To the Editor,

How many readers know that the Federal Government is trying to push through the Senate before elections, a scheme that will extend compulsory blanket Income Management to many thousands more Australian citizens?

The Minister is to be given unprecendented power to declare any area -even a whole state or territory, ‘disadvantaged’.  Country SA?

Everyone in that ‘area’ on Centrelink’s unemployment or sole parent payment for more than a year or on youth allowance for three months will automatically have 50% of their payments managed by the Government.

This at an administration cost of a mere $4400 per person!

Issued with a Basics Card, people will be told where to shop and what they can buy, standing in separate queues at shops chosen by the Government to be fitted with Basics Card facilities.

The Northern Territory experience shows that most small businesses/takeaways and second hand shops are excluded.

No wonder Parliamentarians have done such a good job at keeping it quiet. What about a fair go for all?

M Madigan 11 Burdekin Ave Murray Bridge SA 5253 ph 08 8531 2330

SUBMISSION (one of 94)

Social Security and Other Legislation Amendment (Welfare reform and Reinstatement of Racial Discrimination Bill 2009 

Notes and Comment

In this document I have largely concentrated upon the income management measures, but it is worth noting that many other objectionable features of the NTER have not been addressed by the Government, nor were they addressed during the so-called ‘consultations’ by the Government with the Aboriginal communities. One obvious one is the differential treatment of Indigenous persons as to sentencing and bail applications with respect to issues of customary law which is obviously discriminatory.

In considering the Bill it is necessary to pay some regard to historical issues.

 I refer first to some of the relevant provisions of the Racial Discrimination Act 1975.

S 9 of that act provides:

“(1)  It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

S 10 provides:

(1)  If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

Article 1, Para 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, which appears as a Schedule to the Act and upon which the Act is based and which is incorporated into domestic law provides:

“Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be 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 have been achieved.”

Article 2.2 provides:

“States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.”

The relationship between special measures, including these two Articles and the RDA is fully discussed in “Will they be heard?”[1]. As was there pointed out, one of the characteristics of special measures is that they are designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities and may, if they have a potentially negative effect, only be special measures if enacted with the consent of the affected people.[2]

It is apparent that these provisions of the RDA and the requirements associated with special measures presented great difficulties to the Howard Government’s NTER proposals in 2007 and I now turn to the legislation that put the emergency response into effect.

The Northern Territory National Emergency Response Act 2007; The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007; The Social Services and Other Legislation Amendment (Welfare Payment Reform) Act 2007

It was apparent to those advising the then Government that this legislation could not sit comfortably with the RDA because it clearly did involve racial discrimination against Aboriginal people in a number of ways too numerous to set out here but including the so called Income Management Regime.

It therefore became necessary to nullify the provisions of the RDA so far as those subject to that legislation were concerned and this was done, with the support of the then Opposition.

Ss 132 and 133 of the NTERA Act provided as follows:

S 132

“Racial Discrimination Act

             (1)  The provisions of this Act, and any acts done under or for the purposes of those provisions, are, for the purposes of the Racial Discrimination Act 1975 , special measures.

             (2)  The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975 .

             (3)  In this section, a reference to any acts done includes a reference to any failure to do an act.”

S 133

“Some Northern Territory laws excluded

             (1)  The provisions of this Act are intended to apply to the exclusion of a law of the Northern Territory that deals with discrimination so far as it would otherwise apply.

             (2)  Any acts done under or for the purposes of the provisions of this Act have effect despite any law of the Northern Territory that deals with discrimination.

Northern Territory laws that are not excluded

             (3)  However, subsections (1) and (2) do not apply to a law of the Northern Territory so far as the Minister determines, by legislative instrument, that the law is a law to which subsections (1) and (2) do not apply.

Reference to acts done includes failure to do an act.”

             (4)  In this section, a reference to any acts done includes a reference to any failure to do an act.”

The other legislation underpinning the NTER contained similar provisions.

