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1.1
In this report
the Parliamentary Joint Committee on Human Rights (the committee) considers the
Stronger Futures legislation in the performance of its role of examining
bills, Acts and legislative instruments for compatibility with human rights as
defined in the Human Rights (Parliamentary Scrutiny) Act 2011.
1.2
The Stronger
Futures legislation comprises three principal Acts (the Stronger Futures
package), plus associated delegated legislation. The three Acts are:
- Stronger
Futures in the Northern Territory Act 2012;
- Stronger
Futures in the Northern Territory (Consequential and Transitional Provisions)
Act 2012; and
- Social
Security Legislation Amendment Act 2012;
1.3
A list of the
relevant primary legislation and the secondary legislation that has been
adopted under those Acts appears at Appendix 1.
1.4
The Stronger
Futures package was introduced into the Parliament on 23 November
2011.
1.5
The three bills
were passed by the House of Representatives on 27 February 2012 and were
introduced into the Senate on the same day.
1.6
The Senate
passed the bills with amendments on 28 June 2012, with the House of
Representatives agreeing to the amendments passed by the Senate on that day.
1.7
The bills
received royal assent on 29 June 2012, and their substantive provisions
commenced by proclamation on 16 July 2012.
1.8
On 15 June 2012,
while the bills were before the Senate, the National Congress of Australia's
First Peoples (Congress) wrote to the committee asking it to examine the bills.[1]
1.9
The committee
decided as a first step to write to the Minister for Families, Community
Services and Indigenous Affairs requesting advice on the compatibility of the
bills with human rights.[2]
1.10
On 28 June 2012,
the Minister responded to the committee's letter.[3]
The committee received additional information from Congress on 28 June 2012.[4]
1.11
Each of these
documents is accessible via the committee's website.[5]
1.12
On 6 July 2012
the committee received a letter dated 28 June 2012 from the then Attorney-General
in response to a request of 28 May 2012 from Senator Siewert to refer the Stronger
Futures package to this committee. The Attorney-General attached to
that letter a copy of her reply of 28 June 2012 to Senator Siewert's request.
1.13
The Attorney-General
declined to refer the bill to this committee, noting that the bills had already
been the subject of scrutiny by the Senate Standing Committee for the Scrutiny
of Bills, as well as the subject of a major inquiry by the Senate Community
Affairs Legislation Committee, and that various amendments would be proposed as
a result.
1.14
The
Attorney-General noted that it would be possible under the committee's mandate
to review the operation of the legislation once it had been enacted. The
Attorney-General expressed her view that the legislation was consistent with
the provisions of the Racial Discrimination Act 1975 (RDA) and that
there had been extensive consultation over the arrangements proposed in the
bills.
1.15
The committee
received over 20 written representations requesting it to carry out an
examination of the legislation (see list at Appendix 2). A number of those
submissions contained detailed analyses of significant human rights issues to
which the legislation gives rise.
1.16
The committee
notes that the Senate Community Affairs Legislation Committee undertook a
detailed inquiry into the content and operation of the legislation. In light of
that inquiry, the committee decided not to undertake a formal inquiry itself
but to draw on the material before and conclusions of that committee, as well
as to take into account relevant developments since mid-2012. The committee
considers that the most useful contribution it can make in relation to the
issue is to highlight specific human rights concerns and matters of principle.
1.17
This report sets
out the committee's analytical framework for the assessment of human rights
compatibility and addresses a number of issues of general relevance raised by
the Stronger Futures package. It then goes on to apply this analytical
framework to a number of the Stronger Futures measures on which the
committee has decided to focus its comments: the tackling alcohol abuse measure,
the income management measure, and the school attendance measure.
1.18
The report does
not deal with the food security measures relating to the licensing regimes for
food stores in certain areas, certain land reform measures, and amendments
relating to the extent to which customary law may be taken into account in bail
and sentencing decision, or restriction on access to pornography in certain
areas.
1.19
The committee
expresses its appreciation to all those organisations and individuals who have
made submissions to it on the legislation.
1.20
The Northern
Territory Emergency Response (NTER) involved a series of legislative and policy
interventions by the Commonwealth following the publication in June 2007 of Ampe
Akelyernemane Meke Mekarle 'Little Children are Sacred', the Report
of the Northern Territory Board of Inquiry into the Protection of Aboriginal
Children from Sexual Abuse.[7]
1.21
On 21 June 2007,
in response to that report, the Howard Government announced the 'national
emergency response to protect Aboriginal children in the Northern Territory'
from sexual abuse and family violence; the then Opposition leader expressed in
principle support for the intervention.
1.22
The aims of the
NTER measures were to protect children and make communities safe and in the
longer term to create a better future for Aboriginal communities in the
Northern Territory. The NTER legislation was introduced into and passed by the
House of Representatives on 7 August 2007, and introduced into the Senate on 7
August and passed by it on 16 August 2007. The legislation received royal
assent on 17 August 2007.
1.23
The NTER
legislation when originally enacted comprised a package of five Acts:
- Northern
Territory National Emergency Response Act 2007 (NTER Act);
- Social
Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (SSWP Act);
- Families,
Community Services and Indigenous Affairs and Other Legislation Amendment
(Northern Territory National Emergency Response and Other Measures) Act 2007 (FCSIA Act);
- Appropriation
(Northern Territory National Emergency Response) Act (No. 1) 2007-2008
2007 (Appropriation
Act No 1); and
- Appropriation
(Northern Territory National Emergency Response) Act (No. 2) 2007-2008
2007 (Appropriation
Act No 2).
1.24
The NTER
legislation applied to a number of 'prescribed areas' in which Aboriginal
people were the sole or predominant inhabitants, including Aboriginal land,
declared town camps and other declared areas. The NTER package included:
- bans on the sale
and consumption of alcohol in prescribed areas;
-
bans on the
possession and supply of pornographic material in prescribed areas;
-
compulsory
acquisition by the Commonwealth of 5-year leases over declared Aboriginal land,
Aboriginal 'community living areas' and town camps;
-
denial of
compensation equivalent to that to which another landholder in the Northern Territory
would be entitled for compulsory acquisition;
-
the exclusion of
customary law and cultural practice as a factor relevant to sentencing and bail
decisions;
-
the application
of income management to residents of prescribed (and other declared) areas;
-
the denial of
review by the Social Security Appeals Tribunal of income management decisions;
and
-
modifications to
the permit system to allow greater access to Aboriginal land.[8]
1.25
The NTER Act,
the SSWP Act and the FCSIA Act provided that acts done under or for the
purposes of those Acts were excluded from the operation of Part II of the Racial
Discrimination Act 1975 (RDA) (which prohibits racial discrimination) and
were 'special measures' for the purposes of section 8 of that Act. The
operation of certain Northern Territory and Queensland legislation dealing with
discrimination was also excluded.
1.26
The manner in
which the NTER was introduced, in particular the lack of consultation with
affected groups, gave rise to much criticism, including from the perspective of
human rights. The suspension of the operation of the Racial Discrimination
Act 1975 gave rise to particular concern, and the government's
characterisation of the intervention measures as 'special measures' under the Racial
Discrimination Act 1975 was the subject of considerable criticism.
1.27
Between 2008 and
2010, a former Senate committee, the Select Committee on Regional and Remote
Indigenous Communities, tabled a number of reports in the Senate, reporting on
the impact of the NTER measures. That Committee made a number of
recommendations over the life of the inquiry. A special review of the NTER was
completed in 2008 by the NTER Review Board,[9]
and a number of implementation and evaluation reports were published by the
Commonwealth government during this period.[10]
1.28
In 2010,
following these reviews of the NTER and continuing concern about its impact and
human rights compatibility, various changes were made to the NTER. These
included the reinstatement of the Racial Discrimination Act 1975, the
replacement of the blanket application of the income management provisions by
more limited and targeted application of the regime.[11] The Stronger Futures
package repealed the NTER Acts but retained policy elements of this
legislation.[12]
1.30
The Stronger
Futures legislation comprises the following Acts:
- Stronger
Futures in the Northern Territory Act 2012;
- Social
Security Legislation Amendment Act 2012; and
- Stronger Futures
in the Northern Territory (Consequential and Transitional Provisions) Act 2012.
1.31
The Stronger
Futures in the Northern Territory Act 2012 involves three key measures:
- the tackling
alcohol abuse measure: the purpose of this measure was 'to enable special
measures to be taken to reduce alcohol-related harm to Aboriginal people in the
Northern Territory.'[13]
It provided for the preservation of existing alcohol protections in 'alcohol
protected areas' with additional provisions that 'enable the geographic areas
covered by these protections to be changed over time and for local solutions to
be developed.'[14]
It also provided power for the Minister for Indigenous Affairs to approve
alcohol management plans.
-
the land
reform measure: the land reform measure enabled the Commonwealth to amend
Northern Territory legislation relating to community living areas and town
camps to enable opportunities for private home ownership in town camps and more
flexible long-term leases.
- the food
security measure: the purpose of this measure was 'to enable special
measures to be taken for the purpose of promoting food security for Aboriginal
communities in the Northern Territory', by modifying licensing arrangements for
community stores to continue to improve access by Aboriginal communities to
fresh, healthy food.[15]
1.32
The legislation involves
a 10 year timeframe with most provisions other than the alcohol measures being
reviewed after 7 years.
1.33
The Social
Security Legislation Amendment Act 2012 involves the following key
measures:
- income
management: the
income management regime provides for a system under which the recipients of
certain social welfare payments may have a proportion of their income
quarantined for use on priority needs for themselves or their
families/dependants.
- school
attendance: the
school attendance measures are intended to contribute to bringing about
improvements in low school attendance rates by providing a system under which
parents or carers of children who are in receipt of certain social security
payments may be required to take various steps to ensure that their child
attends school regularly and may have their payments suspended or cancelled if
they fail to take the relevant steps.
1.34
The Stronger
Futures in the Northern Territory (Consequential and Transitional Provisions)
Act 2012:
- repealed the Northern
Territory National Emergency Response Act 2007 and enacted savings and
transitional provisions;
- made
consequential amendments to the Aboriginal Land Rights (Northern Territory)
Act 1976;
- amended the Classification
(Publications, Films and Computer Games) Act 1995 to add a sunset and
review date to Part 10 of the Act which allowed special measures to be taken to
protect children living in Aboriginal communities in the Northern Territory
from being exposed to material that is or is likely to be classified as restricted
material or X18+;
- enacted savings
provisions in relation to the transitioning of areas, declarations, liquor
licences and permits for the tackling alcohol abuse measure;
- enacted
transitional provisions in relation to the community stores licences in place
under the Northern Territory National Emergency Response Act 2007 immediately
prior to its repeal; and
- amended the Crimes
Act 1914 to insert certain exceptions to the rules that prevented
consideration of customary law or cultural practices in bail and sentencing for
certain offence provisions (relating to entering, remaining on or damaging
cultural heritage, or damaging or removing a cultural heritage object) for both
Commonwealth and Northern Territory offences.[16]
1.35
The Stronger
Futures bills were introduced before the requirements of the Human
Rights (Parliamentary Scrutiny) Act 2011 in relation to the provision of
statements of compatibility commenced operation. Accordingly, the bills were
not accompanied by freestanding statements of compatibility, although a number
of human rights compatibility issues were addressed in the explanatory
memoranda.
1.36
As noted above,
in response to a request from the committee, the Minister for Families,
Community Services and Indigenous Affairs wrote to the committee on 27 June
2012, providing an overview and detailed analysis of the three bills which set
out the government's views on the issue of human rights compatibility.[17]
1.37
In her letter of
27 June 2012 to the chair of the committee, the Minister for Families,
Community Services and Indigenous Affairs stated:
From the
outset of the development of the Stronger Futures approach, including the
Bills, the Government has been absolutely clear that all measures in the
Stronger Futures Bills would be consistent with the Racial Discrimination Act.
The Bills do not suspend or limit the application of the Racial Discrimination
Act in any way, the Bills do not suspend or limit the rights that any person
has under the Racial Discrimination Act to challenge the legislation or any
action taken under it. If a person has concerns that an action of the
legislation does not comply with the Racial Discrimination Act the person will
be able to seek redress under the Racial Discrimination Act.
To make our
commitment even more clear I am proposing an amendment so that it is explicit
that the Stronger Futures in the Northern Territory Act does not affect the
operation of the Racial Discrimination Act.[18]
1.38
In her letter to
the committee the Minister set out the government's commitment to ensuring
conformity with Australia's international obligations:
In
developing the legislation careful consideration was given to Australia's
obligations under key international human rights instruments. The Government
carefully considered the application of the Racial Discrimination Act, the
International Convention on the Elimination of All Forms of Racial
Discrimination and other key international instruments in the development of
the Bills. This is reflected in the Explanatory Memoranda to the Bills. To
provide your Committee with further information on this and as requested, we
have prepared an assessment of the Bills in relation to relevant international
human rights instruments...
I believe
that after a fair review of the provisions in the Bills, and the additional
information I have now provided the Committee should be reassured that the
Government has met its obligations under domestic and international law on
human rights.[19]
1.39
The committee
expresses its appreciation to the Minister for the detailed analysis she
provided in the attachments to her letter,[20]
which performed many of the functions of a statement of compatibility.
Senate Community Affairs
Legislation Committee
1.40
The Stronger Futures
package of bills was referred to the Senate Community Affairs Legislation
Committee on 25 November 2011.
1.41
The Community
Affairs Legislation Committee conducted a number of hearings and received over 400
submissions in relation to the Stronger Futures package. The Committee
tabled its report on 14 March 2012.[21]
1.42
The detailed
report focused on a range of policy issues and recommended a number of improvements
to the draft legislation.[22]
1.43
The majority report
expressed views on a number of important human rights matters. In particular, the report documented
extensive concerns regarding the consultative approaches being made by the government.
