitute 'special measures'.
The definition of special measures under Article 1(4) of
CERD is quite clear:
Special measures taken for the sole purpose of securing
adequate advancement of certain racial or ethnic groups or individuals
requiring such protection as maybe necessary in order to ensure such groups or
individuals equal enjoyment or exercise of human rights and fundamental
freedoms shall not be deemed racial discrimination, provided, however, that
such measures do not, as a consequence, lead to the maintenance of separate
rights for different racial groups and that they shall not be continued after
the objectives for which they were taken to have been achieved.[9]
CERD makes it very clear that, irrespective of whether or
not the state considers any particular discriminatory measure to be a 'special
measure', it is the opinions and desires of those affected that actually matter,
particularly for measures that impact negatively on peoples' rights. The
measures must be understood to be beneficial and desired by those affected by
them – that is, 'special measures' require full informed consent.
It is very clear from the evidence presented to the
committee from Aboriginal organisations within the Northern Territory that they
were not consulted prior to the introduction of the original NTER measures, nor
were they properly consulted on the new measures proposed by the Government to
'reform' the NTER. It is also abundantly clear that there is not widespread
support for the continuation of these measures, and that they are not
considered to be either necessary or proportionate to tackle the original
objective of the NTER – tackling child abuse and neglect.
The duty to consult
The fact that 'special measures' require the prior informed
consent of those affected is one of the main reasons why the adequacy of the
NTER Redesign Consultations has become a contested issue. We note that in
evidence to the committee FaHCSIA clearly stated that the consultation process
was not designed or intended to serve the purpose of providing 'informed
consent' for these 'special measures'.[10]
While this may address some of the criticisms of the consultation process[11]
(although we remain highly critical of the consultation process itself), it
does not get the government out of the problem that it still requires prior
informed consent. In any case, such consultation and consent cannot be achieved
retrospectively and so any consultation concerning special measures would have
to concern itself with new measures and initiatives to address child abuse and
neglect (or locational disadvantage[12]).
While the government has addressed one of the criteria for
special measures by time-limiting some of the measures, it has failed to
address consent, necessity and proportionality.
The measures relating to alcohol and prohibited materials
and the ACC still leave themselves open to challenge as being discriminatory if
the Racial Discrimination Act is partially restored as proposed.
Land is a special case
The issue of compulsory five year leases is more complicated
still, as the right to land is considered a special case under CERD, and a
number of witnesses have suggested that it is unlikely that compulsory leases
could ever be considered as 'special measures'.[13]
It is also arguable that the government could make a compelling case for the
need to over-ride the rights of Aboriginal communities to negotiate the uses to
which their land is put. If the purpose of the compulsory five year leases is
to over-ride the right to negotiate so the government can quickly deliver
benefits which communities have been crying out for over decades – then surely
communities will either want to expeditiously agree on the delivery of
services, or the government has seriously missed the mark on the communities
priority needs (perhaps as a result of the lack of prior consultation).
The Law Council of Australia addressed this issue
specifically in answer to a question on notice from the committee, and
concluded that Section 8(1) of the RDA precludes the management of Aboriginal
land without consent.[14]
The LCA noted that provision already exists under Section 19 of the Aboriginal
Land Rights (Northern Territory) Act 1976 for the negotiation of such leases (i.e.
to obtain consent and therefore qualify as a 'special measure'), and that
Departmental officials acknowledged this during the committee hearings.[15]
We support the finding of the Law Council that on this basis the necessity for
compulsory acquisition of 5 year leases without consent has not been
demonstrated.[16]
The need for a 'notwithstanding' clause
A number of witnesses to the inquiry (including Australian Human
Rights Commission, Law Council of Australia, Law Society of Northern Territory,
Northern Territory Legal Aid Commission, Northern Australian Aboriginal Justice
Agency, Northern Land Council, Central Land Council, Human Rights Law Resources
Centre, and Amnesty International) supported the inclusion of a
'notwithstanding' clause in the legislative amendments to expressly state that,
in the event of any uncertainty or contradiction between the NTER legislation
and the RDA, the provisions of the RDA should prevail. A 'notwithstanding'
clause is included in my private Senator's bill, and was endorsed by the Law
Council of Australia[17].
