Dissenting report by the Australian Greens
Introduction
The Commonwealth Government’s
approach to the problems facing Indigenous communities in the Northern Territory, including the three Bills being considered by this Committee, is
fundamentally flawed.
These three Bills are less
about protecting children and more about implementing a previously developed
ideological agenda to once again control the lives of Indigenous people and to
restructure Australia's welfare system.
If the Government was genuine
about protecting children it would be listening to the experts and implementing
the recommendations from the Little Children are Sacred report and the
other reports on child abuse in Indigenous communities released over the last
decade. Instead the Government has ignored this expertise and rushed ahead with
implementing a flawed agenda without any evidence of its likely efficacy.
These Bills represent the
most significant changes to the relationship between governments and Indigenous
people since the 1967 Referendum. They are a deliberate and calculated move
away from efforts to build the capacity of Aboriginal communities, and a return
to complete central government control over every aspect of the lives of
Aboriginal Australians. As the Central Land Council submits, "The
intervention also means that almost every aspect of Aboriginal life will be
able to be controlled by the Commonwealth."[1]
To succeed in the long-term
it is absolutely essential to have genuine community engagement and ownership
of programs and initiatives addressing child abuse and the causes of child
abuse.
Community consultation is the
first recommendation of the Little Children are Sacred report and one of
the key criticisms of the approach taken by the Federal Government is that they
have failed to consult and failed to learn from the past. The Government has
attempted to justify their lack of consultation by saying there has been
consultation in the past, but there has been no consultation on the
intervention measures.
Andrew Johnson (an expert in international child protection and
former consultant to UNICEF and UNHCR on emergency interventions) provided the
Committee with a useful comparison with how the UN would respond to an
emergency situation:
"In
an emergency setting, the first thing a UN agency would do, under the direction
of OCHA, is to ensure proper consultation on the ground. That is done within
the first 24 to 48 hours and it is quite extensive. They then sit down with the
communities to find out what supports and services they need. They set up safe
houses and ensure that there are safe places for children to play. The
international community ensures that there is safe and proper housing, water
and access to medical services. The international community is able to do things
quite quickly in a refugee camp, and that is based on consultation and asking
the population themselves what they need. The biggest lesson learnt from all
interventions internationally is that they always fail when they do not involve
and empower the local communities to take part in the interventions that are
taking place. If you look across the world at the operations that have been
successful in resource-poor communities, the fundamental thing that crosses
through all those interventions has been the giving of ownership, empowerment
and control to the people themselves to ensure children are protected and
families and communities are safe."[2]
The Australian Greens want to
see a more considered and comprehensive response leading to the development of
evidence-based policy that builds on existing knowledge of successful programs
to deliver long-term solutions that strengthen and empower communities.
There already exists clear
information about what governments (Territory, State and Federal) should be doing
to address child sexual abuse in Indigenous communities. In the past decade
there have been a large number of reports from across the country, in addition
to the Little Children are Sacred Report, which outline practical and
proven measures to tackle this issue. There is also a body of knowledge arising
from case-studies and pilot programs of a range of community programs both
within Australian Indigenous communities and around the world of what type of
interventions have proved successful and what obstacles have been encountered
in trying to deal with child safety and well-being.
The federal government's
response ignores all of these recommendations. The authors of the Little
Children are Sacred Report have publicly stated that that Government's
measures, including these Bills, do not deliver on their Report.
The Emergency Response and
Development Plan to protect Aboriginal Children put forward by the Combined
Aboriginal Organisations of the Northern
Territory on 10 July 2007 outlines
a comprehensive two-phase approach to this issue which the Australian Greens
endorse. This plan is attached to Oxfam’s submission (Number 51).
The Australian Greens are
calling on the Federal Government to put aside its current intervention
strategy and enter into a partnership with Aboriginal communities to deliver a
comprehensive and considered proposal.
The Australian Greens believe
that strategies and programs must ensure:
child
protection
- Safe communities through adequate
and appropriate policing and more resources to support safe houses, night
patrols and Aboriginal community police and community-based family violence
programs.
health
- Healthy kids and healthy families
through increased resources and infrastructure to provide primary health and
wellbeing services
- Urgent investment to reduce the
gap in life expectancy and rates of chronic disease within a generation as part
of a national Indigenous health strategy (a commitment of $500M/yr)
- Significant investment in programs
to reduce alcohol and other substance abuse which includes education and
demand-reduction strategies as well as rehabilitation and counselling services
as part of a national strategy
housing
and infrastructure
- Sufficient housing to reduce
overcrowding and increase child health and safety ($2-3 billion nationally over
ten years)
- Genuine employment opportunities
providing community-based health, education and welfare services as well as
housing and infrastructure maintenance and construction
education
& training
- Delivery of quality education to
all Aboriginal children, with a focus on early childhood development and with
school attendance strategies that encourage family engagement (an extra $295
million for infrastructure plus $79 million a year is needed if all children in
the Northern Territory attend school)
partnership
and governance
- A human rights approach to
partnering with communities in developing policies and programs
- Financial management education and
services, and support for voluntary community-based financial management
initiatives (such as Tangentyere's successful Centrecare scheme)
These are the matters that
the government is not addressing and which are vital to protecting children and
ensuring viable functional communities.