A number of submissions
to the inquiry analysed in detail the human rights issues to which the bills
gave rise. Many of these submissions dealt with the process of consultation,
the practical operation of the previous intervention measures, and the likely
effect of the proposed measures.
1.44
The
report concluded that,
despite the evident efforts by government to consult with affected communities,
the process appeared to have fallen short of what was required for a genuine
process of consultation with the communities carried out in a culturally
appropriate and sensitive way concerned.
1.45
In this regard,
the Community Affairs Legislation Committee supported the adoption of the
criteria proposed by the Australian Human Rights Commission for meaningful and
effective consultation processes.[23]
Additional
comments by Coalition Senators
1.46
The
Coalition Senators made additional comments and recommendations. In particular
they argued that, 'long term change will require long term strategic investment
and involvement' and 'demands a degree of leadership and monitoring':[24]
A lengthy 10
year timeframe for the specific measures contained in the stronger futures
legislation is considered counterproductive to achieving the necessary outcome
of empowering individuals and communities to take control of their lives and of
the management of their communities as soon as possible. The proposed
legislation has also encouraged the emotive criticism that the government is
embarking on a further 10 year intervention into the lives of Aboriginal people
in the Northern Territory.[25]
1.47
They
recommended an earlier timeframe for a sunset provision for the legislation:
The Stronger
Futures in the Northern Territory Bill 2011, the Stronger Futures in the
Northern Territory (Consequential and Transitional Provisions) Bill be formally
reviewed after 3 years and lapse after 5 years from the date of assent.[26]
Dissenting
report by Australian Greens
1.48
The
Australian Greens did not support the passage of the bills, arguing that the
whole approach had undermined and disempowered Aboriginal people.[27]
1.49
Similar
to the Coalition Senators, the Australian Greens recommended that, should the
legislation be passed, it should sunset after five years rather than ten.[28]
1.50
The
Australian Greens rejected the proposal for expanding compulsory income
management.[29]
They also did not support the School Enrolment and Attendance through Welfare
Reform Measure, arguing that it was not working and there was insufficient
evidence to support its expansion.[30]
Senate Standing Committee
for the Scrutiny of Bills
1.51
The Stronger Futures
package of bills was considered by the Senate Standing Committee for the
Scrutiny of Bills, and was the subject of Alert Digest No 1 of 2012 and
that Committee's Second Report of 2012.
1.52
The Scrutiny of
Bills Committee did not comment on the income management provisions contained
in the Social Security Legislation Amendment Bill 2011.
1.53
In relation to
the other two bills, that Committee raised a number of matters, mainly focusing
on issues such as reverse burdens of proof, strict liability offences, the
appropriateness of particular penalties and impermissible delegation of
legislative power, and the protection of personal data and privacy.
1.54
The committee's
remit is to consider bills and legislative instruments introduced into the
Parliament for compatibility with human rights as defined in the Human
Rights (Parliamentary Scrutiny) Act 2011, as well as to examine Acts for
compatibility with human rights, and to report to both Houses of the Parliament
on these matters. The Act defines human rights by reference to the rights and
freedoms contained in seven core UN human rights treaties to which Australia is
a party. These treaties are:
- International
Covenant on Civil and Political Rights (ICCPR);
- International
Covenant on Economic, Social and Cultural Rights (ICESCR);
- International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD);
-
Convention on
the on the Elimination of All Forms of Discrimination against Women (CEDAW);
- Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT);
-
Convention on
the Rights of the Child (CRC); and
- Convention on
the Rights of Persons with Disabilities (CRPD)
1.55
This section
addresses the question of the relevance of the United Nations Declaration on
the Rights of Indigenous Peoples to the committee's mandate, the criteria for
determining whether a racially based measure is a 'special measure' for the
purposes of human rights law and its relation to the guarantee of
non-discrimination on the ground of race, and the nature of the consultation
with Indigenous communities that is required under international law in
relation to law and policies affecting those communities.
1.56
A number of
submissions have referred to the United Nations Declaration on the Rights of
Indigenous Peoples and urged the government and this committee to recognise and
apply this as a relevant standard in analysing human rights issues affecting
Indigenous peoples. Congress called for the Declaration to be included formally
in the mandate of the committee, a call that was supported by the Australian
Human Rights Commission[31]
and has recently been restated by the Aboriginal and Torres Strait Islander
Social Justice Commissioner of the Commission.[32]
1.57
While the
Declaration is not currently listed as one of the international instruments
against which the committee is to scrutinise bills and legislation for human
rights compatibility,[33]
many international lawyers and others accept that in many respects the
Declaration spells out the details of relevant obligations under the human
rights treaties listed in the committee's terms of reference. It is also
considered to represent customary international law binding on Australia in
many, though not all, respects.
1.58
The government
has accepted the relevance of the Declaration to the work of the committee. For
example, the statement of compatibility for the Tax Laws Amendment (2012
Measures No. 6) Bill 2012 refers to the provisions of the Declaration on the
Rights of Indigenous Peoples, noting that while the Declaration 'is not
included in the definition of 'human rights' under the Human Rights
(Parliamentary Scrutiny) Act 2011, it provides some useful elaboration on
how human rights standards under the international treaties apply to the
particular situation of Indigenous peoples.'[34]
1.59
The committee
notes that the Declaration does not have the formal status of a treaty, and
that some of its provisions may go further than Australia's existing treaty
obligations in relation to Indigenous peoples and may not yet form part of
customary international law. For example, while an obligation to consult with
Indigenous peoples in relation to actions which may affect them does appear to
be accepted as part of customary international law, the status of the important
provisions of the Declaration that require 'free prior and informed consen''[35] rather than consultation
is debated, with many governments (including Australia)[36] and scholars of the view
that the requirement of prior consent in all cases of laws, policies or actions
affecting Indigenous peoples does not yet represent settled international law.
1.60
However, the
committee notes that to the extent that provisions of the Declaration do not
reflect treaty obligations and have not yet attained the status of customary
international law, the Declaration is nonetheless an influential and
authoritative source of guidance that should be drawn on in policymaking and
the development of legislation.
1.61
The committee
considers that a study documenting the extent to which the provisions of the
Declaration reflect Australia's existing obligations under the seven human
rights treaties that fall within the committee's mandate as well as of their
status under customary international law would be helpful.
1.62
The
committee agrees that the Declaration on the Rights of Indigenous Peoples, while
not enshrined in domestic law, is an important and relevant instrument for its
work, and provides specific guidance as to the content of the rights in the
human rights treaties which fall within the committee's mandate. The committee
will draw on the Declaration as appropriate in interpreting those treaties and
expects that statements of compatibility will refer to provisions of the
Declaration where those are relevant.
1.63
The key rights
engaged by the Stronger Futures package of legislation include the
following:
- the right to
self-determination guaranteed by article 1 of ICCPR and article 1 of the ICESCR;
- the right to
equal protection of the law and non-discrimination on the basis of race or
ethnic origin, guaranteed by article 26 of the ICCPR, the ICERD, and articles 2(1)
of the ICCPR and article 2(2) of the ICESCR and article 2(1) of the CRC in
relation to the rights contained in those treaties;
- the right to
social security guaranteed by article 9 of the ICESCR;
- the right to an
adequate standard of living guaranteed by article 11 of the ICESCR; and
- the right not to
have one's privacy, home or family unlawfully or arbitrarily interfered with,
guaranteed by article 17 of the ICCPR.
Right
to self-determination
1.64
The right to
self-determination is protected in article 1 of the ICESCR and article 1 of the
ICCPR, and guarantees the right of groups of peoples to have control over their
destiny and to be treated respectfully. In Australia, it is particularly
relevant to Aboriginal and Torres Strait Islander peoples.
1.65
Article 1 of
each of the International Covenants provides that by virtue of the right,
peoples 'freely determine their political status
and freely pursue their economic, social and cultural development.'
1.66
The Declaration
on the Rights of Indigenous Peoples provides further guidance as to the
different dimensions of the right to self-determination. For example, article 5
of the Declaration provides that 'Indigenous
peoples have the right to maintain and strengthen their distinct political, legal, economic,
social and cultural institutions, while retaining their right to participate fully, if they so choose,
in the political, economic, social and cultural life of the State.'
1.67
Other relevant
articles of the Declaration include:
Article 18
Indigenous
peoples have the right to participate in decision-making in matters which would
affect their rights, through representatives chosen by themselves in accordance
with their own procedures, as well as to maintain and develop their own
indigenous decision-making institutions.
Article 19
States shall
consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free,
prior and informed consent before adopting and implementing legislative or
administrative measures that may affect them.
Article 20(1)
Indigenous
peoples have the right to maintain and develop their political, economic and
social systems or institutions, to be secure in the enjoyment of their own
means of subsistence and development, and to engage freely in all their
traditional and other economic activities.
Article 23
Indigenous
peoples have the right to determine and develop priorities and strategies for
exercising their right to development. In particular, indigenous peoples have
the right to be actively involved in developing and determining health, housing
and other economic and social programmes affecting them and, as far as
possible, to administer such programmes through their own institutions.
Right
to equality and non-discrimination
1.68
The definition
of 'racial discrimination' contained in article 1(1) of the ICERD provides
that:
In this
Convention, the term 'racial discrimination' shall mean any 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 human
rights and fundamental freedoms in the political, economic, social, cultural or
any other field of public life.
1.69
Accordingly,
treatment which is explicitly based on race, which has the purpose of
distinguishing between individuals or groups on the basis of race, or which
affects overwhelmingly or disproportionately members of a particular racial or
ethnic group, will amount to differential treatment based on race for the
purposes of human rights law. Thus, legislation or a policy may be based on
race for the purposes of human rights law even if it does not explicitly refer
to race or ethnic origin, if its impact is disproportionately on the members of
a particular racial or ethnic group.
1.70
Such
differential treatment will not constitute discrimination if it can be shown to
be justifiable, that is, if it can be shown to be based on objective and reasonable
grounds and is a proportionate measure in pursuit of a legitimate objective. As
the UN Committee on the Elimination of Racial Discrimination put it in its
General Recommendation No. 32:
On the core
notion of discrimination, in its general recommendation No. 30 (2004) on
discrimination against non-citizens, the Committee observed that differential
treatment will 'constitute discrimination if the criteria for such
differentiation, judged in the light of the objectives and purposes of the
Convention, are not applied pursuant to a legitimate aim, and are not
proportional to the achievement of this aim'.
1.71
As a logical
corollary of this principle, in its general recommendation No. 14 (1993) on
article 1, paragraph 1, of the ICERD, the Committee observed that 'differentiation
of treatment will not constitute discrimination if the criteria for such
differentiation, judged against the objectives and purposes of the Convention,
are legitimate'.
1.72
The term 'non-discrimination'
does not signify the necessity of uniform treatment when there are significant
differences in situation between one person or group and another, or, in other
words, if there is an objective and reasonable justification for differential
treatment. To treat in an equal manner persons or groups whose situations are
objectively different will constitute discrimination in effect, as will the
unequal treatment of persons whose situations are objectively the same. The
application of the principle of non-discrimination requires that the
characteristics of groups be taken into consideration.[37]
1.73
The rights to
social security and an adequate standard of living are protected in articles 9
and 11 of the ICESCR, respectively. The UN Committee on Economic, Social and
Cultural Rights has stated that social security should be available, adequate
and accessible. Adequacy means that:
the benefits
must be adequate in amount and duration in order that everyone may realize his
or her rights to family protection and assistance, an adequate standard of
living and adequate access to health care, as contained in articles 10, 11 and
12 of the [ICESCR]. States parties must also pay full respect to the principle
of human dignity contained in the preamble of the Covenant, and the principle
of non-discrimination, so as to avoid any adverse effect on the levels of benefits
and the form in which they are provided.[38]
1.74
In a letter sent
to the Australian government dated 9 March 2012, the UN Special Rapporteurs on
Extreme Poverty and Human Rights and Rights of Indigenous Peoples wrote in
relation to the provision of social security benefits under the ICESCR:
States
parties must also ensure that the level of benefits and the form in which they
are provided are in compliance with the principles of human dignity and
non-discrimination. In complying with the right to social security, States must
ensure that social assistance is equally available to all individuals and that
qualifying conditions for benefits are reasonable, proportionate and
transparent. Moreover, the withdrawal, reduction or suspension of benefits must
be circumscribed, based on grounds that are reasonable, subject to due process,
and provided for in national law....
When States
impose excessive requirements and conditions on access to public services and
social benefits, and severe sanctions for non-compliance, such measures
threaten welfare beneficiaries' enjoyment of a number of human rights,
including the right to participate in the decisions that directly affect them,
and to be free from arbitrary or unlawful State interference in their privacy,
family, home or correspondence. The cumulative impact of living in such
circumstances threatens the beneficiaries' right to enjoy the highest
attainable standard of living.
Right
to privacy
1.75
The right to
privacy is protected in article 17 of the ICCPR. Among other things, article
17 prohibits unlawful or arbitrary interference with a person's privacy, family
and home. The right to privacy encompasses freedom from unwarranted and
unreasonable intrusions into activities that society recognises as falling
within the sphere of individual autonomy.
1.76
The government
has stated that the various legislative measures that form part of the Stronger
Futures package give effect to Australia's positive obligations under the
applicable human rights treaties to ensure the enjoyment by Indigenous citizens
and others of a range of human rights. These include the rights to life and
health, to education, to social security and an adequate standard of living, to
personal integrity and privacy, and the rights of children.
1.77
The government
has consistently maintained that many of the measures which form part of the Stronger
Futures package are 'special measures' and are therefore not discriminatory
under the ICERD or the Racial Discrimination Act 1975.[39] The government has
generally asserted this conclusion without any supporting analysis based on the
criteria generally accepted in international law for such measures.