Without the inclusion of such a clause the Australian Human
Rights Commission argues that "... any provision of the amended emergency
response legislation that is inconsistent with the RDA will still override the
RDA"[18]
As such, without the inclusion of a 'notwithstanding clause' or some functionally
equivalent mechanism the Government bills can only represent a partial
reinstatement of the RDA and does not deliver on the Government's promise to
fully restore the RDA.
In response to these concerns, FaHCSIA sought to argue that
the inclusion of a 'notwithstanding' clause was unnecessary and therefore
somehow legislatively undesirable, arguing:
"...It is not desirable to include a provision stating
that the RDA applies in relation to the NTER because it is not good practice to
include in legislation provisions that are not necessary and such a provision
is not necessary here for the reasons I have outlined above. Inserting such a
provision could lead to the argument that similar provisions must be included
in all Acts made since the RDA in 1975, which has wide ranging implications. In
the circumstance of this Bill, such a provision is not necessary to provide
clarity and its interpretation could provide an additional matter for dispute.[19]"
This contradicts the considered opinion of a number of
witnesses to the inquiry, (including Australian Human Rights Commission, Law
Council of Australia, Law Society of Northern Territory, Northern Territory
Legal Aid Commission, Northern Australian Aboriginal Justice Agency, Northern
Land Council, Central Land Council, Human Rights Law Resources Centre, and
Amnesty International) all of whom suggested that the provisions of the Social
Security bill raised significant doubts as to whether it was repealing parts of
the RDA. FaHCSIA did not seek to address these concerns, but merely referred
generally to legal advice held by the Minister which it refused to release or discuss
in any detail. I am inclined to consider this line of argument is specious and
agree with the objections to it raised by the Law Council of Australia in their
supplementary submission.[20]
The Law Council makes the compelling point that: "...notwithstanding such a body of opinion, it is
apparent that the Government is content to see legal challenges brought to
resolve the uncertainty" and noted that Departmental officers did not
address the desirability of certainty nor did they argue against conventional principles
of statutory interpretation relating to the implied repeal of the RDA (that
is, that the more recent specific measures in the bill will override older,
more general ones of the RDA).
In light of the singular nature of the suspension of the
RDA, and the widespread condemnation of the Parliament for enacting such
legislation, it is unfortunate that the Government has chosen to eschew an
approach to legislative drafting which would enhance certainty and minimise the
potential for dispute, and for which, as the Departmental officers accepted in
their evidence, there exists precedent.[21]
Legal challenge is inevitable
From the evidence to the committee it seems clear that, if
the partial restoration of the RDA continues as proposed, then there are several
grounds on which a legal challenge can be mounted. While there were mixed
opinions on the likelihood of success of such a challenge, with a number of
witnesses suggesting that ultimately such a challenge may not succeed[22],
it is also clear from the strength of feeling on this issue and other recent
challenges that a challenge or challenges are highly likely if not almost
certain.
The government would be either naïve or negligent to
think that the uncertainty around of the ultimate success of such challenges is
likely to make them any less likely – particularly given the strong desire demonstrated
by a number of stakeholders to establish these issues of discrimination and
social justice in principle, and the moral and political ground to be made in
publicly airing these issues.
Parliament should resolve legislative problems, not the courts
The point was made strongly in evidence to the committee
that, given knowledge of this series of issues and the likelihood of challenge,
there is what amounts to a moral obligation on the Parliament to seek to
address and resolve these issues legislatively, rather than proceed with this
legislation and leave it up to the courts to resolve these contradictions
through time-consuming and costly litigation.
There are a couple of fundamental points that any judicial
consideration of such a challenge may hinge upon. Firstly there will be the
issue of the government's stated intent in moving this legislation – that is,
if it intends to fully and effectively restore the RDA and achieve compliance
with our international human rights commitments. The Minister, in her second
reading speech stated that: 'This bill honours the government’s commitment to
reinstate the Racial Discrimination Act 1975...in relation to the NTER
legislation.'[23]
The response to date from the government to fulfil this intention has been both
equivocal and contradictory – in that they continue to assert that they are
restoring the RDA and that their new measures are non-discriminatory, but at
the same time they refuse to countenance inclusion of provisions that would
resolve a contradiction between the RDA and NTER measures when one inevitably
emerges... and have stated a strong intention to press on with their income
management plans despite warnings that it is likely to be considered indirect
discrimination.
