Aboriginal Human Rights - Australia - Human Rights
Rose Mary Kinne OP; 13-22/8/07
It looks as if the greatest reverse of Aboriginal and human rights in Australia since the 1930s is about to take place. The Senate Committee submissions are available on :http://www.aph.gov.au/Senate/committee/legcom_ctte/nt_emergency/submissions/sublist.htm
I could not find one submission that supported the legislation. Aboriginal groups, doctors, police, child protection workers - all agreed there were problems but this way of going about it could make things worse. The over-riding of the Racial Discrimination Act has serious implications. Amnesty International have written a rare in-country submission. The Government has not produced any evidence that taking away the permit system or the land leases will do anything to prevent abuse.
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The Federal Government has planned an attack on the Land Rights legislation , the permit system and land leases over at least the past eighteen months. It did not react to appeals for help with alcohol and child abuse made over that same time.
Senators email addresses are senator……………..@aph.gov.au eg Senator B.Joyce is senator.joyce@aph.gov.au
Leaders in the Senate : Democrats Senator Allison
Nationals Senator Boswell
Greens Senator Brown
Labor Senator Evans
Family First Senator Fielding
Punitive aspects of Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 (Cth)
Applicable classes of people
The Commonwealth and the Queensland Commission will have the power to regulate in whole or in part expenditure of income received through social security payments for 5 groups of people:
- A person who was physically present overnight in a relevant NT area. A relevant NT area is defined as a those areas described in the NT National Emergency Response Bill 2007 (Cth) as well as Finke and Kalkarindji: s 123UB
- A person who a child protection officer of a State or Territory requires be the subject of the regime: s 123UC
- A person, or the person’s partner, who has a child that does not meet school enrolment requirements: s 123UD
- A person, or the person’s partner, has a child who has unsatisfactory school attendance: s 123UD
- A person who the Queensland Commission (yet to be established) requires to be the subject of the regime: s 123UF.
Welfare payments included are wide-ranging and cover almost all welfare payments in a number of categories: s 123TC (Definitions). These include:
- Social security benefits
- Social security pensions
- Payments under ABSTUDY
- Service pensions
- Income support supplements
-Defence force income support allowance
Debits
Generally, all family assistance payments are inalienable. A new unprecedented exception will now exist for people subject to the income management regime brought in by the Bill.
Under Division 5 of the Bill, the Commonwealth must deduct between 50-100% of a person’s welfare payments and place it into an Income Management Special Account in the person’s name. This is non-discretionary power and must be exercised by the Secretary. Only the Secretary or Minister will have the power to exempt certain persons: s 123UG. There are no behavioural requirements; for NT Aboriginal community members, you are subject to the regime depending only on your residence.
Division 6 of the Bill provides for the Secretary to within a reasonable period take appropriate action to meet a priority need of the person, their partner, their children or any other dependents once aware of the priority need. This may be in the form of vouchers for a specified amount or stored value cards.
Priority needs are defined as various essential items such as food, clothing and health needs, household utilities, child care and education, rent, funerals, automobile costs: s 123TH. Excluded goods and services are alcohol (defined as 1%), tobacco, pornography, gambling and other goods and services specified by the Minister in a legislative instrument: s 123TI.
A person must request for a written account statement of debited funds from the Secretary: s 123WH. The Secretary may refuse that request if they have made a request in the past 30 days: s 123WH(4). This effectively means that persons subject to the income management regime only have a right to access their account statement once a month.
School enrolment and attendance
Section 123UD provides that the Secretary may give a person with an eligible care child (own child or dependent) a written notice requiring them to show evidence within 7 days that the child is enrolled This places the burden of proof on the Aboriginal parent rather than the Commonwealth or the relevant State or Territory authority. If the person does not provide evidence, the Secretary may determine that the child is not enrolled during the applicable school period.
Section 123UE provides that the same situation applies for school attendance. The method of determining school attendance will be set out by a legislative instrument to be made by the Minister. Therefore, there is no parliamentary oversight or public knowledge as yet about the definition of ‘unsatisfactory’.
There is a requirement that the person or person’s partner be given a warning before they are placed on income management for reasons of unsatisfactory school attendance: s 123UL. However, they need only receive one warning and once they have been placed on the income management scheme once, there is no subsequent requirement for warnings if they have at any stage left the regime.