What is significant is that the legislation first asserted that what was being done in the NTER constituted ‘special measures’. This was untenable and it is highly unlikely that the simple assertion that the measures were special measures within the meaning of the Convention would have been upheld by a Court. To least of the problems would have been the difficulties involved in the complete lack of any consultation that accompanied the legislation either before or after it was enacted. It thus became necessary to effectively repeal the RDA in the areas affected by the NTER and this was achieved by s 132 (2). For good measure the Government simply overrode any inconsistent NT laws in s 133.

The Rudd Government’s amending Bill repeals all of these sections in an apparent attempt to indicate compliance with its election promises.[3] However, a careful examination of this legislation reveals how qualified that compliance is.

S 4 of schedule 1 of the amending Bill provides:

“To avoid doubt:

            (a) the repeal of sections of an Act by this Schedule does not have retrospective effect; and

            (b) section 8 of the Acts Interpretation Act 1901 applies to the repeal          (unaffected by any contrary intention)

At first sight this appears to be unexceptionable. However what it does is to preserve the legal effect of everything that was done under the NTER legislation while protecting the Commonwealth from any claims for damages that might otherwise have arisen.

At the same time it highlights the ephemeral nature of the protection afforded by the RDA to victims of racial discrimination in Australia in that it confirms that such protection is very much in the hands of the Government of the day. This falls a long way short of the sort of constitutional guarantee that would be afforded by a Bill of Rights.

However an examination of the further provisions of the Bill reveals just how limited the effect of the so called repeal is. Nowhere is this more apparent than in the area of income protection.

Income Protection

Schedule 2 of the Bill headed “Income management regime” first operates to repeal the definitions of Category A to category G welfare payments contained in s 123TC of the Social Security (Administration) Act. These categories of welfare payment commence with a definition of a Category A welfare payment as meaning:

(a) a social security benefit; or

(b) a social security pension; or

(c) a payment under a scheme known as the ABSTUDY scheme that includes an amount identified as a living allowance.

The remaining categories include category A welfare payments but gradually widen the nature of the payments covered to include payments to include different types of payment such as baby bonuses etc.

The Bill in s 28 inserts a new Category E welfare payment definition into s 123TC that removes any reference to Aboriginal allowances such as ABSTUDY but is defined more broadly to include:

(a) youth allowance; or

(b) newstart allowance; or

(c) special benefit); or

(d) pension PP (single); or

(e) benefit PP (partnered)

It repeals definitions of declared relevant, exempt and relevant Northern Territory areas from s 123 TC. Most importantly, it repeals s 123 UB of the Social Security Act which defines the persons subject to the income management regime by their presence or otherwise in relevant Northern Territory areas and s 123 UG which enabled the Secretary to declare certain people to be ‘exempt Northern Territory persons’. Various other consequential amendments are made directed at removing the association between income management and the Northern Territory in an attempt to show that the new legislation is not in form discriminatory to Aboriginal persons.

However, the real test of the sincerity (or lack of it) of this approach is to be found in the ‘Saving and Transitional’ provisions of the new Bill and particular in Clause 23 because, despite the repeal of s 123 UB referred to above, it is preserved with full force and effect in relation to persons who were subject to it in the NT for a further period of 12 months from the date that the Bill becomes law. For these people, who include most of the Aboriginal population of the NT it is as if the repeal of the RDA has never happened.

Presumably the Government would seek to rely upon its so-called consultations with the people to justify this as a ‘special measure’ or alternatively will make a new declaration under the amended legislation to operate from the end of the 12 month transition period to continue with income management in those areas, relying upon the same ‘consultations’. We thus have the ironic situation that the very Act that purports to end racial discrimination and restore the RDA in fact perpetuates the discrimination that the original NTER legislation was designed to effect.

New Income Management Measures

These are contained in part 2 of the Bill.