The
criteria for 'special measures' under human rights law
1.78
The committee
recalls that special measures of advancement are a well-established category in
international human rights law.[40]
They are recognised explicitly in the ICERD, CEDAW, and the CRPD. The equality
and non-discrimination guarantees of other treaties (in particular the ICCPR
and ICESCR) have been interpreted so as to permit, and in some cases require,
the taking of such measures. Generally they have been understood as involving
the granting of a benefit or preference to members of a disadvantaged group on
the basis of membership of that group, where differential treatment on that
ground is generally prohibited as discrimination.
1.79
Special measures
are considered not to be discrimination for the purposes of the human rights
treaties, and thus persons who are not members of the group that is granted the
benefit or preference may not claim that they have been discriminated against
by being denied access to that benefit or opportunity. While some see special
measures as discrimination which is excused, others, applying a substantive
equality approach, take the view that special measures do not involve
discrimination but are an example of differential treatment of people that is
justified as based on relevant differences (for example, the continuing effects
of historical discrimination).[41]
1.80
Article 1(4) of
the ICERD defines 'special measures' for the purposes of that convention in the
following terms:
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.[42]
1.81
The UN Committee
on the Elimination of Racial Discrimination has set out its understanding of
the meaning of the provisions in the ICERD relating to special measures:
Special
measures should be appropriate to the situation to be remedied, be legitimate,
necessary in a democratic society, respect the principles of fairness and
proportionality, and be temporary. The measures should be designed and
implemented on the basis of need, grounded in a realistic appraisal of the
current situation of the individuals and communities concerned.
Appraisals
of the need for special measures should be carried out on the basis of accurate
data, disaggregated by race, colour, descent and ethnic or national origin and
incorporating a gender perspective, on the socio-economic and cultural status
and conditions of the various groups in the population and their participation
in the social and economic development of the country.
States
parties should ensure that special measures are designed and implemented on the
basis of prior consultation with affected communities and the active
participation of such communities.[43]
1.82
In 1985 in Gerhardy
v Brown, the High Court of Australia held that the following criteria need
to be satisfied in order for a measure to be characterised as a 'special
measure':
- the measure must
confer a benefit on some or all members of a class of people;
-
the membership
of this class must be based on race, colour, descent, or national or ethnic
origin;
-
the sole purpose
of the measure must be to secure adequate advancement of the beneficiaries so
they may equally enjoy and exercise their human rights and fundamental
freedoms;
- the protection
given to the beneficiaries by the measure must be necessary for them to enjoy
and exercise their human rights equally with others;
-
the measure must
not have already achieved its objectives.[44]
1.83
It has been
accepted that, as a general rule, any special measure should so far as possible
be developed in consultation with the group whose members are to be the
beneficiaries of the measure.[45]
1.84
For almost
thirty years the criteria set out by Brennan J in Gerhardy v Brown have
served as an authoritative and persuasive point of reference for determining
whether a particular measure is a 'special measure' under the RDA and the ICERD,
and have been considered to be in conformity with the international law on the
subject.[46]
1.85
However, in a
recent decision, Maloney v R,[47]
the High Court of Australia revisited Gerhardy. While the judgments in Maloney
do not represent a major departure from Gerhardy, they place greater
emphasis on the words of articles 1(4) and 2(2) of the ICERD,[48] and adopt a number of
conclusions which are arguably not in conformity with the current state of
international law and practice relating to special measures. The relevance of
the Maloney case and its relation to the international legal standards
is discussed below.
Application
to the Stronger Futures measures
1.86
While the Stronger
Futures bills were introduced without separate statements of compatibility,
the explanatory memorandum to the Stronger Futures in the Northern Territory
Bill 2011 briefly addressed some human rights issues, in particular the
question of whether certain of the measures were 'special measures' for the
advancement of Aboriginal people within the meaning of the ICERD. In relation
to a number of the measures, the explanatory memorandum stated the government's
view that it was a 'special measure' because it was intended to address
specific Aboriginal disadvantage and help Aboriginal people to enjoy their
human rights equally with others in the Australian community.[49] It noted that there had
been consultation with Aboriginal communities and others, and that there were
reviews proposed of the operation of the provisions that would take place at
specific times after the commencement of the legislation.
1.87
However, there
was little detailed analysis of the applicable criteria for a measure to
qualify as a 'special measure', and of whether some or all of these measures
satisfied the criteria. Nor was there any reasoned response to criticism made
of the similar provisions in the earlier Northern Territory Emergency Response,
many features of which the Stronger Futures legislation proposed to
continue. These included criticism by the UN Special Rapporteur on the Rights
of Indigenous Peoples in his report following a visit to Australia in 2009.[50] There was also
relatively little explicit and detailed consideration of other human rights,
for example the right to social security.
1.88
The submissions to the Senate
Community Affairs Legislation Committee[51]
and to this committee by the Australian Human Rights Commission, the Congress,
the Australian Lawyers Alliance and others, have challenged whether various
measures asserted to be 'special measures' can be properly characterised as
such.[52]
In particular, the following issues have been raised:
- whether a
measure which limits the enjoyment of rights of (some) members of a particular
racial group can be justified as a 'special measure' insofar as it is claimed
that the measure is intended, designed and likely to bring about a higher level
enjoyment of human rights overall for members of the group;
- whether
consultation and consent are required elements for a measure to be considered a
special measure under international law and under the Racial Discrimination
Act 1975;
- what criteria
must be in place to assess the likely effectiveness of the purported 'special
measure' and what monitoring measures are required in order to assess the
ongoing relevance and justifiability of the measure.
1.89
A related issue
is whether a measure which responds to particular deprivations of a particular
racial group and seeks to improve the level of enjoyment of human rights by
members of that group is even prima facie discrimination that can be
justified as a 'special measure', or is simply a substantive equality measure
(that is, a measure that treats persons differently because their circumstances
are relevantly different).
1.90
The UN Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Professor James Anaya, addressed this issue in his report
following a visit to Australia in 2009.[53]
While the report considered the Northern Territory Emergency Response (NTER)
(some elements of which the Stronger Futures legislation did not
continue), a number of his comments are still pertinent to those aspects of the
Stronger Futures legislation which continue elements of the NTER
measures. The Special Rapporteur wrote:
As already
stressed, special measures in some form are indeed required to address the
disadvantages faced by indigenous peoples in Australia and to address the
challenges that are particular to indigenous women and children. But it would
be quite extraordinary to find consistent with the objectives of the
Convention, that special measures may consist of differential treatment that
limits or infringes the rights of a disadvantaged group in order to assist the
group or certain of its members. Ordinarily, special measures are accomplished
through preferential treatment of disadvantaged groups, as suggested by the
language of the Convention, and not by the impairment of the enjoyment of their
human rights.[54]
1.91
The Australian
Human Rights Commission has expressed a similar view:
Measures
that seek to provide a benefit to a racial group or members of it, but operate
by limiting certain rights of some, or all of that group, should be approached
with particular care. ...
In the
Commission's view, such measures will not be special measures where they
are implemented without the consent of the group to whom they apply.[55]
1.92
In its response
to the draft report of the Special Rapporteur, the government did not
specifically respond to his criticism of the use of the terminology of 'special
measures' but noted that, even if a racially based measure did not qualify as a
'special measure', it might nevertheless be permissible under international law
if it were 'legitimate differential treatment'.[56]
Differential
treatment based on race as legitimate differential treatment
1.93
As the
government has pointed out and the UN Special Rapporteur has accepted, under
international human rights law, differential treatment based on race that does
not qualify as a 'special measure' may still be legitimate if it can be shown
to be based on objective and reasonable criteria adopted in the pursuit of a
legitimate goal. In the case of differential treatment based on race or ethnic
origin, a high level of scrutiny is appropriate for the evaluation of such
measures. As the UN Committee on the Elimination of Racial Discrimination
Committee has noted:
The term 'non-discrimination'
does not signify the necessity of uniform treatment when there are significant
differences in situation between one person or group and another, or, in other
words, if there is an objective and reasonable justification for differential
treatment. To treat in an equal manner persons or groups whose situations are
objectively different will constitute discrimination in effect, as will the
unequal treatment of persons whose situations are objectively the same. The
Committee has also observed that the application of the principle of
non-discrimination requires that the characteristics of groups be taken into
consideration.[57]
1.94
As the Special
Rapporteur commented in relation to the NTER measures, in terms still relevant
to the Stronger Futures package:
The Special
Rapporteur stresses that any government measures that discriminate on the basis
of race must, in order to comply with Australia's human rights obligations
service the highest scrutiny and be found to be proportional and necessary to
advance valid objectives. ...[T]he discriminatory measures of the NTER cannot be
found necessary to the legitimate objectives they are intended to serve, if the
discriminatory treatment is not shown to actually be achieving the intended
results.[58]
1.95
The question is
not simply whether the NTER measures are yielding results, but whether the
discriminatory rights-impairing aspects of the measures are themselves
proportional to and necessary for the achievement of the results.[59]
1.96
Accordingly, it
is necessary to assess the individual measures against this standard.
1.97
The
committee has previously noted the tendency for explanatory memoranda to invoke
the category of 'special measures' as a justification for legislation that
involves differential treatment based on race or ethnic origin, without
sufficient analysis of whether the differential treatment may be justified as
legitimate differential treatment based on reasonable and objective grounds
without reference to special measures, or without specific consideration of
whether the measures do in fact satisfy the detailed criteria of a 'special
measure.'[60]
1.98
The
committee notes that the government has not provided a detailed explanation of
why the Stronger Futures measures can be legitimately viewed as 'special
measures' under international law; it has merely asserted that it is its 'policy
intention' that it is so.
1.99
The
committee notes the view of the Special Rapporteur on Indigenous Peoples that a
measure which criminalises conduct by some members of the group to be benefited,
in order to promote the overall benefit of the group, is not appropriately
classified as a 'special measure'. The committee shares this view, which it
considers reflects the current position in international law.
1.100
The
committee is not persuaded by the material put before it by the government that
the Stronger Futures legislation can properly be characterised as 'special
measures' under the ICERD or other relevant human rights treaties.
1.101
On 19 June 2013,
during the finalisation of the committee's report, the High Court of Australia
delivered judgment in the case of Maloney v R.[61] The case involved an appeal by Ms
Maloney, a resident of Palm Island, against her conviction for possession of
more than a prescribed quantity of alcohol in a restricted area on Palm Island
contrary to provisions of the Queensland Liquor Act 1992.
1.102
Ms Maloney had
challenged the statutory provisions imposing the alcohol restrictions on the
ground that they involved racial discrimination and argued that, as a result,
section 10(1) of the Racial Discrimination Act 1975[62] (RDA) rendered those provisions
inoperative so that residents of Palm Island were not bound by the restrictions
imposed.
1.103
That Act is
intended to give effect to Australia's obligations under the ICERD. Section 8
of the RDA provides that certain provisions of the RDA (including section 10)
do not apply to, or in relation to, the application of special measures within
the meaning of article 1(4) of the ICERD.
1.104
In six separate
judgments, which reflected substantially similar reasoning and conclusions, the
High Court dismissed the appeal. The Court held that, although the legislation
did not on its face refer to race, the provisions regulating the possession of
liquor on Palm Island involved racially based differential treatment, because
their purpose and effect were to apply to a community the overwhelming majority
of whose population was Aboriginal. Thus, the effect of subsection 10(1) of the
RDA would be that the rights which were denied on the basis of race to
Aboriginal residents of Palm Island (principally the right to property, meaning
the right to possess liquor on the same terms as other residents of Queensland[63]) would be extended to them, unless
the provisions constituted a 'special measure'.
1.105
The Court went
on to hold that these provisions were a 'special measure' within the meaning of
section 8 of the RDA and article 1(4) of the ICERD. They considered that the
fact that criminal liability was imposed on some members of the group whose
enjoyment of rights was claimed to be advanced by a measure was no bar to the
measure being classified as a special measure.
1.106
The members of
the Court also held that consultation with and the consent of members of the
group for whose benefit the measure was adopted was not a legal requirement for
a measure to be classified as a special measure, though they noted that the
fact of consultation might be relevant to whether a measure could properly be
characterised as being for the advancement of the group concerned.
1.107
While various
members of the Court made reference to a number of international sources,
including various general recommendations of the UN Committee on the
Elimination of Racial Discrimination and general comments of the UN Human
Rights Committee, they did not find that these were authoritative or persuasive
sources in support of a more limited interpretation of the special measures
provisions of the ICERD, namely one which required adequate consultation with
the affected group as a legal condition of being a special measure. The Court
made no reference to the views of the UN Special Rapporteur referred to above[64] on the issue of whether the
imposition of criminal liability on some members of the group can constitute a 'special
measure'.
1.108
The Court
proceeded on the basis of the judgment in Gerhardy v Brown and the
constraints of section 10 of the RDA which the Court interpreted as having the
effect of rendering all legislation which involves racially based treatment
discriminatory – and thus only capable of being lawful if can be characterised
as a special measure.
1.109
The relevant international
law is not so constrained – a racially based distinction may be justified as a
reasonable and proportionate measure in pursuit of a legitimate goal, even if
it is not a special measure (special measures are just one example of a
reasonable and proportionate measure adopted in pursuit of a legitimate goal).
1.110
Furthermore, the
committee notes the Special Rapporteur's view – which reflects international
practice and scholarly discussions of the subject – that it is not appropriate
to classify as a 'special measure', a measure which criminalises conduct by some
members of the group to be benefited in order to promote the overall benefit of
the group.
1.111
The committee is
unaware of any case in which an international body has classified such a
measure as a 'special measure', and the High Court judgments contain no
reference to any such instance under international law. The examples given
internationally and the assumption underlying international discussion of
special measures is that they involve the direct conferral of benefits on
members of a particular racial group which are not provided to persons who are
not members of that racial group, in order to advance the enjoyment of human
rights of the benefitted group.