Legislative process
The Greens agree with the Law
Council of Australia’s condemnation of:
“the
timetable for considering this proposed legislation as disgracefully inadequate
and an affront to fundamental democratic principles.”[3]
The legislation presented to
the Parliament is detailed, complex and of major significance. The Government’s
indecent haste to push the legislation through the Parliament is unjustifiable.
The shortness of time given for this Committee to consider the Bills is
unconscionable. This Government is showing great contempt for the Parliament and
thereby also for the people of Australia by its actions.
The Greens also agree with
these comments by the Law Council of Australia:
“The
true situation about the government’s stance on consultation is that it knows
that its approach is over-bearing, intimidatory, discriminatory and designed
for electoral consumption in parts of Australia far removed from the Northern Territory. It also
knows that many elements of its emergency plan are not likely to be acceptable
to the Aboriginal communities who identified the problem in the first place.”[4]
This Dissenting Report by the
Australian Greens is not as comprehensive as we would have liked, given we have
not had the necessary time to adequately review the legislation.
The Majority Committee Report
notes:
Due
to the unusually short timeframe allowed for consideration of the bills, the
committee, the committee did not have access to a full Hansard transcript when
preparing its report. The committee therefore presents the proof Hansard
transcript of the hearing at Appendix 3 of the report to assist the Senate in
its consideration of the Bill.
The Majority Report
however falls short of the obvious conclusion that it is clearly not a
satisfactory state of affairs when an inquiry is conducted under such a compressed
timeframe that due process cannot be followed and the accuracy of its evidence
considered.
Racial Discrimination
Act 1975
The three Bills all state
that the provisions of the Bills and acts done under the Bills are
"special measures" for the purpose of the Racial Discrimination
Act 1975 (RDA). In addition to declaring the Bills "special
measures," the Government has added an insurance policy by exempting the
Bills from the operations of Part 2 of the RDA, effectively suspending the operation of the RDA.
The Australian Greens are in
no doubt that the provisions of these Bill are racially discriminatory and cannot be
characterised as "special measures," either under the RDA or in
international law. It is of significance that this Government is prepared to
suspend the operation of the RDA and introduce such explicitly racist legislation.
This fact alone is reason enough for the Bills to be condemned and opposed.
Considerable concerns about
the RDA were raised in the Senate Inquiry by a range of organisations including
the Human Rights and Equal Opportunity Commission (HREOC) and the Law Council
of Australia.
The significance of the RDA
was summarised in HREOC’s submission as follows:
“The Racial
Discrimination Act 1975 (Cth) (‘RDA’) implements Australia’s
international obligations under the Convention on the Elimination of All
Forms of Racial Discrimination (‘ICERD’). The RDA was Australia’s
first law to protect human rights and remains a cornerstone of human rights
protection in Australia. Upholding the values of the RDA and ICERD is vital
to ensuring community respect for government action and to maintain Australia’s
reputation as a nation committed to equality.”[5]
The Law Council comments on
the exclusion of the operation of the RDA as follows:
“The
Law Council considers the inclusion in legislation proposed to be enacted by
the Australian Parliament in 2007 of a provision specifically excluding the
operation of the RDA to be utterly unacceptable. Such an extraordinary
development places Australia in direct and unashamed contravention of its
obligations under relevant international instruments, most relevantly the
United Nations Charter and the International Convention on the Elimination of
All Forms of Racial Discrimination (“CERD”). In addition to its status as a
treaty obligation, contained in all major human rights instruments, the
prohibition of racial discrimination has attained the status of customary
international law, and has been characterised as one of the “least
controversial examples of the class” of jus cogens. Jus cogens or
peremptory norms of international law are overriding principles of
international law, distinguished by their indelibility and non-derogability.
They cannot be set aside by treaty or by acquiescence. Other “least controversial” examples of jus cogens include the prohibition of the use of force, the
prohibitions of genocide, slavery and apartheid, and the principle of
self-determination.”[6]
In relation to the issue of
whether the Bills constituted "special measures," HREOC expressed
doubts and the Law Council of Australia specifically denied that the Bills
constituted “special measures”. Of particular significance in their submissions
on this point is the reference to the need for consultation before a law can be
considered a “special measure.”
It is notable that the
authors of the Little Children are Sacred Report have commented that
there would be no need to exempt the RDA in implementing their recommendations.
The Australian Greens do
not consider that the provisions of the Bill are in fact
"special measures" as we do not believe that they will lead to the
advancement of Aboriginal people.