There could be an argument that many people may refuse to take children under family law orders or parenting plans because of the possible consequences of them not attending school. There could be a situation where a responsible Aboriginal person in a community takes care of a victim of child sexual abuse to remove them from the abuse as part of a family law order (i.e. grandparent). Due to the abuse, the child refuses to attend secondary school though the responsible Aboriginal person attempts to ensure that they do. Under this Bill, that person may have their welfare payments for the care of that child deducted and placed into a Special Account through no fault of their own. This may lead various people, who may have their own children to care for or are vulnerable and elderly, to refuse to take care of abused children because of the possibility of the child refusing to attend school. This would be against the intentions of the Bill to protect children.
Review rights
The Social Security Administrative Tribunal cannot review a decision made in respect to a person under the income management regime because they live in a relevant NT area. This means they also have no review rights to the Administrative Appeals Tribunal. Internal review is available by an authorised review officer, the Secretary or the CEO of Centrelink. It is arguable that because this only applies to one of the groups of people, namely the group that includes the majority of Indigenous people, that it breaches the RDA.
Baby Bonus
The baby bonus will be paid in 13 instalments for claimants subject to the income management regime: Schedule 2. This will severely restrict the ability of Aboriginal women in proscribed areas of NT to buy expensive items for their newborns (e.g. prams, furniture and hospital bills). This provision arguably breaches the RDA.
CDEP transition
There would be a number of arguments against the moving off of people from remote areas on CDEP to New Start.
Notes on Social security and other legislation amendment (welfare payment reform) bill 2007 Draft 9/8/07
The Bill implements the Government’s proposals to convert a proportion of social security payments to assistance in kind (called ‘income management’) in respect of income support recipients who live in certain Northern Territory or Cape York Indigenous communities, or whose child is assessed as being at risk, or not enrolled at school, or not attending school regularly.
Who is affected?
Residents of certain Indigenous communities in the Northern Territory declared by the Minister for this purpose, who receive adult income support payments (including age and other pensions, and allowances for unemployed people, parents or students) may be subject to Income Management for up to the next five years.
Residents of certain Indigenous communities in Queensland (four Cape York communities at this stage) who under related State Government legislation are identified by a ‘Queensland Commission’ as requiring Income Management, and who receive adult income support payments (including age and other pensions, and allowances for unemployed people, parents or students), may be subject to income management for up to the next five years.
The Bill deems these measures in Indigenous communities as ‘special measures’ (‘positive discrimination’) under the Racial Discrimination Act.
Parents (including both partners in couple families, and partners caring for a child for at least 14% of the time under a shared care arrangement) on income support whose children are identified by State Child Protection Authorities as at risk, where the Authority requests Income Management. The Government indicates that only ‘a few thousand’ families would be affected each year.
- Income Management would apply for such period as the State Child Protection Authority considers necessary.
Parents (as above) on income support whose children are identified by Centrelink, State Education Authorities or schools as not appropriately enrolled in school or attending regularly.
- Income Management will not begin to apply in these cases until 2009.
How will this be decided?
In the NT communities, Income Management will apply automatically as the Minister declares that each community is included. The Minister has power to exempt individuals.
In Cape York, this will be subject to the State Government legislation. The proposed ‘Queensland Commission’ will have powers to impose it.
The Commission is likely to follow the model prescribed by the Cape York Institute. That is, it will comprise Magistrates, experts, and community members from each of the four communities affected. It will be underpinned by services in each community that work with families to deal with issues such as protection and care of children, alcohol and gambling problems, and employment. It is likely that the ‘triggers’ for Income Management will be broader in scope than child protection and truancy but that it will not apply across the board as in the NT Indigenous communities.
State Child Protection Authorities will determine when and to whom Income Management applies in cases where children are considered at risk. They will do so by sending a written notice to Centrelink.
Either Centrelink or the State Education Authority or school can determine when Income Management will apply in cases where children are not enrolled for school, or fail to attend regularly. It appears that the Bill provides leeway for Centrelink to undertake this role in the event that States do not agree to cooperate in implementing Income Management in these cases.
Guidelines for this purpose will be written into legislative instruments (regulations) to be tabled in Parliament. For example, there is a suggestion in the legislation that failure to attend. Without good reason, for five days in the last school term might trigger Income Management, but this is only presented as an example. The Minister will have power to approve exemptions.
The Bill gives FACSIA and other Australian Government departments powers to obtain school records and other relevant information and to share social security information with schools. Parents on income support can be required to prove to Centrelink that their child is enrolled and face Income Management if they do not provide this evidence.