Committee
view
1.112
The
committee notes that the views of the High Court in Maloney are
authoritative for the purposes of Australian domestic law in its current form.
1.113
The
committee's mandate requires it to assess measures against the ICERD and the
other human rights treaties.
1.114
The committee
remains of the view that the automatic invocation of the special measures
provision to justify every racially based measure does not reflect the accepted
analytical framework adopted under international law.
1.115
To the
extent that the formulation of section 10 of the RDA contributes to the need to
resort to the category of special measures to defend all racially based
distinctions, the committee recommends that the provision be reviewed in light
of the decision in Maloney, the international practice and the committee's
comments.
Criteria for effective and
meaningful consultation with Indigenous communities
1.116
One of the much
criticised features of the NTER was the failure to consult with the communities
and groups affected by the measures introduced. The committee acknowledges that
in developing and introducing the Stronger Futures measures the
government was well aware of the deficiencies of the NTER process, and went to
considerable effort to consult with Indigenous communities and other
stakeholders around many aspects of the proposed measures.
1.117
As will be clear
from the discussion above, the question of proper consultation with Indigenous
groups and other affected communities is relevant for a number of human rights.
It is of particular relevance to the enjoyment by Indigenous people of the
right to self-determination guaranteed by articles 1 of the ICCPR and the
ICESCR. This is also recognised in the general statement in article 19 of the
Declaration on the Rights of Indigenous Peoples that:
States shall
consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free,
prior and informed consent before adopting and implementing legislative or
administrative measures that may affect them.
1.118
The government
noted in this regard in relation to the Stronger Futures in the Northern
Territory Bill 2011:
The measures
in the Bill have been developed taking into account the views of the Aboriginal
people expressed during the extensive consultation process following the
release of the Stronger Futures in the Northern Territory Discussion Paper in
June 2011. The results of these consultations were published in the Stronger
Futures in the Northern Territory Report on Consultations in October 2011.[65]
1.119
The Senate
Community Affairs Legislation Committee considered a number of submissions
related to the question of whether the consultation had been appropriate and
adequate. Both the majority report and the dissenting report of the Australian
Greens expressed concern about this aspect of the measures. While noting the
efforts made by the government in good faith to consult with affected
communities and groups, the majority report stated:
Nevertheless,
the committee is concerned that there remains misunderstanding of the stronger
futures bills in the Northern Territory and that the committee has heard
complaints raised about the manner in which the consultations were undertaken.
The committee notes with serious concern the degree of confusion, and
frustration expressed in relation to the Stronger Futures consultations. There
appears to be a discrepancy between the level of consultation undertaken, as
reflected in FAHCSIA's evidence and the consultation evaluation report, and the
level of understanding within communities.
While the
committee appreciates that the Commonwealth government made significant efforts
to consult with people on the changes, and to inform them of the impact, more
needs to be done to ensure that these processes are effective. The committee
notes the development of the framework for engaging with Aboriginal and Torres
Strait Islander Australians, but emphasises that the success of such a
framework lies in commitment to implementation by agencies. It notes also the
concern of the Australian Human Rights Commission that the capacity of
communities has declined since the introduction of the Northern Territory
Emergency Response, and that this could make effective consultation more
difficult.
The
committee agrees with the Australian Human Rights Commission that the criteria
(outlined in paragraph 4.12) should guide the way that governments and agencies
engage with Aboriginal and Torres Strait Islander communities. Consultations
should also build on the cultural competency principles advocated by the
Australian Human Rights Commission.[66]
1.120
The Senate
Community Affairs Legislation Committee recommended that the government should,
when conducting further consultation in relation to Stronger Futures:
- work with the
framework provided by the Australian Human Rights Commission for meaningful and
effective consultation processes that are culturally safe, secure and
appropriate; and
- give
consideration to the effective use of Land Councils in consultation processes
given their knowledge and expertise in consulting appropriately with
communities.[67]
1.121
Those criteria
were developed by the Aboriginal and Torres Strait Islander Social Justice
Commissioner [68]
and may be summarised as follows:
- the objective of
consultations should be to obtain the consent or agreement of the Aboriginal
and Torres Strait Islander peoples affected by a proposed measure;
- consultation
processes should be products of consensus;
- consultations
should be in the nature of negotiations;
- consultations
need to begin early and should, where necessary, be ongoing;
- Aboriginal and
Torres Strait Islander peoples must have access to financial, technical and
other assistance;
- Aboriginal and
Torres Strait Islander peoples must not be pressured into making a decision;
- adequate timeframes
should be built into consultation processes;
- consultation
processes should be coordinated across government departments;
- consultation
processes need to reach the affected communities;
-
consultation
processes need to respect representative and decision-making structures; and
- governments must
provide all relevant information and do so in an accessible way.[69]
1.122
The
committee considers that effective and meaningful consultation with affected Indigenous
communities is an important and necessary requirement for safeguarding human
rights, in particular the right to self-determination guaranteed by article 1
of each of the International Covenants on Human Rights, as well as by the UN
Declaration on the Rights of Indigenous Peoples.
1.123
The committee
endorses the recommendation of the Senate Community Affairs Legislation
Committee that the framework articulated by the Australian Human Rights
Commission and the Aboriginal and Torres Strait Islander Social Justice
Commissioner for meaningful and effective consultation with Indigenous
communities should be adopted by government.
1.124
Once it is shown
that a legislative or other measure involves a restriction on a right, it will
be necessary to justify that restriction. While the formulations of what
constitutes a permissible limitation vary somewhat from right to right, the
committee has consistently taken the approach that in order to justify a
limitation of a right, the government must demonstrate that:
-
the limitation
pursues a legitimate objective;
- there is a
rational connection between the measure adopted and the achievement of that
objective; and
- the measure is a
proportionate to that objective (which will normally include consideration of
whether there are other less restrictive means of achieving the aim).[70]
1.125
Of importance to
an assessment of the permissibility of a limitation is whether there are
safeguards against abuse, in particular whether there are procedures for
monitoring the operation and impact of the measures, and avenues by which a
person may seek review of an adverse impact.
1.126
The committee
underlines that any restriction on fundamental rights which is stated to be
necessary to achieve a legitimate purpose, must be supported by evidence and a
monitoring process which will assess the correctness of the assumption that the
measure will contribute to achieving the goal. The justification for such
limitations should be accompanied by a reasoned (and evidence-supported)
explanation of why a less restrictive alternative would not be available.
1.127
The committee
notes that the government bears the onus of demonstrating that a restriction is
justifiable. The committee has consistently emphasised that the mere assertion
that a restriction is rational, reasonable and proportionate, without further
explanation or support, will generally be insufficient to discharge that onus.
The committee notes that in many cases it will be necessary for government to
provide empirical or other evidence to justify a conclusion that a limitation of
a right is permissible.
1.128
The first
component of the Stronger Futures in the Northern Territory Act 2012
relates to measures to tackle alcohol abuse. The Act incorporates:[71]
- the continuation
of alcohol restrictions in dry communities;
- a legislative
basis for local alcohol management plans (AMPs) which allow communities to
develop local solutions to reduce alcohol-related harm and become 'community
managed alcohol areas', where legislated alcohol restrictions may be lifted;
-
provision for
the Commonwealth to request the Northern Territory government to appoint an
assessor to examine the trading practices of licensed premises that may be
causing alcohol-related harm to Aboriginal people;
- provision for an
independent review of alcohol laws in the Northern Territory within two years;
and
- provisions
requiring any alcohol-related signs to be respectful to Aboriginal people and
to have community input into their design and wording.
1.129
The government
has maintained that the goals of the alcohol measures are to achieve results
that would advance the enjoyment of human rights.[72] These include:
- The right to security
of the person and to protection by the State against violence or bodily harm
(article 5(b) of the ICERD) and the right to liberty and security of the person
(article 9 of the ICCPR). The analysis notes that there is 'clear evidence that
alcohol abuse is a major factor in community and family violence in remote
Northern Territory Aboriginal communities'.[73]
- The right of
children to enjoy such measures of protection as are required by their status
as minors (article 24 of the ICCPR) and to be protected from all forms of
physical or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment of exploitation (article 19 of the CRC), and the rights of
children to the highest attainable standard of physical and mental health
(article 24 of the CRC).
- The right of
everyone to the highest attainable standard of physical and mental health
(Article 12 of the ICESCR). The analysis notes that there 'is a well-documented
link between high alcohol consumption and health risks'.[74]
- The right to a
standard of living adequate for the physical, mental, spiritual, moral and
social development of children (article 27 of the CRC).
1.130
In addition to
seeking to promote these rights, these measures give rise to a number of human
rights compatibility concerns. The key concern is whether it constitutes racial
discrimination insofar as its major impact is on Aboriginal communities.
Racial
discrimination
1.131
The committee
notes that it is Aboriginal communities which are the subject of the tackling
alcohol measures and that the restrictions fall predominantly on Indigenous
citizens of those areas. It notes the argument put forward by the government
that the incidence of alcohol-related harm is significantly higher among
Aboriginal communities and in the Northern Territory than in other parts of the
country.
1.132
Accordingly, as
a measure which is based on race or whose purpose and effect is to regulate the
activities of persons of a particular racial or ethnic group, it must be
clearly demonstrated to be pursuing the goals set out in a reasonable and
proportionate way. As a restriction on the enjoyment of rights, including the
right not to have one's privacy unlawfully or arbitrarily interfered with
(article 17, ICCPR), it must be shown to be a reasonable and proportionate measure
with a rational connection to the achievement of the legitimate objective.
Legitimate
objective
1.133
The Minister
for Families, Community Services and Indigenous Affairs stated in her letter to
the committee that 'the primary objective of the tackling alcohol abuse
measures is to reduce alcohol related harm to Aboriginal people of the Northern
Territory'.
1.134
The Minister's
analysis stated that:
The policy
intention is that the tackling alcohol abuse measure is a 'special measure'
within the meaning of art 1(4) of the ICERD (and s 8(1) of the Racial
Discrimination Act 1975 (RDA)).[75]
1.135
It further noted
that under the ICERD, 'special measures' are not considered discriminatory and
referred to General Recommendation No. 32 of the UN Committee on the
Elimination of Racial Discrimination dealing with special measures under the
Convention.[76]
The Minister's analysis goes on to state:
This measure
is required because Aboriginal people in the Northern Territory are
significantly disadvantaged by alcohol abuse and its effects. In particular,
children are significantly disadvantaged by the negative impact alcohol abuse
has on a safe living environment.[77]
1.136
The analysis
noted:
Research
evidence indicates that alcohol consumption and consequent alcohol-attributable
deaths and hospitalisations for both Aboriginal and non-Aboriginal people in
the Northern Territory [have] occurred at levels far higher than elsewhere in
Australia and that rates for Aboriginal people are higher than for
non-Aboriginal people. In the consultations it was reported that parents were
spending time drinking and gambling rather than looking after children. Alcohol
restrictions will assist in improving standards of living and care for children
in affected communities. There is also evidence that alcohol abuse is a risk
factor in child neglect in the Northern Territory.[78]
Rational
connection
1.137
The Minister's analysis
refers to the conclusion of the Senate Community Affairs Legislation Committee
on the bills which acknowledges the extent of the problem and states that the
evidence it had received indicated that the measures in the Stronger Futures
bill 'will go some way to supporting the Northern Territory as it seeks to
address alcohol-related harm...'.[79]
1.138
That committee
also, however, 'concede[d] that more does need to be done, particularly in the
areas of alcohol education and rehabilitation.'[80]
Proportionality
1.139
The Minister's
analysis noted that there were two mechanisms in the bill to ensure that the
alcohol-related measures were not continued after their objective had been
achieved. These were an independent review of the operation of the legislation
after seven years, and an automatic sunset for the operation of the legislation
after ten years.[81]
1.140
The Minister's
analysis also stated:
To the
extent that the measure restricts rights, those limitations are reasonable,
necessary and proportionate having regard to evidence of the very high levels
of alcohol-related harm to Aboriginal people in the Northern Territory, the
improvement occasioned by the restrictions so far, and support received during
consultation.[82]
1.141
The Minister's
analysis refers to a number of documents where the 'evidence and results of
consultation and evaluation are set out in detail'. However, it does not
identify specific rights which may be subject to restriction, nor does it
analyse in detail how any such restrictions are a rational and proportionate
means of pursuing a legitimate objective or identify other, less restrictive,
means that might have been employed.
1.142
The committee
has already referred to the problems in relation to consultation which may be
relevant to whether a measure is considered proportionate. However, also of
relevance are the issue of whether the consent of the relevant community (or a
majority of it) to the imposition of alcohol restrictions has been obtained,
and also whether there is any clear evidence that the measures have had an
impact on reducing alcohol consumption and the harms linked to abuse of
alcohol. These two are linked, as studies have shown that the systems of
alcohol restriction likely to be effective are those decided on by the
community rather than ones which are imposed from outside.[83]
1.143
The Stronger
Futures measures provided for the automatic continuation of a number of
alcohol-protected areas that had been established without the consent of the
community. However, at the same time the package provided for transition to a
situation under which alcohol management plans (AMPs) would be approved by the
Minister only if they satisfied a detailed set of criteria, which included
support from the community.
1.144
The committee
notes that in its submission to the Senate Community Affairs Legislation
Committee, the Australian Human Rights Commission stated that it supported 'the
introduction of alcohol restrictions to address the impact of alcohol abuse
within communities where such restrictions have community support'. The
Commission not only saw these as the type of restrictions that were most likely
to be effective, but would also not be subject to the human rights objections
to which compulsory alcohol restrictions imposed from outside the community
were subject:
The
Commission believes alcohol management plans have significant potential to
address alcohol related harm in the Northern Territory by facilitating
community control of alcohol regulation and harm reduction strategies. This is
both consistent with human rights standards and the evidence base.[84]
1.145
The Commission
was also of the view that 'a substantial focus of the Government should be on
transitioning communities to locally developed alcohol management plans'.[85] It is not clear
from the explanatory statement accompanying the Rule how many alcohol-protected
areas which were established under the NTER measures (which expired in August
2012) and which were continued under the Stronger Futures legislation,
are still in force.