Northern Territory National Emergency Response Bill 2007 (NTNER Bill)
Land acquisition
The NTNER Bill gives the
Minister extraordinary powers over Aboriginal land in the Northern Territory. The NTNER Bill provides for:
- 5 year leases over specified land,
including land prescribed in regulations at a later date,
- Commonwealth Ministerial powers
over town camps and local councils;
- That the terms of conditions of
the leases are at the Minister's discretion;
- That the Minister can terminate
any rights, title or other interests in the land at any time;
- That the Commonwealth can sublease
and licence their interest in the land.
Even more exceptionally, the
Government is giving itself the power to amend Northern Territory legislation
through regulation (including the Special Purposes Lease Act) and to exclude
the operation of Commonwealth laws through regulation to acts done in relation
to land acquired by the Commonwealth under the NTNER Bill, and to declare
certain Divisions of the NTNER Bill will cease to have effect. These are
extraordinary provisions. Under these provisions the Commonwealth could for
example exclude the operation of the Environmental Protection and
Biodiversity Conservation Act 1999 to the land it acquires.
The Law Council of Australia
responded that it was "speechless" at the legislation providing the
Minister the power to change the legal framework and the legislation. The Law
Council of Australia comments that:
"These
are examples of Henry VIII clauses, so-called because they enable the Minister,
simply by a stroke of the pen, to change the legal framework. Henry VIII clauses
are regarded as contrary to fundamental legal principles as they give
insufficient regard to the institution of Parliament as the supreme
legislature; they erode the function of the Parliament to legislate....
...
Thus it is the constitutional intention that all proposed Commonwealth
legislation affecting the people of the Australia, a State or a Territory should proceed through the
Parliament. It is the responsibility of Parliament to express the views, and
represent the best interests, of the people. The assumption upon which
democracy proceeds is that the people, through their elected representatives,
exercise a measure of control, and indeed ultimate control, over legislation
which is enacted in the Parliament. Thus an Act of Parliament ought to be
changed only by another Act of Parliament."
Through these provisions the
Commonwealth Government seeks to give itself exclusive possession over the
land, which would give it the right to exclude anyone from the land - including
the people living there.
The lack of protection of
native title rights is a further example of the racially discriminatory nature
of these provisions. Under the provisions of this Bill, all other
rights in land are protected (unless terminated by the Minister) except for
native title rights.
Despite creating 'leases' over
the land through this legislation, there is no requirement within it for
Commonwealth to pay rent for these leases. Rent becomes a matter entirely at
the discretion of the Minister.
Compulsory acquisition of
land and interest in land by the Commonwealth is a serious matter, so much so
that our Constitution provides for "just terms" compensation. There
remain real questions concerning the provisions in the NTNER Bill as to whether
they in fact provide for "just terms" compensation or merely
"reasonable compensation".
It would seem from the
provisions of this Bill that rather than acting in good faith, the Government
will force Indigenous communities to Court to determine whether "just
terms" compensation should be paid. The Australian Greens are appalled
that the Commonwealth would not provide for "just terms" compensation
for acquiring Aboriginal land by force of law.
It became clear in the course
of the Inquiry that there is at the very least confusion as to the intention
and operation of the provisions relating to compensation.In respect to town
camps, the Greens note the comments of Mr William Tilmouth, Executive Director of Tangentyere Council:
"Tangentyere
Council has tried to enter into meaningful discussions with the federal and Northern Territory governments about the future of those town camps, including addressing
issues such as inadequate funding, infrastructure and management. Time and
again, the government has attempted to lay down what it wants, meaning
Aboriginal people have to give up control over land on which they live, the way
in which they live and how they will manage their communities. We have been at
the negotiating table for some time and we have agreed to give up our land for
20 years, provided that we have an ongoing role in management. But that has
been rejected. It looks like we are going to lose our land forever. All
attempts for us to negotiate on an equal basis have been rejected. This
legislation is the final step in removing our land, dignity and humanity. It
removes our right to consultation, participation, stability and security. The
explanatory memorandum speaks of a stable and secure environment being required
to eliminate child abuse. This legislation provides neither security nor
stability. It only provides uncertainty, and it is unclear how the act will
work."[7]
The Greens have obtained
legal advice indicated a legal challenge to the compensation provisions could
have wide ranging effects on the validity of large parts of the NTNER Bill. The
compensation provisions should be amended to make clear that "just
compensation" is payable for the interests acquired in the land, and is
not to be determined by offsetting improvements on the land.
The breadth of powers given
to the Commonwealth over Aboriginal land is extraordinary and unnecessary. The
Commonwealth Government has not provided a sufficient explanation of why this
level of control of land is necessary to protect children. There has been no
attempt to substantiate a link between land tenure and child abuse.