The second key issue for judicial consideration is likely to
revolve around whether or not the Act discriminates either directly or
indirectly on the basis of race. Billings & Cassimatis argue that the issue
for consideration is likely to be the "true basis' of the application of
income management (and other measures) to prescribed areas in the 2007
legislation. They suggest both that under Section 18B of the RDA 'race' would
be considered the dominant or substantial reason, and that "...expansion of
the scope of income management to the entire Northern Territory does not
relevantly alter the position."[24]
Section 9(2) of the RDA makes it clear that such human rights
and fundamental freedoms include the right to “social security and social
services”. In assessing whether an action involves a distinction “based on”
race, members of the High Court of Australia have suggested, in an analogous
context, that the question becomes - what is the “true basis” of an act? What
was the true basis of applying income management to the prescribed areas in the
2007 legislation? All indicators suggest “race” was a dominant or substantial
reason (consider the terms of section 18B of the RDA). Arguably, the proposed
expansion of the scope of income management to the entire Northern Territory
does not relevantly alter the position.[25]
That is, according to this argument, if the true basis of
the original Act is discriminatory then the proposed changes to extend income
management to include some other groups within the Northern Territory are
insufficient to alter the likelihood of the laws being found to be
discriminatory.
It is interesting to note the difference between the
Minister's publicly stated intention that income management is only being
extended within the Northern Territory in the first instance, and the lack of
any provisions within the proposed legislation that specify any geographic or
temporal restrictions. There is nothing in the bills that limits income
management to the Territory, that sets up any sort of sunset clause or
requirements for a review, or puts any such conditions on how, when and where income
management can be extended to other communities across Australia.
It is questionable whether the Government is trying to walk
a fine political line between (on the one hand) avoiding any mention of the
national introduction of conditional welfare laws (which may be unpopular in
disadvantaged urban and regional electorates in the run up to a 2010 Federal
Election) ... and (on the other hand) putting forward a legislative package which
gives a prima facie appearance of not discriminating on the basis of
race, by failing to specify an intention to disproportionately target
Indigenous communities. I believe it is disingenuous for the government to seek
to claim that the proposed legislation in not discriminatory because it applies
in potentia to any Australian on income support payments, while
continuing to assert it intends to initially target these laws geographically
at areas where Aboriginal people predominate. This does nothing, as stated
above, to change the 'true basis' of income management laws which were clearly
designed and implemented on the basis of race.
Such a strategy will also not prevent a challenge which asserts
that the selective application of these laws to the Northern Territory is
discriminatory, irrespective of whether their national scope in potentia
might mean that they are not on the face of it discriminatory. On this basis it
might be that those affected by the application of the new scheme of income
management in the Northern Territory might take a case directly against the
Minister for applying these laws in a discriminatory fashion, rather than
challenging the laws themselves.
The national introduction of indiscriminate mandatory income management
Fundamental issues of principle
The proposed extension of non-discriminate mandatory income
management to classes of income support recipients across the country
represents a major shift in social security policy. In my view and in the view
of the vast majority of social service providers who gave evidence to the
committee, [26] this
represents a fundamental shift in values which goes to the very heart of the
concept of social security as an entitlement designed to reduce poverty by
delivering an adequate income and assistance to find work. In doing so it
violates the principle of inalienability of the social security safety net
which has been the cornerstone of modern welfare law.