1.146
In its
submission to the Senate Community Affairs Legislation Committee the National
Congress of Australia's First Peoples stated:
Congress
supports the proposed initiative of community developed Alcohol Management
Plans in replacement of blanket imposition of alcohol measures. This measure
allows communities to develop their own plan enabling community control in
regards to alcohol management, however the planning process must be adequately
resourced. This includes access to drug and alcohol expertise, administration
support, program development and sustainability guidelines and resources for
monitoring success and achieving the outcomes of the plan. Each community-based
Alcohol Management Plan should be allowed to develop in reference an
over-arching strategy which entails tackling issues of supply and demand,
treatment and diversionary programs incorporating early intervention, education
and health promotion.[86]
1.147
The Congress
recommended that 'communities be allowed to develop their own Alcohol
Management Plan, rather than have legislation imposed upon them.'[87]
1.148
On 25 February
2013 the Minister made the Stronger Futures in the Northern Territory (Alcohol
Management Plans) Rule 2013.[88]
The rule prescribes the minimum standard required to be met by Alcohol
Management Plans (AMPs) and set out the framework for AMPs to be developed by
communities under the Stronger
Futures in the Northern Territory Act 2012.[89]
These standards relate to:
-
consultation and
engagement;
- managing the
alcohol management plan;
-
alcohol
management plan strategies – supply, demand and harm reduction;
-
monitoring,
reporting and evaluation; and
-
clear
geographical boundaries.[90]
1.149
The rule was
accompanied by a self-contained statement of compatibility which repeated the
government's position that the tackling alcohol measures were a 'special
measure' designed to help overcome significant disadvantage suffered by
Aboriginal people in the Northern Territory, particularly women and children,
as a result of alcohol abuse and its effects.[91]
The statement also maintained that the tackling alcohol abuse measure,
including the development and approval of AMPs, would enhance the enjoyment of
the right to security of person against violence and bodily harm. It further
stated that the measure would enhance the enjoyment of the right to health and
to an adequate standard of living for Aboriginal people in general and the
rights of Aboriginal children in particular. The statement of compatibility
notes that the rule will support the exercise of the right to
self-determination under the ICERD and the ICCPR:
The minimum
standards prescribed by this rule will require comprehensive and ongoing
community consultation and engagement process in the development and
implementation of Alcohol Management Plans, including using interpreters and
community advocates. This will ensure that everyone in a community has their
say on the development of an Alcohol Management Plan, and that the plan is
aimed at reducing alcohol supply, demand and harm and tailored to each
community's priorities for addressing alcohol-related harm. The Minister must
not approve an AMP unless satisfied that the prescribed requirements in the
rules have been met (see subsection 17(3)). The prescribed minimum standards,
taken together, will encourage community groups to take ownership of the way that
they manage alcohol in their community and therefore likely engage and advance
the right to self-determination.[92]
Stronger
Futures in the Northern Territory Six-Monthly Progress Report (June 2012)
1.150
On 20 June 2013
the Minister for Families, Community Services and Indigenous Affairs and
Minister for Disability Reform, the Hon Jenny Macklin MP and the Minister for
Indigenous Health, the Hon Warren Snowdon MP, released the first Stronger
Futures in the Northern Territory Six-Monthly Progress Report. The report provides
an overview of developments under the Stronger Futures legislation
during the first six months of the Stronger Futures measures (from 1
July 2012 to 31 December 2012).[93]
1.151
The report notes
that the National Partnership Agreement on Stronger Futures in the Northern
Territory Tackling Alcohol Abuse Implementation Plan was signed on 3 June
2013 and includes the following elements: community alcohol management
planning; enhanced long-term licensing and compliance and respectful signs; and
legislative review.
1.152
The report
further states that focus of the measure 'has been the development of a
comprehensive approach to combatting alcohol abuse in the Northern Territory.'[94] The approach
includes:
- a commitment of
more than $75 million over 10 years for the Stronger Futures tackling
alcohol abuse measure;
- the Stronger
Futures in the Northern Territory legislation which maintains alcohol
restrictions in remote communities, provides for stronger penalties for 'grog'
running, provides for the assessment of licensed premises that may be causing
substantial alcohol- related harm to the community, and which provides for a
minimum standards framework for alcohol management plans; and
- the
implementation plan under the National Partnership Agreement that sets out the
framework for Australian Government collaboration with the Northern Territory
Government including on additional licensing inspectors, respectful signage and
alcohol management plans.[95]
1.153
Under the
heading 'What has been achieved?', the report notes the Stronger Futures in
the Northern Territory (Alcohol Management Plans) Rule 2013 came into effect
on 25 February 2013, and that the Australian Government:
had
allocated $23.6 million over eight years in the Alcohol Management Plan
Community Fund for short-term, non-ongoing community-based projects to support
harm reduction and supply and demand reduction strategies as part of an alcohol
management plan, and for governance and leadership support for people involved
in alcohol management planning.'[96]
1.154
The report notes
that the government:
is providing
additional funding to the Northern Territory to support long-term Northern
Territory Liquor Act compliance in alcohol-protected areas, community-managed
alcohol areas, regional centres and supply routes through inspection and
enforcement of liquor regulations in licensed premises. The additional funding
will support engagement with key stakeholders on emerging issues, and
maintenance of alcohol and prohibited material signs at key access points in
the Northern Territory.[97]
1.155
The report
referred to the employment of additional compliance officers, discussion of
proposals to introduce special restrictions for major events, and the removal
of '[a]ll 250 of the blue highway signs notifying alcohol and pornography
restrictions . . . across the Northern Territory and [their replacement] with
49 redesigned, more respectful signs, strategically positioned on borders,
major highway intersections, airstrips and barge landings.'[98]
1.156
Finally, the
report notes that the Stronger Futures in the Northern Territory Act 2012
provides for an independent review of Commonwealth and Northern Territory
laws relating to alcohol, two years after commencement of the Act, that is,
from July 2014. The review must be completed by 15 July 2015.[99]
1.157
However, the
report provides no detailed data to permit any meaningful assessment of the
efficacy of the measures on the abuse of alcohol in the communities affected.
1.158
The committee
acknowledges that the goal of seeking to reduce alcohol-related harm in
Aboriginal communities in the Northern Territory is an important social
objective, the achievement of which in whole or part would contribute to the
enhanced enjoyment of a number of human rights.
1.159
The committee
notes that the measure is one which is based on race or ethnic origin within
the meaning of the relevant human rights treaties and therefore is required to
be scrutinised carefully to ensure that a compelling case has been made for the
introduction of such measures and their continuation. The committee does not
consider that the measures are appropriately classified as 'special measures'
within the meaning of the ICERD. Nonetheless, they may be justified if shown to
be a reasonable and proportionate measure rationally connected to the
achievement of this purpose.
1.160
The committee
considers that alcohol management plans following compliance with the detailed
criteria set out in the Stronger Futures in the Northern Territory (Alcohol
Management Plans) Rule 2013 are likely to avoid the human rights
compatibility concerns that attached to alcohol restrictions permitted under
the NTER and continued under the Stronger Futures package.
1.161
However, the
committee is concerned to know whether there are now any communities in which
alcohol restrictions apply which have not followed the procedures set out in
the Rule prior to approval by the Minister and, if so, what timetable is in
place for those arrangements to be brought under the new framework set out in
the Rule.
1.162
Finally, the
committee considers it important to ensure continuing close monitoring of the
impact of alcohol management plans and the operation of other alcohol
restrictions.
1.163
The Stronger
Futures package includes a number of provisions which subject certain
recipients of welfare benefits to income management.[100]
A person may become subject to the income management regime where:
(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 of the
department 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
(ga) an officer or employee of a
recognised State/Territory authority requires the person to be subject to the
income management regime;[101]
or
(h) the person voluntarily
agrees to be subject to the income management regime.
1.164
If a person is
subject to the income management regime, the secretary of the department (or
delegate) will deduct amounts from the person's welfare payments and credit
those amounts to the person's income management account (50% or more of the
overall payment for most categories, 70% in certain cases).
1.165
Amounts may be
deducted from this account in order to make payments for meeting the 'priority
needs' of the person, the person's children, the person's partner, and any
other dependants of the person. Persons subject to income management use a
BasicsCard to purchase permitted items and services from establishments that
will accept the card.[102]
1.166
'Priority needs'
are defined as:[103]
- food, non‑alcoholic
beverages, clothing, footwear, basic personal hygiene items, and basic household
items;
- housing
(including rent, home loan repayments, repairs, and maintenance), household
utilities (including electricity, gas, water, sewerage, garbage
collection, and fixed‑line telephone), rates and land tax;
- health
(including medical, nursing, dental or other health services, pharmacy items,
the supply, alteration or repair of artificial teeth, of an artificial limb (or
part of a limb), artificial eye or hearing aid, or of a medical or surgical
appliance, the testing of eyes, the prescribing of spectacles or contact
lenses, the supply of spectacles or contact lenses;
- the management
of a disability; child care and development;
- education and
training;
- items required
for the purposes of the person's employment (including a uniform or other
occupational clothing, protective footwear, and tools of trade);
-
funerals;
- public transport
services, where the services are used wholly or partly for purposes in
connection with any of the above needs;
- the acquisition,
repair, maintenance or operation of a motor vehicle, a motor cycle, or a
bicycle that is used wholly or partly for purposes in connection with any of
the above needs; and
- anything
specified in a legislative instrument made by the Minister.
1.167
'Excluded goods'
or 'excluded services' are not priority needs.[104]
'Excluded goods' are alcoholic beverages, tobacco products, pornographic
material, and goods specified in a legislative instrument made by the Minister.[105]
'Excluded services' are gambling or a service specified in a legislative instrument
made by the Minister.[106]
1.168
There are five
broad categories of persons who may be subject to income management:
- persons who are 'vulnerable
welfare payment recipients';[107]
- persons who fall
under disengaged youth income management;[108]
- person who are long-term
welfare payment recipients;[109]
-
persons referred
for income management by State child protection authorities where they assess
that a child is at risk of neglect;[110]
and
- persons who have
opted in to voluntary income management.
1.169
The income
management arrangements introduced by the Stronger Futures package
involve a refinement to, but also an extension of, the operation of the income
management regime.[111]
1.170
Under the
original 2007 NTER measures the income management regime applied to most
welfare payment recipients in prescribed Aboriginal lands and communities in
the Northern Territory. These measures were redesigned in 2010 to remove direct
reference to race in their application, and were targeted towards disengaged
youth, long-term welfare payment recipients, and persons assessed as
vulnerable; there was also the possibility for persons who do not fall within any
of these categories to voluntarily opt in to the income management regime.
1.171
The Stronger
Futures measures retained the 2010 NTER measures and introduced changes,
including the creation of an external referral process from recognised state or
territory authorities (to be specified by legislative instrument) and the
application of income management in new regions outside the Northern Territory.
1.172
The income
management regime was extended to five areas outside the Northern Territory[112] with
effect from 1 July 2012. These are the local government areas of Bankstown
(NSW), Logan and Rockhampton (Queensland), Playford (South Australia) and
Greater Shepparton (Victoria).[113]
It has also been extended to certain regions in Western Australia (Perth
Metropolitan and the Kimberley region); Queensland (Cape York communities);[114]
Anangu
Pitjantjatjara Yankunytjatjara (APY) Lands (South Australia)[115] and Ngaanyatjarra Lands
(NG Lands) and Laverton Shire in Western Australia.[116]
The
cost of income management
1.173
The Department
of Families, Community Services and Indigenous Affairs (FaHCSIA) and the
Department of Human Services (DHS) have estimated that income management would
apply to 20,000 people in the Northern Territory and that the estimated costs
for administration of income management were:
-
remote
areas—between $6,600 and $7,900 per person, per annum;
-
rural
areas—between $3,900 and $4,900 per person, per annum; and
- urban
areas—between $2,400 and $2,800 per person, per annum.[117]
1.174
DHS estimated
that income management service delivery in the Northern Territory cost $90.8
million in 2010-11 and $82.0 million in 2011-12, and estimated the costs to be
$75.7 million in 2012-13 and $76.2 million in 2013-14.[118] The Australian government
committed $117.5 million over five years to administer income management in the
five additional areas to which income management was extended from July 2012.[119]
1.175
The government
has stated that the goals of income management are to achieve results that
would advance the enjoyment of a number of rights. These include the rights to
an adequate standard of living, to social security, and to health, and the
rights of children.
1.176
Notwithstanding
that the measures seek the advancement of human rights, the income management
regime gives rise to a number of human rights compatibility issues. These
include whether the income management regime in its various manifestations is consistent
with the right to be free from discrimination on the ground of race or ethnic
origin, the right to be free from discrimination on the ground of sex, the
right to equal protection of the law, the right to social security, the right
to an adequate standard of living, and the right to privacy.
Racial
discrimination
1.177
The government
has maintained that the income management regime does not involve racial
discrimination. This position appears to involve two arguments. First, that
because the income management regime makes no reference to race in the criteria
for those who are liable to be subjected to compulsory income management or who
may elect voluntary income management, the measures do not involve differential
treatment that is racially based. Second, the government maintains that in any
event income management is a reasonable and proportionate means of ensuring the
well-being of vulnerable individuals and families. As the Minister's analysis
put it:
Income
management, including as amended by this Bill, is consistent with the
obligation of the State to undertake not to engage in any act or practice of 'racial
discrimination' against persons, groups of persons or institutions (art 2(1)(a)
of the ICERD).