In his briefing paper for
Oxfam Australia, "The 'National Emergency' and Land Right
Reform: Separating fact from fiction", Jon Altman, argues
convincingly that there is:
"...no
evidence of any direct link between the compulsory acquisition of five year
leases over prescribed townships and the problems of child abuse and
dysfunction in aboriginal communities in the Northern Territory."[8]
The Australian Greens support
the argument that:
"Historically
it is clear that traditional owners of townships have been disadvantaged by
colonial administrations allowing the location of government settlements and
missions at these locations without traditional owner consent. This new
compulsory acquisition measure also disempowers traditional owners of
townships. In so far as land ownership constitutes a form of property right,
this measure will also economically disadvantage current and future generations
of traditional owners."[9]
These provisions leave
Aboriginal communities powerless in respect of their land including potentially
the ability to remain living on their land. This is unacceptable.
For similar reasons the
Australian Greens oppose the dismantling of the permit system. Our comments on
the changes to permits are outlined below in relation to the Families, Community
Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill
2007.
A proper policy approach
would dictate restraint on the powers of the Government over the lives of
people and, if the purpose of the policy was not being met, a return to the
Parliament to make the case for extra powers. This Government has turned this
approach on its head by legislating extraordinary powers for itself upfront
which trample the rights of Aboriginal Australians.
The Australian Greens do
not support the compulsory acquisition of Aboriginal land or the extensive
powers provided to the Commonwealth Minister.
Business Management Areas
The provisions relating to
Business Management Areas provide for a substantial and we believe unnecessary
level of interference and control in the affairs of communities, organisations
and individuals.
The measures provide that the
Commonwealth can:
- Unilaterally vary funding
agreements;
- Direct services and use of assets
where funding has been provided by the Commonwealth or Northern Territory governments that could be used to provide a service.
- Appoint observers in a community
who are entitled to attend and participate in meetings (bot not to vote); and
- Appoint a statutory manager to
administer the affairs of an association if the association is given government
finding that could be used to provide services.
Of particular concern is the
breadth of these provisions. The Minister can direct services or the use of assets
in circumstances where the entity providing the service or in possession of the
asset is funded by either the Commonwealth or Northern Territory governments
and that funding could be used to provide the service. There is no need
for a direct link between the government funding and the service or asset being
directed, that is the government need not fund the service or asset being
directed. There is a very real concern that these provisions will capture
volunteer work in communities as well.
The provisions relating to
the appointment of observers are extraordinary. A community or organisation
does not have to be in receipt of government funds for the government to
appoint an observer who, by force of law and backed by civil penalty
provisions, can attend all meetings or deliberations of the organisation.
The Greens find these
invidious powers unacceptable and cannot support such measures.
Bail and Sentencing
The Greens do not support the
blanket prohibition on courts considering customary law or cultural practices
in bail applications and conditions and in sentencing. These provisions limit
the discretion of the court as to potentially relevant considerations to be
taken into account and are therefore a denial of justice.
The Greens agree with the
comment of the Law Council of Australia as follows:
"As
argued in the Law Council’s earlier submissions on this issue, Part 6, if
implemented, will (among other things):
- require courts to treat Aboriginal and Torres Strait Islanders, and those of
different ethnic origins, as if they did not belong to a specific cultural
group;
- result in more Aboriginal people being incarcerated, for longer periods and
with fewer options for rehabilitation within their communities; and
- undermine the positive achievements of Aboriginal courts, which have relied on
flexible sentencing and bail options and community involvement to strengthen
compliance with the law, Aboriginal communality and leadership and, ultimately,
reduce rates of imprisonment and recidivism."[10]
Alcohol
There is no question that
alcohol and substance abuse contribute to poor child health and safety outcomes
in Indigenous communities. The Little Children are Sacred Report
identified alcohol abuse as an important factor to be addressed in reducing child
sexual abuse.
The Australian Greens are not
opposed to tougher restrictions on alcohol as part of a strategy to deal with
alcohol abuse issues.
However, the Greens are
concerned that the imposition of a law-and-order approach to banning alcohol on
Aboriginal communities will prove ineffective and could increase the levels of
violence and abuse - particularly if it isn't backed up by rehabilitation and
counselling programs, and isn't part of a strategy that also tackles the
problems in the larger regional centres.
The Greens are also concerned
that there was no additional funding for rehabilitation and counselling
included in the Bills, despite the clear evidence presented to the committee
that existing levels of funding are inadequate to deal with the scale of the
problem and the level of unmet need.
Concern was also raised in
the Inquiry about possible unintended consequences of these measures such as
increased incarceration of Indigenous people, including through not being able
to pay fines particularly with income support being quarantined.[11]
Publicly funded computers
The provisions relating to
"publicly funded computers" provide that the responsible person must:
- Install an accredited filter;
- Keep records of persons who use
computer and the day and times of that use;
-
Develop an acceptable use policy
which states that a person must not use the computer to send anonymous or
repeated communications designed to annoy or torment, or access, or send a
communication containing, material or a statement that:
- contravenes a law of the
Commonwealth, a State or a Territory;
- incites a person to contravene
Commonwealth, a State or a Territory;
- that si slanderous, libellous or
defamatory;
- that is offensive or obscene;
- that is abusive or threatens the
use of violence; or
- that harasses another person on
the basis of sex, race, disability, or any other protected status; and
- Audit the computer and give
results of the audit to Australian Crime Commission.