For instance, Australian Council of Social Services (ACOSS)
asserts that:
"The primary and proper role of the social security
system is to reduce poverty by providing adequate payments and supporting
people into work. Appropriate activity requirements to assist people into
employment are consistent with this objective. Compulsory income management
which does not increase payment levels and removes individual autonomy does not
further this objective. Rather, it locks people into long-term dependence on
others to make financial decisions for them without enabling them to manage
their finances independently."[27]
Catholic Social Services Australia (CSSA) also agrees that:
"Adequate income support is an entitlement. It should
not be a tool for governments or public sector managers to grant, withhold or
modify in an effort to achieve ‘outcomes’. Increasingly, it seems policy makers
regard the right to income support as itself a cause of disadvantage and as an
impediment to the efficient and effective pursuit of policy goals.[28]
Anglicare Australia points to the principles of social
inclusion articulated by the Social Inclusion Board including the aspirations
of "...reducing disadvantage, increasing participation and matching greater
voice with greater responsibility" and the approaches of "...
building on individual and community strengths, building partnerships with key
stakeholders, and developing tailored and joined up services" concluding
that "the blanket approach to income management that this legislation
pursues is not consistent with these approaches."[29]
The National Welfare Rights Network argues that the proposed
legislation breaches well established principles of the inalienability of
Social Security and Family Assistance law, saying that:
"Section 60 of the Social Security (Administration) Act
1999 provides principal protection of a person’s legal right to receive a Social
Security payment where they are qualified and entitled to the payment.
Inalienability enshrines the person’s legal right to the payment, as it cannot
be given to someone else. The principle gives legal force to the intention that
the payments are designed to provide income support."[30]
The Australian Council of Trade Unions (ACTU) Indigenous
Committee indicated that the recent ACTU Congress expressed concern about the
violation of the inalienability of social security payments, indicating that
the ACTU Congress Policy 2009 - Aboriginal and Torres Strait Islander Policy
states:
"Congress believes that income management provision
under the NTER and the further national roll out of income management in other
Aboriginal and Torres Strait Islander communities are contrary to well
established social security principles under Australian legislation. Under the Social
Security (Administration) Act 1999 social security payments and the right to
appeal decisions, pertaining to the provision of an individual’s social security,
are absolutely inalienable and this inalienability applies to all forms of
entitlements. Congress believes that the nature of the income management
reforms, which target specified geographical locations, mostly populated by
Aboriginal and Torres Strait Islander peoples, are inherently discriminatory
and calls on the government to cease this arbitrary legislation."[31]
The ACTU Indigenous Committee went on to point out that:
"Aboriginal and Torres Strait Islander women are
particularly disengaged from the workforce and the [ACTU Indigenous] Committee
feels that undermining their decision to be dedicated mothers, particularly in
the early stages of child’s life will do little to encourage entering or
re-entering the workforce. The [ACTU Indigenous] Committee also submits that
the direct discrimination against a certain type of mother based on their
socio-economic circumstances is not within the spirit Australia’s commitment
under the Convention on the Elimination of all Forms of Discrimination against
Women."[32]
I recognise that income support recipients have obligations
that go along with those entitlements, as do the organisations whose evidence I
have discussed above. However, as they argue, those obligations are primarily
to be actively looking for work and to take advantage of programs and services
which improve their ability to find it (which in the case of youth aged 15-24
now includes participation in full-time study or vocational training). However
the point, which is strongly made by Catholic Social Services Australia, is
that the current indiscriminate approach to mandatory income management "...
removes the entitlement to income support from entire groups of people without
considering whether or not they are meeting their obligations.[33]"
In these terms it is clear that the current blanket
mandatory income management measures together with the proposed new national
measures represent a significant reduction in the ability of those on affected
categories of income support payments, without delivering corresponding
proportional benefits in terms of services and supports and without offering a
clear pathway 'up and out' of income management.
The policy is clearly indiscriminate – in that it fails to
discriminate in any manner between those in declared 'disadvantaged
communities' on affected payments who are caring and providing for their
children and managing their money well, and those who are not. Australian
citizens should not be asked to forgo basic entitlements simply because of
where they live or which income support category they fall into.
The lack of pathways 'up and out' of income management
The weight of the evidence of the use of income management
and the strength of expert opinion presented to the committee is that income
management alone will not help those in disadvantaged communities to better
manage their finances, expenditure and their lives. As ACOSS argues, despite
the Government Policy Statement framing these measures as 'reforms' to 'fight
passive welfare' and 'welfare dependency' the scheme is in fact "... likely
to increase the dependency of affected recipients on government to make
decisions about their individual finances."[34]
If the government's intention is to promote personal
responsibility and a more 'active' model of welfare, then it needs to be
actively targeting services and supports to increase the capacity of those
particular individuals who lack this capacity... and offer them a pathway out of
income management.