Clause 25 repeals paragraphs (a) to (f) of original s 123TA in the Social Security (Administration) Act which set out the criteria for a person becoming subject to the income management regime. These were:

•       A person may become subject to the income management regime because:

               (a)     the person lives in a declared relevant Northern Territory area; or

               (b)     a child protection officer of a State or Territory requires the person to be subject to the income management regime; or

               (c)     the person, or the person’s partner, has a child who does not meet school enrolment requirements; or

               (d)     the person, or the person’s partner, has a child who has unsatisfactory school attendance; or

               (e)     the Queensland Commission requires the person to be subject to the income management regime; or

               (f)     the person voluntarily agrees to be subject to the income management regime.

The new criteria are as follows:

(a)  A child protection officer of a State or Territory requires the person to be subject to the income management regime; or  

(b)  the Secretary has determined that the person is a vulnerable welfare payment recipient; or 

(c)  the person meets the criteria relating to disengaged youth; or  

(d)  the person meets the criteria relating to long-term welfare payment recipients; or  

(e)  the person, or the person’s partner, has a child who does not meet school enrolment requirements; or 

(f)  the person, or the person’s partner, has a child who has unsatisfactory school attendance; or  

(g)  the Queensland Commission requires the person to be subject to the income management regime; or 

(h)  the person voluntarily agrees to be subject to the income management regime. 

It can be seen that the area criterion of the original legislation has been removed so that the section has universal application throughout Australia. However, it is also clear that the criteria are designed in such a way as to target Aboriginal people without expressly saying so, but may now encompass others as well. Further, the area criterion is introduced in a different way as hereafter appears.

Proposed s 123TB considerably expands the objects originally set out in s 123 TB as follows:

“The objects of this Part are as follows:

(a) to reduce immediate hardship and deprivation by ensuring that the whole or part of certain welfare payments is directed to meeting the priority needs of: 

(i) the recipient of the welfare payment; and

(ii) the recipient’s children (if any); and

(iii) the recipient’s partner (if any); and 

(iv) any other dependants of the recipient;

(b) to ensure that recipients of certain welfare payments are given support in budgeting to meet priority needs;

(c) to reduce the amount of certain welfare payments available to be spent on alcoholic beverages, gambling, tobacco products and pornographic material; 

(d) to reduce the likelihood that recipients of welfare payments will be subject to harassment and abuse in relation to their welfare payments;

(e) to encourage socially responsible behaviour, including in relation to the care and education of children; 

(f) to improve the level of protection awarded to welfare recipients and their families

This is clearly designed to provide a justification for the legislation upon a broader scale than if it was merely applied to an area largely occupied by Aboriginal people. However the legislation can be so confined at the discretion of the Minister as new s 123TFA makes clear. It reads:

The Minister may, by legislative instrument, determine that:

(a) a specified State; or

(b) a specified Territory; or

(c) a specified area;

is  a declared income management area for the purposes of this Part.

Proposed ss 123UCA, UCB and UCC target persons within the declared income management area who are vulnerable welfare payment recipients, disengaged youth between 15 and 25, or long term welfare payment recipients.

Vulnerable welfare payment recipients are defined in proposed s 123UGA as people who are so determined as such by the Secretary of the relevant Department and there are various provisions for making new determinations and dealing with requests for reconsideration.

There are further provisions for the exemption of welfare payment recipients from income management by the Secretary subject to their working hours, whether or not they have dependent children and where there are children, there are no more than 5 unexplained absences from school in each of the two preceding school terms. There are also provisions as to the nature and amount o deductions that may be made under income management such as for example the whole of any baby bonus (e.g. s123XJA(3))

There are also provisions encouraging persons to enter into voluntary income management agreements that need not be examined here.

What is quite clear is that the legislation gives unprecedented power to the Minister and the Secretary in respect of welfare recipients throughout Australia. However, what is also clear is that this is little more than a ruse to overcome the provisions of the RDA and that the real targets of the income management scheme are likely to be Aboriginal people including Aboriginal people living beyond the NT. It is little more than a clumsily disguised and cynical attempt to perpetuate racial discrimination against them.