Income
management applies in the same way to any person receiving a social security
payment in a designated income management area regardless of race.[120]
1.178
Income
management does not apply in every part of Australia, although its operation is
being expanded, and the legislation is capable of national application. The
areas into which the measure has been expanded from 1 July 2012 were chosen
having regard to a range of objective, non-race-based criteria, including
unemployment levels, youth unemployment, skills gaps, the number of people
receiving welfare payments, and the length of time people have been on income
support payments.[121]
1.179
The government
has stated that the basis on which income management was been extended to the
five new communities is as follows:
As part of
the 2011-12 Budget, the Australian Government is implementing the Building
Australia's Future Workforce package. This includes introducing new measures to
promote long term economic participation in various of the nation's most
disadvantaged communities. The measures involve extra responsibilities and more
assistance for teenage parents on income support, jobless families and other
vulnerable groups, to support children and families and help parents enter or
return to the workforce.[122]
1.180
In areas where
income management applies or will apply, it is and will be applied to income
support recipients on the basis of non race-based criteria related to
indicators of risk for the welfare recipient or to children in their care;
following assessment by a delegate; or following assessment by a state or territory
body exercising a discretionary power to apply income management. It can also
be applied at the request of an income support recipient (voluntary income
management).[123]
1.181
In assessing
this argument it may be recalled that the original NTER measures which preceded
the Stronger Futures version of the measures, were originally designed
to address the situation in Aboriginal communities in the Northern Territory,
and that the overall Stronger Futures framework has as its primary goal
the alleviation of disadvantage in those communities.
1.182
The government
recognises that a significant proportion of people on income management,
particularly in the Northern Territory, are Indigenous. As the Minister notes,
these measures apply overwhelmingly to Aboriginal people, even though their
coverage is not expressly stated to be based on race and notwithstanding that a
number of additional areas have been added to the income management regime.[124] This
reflects the fact that the proportion of Indigenous people in the Northern
Territory on income support payments is high; and also reflects the fact that
of the 4,096 people who chose voluntary income management in the Northern
Territory, more than 98 per cent are Indigenous.[125]
1.183
The Australian
Human Rights Commission has raised the question of whether the nature of the
communities to which income management has been extended from July 2012 might
raise issues of indirect discrimination on the basis of racial or ethnic
origin:
The
Commission also notes with concern that the five disadvantaged communities,
which will be subject to the income management scheme from 1 July 2012, have
high culturally and linguistically diverse communities. According to 2006 Census
data, people born overseas accounted for 23.8% of the total population of
Playford (South Australia). In Bankstown (NSW), 38.7% of the total population
were born overseas and 53.7% of the population spoke a language other than
English at home. The Commission further understands that the communities of
Shepparton and Logan have experienced very high migrant settlement in recent
years, particularly humanitarian settlement.
The
overrepresentation of Aboriginal and Torres Strait Islander peoples and
culturally and linguistically diverse communities in the trialling of income
management is of significant concern to the Commission. Measures that
disproportionately impact upon the ability of a particular racial group to
enjoy their rights (such as the right to social security) may raise issues of
indirect discrimination, particularly where the scheme is applied too broadly.[126]
1.184
It is clear that
while the measures have been extended to communities that are not predominantly
Aboriginal, the measures still apply overwhelmingly to such Aboriginal
communities.[127]
Accordingly, this means that they will fall within the definition of racial
discrimination in article 1 of the ICERD, which refers to measures as racially
discriminatory if they have 'the purpose or effect' of restricting the
enjoyment of human rights. As such, in order to be non-discriminatory they will
need to be shown to be based on objective and reasonable grounds and is a
proportionate measure in pursuit of a legitimate objective. The analysis
conducted under this test is essentially similar to that considered when
assessing whether a restriction on a right is permissible.
Right
to social security, the right to an adequate standard of living and right not
to have one's privacy, family and home unlawfully or arbitrarily interfered
with
1.185
The income
management regime limits the right to social security, the right to an adequate
standard of living and the right to privacy. Accordingly, the burden lies on
the government to justify that such limitations are justifiable, namely that
they are a rational and proportionate means of pursuing legitimate objectives.
Legitimate
objective
1.186
The rationale
for the income management regime has been set out in a number of explanatory
memoranda and statements accompanying the Stronger Futures legislative
measures. For example, the statement of compatibility relating to one of the
most recent legislative instruments made under the Stronger Futures legislation
states that the key objectives of income management are to:
- reduce
immediate hardship and deprivation by directing welfare payments to the
priority needs of recipients, their partner, children and any other dependants,
- help
affected welfare payment recipients to budget so that they can meet their
priority needs,
-
reduce
the amount of discretionary income available for alcohol, gambling, tobacco and
pornography,
- reduce
the likelihood that welfare payment recipients will be subject to harassment
and abuse in relation to their welfare payments, and
- encourage
socially responsible behaviour, particularly in the care and education of
children.[128]
1.187
As the Minister's
analysis noted:
The policy
objective of income management is to support vulnerable individuals and
families by helping to ensure that a portion of a person's income support and
family payments is spent on essential needs, and limiting expenditure on
excluded items, including alcohol, tobacco, pornography and gambling goods and
activities.[129]
1.188
The Minister
also states that, in addition to engaging the right to social security, income
management advances the right to housing 'by helping to ensure that a portion
of a person's income support payments is spent on priorities such as housing
(rent)' and the rights of children, including the right to benefit from social
security (article 12 of the ICESCR), the right to the highest attainable
standard of health (article 24 of the CRC) and the right to an adequate
standard of living (article 27 of the CRC).[130]
The Minister summarises the goal and intended impact of such measures in
relation to children as follows:
The central
purpose of income management is to ensure that a portion of income support
payments are used to cover minimum basic essential goods and services,
including food, rent and utilities. This improves living conditions for the
children of income support recipients subject to income management.[131]
Rational
connection
1.189
There is a range
of evidence available on the effects, positive and negative, of income
management. The Senate Community Affairs Legislation Committee received a
significant number of submissions and received evidence on the impact of income
management.[132]
It concluded:
The
committee takes the view that public opinion on the effectiveness and public
benefit of income management remains divided. The committee is generally
supportive of initiatives that aim to empower and protect vulnerable
Australians but would be concerned if the measures prevent those in
circumstances of distress from improving their situation.[133]
1.190
The Minister's
analysis states that 'substantial benefits can be achieved for individuals
through income management, including ensuring that sufficient food is available
to recipients and dependents, stable and adequate housing is secured, access to
essential utilities is maintained and harassment is minimised.'[134]
1.191
The Minister's
analysis refers to evaluations in the Northern Territory and Western Australia
that 'indicate that income management is having a positive effect on the lives
of many individuals', and states that many participants in a Western Australian
evaluation believed that it had had a positive impact on the well-being of
individuals, children and families and that in the Northern Territory, 'there
is evidence that income management is achieving positive outcomes, particularly
for children.'[135]
1.192
The analysis
also refers to the evidence and statements put before the Senate Community
Affairs Legislation Committee, noting that some statements 'were very
supportive, others not', and that that committee 'took the view that public
opinion on the effectiveness and public benefit of income management remains
divided'.[136]
1.193
The dissenting
report of the Australian Greens noted that income management was not discussed
during the Stronger Futures consultation, and that communities were not
consulted on the five new trial sites where income management was introduced.[137] The
dissenting report referred to 'numerous submissions [which] pointed to the lack
of evidence that income management leads to better outcomes or improved ability
to budget'[138]
and to many submissions which 'suggest that compulsory income management can
actually disempower the people subject to it'.[139]
1.194
The Australian
Greens stated their belief that 'a form of income management may be useful for
some people in managing their finances but it will not be effective unless
people enter into it voluntarily and the processes involved are transparent and
clear.'[140]
1.195
The findings of
an evaluation commissioned by the Department of Families, Housing, Community
Services and Indigenous Affairs published in July 2012 and relating to income
management in the Northern Territory up until October 2011 show diverse impacts
across the different schemes, both in how those subject to income management
viewed and experienced the process and also in the effect it had an impact on
their lives so far as ensuring that priority needs of themselves and their
families were concerned.
1.196
The FaHCSIA-commissioned
study found that:
Indigenous
people subject to income management report strong perceptions of improvements
in the wellbeing of children in their community, especially those living in
NTER prescribed areas.
1.197
The study,
however, was cautious about this finding:
[S]uch
perceptions do not necessarily line up with objective data where it is possible
to test this. Caution is needed in attributing these perceived improvements
specifically to income management, given the other major policy changes
associated with the NTER and the substantial additional resources spent in the
Northern Territory in other policy areas since the NTER commenced.
1.198
The study noted
that:
Many people
subject to income management reported that it makes little practical difference
to their lives.
For many
there is a strong sense of having been treated unfairly and being disempowered.
Only a quarter of people subject to income management who were surveyed said
that they never felt a sense of unfairness.
Generally
non-Indigenous people subject to income management are more negative about the
program than Indigenous people, and a higher proportion believe that income
management has made no difference or has been harmful to them and their
families.
1.199
The study
concluded:
The evidence
gathered to date for this evaluation suggests that NIM has had a diverse set of
impacts. For some it has been positive, for others negative and for others it
has had little impact. Taken as a whole there is not strong evidence that, at
this stage, the program has had a major impact on outcomes overall. Although
many individuals report some gains, others report more negative effects.
There is
little evidence to date that income management is resulting in widespread
behaviour change, either with respect to building an ability to effectively
manage money or in building 'socially responsible behaviour' beyond the direct
impact of limiting the amount that can be spent on some items. As such, the
early indications are that income management operates more as a control or
protective mechanism than as an intervention which increases capabilities.[141]
1.200
In this context
the committee notes the comments dated 9 March 2012 sent to the government by
the UN Special Rapporteurs on Extreme Poverty and Human Rights and Rights of
Indigenous Peoples in relation to the provision of social security benefits
under the ICESCR. They requested that the government:
Please
provide evidence that rights-limiting provisions of the Stronger Futures Bills
(including the compulsory alcohol management and income management schemes)
will contribute to achieving the objects of the bills, including the object of
the Stronger Futures Bill to 'support Aboriginal people in the Northern
Territory to live strong, independent lives, where communities, families and
children are safe and healthy'. Is your Excellency's Government of the view
that these measures are the least restrictive means of achieving these objects? [142]
1.201
The government
replied to this communication on 20 July 2012.[143] The government's response
provided an overview of the purpose of the legislation, the processes of
consultation (including the inquiry by the Senate Community Affairs Legislation
Committee) and the funding allocations made for the purpose of the Stronger
Futures package. The letter noted that the government's intention that all
the Stronger Futures measures would be consistent with the RDA, and
attached the detailed analysis of the human rights compatibility of the Stronger
Futures legislation that accompanied the Minister's letter of 27 June 2012
to this committee.[144]
Proportionality
1.202
The government
has maintained, in the Minister's analysis and in the explanatory statements
accompanying a number of the legislative instruments adopted to implement the Stronger
Futures measures:
To the
extent that [income management] may limit human rights those limitations are
reasonable, necessary and proportionate to achieving the legitimate objective
of reducing immediate hardship and deprivation, encouraging socially
responsible behaviour, particularly in the care and education of children, and
reducing the likelihood that welfare payment recipients will be subject to
harassment and abuse in relation to their welfare payments.[145]
1.203
Stakeholders,
however, have identified various concerns with the regime, particularly in relation
to its compulsory aspects. In its submission to the Community Affairs
Legislation Committee the Congress argued:
Congress
remains adamant that the mandatory system must be replaced by a voluntary
system with provision for case by case income management where warranted.
Although income management has been extended to include all Australians, the
majority of those affected on welfare are Aboriginal people and hence the
measure continues to discriminate against Aboriginal people.[146]
1.204
Congress
recommended that the compulsory income management scheme be replaced with a
voluntary scheme.[147]
1.205
Similarly, the evaluation
report commissioned by FaHCSIA stated:
Compulsory
Income Management is a blanket measure which is applied to a large number of
people who, according to the analysis of survey data, interviews and other
consultations, are able to manage their money and who report that they do not
have problems related to alcohol, drugs or gambling.
Compulsory
Income Management has given rise to considerable feelings of disempowerment and
unfairness.[148]
1.206
In relation to
voluntary income management the study found:
People on
Voluntary Income Management are more positive about the measure and its effects
than people subject to Compulsory Income Management.[149]
1.207
The study concluded:
The evidence
indicates that the program may make a contribution to improving the wellbeing
for some, particularly those who have difficulties in managing their finances
or are subject to financial harassment. Voluntary Income Management in
particular is viewed positively by people to whom it is applied, and by other
stakeholders.
For
Indigenous people on Voluntary Income Management, 59 per cent felt that income
management had made things better for them and 47 per cent would recommend it
to others. For Indigenous people subject to Compulsory Income Management 36 per
cent felt that income management had made things better for them and
33 per cent would recommend it to others. Amongst non-Indigenous people
subject to Compulsory Income Management, 20 per cent felt that income
management had made things better and 32 per cent would recommend it to others.
Many people
subject to Compulsory Income Management appear not to demonstrate the behaviour
problems or financial difficulties which the measure was intended to remedy.[150]
1.208
The study stated:
Income
management incurs costs to the individuals, who in many cases find it
embarrassing and humiliating and in some cases de-motivating. There are very
mixed findings as to the extent to which being subject to income management has
led to greater control over money.[151]
1.209
The study also
noted that Indigenous people were likely to spend extended periods on income
management with few opportunities to exit the scheme once they were put on it:
At this
stage the introduction of NIM has not had an impact on the time people spend on
income support.