It is important to note that
the definition of a "publicly funded computer" is very broad and is
not limited to a computer that is actually purchased with government money or
is used in the provision of a service funded by the government. The definition
includes a computer that is owned or leased or in the possession of somebody
who receives government funding and is in a prescribed area.
So these provisions can cover
computers bought with private funds and not used in any way related to the
provision of government funds. Indeed the phrase "government funded computer"
is misleading.
The Greens believe the
requirements placed on the responsible person in these circumstances are too
onerous and are not the most effective means of addressing the key problem of
accessing pornography over the internet.
We also note the requirement
of the responsible person to have sufficient knowledge of the law to know when
a computer is being used to commit a range of offences from slander and libel
to offensive and obscene statement to harassment. We believe these represent
unreasonable obligations, particularly given civil penalty provisions.
Families, Community
Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill
2007
Prohibited Material
The Greens support
introducing further restrictions on prohibited material, although we have some
concerns with the detail of these provisions. We are particularly concerned
that there is potential for people to be innocently caught by these provisions,
for example for inadvertently receiving explicit material sent in a 'spam'
email or clicking on an ambiguous or deceptive html link.
Australian Crime
Commission
The
Australian Greens understand the amendments to the Australian Crimes
Commission Act gives the Crimes Commission the same powers to investigate
violence on Indigenous communities as the Commission has to investigate
organised crime. These powers include covert surveillance and compelling people
to give evidence. The Australian Crime
Commission's Annual Report 2005-06 notes in relation to its special powers:
"The
ACC has a range of special coercive powers that are instrumental in combating
serious and organised crime. These powers are often used when ordinary law
enforcement methodologies prove ineffective in combating sophisticated criminal
activity ..... The special coercive powers include the ability to summons a
person to an examination to give evidence under oath or affirmation and the
power to demand documents. Failure to comply is punishable with fines and
imprisonment."
It
is extraordinary for the Government to target Indigenous communities with these
sorts of powers. Child abuse and violence in families occurs throughout Australia.
What possible justification is there for targeting Indigenous communities with
these sorts of police powers?
At the Inquiry, the Law
Council of Australia commented that it had previously raised concerns about
proposals to extend Australian Crime Commission powers to investigating sexual
crimes and violent crimes in Aboriginal communities:
"The
chief concerns that we raised were that the powers that the Australian Crime
Commission has are not very well adapted to that kind of an investigation. We
understand that the Australian Crime Commission largely deals—and quite effectively
deals—with investigations against organised crime in urban areas and those
sorts of much more organised and much more sophisticated kinds of criminal
networks. We are talking about crimes in small communities where there has not
been any indication or proof that there are any kinds of crime rings occurring.
There is a real sense that these powers may be used or misused to intimidate to
the detriment of the communities that they are supposed to be helping."[12]
It is extraordinary that the
Government believes such extensive powers are needed in these circumstances.
The Greens support the need for an increased and sustained police presence in
Indigenous communities but we also recognise that in attempting to break the
cycle of violence in some of these communities law enforcement officers need to
gain the trust of the community. These sorts of powers will have the opposite
effect.
The Australian Greens do
not support these discriminatory and disproportionate measures.
Permits
The Australian Greens are opposed
to the partial dismantling of the permit system over Aboriginal land in the Northern Territory. The permit system is important in giving Aboriginal people some
control over their land and in offering a measure of protection against grog
runners, carpet baggers, paedophiles and other criminal elements.
It is significant that there
is no reference to land tenure or the permit system in the Little Children
are Sacred Report.
In the Oxfam paper, "The
'National Emergency' and Land Right Reform: Separating fact from fiction",
Jon
Altman outlines the Government's development of its proposals concerning the
permit system and how they predate the Little Children are Sacred
report.[13]
The Australian Greens are
very concerned that the government is using child abuse as a pretext to
implement a policy agenda which will not only do nothing to stop child abuse,
but in fact may prove detrimental to the safety and well-being of children in
these communities. There is no evidence that there is a relationship between
the permit system and child abuse.
The Greens are not convinced
that the dismantling of the permit system is necessary to achieve increased
accountability and openness of communities, as is claimed by the Government.
From the evidence presented
by those with lived and practical experience in Aboriginal communities in the
Northern Territory, the permit system does not impede service delivery to
communities, prevent media scrutiny or stop economic development. In fact the
recent Senate Inquiry into Indigenous Art heard evidence that the permit system
is vital in ensuring the economic benefits from their art is enjoyed by the
communities that produce the art.