As Catholic Social Services Australia argue "...a sure
way to undermine social inclusion and create division is to arbitrarily apply
different rules to different people regardless of their individual
circumstances."[35]
No evidence income management has resulted in better nutrition
The Government asserts that one of the primary reasons for
the introduction of income management and the BasicsCard, and for the
provisions relating to the licensing of community stores was to address child
neglect (and to close the gap on health outcomes) by ensuring more money was
spent buying healthy food. However, in practice, the initial roll-out of income
management in many centres involving the use of store cards issued for major
retailers such as Coles, Woolworths and Kmart meant that affected Aboriginal
people were deprived of the opportunity to shop at smaller retail and specialty
stores such as greengrocers, butchers, bakeries and health food stores. It
remains to be seen if this reduction in shopping options to places with a wider
range and greater focus on processed foods over fresh ones actually resulted in
healthier or less healthy food choices.
Evidence presented to the Senate Select Committee into Regional
and Remote Indigenous Communities (RRIC committee) in May 2009 by the Sunrise Health
Service indicated an alarming rise in the rates of anaemia in young children:
The data indicates anaemia rates in children under the age
of five in the Sunrise Health Service region jumped significantly since the
Intervention. From a low in the six months to December 2006 of 20 per cent—an unacceptably
high level, but one which had been reducing from levels of 33 per cent in
October 2003—the figure had gone up to 36 per cent by December 2007. By June
2008 this level had reached 55 per cent, a level that was maintained in the six
months to December 2008.
As Sunrise Health Service noted in their submission to the
RRIC committee:
This means that more than
half of the children under the age of five in our region face substantial
threats to their physical and mental development. In two years, 18 months of
which has been under the Intervention, the anaemia rate has nearly trebled in
our region. It is nearly double the level it was before the Sunrise Health
Service was established, and more than twice the rate measured across the rest
of the Northern Territory.
According to the World Health Organisation, levels of anaemia
above 40 per cent represent a severe public health problem. At 55 per cent, the
Sunrise Health Service results must be seen as particularly severe. On that
basis, the latest Sunrise figures can be equated to early childhood anaemia
levels in Brazil, Burundi, Iraq and Zambia; and are worse than Zimbabwe,
Swaziland, Pakistan, Peru, Jamaica, Indonesia, Bangladesh, Algeria and
Equatorial Guinea."[36]
In contrast to these reports, the government has relied on
reports from store owners and operators that they are of the opinion that they
are selling more fresh food without any solid quantitative data on fresh food
sales to back it up. The Government has not been able to provide any breakdown
or analysis of expenditure which could differentiate the types of items
purchased. In response to media reports last week that alleged that 72% of
BasicsCard expenditure was being spent on food and 17% on clothing it has been
revealed that Centrelink do not have an actual breakdown of expenditure by
category and that the figures were derived by assigning the amount of money
spent in particular stores to particular categories (for instance a Community
Store could be categorised as only selling food and K-Mart as only selling
clothes).
A letter to the inquiry from the Menzies School of Health Research
tabled by Outback Stores reports on research currently in publication that
found no increase in the purchase of fresh foods and a significant increase in
the purchase of soft drinks and junk food.[37]
Outback Stores themselves were unable to document to the
inquiry any information on whether there had been an increase in food purchased
as they had no baseline data on which to compare current purchases.[38]
Income management does not improve financial capacity
The government continues to claim that income management will
improve the capacity of affected individual's to manage their financial
affairs. Not only has the government failed to make the case that the current
measures are actually doing so ... but evidence presented to the inquiry strongly
suggest that the opposite is the case, as the manner in which income management
is implemented reduces the ability of those affected to monitor and actively
manage their finances and spending patterns.