A warning must be given in writing to the parent(s) before Income Management is applied, but this need be given only once (not on every occasion of a breach of the requirements) and it could be given in respect of breaches that occurred before the legislation takes effect. Income Management applies for such time as the child is not enrolled, or fails to attend regularly.
The Government has stated that, where problems at school are identified as the cause of truancy, Centrelink social workers may work with parents and schools to deal with these issues.
In the case of children not enrolled or attending school, the Government has indicated that Income Management will not apply until 2009. In early 2008 random checks will be conducted of school enrolments. In late 2008 parents whose children are identified as not enrolled or truanting will be counselled by Centrelink and State Authorities.
What will happen to their payments?
- In the case of NT and Cape York Indigenous communities, 50% of their adult income support payments and 100% of child payments can be converted to in kind assistance.
- In the other cases, up to 100% of both adult and child payments can be converted.
- Supplementary payments such as Carer Allowance, Mobility Allowance and Bereavement Allowance are generally included in Income Management.
- The above proportions of the payments will be nominally set aside in a special ‘account’ for each recipient, to finance assistance in kind through stored value cards, vouchers, and direct payments to creditors and service providers such as landlords. This will be restricted to the list of ‘priority needs’ (essentials) in the Bill. This list is extensive (and can be supplemented by legislative instrument) but there are gaps such as mobile phones. Income Management accounts cannot be used for ‘excluded’ goods or services including alcohol, tobacco or gambling.
Either Centrelink or contracted service providers will implement Income Management. They will be responsible for meeting the ‘priority needs’ of the family by issuing cards or vouchers or paying bills and accounts. There is considerable discretion in the Bill for these organizations to make a range of payments in different ways on a recipient’s behalf, and a legislative instrument may extend these options further.
If there are sufficient funds left over after these needs have been met, the remainder of the funds under Income Management may be released to recipients as cash.
Account statements will be issued quarterly and may be requested every 30 days.
Funds nominally held in the accounts will have the same status as cash income for tax and related purposes (S123XQ).
These funds are not held in trust for the recipients but the Bill requires Centrelink to pay any outstanding amounts in the accounts to the recipients when Income Management ceases or to relatives if the recipient dies. However, this can be delayed where in their opinion the recipient may become subject to Income Management again within the next 60 days. Also, these payments can be made over a 12 month period. (S123WJ)
Where Centrelink ‘overspends’ the account the additional amount is recoverable as a debt against the recipient (S123ZJ).
Activity requirements in the Northern Territory
The proposed removal of remote area exemptions and CDEP programs from Indigenous communities in the NT will be accelerated, to apply to all of the communities as soon as possible after the Bill is passed. Recipients of activity tested income support payments will be required to participate in Work for the Dole schemes together with many of the standard activity requirements (such as registering with Job Network providers).
Since the remote exemptions will still apply elsewhere, and the Work for the Dole requirement is almost universal (unlike the standard six monthly mutual obligation requirement), the Bill deems these measures in Indigenous communities as ‘special measures’ (‘positive discrimination’) under the Racial Discrimination Act.
Centrelink will interview all recipients affected and undertake the standard assessments to identify those who should be referred for a Job Capacity Assessment. Other recipients will be referred to employment assistance providers and will have to sign Activity Agreements. The standard penalties for non compliance (including failing to attend interviews with service providers) will apply, including the standard maximum 8 week penalty.
All recipients referred to Job Network, and some clients of other services (e.g. PSP) will be required to participate immediately in Work for the Dole (instead of after 6 months on income support as one of a set of mutual obligation options), with a focus on ‘community clean up’ activities. CDEP will no longer be available.
NSA and YA recipients will be required to participate fulltime in Work for the Dole and other activity tested clients will be required to participate part time.
Other activity requirements, such as job search or participation in the expanded STEP program (work placements with or without training), will be included in activity agreements.
Former CDEP participants in the NT who received ‘top up payments’ in addition to the standard benefit rate, who receive a lower payment when they leave CDEP and start to receive income support, will be entitled to a ‘NT CDEP Transitional payment’ which is generally equal to the difference between their current benefits and previous pay on CDEP, up to a maximum of $794.80 per fortnight. This payment will cease on 30 June 2008.
Since former CDEP participants will receive income support payments instead (including when participating in Work for the Dole), they will generally be subject to Income Management.
NT National Emergency Response legislation
Key Issues
Lack of time for Parliament to consider the legislation
This package contains some 500-700 pages and multiple inter-related pieces of legislation. Provision of barely a week for Senators to review the legislation and understand all its implications, and an inquiry of only one day is not enough. Legislation so complex and important needs scrutiny and proper parliamentary process.