Importantly, the Northern Territory police acknowledge that the permit system assists them and communities
to enforce alcohol bans and regulate visitation to communities by outsiders.
The Central Land Council
submission quotes the NT Police
Association President Vince Kelly:
"The
Federal Government has failed to make a case in my view, about the connection
between sexual assault in Indigenous communities and the permit system. These
communities aren't like anywhere else in Australia; otherwise the Federal Government wouldn't be
intervening in this matter. So to simply roll up the permit system I think is
going to lead to problems that have probably been identified by Indigenous
people around the Northern Territory".[14]
It is unclear how the partial
abolition of the permit system will operate in practice. The definition of
"common area" is inadequately defined, and this ambiguity is
unacceptable in these circumstances. For example, how will the distinction
between common and private areas be determined and policed? How will townships
and access to roads be policed so that people do not wander off into sacred
sites?
While the legislation
provides only for a partial dismantling of the permit system, the legislation
will effectively dismantle the whole system, because it is likely to prove
impossible for the police to control access to the areas represented by the
remainder of the permit system
It became quite clear in the
course of the Inquiry that there was little support for dismantling the permit
system and indeed that these provisions would create more potential for harm to
occur to children in communities.
The Australian Greens
oppose this dismantling of the permit system and the contempt shown by this
Government for the land rights of Indigenous peoples in the Northern Territory.
Social Security and
Other Legislation Amendment (Welfare Payment Reform) Bill 2007 (Social Security Bill)
The amendments to the social
security legislation, taken together with the Welfare to Work legislation, are
reshaping the very basis of our welfare system and moving it to a punitive and
paternalistic system, which is based much more on ideology than it is on any
kind of evidence-based policy.
Northern Territory provisions
The Australian Greens are in
no doubt that the measures in the Social Security Bill breach the RDA and cannot
be characterised as "special measures". This is particularly the case
given the arbitrary nature of the operation of income management in a
"relevant Northern Territory area," and the denial of appeal rights to those
covered by this part of the income management regime.
The notion that these
provisions are for the benefit of children are undermined by the fact that a
person does not have to have responsibility for a child to be subject to
income management in the Northern
Territory. All they have to do is
simply spend a night in a designated area.
The measures have nothing to
do with how a person currently spends their money or how well they look after
their children. The arbitrary nature of this regime defies belief. This law
condemns the whole for the behaviour of a few, and is akin to guilt by
association. This is an extraordinary measure to see in Australian law.
The Government clearly
determined that it was too difficult to target individuals in Aboriginal
communities in the Northern Territory and deal with their known mobility, and so have
developed this extraordinary provision that places people onto income support
if they spend a single night in a designated area. A person may have no
problems managing their finances, may not spend any money on grog, and may look
after their children in an exemplary fashion ... and yet simply because they live
in a designated area they will be subject to having 50% of any income support
or family tax benefit they receive being quarantined.
It is easy to imagine
circumstances under which a person who lives somewhere else and goes to visit a
family member in a designated area and be caught in this regime. A tourist on a
pension might visit a designated community overnight and conceivably become to
subject to income management.
The ability to receive an
exemption is not sufficient. The Government has this around the wrong way.
Individuals should not have to be exempted from this kind of regime, but rather
the regime should only apply to individuals based on specific relevant
criteria. Furthermore, the denial of appeal rights for those who spend a night
in a designated area in the Northern
Territory mean that these exemption
provisions are fundamentally flawed.
The denial of appeal rights
in circumstances of such arbitrariness is unjustified, racist and obscene.
The Greens support the
comments of the submission of the National Welfare Rights Network on this
issue:
“The
right to appeal has always been a fundamental protection for Social Security
recipients against bureaucratic neglect and error. However, the Government
intends to remove the rights to external appeal to the Social Security Appeals
Tribunal (SSAT) for Northern Territorians who are subject to the Income
Management of their welfare payments. This sets a very dangerous precedent to
strip away this protection for an entire group of Australians based solely on
where they live. These decisions could have huge implications for families.
The
Minister states that the alternative is to appeal to the Federal Court. This
would require a barrister, enormous expense, the risk of paying the
Government’s costs and has a 28 day appeal limit.
A
person would also have to know how to fill in an application for the Federal
Court, and there is a scarcity of free legal assistance in the NT, with only
one Legal Aid Office and only one generalist Community Legal Centre.
It
is difficult to accept the Government’s rationale as to why Indigenous
communities in the Northern Territory are to be denied access to independent review of
decisions relating to the quarantining of welfare payments when other
Australians in other parts of the country will be able to exercise their full
appeal rights.”[15]
It is also important to note
the distinction between an arbitrary Northern
Territory regime and the Cape York
regime - which is more community-based, and applies on an individual basis
rather than targeting entire communities. This is a fundamental difference that
belies the Government’s claim to be implementing the regime proposed for Cape York.