Income management statements that detail allocations to the
Basics Card and to third parties (such as rent or utilities) are only provided
to Aboriginal people every quarter – meaning they have limited opportunity to
check they have received the correct allocation of funds and that funds have
been directed or agreed by them. Basics Cards transaction statements setting
out all transactions are only sent out to social security recipients every six
months – giving Aboriginal people very limited opportunity to reconcile their
expenditure against a statement or to check for unauthorised transactions. Such
long gaps between statements provide minimal opportunity for Aboriginal people
to actively review their spending habits and make informed decisions about
their money management.
Perhaps the most compelling case against the indiscriminate
roll-out of mandatory income management as a means of improving the capacity of
those affected was that put by the Australian Financial Counselling and Credit
Reform Association (AFCCRA) –the professional association of financial
counsellors. AFCCRA members have had direct experience of both providing
assistance to those involved in the various income management schemes in NT and
WA, as well as with other alternative approaches and initiatives to improve the
financial literacy and day-to-day budgeting skills of disadvantaged families and
other people under financial stress. It is important to note that AFCCRA does
support both voluntary 'opt in' approaches to income management and appropriate
trigger-based compulsory income management (based on evidence such as a child
protection notification).[39]
AFCCRA were however highly critical of mandatory income
management schemes and indicated their opposition to the proposed measures.
They strongly recommended that referral to financial counsellors or money
management courses for those having their income managed should not be
compulsory, stating that this 'fundamentally alters' the way financial
counselling is delivered, undermining its success. They went on to state:
"We understand that referrals of clients to financial
counselling or money management programs, under income management as it
operates at present, are on a voluntary basis. There is strong evidence however
that the opposite is happening in practice. It appears for example that
Centrelink staff, particuarly in Western Australia, tell people that they must
see a financial counsellor."[40]
AFCCRA go on to argue that effective financial counselling
depends on the relationship between the client and counsellor. Where clients
are concerned that whether they attend a referral and how they perform at it
will be reported back to their case manager undermines the trust that is paramount
to the success of the financial counselling. Placing such requirements onto
financial counsellors is, they argue "...contrary to our ethical
standards and over 30 years of professional practice."[41]
While we note that some additional resources have been provided
in the Northern Territory, there remains a big gap between the total number of
those on income management and the number and location of financial
counsellors, meaning that a very limited number of those currently on income
management have access to financial counselling support. It is also important
to note that a high proportion of those currently income managed in the
Northern Territory have English as a second or third language, have had limited
access to education and below average numeracy skills.
The prospect of a national roll-out of mandatory income
management is of particular concern both because of the national shortage of
properly trained and qualified financial counsellors, and because it is highly
unlikely that there will be the substantial increase in the overall welfare
budget that would be needed, firstly to administer this complex and
administratively intensive system, and secondly to provide the case management,
financial counselling and other wrap around support services that are essential
to make income management work effectively as a part of a wider case management
approach.
Income management costs reduce investment in social services
One of the problems with a blanket mandatory approach to
income management is that, without a massive increase in associated resources,
the roll-out of such an expensive system will ultimately result in a net
reduction of services and supports available to disadvantaged communities. Any
government that takes it upon itself to reduce the rights of its citizens
supposedly 'for their own good' in this manner should then be obliged to
deliver on its side of the bargain, and guarantee access to the supports and
services necessary to give those on income management a real path 'up and out'
of welfare quarantining. This hasn't happened to date in Northern Territory or
Western Australia.
A number of social service providers and community
organisations within the Northern Territory complained that the problems with
the roll-out of income management measures under the NTER meant that they were
effectively left to carry the can, with a significant increase in those coming
to them for assistance or emergency support, and no concomitant increase in the
resources from the commonwealth.
While some additional resources for financial counselling
and money management training have been provided, there has been nowhere near
enough to provide the necessary services and support. It is also not clear why
those currently on income management would want to pursue these options, in the
absence of any provisions that would guarantee that demonstrated money
management skills would lead to financial independence.
The Commonwealth Government is not providing additional
resources to assist with support services and the Northern Territory Government
reported to the inquiry that they are yet to decide what additional resources
will be contribute by the NT Government.