The evidence
at this stage is that the majority of Indigenous people, in particular, subject
to income management will remain income managed for an extended period of time
with the rate of exit from income management for most subgroups being quite
low. Around half of the non-Indigenous people subject to income management
however exit within a year.[152]
1.210
Various concerns
have also been expressed about the use of the BasicsCard. For example, the
Senate Community Affairs Legislation Committee stated:
The
committee is gravely concerned by the anecdotal evidence it received which
suggested people using the BasicsCard are encountering discrimination. The
committee views such practices as completely inappropriate and considers cases
of discrimination should be addressed.
Ongoing work
is needed with the community, Centrelink, elders and vendors, to ensure an
understanding of the BasicsCard, including education for vendors that will
ensure there is never discriminatory or stigmatising treatment.[153]
1.211
The FaHCSIA-commissioned
study found:
It is
difficult in the evaluation to fully differentiate views about the BasicsCard
from income management itself. However, the card is seen positively by some and
negatively by others. The positive views seem driven by the safety the card can
provide and the absence of costs (other than phone calls to check balances) on
its use.
[Some value]
the BasicsCard but [resent] the associated loss of autonomy.
For others,
being subject to income management is experienced as restrictive and
frustrating, making their lives more difficult and complicated and in some
cases limiting their ability to fully engage in community life.[154]
1.212
Summarising the
findings, the study concluded:
At this stage
of the evaluation, the evidence highlights a diversity of outcomes from NIM
which are positive for some and negative for others. This raises two central
questions: whether, to the extent that there are gains under the existing
arrangements, the gains outweigh the costs; and whether or not alternative
arrangements, including a more targeted approach and greater attention to the
provision of higher quality services would permit the gains to be achieved
without the negative outcomes.
Our view is
that these findings point towards the conclusion that income management may
assist a proportion of those on income support to cope with particular issues
they face. At the same time the program has been applied to many who do not
believe that they need income management and for whom there is no evidence that
they have a need for, or benefit from income management. Income management has
led to widespread feelings of unfairness and disempowerment.
The low
numbers of people who have engaged with the incentives (matched savings and
exemptions), and other support services which are intended to complement income
management, may have mitigated the effectiveness of the program as it is the
combination of all three components which is expected to improve wellbeing.[155]
1.213
The committee
considers that even though the income management regime is formulated without
explicit reference to the race or ethnic origin of the potential participants,
the history of the measure and the fact that it appears to apply overwhelmingly
to Indigenous Australians suggest that it should be characterised as a measure
that has the purpose or effect of limiting the rights of person of a particular
race or ethnic origin within the meaning of article 1 of the ICERD.
Accordingly, it must be closely scrutinised and the onus is on the government
to demonstrate clearly that it pursues a legitimate objective and is based on
objective and reasonable criteria and is a proportionate measure to achieve the
legitimate objective.
1.214
The committee
accepts that the goals pursued by the income management measures are important
and legitimate goals and are intended to promote the enjoyment of various
aspects of human rights as articulated in the Minister's analysis and the
explanatory statements accompanying the legislative instruments.
1.215
The committee,
however, considers that the income management regime involves a significant
intrusion into the freedom and autonomy of individuals to organise their
private and family lives by making their own decisions about the way in which
they use their social security payments.
1.216
The committee considers
that the imposition of conditions restricting the use that may be made of such
payments enforced through the BasicsCard system represents both a restriction
on the right to social security and the right not to have one's privacy and
family life interfered with unlawfully or arbitrarily.
1.217
Given the
disparate impact on Indigenous people, the committee considers that the
measures may also be viewed as racially based differential treatment within the
meaning of article 1 of the ICERD. In light of the fact that there is some
evidence to suggest that the majority of persons subject to income management
are women, concerns may also arise as to the consistency of the measure with
guarantees against non-discrimination on the basis of sex.
1.218
The committee
notes that there appears to have been consultation with only some of the groups
affected by decisions to extend the income management regime.
1.219
The committee
notes that the evidence relating to the impact of income management is not
comprehensive or unequivocal, and largely concerns the 2007 NTER and the later
2010 measures, although it recognises that a number of these measures or
aspects of them have been carried over into the Stronger Futures measures.
1.220
The committee
notes that the available evidence suggests that the impact of income management
varies significantly among different groups. In particular it appears that
there is significant evidence to suggest that voluntary income management has been
viewed with favour by those who have agreed to be subject to it and that it has
had beneficial effects, while compulsory income management has led in many
people to a sense of having been treated unfairly and being disempowered as a
result, while others have found it beneficial.
1.221
The committee
notes also that the major evaluation commissioned by FaHCSIA concluded that, while
there is some evidence that compulsory income management has had some
beneficial impacts, there is also evidence of equally significant adverse
impacts. More importantly, there appears to be little evidence to support
claims that compulsory income management has brought about behavioural changes
on a significant scale, and the evidence also suggests that many people subject
to compulsory income management 'appear not to demonstrate the behaviour
problems or financial difficulties which the measure was intended to remedy'.[156]
1.222
The committee
notes in particular the finding of the FaHCSIA-commissioned evaluation that 'while
income management may assist a proportion of those on income support to cope
with particular issues they face', '[a]t the same time the program has been
applied to many who do not believe they need income management and for whom
there is no evidence that they have a need for, or benefit from income
management' and that income management 'has led to widespread feelings of
unfairness and disempowerment.'[157]
1.223
The committee
recognises the complex nature of the income management regime and the
circumstances to which it applies, as well as the difficulty of evaluating the
impact of such schemes. However, the committee considers that, in light of the
evidence that is available to the committee and notwithstanding that the income
management regime pursue legitimate goals, the government has not yet clearly
demonstrated that:
- the income
management regime to the extent it may be viewed as having a differential
impact based on race, is a reasonable and proportionate measure and therefore
not discriminatory; or
- the income
management regime is a justifiable limitation on the rights to social security
and the right to privacy and family.
1.224
The Social
Security Legislation Amendment Act 2012 made a number of amendments to the
existing Improving School Enrolment and Attendance through Welfare Reform
Measure (SEAM).[158]
1.225
The amendments
set out a series of steps for responding to unsatisfactory non-attendance by
children at school.[159]
1.226
These provisions
apply to persons who are receiving a 'schooling requirement payment'[160] where
such a person's child is enrolled at a school in a state or territory and a
person responsible for the operation of the school gives the Secretary written
notice that the child is failing to attend school as required by the law of
that state or territory.[161]
1.227
The Secretary or
school principal may issue a 'conference notice' requiring the person to attend
a conference with a specified person at a specified place and time to discuss
the child's school attendance including the possibility of a school attendance
plan.[162]
1.228
If a 'schooling
requirement person' fails to attend a conference, fails to enter into or amend
a school attendance plan or fails to comply with a school attendance plan, then
a schooling requirement payment will not be payable to the person, unless
certain conditions are satisfied.[163]
1.229
The possibility
of this sanction is in addition to existing provisions which provide for the
suspension of payment in cases in which a person has failed to comply with an
attendance notice issued in relation to a child who is failing to attend school
in accordance with the law in the state or territory concerned.[164]
1.230
Where a payment
has been suspended for a total period of 13 weeks or more, the Secretary must
determine that the payment is to be suspended or cancelled; payment may be
suspended more than once.[165]
1.231
The Secretary
may also reconsider a decision to suspend payment either on his or her own
initiative or on application by the person affected, in cases where the person
is complying with the attendance plan. Upon reconsideration the Secretary may
order resumption of the payment, as well as the payment of arrears.[166]
1.232
SEAM was
trialled in six locations in the Northern Territory (where it continues to
operate) and six locations in Queensland (2009-2012), with additional 16
locations in the Northern Territory added in 2012.[167]
Stronger
Futures in the Northern Territory Six-Monthly Progress Report (June 2012)
1.233
The first Stronger
Futures in the Northern Territory Six-Monthly Progress Report released in
June 2013 provides only general information about the implementation of the
SEAM. The report describes developments in relation to SEAM during the first
six months of the Stronger Futures measures (from 1 July 2012 to 31
December 2012).[168] The report describes a number of
aspects of the application of the phased roll-out of the SEAM, including
consultations and information sessions with communities. However, it does not
contain any detailed description of the operation of the SEAM in practice or
provide any empirical data that permits assessment of the impact of the
measures or of any contribution that the threat of suspension or cancellation
of social security payments may have made to any improvements in school
attendance rates.
1.234
The government
has maintained that the goals of SEAM are to achieve results that would advance
the enjoyment of human rights. These include in particular the right of
children to education guaranteed by article 28 of the CRC and article 13 of the
ICESCR.[169]
Article 28(1)(e) of the CRC requires States parties to take measures 'to
encourage regular attendance at schools and the reduction of drop-out rates'.
1.235
In addition to
seeking to promote the right to education, SEAM also gives rise to a number of
human rights compatibility concerns. The measure gives rise to concern about
whether it constitutes racial discrimination insofar as its major impact is on
Indigenous communities. The measures also potentially limit the right to social
security and to an adequate standard of living guaranteed by articles 9 and 11
of the ICESCR respectively, and the right to privacy which is guaranteed by
article 17 of the ICCPR.
Racial
discrimination
1.236
The government
has maintained that SEAM 'is consistent with the obligation of the State to
undertake not to engage in any act or practice of "racial discrimination"
against persons, groups of persons or institutions' as required by article
2(1)(a) of the ICERD. This position appears to reflect two arguments. First,
that because SEAM makes no reference to race in the criteria which may trigger
the suspension of benefits,[170]
the measures do not involve differential treatment that is racially based.
Second, that the criteria are objective and reasonable and that to the extent
that they apply predominantly to Indigenous people, that this reflects the
recognised gap in educational attainment between Indigenous and non-Indigenous
Australians, and the fact that the Northern Territory has the lowest school
attendance rates in Australia.
1.237
As the Minister
stated:
The
Australian Government recognises that a significant proportion of people on
income management, particularly in the Northern Territory, are Indigenous. This
reflects the fact that the proportion of Indigenous people in the Northern
Territory on income support payments is high; and also reflects the fact that
of the 4,096 people who chose voluntary income management in the Northern
Territory, more than 98 per cent are Indigenous.[171]
1.238
It is overwhelmingly
Aboriginal communities who have been affected by SEAM, even though the
legislative criteria for the application of the measure are not explicitly
based on race but on other neutral criteria. As the Minister notes, the
additional Northern Territory sites selected for a phased roll-out from July
2012 had a significant Aboriginal population.[172]
1.239
Even though the
measures are not expressly based on race, they still appear to apply
overwhelmingly to such Aboriginal communities.[173] Accordingly, as the committee
has noted in its discussion relating to the income management regime above,
this means that they will potentially fall within the definition of racial
discrimination in article 1 of the ICERD which refers to measures as racially
discriminatory because they have 'the purpose or effect' of restricting the
enjoyment of human rights. As such, in order to be non-discriminatory they will
need to be shown to be based on objective and reasonable grounds and be a
proportionate measure in pursuit of a legitimate objective. The analysis
conducted under this test is essentially similar to that considered when
assessing whether a limitation on a right is permissible.
Right
to social security, right to an adequate standard of living and right to
privacy
1.240
The SEAM involves
an intervention into the family life of persons by requiring a parent or carer
to adopt particular conduct, subjecting the person to a series of regulatory
measures to encourage compliance, and providing for a sanction if the person
fails to conform to the conduct stipulated. Insofar as the sanction of
suspension or cancellation of benefit is concerned, that may also have an
impact on the right to family life to the extent that it limits the economic
resources that may be available to support members of the family, including
family members who have no connection with any failure to take steps to address
the unsatisfactory school attendance.
1.241
Limiting the
payment of social security benefits when the conditions provided for under the
legislation are satisfied will also potentially limit the right to an adequate
standard of living.
1.242
The government
states that SEAM is consistent with the right to social security, noting that 'SEAM
does not make people ineligible for welfare payments, or reduce the amount paid,
but places a condition on the receipt of payment.'[174] However, this is
sufficient to constitute a limitation on the enjoyment of the right to social
security.
1.243
Accordingly, the
burden lies on the government to justify that such limitations are permissible,
namely that they are rational, reasonable and proportionate means of pursuing a
legitimate objective.
Legitimate
objective
1.244
The government's
justification for SEAM was set out in the analysis accompanying the letter of
28 June 2012 from the Minister for Families, Community Services and Indigenous
Affairs to the chair of the committee.[175]
That analysis stated:
The policy
objective of SEAM is to improve school enrolment and attendance in areas where
school attendance and enrolment is very low.
SEAM places
certain conditions on income support payments received by parents to ensure
that they receive the support they need to fulfil their basic responsibilities
in relation to their children's schooling.[176]
1.245
In submissions
made to the Senate Community Affairs Legislation Committee there was general
agreement about the importance of improving access to and the quality of
education for Aboriginal children in areas where there were low levels of
school attendance.[177]
Rational
connection
1.246
There is debate
over whether SEAM has had a significant impact on school attendance. The
Community Affairs Legislation Committee received advice from FaHCSIA and the
Department of Education, Employment and Workplace Relations as to the positive
outcomes of SEAM, drawing on the evaluations conducted of the operation of SEAM
from 2007 to 2009 and in 2010.[178]
FaHCSIA advised:
an early
2009 evaluation report relating to SEAM's operation in the Northern Territory
was released in mid-December 2011. A subsequent 2010 evaluation report has also
been released and a copy has been provided to the committee. The 2010 report
showed that SEAM is having a positive effect on both enrolment and attendance.
From 2009 to 2010, students who were involved in the SEAM trial improved their
attendance rates more than other children attending the same schools. We
understand that this improvement was mostly a result of a decrease in
unauthorised absences, those directly targeted by SEAM. Social worker contact
provided by Centrelink was also shown to be vital in helping to improve the
absence rates of referred students during the compliance period. This is
particularly the case for students with higher absence rates, where assistance
was provided to address attendance issues, helping to limit a relapse in
absence rates.
These
evaluations also outlined a number of areas in which SEAM could be improved.