A number of submissions have
remarked on the potential for this regime and the other aspects of the
Intervention to result in the movement of people out of communities and into
the towns. This could put unsustainable pressures onto these towns. The impacts
of these measures need to be carefully monitored to ensure they do not have
these kind of unintended deleterious consequences.
Another potential effect of
these measure is increasing numbers of people dropping out of the welfare
system altogether and increasing financial strain on the limited resources of
associated family members. Such outcomes cannot be considered to be assisting
to protect the health and welfare of children.
Commonwealth Development
Employment Program (CDEP)
There were also a number of
submissions which commented on the implications of ending the CDEP system and
moving Aboriginal people in the Northern
Territory into unemployment and onto
Work for the Dole.
Concerns were raised
including the likelihood of many Aboriginal people, particularly those in
remote communities, being unable to comply with the participation requirements
therefore leading to even higher rates of 8 week non-payment periods for these
people.[16]
The effects of the removal of
CDEP on communities and their services was also raised in the Inquiry. HREOC
noted that:
“Many
communities rely on the CDEP program to provide essential services, some of
which are critical to improving law and order or the health of the community,
such as night patrols, nutritional programs, garbage collection and sanitation
programs.”[17]
The Government has already
acknowledged that only 2000 “real” jobs can be created, while there are 7000
Indigenous people on CDEP in the Northern
Territory. Poverty is one of the key
factors related to child abuse in Indigenous communities and the appalling
health standards in some of these communities. These measures will only
entrench poverty and do nothing to assist violence, abuse and health concerns.
Furthermore, the Greens
question the Government's commitment to deliver greater opportunities or better
outcomes for those on CDEP when they have provided for a reduction in the CDEP
appropriation of $76 million and an appropriation of only $ 46.9 million for
additional income support.[18]
This effectively represents $30 million that is being taken out of Aboriginal
communities in employment and training opportunities and in take home pay that
can contribute to the health and well-being of Aboriginal children.
Income management regime
in the broader Australian community
The Australian Greens are
opposed to the income management regime in its entirety, and we also have some
specific concerns with the detail in the Social Security Bill. We fail to
understand how the quarantining of 100% of social security payments will
advance the stated objectives of the Government.
The Greens agree with the
Australian Council of Social Services (ACOSS) that the causes of the social
problems that the Bill is seeking to address are complex, and that the
income management regime "is unlikely to contribute to solutions but would
in a number of ways contribute to the underlying problems."
As ACOSS says:
"There
is no evidence to suggest that making school attendance a condition of receipt
of income support would actually improve attendance. Parents want their children
to attend school but in cases of truancy they are often unable to enforce this
without intensive and consistent support from the school, their families ad
other services...
...Similarly,
Income Management is unlikely to prevent child abuse or neglect. The Government
acknowledges that only ' a few thousand' families across Australia
would be affected by Income Management as a result of notifications by state
Welfare Authorities. Since the causes of child abuse and neglect are complex
and multidimensional, single intervention will be ineffective and interventions
such as quarantining welfare payments, which do not address causal factors, are
the wrong place to start."
The Greens also agree with
ACOSS that a top-down approach will prove ineffective, and that as a community
we need to be empowering people to take responsibility:
"Whatever
system we have, it has to empower people to take responsibility for their own
finances, for their own lives, for their own children and for their own
communities. I think it is extremely unlikely that you will get those outcomes
if you impose from above, particularly if people are not consulted about how
best that should be done. If we are to have a compulsory system then the
absolutely crucial thing is that the casework, the support workers and the
services that are required—and also the specialist services that people will
need—assist people to learn how to do these things for themselves, rather than
being dependent on a government making decisions for them. For example, if
people are not spending their money on food because of drug and alcohol
abuse—and I think this is an extremely questionable proposition, but let us say
for the moment that that is the case—they will not stop, they will not learn
how to do things differently, unless there are intensive and ongoing drug and
alcohol rehabilitation services for them. And there is no mention of services
such as those in the proposals that have been put forward."[19]
Like the other Bills, the
Social Security Bill leaves too much detail to the regulations and Ministerial
discretion - including designating school areas and child protection areas, and
the guidelines for defining school attendance. Aboriginal communities have also
raised concern with the ability of existing schools to cope with increased
school attendance.
It is also notable that the
Government has yet to comprehensively consult with the State and Territory
Governments or reach agreement on how the school enrolment, school attendance
and child protection triggers for income management will operate in practice.
The Australian Greens are
concerned with the Ministerial power to designate school areas to the extent of
designating individual schools. What criteria will be used to determine which
schools and therefore which parents should be captured by this scheme, and
which ones will not be captured?
We are also concerned with
the retrospective nature of the Social Security Bill, capturing behaviour prior
to the legislation becoming law. Retrospectivity is always to be avoided where
possible.
The power for government
departments to obtain and share personal information is also a concern. There
are significant privacy issues with allowing government agencies to share
information with school authorities.