Package doesn’t address child abuse
Nothing in the package goes to the heart of addressing child abuse or child protection. The recommendations of the report which it is claimed has triggered the Government’s ‘Emergency Response’ have been entirely ignored, although they are the product of months of consultation and sensitive inquiry. The Government’s response is based on no evidence and ignores the advice of experts.
Funding for welfare, not for programs that address children’s needs
Too much of the funding for this package is for bureaucrats and administration and not enough is for programs that will support child protection. $88 m is for the administrative cost of quarantining welfare payments. $205.8m – nearly half the funding of the total package is for welfare. The allocation for child and family services is pathetically small in comparison.
There is no additional money this year for housing even though overcrowding (average 15-20 per house) is a critical issue underlying child abuse. There is a $2.3 billion shortfall for NT remote community housing and infrastructure needs. Funds will be provided, however, for accommodation for government staff who are located at or need to visit communities.
Racially discriminatory legislation
The legislation ignores the principle of non-discrimination and is exempted from the Racial Discrimination Act, even though it purports to be a ‘special measure’. Aboriginal people in the NT are being singled out for ‘special treatment’ on the basis of race, regardless of their personal circumstances or actions.
Lack of consultation with affected Aboriginal people and communities
These measures affect some 40,000 Aboriginal Australians who have not been consulted. The first recommendation Collaboration of the Little Children are Sacred Report called for collaboration between the Australian and NT Governments and genuine consultation with Aboriginal people. Neither has been done. Indigenous people must have ownership of measures that affect them, or the measures will fail. These measures are being forcibly imposed, and are strongly opposed by Aboriginal representatives from the Northern Territory.
Compulsory acquisition of property rights and assets
The Aboriginal Land Rights Act was amended in 2006 so that communities could enter into s.19A leases – none have voluntarily done so. Now the Government is now forcing compulsory leases on all communities. “Just terms” compensation will only be paid “if warranted”. It has been suggested compensation might be given in the form of services or infrastructure rather than proper compensation for the Aboriginal landowners.
The bill also provides for the Commonwealth and NT Governments to have continuing ownership of buildings and infrastructure on Aboriginal land that are constructed or upgraded with government funding – in other words, to gradually strip communities of their assets.
Alcohol
The great majority of NT Aboriginal communities are already ‘dry’ but the existing laws have not been properly policed and enforced. The bill provides “new, harsh penalties” for drinking, possessing, selling and transporting alcohol – however there will be NO restrictions on selling takeaway alcohol (such as from roadhouses which are the main suppliers of alcohol illegally taken into communities) nor any reduction in the number of takeaway outlets. As expert Peter d’Abbs pointed out, “it’s a joke to think you can control drinking in this way, especially when the rest of the Territory is awash with alcohol” (SMH 11-12 August, p.33).
Partial removal of permits to access Aboriginal land
Aboriginal landowners and NT police strongly support the continuation of the permit system. There is no evidence at all that the incidence of child abuse is greater where permits apply. Permits in no way inhibit the delivery of government services as has been claimed.
Although it is claimed that only a small percentage of Aboriginal land will be affected, it will be impossible to police offences where permits do apply. Removal of permits will make it easier for potential child abusers and grog runners to access communities and will deny Aboriginal people their right to privacy and ability to protect sacred sites. The proposal to remove permits has been raised before and has been comprehensively rejected by Aboriginal people.
Welfare provisions
The legislation allows for “income management” of up to 100% of welfare payments. Income management will be “used as a tool to assist state and territory governments to meet their responsibilities” in relation to school enrolment and school attendance. There is no explanation of how the schools, desks, teachers and classrooms will be provided.
All individuals who receive welfare payments will be subject to income management, regardless of their ability to manage their affairs. Any people who move into a community will be subjected to income management and the new arrangements will follow any individual if they leave the community, to make sure they can’t avoid it.
50% of the welfare payments of all individuals in ‘affected communities’ will be income managed for the first 12 months.
Abolition of CDEP / transfer CDEP participants to welfare provisions
CDEP (Community Development Employment Projects), the primary source of employment and income for most Aboriginal people in remote communities, will be phased out so that individuals can be forced onto welfare and income management.
Many essential community services, community organisations, artists cooperatives, night patrols, community stores etc. are staffed by CDEP workers. Abolition of CDEP is likely to have a shattering impact on remote communities and town camps.