The government has acted on these recommendations. Accordingly, the new model
of SEAM proposes as part of the Stronger Futures package has key differences
from the existing SEAM model.[179]
1.247
However, the
Australian Human Rights Commission commented in its submission to the Community
Affairs Legislation Committee:
The
Commission is concerned that there has not yet been sufficient evidence to
suggest that SEAM in its current form is an effective approach to addressing
issues of low school attendance, or that it is an appropriately targeted way of
meeting the obligations of the government to ensure that all children receive a
minimum level of education.[180]
1.248
The Commission
referred to the evaluation of the SEAM trial for 2007−2009 which had
found that 'there was no demonstrable effect of SEAM on improving the
attendance rates of SEAM children in 2009 and no changes in unauthorised
absenteeism behaviour among SEAM children during 2007−2009'.[181] The
Commission also quoted the finding of the SEAM Evaluation Report that:
School
attendance was seen to be affected by many factors and barriers ... Some of these
were cultural obligations and issues, clan conflict and violence, transport
issues, health problems and schooling languages. Tailored case management was
considered to be the most critical factor in addressing issues behind school
absenteeism.[182]
1.249
In relation to
the further evaluation of SEAM, covering 2010 and released in 2012, the
Commission noted:
While this
report has suggested 'SEAM is starting to have a positive impact on SEAM
student attendance in both the NT and QLD ... these results are tempered somewhat
by evidence suggesting that a relapse after the compliance period is common,
with an associated increase in unauthorised absences.'[183]
1.250
The Australian
Human Rights Commission further noted:
Given the
variations in reports on SEAM‟s effectiveness, the program should
continue to be subject to regular review and revision to establish its efficacy
as an approach over several years. At present there is still insufficient
evidence to suggest the welfare consequences in SEAM are an effective approach
to improving school attendance.[184]
1.251
The National
Congress of Australia's First Peoples also questioned the underlying
rationality of the measures:
Programs
that link parents' welfare payments to school attendance are based on
assumptions of questionable validity, including the fact that they implicitly
define the problem as one of parent or student negligence.[185]
1.252
The National
Congress pointed out that:
National and
international research shows that the majority of reasons for nonattendance
relate to a lack of recognition by schools of Aboriginal culture and history;
failure to fully engage parents, carers and the community; and ongoing
disadvantage in many areas of the daily lives of Aboriginal Australians (AIHW
and Australian Institute of Family Studies, 2010).[186]
1.253
It was the view
of the Congress that:
[T]here is
insufficient evidence to support improved attendance and educational outcomes
through an expansion and extension of SEAM and that these resources would be
better directed at alternatives such as changing the school environment and
supporting community-driven initiatives. We note that the Department of
Education, Employment and Workplace Relations released an evaluation report on
SEAM for 2010 at the concluding stages of the consultation period of this
review. Due to the late timing of the release, there has been insufficient time
to analyse the evaluation report and its implications. Accordingly, we reserve
our position on the evaluation report.[187]
1.254
The Community
Affairs Legislation Committee noted that a final evaluation of the SEAM trial
was to be conducted in 2012 and recommended that the results be made publicly
available as soon as possible following its completion, particularly in light
of 'the inappropriate delay in releasing the 2010 evaluation of SEAM'.[188] As of
mid-June 2013, the evaluation for 2012, if completed, does not appear to be
publicly available.
Proportionality
1.255
The government
maintains that SEAM is a reasonable and proportionate means of promoting the
right to education of children. It notes that the 'qualifying condition is
reasonable and proportionate', since school attendance is compulsory for
school-aged children under state and territory law; there are a number of steps
before a person's payment is suspended or cancelled, including the provision of
assistance; and there are appeal and review mechanisms in place.[189] The
Minister maintained:
The
conditions imposed on parents in receipt of social security in designated SEAM
areas are reasonable taking into account the importance of children attending
school, the evidence that SEAM improves educational outcomes, the support made
available through SEAM such as school conferences and social work support, and
the protection and review rights that are in place under the Social Security
Law.[190]
1.256
The evidence
referred to in the Minister's analysis includes the material presented by the
government to the Senate Community Affairs Legislation Committee and the 2010
SEAM evaluation report.
1.257
The Minister's analysis
also noted that:
The
suspension of payments under SEAM is as a last resort in a series of steps to
ensure that parents/carers re-engage in the process of getting their children
back to school. Provided parents/carers take steps to rectify compliance within
13 weeks, they will have their suspended income support payments back-paid.[191]
1.258
In submissions
made to the Senate Community Affairs Legislation Committee there was
recognition that the question of school attendance was a complex issue and that
the problem of low school attendance needed to be approached holistically.[192] These
views were accompanied on the part of some submitters by concerns that the SEAM
measures involving suspension of payments were punitive.
1.259
For example, the
National Congress of Australia's First Peoples submitted:
Congress is
concerned that the threat of income suspension is the principal tool for
lifting school attendance. We believe this punitive approach is detrimental to
the long term welfare of children and families. First, the negative stigma
attached to being viewed as responsible for income suspension risks a child
becoming further alienated from their family, schooling and other support
structures, in effect making SEAM a self-fulfilling prophecy. A safer, more
constructive solution, are programs which build on the strengths of the child.
Second, income suspension penalises a whole family, including other children in
the family who may be regularly attending school, by taking away their means of
support.
Notwithstanding
our ongoing concerns with income suspension, we oppose outright the proposed 13
week income suspension penalty under SEAM, as it is excessive. As an example, a
family of four children, even retaining all their family tax benefits, would be
expected to survive on just the base rate of $52.64 per child per fortnight for
a full 13 week period whilst on income suspension. We find this expectation
unreasonable. ...
...
The measure
places on children an increasing burden of responsibility for a family's
receipt of income support and consequently their financial wellbeing. It is the
experience of Congress, based on feedback from Members, that children who do
not attend school may already be living in difficult home situations where
there may be poverty, over-crowding, substance abuse and violence. A child who
is viewed by parents or carers as the cause of the withdrawal of income may be
subject to further victimisation. The withdrawal of a family's income may
result in the family struggling to pay for basic requirements and therefore
pressuring other family members for money. This 'humbugging' was identified as
a behaviour that income management is trying to reduce.[193]
1.260
In its
submission to the Community Affairs Legislation Committee, the Australian Human
Rights Commission underlined the importance of consultation with affected
groups in the design and in any extension of the SEAM program:
The
[Committee on Economic, Social and Cultural Rights] has identified the
following relevant factors in setting out key features of the right to social
security. Where retrogressive measures are taken in relation to the right to
social security (such as suspension or cancellation of welfare payments), the
Government has the burden of proving that they have been introduced after the
most careful consideration of all alternatives and that they are duly justified
by reference to the totality of the rights provided for the ICESCR in the
context of the full use of the State party's maximum available resources.
Factors for consideration in establishing this include whether:
- alternatives
were comprehensively examined;
- there
was genuine participation of affected groups in examining proposed measures and
alternatives that threaten their existing human right to social security
protections;
-
the
measures were directly or indirectly discriminatory;
- the
measures will have a sustained impact on the realisation of the right to social
security ;
-
the
individual is deprived of access to the minimum essential level of social
security unless all maximum available resources have been used; and
-
review
procedures at the national level have examined the reforms.[194]
1.261
The Commission
drew attention to what it considered was inadequate consultation in the
introduction of SEAM.[195]
Adequate consultation is not only required in relation to limitations on
economic and social rights, but by the UN Declaration on the Rights of
Indigenous Peoples insofar as the SEAM measures were designed to apply
primarily to, and have in fact applied predominantly to, Indigenous
communities.
1.262
The Commission
raised the question of whether 'SEAM is an appropriate measure or whether it
unduly diminishes related rights of children and their families, such as a
child's right to benefit from social security under Article 26 of the CRC':[196]
In
situations where welfare payments are suspended or cancelled, there is likely
to be no income available for the period of the suspension, or in the case of
the cancellation, for the period until a new application is completed. This
will likely have a severe impact on the well-being of children.
During this
period children and families may not have the means to access necessary food,
clothing, housing, and medical care. Denying the means to access these goods
and services does not promote the best interests of the child nor protect the
rights of the child, necessary for their development. This can also further
entrench problems of poverty, ill health and overcrowded housing in the family,
which research shows are factors that contribute to school absence.[197]
1.263
The Commission
drew attention to the possibility that the payment of benefits could be
suspended for relatively trivial failures and the decision to suspend a payment
could in effect be delegated to a truancy officer.[198]
1.264
The Commission
raised the question of whether the measures might also have 'the unintended consequence
of having a disproportionately negative impact on women. This may arise in the
context of women still predominantly fulfilling the role of carer in many
Australian families.'[199]
1.265
The committee
accepts that the goal of seeking to promote the right to education of children
in the Northern Territory and elsewhere by improving the low rates of school
attendance is a legitimate objective. The committee shares the view that the
reduction of low school attendance rates, particularly in Aboriginal
communities in the Northern Territory is an important and pressing objective
and that Australia is under an obligation to ensure that all children
effectively enjoy the right to a quality education. The committee acknowledges
that the problem is a complex one that needs to be addressed in a holistic
fashion and in close consultation with those who are affected.
1.266
The committee
considers that the fact that the SEAM program has its predominant impact on
Indigenous communities means that the program may come within the definition of
racial discrimination in the ICERD as its effect is to limit the enjoyment of
rights by persons of a particular racial and ethnic origin. It therefore must
be justified as a proportionate measure based on objective and reasonable
criteria adopted in pursuit of a legitimate goal.
1.267
The committee
considers that the SEAM program involves a limitation on the right to social
security, the right to privacy and family, the right to an adequate standard of
living, and the rights of the child in relation to each of those rights. This
interference must therefore be justified as a rational, reasonable and
proportionate measure adopted in pursuit of a legitimate objective. The
government bears the onus of clearly demonstrating that the measure is
justified. In this case the committee would expect a clear demonstration, based
on reliable empirical evidence, that the measures are having a significant
impact on reducing low school attendance.
1.268
While the committee
acknowledges that the process of evaluation of SEAM is continuing, thus far the
evidence has been mixed. In the committee's view it has not yet been clearly
demonstrated that the SEAM has had a significant impact on reducing low school
attendance. Accordingly, at this stage the committee is not able to conclude
that the government has shown that the interference with rights that the SEAM
represents is justified.
1.269
The committee
underlines the importance of continuing to monitor closely the impact of SEAM
and of ensuring that there is an adequate process of consultation with those
communities and groups where it currently applies or to which it is proposed to
extend the measure.
1.270
The committee
acknowledges the continuing severe disadvantage suffered by many Aboriginal
communities and the fact that the level of enjoyment by Indigenous Australians
of the human rights guaranteed by the UN human rights treaties is, in general,
well below that of other members of the Australian community.
1.271
The committee
recognises that ensuring that Indigenous Australians enjoy a comparable level
of human rights to other Australians is a compelling policy goal and is plainly
a legitimate objective within the framework of the human rights treaties.
1.272
The committee
recognises the steps that the Commonwealth government has taken, in
collaboration with other governments and institutions, and with Indigenous
Australians, to close the gap between Indigenous Australians and the rest of
the community. The committee acknowledges that the Stronger Futures measures
have been motivated by the policy goal of seeking to reduce disadvantage and to
promote equal enjoyment of human rights.
1.273
At the same
time, as set out in this report, the committee has recognised that Indigenous
people and many others have significant concerns about the human rights
compatibility of a number of the measures central to the Stronger Futures
measures. The committee notes that the issue of whether some of the measures
have had the beneficial effects that were hoped for, is contested and that there
is much work to be done in terms of evaluation of the ongoing impact of the
measures.
1.274
The committee
underlines the following aspects that emerge from the three major areas of the Stronger
Futures measures that it has examined in this report, noting that they are
of more general application.
1.275
The first is the
critical importance of ensuring the full involvement of affected communities,
in this case primarily Indigenous communities, in the policymaking and policy
implementation process. The right to self-determination guaranteed by
article 1 of each of the International Covenants on Human Rights, as
well as the UN Declaration of the Rights of Indigenous Peoples, require
meaningful consultation with, and in many cases the free, prior and informed
consent of, Indigenous peoples during the formulation and implementation of
laws and policies that affect them. This means ensuring the involvement of
affected communities in decisions as to whether to adopt particular measures,
in their implementation, and in their monitoring and evaluation. To do
otherwise risks producing the disempowerment and feelings of exclusion and
marginalisation that were revealed in the evidence presented to the Senate
Community Affairs Legislation Committee and which are fundamentally at odds
with the principles of respect for the dignity and autonomy of persons
recognised in the human rights treaties and the UN Declaration on the Rights of
Indigenous Peoples. The committee recognises the significant steps that the
government has taken in this regard, but considers that more needs to be done.
1.276
The second
aspect arises from the significant limitations on human rights that a number of
the Stronger Futures measures represent, even though these limitations
are motivated by the desire to enhance the protection of other rights. The
income management measures and the school attendance measures in particular,
involve extending regulation a long way into the private and family lives of
the persons affected by these schemes.
1.277
The committee
has underlined that the onus is on government to clearly demonstrate that these
measures involve not just the pursuit of an important social objective, but
that there is a rational connection between the measures and the achievement of
the goal, and that the measures adopted are reasonable and proportionate to the
achievement of that goal.
1.278
The committee
has indicated the importance of continuing close evaluation of measures such as
these which are claimed to have a beneficial effect, and notes that the
potentially disempowering effects of such measures also need to be taken into
account in any assessment of human rights compatibility.
1.279 The committee considers that it can
usefully perform an ongoing oversight role in this regard and recommends that in the 44th
Parliament the committee should undertake a 12 month-review to evaluate the
latest evidence in order to test the continuing necessity for the Stronger
Future measures.
Mr Harry
Jenkins MP
Chair
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