How the system will be
administered is also of grave concern to the Greens. The legislation raises
many questions:
- What criteria will be used to
determine which payment method is used? Will that be at the discretion of the
Centrelink or other relevant agency officer?
- How is the Secretary or their
delegate to become aware of a person’s “priority needs” and what is a
reasonable period to take action to meet those needs?
- How will the Secretary or their
delegates be satisfied a person will not use the money or credit to acquire
excluded goods and services?
We are very concerned about
the ability of Centrelink or any other agency to adequately and efficiently
become the financial managers for people caught in this system. For example,
what happens if a utility bill is not paid by Centrelink or the relevant agency
and a person’s electricity, gas or phone is disconnected? What happens if there
is not enough credit in a person’s income management account to meet their
“priority needs”?
The Australian Greens note
with interest the questions asked by ACOSS in their submission concerning the
administration of this system, and also note the answers to those questions
provided by FaCSIA. We do not believe that the answers provided by FaCSIA are
satisfactory, and uncertainty remains as to how the income management regime
will actually work in practice.
The resources required to
administer such a system will be large while the potential for benefits small.
We note that in response to questions about the likely cost of administering the
intervention during the inquiry FaCSIA indicated that the estimated cost for
administering the income management regime within the Northern Territory for this year alone was $88 million.
At the Inquiry, Professor Altman
referred to recent research by Professor David Ribar, an American economist currently visiting the Australian National University who
notes that the United States of America’s measures to control the spending of welfare
payments have had a high cost and limited benefits. Professor Altman noted
that "In particular, [Professor Ribar] highlights the issues of fixed establishment costs
and diseconomies of small scale in the proposed Australian measures. In the USA, such
measures are applied to 26.7 million people. In Australia we are talking
initially of 30,000 to 40,000 Indigenous people in 73 dispersed
communities."[20]
The Greens are also concerned
about the likelihood of resources being taken away from proven programs and
measures, such as case workers and support workers, into the administration of
this scheme.
The Greens believe it is
unacceptable that if the government “overspends”, the person through no fault
of their own now have a debt to the Commonwealth. Furthermore it is also
unacceptable for credit in an account once a person is off income management to
be paid to that person in instalments over a12 month period or kept if
Centrelink believes the person will be subject to income management again
within 60 days. Once a person has satisfied the criteria and is no longer
caught by the regime their money should be returned directly.
Once again we are seeing
inconsistency in how shared parenting arrangements are treated. While only one
parent can only receive the parenting payment, for the school enrolment, school
attendance and child protection triggers, parents, including in shared
parenting arrangements a parent with at least 14 % of time, are caught by
income management.
The Greens are also very
concerned about how the voucher and credit systems will operate. Will the
Government for example enter into contracts with particular providers therefore
limiting the choice for people as consumers and creating a cartel for the poor?
The Greens are also concerned
to know whether the Government intends to outsource the administration of this
scheme to private providers, like the job network. As ACOSS notes, "This
raises issues of accountability to parliament for the exercise of considerable
discretion over the use of income support payments that will apply."[21]
Baby bonus
The Social Security Bill
provides that people on income management will get baby bonus in 13
instalments. However, the provisions also allow the Minister to specify in a
legislative instrument other classes of individuals who are to receive the baby
bonus in instalments. We will be watching any use of this power very closely.
Appropriations
There is no question that
significant funds are needed to address problems facing Indigenous communities
in the Northern Territory - including housing, health, education and child protection.
It is clear that there are significant amounts of money being made available by
the Commonwealth to address these issues.
The Australian Greens have
considerable concerns about the appropriations for these Bills. It is worrying
that such a significant amount of the $587m is being used on the bureaucracy
and in administration. It is also of concern that the Government is not
appropriating specific amounts for rent or compensation in relation to the 5
year leases, and has not budgeted for the measures beyond 30 July 2008.
It is notable that none of
the $587m will be used to address the chronic shortage of housing in Indigenous
communities (both remote communities and in the towns) that is a key element in
preventing child sexual abuse.
The Greens agree with the
Combined Aboriginal Organisations of the Northern
Territory that:
"there
should be comprehensive plan, fully costed, with financial commitments that
addresses the underlying causes within a specific time frame, and mechanisms
that would ensure transparency and ongoing independent, rigorous
evaluation."[22]
Conclusion
For all the reasons outlined
above the Australian Greens object to and will be opposing these Bills.
All three Bills should be
withdrawn and the Government should rethink its intervention package and
consult with the community.
In the meantime, the
Government should begin to implement the 97 recommendations from the Little
Children are Scared Report, including addressing the vital needs of
housing, health and education.
The Government clearly has
the money to start providing housing, education and health services which
are the matters of urgent concern in Indigenous communities.
Senator Rachel Siewert
Australian Greens
Navigation: Previous Page | Contents | Next Page