The $350m that the rollout will cost in NT alone would be
better invested in addressing the underlying causes of disadvantage and
increasing the capacity of community-based support services with a demonstrated
track record of delivering results.
Intensive case management, not IM alone, produces results
It was interesting to note the responses from the WA
Department of Child Protection on the limited application of the targeted
income management for child protection scheme in WA. They characterised
targeted compulsory income management as only one of several case management
and client support tools and noted that the evaluation report had not yet been
released. Income management in WA was embedded in existing case management
structures. As the WA Department for Child Protection noted, for their purposes
income management is:
'...a case management tool that we have streamlined into all of
our other case management support. It is just another initiative or another
measure that case workers can invoke when it is appropriate. In terms of the
additional support that people have received, as I said earlier, it does depend
on the case. If it is a fairly significant case but it does not meet the
threshold of a child protection concern then we would obviously wrap more
support around that family than just income management, and they would be
referred for non-government service provision, responsible care and a host of
other services.'[42]
The Western Australian Council of Social Services noted that
income management alone was a simple tool, stating:
'Income management is a simple way of trying to deal with the
money issue when in actual fact for many of these people who are vulnerable to
being put on compulsory income management their circumstances are such that
they really need longer term, more intense and complex intervention in order to
be able to achieve the outcomes. Compulsory income management will only achieve
a short change in terms of their financial situation but it will not actually
lead to the long-term outcomes that we are all desiring.'[43]
Absence of assessment framework and baseline data
I remain concerned that, while the Minister has spoken
publicly to indicate an intention that there will be some form of assessment of
the proposed new income management measures before they are rolled-out beyond
the Northern Territory, there is nothing in the legislation requiring or
setting out the timeframe and terms of reference for such an inquiry and there
is no evidence to date that there is either sufficient baseline data, ongoing
protocols for collecting relevant data nor any evaluation framework. This does
not fit well with the government's ongoing claims of its commitment to
evidence-based policy, nor does the fact that there has been no consultation
with affected communities on the evaluation fit well with their claims of 'resetting
the relationship' and undertaking greater consultation with Aboriginal people.
I agree with the recommendations put forward by ACOSS in
their supplementary submission responding to questions on notice that, should
the legislation be passed (which we do not support), a full independent
evaluation should be conducted along the lines they have suggested:
- The evaluation should be designed and conducted by a respected
research organisation which is independent of government.
- Affected communities should be consulted about the evaluation
design.
- The evaluation should seek to measure the impact of income
management on a range of clearly defined outcomes that relate to policy
objectives. It should also seek to measure any unintended effects.
- As a pre-condition to further evaluation, benchmark data needs to
be collected and collated to enable meaningful comparison.
- The evaluation should take into account, if not control for, the
impact of other variables (including other NTER measures) on the outcomes.
- The evaluation should include reliable quantitative as well as
qualitative data. Existing evidence is too reliant on qualitative data.[44]
- If it is the government's intention that income management should
not be extended beyond the NT until such an evaluation has been conducted, then
the geographic and temporal limits and terms of reference of the evaluation
should all have been clearly outlined within the legislation.
Conclusion
The Government bills do not fully restore the operation of
the RDA to the NTER. The bills represent an unacceptable fundamental shift in
social security policy, an approach that there is no evidence to support and
about which the Government has not consulted the Australian community.
Recommendations:
- The legislative package is separated so that the restoration
of the RDA is dealt with separately to changes to social security that expand
income management.
- The Commonwealth amend the NTER Act to revoke the provisions
relating to compulsory leases, and negotiate leases in good faith under the
existing provision of the Aboriginal Land Rights (Northern Territory) Act 1976.
- The legislation is amended to include a 'not withstanding'
clause which clearly indicates that the Racial Discrimination Act is intended
to prevail over the provisions of the NTER.
- All existing discriminatory measures are amended to ensure
that they comply with the provisions of the Racial Discrimination Act, and that
those intended to be special measures legitimately meet the requirements of
'special measures' through a process that ensures full informed consent in the
development of new community-based measures.
- If these changes are not made, then the legislation should be
opposed.
Senator Rachel Siewert
Australian Greens
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