I consider it to be highly unlikely that these powers will ever be used against welfare recipients generally, nor do I believe that it would be politically acceptable to do so.

Nevertheless, the very breadth of the legislation is an indication of how far this Government is prepared to go in order to maintain its income management regime. In my view it places unreasonable and unchecked powers in the hands of Ministers and bureaucrats and is a clear indication that they are not concerned with the rights of Aboriginal people or any other welfare recipients who are unfortunate enough to live in one of the areas affected.

Alcohol, Prohibited Material, Acquisition of rights title and interests in land, Licensing of Community Stores

I do not propose to discuss these provisions in detail. They differ from the income management regime in that they do not purport to extend these provisions to the whole community or beyond the NT. They each contain an objects clause which is clearly designed to constitute each of these provisions as a special measure within the meaning of the Convention. For example as to alcohol, proposed Schedule 3 s6A states:

The object of this Part is to enable special measures to be taken to reduce alcohol-related harm in Indigenous communities in the Northern Territory.

Similarly in relation to prohibited material proposed Schedule 4 s98A states:

The main object of this Part is to enable special measures to be taken to protect children living in Indigenous communities in the Northern Territory from being exposed to prohibited material.

Similarly, in relation to the issue of acquisition of rights, title and interests in land proposed Schedule 5 s30A states:

The object of this Part is to enable special measures to be taken to:

(a) improve the delivery of services in Indigenous communities in the Northern Territory; and

(b) promote economic and social development in those communities.

Proposed Schedule 6 s91A states the object of licensing of Community Stores as follows:

(1) The object of this Part is to enable special measures to be taken for the purpose of promoting food security for certain indigenous communities in the Northern Territory.

(2) In particular, this Part is to enhance the contribution made by community stores in the Northern Territory to achieving food security for certain Indigenous communities.

While it may be arguable that all or some of these provisions could constitute special measures it is at least doubtful as to whether this can be achieved ex post facto as the Government has sought to do.

So far as alcohol is concerned it has also taken a number of additional steps in the legislation that are either designed to achieve this object or to take into account some of the concerns expressed during the consultations.

For example the compulsory posting of notices as to alcohol and pornography and the need to state penalties has been relaxed and a degree of consultation is allowed for as to these matters.

Similarly, the automatic designation of the whole of prescribed areas as a public place has been relaxed and the minister may not make a declaration in relation to a prescribed area or part of it as a public place unless requested to do so by a resident. There are also provisions for consultation and discussion and specific criteria are set out for the making of such a declaration.

Again in relation to prohibited material there is now a provision for the Minister to declare that the relevant part ceases to have effect in relation to a specified prescribed area or part thereof and similar provisions for consultation as is the case with alcohol.

There are few changes to the leasing provisions contained in the NTER Act. One important one however is a provision that prevents the Commonwealth from engaging or permitting others to engage in mining on leased land. There is also a provision requiring the Commonwealth to have regard to the traditions, observances, custom and beliefs of Indigenous people generally or of particular groups of Indigenous persons in administering leases.

So far as community stores are concerned there are quite detailed provisions relating to their management but nothing that requires particular comment in this context.

The only amendment to the Australian Crime Commission Act 2002 is to the definition of Indigenous violence or child abuse which is defined as serious violence or child abuse committed against an Indigenous person.

Conclusion

This is disappointing legislation which perpetuates the paternalism and racial discrimination inherent in the NTER. It is a disturbing extension of bureaucratic powers and the power of the executive over welfare recipients and seems to reflect a philosophy more in tune with that of the previous Government that what one would expect of a Labor Government.

Alastair Nicholsonm,  6 January 2010 

[1] Will they be heard? at p34 and following;

[2] Will they be heard? at paras 171-3;

[3] See Schedule 1 ss 1,2,3 and 4.