Notes and Comment by Prof. Nicholson
Professor Alastair Nicholson, former Chief Justice of the Family Court of Australia
SOCIAL SECURITY AND OTHER LEGISLATION AMENDMENT
(Welfare Reform and Reinstatement of Racial Discrimination Bill 2009)
ALASTAIR NICHOLSON AO RFD QC,
former Chief Justice of the Family Court:
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.
The relationship between special measures, including relevant elements of the International Convention on the Elimination of All Forms of Racial Discrimination, and the Racial Discrimination Act 1975 is fully discussed in "Will they be heard?". 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.
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. 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. The 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. For good measure the Government simply overrode any inconsistent NT laws. The Rudd Government's amending Bill repeals all of these sections in an apparent attempt to indicate compliance with its election promises.
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.
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 inserts a new Category E welfare payment definition 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". Most importantly, it repeals the part 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 the part 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. Income management 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 which sets out the criteria for a person becoming 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 that considerably expands the objectives of the earlier legislation. 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. It targets 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 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 of deductions that may be made under income management such as for example the whole of any baby bonus.
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
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.
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.
 Will they be heard? at p34 and following;
 Will they be heard? at paras 171-3;
 See Schedule 1 ss 1,2,3 and 4.
Reproduced with the kind permission of Michele Harris for Prof. Nicholson.